FIU Law Review

Volume 10 Number 1 Article 6

Fall 2014

The Alignment of Law and Norms: Of Mirrors, Bulwarks, and Pressure Valves

Mark A. Edwards William Mitchell College of Law.

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Recommended Citation Mark A. Edwards, The Alignment of Law and Norms: Of Mirrors, Bulwarks, and Pressure Valves, 10 FIU L. Rev. 19 (2014). DOI: https://dx.doi.org/10.25148/lawrev.10.1.6

This Article is brought to you for free and open access by eCollections. It has been accepted for inclusion in FIU Law Review by an authorized editor of eCollections. For more information, please contact [email protected]. 37010-fiu_10-1 Sheet No. 14 Side A 11/13/2015 07:10:42 Joseph Joseph If that that If 1 at the Florida see also 2 (2001). OCIETY S (Max Rheinstein ed. & trans., trans., & ed. Rheinstein (Max FIU Law Review AW AND AW L OCIETY
S 3 CONOMY AND E URISPRUDENCE OF URISPRUDENCE J ) 10/3/15 12:32 AM NTRODUCTION AW IN I. I ELETE L Mark A. Edwards D ENERAL N OT N ,O ,AG O (D EBER W DOCX AMANAHA AX T The Alignment of Law and Norms: and Law of Alignment The _9.25. M RIAN INAL B _F at 109. Of Mirrors, Bulwarks, and Pressure Valves Valves Pressure and Bulwarks, Mirrors, Of 2 See, e.g., See Id. It has long been argued that law is derived from social norms. Professor of Law, William Mitchell College of Law. With thanks to Professors Manuel But as Tamanaha and many others have persuasively argued, the This article attempts to answer that question. It argues that most of the This article argues that the intervening factors come in two types: Pressure valves are mechanisms that relieve the pressure placed on the One type of pressure valve is selective enforcement. Pressure on law Perhaps gaps are due only to time; eventually, law will change to But not always. Sometimes gaps between law and norms are
1 2 3 DWARDS M K is true, law and norms should reflect each other. Brian Tamanaha refers to this as “the mirror thesis:” law is a formalized reflection of informal social norms. mirror mirror thesis is frequently, norms. demonstrably and law between gaps significant inaccurate. There are often Harvard Univ. Press 1954); Niklas Luhmann, A Sociological Theory of Law 82 (1985); (1979) 105 Morality and Law on Essays Law: of Authority The Raz, to change to reflect social norms is relieved when law is not enforced time, a gap between law and social norms does, the in fact, law place pressure to on change predictable, to identifiable intervening factors better that may cause persistent reflect gaps. social norms. This article attempts However, to identify norms. there and law between gap those persistent a cause might are factors, and to predict when they “bulwarks”valves.” “pressure and law to change despite a gap valves. pressure of types identifiable with social norms. There are at least two reflect norms. And, indeed, sometimes that is actually observable; follows. law normsand evolve persistent. What accounts for that persistence? Why normsreflect sometimes, timesother not? but does law change to Gomez and Marc Galanter for the invitation to participate in this Symposium, to the other participants for their comments and feedback, and to the editorial staff of the 03 - E International University College of Law for their kind and expert assistance. assistance. expert and kind their for Law of College University International C Y 37010-fiu_10-1 Sheet No. 14 Side A 11/13/2015 07:10:42 A 11/13/2015 14 Side Sheet No. 37010-fiu_10-1 37010-fiu_10-1 Sheet No. 14 Side B 11/13/2015 07:10:42 M K P. , 19 C Y . 457 .L.& HILIP EV P RIM C .L.R [Vol. 10:19 10:19 [Vol. ONN , 97 J. ARBER AND Formally illegal illegal Formally , 43 C 4 A. F ANIEL , D (1991). NTRODUCTION I see also generally Critical Legal Studies: An Introduction to its Origins and 5 ) 10/3/15 12:32 AM RITICAL FIU Law Review Law FIU ELETE D :AC OT Acceptable Deviance and Property Rights N O The Place of Law in the Marxian Structure-Superstructure Archetype HOICE Law and the Parameters of Acceptable Deviance (D C DOCX UBLIC P . 39 (1985); Mark Tushnet, _9.25. , Alan Stone, EV , 36 J. Leg. Educ. 505 (1986); R INAL 49 (2006). Mark A. Edwards, Y _F ’ AW AND AW OC See See, e.g. , L Gaps that persist because of the protection of fundamental rights are A second bulwark is the protection of fundamental rights, through This Article argues that gaps between law and social norms are neither Bulwarks are forces that buttress the resistance of law against pressure One type of bulwark is political capture, which prevents a change in A second type of pressure valve is vigilantism. Pressure on law to 4 5 &S DWARDS RIMINOLOGY AW RICKEY L 20 against behavior that is illegal, but socially acceptable. 03 - E F C (2010); Mark A. Edwards, warning signs that any particular persistent gap is a bug rather than a feature a than rather bug a is gap persistent particular any that signs warning system.the of which non-democratic institutions such which institutions as non-democratic courts remove from the purview of popular will the power socially to unacceptable. legally sanction some fundamental behaviors rights, In courts that protect are the other legality of norms.social of violation their words, some behaviors despite through the recognition of intrinsically good nor intrinsically bad; all depends on their cause. can predictably identify which factors If are preventing we law from changing to reflect social norms, we will at relationship least between have law a and better society. understanding of Better the yet, we may be alerted to the existence of political capture. political of existence the that is socially unacceptable enforcement, it will not occur, and the pressure is to change the law to reflect successfully sanctioned norms willlessened. be through norm to change, despite a gap between twotypes. bulwarksleast identifiable valves, come at in law and social norms. Like pressure law to reflect social norms controlled by a whenhighly-interested minority group that benefits the from the law mechanisms of as legal is. change Political are capture will norms. Generations of political and social science scholars have recognized buttress law against pressure to align with acts that are socially acceptable response. Legal often institutions tend to do enforce not law, not but limits of generate socially acceptable deviance an from the law. enforcement Because the popular experience of law lies in its enforcement, the gap between law and norms is not experienced by the majority of the populace if standards of social acceptability, law,than enforced. are rather change to reflect social norms is relieved when social norms are against enforced behavior that is legal but socially unacceptable. If legal behavior Underpinnings 37010-fiu_10-1 Sheet No. 14 Side B 11/13/2015 07:10:42 B 11/13/2015 14 Side Sheet No. 37010-fiu_10-1 37010-fiu_10-1 Sheet No. 15 Side A 11/13/2015 07:10:42 9 and and 8 Similarly, Similarly, 7 ORMS N 21 21 AW AND AW L Law is said to mirror social 6 165 (1992). APS BETWEEN APS 105 (1979). 10 AW ) 10/3/15 12:32 AM &G BJECTIVITY L O ELETE D HESIS OT N T AW AND AW O ,L UTHORITY OF UTHORITY (D The Alignment of Law and Norms and Law of Alignment The note 2, at 51. at 2, note A note 2, at 52 (“According to this account, positive law emerges, in the haze haze the in emerges, law positive account, this to (“According 52 at 2, note HE DOCX IRROR note 1, at 13. at 1, note ,T supra supra M AZ _9.25. REENAWALT R supra HE G INAL T _F ENT OSEPH Tamanaha, II. Tamanaha, Tamanaha, Weber, J K Norms, it is frequently supposed, pre-exist law, which eventually Section II of this article reviews the literature of the mirrors thesis and 6 7 8 9 10 DWARDS M K Joseph Raz defines law as “an institutionalized normative system,” grows fromgrows mirrornormsto them.evolves and of long forgotten yesteryear, as a distinct mechanism of institutionalized norm enforcement out society.”). pre-political in prevailed that order customary of the operates to maintainorder.” to social operates As Brian Tamanaha has explained, “almost every major strain of Western legal and social theory has articulated, or taken for granted, an account of the relationship between law and society as association. one It is widely of assumed that law close reflects and mirrors integration society, and and circumvention of the protection vigilantism. of fundamental rights through acts of its critiques. Section understanding III the explores dynamic relationship the between law use and society.IV of discusses Section prediction the as application means of Section for V predictive examines models the typologies to of the bulwarks cause persistent and gaps mirror between pressure law valves and thesis. social that norms. Section VI analyzes the danger signals that may allow us to predict that any particular persistent feature. a systemthan the rather in bug a is gap 2014] usually a feature of the system. Gaps due to political capture are generally bugs. Gaps due to the non-enforcement formally of deviant law but against socially behavior acceptable that may is indicate be harmless, a but dangerous may also and formal pernicious law bug: against the selective minority socially enforcement acceptable. populations We should be alert to that possibility of whenever for we see behavior that enforcement is at the bounds of socially generally acceptable deviance rather than law. Finally, gaps between law and sanctions against behaviors that normsare legal but socially unacceptable that may be persist because harmless, of but informal they may also indicate the presence of a bug: the 03 - E norms because law is preferences, desires, the and notions of order formal and justice. Indeed, embodimentMax Weber of described law a as society’s the institutionalized informal enforcement of norms. Kent Greenawalt has gone so far as to assume that cultural norms, law unless it reflects is “imposed dominant from the outside by an alien power.” C Y 37010-fiu_10-1 Sheet No. 15 Side A 11/13/2015 07:10:42 A 11/13/2015 15 Side Sheet No. 37010-fiu_10-1 37010-fiu_10-1 Sheet No. 15 Side B 11/13/2015 07:10:42 M K C Y 13 [Vol. 10:19 10:19 [Vol. First, legal legal First, 14 607, 615 (1907). AG B REEN , 19 G 19 , In Tamanaha’s view, the the view, Tamanaha’s In 11 15 And indeed, Tamanaha’s claims are are claims Tamanaha’s indeed, And 17 In his view, “the majority of state legal legal state of majority “the view, his In ) 10/3/15 12:32 AM 16 at 