The argument I sketch here for institutional autonomy is basically empirical and agrees with Professor Hamilton in making harm-reduction the overriding social goal. The argument proceeds in two steps. First, I suggest that autonomous institutions may be able to socialize their adherents more effectively than institutions that lack autonomy and that - if the institutions' values are compatible with the legislature's - their more effective socialization can produce a net reduction in the harms inflicted by the institutions' members. Second, autonomy for all institutions can be defended if the gains from assuring autonomy for groups whose values are compatible with the legislature's values exceed the losses from doing so for groups with values the legislature rejects.
2004 BYU L. Rev. 1375-1384 (2004)
Scholarly Commons Citation
Tushnet, Mark V., "Defending a Rule of Institutional Autonomy on "No-Harm" Grounds" (2004). Georgetown Law Faculty Publications and Other Works. Paper 234.