See Rummel v. Estelle, 445 US 263, 274 n.11 (1980).
Interestingly — and again, a reason to see the future of regulation talk located else where — 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.
See, for example, James C. Carter, The Provinces of the Written and the Unwritten Law (New York: Banks and Brothers, 1889), who argues that the common law cannot be changed (38–41).
See, for example, the discussion of wage fund theory in Hovenkamp, Enterprise and American Law, 193–96.
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 and Schuster, 1997).
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.
The idea of a free market was the obsession of the realists, especially Robert Hale; see Barbara H. 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.
Americans with Disabilities Act (ADA) of 1990, 42 USC –– 12101 et seq. (1994).
See Alain Plessis, The Rise and Fall of the Second Empire, 1852–1871 (1979) translated by Jonathan Mandelbaum (English-language edition, New York: Cambridge University Press, 1985), 121; 'Haussmann, Baron Georges-Eug–ne,' in Encyclopedia Britannica, 5th ed., (1992). Steven Johnson criticizes other aspects of the change in Interface Culture, 63–64.
See Robert A. Caro, The Power Broker: Robert Moses and the Fall of New York (New York: Alfred A. Knopf, 1974), 318.
Ralph Nader, Unsafe at Any Speed: The Designed-In Dangers of the American Automobile (New York: Grossman, 1965), xciii.
See Neal Kumar Katyal, 'Architecture as Crime Control,' 111 Yale Law Journal 1039 (2002).
Brin, The Transparent Society , 293.
