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The Virtues of Uncertainty in Law: An Experimental Approach

45 Pages Posted: 12 Mar 2003 Last revised: 15 Apr 2015

Tom Baker

University of Pennsylvania Law School

Alon Harel

Hebrew University of Jerusalem - Faculty of Law

Tamar Kugler

Hebrew University of Jerusalem - Department of Psychology

Date Written: 2004

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.

Suggested Citation

Baker, Tom and Harel, Alon and Kugler, Tamar, The Virtues of Uncertainty in Law: An Experimental Approach (2004). Iowa Law Review, Vol. 89, p. 443, 2004. Available at SSRN: https://ssrn.com/abstract=380302 or http://dx.doi.org/10.2139/ssrn.380302

Tom Baker

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215-746-2185 (Phone)

HOME PAGE: http://www.law.upenn.edu/cf/faculty/thbaker/

Alon Harel (Contact Author)

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus, 91905
Israel
97 22 588 2582 (Phone)
97 22 582 3042 (Fax)

Tamar Kugler

Hebrew University of Jerusalem - Department of Psychology ( email )

Mount Scopus, 91905
Israel

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