In a subtle but discernible trend, courts, commentators, and policymakers increasingly use autonomy-based justifications to support expanding economic rights. Their use of autonomy, however, is inconsistent with the concept of traditional liberal autonomy that proponents of economic rights embrace. This is because many, if not most, economic choices have some measure of consequences ameliorated by state action. This Article exposes the conceptual incoherence of this approach and argues that these autonomy-based arguments are invalid when they fail to acknowledge the vital role consequences play in constituting liberal autonomy. It also demonstrates that the failure to account for consequences in determining the value of a choice creates conceptual and practical problems that can unnecessarily hamper effective regulations while simultaneously undervaluing true autonomy. To do so, this Article uses the Supreme Court’s landmark NFIB v. Sebelius decision and the debate over privatizing Social Security as case studies to critique autonomy-based arguments used to justify economic rights in circumstances where consequences are artificially constrained. This Article then provides an alternative consequence-focused framework for evaluating the regulation of such choices. Finally, this Article applies that framework to demonstrate that considering consequences helps ensure a more robust protection of true autonomy while still providing policymakers flexibility to address social issues.
Catherine A. Hardee
Considering Consequences: Autonomy’s Missing Half,
43 Pepp. L. Rev.
Available at: https://digitalcommons.pepperdine.edu/plr/vol43/iss3/3