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Unpublished Paper
Greater and Lesser Powers
ExpressO (2012)
  • Samuel Levin

During much of the twentieth century it was relatively stylish for lawyers, judges and justices to argue that an exercise of power was permissible because "the greater power [to do something else] necessarily includes the lesser power [to do this]." Unfortunately, sloppy and unprincipled uses that merely reflected the intuitions of those who invoked it has largely discredited the argument, although it still makes some relevant appearances.

This paper argues that there is a principled way to apply the argument: by looking to the relative harms caused by each exercise of power. However, any notion of "necessarily includes" needs to be abandoned as there are plenty of reasons to draw distinctions between exercises of power, that have nothing to do with harm - most notably the justification for exercising the power.

Practically speaking, greater and lesser powers will often exist where the exercise of one power is conditioned upon the exercise of another power. The result usually is to force decision-making to extremes: cause a lot of harm, or don't cause any harm at all. While this has the potential virtue of reducing the number of harmful exercises of power, it also creates an obvious perverse incentive to cause more harm. Courts and commentators have almost entirely ignored the key issue of under what circumstances creating this perverse incentive is justified, given alternative means of restricting power.

  • rehnquist,
  • holmes,
  • federalism,
  • political safeguards,
  • unconstitutional conditions,
  • perverse incentives,
  • rules,
  • analogy,
  • discretion,
  • Eighth Amendment,
  • Federal Arbitration Act,
  • protective jurisdiction,
  • commercial speech
Publication Date
September 23, 2012
Citation Information
Samuel Levin. "Greater and Lesser Powers" ExpressO (2012)
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