Permitting Prohibitions

We propose a model in which the probability that courts will enforce a statute is endogenous to the statute. We find, first, that the enactment of legislation prohibiting something might increase the probability that courts will allow related acts that are not expressly forbidden. We call that a permitting prohibition and discuss examples that are consistent with the model. Second, we find that dispersion of courts’ decisions might be greater with legislation that commands little deference from courts than with legislation that commands none.

Thus, within a certain range, improvement of legislation might trade off with courts’ predictability.