[*PG819]THE RHETORIC OF LEGAL BACKFIRE
Abstract: This Article focuses on legal backfire claims. A claim of legal backfire constitutes the position that a law produces or will produce results directly contrary to one or more of those intended. Legal backfire claims are pervasive, yet potentially misleading and harmful argumentation used primarily to undermine existing law (or policy) or to forestall the enactment of new law. This Article analyzes many examples of legal backfire to suggest that the concept is often a rhetorical strategy for opposing the promulgation of new law or policy or for attempting to have existing law rolled back, and that actual legal backfires are much more rare (or at least unproven) than use of the rhetoric would suggest. This Article also addresses a much more basic problem: the challenges to effective lawmaking and the limitations of techniques to evaluate the effects of law make an accurate assessment of law problematic. Ultimately, this Article suggests that lawmakers should proceed with caution when dealing with legal backfire claims because critics of laws almost invariably author these claims, the claims are rhetorically charged, and the claims themselves are extraordinary.
Critics of hate crime legislation claim that the laws “may inflame prejudice rather than eradicate it.”1 The Endangered Species Act, some analysts assert, has destroyed some of the very creatures the Act intended to protect.2 Consumer protection laws are said to increase [*PG820]prices and confuse consumers instead of arming them with legal rights.3
These are examples of a pervasive, yet potentially misleading and harmful mode of argumentation, I shall call “legal backfire” rhetoric, used primarily to undermine existing law (or policy) or to forestall the enactment of new law. A claim of legal backfire constitutes the position that a law produces or will produce results directly contrary to one or more of those intended.4 The inventory of purported legal backfires is almost endless.5 So is the list of sources of the claim, in[*PG821]cluding special interest groups, lawyers, legal theorists, legislators, administrators and journalists, of all political stripes.6
If all of the assertions of legal backfire were to be believed, our law and policy makers would be doing a very poor job, to put it mildly. In this Article, however, I analyze many examples of “legal backfire” to suggest that the concept is often a rhetorical strategy for opposing the promulgation of new law or policy or for attempting to have existing law rolled back and that actual legal backfires are much more rare (or at least unproven) than use of the rhetoric would suggest.7 In fact, I will show that true legal backfires may be so infrequent and use of the rhetoric so common that backfire allegations should be met presumptively with suspicion rather than credence.
If I am correct about the suspiciousness of backfire rhetoric, this leads to the question of why so few laws or policies, in place or suggested, have been immune from the “legal backfire” allegation. There are many reasons to be discussed in this Article.
First, legal backfire argumentation is very effective rhetoric. Although simple and direct, it appears to close off debate. Unlike the allegation that a law creates unintended costs, which invites a debate about costs and benefits, the legal backfire claim leaves little room for rebuttal (except, of course, based on the factual accuracy of the assertion).8 Backfire rhetoric is also dramatic and ironic, thereby capturing the attention of the listener. Backfire arguments also appeal to the [*PG822]emotions because of their complete and utter renunciation of the opposing position’s methods for achieving a goal, and are a source of emotional release for authors of the backfire claim in an impassioned atmosphere.9
Second, the dearth of persuasive empirical or other evidence that analyzes the success or failure of a law invites critics to raise the level of rhetoric about the harmfulness of a law. Relatedly, the multiplicity of goals of a law allows critics to seize upon at least one goal difficult or impossible to measure instrumentally and therefore a prime candidate for a backfire claim. In fact, often the highest aspiration of a law is the most difficult to evaluate accurately and therefore an excellent target of backfire critics.10
Third, crafting laws is an uncertain science. Lawmakers face many challenges pertaining to both creating the appropriate substance of the law and navigating through the processes of lawmaking.11 Substantive concerns include minimizing hurdles to implementation and enforcement of the law, choosing the appropriate target groups, assessing the possibility of changed circumstances, and avoiding the creation of loopholes. Process issues include dealing with special interests, evaluating the role of public opinion, and adopting appropriate strategies of political compromise.12 The range of potential factors that might lead to a backfire confers on critics of a law lots of ammunition to try to support their position that a law has backfired and encourages critics to make the argument in the first place.
