This is an explanation for passage 4 of LSAT preptest 68, the December 2012 LSAT – the comparative passage. The passages are about overinclusive laws.
This section has paragraph summaries and an analysis of the passage, links to the explanations for the questions are below.
- Police have the power to nullify laws by not enforcing those laws.
- General laws always punish more than they intend to. If you try to make laws very specific, then you will produce loopholes. Police can avoid the problem of over-general laws by using discretionary non-enforcement.
- If the law enforcement agency does a poor job of discretionary non-enforcement, the legislature can scold them.
- The city will cut water to a few high income neighborhoods. This will encourage people to pay their water bills.
- Why doesn’t the city just attach a lien to the properties? They’ll get money if the house is sold.
- A loophole prevents the city from attaching liens to houses. It would be better to change the law than to cut off water.
On dual passages, you must think about the relation between the two passages.
The first passage is theoretical. The second passage is practical – it’s an example of how laws should be changed to be more general.
Discretionary non-enforcement is the idea of having a general law, but not enforcing it when enforcement goes against the spirit of the law.
General Laws Are Better
For example, it is against the law to speed. But, suppose a man is driving his pregnant wife to the hospital so she can have her baby. We would not want to prosecute speeding in that case, driving fast is justified.
If we tried to make an exception for every special case, the law would get complicated. Loopholes would appear. For example, if the law said ‘speeding is wrong, unless a pregnant woman is on the way to the hospital’, then you might allow speeding if a woman is five months pregnant and going to the hospital for a blood test.
So it’s better to have a general law, but allow the police to decide when it doesn’t make sense to apply the law.
The City’s Law Was Too Specific
In the second paragraph, the city did not use a general law. They prevented the city from using a lien except for a tax.
This creates the undesirable situation where the city must shut off water. It would have been better if the city could apply liens for all fees, but only for fees that are like taxes.
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