"Uncertainty Revisited: Legal Prediction and Legal Postdiction"

The following article sounds quite interesting.  It was recently posted to SSRN:

"Uncertainty Revisited: Legal Prediction and Legal Postdiction"

Michigan Law Review, Forthcoming

EHUD GUTTEL, Duke Law School, Hebrew University of Jerusalem - Felt Center for Legal Studies
ALON HAREL, Hebrew University of Jerusalem - Felt Center for Legal Studies
Legal scholarship, following rational-choice theory, has traditionally treated uncertainty as a single category. A large body of experimental studies, however, has established that individuals treat guesses concerning the future differently than guesses concerning the past. Even where objective probabilities and payoffs are identical, individuals are much more willing to predict a future event (and are more confident in the accuracy of their predictions) than they are willing to postdict a past event (and are also less confident in the accuracy of their postdiction). For example, individuals are more willing to bet on the results of a future die toss than they are willing to bet on the results of a past toss.

After presenting the robust psychological and experimental-economic literature, this Article demonstrates the relevance of the behavioral differences concerning past and future uncertainties to legal policy. It shows that the prediction-postdiction findings are important for the design of legal norms, the choice among competing law-enforcement strategies, and the application of various sentencing practices. This Article shows that the making of legal norms, the detection of violators, and the infliction of sanctions may generate different types of uncertainty involving predictions and postdictions that policymakers can exploit to provide optimal incentives.

Comments

[Scholar in Training]

Thanks for this! Prospect Theory has long posited a "certainty effect" where we seek out certainty (even when it is not rational to do so), but this is the first set of experiments I've seen that validates that not only do we *seek* certainty we largely *are* certain about future events (or, we have psychological certainty as opposed to epistemological certainty I suppose).

Very interesting stuff.