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Monday, May 13, 2013

Source bleg

I am looking for a  source to support following proposition:

A prohibition on some conduct is justified, even if the prohibited conduct and harm does not arise that often, so long as having the prohibition does not impose new/additional costs that exceed any benefits.

Does anyone have suggestions?

Posted by Howard Wasserman on May 13, 2013 at 04:27 PM in Howard Wasserman | Permalink


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I don't have a source, but a question, and comments that follow from that question. Are you making a legal or normative statement? If legal, then I'd say that the upshot of rational basis scrutiny is that legislatures are free to make stupid decisions (i.e. those whose costs exceed benefits), and thus the inclusion of your last, conditional, clause--"so long as..."--makes your proposition inaccurate. If normative, then do you really need a source? I think the statement is compelling enough as it stands. If not, then why not cite to an economics source? There must be easy support for the notion that any slight benefit (the prohibition enforced when the rare conduct occurs) is worth zero increase in cost. Not to dig in beyond what you're asking, but an interesting line of inquiry would be this: if, by imposing a prohibition, costs and benefits both increase such that benefits slightly outweigh costs (so should be justified), costs and benefits become distributed in increasingly unequal ways such that some people experience relatively greater costs and some relatively greater benefits. Does Pareto improvement in such a way support your proposition or undermine it?

Posted by: Steven R. Morrison | May 13, 2013 5:02:56 PM

I take it this is a criticism of student-edited journals and their relentless hunger for citations. But this wasn't an obvious proposition when Mill and especially Bentham were writing -- it's nice to point to an argument's philosophical roots and a sophisticated modern proponent. For example:

See, e.g., Joel Feinberg, Harm to Others 217 (1984) ("[A]ll legal prohibitions, insofar as they narrow options, cause some harm, which must be taken into account in the calculations of the legislator. The legislative invasion of citizens' interests in liberty can be justified by the harm principle only if necessary to prevent greater harm still that would be caused to victims of the proscribed conduct."); John Stuart Mill, On Liberty an Other Essays 14 (John Gray ed., Oxford Univ. Press 2008) (1859) (providing the classic articulation of the harm principle).

Posted by: Procrastinating 3L | May 13, 2013 6:20:22 PM

Not intended as a criticism at all, but as a genuine request for information. The editors did want a cite for the proposition and thought I'd seek it out from people familiar with the literature.

Posted by: Howard Wasserman | May 13, 2013 6:53:31 PM

A Theory of Law, 16 Green Bag 2d 111, 111 (2012).

Posted by: Orin Kerr | May 13, 2013 8:00:35 PM

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