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Article
The Virtues of Uncertainty in Law: An Experimental Approach
Iowa Law Review
  • Tom Baker, University of Pennsylvania Carey Law School
  • Alon Harel, Hebrew University of Jerusalem
  • Tamar Kugler, Hebrew University of Jerusalem
Document Type
Article
Publication Date
1-1-2004
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.

Keywords
  • Legal Philosophy,
  • Psychology and Psychiatry,
  • Risk,
  • Jurisprudence
Publication Citation

89 Iowa L. Rev. 443 (2004)

Citation Information
Tom Baker, Alon Harel and Tamar Kugler. "The Virtues of Uncertainty in Law: An Experimental Approach" Iowa Law Review (2004)
Available at: http://works.bepress.com/tom-baker-jd/45/