Permitting Prohibitions

29 Pages Posted: 10 Feb 2022

See all articles by Bernardo Guimaraes

Bernardo Guimaraes

Getulio Vargas Foundation (FGV) - Sao Paulo School of Economics

Bruno Meyerhof Salama

University of California, Berkeley - School of Law; Fundação Getulio Vargas Law School at São Paulo

Date Written: February 7, 2022

Abstract

We propose a model where the probability that courts will enforce a statute is endogenous to the statute itself. We obtain, first, that the enactment of legislation prohibiting something might raise the probability that courts will allow related things not expressly forbidden. We call that a permitting prohibition and discuss examples that are consistent with the model. Second, we obtain that dispersion of court decisions might be greater with legislation that commands little court deference, than with legislation that commands none. Thus, within a certain range, legislation improvement might trade-off with court predictability.

Keywords: adjudication, courts, prohibitions, legal uncertainty

JEL Classification: K41, K22, K12

Suggested Citation

Guimaraes, Bernardo and Meyerhof Salama, Bruno, Permitting Prohibitions (February 7, 2022). Available at SSRN: https://ssrn.com/abstract=4029135 or http://dx.doi.org/10.2139/ssrn.4029135

Bernardo Guimaraes (Contact Author)

Getulio Vargas Foundation (FGV) - Sao Paulo School of Economics ( email )

Rua Itapeva, 474
Sao Paulo
Brazil

Bruno Meyerhof Salama

University of California, Berkeley - School of Law ( email )

2240 Piedmont Ave. Berkeley
Berkeley, CA 94720
United States

Fundação Getulio Vargas Law School at São Paulo ( email )

R. Rocha, 233, Bela Vista
São Paulo, 01330-000
Brazil

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