Smooth and Bumpy Laws
Adam J. Kolber
Brooklyn Law School
April 24, 2012
California Law Review, Vol. 102, 2014
Modest differences in conduct can lead to wildly different legal outcomes. A reasonably prudent driver who causes an accident owes nothing, but if the driver had 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 committed rape. In both cases, small changes to a legal input (level of caution or level of reasonable belief) can lead to dramatically different outputs. 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 legal input and output have a “smooth” relationship when a gradual change to the input leads to a gradual change in the output. The prior examples are not smooth but “bumpy”: gradual changes to an input sometimes have dramatic effects on the output and sometimes have no effect at all. The law is full of these bumpy relationships that create hard-to-justify discontinuities. In this essay, I discuss the relative advantages of smooth and bumpy legal relationships and how to choose between them.
Number of Pages in PDF File: 25
Keywords: jurisprudence, smooth, bumpy, continuous, discrete, categories, sentencing, negligence, abortion, deathAccepted Paper Series
Date posted: January 27, 2012 ; Last revised: March 22, 2013
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