Legislative Design and the Controllable Costs of Special Legislation

Abstract

Legislation that singles out an identifiable individual for benefits or harms that do not apply to the rest of the population is called “special legislation.” In previous work, I have argued that the text, history, and jurisprudential underpinnings of the Constitution suggest that special legislation is constitutionally suspect. In this Article, I explore the normative consequences of special legislation, assessing both the costs it imposes and the benefits that it can provide. Drawing on constitutional theory, public choice theory, and the history of special legislation in state legislatures, I argue that the enactment of special legislation leads to the corruption of the political process, low-quality legislation, unjustifiably unequal treatment, and legislative encroachment on the judicial and executive functions. By contrast, special legislation is more normatively attractive when it addresses a problem that is unique, when it addresses matters of general concern, when it reduces rather than exacerbates disuniformity in the law, and when it provides for relief for underrepresented political minorities. After considering these costs and benefits, I conclude by suggesting modifications to the legislative process that will diminish the costs associated with special legislation while still preserving some of its benefits.

Keywords: Legislative Design, Institutional Design, Special Legislation, Constitutional Law, Constitutional History