Power rules

Columbia Law Review

Volumn 110, Issue 4, 2010, Pages 1172-1192

  Bray, Samuel L ^a  

^a STANFORD LAW SCHOOL   (United States)

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EID: 77954478709     PISSN: 00101958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (110)

1. See, e.g., H.L.A. Hart, The Concept of Law 194-95 (2d ed. 1994);
2. Thomas Hobbes, Leviathan 144 (Edwin Curley ed., Hackett Publ'g Co. 1994) (1668);
3. Alasdair MacIntyre, Dependent Rational Animals: Why Human Beings Need the Virtues 1 (1999);
4. Philip Pettit, Republicanism: A Theory of Freedom and Government 4-7 (1997);
5. Martha Albertson Fineman, The Vulnerable Subject: Anchoring Equality in the Human Condition, 20 Yale J.L. & Feminism 1, 8-15 (2008).
6. This Essay focuses on the U.S. legal system, but seemingly every legal system contains rules designed to protect vulnerable persons.
7. One analogue in current legal literature is "prophylactic rules," or rules meant to avoid risk, usually the risk that a government actor will violate the Constitution (e.g., the Miranda requirement). See generally Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 Colum. L. Rev. 857, 899-904 (1999);
8. Henry P. Monaghan, The Supreme Court, 1974 Term - Foreword: Constitutional Common Law, 89 Harv. L. Rev. 1, 21 (1975);
9. David A. Strauss, The Ubiquity of Prophylactic Rules, 55 U. Chi. L. Rev. 190, 190 (1988). Dominating the literature on prophylactic rules is the question of constitutional legitimacy. The desirability of prophylactic rules has been occasionally considered, but only for particular rules or contexts.
10. See, e.g., Matthew Conaglen, The Nature and Function of Fiduciary Loyalty, 121 L.Q. Rev. 452, 468-71 (2005);
11. Drake D. Hill, Deconstructing the Prophylactic Ban on Lawyer Solicitation, 62 Temp. L. Rev. 875, 897 (1989). No theory for the general desirability of prophylactic rules has been offered. Another analogue to power rules is "nonconsummate offenses," especially "[s]imple nonconsummate offenses."
12. Douglas N. Husak, The Nature and Justifiability of Nonconsummate Offenses, 37 Ariz. L. Rev. 151, 169 (1995). Yet another analogue, also in the criminal law, is risk-creation offenses.
13. See, e.g., Paul H. Robinson, Prohibited Risks and Culpable Disregard or Inattentiveness: Challenge and Confusion in the Formulation of Risk-Creation Offenses, 4 Theoretical Inquiries L. 367 (2003). The concept of power rules can be seen as a different way of thinking about rules that, for the most part, fall under one or more of these headings. For such rules, this concept emphasizes not the risk of harm but rather the allocation of power and vulnerability between human actors. This shift generates a vocabulary for describing rules more precisely and observing patterns that would be missed with a more general concept like prophylactic rules. There also are differences in scope. The three analogous concepts are both broader and narrower than the concept of power rules: broader, because they include accidents and impersonal risks, see infra text accompanying note 13; and narrower, because they largely miss the category of rules described below as "power-increasing."
14. For an example, see infra note 70 and accompanying text (describing corporate law scholarship on how a certain kind of power rule is self-enforcing).
15. Cf. Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089, 1089 (1972).
16. U.S. Sentencing Guidelines Manual § 3A1.1 (b)(1) (2009); see also United States v. Grimes, 173 F.3d 634, 637-38 (7th Cir. 1999) (affirming enhancement of defendant's sentence based on victims' vulnerability).
17. See generally Trent M. Murch, Note, Revamping the Phantom Protections for the Vulnerable Elderly: Section 3Al.l(b), New Hope for Old Victims, 6 Elder L.J. 49, 50-51 (1998) ("The vulnerable victim sentence enhancement seeks to punish more severely criminals who victimize 'unusually vulnerable' persons such as the elderly.").
