* Edwin H. Woodruff Professor of Law, Cornell Law School. Thanks to Manuel Attienza, Kevin Clermont, Cynthia Farina, Richard Hillman, Douglas Kysar, Jeffrey Rachlinski, and Irwin Stotzky for reading and commenting on this paper. Michael David, Annie Jeong, Cynthia Quimby, Jennifer Schultz, Rob Schultz, and Brad Wilson provided excellent research assistance.
1 Jeffery Rosen, Foreword, 97 Mich. L. Rev. 1323, 1324 (1999) (describing James B. Jacobs & Kimberly Potter, Hate Crimes: Criminal Law & Identity Politics (1998)).
2 Albert Gidari, The Endangered Species Act: Impact of Section 9 on Private Landowners, 24 Envtl. L. 419, 424 (1994); John Charles Kunich, Species & Habitat Conservation: The Fallacy of Deathbed Conservation Under the Endangered Species Act, 24 Envt. L. 501, 561 & n.220 (1994) (citing Robert J. Smith, The Endangered Species Act: Saving Species or Stopping Growth?, 15 Regulation: The Cato Rev. of Bus. & Govt. Reg 83, 85 (Winter 1992)); see also Jeffrey J. Rachlinski, Protecting Endangered Species Without Regulating Private Landowners: The Case of Endangered Plants, 8 Cornell J.L. & Pub. Pol’y 1, 6–7 (1998) (reporting and refuting other commentators’ assertions that the Endangered Species Act has backfired).
3 See infra notes 177–180 and accompanying text.
4 Professor Sunstein has discussed “regulatory strategies . . . that achieve an end precisely opposite to the one intended or to the only public-regarding justification that can be brought forward in their support.” Cass R. Sunstein, Paradoxes of the Regulatory State, 57 U. Chi. L. Rev. 407, 407 (1990). The Rhetoric of Legal Backfire broadens the inquiry and contests some of Sunstein’s claims. See infra notes 185–191 and accompanying text.
5 Additional examples of claims of legal backfire, in no particular order, include: The Environmental Protection Agency’s actions to regulated coal-burning power plants is “so inept that some of the nation’s most populous areas will end up with a worse environment than would have resulted if the new policy had never been put into effect.” Bruce A. Ackerman & William T. Hassler, Clean Coal/Dirty Air 2 (1981). Toxic waste laws that require cleaning up dumps before use of the land “drive[s] industry out to virgin fields, where it encounters no such costs.” Philip K. Howard, The Death of Common Sense: How Law Is Suffocating America 8 (1994). The Highway Beautification Act “thwarts highway beautification.” Craig J. Albert, Your Ad Goes Here: How the Highway Beautification Act of 1965 Thwarts Highway Beautification, 48 U. Kan. L. Rev. 463, 467 (2000). Demands of equality by gays sets back their cause. Robin West, Integrity and Universality: A Comment on Ronald Dworkin’s Freedom’s Law, 65 Fordham L. Rev. 1313, 1329 (1997). Trial judges’ admonitions to juries to disregard tainted evidence causes them to focus on that evidence. Regina Schuller, Expert Evidence and Hearsay, 19 Law & Hum. Behav. 345, 349 (1995). The U.S. welfare system “has produced dependency, unwillingness to work, increased nonmarital births, drug abuse and crime.” Peter Edelman, Missing Bobby, Searching for America’s Heart, by Robin Toner, N.Y. Times, Apr. 29, 2001, � 7 (Book Review), at 25. Boot camps for juvenile offenders, which mimic aspects of military basic training in lieu of incarceration, result in greater instead of lesser recidivism. Jayson Blair, Ideals & Trends; Boot Camps: An Idea Whose Time Came and Went, N.Y. Times, Jan. 2, 2000, � 4, at 3. Flexible spending accounts, instead of “hold[ing] down medical costs . . . encourage[] extra medical spending.” David E. Rosenbaum, When Laws Shoot Themselves in the Foot, N.Y. Times, Aug. 29, 1999, � 4, at 2. “The government prohibition on cigarette advertising on television, designed to decrease smoking, may have increased smoking . . . .” Sunstein, supra note 4, at 429. Remarkably, even the 55 mile-per-hour speed limit is not sacrosanct. A joint study by the Department of Transportation and the Federal Highway Administration reported that lowering speed limits increased the number of accidents. Effects of Raising & Lowering Speed Limits, Report No. FHWA-RD-92–084 (U.S. Dep’t of Transp., Fed. Highway Admin., 1992), available at http://www.ibiblio.org/rdu/sl-irrel/index.html, discussed in Eric Peters, Demise of ‘Double Nickel’ Speed Limit Sought, Wash. Times, Sept. 15, 1995, at E13. The Federal Communication Commission’s fairness doctrine decreased instead of increased the broadcasting of diverse viewpoints. See infra notes 44–72 and accompanying text. The fuel economy standards imposed on automobile manufacturers increased rather than decreased our dependence on foreign oil. See infra notes 73–98 and accompanying text.
More generally, attempts to invigorate citizens’ sense of responsibility through law may cause them to “recoil from responsibility.” Meir Dan-Cohen, Responsibility and the Boundaries of the Self, 105 Harv. L. Rev. 959, 1001–1002 (1992); see also Sunstein, supra note 4, at 408 (referring to the “omnipresence of regulatory paradoxes”).
6 See infra note 104 and accompanying text.
7 This article does not focus on the common law, although many of the points probably apply. In addition, I am interested in whether a law has backfired with respect to one or more of its goals, not whether the law’s purposes were meritorious in the first place.
8 For example, critics of the Endangered Species Act assert that the law deters development at great cost to society. Charles C. Mann & Mark L. Plummer, Noah’s Choice: The Future of Endangered Species 25–26, 175 (1995). Supporters can rebut the charge by asserting that the benefits of the law in preserving species outweighs the costs. Such an argument cannot be made, of course, in response to the criticism that the Endangered Species Act has backfired.
9 Cf. Ray Vaughan, State of Extinction: The Case of the Alabama Sturgeon and Ways Opponents of the Endangered Species Act Thwart Protection for Rare Species, 46 Ala. L. Rev. 569, 584–95 (1995) (describing the vitriolic nature of right-wing assaults on the Endangered Species Act).
10 For example, hate crime laws seek to punish perpetrators, but another goal is to reduce prejudice. The difficulty of measuring the effect of such laws on racial issues allows critics to counter that the laws only increase resentment and hate. See infra Part IV.
11 On all of this, see infra Part II C.
12 See infra Part II C.
13 James Brooke, Embargo Seen as Aid To Castro; Canada, Too, N.Y. Times, Oct. 15, 2000, � 1, at 9.
14 See id. at 9 (quoting Canadian foreign minister Lloyd Axworthy). Similar allegations were made about the European Union’s recent diplomatic sanctions against Austria for including a far-right party in its government. Instead of provoking a change in Austria’s policy, the sanctions created a “nationalistic fervor.” See, e.g., Austria Hails EU Decision to Lift Sanctions, Ariz. Republic, Sept. 13, 2000, at A12.
15 “Whether market rules are perfect or not, the good ends of economic activity are best achieved if players play to win.” Arthur Isak Applbaum, Ethics for Adversaries: The Morality of Roles in Public & Professional Life 193 (1999); see also Cynthia R. Farina, Faith, Hope, and Rationality or Public Choice and the Perils of Occam’s Razor, 28 Fla. St. U. L. Rev. 109, 118 (2000) (“we too readily allow bad policy to be equated with bad motives”).
16 More generally, critical arguments ensure that all sides are heard and that lawmakers produce the best law. See Applbaum, supra note 15, at 198.
