The University of New Hampshire Law Review
Law involves a fundamental tradeoff, a sampling problem. In science, sampling problems emerge when trying to understand something complicated by considering discrete, manageable subsets of it—samples. When doing that, scientists must compromise between accuracy and resource-expenditure. Perfect accuracy requires infinite resources, such as a perfect digital image with infinite file size. Perfection being unattainable, scientists must decide what level of accuracy is best for any given case. Every kind of law, from parking regulations to criminal to high constitutional theory, is subject to the same dynamic.
Law’s sampling problem is the tradeoff between accurate representation of a community’s moral preferences and the resources needed to understand those preferences and create specific, enforceable rules based on them. To affect this tradeoff, legislators can create complicated standards based on a diverse set of samples of the community’s moral feelings on a particular issue. This approach is expensive in terms of resources but will more precisely conform to the community’s moral preferences with plenty of exceptions for difficult cases. Alternatively, legislators can create simple rules based on a more limited set of samples, risking unjust outcomes in exchange for comprehensibility and simplicity. Which approach is better depends on the circumstances of the problem.
Viewed through this prism, there are several categories of law where the justice system seems to accord resources inefficiently, either by devoting tremendous resources to make small adjustments to outcomes or skimping on resources in order to make penny-wise, pound-foolish legal doctrines. When the justice system works inefficiently in this way, it is inevitably to the benefit of some, whether by happenstance or design, at the expense of the many. When too many resources are put into a particular task, the beneficiaries tend to be the businesses or organizations involved in the legal system. When too few resources are invested, the beneficiaries are entities who can manipulate the space between the approximation of justice and actual justice.
Examples abound across the legal world where this paradigm is a useful way to identify injustice. This article examines several areas showing under- or over-investment of resources, discusses possible reforms, and posits theories for why sampling failure persists in certain fields. Areas of apparent over-investment include the rule against perpetuities and the Tarasoff rule. Under-investment is evident in doctrines like felony murder and recent Supreme Court caselaw involving the Free Exercise Clause.
Jack Thorlin, Law and Sampling Theory, 20 U.N.H. L. Rev. 97 (2021).