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:
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.