31. Roscoe Pound seems to have had something something had have to seems Pound Roscoe FIU Law Review Law FIU ELETE Id. 12 D OT N O law.” (D note 2, at 109. at 2, note The Need for a Sociological Jurisprudence Sociological a for Need The are DOCX supra _9.25. INAL at 1. at at 145. at 69. at at 5. That last and most extreme position is perhaps most closely identified with Ehrlich, Ehrlich, with identified closely most perhaps is position extreme most and last That 5. at at 41. _F Id. Id. Id. Id. Id. Roscoe Pound, Tamanaha, As Tamanaha argues, to there doubt are the reasons empirical accuracy Tamanaha calls this “the mirror thesis.” Second, legal systems in the post-colonial world are as likely to have 11 12 13 14 15 16 17 DWARDS of the mirror thesis. Tamanaha disconnect between law and for society” at least three argues reasons. that there exists a “fundamental systems in existence today originated through imposition from outside were created or by imitation by local authorities to meet the threat posed by conquest from outside powers.” who maintained that law that does not mirror social norms “has lost its superior entitlement to the claim of being the law, and the label must be given back, or at least shared with the ‘living law,’ the actually society. order that norms” social lived very much like the mirror thesis in mind when he noted that in any conflict prevail. norms,norms eventually social social would and law between 22 03 - E been imposed by (or copied from) a foreign organically culture, from as the norms they of a are particular society to or grow culture. Tamanaha’s experience in Yap, Micronesia, where law had been transplanted from the United States, is illustrative: “The day-to-day behaviour of the people was not governed by state law, but by their own cultural norms. was maintained by sources other than Social state law. order They did not identify with the legal system in any way.” borne out in Stuart Banner’s careful studies of the interaction between systems may represent the interests economic systems, without reference to of the norms of a given society. those This who control in would happen a in society will the which not could popular be expressed political and democratically into law. As Tamanaha notes, strident the of these most views well-known is and the Marxist critique Marx of capitalist himself legal systems. described the expressed content will of of capitalist the privilege. its created that conditions law ruling as classes, merely designed the to reinforce the social mirror thesis has several distinct but closely related and lapping versions: sometimes “(1) over- as a historical matter, positive law evolved out of social a order controlled mostly by customs and positive habits; law (2) the norms content are of the practices; (3) positive products laws which are of, inconsistent with customs, usages or or derived habits from,will be ineffectual customs or illegitimate; and, and at the extreme, (4) habits, customs, and usages 37010-fiu_10-1 Sheet No. 15 Side B 11/13/2015 07:10:42 B 11/13/2015 15 Side Sheet No. 37010-fiu_10-1 37010-fiu_10-1 Sheet No. 16 Side A 11/13/2015 07:10:42 18 22 note 2, at 61. at 2, note supra 23 23 He rejects “the sense that the the that sense “the rejects He 20 ) 10/3/15 12:32 AM ELETE D Eugene Ehrlich, whose concept of “living law” law” “living of concept whose Ehrlich, Eugene 807 (1999). There was, until relatively recently, a trend in western western in trend a recently, relatively until was, There (1999). 807 OT 21 N O (D The Alignment of Law and Norms and Law of Alignment The at 88. In this context, though, it may be that Tamanaha is demanding too too demanding is Tamanaha that be may it though, context, this In 88. at NQUIRY Two Properties, One Land: Law and Space in Nineteenth-Century New Id. .I 19 DOCX OC _9.25. &S INAL AW at 132. at at 132. at 89 (arguing that the purpose of Ehrlich’s work “was to emphasize that positive law rules _F Id. Id. Id. As Tamanaha argues, “a great deal of economic-related legislation has no counterpart in in counterpart no has legislation economic-related of deal great “a argues, Tamanaha As Stuart Banner, , 24 L In this way, each counter-example to the mirror thesis seems to be an But perhaps Tamanaha’s critique does not so much dispute the mirror Third, legal systems may be created and maintained by legal As a result of these pervasive disconnects between the producers of 19 20 21 22 18 DWARDS M K mirror, mirror, but all that it reflects are the interests of those with it. shape the power to exception that suggests a useful rule: we might reason predict otherwise that, such as absent those discussed some above, and given sufficient time, the law will mirror Moreover, the by turning norms our of focus to the prediction, it culture makes from little difference which it emerges. thesis as modify it: what the generally, mirror reflects is but not the norms rather it. hogging The is of problem metaphorically, not that the law does not act as society the interests a mirror, but of rather that the mirror cannot the reflect what it cannot norms of a society mayin law not because be its reflected members have no see. privileged The few who access to the law, other than as its subjects. In the other words, law is still a are, evolve from more primitive to more sophisticated. As Tamanaha says, “If the evolutionary account has initial plausibility, it is the result of the primitive life fact was like, that and upon it the common plays notion that to, primitive (or and non-Western) society is stands Tamanaha, adult.” an to does child a as society Western) (or modern to relation in built upon, stereotypes of what diverge”). regularly customs social lived and legal scholarship to assume that legal systems that do not look are like based ours—that less on statutory and common law and more upon norm and custom—must be on their way to looking like ours, as they social customs.” He cites as examples “laws prohibiting monopolistic behavior” and social “law customs.” relating monopolistic to He behavior” the cites as examples “laws prohibiting regulation of securities.” exact a correspondence between norms and law. After all, law prohibiting monopolistic behavior may honesty. of norms in rooted be may securities regulating laws and fairness, of norms in rooted be Zealand was based upon the distinction between rules of conduct (based on custom) and rules of decision (based on positive law), would also likely predict that law. normsand between convergences the outweigh far “gaps” the 2014] Zealand. New as such countries systemsin legal indigenous and colonial 03 - E technocrats—lawyers and bureaucrats—who are guided by norms of their profession rather than their wider culture. Complex regulatory details for particular industries, after all, are unlikely to culture. particular be traceable to norms of a law and those governed by it, Tamanaha argues that ‘gaps’ between law and Tamanahalaw it, between by ‘gaps’ governed that those argues and law social norms are the rule, not exceptions. occurrence, it is still an aberrant or marginal normal state phenomenon of the law.” relative to the presence of a gap consists of a deviation, that even if it is a regular C Y 37010-fiu_10-1 Sheet No. 16 Side A 11/13/2015 07:10:42 A 11/13/2015 16 Side Sheet No. 37010-fiu_10-1 37010-fiu_10-1 Sheet No. 16 Side B 11/13/2015 07:10:42 . M K C Y NIV RIAN U S ’ OHN ANDBOOK OF H [Vol. 10:19 10:19 [Vol. .J T To Holmes, Holmes, To 25 , S The object of of object The XFORD 24 5 (2006). Tamanaha’s Tamanaha’s (2006). 5 O . 457 (1897). 457 . AW HE EV L T EGACY in L .L.R , 223 (1993). ULE OF ARV R 5 (2005). , Working Paper No. 763, 2008), http:// EALIST AW , 10 H 10 , L R 27 URISPRUDENCE J OMMONS OMMON C HREAT TO THE C :T HE ) 10/3/15 12:32 AM , The Realism of the ‘Formalist’ Age ND ., T E FIU Law Review Law FIU R The Path of the Law the of Path The ELETE ROBLEMS OF ROBLEMS Legal Philosophy in America ,J D P CHOLARLY S OT HE N O , T OLMES AW A New (and Better) Interpretation of Holmes’s Prediction Theory of Law L H (D REDICTION AND THE THE AND REDICTION P EANS TO AN Brian Tamanaha 555-6 (2009) (“If it was once subversive to think that extra-legal factors Brian Bix, Bix, Brian M OSNER DOCX or, as D’Amato describes, “the probability that [a] rule rule [a] that probability “the describes, D’Amato as or, See III. ENDELL 26 A. P (Aug. 2007), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=985083 (arguing Because the law is a means to an end, Holmes said, we can can we said, Holmes end, an to means a is law the Because W _9.25. CHOOL OF 23 but see AW AW AS A INAL .S L HILOSOPHY LIVER _F ICHARD P ,L NIV O Oliver Wendell Holmes, Jr., R D’Amato, Anthony It is difficult to believe now that the jurisprudence espoused by as staid a figure as Oliver Oliver as figure a staid as by espoused jurisprudence the that now believe to difficult is It .U Oliver Wendell Holmes is commonly identified as among the first of 24 25 26 27 23 W DWARDS MERICAN AMANAHA CHOOL OF achieving certain ends, designed and implemented their desires. by men according to the prominent American Legal Realists saying openly what many—but not all—may have privately thought: that the common law was not a reduction to words of the dictates of nature and logic, but merely a means of 7 (N Wendell Holmes was once considered radical, and that a vision of law that seems obvious might been have revolutionary. S T insight fully deconstructs that view into two strands: one that rights, the other that saw saw law as the “expression law or manifestation of commonly shared values,” a as type of the embodiment of natural refined custom embodying ancient shared values and created through common consent. The first view it. within comfortably fit modification, slight with can, second the vision; Realist the to antithetical is A 24 to not is aimThe rule. the or here exception the mirrorsare whether gaps or decide that question, but rather to analyze whether gaps between normspredictably. occur law and 03 - E vision of law: that it “is, in some sense, given; that the law is immanent; that the process of law-making is not one of creation but of discovery; that law is not the product of human will; that law has a kind of autonomy and internal integrity; that the law is, in some sense, objectively determined.” B persuasively that many legal scholars held “realist” views for an allegedly of formalist era, judicial and that the decision-making caricature of the that formalist era was were in some strawman remarkably ways a used by early Legal Realists to Tamanaha himself has argued that bring Holmes’s instrumental vision of their law stood in opposition to own formalist views into greater relief). Nonetheless, according to Posner, law itself was best understood not as a set of rules, but “simply a prediction of how state circumstances” power will be deployed in particular will be affirmed by a court in the future.” the in court a by affirmed be will predict its path: “the felt necessities of the political time, theories, intuitions the of prevalent public policy, moral avowed or and unconscious, even the prejudices which judges share with their fellow-men” would inevitably determine the path along which the law would develop. influence judicial decisions, it now seems naive to doubt it. . . . This view now seems so obvious and so much a matter of controversial.”); common sense that it hard to comprehend how it could have once been studying law, Holmes said, is to “The object of predict our study, then, is prediction, the its prediction of the incidence path in particular instances: of the public force through the instrumentality of the courts.” 