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The Virtues of Uncertainty in Law: An Experimental Approach

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  • Tom Baker
  • Alon Harel
  • Tamar Kugler

    ()

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

  • Tom Baker & Alon Harel & Tamar Kugler, 2003. "The Virtues of Uncertainty in Law: An Experimental Approach," Discussion Paper Series dp310, The Federmann Center for the Study of Rationality, the Hebrew University, Jerusalem.
  • Handle: RePEc:huj:dispap:dp310
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    Cited by:

    1. Gregory DeAngelo & Gary Charness, 2012. "Deterrence, expected cost, uncertainty and voting: Experimental evidence," Journal of Risk and Uncertainty, Springer, vol. 44(1), pages 73-100, February.
    2. Germani, Anna Rita & Morone, Andrea & Morone, Piergiuseppe & Scaramozzino, Pasquale, 2013. "Discretionary enforcement and strategic interactions between firms, regulatory agency and justice department: a theoretical and empirical investigation," MPRA Paper 51369, University Library of Munich, Germany.
    3. repec:kap:regeco:v:52:y:2017:i:3:d:10.1007_s11149-017-9341-y is not listed on IDEAS
    4. Dai, Zhixin & Hogarth, Robin M. & Villeval, Marie Claire, 2015. "Ambiguity on audits and cooperation in a public goods game," European Economic Review, Elsevier, vol. 74(C), pages 146-162.
    5. Christoph Engel, 2010. "Turning the Lab into Jeremy Bentham’s Panopticon. A Lab Experiment on the Transparency of Punishment," Discussion Paper Series of the Max Planck Institute for Research on Collective Goods 2010_06, Max Planck Institute for Research on Collective Goods, revised Jun 2018.
    6. Boom Christopher D., 2015. "The Importance of the Thin Conception of the Rule of Law for International Development: A Decision-Theoretic Account," The Law and Development Review, De Gruyter, vol. 8(2), pages 293-331, December.

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