Abstract
When people make moral or legal judgments in isolation, they produce a pattern of outcomes that they would themselves reject, if only they could see that pattern as a whole. A major reason is that human thinking is category-bound. When people see a case in isolation, they spontaneously compare it to other cases that are mainly drawn from the same category of harms. When people are required to compare cases that involve different kinds of harms, judgments that appear sensible when the problems are considered separately often appear incoherent and arbitrary in the broader context, Another major source of incoherence is what we call the translation problem: The translation of moral judgments into the relevant metrics of dollars and years is not grounded in either principle or intuition, and produces large differences among people. The incoherence produced by category-bound thinking is illustrated by an experimental study of punitive damages and contingent valuation. We also show how category-bound thinking and the translation problem combine to produce anomalies in administrative penalties. The underlying phenomena have large implications for many topics in law, including jury behavior, the valuation of public goods, punitive damages, criminal sentencing, and civil fines. We consider institutional reforms that might overcome the problem of predictably incoherent judgments. Connections are also drawn to several issues in legal theory, including valuation of life, incommensurability, and the aspiration to global coherence in adjudication. Language: en
Highlights
There are many obstacles to the achievement of coherence in the law. This Article is concerned with one particular test of coherence, and with two cognitive limitations that help cause many failures of that test in actual legal systems. We believe that these failures are failures of justice, and that they suggest a pervasive problem in existing legal systems
We refer to the distinctive problem involved in translating a moral judgment of some kind[5] into the terms made relevant by the legal system, such as monetary penalties, civil fines, or criminal punishment.[6]
The translation problem helps identify the cognitive foundations of current controversies over criminal sentencing, punitive damages, and contingent valuation
Summary
Coherence in law is a widely shared ideal. Almost everyone hopes for a legal system in which the situated are treated . A second significant source of incoherence is what we shall call the translation problem By this term, we refer to the distinctive problem involved in translating a moral judgment of some kind[5] into the terms made relevant by the legal system, such as monetary penalties, civil fines, or criminal punishment.[6] We argue that the act of translation causes serious problems, because it is grounded neither in agreed-upon principle nor in widely shared intuitions. The translation problem helps identify the cognitive foundations of current controversies over criminal sentencing, punitive damages, and contingent valuation It affects the work of juries, and of legislative and regulatory bodies that determine punishments for different kinds of misconduct within a particular category. We will attempt to cast new light on some large topics in legal theory, including the aspiration to similar treatment of the
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