Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

William & Mary Law School

2019

Civil rights

First Amendment

Articles 1 - 1 of 1

Full-Text Articles in Law

Constitutional Moral Hazard And Campus Speech, Jamal Greene Oct 2019

Constitutional Moral Hazard And Campus Speech, Jamal Greene

William & Mary Law Review

One underappreciated cost of constitutional rights enforcement is moral hazard. In economics, moral hazard refers to the increased propensity of insured individuals to engage in costly behavior. This Essay concerns what I call “constitutional moral hazard,” defined as the use of constitutional rights (or their conspicuous absence) to shield potentially destructive behavior from moral or pragmatic assessment. What I have in mind here is not simply the risk that people will make poor decisions when they have a right to do so, but that people may, at times, make poor decisions because they have a right. Moral hazard is not …