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Monday, May 11, 2020

Inputs and Outputs vs. Rules and Standards

I don't love the name “Legal Discontinuities.” Discontinuities are perspectival. For example, in countries with progressive income taxes, as your income rises by just a dollar above some often arbitrary cutoff point, your marginal tax rate can go from, say, 20% to 30%. If we think about the relationship between income and marginal tax rate, it looks discontinuous. On the other hand, if you look at the relationship between income and total taxes owed, as you go a dollar above the threshold, you owe just a little more than you owed when you were just below the threshold.

The lesson I take is that legal input-output relationships are the central issue: how do we map things that law cares about—inputs such as reasonableness, culpability, and harm caused—onto legal outcomes that law cares about such as compensation owed, fine amounts, and years in prison? As I see it, we begin with a theory of the relationship particular inputs and outputs ought to have and compare the theoretical relationship to the one the law actually gives them. In the example above, what matters is the relationship between income and taxes owed not income and marginal tax rate. Subject to some important caveats, the input-output relationships we see in the law should match the input-output relationships our best theories recommend.

When a gradual change to an input causes a gradual change to an output, I call that a smooth relationship. By contrast, when a gradual change to an input sometimes has no effect on an output and sometimes has dramatic effects, I call that a bumpy relationship. There are, however, an infinite number of ways to map inputs and outputs, and these are just shorthand names for two common types of input-output mappings. (In his conference paper, for example, Mark Spottswood discusses a logistic relationship which is one kind of smooth relationship).

We must speak of inputs and outputs because the vocabulary of “legal discontinuities” is inadequate. People easily confuse the continuity of inputs and outputs with the relationship between them. For example, in tort law, when you just cross the threshold of being unreasonably incautious, you now owe full compensation for the harm you caused. That’s a bumpy relationship because a gradual change to your level of caution has a dramatic effect on the amount you owe. This is true even though compensation is paid in the form of money which would naturally be described as a continuous variable. “Money owed” seems scalar though it’s used here as part of a bumpy relationship. So that’s why I think it’s fine to speak of inputs and outputs as scalar or binary or continuous, but those terms don’t do justice to what we really care about, namely the underlying relationships between inputs and outputs.

The smooth-bumpy distinction is sometimes confused with the rule-standard distinction, though they are conceptually quite different. The rule-standard distinction archetypically applies to the triggering circumstances of a particular law (or regulation or the like). If the triggering circumstances are well-defined, easy to apply, require little discretion, and so on, then we deem the law to be “rule-like.” For example, a law prohibiting driving above 65 miles per hour is very rule-like because it is clearly defined, easy to apply, and requires little discretion. If, however, the triggering circumstances are difficult to define in advance, require judgment to apply, give the decisionmaker substantial discretion, and so on, then we deem the law “standard-like.” For example, a law prohibiting driving at an “unsafe” speed is very standard-like.

To see the difference between the rule-standard distinction (which applies to triggering circumstances) and the smooth-bumpy distinction (which applies to input-output relationships), consider some ways to set up a dependent child tax credit. We could make the circumstances triggering the credit standard-like: you receive the credit when you have a “big” family. Or, we could make the triggering circumstances rule-like: you receive the credit when you have “four or more dependent children.” The question of how to trigger a tax credit can easily be analyzed as a rule-standard debate.

Either way, however, there is a separate question about how inputs into our tax credit analysis relate to outputs. The result could have a somewhat smooth relationship to the input: if you’re deemed to have a “big” family, you receive a $1000 tax credit for each dependent child you have. Or the result could be more bumpy: “big” families receive a $4000 tax credit no matter how many members they have.

Now, one might insist, the rule-standard distinction could also be applied to the consequences of crossing a legal threshold. If you either get $1000 per child or $4000 total, those solutions seem rule-like because they are easy to apply and don’t require discretion. We could alternatively have standard-like consequences that provide for either a “fair” amount per child or a “fair” total credit. Those used to focusing on rules and standards might say that one triggering circumstance (that can be rule- or standard-like) is whether a tax credit applies or not and then another triggering circumstance (that can be rule- or standard-like) concerns the magnitude of the credit. Fair enough.

