On the Design of Legal Rules: Balancing Versus Structured Decision Procedures

75 Pages Posted: 7 Apr 2019 Last revised: 11 Jul 2019

See all articles by Louis Kaplow

Louis Kaplow

Harvard Law School; National Bureau of Economic Research (NBER)

Date Written: March 14, 2019

Abstract

Important doctrines in diverse areas of law employ structured decision procedures requiring, in rough terms, that the plaintiff first make some demonstration of harm; if but only if that is done, the defendant must make some showing of benefit; and if but only if that occurs, balancing is performed. This Article compares such protocols to unconstrained balancing and finds them to be inferior with respect to the quality of final decisions: they sometimes fail to impose liability even though the harm is greater than the benefit, and they sometimes impose liability even though the benefit exceeds the harm. The Article also develops the principles of optimal information (evidence) collection and shows how structured decision procedures violate every core lesson and presuppose distinctions that often are incoherent or impractical to implement. The analysis addresses concerns about balancing that may motivate structured protocols, how less restrictive alternatives should be assessed, and the extent to which legal proceedings are conducted in conformity with either approach, as well as how they might be reformed.

Keywords: Legal rules, adjudication, information, balancing, less restrictive alternatives

JEL Classification: D83, K00, K41

Suggested Citation

Kaplow, Louis, On the Design of Legal Rules: Balancing Versus Structured Decision Procedures (March 14, 2019). Harvard Law Review, Vol. 132, 2019; Harvard Public Law Working Paper No. 19-15. Available at SSRN: https://ssrn.com/abstract=3352091

Louis Kaplow (Contact Author)

Harvard Law School ( email )

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National Bureau of Economic Research (NBER)

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