The Virtues of Uncertainty in Law: An Experimental Approach

Tom Baker, Alon Harel () and Tamar Kugler ()

Discussion Paper Series from The Federmann Center for the Study of Rationality, the Hebrew University, Jerusalem

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.

Pages: 46 pages
Date: 2003-02
New Economics Papers: this item is included in nep-cdm, nep-exp and nep-pol
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Citations: View citations in EconPapers (17)

Published in Iowa Law Review, 2004, vol. 89

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