Adam J. Kolber (NYU School of Law; Brooklyn Law School) has posted Smooth and Bumpy Laws on SSRN. Here is the abstract:
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The law amplifies modest differences in conduct into wildly different legal outcomes. A reasonably prudent driver who causes an accident owes nothing, though a slightly less cautious driver may owe millions of dollars. Similarly, a person who has sufficient confidence that his partner consents to sex commits no crime, though a person with a bit more doubt may have committed rape. While it is no surprise that the law draws 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.
An input and output of a law have what I call a “smooth” relationship when a gradual change to the input causes a gradual change to the output. The prior examples lack a smooth relationship. Instead, they have a “bumpy” relationship: gradual changes to the input sometimes have no effect on the output and sometimes have dramatic effects. The law is full of these bumpy relationships that create hard-to-justify discontinuities.
I argue that smooth laws are generally preferable to bumpy laws, at least when we consider phenomena like culpability and level of caution that naturally span a continuum. While considerations like cost and administrability sometimes favor bumpy laws, the law ought to be smoother than it is. Similarly, smooth theories about the law are generally preferable to bumpy theories. I argue, for example, that deterrence theories of negligence offer a smoother explanation of our discontinuous treatment of levels of caution than do some other approaches. I end by responding to recent claims by Leo Katz that any efforts to change the either-or nature of the law are doomed to fail.
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