If legal backfire rhetoric is omnipresent and persuasive, but often inaccurate, it also can be a hindrance to effective lawmaking. Repeated claims of backfire contribute to an anti-regulatory environment that may be unjustified and unhelpful. Serious issues may be short-changed by undocumented claims of legal backfire, which by their number and rhetorical force can poison the atmosphere against creative and effective lawmaking. Indiscriminate legal backfire argu[*PG823]ments also undermine lawmakers’ and the public’s faith in particular laws that may be serving a salutary purpose. Finally, the strategy deters lawmakers from carefully reviewing difficult issues of social policy and instigates “quick-fixes,” which ultimately may be very unsatisfactory responses to problems.
The point here is not that I can prove that there are no legal backfires nor that I believe there are none. One claim of legal backfire often heard, for example, involves the United States’ economic embargo of Cuba that was supposed to lead to the demise of the Castro regime.13 Along with others, I suspect that, instead, the policy is “the one thing that keeps [Castro] in power, keeping up [Cuba’s] police state” by creating a “nationalistic aura” around Castro’s rule.14 Despite my personal hunch, however, I would urge treating this backfire claim exactly as any other. As with any other law or policy facing serious criticism, the government should engage in a comprehensive review of its policy towards Cuba that takes into account the backfire claim, but it should not be swayed solely by the rhetoric of legal backfire.
I also do not want to argue against people being zealous advocates or to cast aspersions on the motives of backfire claimants.15 In fact, a supportable backfire claim obviously may be the most pertinent argument against adopting or continuing a law.16 Moreover, the variety of motives for a backfire claim appear to run the gamut from economic self-interest, to philosophical differences with a law, to conflicting value preferences. Few seem to have been made in bad faith, simply to deceive the listener. In other words, my aim is not to [*PG824]stifle healthy dialogue about the merits of laws, but to ask law and policy makers carefully to evaluate the support for backfire arguments and not to be taken in solely by the rhetoric.17
Part I of this Article sets forth and discusses three prominent examples of claimed legal backfires and evaluates the merits of the arguments. I conclude that the claims are seriously deficient. Part II explains why backfire arguments are so pervasive. Part III enumerates the dangers of relying on assertions of legal backfire. Part IV illustrates how lawmakers can utilize the learning of the first three parts, by focusing on one purported legal backfire involving recent hate-crime legislation. How should lawmakers react to arguments that hate crime laws increase intolerance and prejudice and therefore constitute legal backfires? I conclude that they should be very wary of the claims.
In this subsection, I have selected three prominent examples of the use of legal backfire rhetoric. One contributed to the demise of a law, two may help induce the same consequence. Each involves regulation by an administrative agency but, as the rest of the paper shows, the kinds of problems that led critics to cry backfire are by no means limited to agency administration. These selections show the nature of a legal backfire argument, the breadth of its use, and the sources and force of the rhetoric.
