Tuesday, September 8, 2009
Teachers of criminal procedure are familiar with "prophylactic rules," and teachers of substantive criminal law are familiar with what are sometimes called "nonconsummate offenses" (like possession offenses). Samuel Bray (Associate-in-Law, Columbia Law School) argues that these rules are part of a broader category of rules in his interesting manuscript entitled Power Rules (Columbia Law Review, forthcoming). He also notes other kinds of "power rules" that can serve as complements or alternates to criminal prohibitions targeted at wrongdoers.
Bray identifies the advantages and disadvantages of such rules as a general matter. 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, at least in the legal system of the United States, and it illuminates the trade-offs involved when lawmakers choose among different methods of protecting vulnerable persons.