Document Type
Article
Publication Date
2004
Abstract
Predictability in civil and criminal sanctions is generally understood as desirable. Conversely, unpredictability is condemned as a violation of the rule of law. This paper explores predictability in sanctioning from the point of view of efficiency. It is argued that, given a constant expected sanction, deterrence is increased when either the size of the sanction or the probability that it will be imposed is uncertain. This conclusion follows from earlier findings in behavioral decision research and the results of an experiment conducted specifically to examine this hypothesis. The findings suggest that, within an efficiency framework, there are virtues to uncertainty that may cast doubt on the premise that law should always strive to be as predictable as possible.
Keywords
Legal Philosophy, Psychology and Psychiatry, Risk, Jurisprudence
Publication Title
Iowa Law Review
Repository Citation
Baker, Tom; Harel, Alon; and Kugler, Tamar, "The Virtues of Uncertainty in Law: An Experimental Approach" (2004). All Faculty Scholarship. 701.
https://scholarship.law.upenn.edu/faculty_scholarship/701
Included in
Criminal Law Commons, Insurance Commons, Insurance Law Commons, Jurisprudence Commons, Legal History Commons, Legal Theory Commons, Other Philosophy Commons, Theory and Philosophy Commons, Torts Commons
Publication Citation
89 Iowa L. Rev. 443 (2004)