Excluding Reasons: Impossible Comparisons and the Law

Abstract

The law excludes reasons. More precisely, it routinely denies the status of legal reason to considerations that, outside the legal domain, unquestionably qualify as reasons.2 Take price-fixing. Price-fixing can arguably increase employment, and increasing employment is ordinarily something we have reason to do; however, anti-trust law does not recognize 'it increased employment' as a reason that might justify or excuse price-fixing.3 Price-fixing agreements are per se illegal. Two more examples: first, '[i]n the law of free speech, offence at the content of ideas is not a legitimate reason to regulate speech, even if the offence is very widespread and intense';4 second, '[a]dministrative law consists in large part of the identification of a range of statutorily irrelevant factors-bases for decision that may not be introduced at all, however pertinent they may seem in the abstract'.5 It is natural--but crucially wrong-to think that an underlying comparison of reasons always does, or at least should, justify the exclusion of reasons. Sometimes comparisons justify exclusions; other times, exclusions lack any comparative ground. Let us first look at an exclusion that is grounded in an underlying comparison and then contrast the non-comparative cases. The contrast clarifies what is at issue. The anti-trust example illustrates an exclusion grounded in an underlying comparison. Anti-trust law refuses, as we noted, to recognize 'it increases