Conflicts Among Rights: An Economic Approach
Sometimes rights conflict, as when the right to religion interferes with the right to equality. Often law does not prioritize rights, leaving judges to resolve conflicts among them based on their own intuitions and beliefs. This paper explores a new principle for resolving such cases: rule against the party that could have avoided the rights conflict more easily. This principle builds on “least cost avoidance,” a theory of liability developed by scholars in law and economics. The main objective of this paper is to adapt least cost avoidance to questions of rights. The secondary objective it to demonstrate the potential of economics in constitutional law. Economics has illuminated and influenced many legal fields. To influence constitutional law, economists must address the questions of lawyers and judges, meaning questions about constitutional doctrine. This paper presents a modest step in that direction.