Law Commons^™

Bootstrapping, Stuart M. Benjamin

Law and Contemporary Problems

Virtually every action depends on some conditions precedent. Law is no exception. The common law and precedent involve reliance on earlier developments, as do more particularized phenomena like slippery slopes and path dependence. In some situations, an actor undertakes permissible action Y and thereby renders its action Z legally permissible, a phenomenon I refer to as bootstrapping. Some commentators have raised concerns about the consequences of allowing bootstrapping, notably in the context of the individual mandate in the 2010 health care act. In this article I consider whether we, as citizens, should find bootstrapping, or a particular category of bootstrapping, …