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?

(Originally posted at Prawfsblawg)

Comments

[Peter Gerdes]

I pointed out some more reasons why we would not want to really enforce laws smoothly (indeed can not since gossip, employer discrimination, increased likelihood of reoffense will all be effects of even a conviction with a small penalty) in a comment to the first post. Here are a few more thoughts.

First, it's not always clear what it means that the law has smooth penalties. Suppose a speeding ticket is always $500 but the probability that cops will pull you over when speeding is a smooth function of how much you are speeding. Is this a smooth law because the expectation of punishment varies smoothly with behavior or a bumpy one since the penalty is always $500 even for speeding 1 mph. I think our intuitions say that it is the actual penalty that should vary smoothly not just the expected. It's unjust to have a huge prison term because you were unlucky even if you went in with a low expected number of years in prison.

Secondly, while I agree with some of your points I don't think you provide enough justification. For example, one might imagine setting, as a matter of law, the penalty as a function of the risk of death/non-consensual sex/etc.. created by your behavior in excess of some threshold. The reason we can't usefully set such laws is that people are very poor at reasoning about probabilities this way and they are especially bad at ignoring disastrous actual effects when judging how harmful a behavior might be.

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Having said all this I also would note that we don't really believe that the level of punishment should turn on how probable it was that the defendants behavior would lead to harm (or how likely it was that his belief the other party consented turned out to be wrong).

For instance, consider someone named David Jones who thinks "In general a woman has to verbally tell you she wants sex free of intoxicants in clear terms in her native language immediately before the act but any woman whose middle name is "Fuck Me David Jones No Matter What I Say." consents to sex even if she verbally disavows this fact." Sure, it's a really weird belief but it's not impossible.

This behavior is extremely unlikely to ever lead to non-consensual sex and his beliefs that women consent when they satisfy this standard is actually quite reasonable. After all it is VERY unlikely that his judgement will be wrong. But imagine he meets someone who happens to have that middle name and, despite convincing evidence that she meant another David Jones or did it on a lark, really believes she consents to sex and ends up raping her. True, his rule for inferring consent was extremely unlikely to be wrong because it is super improbable to meet someone with that middle name but we don't feel the improbability of meeting such a person is what should govern how much he should be punished. True, this was a really implausible rule for behavior but the same issue comes up with many more plausible ones.

Moreover, this highlights a theoretical problem for smooth laws. There simply is no fact out there about how dangerous or unreasonable a defendant's behavior truly was. Any such conclusion about dangerousness requires you pick a particular rule to describe the defendant's conduct. Did the man who mistakenly shot the police officer have the rule "Fire at anything moving in the dark around the house." or just "Fire at something dark moving around the house during a murder spree after hearing glass break"? Either one correctly describes what the defendant actually did yet they differ starkly in how reasonable and dangerous they are. Yet, no fact about what actually happened can prove one correct or the other.

[Adam Kolber]

Thanks very much for your comments, Peter. A few thoughts that might help:

* While I speak of smooth and bumpy laws as a shorthand, my more detailed description describes relationships between a single input and a single output. So in your speeding ticket example, the $500 penalty is bumpy with respect to speed. (There is a smooth relationship between speed and probability of detection, though probability of detection may not be conventionally treated as a legal output.) We can separately evaluate the merits or demerits of making either relationship smooth or bumpy.

* I agree that we cannot always trust legal actors to understand probabilities. In cases where we expect errors to be introduced, I imagine we should weigh the expected magnitude of those errors relative to alternative approaches.

* I like the point you make in the last paragraph. Suppose a defendant was attacked by a man with pink hair and a goatee carrying a big, sharp knife. The defendant shoots and kills the attacker. The defendant will likely have a good claim of self-defense. It's true that he might have been operating under a different rule. Kill anyone with pink hair and a goatee. If so, our defendant is a dangerous person. But the law will often try to sort out, at conviction and/or sentencing, what a defendant's beliefs and motivations were. It's true that such inferences may be mistaken. But it's not as though all possible beliefs and motivations are equally probable.

Moreover, I'm not sure why this concern is directed especially at smooth laws. Errors in assessing beliefs and motivations are very dangerous in cases where the law draws thresholds (e.g., bumpy laws) because we may end up on the wrong side of the threshold. They are also dangerous in the context of smooth laws because we might deviate from ideal penalties. Both sides can suffer from error, and I'm not sure that it's worse in the bumpy context.