Title

The Virtues of Uncertainty in Law: An Experimental Approach

Authors

Tom Baker, University of Pennsylvania Carey Law SchoolFollow
Alon Harel, Hebrew University of JerusalemFollow
Tamar Kugler, Hebrew University of JerusalemFollow

ORCID

Tom Baker 0000-0002-0876-2312

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

Publication Citation

89 Iowa L. Rev. 443 (2004)

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