Optimal deterrence theory seeks to promote resource maximization by identifying the most economically useful occasions and magnitudes for legal liability. But liability is only the final outcome of a burdensome process made more onerous for many today by widening inequalities in wealth and access to justice. Omission of this may reflect a preoccupation among tort theorists with large corporate actors and a drift further from the dilemmas of individual and social justice. Select lessons from American Legal Realism prompt us to go beyond liability to think about the deterrent function of legal process itself. These lessons challenge us to consider the interpretive dimension of human behavior in its response to not only norm enforcement but also threats thereof. Taking up that challenge, this Article suggests that considerations of optimal deterrence should account for the behavioral impact of what it terms the ‘specter of process’, in other words the fear of litigation itself, and that doing so requires a stronger bridge between economic and interpretive empirical studies of law. The revised theory may be said to include processual deterrence, the degree to which the behavior of legal subjects is shaped ex ante by fears of being implicated in the burdens of litigation.
Riaz Tejani, Efficiency Unbound: Processual Deterrence for a New Legal Realism, UC Irvine Law Review, 6:207 (2016).