2013] MEASURING LINE-DRAWING INEQUITY 973
Line-drawing is a prevalent and problematic part of the law. Line-
drawing occurs when the law must distinguish between two legal
phenomena. For example, the law must draw a line between murder and
manslaughter; between negligence and reasonable care; between capital
gains and ordinary income; between speeding and driving below the speed
limit; and any number of other phenomena in various areas of the law.
Drawing lines makes the law administrable and can help deter socially
unacceptable behavior. For instance, the penalty imposed on people who
speed undoubtedly deters some reckless driving.
Unfortunately, line-drawing also creates inequity. A sixty-mile-per-hour
speed limit, for example, may subject someone who drives sixty-one miles
per hour to a $200 penalty but not penalize someone who drives sixty miles
per hour. The two drivers are very similarly situated, but the law treats them
very differently. Despite the obvious inequity, line-drawing analysis has not
traditionally employed inequity as an analytical tool for three reasons. First,
some commentators believe that inequity will result regardless of where the
law draws the line,1 whether, for example, the law makes the speed limit fifty
miles per hour or seventy miles per hour. Second, critics claim that inequity
analysis is tautological and therefore unhelpful.2 They assert that equity
comparisons are unimportant because the law prescribes the treatment and
defines the class of people to whom the treatment applies.3 They would
argue, for instance, that if the speed limit is sixty miles per hour, the law can
identify speeders by examining the speed of each individual driver
regardless of other drivers’ conduct. Third, until now, inequity has not been
quantifiable in the line-drawing context. Consequently, quantitative types
have favored inefficiency analysis.
This Article reveals the weaknesses of these rationales by demonstrating
that inequity can and should be an important part of quantitative line-
drawing analyses, and introduces a model derived from tax law that
measures line-drawing inequity. The model relies upon a tax scenario for
three reasons. First, the Author is a tax scholar and is familiar with the
intricacies of the tax scenario used to construct the model. Second, a tax
scenario provides information that is readily quantifiable. Third, given the
current political climate surrounding tax policy,4 most people are familiar
1. See infra notes 68–69 and accompanying text.
2. See infra notes 71–75 and accompanying text.
3. See infra notes 68–77 and accompanying text. For example, critics might argue that the
speed limit determines whether a person is driving legally. Measuring a driver’s speed is
sufficient to determine compliance with the law, and comparing driving does nothing to
further the analysis of compliance.
4. See, e.g., Victor Fleischer, A Tax Shelter Mitt Romney Could Love, N.Y. TIMES (Sept. 25,
2012, 3:43 PM), http://dealbook.nytimes.com/2012/09/25/a-tax-shelter-mitt-romney-could-
love/?nl=business&emc=edit_dlbkpm_20120925; Suzanne Mettler & John Sides, We Are the 96