37010-fiu_10-1 Sheet No. 16 Side B 11/13/2015 07:10:42 B 11/13/2015 16 Side Sheet No. 37010-fiu_10-1 37010-fiu_10-1 Sheet No. 17 Side A 11/13/2015 07:10:42 31 .L. AW 402, L Y ’ ARV OL .P , 29 H OC S at 48. But as as But 48. at HILOSOPHY OF P AW AND But like Holmes, Holmes, like But L in Harvard Law Review. 25 25 29 OF OF . UIDE TO THE HIL G P S ’ The Place of Logic in the Law . 61, 73 (2009) (describing as “the core claim EV Understanding Legal Realism The Path of the Law the of Path The LACKWELL RCHIVES FOR Varieties of New Legal Realism: Can A New World B L. R in , , 87 A ) 10/3/15 12:32 AM ORNELL ELETE D , 95 C It may also stem from the realists focus on the the on focus realists the from stem also may It Brian Tamanaha, Tamanaha, Brian OT 32 N O The early realists, in other words, saw prediction as a (D The Alignment of Law and Norms and Law of Alignment The note 29, at 10-11. 30 Law and Prediction quoted in DOCX American Legal Realism Other realists, such as torts scholar Leon Green, Green, Leon scholar torts as such realists, Other supra 28 50, 55 (Martin P. Golding and William A. Edmundson, eds., 2004). _9.25. Leiter, INAL Victoria Nourse & Gregory Shaffer, Shaffer, Gregory & Nourse Victoria HEORY _F T Brian Leiter, Leiter, Brian First a speech, later published under the title See who “they foresaw: Cohen Morris that error an to prey fallen have may realists regard, this In As Duxbury notes, Holmes’s conception of the use of prediction is intensely pragmatic: the the pragmatic: intensely is prediction of use the of conception Holmes’s notes, Duxbury As But it is striking how narrow Holmes’s conception of the use of The absence of prediction regarding what kinds of law might be EGAL See also 29 30 31 32 28 DWARDS L . 622, 638 (1916), M K EV Neither Neither Holmes nor his followers anticipate used the very prediction thing the as title of an his path most instrument of famous the to law work itself, promises: beyond the how a trier-of-fact was likely to case. of type or case decide any Green’s Green’s focus was trier-of-fact centric: he was concerned with predicting how a trier-of-fact would decide a case of a particular situation-type. Order Prompt A New Legal Theory? lawyer uses it to advise a conduct. particular client Neil Duxbury, about the likely consequences of a particular course of scorn the idea of the judge as a logical automaton are apt to fall into the opposite error of exaggerating as irresistible the force of bias or prejudice.” Morris Cohen, broadened broadened the focus of prediction from ‘situation-types’—in judge which harms to occur: e.g. “factual ‘surgical operations,’ ‘traffic scenarios—the and transportation’ and the like” to predict “patterns of torts decisions each for recurring situation-type that courts encounter.” Thus, the path of law information about the views of any particular judge was and the social milieu in essentially unpredictable in which the judge the existed. absence of scholarlycommons.law.northwestern.edu/facultyworkingpapers/163. D’Amato provocatively describes Holmes’s prediction theory as a “quantum theory;” as quantum mechanics describes the physical world as a consisting entirely of probabilities, so Holmes described law itself as consisting of probability, and more. nothing 2014] prediction is as a tool of jurisprudence. To Holmes, prediction calculate is a used rough probability to that a judge will decide a particular case in a particular way. 03 - E of realism that doctrine is necessary but insufficient to explain judging.”). insufficientbut necessary is judging.”). explain doctrine that to realism of R created by legislatures may also identified in stem particular with the work of in Jerome Frank, who argued that part the from a judge. the of idiosyncrasies and predilections the follow would law of path strand of realism means means to anticipate understanding of how and why law exists and changes as it adjudicatory does. This may outcomes, rather be the result than of the realists’ to almost singular focus than on on test statutes. common This absence law is striking, rather because our the path of the law writ large depends much more upon the decisions of legislatures than of courts, even if the courts act simultaneously as instruments of law’s interpretation enforcement.and AND 409. C Y 37010-fiu_10-1 Sheet No. 17 Side A 11/13/2015 07:10:42 A 11/13/2015 17 Side Sheet No. 37010-fiu_10-1 37010-fiu_10-1 Sheet No. 17 Side B 11/13/2015 07:10:42 M K C Y see also But, as as But, OUNDATIONS F 36 [Vol. 10:19 10:19 [Vol. . 731, 782 (2009); EV HILOSOPHICAL Indeed, prediction is is prediction Indeed, P 37 in .L.R , , realists have placed coerciveness at EX , 87 T Clients, after all, do not usually care care usually not do all, after Clients, 34 33 Restitution’s Realism The Path of the Law ) 10/3/15 12:32 AM FIU Law Review Law FIU ELETE D OT They wrote of the need for “empirical testing: testing: “empirical for need the of wrote They N 35 O Understanding Legal Realism Hanoch Dagan, Dagan, Hanoch (D note 29, at 29. note 28, at 411. at 28, note note 28, at 411. at 28, note 54 (“Since Holmes’s DOCX note 29, at 3. As Leiter notes, however, for most realists the “commitment to to “commitment the realists most for however, notes, Leiter As 3. at 29, note In other words, prediction was turned outward, focusing focusing outward, turned was prediction words, other In supra see also 38 supra supra _9.25. supra INAL Leiter, at 51. at NRICHMENT at 418; 418; at note 29, at 8. _F E See Id. Id. Duxbury, Leiter, Duxbury, Id. Brian Z. Tamanaha, Tamanaha, Z. Brian supra Second, and more pertinent for purposes of this article, scholars such Other Other realists, following in Holmes’s path, imagined broader uses for Public choice theory (including critical legal theory) has at its core a 33 34 35 36 37 38 DWARDS NJUST U apprised of the likely consequences. Thus law merely could to be punish unwanted designed conduct, but to finely not tuned to prevent it, if state could the predict the correct quantum of potential punishment required to conduct. potential client’s the deter prediction in the study of law. predict a First, judge’s if interpretation of it the law, was and thus true the consequences that of a a particular course of conduct for his client, then it was also true lawyer that the state might might predict the that likelihood the client would engage in that conduct if as John Bingham considered the use of prediction as a means for the social- scientific study of law. hypotheses had to be tested against observations of the world.” OF ‘science’ and ‘scientific methods’ was more a matter of practice.” rhetoric and metaphor than actual scholarly Leiter, quoted in Tamanaha explains, just as scholars of the so-called formalist internal age logic weren’t as so we enamored now of the portray law’s them, so too reasoning as early we now realists imagine were them. not As Roscoe as Pound wrote, scornful “It of is just traditional as extent unreal legal to to which refuse legal to see technique, the with all its faults, applied to authoritative their legal defects, materials, keeps with down all the of logical or irrational element or holds it to tolerable limits in practice.”, 26 problem of properly advising clients, based on judge will predictions do about in a what particular case. a 03 - E the center of their conception of law.”). law.”). of conception their of center the about the historical sweep of the law writ about large—theythe historical sweep of the law care about winning or losing a particular case, time. in point particular a at conduct of course particular or about engaging in, or not engaging in, a Duxbury argues, realists such as Bingham also seem to have had in mind a particular and limited end for the deployment of prediction as tool: a “increased scientific legal certainty and social control.” pragmatic social engineer, a means by social control.” which to achieve more effective not on the development of law itself but on the law’s anticipated effect on subjects. its of behavior the predictive belief: distrustful of the political process, it predicts that capture by powerful interests will produce legislation that serves those interests. treated less as a means of scientific study and more as “a tool of the 37010-fiu_10-1 Sheet No. 17 Side B 11/13/2015 07:10:42 B 11/13/2015 17 Side Sheet No. 37010-fiu_10-1 37010-fiu_10-1 Sheet No. 18 Side A 11/13/2015 07:10:42 supra . 175 (2003); However, However, EV 39 . 61, 112 (quoting .R Among those those Among EV 40 CON . 1227 (2003); Christine L. R .E 373 (1995) (“A further further (“A (1995) 373 EV . 1471 (1998). Because of M Nourse and Schaffer, Schaffer, and Nourse 27 27 EV See ORNELL .U.L.R .L.R W TAN ,95 C ,95 S URISPRUDENCE J , 97 N , 50 MERICAN 41 A L.J. 454, 462 (1909)). 