The Virtues of Uncertainty in Law: An Experimental Approach
University of Pennsylvania Law School
Hebrew University of Jerusalem - Faculty of Law
Hebrew University of Jerusalem - Department of Psychology
Iowa Law Review, Vol. 89, p. 443, 2004
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.
Number of Pages in PDF File: 45
Date posted: March 12, 2003 ; Last revised: April 15, 2015