October 15, 2009

Bray on "Power Rules"

Samuel Bray has posted this draft> (forthcoming, Columbia Law Review) on SSRN. It deals in part with some election law issues. Here is the abstract:

    This Essay offers a unified framework for understanding how law can protect a vulnerable person from a powerful one. One option law has is to penalize the powerful person if she harms the vulnerable person. But sometimes law shifts its focus from regulating the infliction of harm to regulating a person's accumulation of power to inflict harm. Legal rules that reflect this shift in focus can be called "power rules'; they expressly restructure underlying relations of power and vulnerability. Power rules are attractive because they allow legal regulation of situations in which rules directly regulating harm ('harm rules") are not possible. In other situations, power rules can complement harm rules and improve their effectiveness. But power rules have drawbacks, too: they tend toward overbreadth, encourage more use of expressive lawmaking, and increase enforcement discretion. The concept of power rules helps explain patterns in the use of legal rules, especially in contexts of bargaining, competition, violence, persuasion, and the performance of relational statuses (e.g., fiduciary). This concept also illuminates the trade-offs involved when lawmakers choose among different methods of protecting vulnerable persons.

Posted by Rick Hasen at October 15, 2009 08:06 AM