In order to protect and preserve endangered species, Congress sought in the Endangered Species Act18 (ESA) “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved . . . .”19 Such conservation [*PG825]benefits society because of the “esthetic, ecological, educational, historical, recreational, and scientific value” of endangered species.20
The Department of Interior’s Fish and Wildlife Service [FWS] implements the law for land, which is the focus here.21 The FWS must identify and “list” species in need of protection because endangered or threatened.22 Although the ESA charges the FWS to promulgate recovery plans for listed species to increase a species’ chance of survival23 and to designate “critical habitat,” which protects such habitat against federal activity,24 the heart of the legal backfire claim involves the Act’s regulation of private land.25 Before listing a species as endangered or threatened, the FWS must notify the public of its intention to do so through publication in the Federal Register and in local newspapers.26 The ESA then protects listed animals from activity on privately owned land that is harmful to them, including private land development or harvesting of the land.27
[*PG826] The ESA may well be the prime target of opponents of environmental causes.28 Not surprisingly, critics claim that the Act is a legal backfire. Not only do critics assert that the private-land provisions excessively stifle development and therefore unfairly limit landowners’ rights, which are clear costs of the legislation,29 opponents also claim that these provisions actually accelerate the demise of endangered species.30 The primary asserted cause of this legal backfire is that the Act creates incentives for private landowners, who have notice that the government will soon restrict potentially profitable uses of their land, to avoid the Act’s impact.31 Landowners can do so in several ways. They can destroy or modify the subject species’ habitat on their land or remove the species from their land (or worse) before the protec[*PG827]tions become effective.32 Landowners can also fight the prospective listing before the FWS, in court, and in the court of public opinion, thereby draining resources from the FWS that could otherwise be used to protect additional species.33 Even after the FWS lists a species, the ESA may backfire, critics claim, because the government inadequately enforces the law.34 Despite the Act’s serious penalty provisions, the ESA’s budget is low and few FWS agents police landowner activity.35 As a result, landowners can destroy endangered and threatened species almost with impunity. One vocal opponent of the Act actually supported such criminal activity on the theory that “[w]hen landowners find an endangered animal on their property . . . the best solution under current law is to ‘shoot, shovel, and shut up.’”36
Has the Endangered Species Act backfired because of the private-land restrictions? Although one Congressman claimed to have government confirmation of a large-scale backfire, nothing more than a few anecdotes ultimately supported his assertion.37 Other critics also [*PG828]mainly rely on anecdotes to support their allegations of perverse incentives created by the Act.38 Often-repeated stories, for example, involve landowners clear-cutting the timber on their land to avoid creating habitat for endangered species.39 Still other critics rely on anecdotes to prove that the ESA generally has turned would-be conservationists against wildlife.40 Although one commentator suggested that such avoidance behavior and attitudinal changes constituted a trend,41 taken as a whole such stories prove only that the ESA’s landowner restrictions may create perverse incentives and attitudinal changes under certain circumstances and with certain people. They hardly prove that more species are being destroyed than saved as the result of the private land-use restrictions of the Act.
In fact, to date, despite the FWS’s production of hosts of data on the ESA, the Act’s effectiveness remains much of a mystery.42 Still, the best empirical study to date suggests that the ESA creates incentives [*PG829]for private landowners to increase their efforts to protect endangered species.43 The allegation of a legal backfire has not been sustained.
As part of its charge from Congress to “to make available . . . to all the people of the United States a rapid, efficient, nation-wide, and world-wide wire and radio communication service,”44 the Federal Communications Commission (FCC), in a series of decisions and reports, promulgated the fairness doctrine.45 The FCC reasoned that [*PG830]broadcasters, enjoying a limited resource, must operate in the public interest, which requires a full airing of all viewpoints on controversial issues.46
In 1959 Congress amended Section 315(a) of the Communications Act of 1934, to support the FCC’s perception of the fairness obligation. The section underscored broadcasters’ obligation “to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance.”47 In 1967, the FCC promulgated rules to fill out the content of the fairness doctrine such as the duties of a broadcaster to notify a person who was the subject of a personal attack of its content and to offer free reply time.48 In 1969, the Supreme Court held that the fairness doctrine’s regulation of broadcasters did not violate the First Amendment, primarily because of the scarcity of airwaves.49
