Stuart Minor Benjamin
Duke University School of Law
April 5, 2012
75 Law and Contemporary Problems 115 (2012)
Virtually every action depends on some conditions precedent. Law is no exception. The common law and precedent involve reliance on earlier developments, as do more particularized phenomena like slippery slopes and path dependence. In some situations, an actor undertakes permissible action Y and thereby renders its action Z legally permissible, a phenomenon I refer to as bootstrapping. Some commentators have raised concerns about the consequences of allowing bootstrapping, notably in the context of the individual mandate in the 2010 health care act. In this article I consider whether we, as citizens, should find bootstrapping, or a particular category of bootstrapping, particularly troubling. Bootstrapping is ubiquitous, so disallowing all bootstrapping by government actors would render the government unable to act. And I find that most possible distinctions are not useful. The one possible exception is a distinction between simultaneous and nonsimultaneous bootstrapping, as the former presents a situation in which the bootstrap is certain. Disfavoring simultaneous bootstrapping will do both too little (to the President) and too much (to Congress). I conclude that the costs of disfavoring some bootstrapping outweigh the benefits.
Number of Pages in PDF File: 29
Keywords: bootstrap, individual mandate, aggrandizement, conditions precedent, slippery slope, path dependence, EMTALA, Affordable Care Act
JEL Classification: K23, K32Accepted Paper Series
Date posted: October 29, 2011 ; Last revised: July 10, 2012
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