462 454, L.J. ) 10/3/15 12:32 AM ALE ELETE D ATTERNS OF OT , 18 Y 18 , N Varieties of New Legal Realism ,P O (D The Alignment of Law and Norms and Law of Alignment The DOCX UXBURY D , Cass R. Sunstein, Moral Heuristics and Moral Framing, 88 Minn. L. Rev. 1556 _9.25. The Endowment Effect and Legal Analysis EIL Liberty of Contract of Liberty Milton Friedman, The Methodology of Positive Economics, in Essays in Positive Positive in Essays in Economics, Positive of Methodology The Friedman, Milton N INAL _F A Behavioral Approach to Law and Economics See See See, e.g. Nourse and Schaffer, Schaffer, and Nourse However, behavioral economics adherents have fallen short in their their in short fallen have adherents economics behavioral However, 42 Because the assumptions of the neoclassical law and economics model 40 41 42 39 DWARDS M K cognitive psychology its proponents have been able to identify some limited instances in which actors will behave predictably irrationally, they have not been able to explain a great deal of seemingly irrational behavior. Second, like the law and economics model itself, behavioral economics is “micro” in its focus on the motives of individual actors; it does level not offer “macro” predictions other than predictions. as the assumed Third, agglomeration neoclassical predecessor the use of prediction as of an outward looking tool: it behavioral “micro” law and economics shares with its efforts to comprehensively address the shortcomings of the neoclassical law and economics model in at least three ways. First, although through are unlikely, they call into question Critics of the model, the such as those within the behavioral economics predictive school, power of the have attempted model. to adjust its assumptions by showing that actors cannot be assumed to be rational, and in fact will behave ways. irrationally in predictable the assumptions upon which the neoclassical law and economics model is based, and which thus empower smack it moreto predict, of formalism than realism in that they seem contentedly divorced from reality. Jolls et al., Economics 4 (1953) (describing the assumption of rational self-interest as “a system of generalizations about predictions correct make consequencescircumstances”). to the in used change be any can of that 2014] Similarly, neoclassical law-and-economics is at its heart a predictive theory. as Assuming, it that does, an that it s/he will is actor is rational, predictable choose to act in a particular way in response to certain stimuli. 03 - E and Schaffer aptly point out, these assumptions call forth Roscoe Pound’s famous denunciation of “rigorous logical deduction from predetermined formalist conceptions in disregard of legal theory facts.” actual of teeth the in often and as being based upon assumptions: that actors behave rationally, that rational actors act in a way that maximizes their wealth, that markets composed of individual rational actors acting to maximize their wealth are self-correcting and express desires of the a society without the necessity of state intervention. As Nourse Russell Korobkin, this insight, behavioral law and economics adherents tend to countenance a greater role for the state than their neoclassical forebears. If we acknowledge that they will behave irrationally in predictable ways, then private transactions are unlikely cannot assume that people behave to rationally, produce an optimal result; the corrective force of the and state is needed. in fact must 109. at 41, note Roscoe Pound, Roscoe common criticism of the rational self-interest thesis is that it is clearly contradicted by reality.”). reality.”). by contradicted clearly is it that is thesis self-interest rational the of criticism common (2004); Richard H. Thaler & Cass R. Sunstein, Libertarian Paternalism, 93 A C Y 37010-fiu_10-1 Sheet No. 18 Side A 11/13/2015 07:10:42 A 11/13/2015 18 Side Sheet No. 37010-fiu_10-1 37010-fiu_10-1 Sheet No. 18 Side B 11/13/2015 07:10:42 M K C Y Rather, Rather, 47 [Vol. 10:19 10:19 [Vol. Moreover, these these Moreover, 44 More importantly, importantly, More . 492, 492 (1940) (“The ability (“The (1940) 492 492, . 43 CI S OF . HIL , 7 P 7 , It is somewhat startling, then, to to then, startling, somewhat is It 45 ) 10/3/15 12:32 AM FIU Law Review Law FIU ELETE D OT N O note 5. (D But that view is notably lacking in the nuance that is is that nuance the in lacking notably is view that But Prediction in the Social Sciences Social the in Prediction 46 note 38, at 3. at 38, note 4. at 38, note DOCX supra _9.25. supra supra . at 494 (1940) (“[U]nsuccessful prediction” is useful because “until we attempt to INAL Tushnet, at 4. at At the same time, however, a realistic view of law necessarily necessarily law of view realistic a however, time, same the At _F 48 Id. Oscar Kaplan, id See Dagan, See Dagan, The potential uses of prediction as a tool of jurisprudence are more The law and society movementways represents the best of in the many I suspect that this is the result of two influences within the law and 43 44 45 46 47 48 DWARDS where the path of law deviates from its predicted course, we may identify be the able operation of impediments to that course. realists argue that law “is also a real—albeit forum elusive—constraints. . . on the exercise of state of power. Law is reason, and that reason poses never only about interest or power politics; it is also an exercise in reason- giving.” predict, we have no way of knowing whether all the operative variables are under are variables operative the all whether knowing of observation.”). way no have we predict, 28 is used to subject predict in the response behavior to of law, law’s but not to lawthe of itself. path the expansive than that. Prediction is useful as a means of testing the quality of our understanding of law prediction of the path of the law writ large suggests—but certainly and does not legal systems. establish—that our More understanding or of various the less forces systematic accurate that relationship influence that among path is accurate. 03 - E supposed to characterize both legal realism and law and society scholarship. As Hanoch Dagan writes, legal realism rejects the reductive image of law, which portrays it “as sheer power (or interest, or politics).” to predict events within its field indicates that a science has reached a high level of development, that its other.”). each to relationship systematic in stand facts essential impedimentsmay themselves predictably. arise continuing legal realist tradition. methodologies, It the addresses core directly, of by the a legal institution variety realist idea—that of law distinguished is a constitutive “going yet by irresolvable tensions: between power the and reason, and craft, science and tradition difficult and progress.” accommodation of three develop in whatever way best serves the interests of those who capture the power to make it. see that law and society scholars have not made greater use of prediction as law. the of path the understanding for tool a society movement. First, for prediction may critical be implicit and within the foundations other of their theory: public law will choice theorists, focus, then, of predicting law’s path is not to assume that it with always requires skepticism that “reason exclude can all displace force interest, except or that coerciveness that are deemed of law to coexist the in can any credible better account of . argument.. . law.” The [R]eason and 37010-fiu_10-1 Sheet No. 18 Side B 11/13/2015 07:10:42 B 11/13/2015 18 Side Sheet No. 37010-fiu_10-1 37010-fiu_10-1 Sheet No. 19 Side A 11/13/2015 07:10:42 . OC Social &S The The PPROACH A 50 AW (2005). 52 , 15 L . 429, 429 (2008). CI ROJECTS P .S HIL 29 29 .J.P NTHROPOLOGICAL A RIT N :A , 59 B NTHROPOLOGICAL :A ROCESS AW P L Interpretive Sociolegal Research IFE OF IFE AW AS L note 41, at 85 (“the measure success of of many studies is HE ,L ) 10/3/15 12:32 AM ,T supra ELETE OORE D M ADER Used in this way, prediction provides a helpful helpful a provides prediction way, this in Used OT N 51 N O ALK F (D 69, 69 (1996). In other words, predictivism holds that a theory that that theory a that holds predictivism words, other In (1996). 69 69, The Alignment of Law and Norms and Law of Alignment The AURA On the Predilections for Predictions This ethnographic, anthropological focus does not lend lend not does focus anthropological ethnographic, This L 49 DOCX ALLY , S RKENNTIS _9.25. see also see Nourse and Schaffer, Schaffer, and Nourse .; INAL , 45 E _F See, e.g. But see See id See In this sense, prediction is distinct from the epistemological concept known as predictivism. predictivism. as known concept epistemological the from distinct is prediction sense, this In 135 (1990). Second, law and society has embraced study of the law from “the In particular, when there exists a gap between law and norms, we can To answer that objection, it is important to emphasize that the utility of 52 49 50 51 DWARDS M K NQUIRY relevant information. relevant not ‘prediction’ and verification (indeed, it can be viewed as the measure opposite is discovery.”). As I understand of Nourse and Schaffer, they use the term prediction). “prediction” to mean a Rather, the tool used to verify a theory, whereas “discovery” means the uncovering of previously-not-contemplated, (1978); Christine Harrington and Barbara Yngvesson, Predictivism, according to Eric Barnes, “hold that, where evidence E confirms theory T, E confirms T more strongly when E is predicted on the basis of T and subsequently confirmed than when E is known in advance of T’s formation and ‘used,’ in some sense, in the formulation Predictivism of T.” Eric Barnes, What is not controversial, however, is the use of prediction as a tool for promoting the discovery of new data. In my use of the terms, legal ethnographers would be justified in rejecting predictivism, but not in data. new of discovery the promotes that tool a as prediction of use the rejecting itself well to grand theories that predict behavior, rather, which the are then close tested; study of behavior is used to construct theory. I 2014] follow the path of reason, or the path of power. Neither alone can account law’spath. for bottom up,” focusing not on the law writ large but on the lives of those who live in its shadow. 