Line Drawing in the Dark
Abstract
The law inevitably draws lines. These lines distinguish, for example,
whether certain conduct reflects ordinary recklessness constituting
manslaughter or more extreme recklessness constituting murder. There
is no way to meaningfully draw such lines, however, absent shared
ways of representing amounts of recklessness or at least knowledge
of the consequences of drawing lines in particular places. Yet legal
actors frequently draw lines in the dark, establishing cutoffs along
a spectrum with little or none of the information required to do so
in a way that suits the law’s goals. For example, jurors must decide
whether some conduct constitutes extreme recklessness without
knowing prior precedent nor the sentencing consequences of drawing
cutoffs in particular places. Judges and lawyers cite line drawing
precedents from other jurisdictions without considering whether the
lines drawn in prior cases had the same consequences as those in
the case at bar. And scholars argue about how to classify conduct
without making clear what consequences they believe ought to attach
once the classification is made, leaving it hard to tell when scholars
have substantive or simply superficial disagreements. In this Article, I
discuss some line drawing problems and briefly suggest ways we can
add meaning to cutoffs. More generally, I argue, we can “smooth”
certain features of the law to both reduce our vulnerability to line
drawing in the dark and improve the fit between the law and what
our best theories of law recommend. Even when we cannot easily
smooth the law, thinking about the law in a smoother fashion can
help reduce the jurisprudential pathologies I describe.
whether certain conduct reflects ordinary recklessness constituting
manslaughter or more extreme recklessness constituting murder. There
is no way to meaningfully draw such lines, however, absent shared
ways of representing amounts of recklessness or at least knowledge
of the consequences of drawing lines in particular places. Yet legal
actors frequently draw lines in the dark, establishing cutoffs along
a spectrum with little or none of the information required to do so
in a way that suits the law’s goals. For example, jurors must decide
whether some conduct constitutes extreme recklessness without
knowing prior precedent nor the sentencing consequences of drawing
cutoffs in particular places. Judges and lawyers cite line drawing
precedents from other jurisdictions without considering whether the
lines drawn in prior cases had the same consequences as those in
the case at bar. And scholars argue about how to classify conduct
without making clear what consequences they believe ought to attach
once the classification is made, leaving it hard to tell when scholars
have substantive or simply superficial disagreements. In this Article, I
discuss some line drawing problems and briefly suggest ways we can
add meaning to cutoffs. More generally, I argue, we can “smooth”
certain features of the law to both reduce our vulnerability to line
drawing in the dark and improve the fit between the law and what
our best theories of law recommend. Even when we cannot easily
smooth the law, thinking about the law in a smoother fashion can
help reduce the jurisprudential pathologies I describe.