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Are Rights Efficient? Challenging the Managerial Critique of Individual Rights

93 Pages Posted: 10 Aug 2006  

David Super

Georgetown University Law Center

Abstract

This Article contends that enforceable individual rights can improve the efficiency of government operations. The last decade has seen enforceable individual rights eliminated in a wide range of areas, from welfare to the treatment of immigrants and prisoners in U.S. jails to, most recently, the treatment of prisoners in Abu Ghraib and elsewhere overseas. In most instances, opponents of enforceable individual rights have quarreled little with the substantive norms underlying these rights. Instead, they have argued that enforceable legal rights would unduly burden government administration. Supporters of individual rights have tended to concede that they are inefficient, arguing instead that other values justify the imposition.

In fact, enforceable individual rights operate very much like privatized audits of program operations. Most government programs have multiple, partially inconsistent goals. Agency leaders typically communicate the importance of their goals by auditing the performance of line workers. A single audit, however, has difficulty enforcing multiple partially conflicting goals simultaneously. Requiring line staff to respond both to pressure from auditors enforcing one set of norms and to individual rights vindicating competing norms is likely to produce the best balance between the two.

This Article analyzes the jurisprudential foundations of the adversary system of justice to find support for the proposition that competing pressures on behalf of contrasting positions tend to produce an optimal balance. The Article then illustrates how the adversary system has worked successfully in public-benefit programs and highlights the difficulties of achieving similar results through the command-and-control mechanisms that typically replace individual-rights regimes.

Keywords: individul rights, entitlements

Suggested Citation

Super, David, Are Rights Efficient? Challenging the Managerial Critique of Individual Rights. California Law Review, Vol. 93, No. 4, pp. 1051-1142, 2005; U of Maryland Legal Studies Research Paper No. 2006-24. Available at SSRN: https://ssrn.com/abstract=923575

David Super (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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