18. Words with a rich intellectual past, such as "power" and "vulnerability," may be best defined genealogically rather than analytically. For present purposes, however, a brief analytical definition is helpful: Power and vulnerability are correlative - power is the ability to harm another person; vulnerability is the susceptibility to being harmed by another person. These definitions abbreviate and abstract the definition of "power as domination" offered by Steven Lukes: "the ability to constrain the choices of others, coercing them or securing their compliance, by impeding them from living as their own nature and judgment dictate." Steven Lukes, Power: A Radical View 85 (2d ed. 2005) (reviewing half a century of debate in political theory over concept of power). As used here, power may involve resources and opportunities of almost any imaginable kind, including commodities (e.g., money, weapons) or methods of influence (e.g., advertising, threats).
19. Contra Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L.J. 16, 44 (1913) (treating power as only legal power and making it correlative to liability). Power may be granted by law, or permitted by law, or accumulated in spite of law. This conception of power and vulnerability is by no means the only one compatible with the analysis in this Essay.
20. See Bruce Ackerman & Ian Ayres, Voting with Dollars: A New Paradigm for Campaign Finance 4 (2002) (proposing giving every citizen "Patriot dollars" to be used for political campaign contributions).
21. The concept of power-increasing rules is analogous to "governance strategies" or "principal-empowering strategies" in corporate law. See John Armour, Henry Hansmann & Reinier Kraakman, Agency Problems, Legal Strategies and Enforcement, in The Anatomy of Corporate Law: A Comparative and Functional Approach § 2.2 (Reinier Kraakman et al., eds, 2d ed. 2009).
22. To be clear: The distinction is not in effect, because both kinds of rules can prevent harm and can alter power and vulnerability; nor is the distinction in public justification, because both are supported, at least in contemporary liberal democracies, with appeals to the ultimate prevention of harm. Rather, the distinction lies in whether the act (or condition) being regulated is perceived to be per se harmful (examples of harm rules include prohibitions on assault, rape, securities fraud, race discrimination, intentional infliction of emotional distress). One reason the distinction is not absolute is the nebulousness of what constitutes harm. See 1 Joel Feinberg, Harm to Others: The Moral Limits of Criminal Law 31-36 (1987) ("The word 'harm' is both vague and ambiguous ....");
23. see also Bernard E. Harcourt, The Collapse of the Harm Principle, 90 J. Crim. L. & Criminology 109, 113 (1999) ("Claims of harm have become so pervasive that the harm principle has become meaningless . . . ."). This Essay relies on ordinary usage of the term in lieu of technical definition.
24. Cf. Thomas W. Merrill & Henry E. Smith, Property: Principles and Policies 7-8 (2007) (considering why intentional trespass is a strict liability tort). Another example is a rule that an elected judge must be recused in a case involving a major contributor.
25. See Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252, 2256-57 (2009). Such a rule might be a harm rule, if the harm is perceived to be the appearance of impropriety, or a power rule, if the harm is perceived to be actual bias.
26. In addition to instances where the power/harm rule distinction turns on the characterization of the harm, there are four kinds of cases that might be considered intermediate: (1) The law regulates conduct that is not per se harmful and yet the probability of subsequent harm approaches 100% (e.g., a person purchases large quantities of a date rape drug); (2) the law regulates conduct that is not per se harmful and yet no further steps must be taken by the actor to inflict harm (e.g., a person writes a slanderous post on a blog that no one reads); (3) the law regulates conduct that is sometimes per se harmful and sometimes not and yet we cannot be sure which one is the case (e.g., a judge votes in a major contributor's case, if the harm is perceived as actual bias); and (4) the law regulates conduct that is per se harmful but does not do so primarily to prevent the coincident harm but rather to prevent a subsequent harm (e.g., a person's use of fighting words). For a discussion of the various harms prevented by the regulation of fighting words, see generally Kent Greenawalt, Insults and Epithets: Are They Protected Speech?, 42 Rutgers L. Rev. 287, 294-307 (1990). I am indebted to Kent Greenawalt for suggesting these intermediate cases.
27. See supra note 3 (noting that this is one of ways that concept of power rules differs from concept of prophylactic rules).
28. See, e.g., 150 Cong. Rec. 11,285 (2004) (statement of Rep. Osborne, previously a highly successful college football coach) ("[T]he use of steroids and precursors threatens the integrity of athletic competition.");
29. cf. Matthew J. Mitten, Drug Testing of Athletes - An Internal, Not External, Matter, 40 New Eng. L. Rev. 797, 801 (2006) ("Pharmacological performance-enhancing substances are banned because of their adverse effects on both athletes' health and competitive integrity." (emphasis omitted)).
