Regulating Business: Duty vs. Aspiration (LSAT Diagnostic RC Passage)

Many scholars assert that the attempt to regulate the behavior of business through legislation is at best futile and at worst deleterious. In making their argument,advocates of nonregulation assume a distinction between the morality of duty and the morality of aspiration. They argue that duties, which specify minimum standards of human conduct, lend themselves to legal enforcement better than do aspirations, which exhort one to realize one’s full potential. The advocates of nonregulation also assume, quite justifiably, that the problems associated with business are primarily problems of aspiration; that is, one may feel that a business is not doing all it could to develop a new product. The creation of a cumbersome network of regulations to encourage aspiration, they conclude, may make those subject to the regulations abdicate independent, responsible judgment in those areas in which it is most needed.

However, the lawmaking problem suggested by the distinction between duty and aspiration, a distinction that is valid, is not as insurmountable as the advocates of nonregulation conclude. The law can and often does make both individuals and business aspire. When the law states that citizens shall “not drive recklessly” or “not ship in interstate commerce any vehicles that do not meet minimum EPA standards,” the law is making individuals aspire to drive carefully and business aspire to produce relatively pollution-free engines. Yet there is some merit to the argument for nonregula- tion. Although the law can raise standards as long as those standards are applied generally, the standards are going to be the result of compromises. Thus the business that can far exceed the minimum standards has no more legal obligation to do so than does the business that can barely meet those standards.

But it is not inevitable that laws take this form; in other words, there is nothing inherent in the laws that encourage aspiration that leaves those laws unenforceable. Laws could be predicated on what can reasonably be expected of each particular business, the more competent businesses having to face higher standards than the less competent. It is hard to believe that juries do not already include such considerations in their deliberations. Admittedly, there would be difficulties in enforcing such a system. Witnesses with relevant expertise, records, evaluation of the conditions prevailing within a particular industry—all this and more—would be needed so that a jury could determine what is feasible and what is not.

Unless we want to make excellence a legal liability, it is unlikely that the law can ever be a good mechanism for drawing out of a business the best of which it is capable. But we should recognize that it is our own reluctance, and not any reason as yet put forth by the advocates of nonregulation, that makes this so.­

1.Which of the following is a major point made in the argument for nonregulation of business according to the passage?

(A) The concept of aspiration is already the basis of the self-regulation of business because aspirations are vital to business growth.
(B) The concept of aspiration has been shown to be a less useful basis for designing laws than has the concept of duty.
(C) Laws that are intended to encourage aspiration actually discourage aspiration because such laws discourage the exercise of reflection, discretion, and initiative.
(D) Because laws that encourage aspiration are unfair and ambiguous, they have been opposed by the majority of the public in the past and are likely to be opposed in the future.
(E) Because there is at present little agreement as to which goals business should strive for, laws that encourage aspiration are difficult to enforce.


2. The primary purpose of the passage is best described as an effort to

A) suggest some ways in which laws that encourage aspiration can be used effectively to regulate the behavior of business
(B) argue that the advocates of nonregulation have overemphasized the effect on business of laws that encourage aspiration while underestimating the effect of laws that specify duties
(C) discuss instances in which laws that encourage aspiration have had a desirable, although indirect, effect on both individuals and businesses
(D) rebut the argument that the distinction between the morality of duty and the morality of aspiration can and should be used in lawmaking
(E) contend that the distinction between the morality of duty and the morality of aspiration, however valid, should not be regarded as the basis of a valid argument against the regulation of business


3. According to the author, the advocates of nonregulation support their position by making which of the following arguments about duties and aspirations?

(A) Laws that designate duties are easier to enforce than are laws that encourage aspirations.
(B) Laws that designate duties should be of greater concern to society than should laws that encourage aspirations.
(C) Duties are easier to define than are aspirations.
(D) Businesses should be primarily concerned with duties and only secondarily concerned with aspirations.
(E) Businesses should be legally obligated to distinguish between duties and aspirations.


4. The author suggests that the most valid criticism of the enactment of laws that encourage aspiration that has been raised by the advocates of nonregulation is which of the following?

(A) In order to do business efficiently and profitably, a business must be able to change or modify its aspirations quickly.
(B) Many businesses are necessarily exempt from laws that encourage aspiration.
(C) Many of the laws that encourage aspiration apply to business in one country but not in another.
(D) The capabilities of different businesses vary, and such variation is not taken into account by laws that encourage aspiration.
(E) Laws that encourage aspiration are subject to the interpretation of only a few judges, whose opinions may not reflect the values of society as a whole.


5. According to the author, the assumption that the problems associated with business are primarily problems of aspiration is

(A) alarming
(B) verifiable
(C) unprecedented
(D) implausible
(E) sound


6. According to the author, the implementation of laws that encourage aspiration would be difficult because

(A) evidence establishing a particular business’s liability is not as likely to be available
(B) information pertinent to each particular industry would have to be collected and analyzed
(C) the liability of a business would have to be distinguished from the liability of its employees
(D) businesses that are theoretical entities can be easily disbanded
(E) the merits of conflicting, equally worthy aspirations would have to be considered


7. The author would most probably agree with which of the following statements about the relationship between business and laws that encourage aspiration?

(A) Laws that encourage aspiration are noble but essentially unenforceable; therefore, laws that specify duties are more likely to regulate business behavior effectively.
(B) Laws that encourage aspiration can be used to regulate only a few aspects of business behavior; therefore, only laws that specify duties should be applied to businesses.
(C) Since many juries already consider aspiration to be an element of the law, it is unlikely that there would be very much difficulty in persuading juries to apply laws of aspiration to business behavior.
(D) Since laws that specify duties and that are also effective imply aspirations, laws that explicitly encourage aspirations are a potentially useful legal mechanism for regulating business behavior.
(E) Since many people are reluctant to make aspiration a legal responsibility, it is unlikely that the law can be used to regulate business behavior effectively.