17 See id. at 200–201 (the lack of careful monitoring of politics and government creates a “disanalogy” between it and “the U.S. courtroom”); Jeremy Bentham, Handbook of Political Fallacies 139–226 (Harold A. Larrabee ed., 1952) (tactics to rebuff reform include “fallacies of confusion”).
18 16 U.S.C. �� 1531–1544 (2002).
19 Id. � 1531(b).
20 Id. � 1531(a)(3).
21 The FWS also administers fresh water. The Department of Commerce’s National Marine and Fisheries Service (NMFS) implements the law for the sea. See Vaughan, supra note 9, at 571.
22 Id. at 571–72. The Act defines “endangered species” as “any species which is in danger of extinction throughout all or a significant portion of its range.” Id. (quoting 16 U.S.C. � 1532(6)). The Act defines “threatened species” as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Id. at 572 (quoting 16 U.S.C. � 1532 (20)).
23 16 U.S.C. � 1533(f); see also Jeffrey J. Rachlinski, Book Review, Noah by the Numbers: An Empirical Evaluation of the Endangered Species Act, 82 Cornell L. Rev. 356, 368 (1997); Vaughan, supra note 9, at 573.
24 Vaughan, supra note 9, at 572 (citing 16 U.S.C. � 1532(5)(A)). The FWS designates critical habitat to protect it from federal agencies. See Rachlinski, supra note 23, at 368 (citing 16 U.S.C. �� 1533(a)(3)(A) and 1532(5)). The FWS should designate such habitat at time of listing, but it has designated critical habitat for only a small number of listed species. See id. at 371.
25 See id. at 6.
26 See id. (citing 16 U.S.C. � 1533 (1994)); Vaughan, supra note 9, at 572 (citing 50 C.F.R. � 17.11 (1993) (wildlife); see also 50 C.F.R. � 17.12 (1993) (plants)).
27 Rachlinski, supra note 2, at 7. Landowners who violate the ESA are subject to fines or imprisonment. See Charles C. Mann & Mark L. Plummer, The Butterfly Problem, 269 The Atlantic, Jan., 1992, at 47. Generally, protection of plant life on private land is left to state law. See Rachlinski, supra note 2, at 2–3.
Specifically, section 9 of the ESA makes illegal on privately held land “taking” an “endangered species.” Vaughan, supra note 9, at 574 (citing 16 U.S.C. � 1538(a)(1)(B)-(C)). Taking means “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Id. at 574 (citing 16 U.S.C. � 1532(19)). The statute does not define “harm.” See id. at 574–75. However, the FWS has promulgated a regulation defining “harm” as “an act which actually kills or injures wildlife,” adding that “such an act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.” Id. at 575 (quoting 50 C.F.R. � 17.3 (1993)). Section 9 therefore forbids development or harvesting activities on private lad when the activity harms endangered species. See Rachlinski, supra note 23, at 358; see also Michael Vivoli, Note, “Harm”ing Individual Liberty: Assessing the U.S. Supreme Court’s Decision in Babbitt v. Sweet Home, 32 Cal. W. L. Rev. 275, 293 (1996).
Section 9 does not apply the “taking” prohibition to threatened species. Vaughan, supra note 9, at 574 (citing 16 U.S.C. � 1538(a)(1)). However, the section does make illegal violation of regulations pertaining to threatened species. Id. (citing 16 U.S.C. � 1538(a)(1)(G)). Such regulations include prohibitions on “taking” threatened species. Id. (citing 50 C.F.R. � 17.31(a) (1993); 50 C.F.R. � 17.71 (a) (1993); Sweet Home Chapter of Communities for a Great Or. v. Babbitt, 1 F.3d 1, 1 (D.C. Cir. 1993)).
28 See Rachlinski, supra note 2, at 1; Vaughan, supra note 9, at 584–604.
29 Mann & Plummer, supra note 8, at 25–26, 175; Rachlinski, supra note 23, at 357–58 (discussing Mann & Plummer). Mann and Plummer claim that the Act fails in part because its drafters sought to save all species regardless of the costs—the so-called “Noah Principle.” Rachlinski, supra note 23, at 362–64 (citing Mann & Plummer, supra note 8, at 213–15); see also Mann & Plummer, supra note 27, at 47.
30 Kunich, supra note 2, at 561 & n.220 (citing Smith, supra note 2, at 85); see also Mann & Plummer, supra note 8, at 187–88, 196–97 (reporting such criticism as accurate); Gidari, supra note 2, at 424 (“Because of the habitat modification restrictions now imposed under section 9, landowners are taking pains to manage their lands so that protected, or potentially protectable, species do not occupy the site.”); Rachlinski, supra note 2, at 2 (reporting such criticisms but not supporting them).
31 “Because section 9 can convert a ‘worthwhile private endeavor’ into a ‘potential crime,’ it gives landowners ‘great incentive to ensure that an official endangered species never appears on their property.’” Rachlinski, supra note 23, at 364 (quoting Mann & Plummer, supra note 8, at 187).
32 One critic explains:
[T]he biology-is-law application of section 9 has resulted in unintended consequences and has had a perverse effect on efforts to conserve species. Because of the habitat modification restrictions now imposed under section 9, landowners are taking pains to manage their lands so that protected, or potentially protectable, species do not occupy the site.
Gidari, supra note 2, at 424. Professor Rachlinski has reported such assertions in two articles. Rachlinski, supra note 2, at 6–7; Rachlinski, supra note 23, at 364–65.
33 Rachlinski, supra note 2, at 6; Vaughan, supra note 9, at 586–87.
34 See Rachlinski, supra note 2, at 6.
35 Vaughan, supra note 9, at 577–78, 596–98. In addition, the Reagan and Clinton administrations have been lax in investigating violations of the Act. Id. at 598–99.
36 Mark Sagoff, Muddle or Muddle Through? Takings Jurisprudence Meets the Endangered Species Act, 38 Wm. & Mary L. Rev. 825, 826 (1997) (quoting Chuck Cushman, executive director of the American Land Rights Association of Washington State, quoted in Martin van der Werf, Endangered Species Act ‘Gotta Be Fixed,’ Foe Says, Ariz. Republic, July 1, 1995, at B1). Some people simply ignore the regulations. See id. at 854 (citing Eric Pryne, Private Land vs. Habitat Protection, Seattle Times, Apr. 13, 1995, at A1.).
Another related claim of backfire of the ESA involves the ineffectiveness of the Act as compared to voluntary conservation. For example, lack of funding has delayed the listing of species so that voluntary conservation efforts consistent with landowners’ interests might have been more effective. See Rachlinski, supra note 23, at 364–66 (discussing criticism).
37 Hearing on the Endangered Species Act, 104th Cong., 1st Sess. (1995) (testimony of Rep. Lamar Smith). Smith claimed that “[o]fficials at the Texas Parks and Wildlife Department contend that adding the golden-cheeked warbler and black-capped vireo to the endangered species list has encouraged the rapid destruction of their habitat.” Id. While disturbing if true, this is hardly proof of an overall backfire or even the diminution of these species.
38 Rachlinski, supra note 23, at 361–62 (discussing critics). Another writer admitted that only anecdotes supported his claim of backfire. See J.B. Ruhl, The Endangered Species Act and Private Property: A Matter of Timing and Location, 8 Cornell J.L. & Pub. Pol’y 37, 50 (1998).