30. On federal criminal law and steroids, see generally Colin Latiner, Steroids and Drug Enhancements in Sports: The Real Problem and the Real Solution, 3 DePaul J. Sports L. & Contemp. Probs. 192, 196-97 (2006) (describing federal regulation of enhancements by Congress, DEA, and FDA);
31. Adrian Wilairat, Comment, Faster, Higher, Stronger? Federal Efforts to Criminalize Anabolic Steroids and Steroid Precursors, 8 J. Health Care L. & Pol'y 377, 387-92 (2005) (detailing history of congressional regulation of anabolic steroids).
32. In a few cases we might achieve a measure of certainty, as when a steroid-using player hits a home run that barely clears the fence.
33. See generally Timothy A.O. Endicott, Vagueness in Law (2000) (offering account of legal indeterminacy, including vague expressions with borderline cases);
34. see also Samuel L. Bray, Preventive Adjudication, 77 U. Chi. L. Rev. (forthcoming 2010) (distinguishing two kinds of legal indeterminacy, one of which characteristically involves borderline cases).
35. Randall v. Sorrell, 548 U.S. 230, 248-49 (2006) ("[C]ontribution limits that are too low can . . . harm the electoral process by preventing challengers from mounting effective campaigns against incumbent officeholders . . . .").
36. See Vincent Blasi, Free Speech and the Widening Gyre of Fund-Raising: Why Campaign Spending Limits May Not Violate the First Amendment After All, 94 Colum. L. Rev. 1281, 1282-83 (1994) (arguing that candidates should be protected from having to "rais[e] money round-the-clock").
37. See, e.g., Keith D. Ewing, Promoting Political Equality: Spending Limits in British Electoral Law, 2 Election L.J. 499, 499 (2003) ("[S]pending limits . . . help[ ] to create a level playing field on which campaigns can be fought without either side having an unfair advantage based on financial resources alone.");
38. see also Richard L. Hasen, The Newer Incoherence: Competition, Social Science, and Balancing in Campaign Finance Law After Randall v. Sorrell, 68 Ohio St. L.J. 849, 887 (2007) (suggesting equality as goal of some campaign finance limits). But see Citizens United v. FEC, No. 08-205, 2010 WL 183856, at *25-30 (U.S.Jan. 21, 2010) (rejecting equality rationale on First Amendment grounds).
39. Cf. Blasi, supra note 18, at 1282 (noting that the " [disproportionate influence" of a campaign contributor on an officeholder "is hard to measure").
40. A power-increasing rule in election law was the Millionaires' Amendment passed as part of the Bipartisan Campaign Reform Act; it allowed a candidate with a wealthy rival to receive larger campaign donations and coordinated party expenditures. See Davis v. FEC, 128 S. Ct. 2759 (2008) (holding Millionaires' Amendment unconstitutional on First Amendment grounds). Other power-increasing rules might include a constitutional requirement to have majority-minority districts, or Bruce Ackerman and Ian Ayres's notion of Patriot dollars. On the latter, see generally Ackerman & Ayres, supra note 8.
41. For discussion of such a proposal, see Ariel Meysam Ayanna, Aggressive Parental Leave Incentivizing: A Statutory Proposal Toward Gender Equalization in the Workplace, 9 U. Pa. J. Lab. & Emp. L. 293, 301 & n.34 (2007);
42. Michael Selmi, Family Leave and the Gender Wage Gap, 78 N.C. L. Rev. 707, 773-75 (2000);
43. cf. Cass R. Sunstein, Human Behavior and the Law of Work, 87 Va. L. Rev. 205, 261-64 (2001) (analyzing nonwaivable rights in context of norm and preference change).
44. See infra Parts II.B, III, and IV.
45. Beyond the central case involving human actors, the law might be unable to reach the agent because the agent is impersonal. For example, to protect persons whose homes are vulnerable to earthquakes, the law relies on building codes that regulate structural materials, because an earthquake cannot be held liable for the injuries it causes.
46. NLRB v. Gissel Packing Co., 395 U.S. 575, 616-20 (1969) (upholding NLRB's finding of unfair labor practice where employer threatened economic retaliation if employees voted for union recognition).
