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 I’ve 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 woman’s 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.
40.
R. Polk Wagner, "On Software Regulation,"
43.
Cass Sunstein points to seatbelt law as a hypothetical of "government regulation per mit[ing] people to express preferences by using the shield of the law to lessen the risk that private actors will interfere with the expression [through normative censure]"; "Legal Interference with Private Preferences,"
45.
See Tracey L. Meares, "Social Organization and Drug Law Enforcement,"
46.
Eric Posner ("The Regulation of Groups") points to contexts within which govern ment action may have had this effect.
47.
See Tracey L. Meares, "Charting Race and Class Differences in Attitudes Toward Drug Legalization and Law Enforcement: Lessons for Federal Criminal Law,"
48.
In the mid-1970s the U.S. government sponsored a campaign to spray paraquat (a her bicide that causes lung damage to humans) on the Mexican marijuana crop. This sparked a public outcry that resulted in congressional suspension of funding in 1978. However, following a congressional amendment in 1981, paraquat spraying was used on the domestic marijuana crop during the 1980s. The publicity surrounding the use of paraquat in Mexico is generally believed to have created a boom in the domestic marijuana industry and also an increase in the popularity of cocaine during the 1980s. See generally Michael Isikoff, "DEA Finds Herbicides in Marijuana Samples,"
53.
This distinction between "direct" and "indirect" regulation, of course, has a long and troubled history in philosophy as well as in law. Judith J. Thomson describes this difference in her distinction between the trolley driver who must run over one person to save five and the surgeon who may not harvest the organs from one healthy person to save five dying people; see "The Trolley Problem,"
54.
Richard Craswell suggests other examples making the same point: The government could (a) regulate product quality or safety directly or (b) disclose information about different products' quality or safety ratings, in the hope that manufacturers would then have an incentive to compete to improve those ratings; the government could (a) allow an industry to remain monopolized and attempt directly to regulate the price the monopolist charged or (b) break up the monopolist into several competing firms, in the hope that competition would then force each to a more competitive price; the government could (a) pass regulations directly requiring corporations to do various things that would benefit the public interest or (b) pass regulations requiring that corporate boards of directors include a certain number of "independent" representatives, in the hope that the boards would then decide for themselves to act more consistently with the public interest.