Kolber on Line Drawing in the Dark

Adam J. Kolber (Brooklyn Law School) has posted Line Drawing in the Dark (Theoretical Inquiries in Law, Forthcoming) on SSRN. Here is the abstract:

 

The law often requires us to draw lines along a spectrum but offers little or none of the information required to do so effectively. For example, we ask jurors whether reckless conduct reflects the “extreme indifference to the value of human life” that turns manslaughter into murder. Jurors cannot meaningfully draw the line, however, without knowing more, such as the sentencing consequences of drawing the line in some particular location along the recklessness continuum.

Similarly, judges and lawyers cite line drawing precedents from other jurisdictions without considering whether the lines drawn in those cases had the same meaning or consequences as those in the case at bar. And scholars argue about how to classify conduct without making clear what consequences ought to attach once the classification is made, leaving it hard to tell when they have substantive or merely superficial disagreements.

In this essay, I discuss legal line drawing and suggest ways we can add meaning to cutoffs. More generally, I argue, we can “smooth” certain features of the law both to reduce our vulnerability to line drawing problems and improve the fit between the law and what our best theories of law recommend. Even when we cannot easily smooth the law, thinking about the law in a smoother fashion can help reduce the jurisprudential pathologies I describe.