39 Gidari, supra note 2, at 439–40 & nn.79–82 (citing Rob Taylor, Preserving Forests May Pay Off; Landowners Would Benefit from Plan to Protect Wildlife, Seattle Post-Intelligencer, Oct. 13, 1993, at B1); Mike Vivoli, Shoot, Shovel & Shut Up, Wash. Times, Nov. 27, 1992, at F1 (clear cutting of timber to avoid creating habitat for the spotted owl). Ross Perot’s construction company cleared more than one hundred acres to allow development that otherwise would have constituted habitat for the golden-cheeked warbler. For more on the Ross Perot anecdote, see Mann & Plummer, supra note 8, at 196–97. See also Mann & Plummer, supra note 27, at 47 (“Endangered Species Act works against people’s incentives, not with them.”).
40 See Ike C. Sugg, Caught in the Act: Evaluating the Endangered Species Act, Its Effects on Man and Prospects for Reform, 24 Cumb. L. Rev. 1, 46 (1994) (ESA “simply discourages voluntary efforts to conserve listed species on private land.”). Sugg cites the experience of a landowner who founded a conservation group and created habitat for bald eagles on his land. Id. at 46–47. The government then forbade him from entering his land by truck. Id.; see also John A. Baden, Creating Positive Rewards for Species Preservation, Seattle Times, Oct. 20, 1993, at B7.
41 See Kunich, supra note 2, at 561 & n.220 (citing Smith, supra note 2, at 85); see also Gidari, supra note 2, at 424.
42 See Ruhl, supra note 38, at 37–38. “[S]pecies-by-species analyses with which to evaluate landowner behaviors by type of landowner, type of land use, and magnitude of impact are not widely available.” Id. at n.3.
43 Professor Rachlinski compared the record of plant preservation in states that protect plant life on private land with those that do not (the ESA does not protect plant life from private landowners). Rachlinski, supra note 2, at 2–3. He found that plants on private land generally suffer greater risks to their survival in states without regulation. Id. Rachlinski therefore concluded that “restrictions on private landowners benefit endangered and threatened species.” Id. at 32. He also surmised that a backfire would occur only when a habitat is already vanishing; when landowners can keep habitat that they destroyed from reappearing; when the cost of so doing is less than the costs of complying with the regulations; and when landowners have knowledge of the facts. Id. at 7.
In another study, Rachlinski demonstrated that critics mistakenly rely on misleading statistics that seemingly suggest the failure of the ESA. For example, critics point to the fact that, since the passage of the Act, 721 species have been added to the list of endangered species and only 21 species have been removed. Rachlinski, supra note 23, at 366. Rachlinski pointed out, however, that “one must ask how many more would have been endangered or even extinct if the Act had never become law.” Id. Relying on the FWS’s own data of the status of species, Rachlinski reports that “endangered and threatened species are better off with the Act than . . . without it.” Id. at 383. But Rachlinski’s conclusions are clouded because the FWS’s designation of species are subjective: “It is not clear when an increase in population size constitutes ‘improvement’ or how long a population must remain constant to be considered ‘stable.’ Ultimately these designations represent the subjective judgment of the FWS, and may only imperfectly reflect a given species’ true condition.” Id. at 368.
44 47 U.S.C. � 151 (1934) (current version at 47 U.S.C. � 151 (2001)).
45 For example, in 1949 the commission produced a report highlighting the importance of “providing and maintaining a climate of fairness and equal opportunity for the expression of contrary views.” In re Editorializing by Broadcast Licensees, 13 F.C.C. 1246, 1254 (1949). That report nicely capsulized the goals of the fairness doctrine:
In the absence of a duty to present all sides of controversial issues, overt editorialization by station licensees could conceivably result in serious abuse. But where, as we believe to be the case under the Communications Act, such a responsibility for a fair and balanced presentation of controversial public issues exists, we cannot see how the open espousal of one point of view by the licensee should necessarily prevent him from affording a fair opportunity for the presentation of contrary positions . . . .
Id. The report changed broadcasters to cover public issues and to reflect opposing views. See Red Lion Broad. Co. v. FCC, 395 U.S. 367, 377 (1969). In 1964, the FCC issued a “Fairness Primer,” which underscored the fairness doctrine’s application to “controversial issues of public importance.” Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Importance [Fairness Primer], 29 Fed. Reg. 10,416, 10,416 (1964).
46 In re Application of Great Lakes Broad. Co., 3 F.R.C. Ann. Rep. 32, modified in Great Lakes Broad. Co. v. Fed. Radio Comm’n, 37 F.2d 993 (D.C. Cir. 1930).
47 Act of September 14, 1959, 1, 73 Stat. 557 (amending 47 U.S.C. � 315(a) (1934) (current version at 47 U.S.C. � 315(a) (2001)).
48 47 C.F.R. 73.1920 (1967) (repealed 2000). The obligation to air opposing perspectives without compensation, if necessary, began in 1963. See In re Responsibility Under the Fairness Doctrine, 40 F.C.C. 576, 576 (1963).
49 Red Lion Broad. Co., 395 U.S. at 390 (“It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.”).
50 Gayle S. Ecabert, The Demise of the Fairness Doctrine: A Constitutional Reevaluation of Content-Based Broadcasting Regulations, 56 U. Cin. L. Rev. 999, 1000–01, 1010 (1988)
51 In re Inquiry into Section 73.1910 of the Commission’s Rules and Regulations Concerning the General Fairness doctrine Obligations of Broadcast Licensees, 102 F.C.C. 2d 142 (1985) [hereinafter Inquiry].
52 In re the Handling of Public Issues Under the Fairness Doctrine and the Public Interest Standards of the Communications Act, 48 F.C.C. 2d 1, 7 (1974).
53 Inquiry, supra note 51, at 167, 188–96; see also Richard Samson, Note, Repeal of the Fairness Doctrine: Prologue to a Farce, 41 Rutgers L. Rev. 663, 663 (1989) (“[F]ierce opponents . . . [asserted] that the ‘chilling effect’ of the policy has effected precisely the result it was intended to prevent.”).
54 Inquiry, supra note 51, at 197.
55 Telecomm. Research & Action Ctr. v. FCC, 801 F.2d 501, 517–18 (D.C. Cir. 1986), reh’g denied, 806 F.2d 1115 (D.C. Cir. 1986).
56 S. Res. 742, 100th Cong., 133 Cong. Rec. 8438 (1987).
57 In re Syracuse Peace Council , 2 F.C.C.R. 5043, 5049–50 (1987), reconsideration denied, 3 F.C.C R. 2035 (1988); see also Charles W. Logan, Jr., Getting Beyond Scarcity: A New Paradigm for Assessing the Constitutionality of Broadcasting Regulation, 85 Calif. L. Rev. 1687, 1703 (1997).
58 Press Release, Federal Communications Commission, Mass Media Action: FCC Ends Enforcement of Fairness Doctrine, Report No. MM-263 (Aug. 4, 1987) (on file with author) [hereinafter FCC News]. The FCC had declined to entertain a Syracuse television station’s claim that the fairness doctrine impinged on its free speech rights. The station had refused to broadcast opposition to a nuclear power plant after the station had aired support for the plant. The Court of Appeals remanded the case, holding that the FCC had acted arbitrarily and capriciously by failing to consider the broadcaster’s assertion. See Meredith Corp. v. FCC, 809 F.2d 863, 865–869 (D.C. Cir. 1987).