The key point, though, is that even though the rule-standard distinction can be applied to both triggering circumstances for applying a law and triggering circumstances for selecting a result, nothing about the rule-standard distinction captures the relationship between legal inputs and outputs. So we could have a child tax credit as follows: “big” families receive $4000 total in credit no matter the precise number of children in the family. Such an approach would be standard-like in deciding what constitutes a large enough family and rule-like in deciding the amount of the credit. More importantly, it would be an odd law from an input-output perspective. Why would we have a threshold determination as to the size of the family and not make the credit depend on family size? That question is about the relationship between an input and an output and goes beyond the focus of the rule-standard distinction. The rule-standard and smooth-bumpy distinctions simply capture different issues and considerations.

This post is adapted from my opening remarks at the Legal Discontinuities conference held at Tel Aviv University's Cegla Center for Interdisciplinary Research of the Law from Dec. 29-30, 2019. Conference contributions will appear in an open access symposium issue of Theoretical Inquiries in Law. 

Posted by Adam Kolber on May 11, 2020 at 11:01 AM in Adam Kolber, Symposium: Legal Discontinuities | Permalink

Comments

I agree, Re'em, and I like the way you put it. There may be some generalizations about rules and standards and generalizations about smooth and bumpy laws that overlap in the ways you describe.

I suppose my emphasis would be a bit different, though. So consider the "cheap-expensive" dichotomy that refers to costs of administering/enforcing some law. Often, perhaps, rules and bumpy laws will be cheap, and standards and smooth laws will be more expensive. But, of course, the cheap-expensive distinction is quite different in meaning than either of the other two distinctions, even though they may frequently share certain common properties.

Because scholars are already quite familiar with rules and standards and less used to thinking about input-output relationships, I put the emphasis on their differences. Once those differences are recognized, it is indeed valuable to think about how they relate and what some exceptions to the general similarities might be. For example, those who think that a fetus is "ensouled" at a particular moment might think that when morality tracks the law, full legal personhood protections for a fetus kick in no later than at the moment of ensoulment. By contrast, others might defend a smoother relationship between certain cognitive abilities (or what have you) whereby legal protections gradually increase as those abilities increase.

Posted by: Adam Kolber | May 11, 2020 3:43:22 PM

Hi Adam, and thanks for the post and for organizing this symposium!
The distinction between rules and standards and the distinction between bumpy and smooth (input-output) relationships are indeed different. But it seems to me that the relevant reasons are similar. By this I do not mean only the ultimate (most basic) reasons (which may be the same with respect to all choices), but also the reasons at other levels. For example, a common reason in favor of both standards and smooth relationships is that they track blame (for instance) more accurately than rules and bumpy relationships, respectively. And a common reason in favor of both rules and bumpy relationships is that it is easier (in ways that are morally significant) to follow them and to enforce them. If this is the case, these distinctions are closely related at this level. (That does not imply of course that the distinction between (more or less) smooth and bumpy relationships is not important.) Is that right?

Posted by: Re'em Segev | May 11, 2020 1:55:08 PM

Whether or not it's unconstitutionally vague, it's enough to serve as an example of what makes something standard-like. And, yes, as I mentioned in my prior post, Orin Kerr and others have asked questions about how input-output issues relate to rule-standards issues. So I thought it was worth taking another crack at the matter to help illustrate the difference. Indeed, that was the purpose of this post. Thanks, El roam!

Posted by: Adam Kolber | May 11, 2020 12:26:06 PM

Adam, you write that, I quote:

If, however, the triggering circumstances are difficult to define in advance, require judgment to apply, give the decisionmaker substantial discretion, and so on, then we deem the law “standard-like.” For example, a law prohibiting driving at an “unsafe” speed is very standard-like.

End of quotation:

But, such phrasing of the law, is considered as unconstitutional typically. I quote from " The people v. Jason Alan " ,here:

Further, a vague law invites arbitrary and discriminatory enforcement. (Ibid.) In McBoyle v. United States (1931) 283 U.S. 25, Justice Holmes explained that vague statutes are prohibited because “a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear.” (Id. at p. 27.) The vagueness challenge here requires us to decide whether an order that defendant “stay away” from a specified location establishes a limitation clear enough to be constitutional.

Here:

https://www.courts.ca.gov/opinions/archive/H044507.PDF

And Just to draw your attention, that you have dealt with it somehow at least, in the past. Here:

https://prawfsblawg.blogs.com/prawfsblawg/2018/04/are-criminal-attempts-bumpy.html#comments

Thanks

Posted by: El roam | May 11, 2020 12:20:02 PM

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