The fairness doctrine was controversial from the beginning because it regulated the airwaves and because compliance took its toll on the pocketbooks of broadcasters.50 Not surprisingly, predictions of a legal backfire soon surfaced, which culminated in the FCC’s issuance of its “Fairness Report” during the anti-regulatory environment of the Reagan years.51 Despite earlier factual findings by the FCC that the fairness doctrine “enhanc[ed] the flow of diverse viewpoints to the public,”52 the Fairness Report concluded just the opposite. According to the report, the fairness doctrine stifled the airing of con[*PG831]troversial views by creating incentives for broadcasters to avoid all controversial programming and with it the risk of having to offer free time to respondents or of facing costly litigation and penalties, including the possible loss of license.53 In addition, the report found that, in light of the “explosive growth in various communications technologies” available in the marketplace, the public would not suffer from the lack of diverse perspectives.54
Although the FCC did not repeal the fairness doctrine at this time, the handwriting was on the wall. In 1987, after the Court of Appeals for the District of Columbia held that the doctrine was not codified by Section 315(a),55 Congress sent President Reagan a bill that would have made the doctrine federal law.56 Reagan vetoed the bill, allowing the FCC to kill the doctrine, which is exactly what it did. In a remand from the D.C. Court of Appeals in another case that directed the FCC to consider a broadcaster’s claim that the fairness doctrine impinged on its free-speech protections, the FCC concluded in part that the fairness doctrine unconstitutionally “chilled” rather than promoted speech because it discouraged broadcasters from airing controversial issues.57 As elaborated by the FCC:
[A]lthough the [fairness] doctrine was adopted to promote robust discussion of controversial issues, the enforcement of the doctrine has actually had the net effect of reducing rather than enhancing, the discussion of controversial issues of public importance and, therefore violated the constitutional principles announce by the Supreme Court. . . . Consequently, while the doctrine was intended to enhance First [*PG832]Amendment principles, the FCC determined that, in fact, it had the exact opposite result.58
Was the FCC’s determination of a legal backfire substantiated by the facts? The Commission’s decision was based on the record in one case, comments from interested parties, and its 1985 Fairness Report, which the FCC termed “a comprehensive study of the administration and effects of the doctrine on broadcast journalists.”59 Still, these materials failed to shed much light on the fairness doctrine’s actual effect on stations’ broadcast decisions. Much of the FCC’s case against the fairness doctrine centered on whether the increase in outlets for broadcasting diminished the problem of “spectrum scarcity” so that the First Amendment could no longer justify the regulation of broadcaster’s speech.60 When the FCC turned to the question of whether broadcasters aired more or less controversial issues as a result of the fairness doctrine, it largely relied on the Fairness Report, which, in turn, focused not on empirical evidence but on the presumed economic incentive for broadcasters to avoid controversial views.61 Moreover, the FCC failed to account for the possibility that broadcasters would resist the strategy of offering bland, uninteresting programming because such programming would yield lower ratings and revenues. Even less persuasive were the surveys of self-interested [*PG833]broadcasters, who were asked how the fairness doctrine affected them and who testified in large measure about the rather vague “climate of timidity and fear” created by the fairness doctrine.62
Moreover, information began to surface that the fairness doctrine did not inhibit broadcasters. For example, some legislators expressed outrage over the FCC’s decision because it conflicted with Congress’s intent to preserve the doctrine, because the networks continued a ban on paid editorials during network programming even after the repeal,63 and because the FCC’s backfire allegation was unsupported.64 In fact, one legislator called the assertion of the chilling effect of the fairness doctrine “an issue that doesn’t exist.”65 In addition, television network officials, who had opposed the doctrine, then predicted its repeal would have little effect. One executive of a leading network opined, “in all honesty I cannot think of an instance in which the fairness doctrine ever inhibited us.”66 Another broadcaster stated: “This will have no effect on the day-to-day operations of ABC news.”67 Admittedly anecdotal, as admissions against interest, these statements at minimum called into question the fairness doctrine’s effect.
