In a recent iteration of the Legal Theory Lexicon, Larry Solum cogently describes the binary-scalar distinction. Some legal variables take on binary values (e.g., guilty/not guilty; consensual/non-consensual), while others take on scalar values (e.g., amounts of money owed; durations of prison sentences). But the distinction is not always helpful. If you lose your negligence cause of action, you receive no money at all. If you win, you are generally owed full compensation. Though amounts of money seem scalar because they take on a range of values, they seem binary at trial: plaintiffs either receive full compensation or no compensation at all.
What matters more, though, than trying to categorize a legal variable as binary or scalar is trying to understand how legal inputs should affect legal outputs. In a recently-published essay, Smooth and Bumpy Laws, I argue that one must have a theory about which inputs and outputs are pertinent and how they ought to relate to each other. When a gradual change to an input variable causes a gradual change to an output variable, I call that a "smooth" relationship. (Think of a dimmer switch that gradually increases room lighting.) By contrast, when a gradual change to an input sometimes causes no change to an output and sometimes causes a dramatic change, I call that a "bumpy" relationship. (Think of a traditional light switch. As you gradually move the switch, it has no effect on room lighting until you cross a particular threshold. Then, the lighting changes suddenly and dramatically.)
What matters most about the relationship between level of caution and amount of damages is that it's bumpy: reductions in level of caution have no effect on damages owed, until you cross the threshold of negligence. At that point, a small reduction in level of caution dramatically increases compensation owed. (The relationship arguably becomes smooth for a certain range of values when punitive damages kick in. Put that aside for now as punitive damages are not available in run-of-the-mill cases.)
One important feature of bumpy relationships is that they lose information. No matter how incautious you were, you still owe the same compensation. Perhaps this is the right approach. But if you think level of caution contains morally-relevant information, then you should at least question the grounds for the bumpiness. And a good theory of just compensation should either explain why the law of negligence is so bumpy or reveal what the relationship ought to be instead. There are issues of consistency, too. The doctrine of pure comparative negligence creates a rather smooth relationship between one's responsibility for an injury and the amount of compensation received or owed.
Some of the questions I address in the paper (and in subsequent draft papers) include: When should legal relationships be smooth as opposed to bumpy? Should factual uncertainty in tort or criminal cases lead to smoother outputs than they do now? To what extent does sentencing smooth the criminal law? I'll blog about several such issues in the coming days.
(Originally posted at Prawfsblawg)
