The Least Restrictive Means

Abstract

Least restrictive means requirements and related legal principles, which require regulators to pursue regulatory objectives in the manner that is "least restrictive" of other societal values, pervade national and international legal systems.' In American constitutional law, they appear in First Amendment cases, in Equal Protection cases, and in Dormant Commerce Clause cases, among others. They perform similar functions in European Law, such as in the jurisprudence of Articles 30 and 36 of the Treaty of Rome. They may be found in a number of articles of the North American Free Trade Agreement (NAFTA), and they play an essential role in the law of the World Trade Organization (WTO). Despite the extensive use of least restrictive means requirements in the law, their meaning has rarely been explored with care. Precisely how does one determine whether some regulatory policy is a less restrictive alternative (or not)? One class of cases seems clear-when an alternative regulation unquestionably achieves a clearly stipulated regulatory objective at equal or lower cost to regulators while imposing a lesser burden on some other valued interest (free speech, free trade, or the like), the alternative is "less restrictive." But these conditions seem quite narrow, and the question arises whether a challenged regulation will necessarily pass muster when they do not hold. A proposed alternative may be somewhat more costly to implement, for example, or slightly less effective at achieving the stated regulatory objective, yet still seem quite preferable if it is much less burdensome on the interest that is protected by the least restrictive means requirement. One wonders, therefore, whether a least restrictive means analysis will drift toward broader cost-benefit analysis. That is the central question this Essay explores. The answer may well depend on context, and in this short Essay I cannot explore the least restrictive means test in all of its domestic and international manifestations. The analy-