Tuesday, February 21, 2012
Modest differences in conduct can lead to wildly different legal outcomes. A reasonably prudent driver who causes an accident owes nothing, but had the driver been just a bit less cautious, he might have owed millions of dollars. A man who has sex with a woman reasonably believing she consents likely commits no crime, but if he had just a bit more reason to doubt that she consented, he might have been convicted of rape. While the law must draw difficult lines, it is puzzling why the lines have such startling effects. After all, we can fine-tune damage awards and the duration of prison sentences anywhere along a spectrum.
A law is “smooth” when a gradual change in conduct leads to a gradual change in the legal outcome. The prior examples are not smooth but “bumpy”: gradual changes in conduct sometimes have no effect on the legal outcome and sometimes have dramatic effects. The law is full of these bumpy relationships between legal inputs and outputs that create hard-to-justify discontinuities. While considerations like cost and administrability sometimes justify bumpy laws, I show why there are many opportunities to make the law smoother than it is.