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84 N.Y.U. L. Rev. 980 (2009)
Are All Legal Probabilities Created Equal

handle is hein.journals/nylr84 and id is 988 raw text is: ARE ALL LEGAL PROBABILITIES CREATED EQUAL? YUVAL FELDMANt & DORON TEICHMANt At the core of the economic analysis of law lies the concept of expected sanctions, which are calculated by multiplying the severity of the sanction that is applied to wrongdoers by the probability that it will be applied. This probability is the product of several sequential probabilities involving the different actors responsible for sanctioning wrongdoers (e.g., police, prosecutors, judges, jurors, etc.). Gener- ally, legal economists treat different legal probabilities as fungible, simply multi- plying them much like any other sequential probabilistic situation. This Article challenges this assumption, demonstrating that people perceive and are affected by different types of legal probabilities in distinct ways. More specifically, it shows that uncertainty associated with the substance of the law and uncertainty associated with imperfect enforcement should not be treated equivalently. To demonstrate this point, this Article presents a series of between-subjects experi- mental surveys that measure and compare participants' attitudes toward compliance in conditions of uncertainty. Study participants-several hundred students from Israel and the United States-answered questions in the context of one of several variations on the same hypothetical scenario. While the expected sanction was the same in each variation, the source of uncertainty differed. These studies confirmed that people are less likely to comply when uncertainty stems from the imprecision of law's substance than when uncertainty stems from the imperfect enforcement of clear law. INTRODUCTION .................................................... 981 I. BACKGROUND ............................................. 986 A. Fungible Legal Probabilities ........................ 987 B. The Non-fungible Legal Probabilities Hypothesis ... 991 1. The Expressive Value of Law ................... 991 2. Shaming Sanctions .............................. 993 3. Motivated Reasoning ............................ 995 t Senior Lecturer, Faculty of Law, Bar-Ilan University. 4: The Joseph H. and Belle R. Braun Senior Lectureship in Law, Faculty of Law, Hebrew University of Jerusalem. For their helpful comments we thank Adi Eyal, Tsilli Dagan, Alon Harel, Shachar Lifshtz, Richard McAdams, Jacob Nussim, Jeff Rachlinski, Avishalom Tor, participants at the conference on empirical legal studies at the Hebrew University of Jerusalem, and workshop participants at the University of Illinois College of Law and Tel Aviv University. For statistical consulting we thank Tammy Shterenhal. This research was supported by a grant from the G.I.F., the German-Israeli Foundation for Scientific Research and Development, and by the British Friends of the Hebrew University. The data used for this study and the accompanying codebooks are available online through the New York University Law Review's data repository. See Yuval Feldman & Doron Teichman, Are All Legal Probabilities Created Equal?, NYU LAW REVIEW DATAVERSE (Feb. 24, 2009), http://hdl.handle.net/1902.1/12386. Copyright © 2009 by Yuval Feldman & Doron Teichman. 980 Reprinted with permission of New York University School of Law

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