: Code 2.0

On Governments and Ways to Regulate

On Governments and Ways to Regulate

Ive described four constraints that Ive said regulate an individual. But these separate constraints obviously dont 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 them 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 necessary. One response might be to increase the penalty for car radio theft to life in prison, so that the risk faced by thieves made it such that this crime did not pay. 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 radios 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, so 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 radios 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 cost different amounts. 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. Take the Supreme Courts hypothetical example of life in prison for a parking ticket[22]. 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 barbaric 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 and 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[23].

I say as if because today it takes only a seconds 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[24], or the market was thought to be essentially unregulable[25], or the cost of changing real-space code was so high as to make the thought of using it for regulation absurd[26]. But we see now that these constraints are plastic[27]. 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[28]. 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 markets constraint on certain behaviors and subsidies to reduce its constraint on others. 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)[29]. 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 persons 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 are even better.

Some of the power of the French Revolution derived from the architecture of Paris: The citys small and winding streets were easily barricaded, making it possible for revolutionaries to take control of the city with relatively little absolute strength. Louis Napoleon III understood this, and in 1853 he took steps to change it[30]. Paris was rebuilt, with wide boulevards and multiple passages, making it impossible for insurgents to take control of the city.

Every schoolchild learns of LEnfants design to make an invasion of Washington difficult. But more interesting is the placement of the White House relative to the Capitol. The distance between them is one mile, and at the time it was a mile through difficult terrain (the mall was a swamp). The distance was a barrier meant to tilt the intercourse between Congress and the president by making it marginally more difficult for them to connect and thereby more difficult for the executive to control the legislature.

This same idea has influenced the placement of constitutional courts in Europe. Throughout Europe constitutional courts were placed in cities other than the capital. In Germany the court is in Karlsruhe rather than Berlin; in the Czech Republic it is in Brno rather than Prague. The reason again is tied to the constraint of geography: Placing constitutional courts far away from legislatures and executives was meant to minimize both the pressure the latter two bodies could place on the court and reduce the courts temptation to bow to it.

The principle is not limited to high politics. Designers of parking garages or streets where children may play place speed bumps in the road so that drivers must slow down. These structures have the same purpose as a speed limit or a norm against driving too fast, but they operate by modifying architecture.

Neither is the principle limited to virtuous regulation: Robert Moses built bridges on Long Island to block buses, so that African Americans, who depended primarily on public transportation, could not easily get to public beaches[31]. That was regulation through architecture, invidious yet familiar.

Nor is it limited to governments. A major American airline noticed that passengers on early Monday morning flights were frustrated with the time it took to retrieve bags from the plane. They were much more annoyed than other passengers, even though it took no longer than average to retrieve the bags from these flights. The company began parking these flights at gates farther away from baggage claim, so that by the time the passengers arrived at baggage claim, their bags were there. Frustration with the baggage handling system was eliminated.

A large hotel in an American city received many complaints about the slowness of its elevators. It installed mirrors next to the elevator doors. The complaints ended.

Few are likely to recognize the leading regulation-through-architecture proponent of the 20th century Ralph Nader. It is astonishing today to read his account of the struggle to get safety standards enforced upon auto makers. Naders whole objective was to get the law to force car manufacturers to build safer cars. It is obvious today that the code of cars is an essential part of auto safety. Yet on this basic point, there was fundamental disagreement[32].

Neal Katyal has extensively considered the relationship of architecture to criminal law, from the deployment of street lights to the design of public spaces to maximize visibility[33]. The 2000 Sydney Olympics, for example, self-consciously employed architecture to reduce crime.[34] And architects have begun to identify principles of design that can minimize crime called Crime Prevention Through Environmental Design.[35]

In each example, an architecture is changed so as to realize different behavior. The architecture effects that difference. As a sign above one of the portals at the 1933 Chicago Worlds Fair put it (though it was speaking of science): Science Explores: Technology Executes: Man Conforms.[36]

Law can change social norms as well, though much of our constitutional jurisprudence seems dedicated to forgetting just how[37]. Education is the most obvious example. As Thurgood Marshall put it, Education is not the teaching of the three Rs. Education is the teaching of the overall citizenship, to learn to live together with fellow citizens, and above all to learn to obey the law.[38] Education is, in part at least, a process through which we indoctrinate children into certain norms of behavior we teach them how to say no to sex and drugs. We try to build within them a sense of what is correct. This sense then regulates them to the laws end.

Plainly, the content of much of this education is regulated by law. Conservatives worry, for example, that by teaching sex education we change the norm of sexual abstinence. Whether that is correct or not, the law is certainly being used to change the norms of children. If conservatives are correct, the law is eliminating abstinence. If liberals are correct, the law is being used to instill a norm of safe sex. Either way, norms have their own constraint, and law is aiming to change that constraint.

To say that law plays a role is not to say that it always plays a positive role. The law can muck up norms as well as improve them, and I do not claim that the latter result is more common than the former[39]. The point is just to see the role, not to praise or criticize it.

In each case, the law chooses between direct and indirect regulation. The question is: Which means best advances the regulators goal, subject to the constraints (whether normative or material) that the regulator must recognize? My argument is that any analysis of the strategies of regulation must take into account these different modalities. As Polk Wagner puts it, focusing on one additional modality:

Just as the choice of a legal rule will involve analytic trade offs between the familiar categories of property rules and liability rules, the incorporation of legal preemption rules in the cyberspace context will require a similar exercise along an additional dimension the impact that the legal rule will have on corresponding software regulation (and thus the effect on the law-software interface)[40].

