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Friday, November 07, 2014

Four Advantages of Bumpy Laws

In prior posts, I expressed a general preference for smooth legal relationships. They often (though not always) lead to laws that better fit our underlying moral theories. Also, smooth legal relationships tend to treat similar cases similarly and may lead to better incentive schemes. (I will simply speak of "smooth laws" to mean laws in which smooth legal relationships predominate or are most salient.)

But let me describe four reasons one might prefer bumpy laws. First, sometimes we have "bumpy needs." A legal determination simply must result in a binary outcome. For example, the Constitution mandates that the U.S. president be at least 35 years old. Nothing magical happens at 35, but it's difficult to smooth the relationship between maturity and eligibility for the presidency. You can't be a little bit president. The same principle often applies to laws that govern the operation of others laws. For example, we generally think a law should be either constitutional or unconstitutional, not 40% constitutional. Ditto for many aspects of evidence law, civil procedure, and more. (We're often too quick to assume that we have bumpy needs, even in the presidency example, but the general point remains.)

Second, bumpy laws will often be cheaper and easier to administer. Smooth laws require us to figure out where an input fell along a spectrum. That's hard and requires considerable factfinding. With bumpy laws, we make the easier determination as to whether an input was above or below some threshold. For example, it's easier to determine whether or not a person was negligent (under our bumpy ordinary negligence laws) than to say how negligent he was across the spectrum of negligence.

Third, bumpy laws more tightly control discretion. For example, statutory minima make the criminal law bumpy. If you reasonably use defensive force to kill a perceived attacker, you leave the courthouse a free person. If you were just slightly unreasonable, in many jursidictions, you will face at least the minimum sentence for murder. This will sometimes be unjust. But, some people think, there are benefits of statutory minima: they restrict judicial discretion and perhaps make sentences more uniform. I can't settle that debate here, except to draw attention to the trade off.

Finally, bumpy laws may sometimes have other advantages in terms of their memorability or in terms of the messages they send. I'm a little bit skeptical here, but I can't rule out the possibility. For example, a bumpy law says there is a $150 fine for exceeding the 65mph speeed limit. A smoother law says there is a fine of $10 per mph driven above the 65mph speed limit. Is one version more memorable than the other? Does one send a better or clearer message than the other? I'm not sure, and I can't entirely rule out such possibilities from an armchair.

To sum up, then, while smooth laws will often better suit our underlying theories, such benefits need to be weighed against our need for binary outcomes, the cost and administrability of smooth laws, the ways smooth laws may fail to appropriately allocate discretion, and the possible advantage (or disadvantage) bumpy laws may have with respect to memorability and the expressive force of law. But it would be foolish to simply assume that the law is as smooth as it should be. After all, many jurisdictions with a history of using contributory negligence principles in tort switched in recent decades to smoother, comparative negligence principles. If you think such a change was for the better, why assume that we have already rooted out the law's excessive bumpiness?

Posted by Adam Kolber on November 7, 2014 at 09:46 AM | Permalink


Thanks, WG! Just because a law incorporates a standard like "reasonableness" doesn't automatically mean that the law needs to be bumpy. We can still recognize that some people were a little unreasonable or very unreasonable. It's true that there are no generally agreed on formulas for doing so. But take, for example, punitive damages. There we seem comfortable allowing jurors to attach price tags to conduct that at least somewhat smoothly relate to the extent of defendants' bad faith (or the like). It's true that we're not especially uniform when selecting amounts of punitive damages or periods of incarceration, and the smooth-bumpy distinction isn't going to solve that problem by itself.

Regarding your last paragraph, perhaps there are fundamental limits to how many ways we can graduate certain kinds of conduct. If we can only categorize some kind of conduct into four categories, then we won't gain any accuracy by making 100 categories. The bumpiness would be a product of human limits on knowledge or some such. I'm not sure we're at that point, though. Certainly in comparative negligence contexts, jurors are regularly asked to assign percentage responsibilities of defendants relative to plaintiffs on a 0-100 basis. And there may be ways of more accurately grading such spectra by having legislatures stipulate prototypical exams for 10% responsibility, 20%, 30%, etc. But if there really are such knowledge limitations, I'd be happy with the more modest claim: laws representing smooth phenomena should be as smooth as possible (on a cost-benefit basis) given those knowledge limitations.

Posted by: Adam Kolber | Nov 7, 2014 2:12:44 PM

The benefits of bumpiness seem to arise most clearly in cases where the discontinuity is identifiable (as with the speed limit or the age limit). I suspect these benefits are less pronounced where the discontinuity is hard or impossible to identify (at least, that's the lesson I draw from the self-defense example, where the line between reasonable self-defense and unreasonable self-defense is hard to locate). Yet it seems to me that much bumpiness is caused by laws of the latter kind.

And that, in turn, may be a function of the law's dependence on vague terms like "reasonable." These terms have the well-known property of behaving in what might be called "bumpy" ways--there are clear cases of actions that are reasonable, clear cases of actions that are not reasonable, and actions that fall in between. More importantly, the line between the clear cases and the borderline cases, or between the borderline cases and the clear not-cases, is hard or impossible to identify. Would you expect bumpy laws so long as the law incorporates vague standards like "reasonable"?

And does a continuum of reasonableness or negligence solve the problem of bumpiness? I think that would depend on how confident we can be in distinguishing "31% negligent" from "32% negligent" or something similar. If we can't be confident in making fine distinctions along these continua, then bumpiness reemerges. That is, we can distinguish between "25% negligent" and "50% negligent", maybe, but not between "25% negligent" and "26% negligent". But then whatever consequence hinges on the distinction between a finding of 25% and 50% negligence will still be bumpy (though perhaps less drastically so).

Posted by: WG | Nov 7, 2014 11:44:24 AM

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