59 FCC News, supra note 58.
60 Id. In addition, a member of the FCC asserted that the increase in broadcasters would solve the problem of bias: “With over 11,000 broadcasters, the chance of bias not being countered . . . [is] small . . . .” Id. Separate Statement of Chairman Dennis R. Patrick Proponents of the fairness doctrine countered, citing concerns about “concentrations of ownership” and the “First Amendment rights of the audience.” Tom Shales, Regulation Dropped by a Renegade FCC, Ithaca J., Aug. 10, 1987, at 10A; see also Rhonda Brown, Ad Hoc Access: The Regulation of Editorial Advertising on Television and Radio, 6 Yale L. & Pol’y Rev. 449, 459–59 (1988) (Senate committee found the FCC’s fairness doctrine “findings ‘factually flawed’”).
61 See supra note 53, and accompanying text; see also Syracuse Peace Council, 2 F.C.C.R. at 5049. The Fairness Report notes the “substantial danger that many broadcasters are inhibited” by the fairness doctrine. Inquiry, supra note 51, at 167.
62 Inquiry, supra note 51, at 171. The FCC seemed troubled by the “self serving” nature of the broadcasters’ testimony, but failed to respond very persuasively. For example, it stated that the evidence was “more probative than the statements of persons who, by necessity, have to second-guess the broadcaster’s state of mind.” Id. at 180. In the Syracuse Peace Council decision, the FCC reported “over 60 reported instances” of inhibition. Syracuse Peace Council, 2 F.C.C.R. at 5050; see also Samson, supra note 53, at 670 (citing Inquiry, supra note 51, at 180–81).
63 Brown, supra note 60, at 469–70 (networks feared that editorials would conflict with programming and offend the audience).
64 See Mark A. Conrad, The Demise of the Fairness Doctrine: A Blow for Citizen Access, 41 Fed. Comm. L.J. 161, 182 (1989) (judges reviewing the FCC’s Syracuse Peace Council decision “‘perplexed’ by the Commission’s failure to explain its basis for finding that the [fairness doctrine’s] net effect was to reduce the coverage of controversial issues.”); Shales, supra note 60, at 10A.
65 Shales, supra note 60, at 10A (quoting Rep. John Dingell).
66 Peter J. Boyer, Praise and Denunciation Greets Ruling by FCC, N.Y. Times, Aug. 5, 1987, at C26 (quoting Lawrence K. Grossman, then president of NBC News).
67 Id. (quoting ABC spokesperson, Julie Hoover).
68 See Judith Michaelson, Effort to Revive Broadcasting’s Fairness Doctrine Raises Static, L.A. Times, Nov. 17, 1993, at A5.
69 See id.
70 Id. (quoting chairman of the Commerce, Science and Transportation Committee, Sen. Ernest Hollings.
71 Id. But see Thomas W. Hazlett & David W. Sosa, “Chilling” the Internet? Lessons from FCC Regulation of Radio Broadcasting, 4 Mich. Telecomm. & Tech. L. Rev. 35, 41 (1997) (“[E]xplosion in news, talk and public affairs formats in both AM and FM is powerful evidence that the FCC’s previous efforts to regulate broadcast content did indeed result in a ‘chilling effect.’”).
72 See Michaelson, supra note 68, at A5.
73 See David Boren et al., Energy Policy: A New War Between the States? 8, 13, 26 (1975).
74 Energy Policy and Conservation Act of 1975, Pub. L. No. 94–163, 89 Stat. 871 (codified as amended at 49 U.S.C. �� 32901–32919 (2002)).
75 Automobile Fuel Economy and Research and Development: Hearings on S. 307, S. 499, S. 633, and Amendment 15, S.654, and S. 783 Before the Senate Comm. on Commerce, 94th Cong., 3–4 (1975).
76 See J. Yost Conner, Jr., Note, Revisiting CAFE: Market Incentives to Greater Automobile Efficiency, 16 Va. Envtl. L.J. 429, 430 (1997).
77 See Robert W. Crandall et al., Regulating the Automobile 121 n.3 (1986) (describing formula as “harmonic weighted” for a manufacturer’s entire fleet).
78 49 U.S.C. � 32902(f). For an example of another fuel efficiency standard, see the “Gas Guzzler Tax,” 26 U.S.C. � 4064 (2002), which taxes manufacturers for vehicles falling below a miles per gallon standard set by the Environmental Protection Agency. 26 U.S.C. � 4064.
79 Implementation of Corporate Average Fuel Economy (CAFE) Standards: Hearing Before the Subcomm. on Energy & Power of the House Comm. on Commerce, 104th Cong. 7 (1995) (testimony of Barry Felrice, Associate Administrator for Safety Performance Standards, National Highway Traffic Safety Administration, DOT) [hereinafter Implementation of CAFE Hearing of 1995].
80 See 49 U.S.C. � 32902(b).
81 Implementation of CAFE Hearing of 1995, supra note 79 (testimony of Felrice). Light trucks are given special treatment by Congress because farmers and rancher were their principal purchasers. National Security & Strategies for Reducing Oil Imports: Hearing Before the House Comm. on Resources, 109th Cong. (2000) (testimony of Daniel F. Becker, Director Global Warming & Energy Program, Sierra Club); see also Conner, supra note 76, at 443 n.101. CAFE imposes civil penalties on manufactures who fail to comply. 49 U.S.C. � 32912(b).
82 Implementation of CAFE Hearing of 1995, supra note 79, at 19 (testimony of Andrew H. Card, Jr., President & CEO, Am. Auto. Mfrs. Ass’n.).
83 Miscellaneous Energy Policy and Conservation Act Bills: Hearing Before the Senate Comm. On Energy and Natural Resources, 105th Cong. 7–10 (1997) (testimony of Sen. Daniel K. Akaka, graph included).
84 See Implementation of CAFE Hearing of 1995, supra note 79 (testimony of Diane K. Steed, President, Coalition for Vehicle Choice).
85 “[I]n 1994 oil imports were 45% compared to 35% in 1973.” Implementation of CAFE Hearing of 1995, supra note 79, at 19 (testimony of Card).
86 Motor Vehicle Fuel Efficiency Act of 1989: Hearing Before the Subcomm. of the Senate Comm. on Commerce, Science, & Transportation, 101st Cong. 313 (1989) (testimony of BMW) [hereinafter 1989 Hearings]; Conner, supra note 76, at 439. SUVs and light trucks comprise 50% of the new vehicle market. See National Security and Strategies for Reducing Oil Imports: Hearing Before the House Comm. on Resources (testimony of Becker). As of early 2001, “[f]ederal figures show the fuel economy of the nation’s fleet of cars and light trucks is at its lowest level in two decades, due largely to the increasing popularity of light trucks, a category that includes pickups, sport-utility vehicles and minivans.” Jim VandeHei, GOP Warns GM, Auto Industry About Fuel-Efficiency Standards, Wall St. J., June 21, 2001, at A4.
87 See 1989 Hearings, supra note 86, at 312 (testimony of BMW).
88 VMT consists of the total number of miles traveled by all vehicles. Office of Technology Assessment, U.S. Congress, Improving Automobile Fuel Economy: New Standards, New Approaches 39 (1991). Driver behavior and the number of drivers on the road determine the VMT. Id. at 41.
89 See Implementation of CAFE Hearing of 1995, supra note 79, at 17 (testimony of Card); 1989 Hearings, supra note 86, at 164 fig.1 (testimony of Hal Bracken, Group Vice President, Customer Relations & U.S. Products, Toyota Motor Sales, U.S.A.).
90 Although critics apparently have not focused on the fact that fuel efficiency reduces the cost of driving and, therefore, contributes to an increase in vehicle miles traveled, this is the logical extension of their argument that, as costs go down, driving increases. See 1989 Hearings, supra note 86, at 313 (testimony of BMW) (“If anything, the improved fuel economy induced more driving.”).