Or again, legal policy proposals unsupported by predictions of technological response are deeply incomplete.[41] And the same can be said generally about the interaction between any modality and any policy proposal.

We can represent the point through a modification of the second figure:


As Wagner rightly insists, again, the interaction among these modalities is dynamic, requiring consideration of not only . . . legal adjustments, but also predicting the responsive effects such changes will stimulate.[42] The regulator seeks an equilibrium, constantly considering trade-offs among modalities of regulation.

The point should be familiar, and the examples can be multiplied.

Seatbelts: The government may want citizens to wear seatbelts more often[43]. It could pass a law to require the wearing of seatbelts (law regulating behavior directly). Or it could fund public education campaigns to create a stigma against those who do not wear seatbelts (law regulating social norms as a means to regulating behavior). Or it could subsidize insurance companies to offer reduced rates to seatbelt wearers (law regulating the market as a way of regulating behavior). Finally, the law could mandate automatic seatbelts, or ignition-locking systems (changing the code of the automobile as a means of regulating belting behavior). Each action might be said to have some effect on seatbelt use; each has some cost. The question for the government is how to get the most seatbelt use for the least cost.

Discrimination against the disabled: The disabled bear the burden of significant social and physical barriers in daily life[44]. The government might decide to do something about those barriers. The traditional answer is law regulating behavior directly: a law barring discrimination on the basis of physical disability. But the law could do more. It could, for example, educate children in order to change social norms (regulating norms to regulate behavior). It could subsidize companies to hire the disabled (regulating the market to regulate behavior). It could regulate building codes to make buildings more accessible to the disabled (regulating natural or real-space codes to regulate behavior). Each of these regulations would have some effect on discrimination and would have a cost. The government would have to weigh the costs against the benefits and select the mode that regulates most effectively.

Drugs: The government is obsessed with reducing the consumption of illicit drugs. Its main strategy has been direct regulation of behavior through the threat of barbaric prison terms for violation of the drug laws. This policy has obvious costs and non-obvious benefits. But most interesting for our purposes are the non-obvious costs. As Tracey Meares persuasively argues, one effective structure for regulating the consumption of illegal drugs is the social structure of the community in which an individual lives[45]. These are what Ive called social norm constraints: standards of appropriate behavior enforced by the sanctions of a community whether through shame, exclusion, or force.

Just as government can act to strengthen these social norm constraints, it should be obvious that government can also act to weaken them[46]. One way to do this is by weakening the communities within which these norms operate. This, says Meares, is what the extreme sanctions of the criminal law do[47]. In their extremity and effect, they undermine the social structures that would support this social policy. This is an indirect effect of the direct regulation of law, and at some point this effect may overwhelm the effect of the law. We might call this the Laffer Curve for criminal law.

The net effect of these different constraints cannot be deduced a priori. The government acts in many ways to regulate the consumption of drugs. It supports extensive public education campaigns to stigmatize the consumption of drugs (regulating social norms to regulate behavior). It seizes drugs at the border, thereby reducing the supply, increasing the price, and presumably reducing demand (regulating the market to regulate behavior). And at times it has even (and grotesquely) regulated the code of drugs (by, for example, spraying marijuana fields with paraquat), making them more dangerous and thereby increasing the constraint on their consumption[48]. All of these together influence the consumption of drugs. But as advocates of legalization argue, they also influence the incidence of other criminal behavior as well. The policy maker must assess the net effect whether on the whole these regulations reduce or increase social costs.

Abortion: One final example will complete the account. Since Roe v. Wade, the Court has recognized a womans constitutional right to an abortion[49]. This right, however, has not stopped government from seeking to eliminate or reduce the number of abortions. Again, the government need not rely on direct regulation of abortion (which under Roe would be unconstitutional). It can instead use indirect means to the same end. In Rust v. Sullivan, the Court upheld the power of the government to bias the provision of family planning advice by forbidding doctors in government-funded clinics from mentioning abortion as a method of family planning[50]. This is a regulation of social norms (within the social structure of medical care) to regulate behavior. In Maher v. Roe, the Court upheld the right of the government to disable selectively medical funding for abortion[51]. This is the use of the market to regulate behavior. And in Hodgson v. Minnesota, the Court upheld the right of the state to force minor women to wait forty-eight hours before getting an abortion[52]. This is the use of real-space code (the constraints of time) to regulate access to abortion. In all these ways, Roe notwithstanding, the government can regulate the behavior of women wanting abortions.

In each of these examples, law functions in two very different ways[53]. When its operation is direct, it tells individuals how to behave and threatens punishment if they deviate from that behavior. When its operation is indirect, it modifies one of the other structures of constraint[54]. The regulator selects from among these various techniques according to the return from each both in efficiency and in the values that each might express.

When we see regulation in this more general way, we can see more clearly how the unregulability of cyberspace is contingent. We get a stronger sense of how the state could intervene to make regulation work, and we should also get a sense of the increased dangers presented by this more expansive sense of regulation. In particular, we should have a stronger sense of the danger it presents to constitutional values. The next section considers one such threat.


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