Friday, April 7, 2017
Adam J. Kolber (Brooklyn Law School) has posted Smoothing Vague Laws (Vagueness and Law: Philosophical and Legal Perspectives (Geert Keil & Ralf Poscher eds., 2016) (Oxford University Press)) on SSRN. Here is the abstract:
Laws often draw sharp distinctions along properties that spread across spectra. For example, a person might use force in self-defense in a manner that is very reasonable, borderline reasonable, somewhat unreasonable, or very unreasonable. Courts typically focus, however, on whether a defendant was sufficiently reasonable and not how reasonable he was. Such legal distinctions can have dramatic implications. One person acting in reasonable self-defense may have a complete legal justification for killing someone, while another using just a bit less caution may be imprisoned for many years for murder. Though the reasonableness of two people purporting to act in self-defense may only vary slightly, their legal treatment may radically differ, even if we all agree about precisely how reasonable each was.
I argue that we can ameliorate some of these harsh effects by “smoothing” the law. Namely, we can make the consequences of violating a law depend not on crossing some sharp boundary but on a feature that varies along a spectrum. While there are costs to smoothing the law that must be weighed against the benefits, we ought to look for good opportunities to make the law smoother than it is now.
Leo Katz has argued that many phenomena, such as birth and death and the giving of consent warrant the sharp lines we draw around them. More generally, he believes that attempts to make the law less all-or-nothing are doomed to fail. I challenge Katz’s view and argue that attempts to make the law less all-or-nothing are not only possible but often desirable.