Page 19 / De iure September 2018 of the population donate their organs after death, while the statistic is about 90 % in Austria. The difference between the two countries is the default applied. Indeed, there are defaults that are“ sticky” default rules, namely, defaults that people tend not to change, even if they would prefer to have a different default to the one assigned. In such cases, personalization has a special significance.”
You wrote a second article about personalizing negligence law.
“ Yes, co-authored with Prof. Omri Ben- Shahar of the University of Chicago. Negligence law sets standards of care that we all have to adhere to. For example, when driving a car under the same conditions, we are expected to comply with the same standard of care. The standard of care is uniform, but there are several exceptions to this. For example, minors are required in certain areas to comply with a lower level of care than adults. The personalization of negligence law means that the different skills injurers have and the different risks they create should entail different levels of care tailored to each of them personally. Thus, I could be a more skillful driver than you, or less skillful. Our claim is that, at least from an efficiency perspective, you and I should be required to comply with
There is an illusion of certainty here, as if the consumer is already aware of the defaults. With personalization, the consumer will receive defaults that are closest to his or her preferences, needs and expectations
different standards of care, given our different skills. A race driver, to take an extreme case, might be permitted to drive faster than a driver who doesn’ t have a similar skillset. In this article, we try to show how personalized negligent laws will look like in various areas, from road accidents to medical accidents.”
Fantastic. So, what’ s next?
“ A few months ago, I co-organized a conference at the University of Chicago about the personalization of the law. Participants discussed the potential for personalization in additional fields, how to achieve it and the challenges and difficulties involved. Consider criminal punishment, for example. Two criminals are convicted of the same crime, and the circumstances are the same in both cases. The assumption is that under prevailing law both criminals should receive the same punishment, for example, five years in jail. But consider the goal of affording each potential felon with the minimum sentence necessary to deter him from committing a crime. It’ s possible that the minimum for me is different than the minimum for you. For instance, if I stand to gain more from the crime than you do then personalization might justify imposing a more serious penalty on me. This could give rise to a host of moral problems, of course. In any event, these days, Prof. Ben-Shahar and I are writing a book about the personalization of the law. It probably won’ t have the same appeal as Harry Potter … but we hope it inspires interest.” •