03 - E verifies the accuracy of a theory, other than rarely and incidentally. and rarely than other theory, a of accuracy the verifies complement to the inductive, bottom-up hypothesis formation characteristic of ethnographic research. Prediction temporarily, to Thus a it particular can position. tell us where we are wrong necessarily commits us, and however suggest where we should dig to find out why. It is not a tool that attempt to predict when law will change to reflect norms, and when it will not. That will allow us to test our understanding of the relationship prediction—as a tool for understanding the forces that determine the path of the law—is not dependent upon the accuracy of its utility forecasts. lies in revealing where Rather, unforeseen variables its are at work, so that our understanding of the forces that determine sense, prediction law’s is path more deepens. useful, and thus In successfully, has this been where used as it a tool is moreinaccurate in others. Prediction, as we should use the term, is simply accurate a tool in its that promotes discovery. forecast in some ways, and imposition of a theory that is expected to may subjects seempresumptuousimperialistic. both and describe the behavior of law’s accurately predicts behavior is more valuable accumulated evidence. The central tenet than of predictivism, that “correctly predicting a data confers greater theory constructed confirmation” post-hoc, on on a the theory than basis merely of “accommodating data” controversy. David Harker, within it, is a matter of considerable C Y 37010-fiu_10-1 Sheet No. 19 Side A 11/13/2015 07:10:42 A 11/13/2015 19 Side Sheet No. 37010-fiu_10-1 37010-fiu_10-1 Sheet No. 19 Side B 11/13/2015 07:10:42 M K C Y [Vol. 10:19 [Vol. HESIS T IRROR M ) 10/3/15 12:32 AM FIU Law Review Law FIU ELETE D OT N O REDICTION AND THE AND REDICTION (D P DOCX IV. _9.25. INAL _F It is worth predicting that as a society’s norms change, a change in law For purposes of this discussion, I need to define some terms. “Formal As we know, according to the mirror thesis, law should evolve to align DWARDS 30 order. social produces their interaction how norms,and and law between it may (though to be it accurate is likely because not follow, eventually will be), but because it is useful. Even if we start with the artificial presumption that law will follow and reflect circumstances norms, we under might which be it able will to happen, which predict it will and the not. the Nor is circumstances this a under prescriptive claim that not. why not, norms;simplyif whethersocial it and asks does, it not law or should mirror 03 - E liability that may be imposed by private actors through the facility of a state institution. An “informal sanction” is without a the facility of state institutions. “Illegal behavior” cost is behavior that imposed by private actors, is may behavior” be to subject acceptable a formal sanction. “Normatively behavior that most unobjectionable. people “Normatively in objectionable. unacceptable find polity or society community, a behavior” in people a most is community, behavior that society, or polity From society. of sensibilities normative the mirrors find law that so norms, with that premise, the simple model below predicts that law change should law” is law (including rules product of judicial decision-making. A “formal sanction” is either a penalty and regulations) that is that codified may or be is imposed the by the state pursuant to its police power, or legal 37010-fiu_10-1 Sheet No. 19 Side B 11/13/2015 07:10:42 B 11/13/2015 19 Side Sheet No. 37010-fiu_10-1 37010-fiu_10-1 Sheet No. 20 Side A 11/13/2015 07:10:42 31 31 This type of mutually mutually of type This 53 ) 10/3/15 12:32 AM ELETE D OT N O (D The Alignment of Law and Norms and Law of Alignment The note 2, at 7. at 2, note DOCX supra _9.25. INAL _F Tamanaha, First, the legality of a behavior is often taken as a strong signal of its A subtler model would likely recognize that changes in law and 53 DWARDS M K produced changes in normative acceptability first acceptability, produced changes in law. or But regardless of which changes came in first, there normative is no reason to think this normsaligned. lawand are until continue mutually reinforcing cycle does not reinforcing dynamic makes it very chicken difficult and egg to of change: differentiate it between is hard the to say whether changes in law first two reasons. reasons. two social acceptability. An authoritative declaration that a may behavior be understood is by the legal general populace as a strong indicator that behavior the both is, and authoritative declaration that ought a behavior is illegal may be understood by the to be, socially general populace acceptable. as a strong indicator that the behavior both Similarly, is, and ought an to be, socially unacceptable. reformingor opposing in lead the customsprevailing taken moralor norms” As Tamanaha notes, “law has and sometimes “has a role in shaping customs and morality.” 2014] following changes in normative acceptability of behaviors. If behavior that was socially acceptable becomes socially unacceptable, that should prompt a should change in law Similarly, as if well, so behavior that unacceptable, the that that behavior should was becomes prompt illegal. socially a behavior change becomes acceptable in illegal. law becomes On as turn (eventually) then should it the top, to bottom or bottom, to top from well, moves socially model, so that that means that the if a too. corner, the behavior changes in norms can become mutually reinforcing. That is true for at least 03 - E C Y 37010-fiu_10-1 Sheet No. 20 Side A 11/13/2015 07:10:42 A 11/13/2015 20 Side Sheet No. 37010-fiu_10-1 37010-fiu_10-1 Sheet No. 20 Side B 11/13/2015 07:10:42 M K C Y [Vol. 10:19 10:19 [Vol. But as both the 54 ) 10/3/15 12:32 AM FIU Law Review Law FIU ELETE D OT N O (D DOCX _9.25. INAL _F Former U.S. state constitutional amendments banning same-sex unions, https:// unions, same-sex banning amendments constitutional state U.S. Former We We can observe the actually mirror thesis in action: changes in limits As the data compiled from Gallup and Pew polls below shows, Second, law obeying is often considered a normative good in itself, 54 DWARDS legal retrenchment. recognized Between the rights of 1998 same-sex couples, 30 and states passed amendments constitutional 2008, banning recognition of same-sex as marriages. some state courts may be socially unacceptable. unacceptable. socially be may of normatively acceptable behavior sometimes, eventually, produce changes in law as well. marriage. Consider, for example, the legalization of of people the between same has marriage gender moved from same-sexlargely being socially unacceptable in acceptable. That movement was clear but the neither unimpeded nor sudden. It United States seems to beyond being doubt that largely regarding same-sex the marriage socially was process sometimes mutually of reinforcing, other but normative times at the and movement of legal normative acceptability change was in defiance of regardless of the content of the law. acceptability of the Therefore, underlying behavior at regardless issue, engaging of in it unlawfully the social en.wikipedia.org/w/index.php?title=Former_U.S._state_constitutional_amendments_banning_same- 2015). 18, Aug. visited (last sex_unions&oldid=676612040 Pew and Gallup polls indicate, by sometime around acceptability 2011, of the normative same-sex marriage had definitively that changed; a behavior had once been squarely within the lower-right, normatively 32 03 - E 37010-fiu_10-1 Sheet No. 20 Side B 11/13/2015 07:10:42 B 11/13/2015 20 Side Sheet No. 37010-fiu_10-1 37010-fiu_10-1 Sheet No. 21 Side A 11/13/2015 07:10:42 U.S. (Jul. 17, 2015), http:// 2015), 17, (Jul. 33 ALLUP , G ) 10/3/15 12:32 AM ELETE D OT N O (D The Alignment of Law and Norms and Law of Alignment The DOCX _9.25. INAL _F In response to the question, “Do you think marriages between same-sex couples should or or should couples same-sex between marriages think you “Do question, the to response In 55 55 DWARDS M K should be not recognized by Support the law for as valid, with Gay the same rights Marriage as traditional marriages?” Stable after High Court Ruling www.gallup.com/poll/184217/support-gay-marriage-stable-highcourt-ruling.aspx. Gallup. 2014] unacceptable / illegal quadrant of the model, to the upper-right, normatively quadrant. illegal / acceptable 03 - E C Y 37010-fiu_10-1 Sheet No. 21 Side A 11/13/2015 07:10:42 A 11/13/2015 21 Side Sheet No. 37010-fiu_10-1 37010-fiu_10-1 Sheet No. 21 Side B 11/13/2015 07:10:42 M K C Y [Vol. 10:19 [Vol. ) 10/3/15 12:32 AM FIU Law Review Law FIU ELETE D Note that occasionally changes in normative normative in changes occasionally that Note 57 OT N O (D DOCX _9.25. INAL _F Compilation of Pew Research Center polls in response the question “Do you strongly favor, favor, strongly you “Do question the response in polls Center Research Pew of Compilation Obergefell v. Hodges, 135 S. Ct. 2584(2015). The mirror thesis would predict that over time, following a change in 56 56 57 DWARDS acceptability can provoke not merely a change in law but even a change in understanding about fundamental movement rights. from the lower-right As provokes a quadrant further movement the from to the upper-right quadrant model the to the well.as quadrant left upper- upper-right predicts, quadrant a favor, oppose or strongly http://www.pollingreport.com/civil.htm. PollingReport.com, oppose allowing gays and lesbians to marry legally?” compiled by the normative or social intervening acceptability factor, of law should a change behavior, observable as in the and context well. of same-sex marriage. absent Four That years some after change a sex same- marriage is became clearly normatively acceptable, the United Court States Supreme itself recognized that protected right same-sex to marry. couples have a constitutionally Pew. 34 03 - E 37010-fiu_10-1 Sheet No. 21 Side B 11/13/2015 07:10:42 B 11/13/2015 21 Side Sheet No. 37010-fiu_10-1 37010-fiu_10-1 Sheet No. 22 Side A 11/13/2015 07:10:42 35 ) 10/3/15 12:32 AM ELETE D OT N O (D The Alignment of Law and Norms and Law of Alignment The DOCX _9.25. INAL _F Compilation of Pew Research Center polls in response the question “Do you think the use of of use the think you “Do question the response in polls Center Research Pew of Compilation The legalization of medical marijuana use shows a similar pattern. 