47. See 42 U.S.C. § 1395ss(x)(2) (2006) (prohibiting collection of genetic information by medical insurers "prior to . . . enrollment" and "for underwriting purposes").
48. For discussion of power-decreasing rules, see supra Part I.
49. There are exceptions. Sometimes the people a power rule is meant to protect - such as economically disadvantaged political candidates, who benefit from some campaign finance power rules - will have an incentive to find violations. And sometimes the people a harm rule is meant to protect will have reasons to avoid speaking out, such as fear of social retaliation for filing a complaint. But as a general matter, when someone violates a power rule it is less likely that there will be an identifiable victim to spur enforcement.
50. See Can Whistles Help to Prevent Campus Rape?, N.Y. Times, Oct. 8, 1989, § 1 (Campus Life), at 45.
51. See, e.g., Adam B. Badawi, Law Without Threat: The Theoretical and Empirical Case for the Passage and Subsequent Non-Enforcement of Smoking Bans 3 (unpublished manuscript, on file with the Columbia Law Review) (arguing that even "unenforced law[s]" can "produce ... a dramatic shift in behavior");
52. see also Elizabeth F. Emens, Changing Name Changing: Framing Rules and the Future of Marital Names, 74 U. Chi. L. Rev. 761, 842 (2007) (concluding that even when law plays "a marginal role," it can give a "small push ... to help individuals overcome the collective action problem involved in changing social meaning").
53. See Richard H. McAdams, Beyond the Prisoners' Dilemma: Coordination, Game Theory, and Law, 82 S. Cal. L. Rev. 209, 233-35 (2009).
54. On the regulation of choice and the regulation of social meaning, see generally Ian Ayres, Menus Matter, 73 U. Chi. L. Rev. 3 (2006);
55. Lawrence Lessig, The Regulation of Social Meaning, 62 U. Chi. L. Rev. 943 (1995); see also supra note 30.
56. This is the function of a prophylactic rule. See supra note 3.
57. Given the efficient market hypothesis, a prohibition on false disclosures could be considered a harm rule.
58. A similar shift in focus can be observed in the enforcement of "process crimes." See Erin Murphy, Manufacturing Crime: Process, Pretext, and Criminal Justice, 97 Geo. L.J. 1435 (2009).
59. See, e.g., Me. Rev. Stat. Ann. tit. 17-A, § 403 (2006) (criminalizing possession of "burglar's tools," i.e., "any tool, implement, instrument or other article that is adapted, designed or commonly used for . . . forcible breaking of safes or other containers or depositories of property").
60. An exception is cases where the violation of a power rule merges with the violation of a harm rule. In a jurisdiction where conspiracy merges with the completed crime, a power rule prohibiting conspiracy would lack this cumulative effect.
61. This bent of legislators in the United States has been critiqued for decades by the academy, to no apparent effect. See, e.g., William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 508 (2001) [hereinafter Stuntz, Pathological Politics] (noting legislators' imperviousness to "normative arguments" and decrying how "American criminal law's historical development has borne no relation to any plausible normative theory - unless 'more' counts as a normative theory"). On power rules and enforcement discretion, see infra Parts III.C and IV.
62. See, e.g., Militia Act of 1792, ch. 33, 1 Stat. 271; Statute of Winchester, 1285, 13 Edw. 1, cc. 1, 4 (Eng.); Assize of Arms, 1181, 27 Hen. 2 (Eng.); see also Frederick Wilkinson, Those Entrusted with Arms: The Police, Post, Prison, Customs and Private Use of Weapons in Britain 9-13 (2002) (discussing laws in twelfth and thirteenth centuries that required English subjects to bear arms).
63. This point is widely recognized for prophylactic rules. See, e.g., Richard H. Fallon, Jr., Strict Judicial Scrutiny, 54 UCLA L. Rev. 1267, 1272 (2007) (using "overbroad" and "prophylactic" as effectively synonymous).
64. Thus each of the regulations of competition described above raises overbreadth concerns. See, e.g., Blasi, supra note 18, at 1314-16 (noting overbreadth issue for campaign spending limits); Jeffrey A. Black, Comment, The Anabolic Steroids Control Act of 1990: A Need for Change, 97 Dick. L. Rev. 131, 132 (1992) (criticizing steroids law as overbroad). Power-increasing rules also suffer from a kind of overbreadth: If a vulnerable person is required to maintain a certain power - such as firearms for convenience store clerks - that power could be misused with terrible consequences.
