David A. Super

Offering an Invisible Hand: The Rise of the Personal Choice Model for Rationing Public Benefits

II. TRANSFORMING THE RATIONING OF PUBLIC BENEFITS..................... 823 A. The Declining Importance of Formal Eligibility Rules ............... 823 B. An Overview of the Managed Choice Alternative to Formal Eligibility Rules............................................................................ 825 1. Possible Responses to Shortcomings in Formal Eligibility Rules ..................................................................... 825 2. Differential Responses to Informal Rationing Systems ......... 830 3. Quantifying the Impact of Informal Rationing ...................... 832 C. Formal, Informal, and Hybrid Rationing Systems ....................... 836 1. Establishing and Modifying Informal Rationing Systems ..... 838 2. The Visibility of Rationing Systems ....................................... 839

Are Rights Efficient? Challenging the Managerial Critique of Individual Rights

This Article contends that enforceable individual rights can improve the efficiency of government operations. The last decade has seen enforceable individual rights eliminated in a wide range of areas, from welfare to the treatment of immigrants and prisoners in U.S. jails to, most recently, the treatment of prisoners in Abu Ghraib and elsewhere overseas. In most instances, opponents of enforceable individual rights have quarreled little with the substantive norms underlying these rights. Instead, they have argued that enforceable legal rights would unduly burden government administration. Supporters of individual rights have tended to concede that they are inefficient, arguing instead that other values justify the imposition. In fact, enforceable individual rights operate very much like privatized audits of program operations. Most government programs have multiple, partially inconsistent goals. Agency leaders typically communicate the importance of their goals by auditing the performance of line workers. A single audit, however, has difficulty enforcing multiple partially conflicting goals simultaneously. Requiring line staff to respond both to pressure from auditors enforcing one set of norms and to individual rights vindicating competing norms is likely to produce the best balance between the two. This Article analyzes the jurisprudential foundations of the adversary system of justice to find support for the proposition that competing pressures on behalf of contrasting positions tend to produce an optimal balance. The Article then illustrates how the adversary system has worked successfully in public-benefit programs and highlights the difficulties of achieving similar results through the command-and-control mechanisms that typically replace individual-rights regimes.