On Governments and Ways to Regulate

I’ve described four constraints that I’ve said “regulate” an individual. But these separate constraints obviously don’t simply exist as givens in a social life. They are neither found in nature nor fixed by God. Each can be changed, though the mechanics of changing each is complex. Law can have a significant role in this mechanics, and my aim in this section is to describe that role.

A simple example will suggest the more general point. Say the theft of car radios is a problem—not big in the scale of things, but a frequent and costly enough problem to make more regulation seem necessary. One response might be to increase the penalty for car radio theft until the risk faced by thieves made it such that this crime did not pay. Life in prison for radio theft. If radio thieves realized that they exposed themselves to a lifetime in prison each time they stole a radio, it might no longer make sense to them to steal radios. The constraint constituted by the threatened punishment of law would now be enough to stop the behavior we are trying to stop.

But changing the law is not the only possible technique. A second might be to change the radio’s architecture. Imagine that radio manufacturers program radios to work only with a single car—a security code that electronically locks the radio to the car, such that if the radio is removed, it will no longer work. This is a code constraint on the theft of radios; it makes the radio no longer effective once stolen. It too functions as a constraint on the radio’s theft, and like the threatened punishment of life in prison, it could be effective in stopping the radio-stealing behavior.

Thus, the same constraint can be achieved through different means, and the different means are differently costly. The threatened punishment of life in prison may be fiscally more costly than the change in the architecture of radios (depending on how many people actually continue to steal radios, and how many are caught). From this fiscal perspective, it may be more efficient to change code than law. Fiscal efficiency may also align with the expressive content of law—a punishment so extreme would be barbaric for a crime so slight. Thus, the values may well track the efficient response. Code would be the best means to regulate.

The costs, however, need not align so well, in this example or in others. Take the Supreme Court’s hypothetical example of life in prison for a parking ticket.¹ It is likely that whatever code constraint might match this law constraint, the law constraint would be more efficient (if reducing parking violations were the only aim). There would be very few victims of this law before people conformed their behavior appropriately. But the “efficient result” would conflict with other values. If it is barbaric to incarcerate for life for the theft of a radio, it is all the more so as a penalty for a parking violation. The regulator has a range of means to effect the desired constraint, but the values that these means entail need not align with their efficiency. The efficient answer may well be unjust—that is, it may conflict with values inherent in the norms, or law (constitution), of the society.

Law-talk typically ignores these other regulators. It typically ignores how law can affect their regulation. Many speak as if law must simply take the other three constraints as given and fashion itself to them.²

I say “as if” because today it takes only a second’s thought to see that this narrowness is absurd. There were times when these other constraints were treated as fixed—when the constraints of norms were said to be immovable by governmental action,³ or the market was thought to be essentially unregulable,⁴ or the cost of changing real-space code was so high as to make the thought of using it for regulation absurd.⁵ But we see now that these constraints are plastic.⁶ That they are, as law is, changeable, and subject to regulation.

The examples are obvious and many. Think first about the market: talk of a “free market” notwithstanding, there is no more heavily regulated aspect of our life.⁷ The market is regulated by law not just in its elements—it is law that enforces contracts, establishes property, and regulates currency—but also in its effects. The law uses taxes to increase the market’s constraint on certain behaviors and subsidies to reduce its constraint on other behaviors. We tax cigarettes in part to reduce their consumption, but we subsidize tobacco production to increase its supply. We tax alcohol to reduce its consumption. We subsidize child care to reduce the constraint the market puts on raising children. In many such ways the constraint of law is used to change the constraints of the market.

Law can also change the regulation of architecture. Think about the Americans with Disabilities Act (ADA).⁸ Many of the “disabled” are cut off from access to much of the world. A building with only stairs is a building that is inaccessible to a person in a wheelchair. The stairs are a constraint on the disabled person’s access to that building. But the ADA in part aims to change that constraint by requiring builders to change the design of buildings so that the disabled are not excluded. Here is a regulation of real-space code, by law, to change the constraint that real-space code creates.

Other examples get even better.

Footnotes

¹ See Rummel v Estelle, 445 US 263, 274 n.11 (1980). Edit Delete

² Interestingly—and again, a reason to see the future of regulation talk located elsewhere—this is not true of architects. An example is the work of John de Monchaux and J. Mark Schuster. In their essay “Five Things to Do” and in the collection that essay introduces, Preserving the Built Heritage, they describe the “five and only five things that governments can do—five distinct tools that they can use—to implement their” policies (4–5): ownership and operation (the state may own the resource); regulation (of either individuals or institutions); incentives; property rights; information. Monchaux and Schuster’s five tools map in a complex way on the structure I have described, but significantly, we share a view of regulation as a constant trade-off between tools. Edit Delete

³ See, for example, James C. Carter, The Provinces of the Written and the Unwritten Law (New York: Banks & Brothers, 1889), who argues that the common law cannot be changed (38–41). Edit Delete

⁴ See, for example, the discussion of wage fund theory in Hovenkamp, Enterprise and American Law, 193–96. Edit Delete

⁵ For a fascinating account of the coming of age of the idea that the natural environment might be tamed to a productive and engineered end, see John M. Barry, Rising Tide: The Great Mississippi Flood of 1927 and How It Changed America (New York: Simon & Schuster, 1997). Edit Delete

⁶ As Roberto Unger puts it, “Modern social thought was born proclaiming that society is made and imagined, that it is a human artifact rather than the expression of an underlying natural order”; Social Theory, 1. Edit Delete

⁷ The idea of a free market was the obsession of the realists, especially Robert Hale; see Barbara Fried, The Progressive Assault on Laissez-Faire: Robert Hale and the First Law and Economics Movement (Cambridge, Mass.: Harvard University Press, 1998): “Economic life, like Clark’s moral market, was constituted by a regime of property and contract rights that were neither spontaneously occurring nor self-defining, but were rather the positive creation of the state” (2–3). For a modern retelling, see Cass R. Sunstein, The Partial Constitution (Cambridge, Mass.: Harvard University Press, 1993), 51–53. Edit Delete

⁸ Americans with Disabilities Act (ADA) of 1990, 42 USC 12101 et seq. (1994). Edit Delete