65. S.C. § 931 (2006) (making it a federal crime for anyone convicted of a violent felony to "purchase, own, or possess body armor"); see also U.S. Sentencing Guidelines Manual § 2K2.6 (2009) (increasing federal sentence of anyone who used body armor in connection with another felony offense); Joseph Larkin, Offenses Against Public Order and Safety: Make Wearing Bulletproof Vests During Commission or Attempted Commission of Certain Offenses Unlawful, 20 Ga. St. U. L. Rev. 95 (2003) (detailing Georgia statute that "makes it unlawful to wear a bulletproof vest during the commission or attempted commission of certain offenses").
66. These facts are drawn from United States v. Patton, 451 F.3d 615, 618-20 (10th Cir. 2006).
67. If, however, the rationale is considered to be the protection of the state itself, the restriction would not be overbroad, though it might well be unnecessary or excessive. On power rules and the state, see infra note 53.
68. One could imagine harm rules that are overbroad: an example would be the rule that "no one may draw blood in the streets of Bologna" if applied to doctors engaged in the competent practice of medicine. And one could imagine power rules that are not overbroad, such as the ban on private possession of nuclear weapons noted below. So it is not necessary that power rules be overbroad relative to harm rules. But in actual use the tendency of power rules toward overbreadth is pervasive; it is also unsurprising, given power rules' less direct approach to preventing harm, see supra Part I. Overbreadth is an important topic in multiple areas of legal scholarship, and only selective examples can be noted here. In criminal law scholars have emphasized overbreadth concerns in discussion of the overlapping categories of anticipatory, inchoate, strict4iability, and possessory offenses. See, e.g., 1 George P. Fletcher, The Grammar of Criminal Law 295 (2007) ("The major problem with possession offenses ... is overbreadth."). In administrative law attention has been paid to overbreadth as a problem of the optimal specification of rules.
69. See, e.g., Colin S. Diver, The Optimal Precision of Administrative Rules, 93 Yale L.J. 65, 75 (1983). In various contexts scholars and courts have considered the conditions in which law should be defeasible, allowing individuals to show that a generally applicable legal rule should not apply in their cases. See, e.g., United States v. Engstrum, No. 2:08-CR-430 TS, 2009 WL 1683285, at *1 (D. Utah June 15, 2009) (Second Amendment), rev'd sub nom.
70. In re United States, 578 F.3d 1195, 1197 (10th Cir. 2009);
71. Jerry L. Mashaw, Richard A. Merrill & Peter M. Shane, Administrative Law: The American Public Law System 464-66 (5th ed. 2003) (administrative law);
72. R.A. Duff, Criminalizing Endangerment, 65 La. L. Rev. 941, 961-62 (2005) (criminal law);
73. Michael W. McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. Chi. L. Rev. 1109, 1110-11 (1990) (Free Exercise Clause).
74. Overbreadth is of course a distinct doctrine in constitutional law, see, e.g., Richard H. Fallon, Jr., Making Sense of Overbreadth, 100 Yale L.J. 853 (1991), and questions of overbreadth and optimal specificity feature prominently in the massive literature on rules and standards, see generally Frederick Schauer, Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life (1991).
75. S.C. § 831; see also id. § 175 (prohibiting possession of biological weapons); id. § 229 (prohibiting possession of chemical weapons); 42 U.S.C. § 2181(a) (2006) (restricting patents "useful solely ... in an atomic weapon").
76. See generally Dan M. Kahan, The Gun Control Debate: A Culture-Theory Manifesto, 60 Wash. & Lee L. Rev. 3 (2003) (arguing that "cultural world views" inform "[b]eliefs about the causes and effective responses to societal risks").
77. On position-taking, see generally David R. Mayhew, Congress: The Electoral Connection (1974);
78. James M. Snyder, Jr. & Michael M. Ting, Why Roll Calls? A Model of Position-Taking in Legislative Voting and Elections, 21 J.L. Econ. & Org. 153 (2005) (developing "rationale for roll call voting and position-taking in legislatures");
79. see also Neal Devins, Congress as Culprit: How Lawmakers Spurred on the Court's Anti-Congress Crusade, 51 Duke L.J. 435, 461-62 (2001) (arguing Congress has increasingly favored symbolic messages over effective legislation).
