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 market’s 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 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 are even better.
• Some of the power of the French Revolution derived from the architecture of Paris: The city’s 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 L’Enfant’s 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 court’s 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. Nader’s 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 World’s 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 R’s. 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 law’s 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 regulator’s 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:
28.
The idea of a free market was the obsession of the realists, especially Robert Hale; see Barbara H. Fried,
30.
See Alain Plessis,
31.
See Robert A. Caro,
32.
Ralph Nader,
33.
See Neal Kumar Katyal, "Architecture as Crime Control," 111
37.
Consider civil rights in the American South. During the legislative hearings on the Civil Rights Act of 1964, supporters of the bill called before the committee white, southern employers and business owners whose discrimination against blacks was the prime target of the legislation. Some of these employers and businessmen supported the bill because business would improve: The labor pool would increase, causing wages to decrease, and the demand for services would increase — so long, that is, as whites did not shift their custom. This last point is what set the stage for business support for the Civil Rights Act. What business leaders feared was the retaliation of whites against their voluntary efforts to integrate. The Civil Rights Act changed the context to make discrimination against blacks illegal. The businessman could then — without fear of the retaliation of whites — hire or serve a black because of either his concern for the status of blacks or his concern to obey the law. By creating this ambiguity, the law reduced the symbolic costs of hiring blacks. This example demonstrates how law can change norms without government having control over the norms. In this case, the norm of accommodating blacks was changed by giving it a second meaning — the norm of simply obeying the law; see Lessig, "The Regulation of Social Meaning," 965–67.
38.
Thurgood Marshall, Esq., oral argument on behalf of respondents,
39.
See, for example, Dyson,