Except for the use of this ugly acronym (WDYDTL = Where do you draw the line?), Professor Orin Kerr’s new 11-page essay on “Line-Drawing and Legal Education” is a beautiful paper, a jurisprudential tour de force containing many valuable and fundamental insights about the nature of law and rule-making. (Although I already handed out my syllabus for this semester, I will nevertheless encourage my students to read the paper.)
In summary, Professor Kerr’s line-drawing paper has five parts, plus a practical conclusion with tips for students. His paper is so important that I will devote my next few blog posts to all five parts (plus the conclusion), beginning with Part I, which provides two concrete examples of group decision-making to illustrate the broad scope of this all-important question in law, “Where do we draw the line?” One example involves a group empowered to design a system of government unemployment benefits; in the other example, the group is asked to design a law on when the police should be able to pull over a car to enforce traffic laws. Let’s focus on the traffic stop example, quoting directly from Kerr’s paper (emphasis added):
“Cars can be very dangerous if not driven safely, and every state has traffic regulations on how cars must be driven and what safety features cars must have in working order. The group is tasked with devising rules on when the police should be able to stop drivers on the road to investigate or address safety violations.
“Once again, group members go around the room and voice their concerns. The first person wants to make sure police have enough power to protect safety by enforcing all traffic safety rules. The second person hopes that the police can use traffic stops to get drunk drivers and other dangerous drivers off the road. The third person expresses concern that the police will use traffic-stop powers to target minority drivers and discriminate against minority groups. The fourth person argues that allowing traffic stops is dangerous because stops can lead to police uses of violent force. And a fifth person chimes in that the rule needs to be clear so the police can know what they’re allowed to do and not do.
“In a perfect world, the group could satisfy all five interests at once. They could ideally design a system that enforces all safety rules, protects the public from dangerous drivers, does not permit targeting minority groups, does not lead to uses of force, and is clear and easy to administer. But again, these interests can clash. Granting the power to investigate any traffic offense may require empowering the police to use force if a person refuses to stop. A rule that prevents targeting minority drivers may require a rule based on an officer’s subjective intent that is difficult to know, making the rule difficult to administer. There is no perfect system that achieves all five goals.”
In other words, line-drawing is inevitable in law when we must choose among competing values–when our values and goals collide–which is almost always. (As an aside, this notion of “conflicting values” is the single-most important lesson I have learned from modern moral philosophy.) Part II of Kerr’s essay identifies a second reason why trade-offs are inevitable, why lines must be drawn whenever we must formulate a legal rule or make a group decision. Stay tuned: we will proceed into Parts II & III of Kerr’s line-drawing paper in my next post …