Legislative Design and the Controllable Costs of Special Legislation

Legislation that singles out an identifiable individual for benefits or harms that do not apply to the rest of the population is called “special legislation.” In previous work, I have argued that special legislation is constitutionally suspect. In this Article, I explore the normative consequences of special legislation, assessing both the costs it imposes and the benefits that it can provide. Drawing on constitutional theory, public choice theory, and the history of special legislation, I argue that the enactment of special legislation is costly when it reflects the corruption of the legislative process and leads to low-quality legislation, unjustifiably unequal treatment, and legislative encroachment on the judicial and executive functions. By contrast, special legislation is normatively attractive when it addresses a problem unique to a particular location, when it addresses a matter of public concern, when it reduces rather than exacerbates disuniformity in the law, and when it provides relief for underrepresented political minorities. After considering these costs and benefits, I suggest modifications to the legislative process to diminish the costs associated with special legislation while still preserving its benefits.