The vehicle miles traveled increased 127% between 1970 and 1997. Clean Air & Wetlands Budget Hearing: Hearing Before the Senate Comm. on Environment & Public Works, 109th Cong. (2000) (testimony of Robert Perciasepe, Assistant Administrator, Office of Air and Radiation, U.S. Environmental Protection Agency). The New York Times reports that the number of miles traveled by vehicles declined in 2000 after 20 years of increases. Economists and other transportation experts believe that increases in fuel prices have caused the decrease. Matthew L. Wald, Despite More Cars, Miles Fall For the First Time in 20 Years, N.Y. Times, Apr. 2, 2001, at A12.
91 Auto Fuel Efficiency Standards: Hearing Before the Subcomm. on Energy Conservation & Power of the House Comm. on Energy & Commerce, 98th Cong. 175 (1983) (testimony of Martin L. Anderson, Executive Officer, Future of the Auto. Program, Mass. Inst. of Tech.); see also id. at 176 (“most international policies related to fuel consumption have been directed at consumer behavior”); infra notes 172–175 and accompanying text.
92 See Implementation of CAFE Hearing of 1995, supra note 79, at 19 (testimony of Card); Conner, supra note 76, at 439; see also 1989 Hearings, supra note 86, at 312 (testimony of BMW).
93 1989 Hearings, supra note 86, at 312 (testimony of BMW); Conner, supra note 76, at 439–440; see also Implementation of CAFE Hearing of 1995, supra note 79, at 15 (testimony of Felrice).
94 1989 Hearing, supra note 86, at 268 (comments of American Suzuki Motor Corp.). “Although its supporters assert that [CAFE] is the best approach to improving automobile fuel efficiency, in fact it would undermine fuel efficiency goals in several ways.” Id.
95 Implementation of CAFE Hearing of 1995, supra note 79, at 7 (testimony of Felrice) (from 16.2 to 28.2 mpg).
96 Id.; see also 1989 Hearings, supra note 86, at 75 (testimony of James J. MacKenzie, Senior Assoc., Climate, Energy & Pollution Program, World Resources Inst.) (since 1973 VMT increased 33%, but gasoline use increased only by 10%).
97 Implementation of CAFE Hearing of 1995, supra note 79, at 7 (testimony of Felrice); id at 25 (testimony of Clarence M. Ditlow, Director, Center for Auto Safety, that CAFE “reduced oil consumption by 3 million barrels per day”).
98 See id. at 3 (testimony of Rep. John D. Dingell (“with the benefit of . . . experience I think it is appropriate for us to ask whether [CAFE] is functioning as it should . . . or whether there should be a change in the basic statute”).
99 See supra note 5 and accompanying text.
100 See supra note 5 and accompanying text.
101 Critics who claim a legal backfire also often focus on the costs of a law, of course.
102 See supra notes 19–43 and accompanying text.
103 For example, legal theorists have claimed that the unconscionability doctrine, which polices the fairness of contract terms, backfires. They contend that, although ineffectual, the doctrine allows privileged parties to assert the fairness of contract law and therefore to preserve unfair terms. See, e.g., Duncan Kennedy, Distributive and Paternalist Motives in Contract and Tort Law, With Special Reference to Compulsory Terms and Unequal Bargaining Power, 41 Md. L. Rev. 563, 622 (1982).
104 For example, conservatives claimed the fairness doctrine backfired and liberals asserted the repeal was itself a backfire. See supra notes 69–70 and accompanying text.
105 See supra notes 44–72 and accompanying text.
106 See Part I A.
107 See Robert A. Hillman, “Instinct With an Obligation” and the “Normative Ambiguity of Rhetorical Power,” 56 Ohio St. L.J. 775, 810 (1995); see also id. at 811 (“[A]n important ingredient or catalyst in achieving legal change is the availability and use of some powerful rhetoric to propel courts confidently toward new methods and approaches.”).
108 Richard A. Posner, Law and Literature: A Misunderstood Relation 311 (1988).
109 See supra notes 18–43 and accompanying text.
110 See supra notes 44–72 and accompanying text.
111 See Garth S. Jowett & Victoria O’Donnell, Propaganda and Persuasion 290–291 (3d ed. 1999); Douglas Walton, Ad Hominem Arguments 28–31 (1998). “It hardly needs saying that we share with the proponents of hate crime laws the goal of a tolerant society . . . .” See generally Jacobs & Potter, supra note 1 (predicting a backfire because of the “conflict-generating tendency of identity politics”).
112 Cf. David G. Myers, Exploring Social Psychology 122–251 (2d ed. 2000) (discussing reason and emotion as the content of messages); Vaughan, supra note 9, at 584–95 (describing the vitriolic nature of right-wing assaults on the Endangered Species Act).
113 Daniel M. Filler, Making the Case for Megan’s Law: A Study in Legislative Rhetoric, 76 Ind. L.J. 315, 350 (2001).
114 See Steven D. Stark, Writing to Win: The Legal Writer 61–70 (1999).
115 See, e.g., Filler, supra note 113, at 324–25 (“Legislative debate is an opportunity for representatives to both inform the media and the public, and to shape public opinion.”).
116 See id. at 353–54 (discussing the unreliable statistics on child abduction); see also supra Part I and infra notes 123, 197–198 and accompanying text.
117 See generally Lee Epstein & Gary King, Empirical Research and the Goals of Legal Scholarship: The Rules of Inference, 69 U. Chi. L. Rev. 1 (2002); John Monahan & Laurens Walker, Empirical Questions Without Empirical Answers, 1991 Wis. L. Rev. 569 (1991); Peter H. Schuck, Why Don’t Law Professors Do More Empirical Research?, 39 J. Legal Educ. 323 (1989).
118 See supra note 117.
119 N.Y. Pers. Prop. � 330–353 (McKinney’s 1999).
120 Id. �� 337 5, 343 2.
121 Id. � 337 14 (d), (f).
122 See, e.g., Consumer Leasing Act of 1976, 15 U.S.C. � 1601; U.C.C. � 2A (1998); Kenneth J. Rojc & Thomas K. Juffernbruch, State Laws Response to the New Regulation M, 53 Bus. Law. 1027, 1027–40 (1998).
123 See Sunstein, supra note 4, at 409 (“empirical assessments of the consequences of regulation remain in a primitive state”). Because empirical work is so thin, the occasional published study may gain more attention than warranted, especially if it includes “precise quantification” that suggests “objective fact.” Lisa Heinzerling, Regulatory Costs of Mythic Proportions, 107 Yale L.J. 1981, 1986 (1998).
124 See supra notes 85–98 and accompanying text.
125 Sunstein, supra note 4, at 422–23 (citing Werner Z. Hirsch et al., Regression Analysis of the Effects of Habitability Law upon Rent: An Empirical Observation on the Ackerman-Komesar Debate, 63 Cal. L. Rev. 1098, 1139 (1975)).
126 Hirsch states that although results of empirical studies of housing supply and demand would “be informative as to the costs and benefits of habitability laws, such estimation is beyond the scope” of the article. Hirsch et al., supra note 125, at 1124.
127 See, e.g., Robinson v. Diamond Hous. Corp., 463 F. 2d 853, 860 (D.C. Cir. 1972) (relying on a Yale Law Journal study that housing code enforcement does not increase rents); Anthony T. Kronman, Paternalism and the Law of Contracts, 92 Yale L.J. 763, 773–74 (1983).
128 See Robinson, 463 F. 2d at 860, criticized in Hirsch et al., supra note 125, at 1130; see also Gaylene J. Styve et al., Perceived Condition of Confinement: A National Evaluation of Juvenile Boot Camps and Traditional Facilities, 24 Law & Hum. Behav. 297, 297 (2000) (perception of juvenile offenders is that boot camps provide “a more positive environment,” countering criticism of other studies suggesting boot camps create hostile environment).
