Ductile Rights ArticleForthcoming
Date of Publication:
Will Bunting, Ductile Rights, Ky. L.J. (2024)Clicking on the button will copy the full recommended citation.
This Article presents two important results. First, depending upon the magnitude of ideological conflict in society, a flexible right, rather than an inflexible right, can produce the socially efficient outcome. In general, if social conflict decreases as a right becomes more flexible, then the right is described as “ductile,” and not weak. Conversely, if social conflict increases as the right becomes more inflexible, then the right is described as “brittle,” and not strong. Second, a negative correlation can exist between ideological conflict in society and personal freedom. That is, the more people are negatively impacted purely by what others do, the less people are free to do what they so choose. This Article terms this result the paradox of ideological incitement and considers the cable news channels as an illustrative example. In addition, this Article contends that the State has, under certain circumstances, an obligation to resolve direct conflict that can arise in the exercise of fundamental rights. As part of this obligation, the State must provide remedial mechanisms that create the separation necessary for the exercise of two otherwise conflicting fundamental rights to coexist, spending public funds to implement a ductile right as defined here.