58 58 DWARDS M K marijuana should be made legal, or not?” compiled by PollingReport.com, http:// Pew. Throughout the 1990s and 2000s a medicalof marijuana legalization opposed use. respondents vast but ever-narrowing majority of 2014] 03 - E C Y 37010-fiu_10-1 Sheet No. 22 Side A 11/13/2015 07:10:42 A 11/13/2015 22 Side Sheet No. 37010-fiu_10-1 37010-fiu_10-1 Sheet No. 22 Side B 11/13/2015 07:10:42 M K C Y 60 [Vol. 10:19 [Vol. ) 10/3/15 12:32 AM FIU Law Review Law FIU ELETE D OT N O (D DOCX _9.25. INAL _F Compilation of Gallup Polls in response the question “Do you think the use of marijuana marijuana of use the think you “Do question the response in Polls Gallup of the for support using am Compilation I analysis this of purposes for here: important is caution of note A 59 Sometime around 2011 support for legalization moved into the 59 60 DWARDS should be made drugs.htm. legal, or not?” compiled by PollingReport.com, legality http://www.pollingreport.com/ of marijuana use as a proxy for theproxy. normative acceptability Certainly another of interpretation marijuana of the use, data but is possible: it that is support only for legalization a represent a use. marijuana of acceptability normative the in change a to opposed as politics, in turn libertarian more Gallup. majority, and law followed in Colorado among other jurisdictions. other among Colorado in followed law and majority, www.pollingreport.com/drugs.htm. 36 03 - E 37010-fiu_10-1 Sheet No. 22 Side B 11/13/2015 07:10:42 B 11/13/2015 22 Side Sheet No. 37010-fiu_10-1 37010-fiu_10-1 Sheet No. 23 Side A 11/13/2015 07:10:42 37 37 ALVES V RESSURE P ) 10/3/15 12:32 AM ELETE D OT N ULWARKS AND ULWARKS O B (D The Alignment of Law and Norms and Law of Alignment The V. DOCX _9.25. INAL _F Bulwarks buttress law against pressure to change, despite a gap Capture i. One bulwark against legal change is capture of the mechanisms of DWARDS M K 2014] 03 - E capitalist legal systems (or rather, the Marxist critique fits neatly within the idea of public choice theory). Using our simple model, this this: like look would phenomenon A. Bulwarks A. between law and social norms. Because of normatively unacceptable nonetheless bulwarks, remain legal. Broadly, behaviors there are two that are types of bulwarks: political capture rights. and the protection of fundamental change by those highly motivated to prevent it. Success for them means a persistent misalignment of law and norms. choice theory that is quite This similar in is many ways a to the Marxist version critique of of public C Y 37010-fiu_10-1 Sheet No. 23 Side A 11/13/2015 07:10:42 A 11/13/2015 23 Side Sheet No. 37010-fiu_10-1 37010-fiu_10-1 Sheet No. 23 Side B 11/13/2015 07:10:42 , , , M K C Y COM COM . , ABA .CNN. HEAPAIR [Vol. 10:19 10:19 [Vol. ONEY s, C M Tickets purchased purchased Tickets 61 ) 10/3/15 12:32 AM However, many passengers are unaware of of unaware are many passengers However, Why in the World do Airlines Overbook Tickets? 64 FIU Law Review Law FIU ELETE D The Obligations of Airlines and the Rights of Passengers The fear of overbooking allows airlines to up- to airlines allows overbooking of fear The OT 62 N O (D DOCX 63 _9.25. Sabri Ben-Achour, Ben-Achour, Sabri Alexander Anolik, Anolik, Alexander INAL _F See When to Buy Airline Tickets—Based on 1.5 Billion Airfare See Want a Seat Assignment on Delta? It Could Cost You. See See , Aug. 12, 2015, http://www.americanbar.org/groups/gpsolo/publications.html. 2015, 12, Aug. , Overbooking flights is very profitable for airlines. Consistent outrage over airline industry practices such as overbooking Passengers who are involuntarily bumped are entitled to cash 61 62 63 64 DWARDS OURNAL many many weeks in advance of a flight therefore, tickets purchased by overbooking, shortly airlines before a flight; are often much less expensive than can sell the same seat to different passengers at different rates and obtain a higher price for the seat. those regulations, and airlines routinely avoid compensating involuntarily www.marketplace.org/topics/business/why-world-do-airlines-overbook-tickets. J a deal.’ Passengers consistently indicate bewilderment and outrage when thesold have sameairlines person. more that to one discover seat than they flights and subsequently ‘bumping’violation of a deeply held norm—which might be characterized as ‘a deal is passengers seems to indicate the 38 03 - E www.cheapair.com/blog/travel-tips/when-to-buy-airline-tickets-based-on-1-5-billion-airfares/ www.Money.cnn.com/2015/08/19/pf/delta-basic-economy-tickets/. compensation under Department regulations of Transportation. promulgated by the United States sell to customers who are willing to pay extra to eliminate the risk that they bumped. be will 37010-fiu_10-1 Sheet No. 23 Side B 11/13/2015 07:10:42 B 11/13/2015 23 Side Sheet No. 37010-fiu_10-1 37010-fiu_10-1 Sheet No. 24 Side A 11/13/2015 07:10:42 Moreover, Moreover, 66 It seems clear clear seems It 68 39 39 Lacking other recourse, recourse, other Lacking 67 ) 10/3/15 12:32 AM ELETE D OT N O note 64 (“Insulation from state consumer protection laws, inefficient (D The Alignment of Law and Norms and Law of Alignment The (May 21, 2015, 12:37 PM), http://nymag.com/daily/intelligencer/2015/05/man- DOCX supra _9.25. A person who is bumped voluntarily is not entitled to any form form any to entitled not is voluntarily bumped is who person A AGAZINE Anolik, INAL Jessica Roy, Man Strips Naked in Protest after Being Bumped from Jamaica-Bound Jamaica-Bound from Bumped Being after Protest in preempts law Naked federal that (holding (1992) 374 U.S. 504 Airlines, Strips World Trans v. Morales Man Roy, Jessica 65 M _F Id. See See See The practice remains perfectly legal despite its apparent normative 65 66 67 68 DWARDS M K protests-overbooked-flight-by-stripping.html#. that if it were not for the considerable influence of the airline industry, the normative unacceptability of the mostunder circumstances. unlawful declared practice would have led to it being enforcement of federal law, and Congress’s refusal compensation.”). without year after year services cut to carriers to pass a Passenger Rights Bill has allowed air services). airline regulate to states by attempts any Flight, N.Y. passengers have no private right regulation, and of state action law is under entirely preempted. either federal law or 2014] bumped passengers by soliciting volunteers who are vouchers. offered inexpensive 03 - E of compensation. werethey bumped.if involuntarily would compensation they than Thus most bumped volunteers receive much unacceptability, less and despite several efforts at legal reform. some passengers have taken extreme measures in protest. C Y 37010-fiu_10-1 Sheet No. 24 Side A 11/13/2015 07:10:42 A 11/13/2015 24 Side Sheet No. 37010-fiu_10-1 37010-fiu_10-1 Sheet No. 24 Side B 11/13/2015 07:10:42 M K C Y as a a as [Vol. 10:19 10:19 [Vol. In 1990, however, in in however, 1990, In Texas v. Johnson 70 In the years following, following, years the In 71 The general outrage generated by the the by generated outrage general The 69 ) 10/3/15 12:32 AM FIU Law Review Law FIU ELETE D , the United States Supreme Court struck the Act OT N O (D DOCX _9.25. INAL _F Texas v. Johnson, 491 U.S. 397 (1989). Flag Protection Act, 18 U.S.C.A. § 700. United States v. Eichman, 496 U.S. 310 (1990). ii. Protection of Fundamentalof Rights Protection ii. A second bulwark against the movement of law to align with norms is One example of these phenomena might be American flag burning. It 69 70 71 DWARDS 40 03 - E United States v. Eichman down as a violation of the First Amendment. desecration of the American flag at the federal level. decision placed enormous pressure on Congress to change law to align with norms. In 1989, Congress passed the Flag Protection Act, criminalizing the Gallup polls show that Constitutional between amendment 1995 banning flag and desecration 2006 never public dipped below support for a violation of the First Amendment. the protection of fundamental rights by courts. important In duty many courts perform ways, is the the most defiance of the courts popular are so engaged, will. they act as bulwarks against the When alignment of norms law. and seems beyond question that in the unacceptable to burn the United American flag. Forty-eight states had passed laws States it is generally socially making it illegal to desecrate the American struck flag down by before the United such States Supreme laws Court in were 37010-fiu_10-1 Sheet No. 24 Side B 11/13/2015 07:10:42 B 11/13/2015 24 Side Sheet No. 37010-fiu_10-1 37010-fiu_10-1 Sheet No. 25 Side A 11/13/2015 07:10:42 41 41 Only thirteen percent percent thirteen Only 73 Most Americans would Give Old Glory ) 10/3/15 12:32 AM ELETE However, because the Supreme Court has has Court Supreme the because However, D 72 OT N O (D The Alignment of Law and Norms and Law of Alignment The http://www.nytimes.com/interactive/2015/06/01/us/politics/document-poll-may- DOCX _9.25. , http://www.gallup.com/poll/3739/Most-Americans-Would-Give-Old-, INAL _F available at The New York Times / CBS News Poll, May 28-31, 2015, in response to question 34, 34, question to 1999, 6, response July in Trends, 2015, Social 28-31, and May Religion Poll, Gallup News CBS / Times York New The Another example might be campaign finance law. As the data below 72 73 DWARDS M K 28-31.html?_r=0. “Which of the following three statements comes closest to political campaigns expressing are funded your in overall the United view States: 1) of On the the whole, way the system campaigns works pretty for well and only funding minor changes are political necessary to make it work better. 2) There are some good things in the system for funding political campaigns but fundamental changes are needed. 