80. Cf. Black, supra note 41, at 132 (noting only one indictment under Anabolic Steroids Control Act of 1990 in year or two following its passage). But see United States v. Shortt, 485 F.3d 243, 244 (4th Cir. 2007) (upholding one-year sentence for doctor prescribing anabolic steroids and human growth hormone to bodybuilders and professional football players).
81. See Philip J. Cook, The Technology of Personal Violence, 14 Crime & Just. 1, 61 (1991) (describing ordinance in Atlanta, Georgia suburb "requiring every household in the city to keep a firearm in their home"); cf. supra note 39 and accompanying text (noting historical statutes requiring private persons to carry weapons to help secure the peace).
82. See generally Badawi, supra note 30 (suggesting that purely expressive laws allow governments to realize "efficiency gains . . . with little or no enforcement costs"). For entry points to the substantial literature on law and social norms, see generally Eric A. Posner, Law and Social Norms (2000);
83. Richard H. McAdams, The Origin, Development and Regulation of Norms, 96 Mich. L. Rev. 338 (1997).
84. See, e.g., Aya Gruber, Righting Victim Wrongs: Responding to Philosophical Criticisms of the Nonspecific Victim Liability Defense, 52 Buff. L. Rev. 433, 492 (2004) ("Many courts and legislatures have defined the mens rea element in possession crimes as something like negligence.").
85. For a broadside against possession offenses in the criminal law, see Markus Dirk Dubber, Policing Possession: The War on Crime and the End of Criminal Law, 91 J. Crim. L. & Criminology 829, 855-934 (2001).
86. On the distinction between overbreadth and redundancy in criminal law, see Darryl K. Brown, Democracy and Decriminalization, 86 Tex. L. Rev. 223, 230-31 (2007).
87. The desirability of overbroad power rules in the criminal law will of course depend on many other facts, including the institutional characteristics of prosecutors' offices, see Rachel E. Barkow, Institutional Design and the Policing of Prosecutors: Lessons from Administrative Law, 61 Stan. L. Rev. 869 (2009);
88. Stephanos Bibas, Prosecutorial Regulation Versus Prosecutorial Accountability, 157 U. Pa. L. Rev. 959 (2009), and the constraints on official conduct that may be imposed by constitutional rights and the legal rules that give them practical force (e.g., the exclusionary rule, 42 U.S.C. § 1983 (2006)). Although this Essay focuses on power rules that protect one private person from another, the concept might be applied to the interactions of branches of government (e.g., separation of powers prevents the concentration of power by any one branch). The concept might also be applied to the interactions of citizens and the state. Some legal rules limit the power of the state vis-à-vis citizens (e.g., the Fourth Amendment), and others make the state vulnerable to its citizens (e.g., the Freedom of Information Act, or exceptions to sovereign immunity). This is not to suggest that states seek an equality of vulnerability with their citizens - exceptions to sovereign immunity are exceptions to the general rule.
89. See Diver, supra note 45, at 67-71 (discussing congruence as one aspect of the optimal precision of rules). On discretion and rule enforcement, see generally Steven Shavell, Optimal Discretion in the Application of Rules, 9 Am. L. & Econ. Rev. 175 (2007).
90. William J. Stuntz, Plea Bargaining and Criminal Law's Disappearing Shadow, 117 Harv. L. Rev. 2548, 2548 (2004); see also Stuntz, Pathological Politics, supra note 38, at 519-20 (describing consequences of prosecutors having a greater number of charging options). Another way of making this point is to say that power rules tend to increase the amount of delegated criminal lawmaking.
91. See generally Dan M. Kahan, Lenity and Federal Common Law Crimes, 1994 Sup. Ct. Rev. 345 (arguing "historic underenforcement of lenity" reflects a "rule of criminal law: that Congress may delegate criminal lawmaking power to courts" (emphasis omitted)).
92. For qualification, see supra note 37 (noting exception where violation of a power rule merges with violation of a harm rule). The complementary use of power rules also increases the options available to juries. When a prosecutor does charge a defendant with multiple offenses, and the case goes to trial, jurors could convict on charge one but not charges two and three, and so on.
