Contemporary legal thinking is in the thrall of a cult of flexibility. We obsess about avoiding decisions without all possible relevant information while ignoring the costs of postponing decisions until that information becomes available. We valorize procrastination and condemn investments of decisional resources in early decisions.
We should understand public and private law as a productive activity converting information, norms, and decisional and enforcement capacity into outputs of social value. Optimal timing depends on changes in these inputs’ scarcity and in the value of the decision they produce. Our legal culture tends to overestimate the value of information that may become available in the future while discounting declines over time in decisional resource and the utility of decisions. Even where postponing some decisions is necessary, a sophisticated appreciation of discretion’s components often exposes aspects of decisions that can and should be made earlier.
Disaster response illustrates the folly of legal procrastination as it shrinks the supply of decisional resources while increasing the demand for them. Specifically, the failure to evacuate tens of thousands of vulnerable low-income people from New Orleans before Hurricane Katrina struck resulted largely from undervaluing decisional resources in the years leading up to the disaster and overvaluing the information that officials would gain as the disaster approached. After Hurricane Katrina, programs built around flexibility failed badly through a combination of late and defective decisions. By contrast, those that appreciated the scarcity of decisional resources and had developed detailed regulatory templates in advance provided quick and effective relief.
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