Code 2.0

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, Cooper v. Aaron, 358 US 1 (1958) (no. 1), in Fifty-four Landmark Briefs and Arguments of the Supreme Court of the United States: Constitutional Law, edited by Philip B. Kurland and Gerhard Casper (Washington, D.C.: University Publications of America, 1975), 533, 713.

39.

See, for example, Dyson, Release 2.0: 'Government can play a divisive role vis-–-vis communities. Often, the more government provides, the less community members themselves contribute' (43); in 'The Regulation of Groups: The Influence of Legal and Nonlegal Sanctions on Collective Action' (University of Chicago Law Review 63 [1996]: 133), Eric A. Posner argues that government help to a community can undermine the community.

40.

R. Polk Wagner, 'On Software Regulation,' Southern California Law Review 78 (2005): 457, 487.

41.

Ibid., 474.

42.

Ibid., 465.

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,' University of Chicago Law Review 53 (1986): 1129, 1145. Alternatively, seatbelt laws have been used as the factual basis for critiques of norm sponsorship as ineffective and no substitute for direct regulation; see Robert S. Alder and R. David Pittle, 'Cajolery or Command: Are Education Campaigns an Adequate Substitute for Regulation?' Yale Journal on Regulation 1 (1984): 159, 171–78. However, the observations may have been premature. John C. Wright, commenting on television's normative content, claims that 'we have won the battle on seatbelts, just by a bunch of people getting together and saying, `It is indeed macho to put on a seatbelt. It is macho and it is smart and it is manly and it is also feminine and smart and savvy and charming to put on a seatbelt''; Charles W. Gusewelle et al., 'Round Table Discussion: Violence in the Media,' Kansas Journal of Law and Public Policy 4 (1995): 39, 47.

44.

The analysis here was in part suggested by Minow, Making All the Difference .

45.

See Tracey L. Meares, 'Social Organization and Drug Law Enforcement,' American Criminal Law Review 35 (1998): 191.

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,' Buffalo Criminal Law Review 1 (1997): 137.

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,' Washington Post, July 26, 1989, 17. In 'Drug Diplomacy and the Supply-Side Strategy: A