Predictably incoherent judgments.

• Author: Sunstein, Cass R.

Why didn't the Commission sit down and really go and rationalize this thing ...? The short answer to that is: We couldn't.... Try listing all the crimes that there are in rank order of punishable merit.... Then collect results from your friends and see if they all match. I will tell you they won't. Justice Stephen Breyer (1) I. INTRODUCTION: COHERENCE AND INCOHERENCE

1. Basic Claims

   Coherence in law is a widely shared ideal. Almost everyone hopes for a legal system in which the similarly situated are treated similarly. But there are many obstacles to the achievement of coherence in the law. This article is concerned with one particular test of incoherence, and with two cognitive limitations that help cause many failures of that test in actual legal systems. We believe that these failures are also failures of justice, and that they suggest a pervasive problem in existing legal systems.

   Coherence can be understood and incoherence can be tested in many different ways. In this article, our test of incoherence is simple and straightforward. We ask: When two or more judgments have been made separately, and each seems to make sense on its own, do they still make sense when considered together? (2) When this test of incoherence is satisfied, and a need is felt to adjust or reverse the judgments that were made separately, we will speak of judgment reversals. The test of incoherence can be readily applied to decisions by juries and by judges. (3) With suitable modifications, it can also be applied to acts of legislators and regulators. More generally, we ask whether judgments made in isolation fit together in an orderly way when considered as part of the larger whole.

   Our emphasis will be on many categories of harms with which the law is concerned, such as physical injury, commercial fraud, and ecological damage. Our first psychological observation is that in law, as in ordinary life, people's thinking is category-bound. People do not easily cross the boundaries of categories (4) of harms in their thinking. When they consider an individual case of physical injury, or commercial fraud, the frame of reference for evaluation is usually a set of instances of the same kind of harm. (5) When setting penalties for a category of cases, such as violations of regulations for occupational safety, regulators will naturally focus on instances that belong to that category. They are much less likely to concern themselves with the consistency of their determinations with punishments for other categories of harmful conduct, such as damage to endangered species. Yet, as we will show, simultaneous consideration of penalties for different kinds of infractions will often reveal that the more severe punishment was assigned to the misconduct which, in context, appears to be the less serious.

   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 (6) into the terms made relevant by the legal system, such as monetary penalties, civil fines, or criminal punishment. (7) We argue that the act of translation causes serious problems, because it is grounded neither in agreed-upon principle nor in widely shared intuitions. Even when people show coherent and consistent moral intuitions, they may show little consistency and coherence in translating those intuitions into numbers, such as dollars of fines or years in jail. Because of the translation problem, coherence fails: There is no guarantee that the relative severity of punishments administered by the system will still appear sensible, just, or fair when several punishments are considered together. The translation problem helps identify the cognitive foundations of current controversies over criminal sentencing, punitive damages, and contingent valuation. It affects the work not only of juries, but also of legislative and regulatory bodies that determine punishments for different kinds of misconduct within a particular category. The result, we will argue, is that the overall level of penalties set by different regulatory agencies may appear sensible when each set of regulations is considered on its own, but meets our test of incoherence when several sets are considered at once.

   We consider it self-evident that if it exists, incoherence in punishments is a form of injustice. We shall also assume that when the public would not believe that outcomes fit sensibly together, this is a problem that calls for social response. (8) Indeed, how could one support a system that generates outcomes that do not make sense when taken together? We will assume that the points in this paragraph are correct, without defending them in any detail.

   The coherence and incoherence of punishments, both civil and criminal, will be the focus of our analysis, and in this domain we will attempt to show considerable reason for concern. Juries typically assess cases in isolation; in fact lawyers are actually barred from referring to awards in other cases. Administrators, and congressional committees setting up penalties for regulatory misconduct, typically deal with one category of misconduct, and do not attend to problems of other types. (9) Criminal sentences are established over time by different legislatures and legislative committees, with little effort to ensure a good fit of penalties to crimes across a broad frame of reference. (10) Because people are not inclined to consider the overall pattern--either because it is too difficult to do so or because it does not occur to them to try--the problem of incoherence does not naturally receive attention. (11) As things now stand, the structure of those institutions charged with making regulatory and legislative decisions reinforces the effects of category-bound thinking. Scandalously large inconsistencies can therefore persist indefinitely, in the absence of a special effort to impose coherence.

   The fact that coherence cannot be taken for granted has significant implications for institutional design. It suggests, in some domains, a possible reason to favor judicial decisions over jury decisions, because judges are more likely to have a menu of cases before them. Because judges are human, (12) they too are susceptible to producing incoherent patterns; (13) but especially if the risk of incoherence is brought to judicial attention, they might well be likely to do better, on this count, than juries. Our claims also suggest the potential value of "coherence commissions," assigned the explicit mission to ensure that decisions fit together as an orderly whole, or at least to correct the most serious anomalies. We bring the idea of "coherence commissions" in contact with many areas of the law, including civil and criminal penalties, punitive damages, and valuation of statistical lives. We will also attempt to cast new light on some large topics in legal theory, including the aspiration to similar treatment of the similarly situated, the twentieth-century movement toward bureaucracy, (14) and the general problem of "incommensurability." Discussing several different kinds of incoherence, we identify some of the cognitive limits of the aspiration to global coherence in law, (15) while also pointing the way toward institutional reforms that could overcome those limits. We urge that "coherence commissions" could do a great deal to reduce existing injustice, in a way that would provide a twenty-first century analogue to important, but less ambitious, institutional developments in the twentieth century.

2. Specific Points

   In this article, we will be covering many topics, some of them in considerable detail. For purposes of exposition, it will be useful to give an overview of the specific claims that undergird our general arguments about incoherence:

   * The moral intuitions of the public are firmly retributive in character. (16) The intensity of what we shall call "punitive intention"--the desire to punish wrongdoing--is influenced both by the outrageousness of an action and by the severity of the harm that the action caused.

   * It is extremely difficult for people to translate punitive intentions into the terms made relevant by the legal system, such as fines or prison terms. That task is not rooted in shared intuitions, moral or otherwise, and outcomes can be largely arbitrary and unpredictable. Different juries may express the same punitive intention, but come up with quite different dollar awards. The bodies that set administrative punishments for particular categories of misconduct may differ widely in the general range of punishments that they choose, for no principled reason. State legislatures may produce widely varying punishments for the same crime, not because of different moral judgments, but simply because of the translation problem.

   * If people are asked to assess cases that fall within a particular category of actions and harms, but are not asked to translate their punitive intentions into dollars or years, people's judgments tend to be both shared and coherent. (17) It follows that if they are evaluating cases within each category, diverse people are likely to agree on how to rank a set of personal injury cases, business fraud cases, sexual harassment cases, or libel cases by their "punishable merit" (Justice Breyer's term).

   * When asked to evaluate a case separately and hence in isolation, people spontaneously proceed by comparing it against others falling within the same category. (18) Thus, for example, people's responses to a case of business fraud will be generated largely by comparing that case to other cases of business fraud. If the case of business fraud involves extremely egregious misconduct that caused very severe harm in this frame of reference, people will be extremely outraged. The fact that there are other categories of cases, involving actions that people view as more evil and harms that they think more serious...