Smooth and Bumpy Laws
Adam J. Kolber
Brooklyn Law School
February 18, 2014
California Law Review, Vol. 102, 2014
Modest differences in conduct can lead to wildly different legal outcomes. A slightly incautious driver who causes an accident might owe millions of dollars. Had he been a bit more cautious and still been in an accident, he’d owe nothing. A man who has sex with a woman negligently believing she consents may be convicted of rape and sentenced to several years in prison. Had he made the same mistake but been slightly more cautious, he might have had no criminal liability whatsoever. In both cases, small changes to an input (level of caution or reasonableness of belief) can lead to a dramatically different outcome. 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 severity 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 to the output. The prior examples are not smooth but “bumpy:” a gradual change to the input sometimes dramatically affects the output and sometimes has 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 explain how the choice of an input-output relationship differs from the choice between rules and standards. I argue that smooth relationships will often create less “rounding error” than bumpy relationships by more closely approximating our underlying moral norms.
Number of Pages in PDF File: 35
Keywords: jurisprudence, smooth, bumpy, continuous, discrete, categories, sentencing, negligence, abortion, deathAccepted Paper Series
Date posted: January 27, 2012 ; Last revised: February 19, 2014
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