129 Purposes and goals may, of course, change over time too.
A very common phenomenon, and one very familiar to the student of history, is this. The customs, beliefs, or needs of a primitive time establish a rule or a formula. In the course of centuries the custom, belief, or necessity disappears, but the rule remains. The reason which gave rise to the rule has been forgotten, and ingenious minds set themselves to inquire how it is to be accounted for. Some ground of policy is thought of, which seems to explain it and to reconcile it with the present state of things; and then the rule adapts itself to the new reasons which have been found for it, and enters on a new career.
Oliver Wendell Holmes, The Common Law 5 (Little, Brown & Co. 1881).
130 See infra Part IV.
131 See infra Part IV.
132 See infra Part IV. For another example, the proximate goal of the Clean Air Act is to reduce auto emissions by setting limits for new cars. A more long-term aspiration is to improve the public’s health by cleaning the air. Although the reduction in emissions can be measured, it will be very difficult to determine the extent to which the air became cleaner and health improved as the result of new-car emission reduction. As a result, critics can claim that the Clean Air Act only encouraged the use of old cars, thereby increasing air pollution and damaging health. See Sunstein, supra note 4, at 418. For still another example, boot camps for juvenile offenders are meant to keep juveniles out of jail, decrease costs of juvenile penal rehabilitation, and decrease recidivism. Reports are surfacing that boot camps have backfired at least with respect to the rehabilitation goal. See, e.g., Rod Smith, Toward a More Utilitarian Juvenile Court System, 10 U. Fla. J.L. & Pub. Pol’y 237, 244–45 (1999).
133 See supra notes 53, 61 and accompanying text.
134 See, e.g., Omri Ben-Shahar, Formalism in Commercial Law: The Tentative Case Against Flexibility in Commercial Law, 66 U. Chi. L. Rev. 781, 781 (1999).
135 See id.
136 See id.
137 See id.
138 See id.
139 A verbal protest should do. See U.C.C. � 2–208(1) (“any course of performance accepted or acquiesced in without objection shall be relevant to determine the meaning of the agreement”) [emphasis added]. Moreover, courts do not appear to make many errors in determining when to establish a course of performance. See Robert A. Hillman, More in Defense of UCC Methodology, 62 La. L. Rev. (forthcoming 2002). But see Lisa Bernstein, Merchant Law in a Merchant Court: Rethinking the Code’s Search for Immanent Business Norms, 144 U. Pa. L. Rev. 1765, 1813 (1996) (it will be “difficult” for parties to “negate the influence” of their conduct on how courts interpret contracts).
140 Robert A. Hillman, Court Adjustment of Long-Term Contracts: An Analysis Under Modern Contract Law, 1987 Duke L.J. 1, 5–6; see also Victor P. Goldberg, Relational Contract: Price Adjustment in Long-Term Contracts, 1985 Wis. L. Rev. 527, 532; Robert A. Hillman, The Limits of Behavioral Decision Theory in Legal Analysis: The Case of Liquidated Damages, 85 Cornell L. Rev. 717, 724–25 (2000).
141 See Lynn M. LoPucki, Legal Culture, Legal Strategy, and the Law in Lawyers’ Heads, 90 Nw. U. L. Rev. 1498, 1555 (1996) (different “legal cultures” construe laws differently).
142 See supra notes 31–32 and accompanying text.
143 See supra note 35 and accompanying text.
144 Rosenbaum, supra note 5, � 4, at 2.
145 Id.
146 Id. For other examples, the Highway Beautification Act ironically created incentives for landowners “to build as many lawful billboards as possible.” Albert, supra note 5, at 498. The “best available technology” strategy of pollution control may deter industry from innovating. Sunstein, supra note 4, at 420–21.
147 See supra notes 85–98 and accompanying text.
148 Conner, supra note 76, at 441; see also G. Henry M. Schuler, Transportation Fuels, in U.S. Energy Imperatives for the 1990s: Leadership, Efficiency, Environmental Responsibility, and Sustained Growth 143, 147 (Donald L. Guertin et al. eds., 1992).
149 See Conner, supra note 76, at 441.
150 See supra notes 91–92 and accompanying text.
151 See generally infra Part IV. The importance of understanding behavior applies, of course, not only to understanding the general citizenry, but also to people administering the law. See Sunstein, supra note 4, at 413–16. “A stringent standard—one that forbids balancing or calls for regulation to or beyond the point of ‘feasibility’—makes regulators reluctant to act.” Id. at 416.
152 See supra note 14 and accompanying text.
153 James A. Henderson, Jr. & Jeffrey J. Rachlinski, Product-Related Risk and Cognitive Biases: The Shortcomings of Enterprise Liability, 6 Roger Williams U. L. Rev. 213, 249 (2000).
154 Ann Lousin, Proposed UCC 2–103 of the 2000 Version of the Revision of Article 2, 54 SMU L. Rev. 913, 913–14, 916–19 (2001).
155 See U.C.C. � 2–102; Bonebrake v. Cox, 499 F.2d 951, 959 (8th. Cir. 1974).
156 The revisers floated a comment that provides in part: “As goods containing computer programs evolve, it is likely that the courts’ approach to disputes about the goods will also evolve. It would be premature at this point to mandate any one particular approach in this evolving area. Thus, this section takes no position on this matter.” American Law Institute Discussion Forum, Mar. 9, 2001, formerly reachable on Internet at http://www.ali.org/forum/forum1.htm (no longer available because of continuing revisions).
A related problem involves the difficulty of attempting to create a legal solution for problems inherent in complex systems that contain many interdependent elements:
People’s incomplete and inaccurate understanding of risk confounds efforts to identify the system of products liability that would best encourage appropriate patterns of product design, production, marketing, use and consumption. Liability rules affect all of these elements and they all interact with one another. Given these realities, the regulator’s task seems hopeless.
Henderson & Rachlinski, supra note 153, at 213–14 (commenting on the potential backfire of enterprise liability).
157 “Laws do not spring forth from a groundswell of public opinion, but rather are the product of lobbying by interested (‘interest’) groups that must mobilize support among politicians.” Jacobs & Potter, supra note 1, at 66. In fact, Sunstein points out that the “public choice” literature suggests the absence of true legal backfires because special interests desire the seemingly perverse outcome. Sunstein, supra note 4, at 429–30. For example, “the purpose of minimum wage legislation might not be to help the poor, but rather to immunize union members from competition by people who are willing to work for low wages by limiting entry into the labor market.” Id. at 430.
158 See, e.g., William S. Blatt, Interpretive Communities: The Missing Element in Statutory Interpretation, 95 Nw. U. L. Rev. 629, 638 (2001) (“large and diffuse” interests “are under represented” because they “have difficulty organizing” due to the free-rider problem).
159 The Miami Herald reports that “[m]embers of a coalition representing Visa, MasterCard and banking industry groups gave more that $5 million to the two major political parties and their candidates in 1999 and 2000, a 40 percent increase from the previous presidential election, according to the Center for Responsive Politics.” Harriet Johnson Brackey, Wiping Out Debt To Get Tougher, Miami Herald, Mar. 15, 2001, at 1C.
160 Harriet Johnson Brackey, Senate OK’s Overhaul of U.S. Bankruptcy Law: Bill Limits Shield on Homes of Debtors, Miami Herald, Mar. 16, 2001, at 1A.
161 See Teresa A. Sullivan, et al., As We Forgive Our Debtors: Bankruptcy and Consumer Credit in America 178–79, 188–89 (1989).