93. See generally Albert W. Alschuler, Plea Bargaining and Its History, 79 Colum. L. Rev. 1, 16-26 (1979) (describing rise of plea bargaining);
94. Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 Harv. L. Rev. 2463, 2469-96 (2004) (describing structural influences on plea bargaining, such as the Federal Sentencing Guidelines).
95. Richard A. Epstein, Unconscionability: A Critical Reappraisal, 18 J.L. & Econ. 293, 304 (1975) (noting that in some cases, "[p]roof of fraud is apt to be difficult . . . even if the fraud itself is likely").
96. Id.
97. Id. Epstein distinguishes the situation in which the returning prisoner of war sought out the municipal bond seller - there unconscionability should not be applied to make the transaction voidable. Id.
98. Intriguingly, the degree of overbreadth might not be correlated with a power rule's ability to make law enforcement more efficient through prevention, proof, and punitive flexibility.
99. See Jesse H. Choper, John C. Coffee, Jr. & Ronald J. Gilson, Cases and Materials on Corporations 111-12 (7th ed. 2008) (describing development of law on transactions with interested directors). Such a rule does obtain in the United Kingdom, but it operates as a penalty default rule: A transaction with a director is voidable if the director fails to make disclosures required by Companies Act, 2006, c. 2, § 177.
100. For a systematic analysis of how law can constrain fiduciary power, with special attention paid to the powers of trustees and corporate directors, see generally R.C. Nolan, Controlling Fiduciary Power, 68 Cambridge L.J. 293 (2009).
101. See id. at 297-304 (discussing "improper purposes doctrine"). On the tacit condition that legal rights may not be used for purely malicious reasons, see Joseph M. Perillo, Abuse of Rights: A Pervasive Legal Concept, 27 Pac. L.J. 37, 37 (1995);
102. see also Sarah Worthington, Equity 142-47 (2d ed. 2006) (detailing equitable methods of regulating abuse of power by decisionmakers). Any conditions that accompany power-increasing rules should be intuitive and straightforward; otherwise they would prevent vulnerable people from being confident that they could exercise the power.
103. Cf. Meir Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 Harv. L. Rev. 625, 651, 668-73 (1984) (concluding that clarity and accessibility matter more for conduct rules than for decision rules); Diver, supra note 45, at 76-77 (concluding that transparency is more important for external rules than for internal rules);
104. Paul H. Robinson, Rules of Conduct and Principles of Adjudication, 57 U. Chi. L. Rev. 729, 732 (1990) ("[E]ffective . . . rules of conduct must be simple, based on objective criteria with easily communicable and comprehensible standards.").
105. See Malcolm Thorburn, Justifications, Powers, and Authority, 117 Yale L.J. 1070, 1072-74 (2008) (discussing "division of labor between those who have the legal power to decide what conduct is . . . legally justified in the circumstances and those who carry out that conduct"). Note that Thorburn uses "power" in the Hohfeldian sense of legal power rather than the sense in which it is used in this Essay. Compare id. at 1073 n.1, with supra note 7.
106. Diver, supra note 45, at 98. See generally id. at 97-106 (offering standard explanations for gap between public interest and decisions of administrative officials).
107. For suggestions about how this judgment can rest on systematic evaluation of enforcing officials, see Mariano-Florentino Cuéllar, Auditing Executive Discretion, 82 Notre Dame L. Rev. 227 (2006).
108. For a description of this comparative advantage in baseball, see Doug Glanville, Seeing Is Disbelieving, Opinionator, Jan. 21, 2010, at http://opinionator.blogs.nytimes. com/2010/01/21/seeing-is-disbelieving/ (on file with the Columbia Law Review).
109. See supra notes 30-31 and accompanying text.
110. See Armour, Hansmann & Kraakman, supra note 9, at § 2.3.1 (noting enforcement institution in corporate law is "only of second-order importance" for "principal-empowering strategies" in corporate law). Because power-increasing rules can decentralize enforcement, they raise a number of questions. Who is better positioned to avoid the harm: the state or the newly empowered vulnerable person? And would a power-increasing rule foster individual responsibility and elevate vulnerable persons? Or would it signal a lack of protection from the state and encourage a culture of blaming those who suffer injury?