3) The system for funding political campaigns has so rebuild it.”, much wrong with it that we need to completely poll released in June 2015, zero campaign finance percent law did not of require any respondents change. thought current acted to protect fundamental persists. Unless support rights, grows, proponents of aligning law with the norms are gap unlikely between to succeed law in and obtaining the norms super-majority amendment.Constitutional necessary to enact a shows, there can be campaign no finance is doubt fundamentally unfair. that In a most CBS / Americans New York think Times the law of 2014] fifty-five percent, clearly normatively unacceptable. indicating that flag desecration remained 03 - E thought minor changes were needed; 39% said fundamental changes were needed; and fully forty-six percent said rebuilt. the Even entire more astonishing system is needed that these to conducted. been has extremepoll the years 18 the for consistent quite numbers be have been Legal Protection Legal Glory-Legal-Protection.aspx. C Y 37010-fiu_10-1 Sheet No. 25 Side A 11/13/2015 07:10:42 A 11/13/2015 25 Side Sheet No. 37010-fiu_10-1 37010-fiu_10-1 Sheet No. 25 Side B 11/13/2015 07:10:42 M K C Y [Vol. 10:19 [Vol. ) 10/3/15 12:32 AM 74 FIU Law Review Law FIU ELETE D OT N O (D DOCX _9.25. INAL _F Id. In particular, respondents overwhelmingly felt that in order to make 74 DWARDS elections in the United States fairer, there should be limits imposed on the amount on money that both campaigns. individuals and groups could contribute to New York Times / CBS News Poll. News CBS / Times York New 42 03 - E 37010-fiu_10-1 Sheet No. 25 Side B 11/13/2015 07:10:42 B 11/13/2015 25 Side Sheet No. 37010-fiu_10-1 37010-fiu_10-1 Sheet No. 26 Side A 11/13/2015 07:10:42 43 http://www.nytimes.com/interactive/2015/06/ available at ) 10/3/15 12:32 AM ELETE D OT 75 N O (D The Alignment of Law and Norms and Law of Alignment The 76 DOCX _9.25. INAL _F The New York Times / CBS News Poll, May 28-31, 2015 in response to question 38, 38, question to response in 2015 “Which 36, 28-31, question to response in 2015 28-31, May Poll, News CBS / Times York New The May Poll, News CBS / Times York New The 75 76 DWARDS M K NYTimes / CBS News poll. News CBS / NYTimes 2014] 03 - E one of the following two positions on campaign financing do you favor more: Limiting the amount money of individuals can contribute to political campaigns, or allowing individuals to contribute as much money to political campaigns as they’d like?, NYTimes / CBS poll. CBS / NYTimes 01/us/politics/document-poll-may-28-31.html. C Y 37010-fiu_10-1 Sheet No. 26 Side A 11/13/2015 07:10:42 A 11/13/2015 26 Side Sheet No. 37010-fiu_10-1 37010-fiu_10-1 Sheet No. 26 Side B 11/13/2015 07:10:42 M K C Y [Vol. 10:19 10:19 [Vol. Citizens Citizens United In its its In 77 http://www.nytimes.com/interactive/2015/06/01/us/ 78 ) 10/3/15 12:32 AM FIU Law Review Law FIU available at ELETE D OT N decision, many might have said the bulwark bulwark the said have might many decision, O People’s behavior is often bounded by the limits of of limits the by bounded often is behavior People’s (D note 2, at 145. at 2, note 79 DOCX supra _9.25. INAL _F Id. Citizens United v. FEC, 558 U.S. 310 (2010). Tamanaha, Citizens Citizens United In addition to bulwarks, there are “pressure valves” that can relieve the The first phenomenon is the non-enforcement of law against behaviors So: if vast majorities find unlimited campaign contributions unfair and We can see that in such commonplace behavior as driving. driving. as behavior commonplace such in that see can We Interestingly, sanctions are often imposed on behavior that is outside 77 78 79 DWARDS decision, however, the Supreme Court established by a campaign contributions 5-4 are encompassed within, majority and thus protected that by, the speech. free fundamentalof right “Currently, groups not affiliated with a advertisements during candidate a political are campaign. Do able you think to this kind spend of law, spending unlimited or should should be amounts it limited by money remain unlimited?”, on persistent and pervasive in our lives that we hardly notice it. As Tamanaha says, “the strongest argument in general obedience favor (in of defining dropping law) is the that with social reality.” requirement this condition of is inconsistent B. Pressure ValvesPressure B. pressure place on law to change perform the opposite function of bulwarks: to they relieve the pressure on law align with norms. to Pressure valves change when understand pressure illegal valves, behaviors it is phenomena. distinct are critical to normatively understand two acceptable. related but To that are “acceptably normatively deviant”; acceptable. In the model, that those behaviors reside in is, the upper right behaviors quadrant. that are Acceptable deviance illegal can but take many forms and is so 44 thus normatively objectionable, why hasn’t norms? In this instance, it depends upon who you ask, and when. Until the the law changed to 2010 reflect supporting law’s resistance to this change was a political process captured by the most powerful campaign contributors. 03 - E normative acceptability rather than the law.the normativethan rather acceptability the boundaries of normative acceptability, rather than the that law. is Behavior illegal but normatively sanctions; acceptable behavior that doesn’t is both illegal usually and normatively unacceptable trigger often formal does. Behavior that is legal but informal normativelysanctions; behavior unacceptable that is often normatively acceptable, triggers whether legal not. does usually illegal, or politics/document-poll-may-28-31.html 37010-fiu_10-1 Sheet No. 26 Side B 11/13/2015 07:10:42 B 11/13/2015 26 Side Sheet No. 37010-fiu_10-1 37010-fiu_10-1 Sheet No. 27 Side A 11/13/2015 07:10:42 80 RLANDO , O 45 45 ) 10/3/15 12:32 AM ELETE D OT N Florida Moves to Thwart Speed-Trap Towns like Waldo O (D The Alignment of Law and Norms and Law of Alignment The DOCX _9.25. Jim Saunders, Saunders, Jim INAL _F See (March 5, 2015, 12:00 PM), www.orlandosentinel.com/news/politics/os-florida-endspeed- PM), 12:00 2015, 5, (March Take a moment to consider how extraordinary this commonplace Even more extraordinary, the state implicitly acknowledges that As the model above suggests, it is generally both legal to drive 65 mph 80 DWARDS M K ENTINEL system, and actually sanctions behavior that is outside social acceptability, the rather than boundaries merely of outside the law. In fact, when state the violates this implicit agreement by actually enforcing law rather than the limits of social acceptability, the reaction is often outrage. For example, the town of Waldo, Florida became known nationwide as a notorious speed trap for consistently enforcing the actual speed limit on U.S. Route 301. S Doing so might well trigger both informal social sanctions—such as harsh looks from other drivers or muttered citation. speeding forma the of in fromstate, response the curses—and a formal enforcement behavior really is. The state goes to the highly unusual effort of informing its citizenry about the content of the law. Yet each person knows, without being told, that the law as written does not, ultimately, set the boundaries of behavior. The social acceptability of behavior sets its boundaries. And it is all so commonplace, that most that most of us have lived with it our entire noticed. even never and lives and socially acceptable (although just barely). On the other hand, it is both illegal and generally socially unacceptable to drive much over 80 mph. 2014] 03 - E traps-20150305-story.html. C Y 37010-fiu_10-1 Sheet No. 27 Side A 11/13/2015 07:10:42 A 11/13/2015 27 Side Sheet No. 37010-fiu_10-1 37010-fiu_10-1 Sheet No. 27 Side B 11/13/2015 07:10:42 M K C Y [Vol. 10:19 10:19 [Vol. (Sep. 30, 2014, 11:10 11:10 2014, 30, (Sep. IMES T AY B AMPA , T ) 10/3/15 12:32 AM FIU Law Review Law FIU likely to trigger an informal enforcement enforcement informal an trigger to likely ELETE 81 D OT very N O (D DOCX _9.25. Waldo Votes to Disband its Police Department INAL _F See See Driving Driving behavior also helps illustrate some of the dangers that can The second phenomenon is the enforcement of norms against i. Selective enforcement Selective i. The first potentially dangerous ‘pressure valve’ arises in the form of 81 DWARDS arise in the presence of pressure valves. The first is the danger of selective vigilantism.of danger the is second enforcement.The response through social sanctions, in the form of tailgating, flashing lights, gestures. obscene or and behaviors that we might call “unacceptably compliant;” that is, that behaviors are legal but socially unacceptable. In the model, those behaviors ride in the lower left quadrant. Again, consider driving: driving much under 65 mph, though legal, is PM), 2200182. http://www.tampabay.com/news/publicsafety/waldo-votes-to-disband-its-police-department/ selective enforcement. In other words, illegal but normatively acceptable behavior might not provoke a change in law if the law is enforced against insular only groups. For selectively the public, “the life of the law is in its 46 Public outrage was so great that private citizens erected a roadside billboard outside of town warning drivers, and the police town force eventually entirely disbanded when the it was revealed system.quota ticket a using that the department had been 03 - E 37010-fiu_10-1 Sheet No. 27 Side B 11/13/2015 07:10:42 B 11/13/2015 27 Side Sheet No. 37010-fiu_10-1 37010-fiu_10-1 Sheet No. 28 Side A 11/13/2015 07:10:42 . 489, . EV 87 .L.R ARV , the Supreme , 25 H 25 , 47 47 Whren Whren v. United States ) 10/3/15 12:32 AM The defendants argued that the stop could could stop the that argued defendants The 84 ELETE You Really Can Get Pulled Over for Driving While Black, Federal D The Court acknowledged that the defendants’ defendants’ the that acknowledged Court The 85 OT N O (Sept. 9, 2014), www.washingtonpost.com/news/wonkblog/wp/2014/09/ 2014), 9, (Sept. (D The Alignment of Law and Norms and Law of Alignment The For example, in in example, For The Scope and Purpose of Sociological Jurisprudence Sociological of Purpose and Scope The OST DOCX 83 .P Selective enforcement places the pressure of divergence divergence of pressure the places enforcement Selective 82 ASH _9.25. , W INAL Christopher Ingraham, Ingraham, Christopher Rather, the Court held that the only question relevant to the the to relevant question only the that held Court the Rather, at 813-14. 813-16. _F 86 See Id. Id. Id. Roscoe Pound, Whren v. U.S., 517 U.S. 806, 806 (1996). But that is not true for all groups. Speed limits are routinely enforced For example, consider the example of driving behavior discussed As the controversy in Waldo, Florida demonstrates, if formal speed 82 83 84 85 86 87 DWARDS M K 09/you-really-can-get-pulled-over-for-driving-while-black-federal-statistics-show/. argument might well be true, but held that the Fourth Amendment did not require an inquiry into police officers’ subjective motivations in enforcing the law. Court heard the case of two African-American men who had been stopped for a minor traffic violation. officers’ motivation to conduct the stop was whether they had a reasonable formallybehavior. in illegal engaged had defendants the that belief Statistics Show 514 (1912). 514 2014] enforcement.” 