162 See Robert A. Hillman, The “New Conservatism” in Contract Law and the Process of Legal Change, 40 B.C. L. Rev. 879, 885–86 (1999); see also William Blatt, The American Dream in Legislation: The Role of Popular Symbols in Wealth Tax Policy, 51 Tax L. Rev. 287, 331 (1996).
163 See Hillman, supra note 162, at 885.
164 See infra Part IV.
165 Albert, supra note 5, at 496, 498.
166 Crandall et al., supra note 77, at 89–90.
167 See Implementation of CAFE Hearing of 1995, supra note 79, at 4 (testimony of Felrice).
168 See Albert, supra note 5, at 500–06.
169 Id.
170 See supra note 92 and accompanying text.
171 See supra note 92 and accompanying text.
172 See supra note 92 and accompanying text.
173 John Holusha, Bigger Cars’ Worries Detroit, N.Y. Times, Feb. 21, 1982, at � 1, part 1, at 26; see also Everett M. Ehrlich, The Problem of Oil-Import Dependence, in Energy-Policy Analysis and Congressional Action 9, 9–10 (Raymond C. Scheppach & Everett M. Ehrlich, eds., 1982).
174 Implementation of CAFE Hearing of 1995, supra note 79, at 8 (testimony of Felrice).
175 See 1989 Hearings, supra note 86, at 313 (testimony of BMW).
176 Joan Claybrook & David Bollier, The Hidden Benefits of Regulation: Disclosing the Auto Safety Payoff, 3 Yale J. on Reg. 87, 120–21 (1985).
177 See supra notes 124–126 and accompanying text.
178 Sunstein, supra note 4, at 422, relying on Finis Welch, Minimum Wages: Issues and Evidence (1978).
179 Id. at 428–29, relying on W. Kip Viscusi, Consumer Behavior and the Safety Effects of Product Safety Regulation, 28 J.L. & Econ. 527, 544, 546 (1985).
180 For example, critics of disclosure laws admit there may be many reasons for consumers to take on greater risk. Viscusi, supra note 179, at 546; see also infra notes 188–189, and accompanying text (minimum wage laws do not invariably produce greater unemployment).
181 See supra Part I; see also Katharine Q. Seelye, Bush is Choosing Industry Insiders to Fill Several Environmental Positions, N.Y. Times, May 12, 2001, at A10; Vaughan, supra note 9, at 600 (“industry and business groups are seeking substantial amendments to the ESA in order to weaken it for all projects”).
182 See Edward H. Levi, An Introduction to Legal Reasoning 5–6 (1949).
183 See Inquiry supra note 51 and accompanying text.
184 See David Chang, Selling The Market-Driven Message: Commercial Television, Consumer Sovereignty and the First Amendment, 85 Minn. L. Rev. 451, 480 (2000). “[A] focus on [economic] markets reveals that direct regulation of programming is virtually always an unnecessary intrusion into broadcasters’ rights of free speech, and that the [Federal Communications] Commission can attain truly sensible goals without overseeing stations’ editorial decisions.” Id. at 457 (quoting Thomas Krattenmaker & Lucas Powe, Jr., Regulating Broadcast Programming 45 (1994)); see also Conrad, supra note 64, at 184 (FCC at time of the decision was expressly “pro-industry [and] anti-regulatory”). “[T]elevision is just another appliance. It’s a toaster with pictures.” Conrad, supra note 64, at 184 (quoting former FCC Chairman Mark Fowler). Id. at 184–85.
185 Sunstein, supra note 4, at 407. Although Sunstein distinguishes “strategies whose costs exceed their benefits” from “regulatory strategies . . . that achieve an end precisely opposite to the one intended,” many of Sunstein’s examples do not constitute legal backfires, at least the way I have defined them. See id. For example, Sunstein discusses the Environmental Protection Agency’s decision to impose emission controls solely on new automobiles, thereby “prolong[ing] the use of old, dirty vehicles.” Id. at 418. Although such a strategy may have retarded the Clean Air Act’s goal of reducing pollution, it did not produce a result “precisely opposite to the one intended,” for example, greater pollution. See Crandall et al., supra note 77, at 91–93 (relied on by Sunstein).
186 For example, Sunstein asserts that the EPA’s “‘scrubbing’ strategies for new sources of sulfur dioxide” to reduce coal-burning pollution actually led to the continuance of old, highly polluting methods, thereby “aggravating in many parts of the country the very problem it was designed to solve.” Sunstein, supra note 4, at 418. But Sunstein relies on one book whose authors merely predict that the rules will worsen the environment and that other means could have achieved the goals more cheaply. See Ackerman & Hassler, supra note 5, at 11–12.
187 Sunstein, supra note 4, at 423. Sunstein also writes that “efforts to redistribute resources through regulation will . . . have a serious perverse result.” Id.
188 Id. at 422. Sunstein mentions a few qualifications. First, minimum wage laws and other redistributive regulations may benefit the poor if part of a broader effective welfare system. Id. Second, such laws and regulations may transform society’s “preferences and beliefs,” although he doubts that they do and observes the absence of empirical evidence on the effects of redistributive laws on public opinion. Id. at 424. More generally, Sunstein undermines many of his claims of backfire by calling for better evidence of the magnitude of his “regulatory paradoxes.” Sunstein, supra note 4, at 431 (“[T]he minimum wage might well be justified if its effect is the unemployment of only a few additional people.”).
189 Sunstein cites only Finis Welch, Minimum Wages: Issues and Evidence (1978). The publisher, the American Enterprise Institute, is a conservative “think tank.”
190 David Card & Alan B. Krueger, Myth and Measurement: The New Economics of the Minimum Wage 389 (1995). Card and Krueger delineate the flaws in earlier studies and explain the authors’ statistical analysis of data collected from fast-food restaurants. Id. In a 50-state survey, minimum wage hikes increased wages without negatively affecting employment rates. Id.
191 Sunstein, supra note 4, at 432.
192 See infra sections I–III and accompanying text.
193 Jacobs & Potter, supra note 1, at 40. Other categories are substantive crimes; civil rights statutes; and reporting statutes. Id. at 29.
194 See infra notes 221–222 and accompanying text.
195 “In what way is a crime committed against an individual, because of the individual’s personal characteristics, deserving of greater punishment than a similar crime committed against another individual?” Craig L. Uhrich, Hate Crime Legislation: A Policy Analysis, 36 Hous. L. Rev. 1467, 1505 (1999). Commentators have contributed several justifications, including the “expressive value of punishment,” the greater culpability of perpetrators, the greater harm to victims, the vulnerability of victims, and the greater immorality of hate crimes; see also Anthony M. Dillof, Punishing Bias: An Examination of the Theoretical Foundations of Bias Crime Statutes, 91 Nw. U. L. Rev. 1015, 1016–18 (1997); Frederick M. Lawrence, The Punishment of Hate: Toward a Normative Theory of Bias-Motivated Crimes, 93 Mich. L. Rev. 320, 321 (1994). See generally Sara Sun Beale, Federalizing Hate Crimes: Symbolic Politics, Expressive Law, or Tool for Criminal Enforcement, 80 B.U. L. Rev. 1227, 1229 n.5 (2000) (compiling authors’ perspectives).
196 See, e.g., Uhrich, supra note 195, at 1476–77.
197 Marc Fleisher, Down the Passage Which We Should Not Take: The Folly of Hate Crime Legislation, 2 J.L. & Pol’y 1, 1–2 (1994).
