December 2008 Vol. 107 No. 3 THE REVIEW

Uncertainty Revisited: Legal Prediction and Legal Postdiction

Ehud Guttel & Alon Harel

Legal scholarship, following rational-choice theory, has traditionally treated uncertainty as a single category. A large body of experimental studies, however, has established that individuals treat guesses concerning the future differently than guesses concerning the past. Even where objective probabilities and payoffs are identical, individuals are much more willing to predict a future event (and are more confident in the accuracy of their predictions) than they are willing to postdict a past event (and are also less confident in the accuracy of their postdiction). For example, individuals are more willing to bet on the results of a future die toss than they are willing to bet on the results of a past toss.

After presenting the robust psychological and experimental-economic literature, this Article demonstrates the relevance of the behavioral differences concerning past and future uncertainties to legal policy. It shows that the prediction-postdiction findings are important for the design of legal norms, the choice among competing law-enforcement strategies, and the application of various sentencing practices. This Article shows that the making of legal norms, the detection of violators, and the infliction of sanctions may generate different types of uncertainty involving predictions and postdictions that policymakers can exploit to provide optimal incentives.

   //  VIEW PDF
& Other Current Events

Speedy Trial as a Viable Challenge to Chronic Underfunding in Indigent-Defense Systems

Across the country, underresourced indigent-defense systems create delays in taking cases to trial...

A Blended Approach to Reducing the Costs of Shareholder Litigation

Multiforum litigation and federal securities law class actions impose heavy costs on corporations and...

The Scope of Precedent

The scope of Supreme Court precedent is capacious. Justices of the Court commonly defer to sweeping rationales...

Reinventing Copyright and Patent

Intellectual property systems all over the world are modeled on a one-size-fits-all principle. However...

Protecting Whistleblower Protections in the Dodd-Frank Act

In 2008, the United States fell into its worst economic recession in over seventy years. In response,...
MAILING LIST
Sign Up to Join Our Mailing List