03 - E above. There is little incentive to change speed limits to reflect normatively acceptable behavior, because speed limits are not actually enforced for the majority of drivers in this enforced. are deviance country. Instead, the limits of acceptable selectively, and often on the basis of the race of the driver. Racial profiling of drivers is so pervasive that “driving while Black” has become part of the common lexicon. entirely on selected groups. behavior does not When trigger an illegal enforcement response but – case, as since normative normatively acceptability is often drives frequently enforcement—the acceptable majority the will not be motivated to change the law to reflect normative acceptability, because it will acceptability and not law. experience process. political curethe to through unlikely itself is it because pernicious, That the makes selective divergence enforcement particularly between normative deviance and therefore would not have caused absent an some other enforcement factor. response, only have been motivated although by formally their illegal, was race, well since within their the boundaries driving of behavior, acceptable enforcement find no redress through the political process. political the through redress no enforcementfind limits are enforced across becomes irresistible. the On board, the other the hand, selectively, if there pressure formal is no law to pressure is caused enforced by change only the normative divergence quickly of legality and acceptability. We can predict that victims of selective C Y 37010-fiu_10-1 Sheet No. 28 Side A 11/13/2015 07:10:42 A 11/13/2015 28 Side Sheet No. 37010-fiu_10-1 37010-fiu_10-1 Sheet No. 28 Side B 11/13/2015 07:10:42 M K 88 C Y F. 21 TUDIES S [Vol. 10:19 10:19 [Vol. EGAL 220, 229 (1996). 229 220, , 16 L The offenses at which which at offenses The 90 RIMINOLOGY C OF J. 89 RITISH , 36 B 36 , ) 10/3/15 12:32 AM FIU Law Review Law FIU ELETE D OT N O (D Vigilantism in Canada and the United States What is Vigilantism? is What DOCX _9.25. INAL at 228. at _F Id. Les Johnston, Grayson, Paul J. One example of social control vigilantism is violence against lawful ii. Vigilantismii. Behavior that is legal but socially unacceptable might be prevented Vigilantism is “a reaction to real or perceived deviance.” Vigilantism Vigilantism in such cases is an effort at “norm enforcement, albeit in 88 89 90 DWARDS abortion providers. As the regard to abortion are both deeply divided and remarkably intractable. To a data below show, Americans’ large beliefs with minority of tantamount Americans, to obtaining murder or and Regardless, opponents providing therefore of deeply an choice unacceptable have majority abortion position been normatively. democratically, or is unable to to convince courts achieve that woman’s privacy. a of fundamentalby right protected not is choose the either right a to vigilantism is directed in such breaches of normatively acceptable behavior. cases Since the state only enforces are not breaches normscontrol. attemptthose social vigilantes enforce through law, to of the law, but Criminologists have identified two distinct forms control of vigilantism occurs vigilantism. when private parties attempt to enforce Crime criminal laws that they consider contrast, social under-enforced control vigilantism occurs in order to control by behaviors that state instrumentalities. are not illegal, By and therefore not subject norms.instrumentalities, social violate but to enforcement actions by state 48 through the informal enforcement of social norms. This occurs in varying degrees of extremity, culminating sanctions in in violent the vigilantism. form normatively unacceptable behavior from occurring, then of the tension created If vigilante informal acts successfully by the prevent divergence of legal legality and but normativechange. to law on pressure the acceptability it, with is relieved and 03 - E (1992). ways inconsistent ways with inconsistent the rational legal system.” 37010-fiu_10-1 Sheet No. 28 Side B 11/13/2015 07:10:42 B 11/13/2015 28 Side Sheet No. 37010-fiu_10-1 37010-fiu_10-1 Sheet No. 29 Side A 11/13/2015 07:10:42 49 ) 10/3/15 12:32 AM ELETE D 92 OT N O (D The Alignment of Law and Norms and Law of Alignment The DOCX 91 _9.25. INAL _F Compilation of CBS News polls in response the question ““Which of these comes closest to to closest comes these of ““Which question the response in polls News CBS of Compilation abortion think you “Do question the response in polls University Quinnipiac of Compilation 91 92 DWARDS M K your view? Abortion should be generally available, available but under stricter to limits than it those is now. who OR, Abortion should want not be permitted.” it. compiled by 2. pp. http://www.pollingreport.com/abortion.htm, PollingReport.com, OR, Abortion should be 2014] 03 - E CBS News Polls. News CBS Quinnipiac University Polls. University Quinnipiac C Y 37010-fiu_10-1 Sheet No. 29 Side A 11/13/2015 07:10:42 A 11/13/2015 29 Side Sheet No. 37010-fiu_10-1 37010-fiu_10-1 Sheet No. 29 Side B 11/13/2015 07:10:42 M K 99 C Y [Vol. 10:19 10:19 [Vol. Moreover, the effect effect the Moreover, Nonetheless, violent violent Nonetheless, 100 95 Afterschocks: The Impact of Clinic Violence on ) 10/3/15 12:32 AM 96 FIU Law Review Law FIU ELETE D note 97, at 7. In response to the attacks, in 1994 the United United the 1994 in attacks, the to response In OT 94 N The area around Houston, Texas experienced the the experienced Texas Houston, around area The supra O 97 (D 101 DOCX This suggests that in areas where abortion is most most is abortion where areas in that suggests This 98 _9.25. (Nat’l Bureau of Econ. Research, Working Paper No. 16603, 2010), http:// 2010), 16603, No. Paper Working Research, Econ. of Bureau (Nat’l Operation Rescue Adviser Helped Tiller Suspect Track Doctor’s Court Dates, 18 U.S.C. § 248. § U.S.C. 18 INAL Mireille Jacobson and Heather Royer, DC (June 3, 2009), http://www.mcclatchydc.com/news/nation-world/national/article2454 at 32. at 1. . at 4. at . _F See Id Id. Id. See Id. Id. 93 Jacobson and Royer, See Violent anti-abortion vigilantism has had success in enforcing its According to the Bureau of Alcohol, Tobacco and Firearms, there were Firearms,there and Tobacco Alcohol, of Bureau the to According Unable Unable to use law to enforce their normative preferences, some Of 1043 counties in the United States with abortion providers, only 14 94 95 96 97 98 99 100 101 93 LATCHY DWARDS C C normatively objectionable, vigilantism is most likely. normativelyvigilantismmost objectionable, is likely. vision of normative In areas where unacceptability. abortion providers have been murdered, clinic-based abortions have declined by over 60 percent. most most attacks. more more than 300 vigilante attacks on abortion providers in the United States between 1973 and 2003. States passed the Freedom of Access to Clinic criminal Entrances offense Act, to making it block abortion clinic access. Abortion Services 6. www.nber.org/papers/w16603.pdf.at In counties in which non-murderous attacks abortion rates dropped by approximately have 9 percent. occurred, clinic-based should be legal in all cases, legal in most cases, illegal in most cases, or illegal in all cases?” compiled PollingReport.com,2-3. pp. by http://www.pollingreport.com/abortion.htm, 50 opponents of choice have turned to vigilantism as a substitute. vigilantism in In this effect, sense elevates the vigilantes’ normative preferences the status to of law, which vigilantes then enforce. For example, the slogan of former the antiabortion activist group Operation Rescue made very clear that its members were to treat lawful behavior—obtaining or providing an abortion—as though it was unlawful: “If you think abortion is murder, act it.” like 03 - E percent experienced violent attacks, but almost half of more than those one attack. experienced of violence on abortion rates has been is long lasting in the counties where occurs. violence the attacks – arsons, bombings, shootings, assaults and murders—on providers and provider facilities have continued. For example, abortion in provider George Tiller was assassinated 2009, by an antiabortion activist prominent Rescue. Operation to ties with 0694.html. M 37010-fiu_10-1 Sheet No. 29 Side B 11/13/2015 07:10:42 B 11/13/2015 29 Side Sheet No. 37010-fiu_10-1 37010-fiu_10-1 Sheet No. 30 Side A 11/13/2015 07:10:42 51 51 ONCLUSION C ) 10/3/15 12:32 AM VI. ELETE D OT N O (D The Alignment of Law and Norms and Law of Alignment The DOCX _9.25. INAL _F Persistent gaps between law and norms may be either features or bugs In this way, we can use the mirror thesis and prediction both to better Bulwarks are phenomena—such as the protection of fundamental If the mirror thesis is correct, law should reflect norms. We can thus However, there are also predictable reasons why law might not evolve DWARDS M K 2014] 03 - E that are normatively acceptable. Enforcement of norms can prevent normativelyunacceptable. are that behaviors legal in the system. Gaps that persist because of the protection of rights fundamental are features of the system. capture are Gaps usually that bugs. persist because Gaps of that political may persist because be of ‘pressure either valves’ features or selective dangers: twoenforcementvigilantism. of particular and possibility bugs, and their presence should alert us to understand the relationship between remainmightotherwise obscured. that dangers law and society, and to look for behaviors that are Similarly, normatively acceptable sometimes nonetheless remainnonetheless legal. remain behaviors illegal. that are normatively rights, and the capture of the political process by interest groups—that help unacceptable resist the pressure on law to align with norms, allowing behaviors that are normatively unacceptable phenomena—such to as the remain deviant non-enforcement legal. behavior, of or law compliant the behavior—that against help enforcement relieve Pressure acceptably the of pressure norms. on Non-enforcement valves norms of law allows law the persistence of illegal to behaviors against align are with unacceptably predict that over time, unacceptable if and behaviors illegal that become become were legal as well. normatively once Similarly, if both behaviors acceptable, that were normatively acceptable once and legal become normatively unacceptable, they should become they normatively should lawsay, withto norms.align is to well. That evolve as should illegal to align with norms. Persistent gaps sometimes occur, so that some C Y 37010-fiu_10-1 Sheet No. 30 Side A 11/13/2015 07:10:42 A 11/13/2015 30 Side Sheet No. 37010-fiu_10-1