198 See Jacobs & Potter, supra note 1, at 8, 130 (mentioning goals).
199 The theories supporting enhanced punishment of hate crime mongers coincide with general theories of punishment, namely retribution, incapacitation, rehabilitation, and deterrence. See generally Uhrich, supra note 195, at 1489–1521.
200 Fleisher, supra note 197, at 2. A typical statute subjects defendants to additional punishment when the victim was “intentionally selected . . . because of the race, religion, color, disability, sexual orientation, national origin or ancestry of that person.” Id. at 4, quoting Wis. Stat. � 939.645 (1990); see also Jacobs & Potter, supra note 1, at 40–41.
201 John Leo, The Politics of Hate, U.S News & World Report, Oct. 9, 1989, at 24, quoted in Jacobs & Potter, supra note 1, at 4.
202 See Jacobs & Potter, supra note 1, at 8, 109. In addition, critics predict that, because of outrage in the victim’s community, prosecutors will be unable to resist filing unwarranted charges, or that prosecutors will turn bias crimes against the people they were designed to protect. Id. at 134(discussing “black racism”); see id. at 109.
203 Id. at 5.
204 Id. at 132. Hate crime laws might promote a “balkanization of society instead of promoting “our common civic culture.” Id. at 132 (quoting Jim Sleeper, In Defense of Civic Culture at 2 (Washington, D.C. Progressive Foundation, 1993)).
205 Id. at 135–36.
206 Id. at 132–34, 137–42. For example, they supply several anecdotes of “jurisdiction politicking” about what should be included as a hate crime. Id. at 133.
207 See Jacobs & Potter, supra note 1, at 10.
Our concern is that rewriting criminal law to take into account the racial, religious, sexual, and other identities of offenders and victims will undermine the criminal law’s potential for bolstering social solidarity. By redefining crime as a facet of intergroup conflict, hate crime laws encourage citizens to think of themselves as members of identity groups and encourage identity groups to think of themselves as victimized and besieged, thereby hardening each group’s sense of resentment. That in turn contributes to the balkanization of American society, not to its unification.
Id. at 131; see also id. at 132.
208 Id. at 3; see also id. at 147.
209 Id. at 147 (“We do not believe that across-the-board sentence enhancement for hate crimes can be justified.”).
210 Id. at 146–47.
211 See id. at 9. “Practically nothing is known about the incidence of hate crimes . . . .” Id.; see also id. at 47–48, 59, infra notes 221–222, supra Section II B. Although I focus on certain instrumental effects of hate crime laws, the reader should not discount other issues pertaining to whether to retain the laws. For example, even if hate crime laws exacerbate negative identity politics, perhaps they should be retained if they deter perpetrators or ameliorate the psychological effect on victims or the damage to their communities. For a discussion of the latter two justifications for hate crime laws, see Lawrence, supra note 195, at 342–43, 347. The evidence on the deterrence effect of hate crime laws is slim. One study appears to suggest a moderate decline in hate crimes in one city after hate crime legislation. 1992–1996 San Diego Hate Crimes Registry Executive Summaries, available at http://www.adl.org/ (July 2000) (17 percent decline in such crimes in San Diego in 1996).
212 See supra Part II.
213 See supra notes 199–202 and accompanying text.
214 Joshua Dressler, Understanding Criminal Law 121 (3d ed. 2001) (“A defendant’s motive is often relevant in the criminal law.”); see also Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (applying mixed-motive analysis in employment discrimination cases); Wisconsin v. Mitchell, 508 U.S. 476, 485–87 (1993) (considering motive in sentencing); Restatement (Second) of Contracts � 71 cmt. b (1979) (providing that consideration requires a motive to extract something from one’s exchange partner).
215 Carol S. Steiker, Book Review, Punishing Hateful Motives: Old Wine in a New Bottle Revives Calls for Prohibition, 97 Mich. L. Rev. 1857, 1869 (1999).
216 Id. at 1868 (“[I]t is and has always been commonplace . . . to punish what we now call ‘hate crimes’ more than ordinary assaults or murder, even before a single hate crime law was ever passed.”).
217 “[T]here is no reliable evidence from which to conclude that the incidence of [hate] crimes is greater now than previously, or that the incidence is increasing.” Jacobs & Potter, supra note 1, at 6.
218 “Fundamentally, the hate crime laws are symbolic statements requested by advocacy groups for material and symbolic reasons and provided by politicians for political reasons.” Id. at 65.
219 Id. at 67–68.
220 See id.
221 See id. at 59–63. Jacobs and Potter report on the hate crime statistics generated by the FBI, but conclude that the “data are all but useless for discerning trends, because of the variation in the number of states and police departments reporting.” Id. at 59. But see Christopher Chorba, The Danger of Federalizing Hate Crimes: Congressional Misconceptions and the Unintended Consequences of the Hate Crimes Prevention Act, 87 Va. L. Rev. 319, 341 (2001) (“[I]t is irresponsible to claim that hate crimes are on the rise, and a more accurate and optimistic conclusion would be that hate crimes are on a steady decline.”).
222 See Lu-in Wang, Hate Crimes Law �� 1:1, :2, :3 (Release #7 November 2000); Kendall Thomas, Beyond the Privacy Principle, in After Identity: A Reader in Law and Culture 277, 286 (Dan Danielsen & Karen Engle eds., 1995); Lawrence, supra note 195, at 342 n.85; Uhrich, supra note 195, at 1473. Jacobs and Potter, however, effectively debunk some of the media’s, politicians’, and scholars’ proof of a hate crime epidemic. See Jacobs & Potter, supra note 1, at 45–64.
Allegations of racial harassment have burgeoned in the past ten years. Fred Tasker, Nooses as Racial Threats Still a Disturbing Reality: Bigotry, 1991 Law Prompt a Rapid Rise In Lawsuits, Miami Herald, Mar. 2, 2001, at 1A. The newspaper reports an increase from 9,757 to 47,175 allegations from the 1980s to the 1990s and concludes that “[t]he explosion of lawsuits seems to contradict the belief among many sociologists that race relations in America are slowly getting better.” Id. at 1A.
223 Uhrich, supra note 195, at 1493–94. “A hate criminal with the textbook psychological profile of extreme prejudice is likely to increase his or her violent activity upon release from prison.” Id. at 1494; see also Jacobs & Potter, supra note 1, at 68.
224 Jacobs & Potter, supra note 1, at 68.
225 See supra notes 222–224 and accompanying text.
226 Granted, some of the anecdotes are headline worthy and emotional. But that is part of the problem, especially when an incident actually has little to do with hate crime laws. For example, Jacobs and Potter devote two pages to the racial disharmony caused by the attack on a white, female jogger in Central Park by several young blacks and Hispanics. Jacobs & Potter, supra note 1, at 140–142. The hysteria, however was not caused by hate crime laws. Jacobs and Potter only insinuate that a hate crime prosecution would have “exacerbated tensions.” See id. at 142.
227 See id. at 91, 130; Alan Schwartz, The Default Rule Paradigm and the Limits of Contract Law, 3 S. Cal. Interdisc. L.J. 389, 413 (1993) (“The ‘transformative function’ of a legal rule is to change preferences: rules can teach what good actions or states of affairs are.”); Andrew E. Taslitz, Condemning the Racist Personality: Why the Critics of Hate Crimes Legislation are Wrong, 40 B.C. L. Rev. 739, 742, 781 (hate crime laws allow society to see victims as individuals).
228 Brian Levin & Jack Levin, Book Review, 566 Annals Am. Acad. Pol & Soc. Sci. 190 (1999).
229 “As for the presumed divisiveness of hate crime legislation, just the opposite is true: coalitions for hate crime laws have arisen across a broad spectrum of groups and ideologies . . . .” Id.