During the mid-nineties, efforts to revive the fairness doctrine were in limbo.68 Proponents continued to press for reinstatement of [*PG834]the doctrine, with little success.69 As might be expected, assertions about the effect of repeal of the fairness doctrine soon sounded the rhetoric of backfire too, with one Senator claiming that repeal did not produce the airing of more factious issues.70 Instead, the Senator asserted, broadcasters produced more entertainment shows at the expense of public issues.71 As of this writing, the possibility of the resurrection of the fairness doctrine appears slim.72
In the early 1970s, long gasoline lines and a dramatic increase in gas prices because of the Organization of Petroleum Exporting Countries’ oil embargo73 convinced Congress to pass the Energy Policy and Conservation Act (EPCA),74 for the purpose of decreasing United States’ dependence on foreign oil.75 The EPCA imposed “corporate average fuel economy” (CAFE) standards on automobile manufacturers of cars sold in the United States.76 CAFE set forth minimum fuel efficiency standards for a manufacturer’s entire fleet of vehicles sold in the U.S.77 CAFE required the Secretary of Transportation to set the “maximum feasible average fuel economy level” by considering, among other things, technology, economics, other motor vehicle fuel [*PG835]efficiency standards, and the U.S.’s energy conservation needs.78 Congress itself set the initial CAFE standard at 18 miles per gallon for 1978 models79 and 27.5 for 1985 and later.80 The EPCA treated light trucks, minivans, and sport utility vehicles differently, with Congress again preempting the Secretary’s discretion and setting the CAFE standard at 20.7 in 1996.81
Many analysts have measured the effects of CAFE by setting forth “import dependence curves,” which subtract the U.S.’s own oil production from overall oil consumption.82 According to this measure, the U.S. imported about 40% of its oil in 1977, with a slow decline to 25% by 1985. After 1985, however, the U.S. import of oil has steadily increased up to more than 50% in 1994, with projections even higher for the beginning of the new millennium.83 Such statistics have led to the belief among critics that CAFE standards have not contributed to a reduction in oil imports.84
In fact, critics contend that CAFE has backfired and attribute the increase in the U.S.’s dependence on foreign oil, at least in part, to [*PG836]several causes related to CAFE.85 First, as the energy crisis eased and drivers lost the incentive to purchase fuel efficient vehicles, they began to buy light trucks and sports utility vehicles, which have relaxed CAFE standards.86 Some critics even intimated that drivers turned to these vehicles because of the undesirable characteristics of high efficiency automobiles.87 Second, consumers increased their vehicle miles traveled (VMT)88 as their “cost per mile” of driving decreased due to a decrease in the real cost of fuel 89 and the greater fuel efficiency of their cars.90 CAFE’s great mistake, opponents alleged, was targeting manufacturers instead of consumers because “driving is much more influential on the national fuel consumption than the [*PG837]measured MPG rating of any car or fleet of cars.”91 Because CAFE does not require consumers to bear the costs of greater consumption of oil, the law was bound to fail.92 Third, because CAFE caused automakers to raise their prices, some drivers kept or purchased old, inefficient cars instead of new ones.93 Fourth, CAFE “inhibited” automakers from improving fuel efficiency beyond the CAFE standards “for fear that such improved performance might become a new, onerous benchmark for future requirements.”94
Nevertheless, supporters maintain that “there can be no doubt about the energy conservation effects of improved fuel economy levels.”95 Supporters point to the improvement in the average fuel economy levels of new passenger car fleets between 1975 and 1993 and show that, although vehicle miles traveled increased by over 60% between 1975 and 1993, drivers consumed 2% less fuel traveling those miles.96 Moreover, notwithstanding the U.S.’s increased dependence on foreign oil, supporters insist that without CAFE our need would be even greater.97 The appropriate test of CAFE is not whether the U.S. uses more imported oil after CAFE’s promulgation, but whether the rate of increase in oil imports slowed because of the law. Despite loss [*PG838]of faith even by early supporters and drafters of CAFE,98 the assertion that CAFE has diminished the rate of increase has never been disproved, contradicted, or even directly addressed by opponents.
Subsection A of this section sets forth three prominent examples of legal backfire assertions. These instances of backfire are hardly isolated.99 In fact, claims of legal backfire are very common.100
Critics of a law employing the legal backfire strategy assert not that a law’s costs outweigh its benefits or that a law did not accomplish its goals, but that a law achieves a result directly contrary to one of the principal short or long-term goals intended.101 It is not that the Endangered Species Act impedes development, a cost of the law to be weighed against its benefits, but that it actually contributes to the destruction of endangered species and is therefore bankrupt.102
Not surprisingly, the examples discussed above show that parties whose oxes are being gored by a law, such as landowners, broadcasters, and automakers, often author the claim of backfire. But the sources of such claims are by no means limited to affected groups. Those philosophically opposed to a law may originate or take up a claim.103 Moreover, backfire claimants represent the entire political spectrum and diverse occupations, including lobbyists, lawmakers, journalists, lawyers, and legal theorists.104 Finally, critics employ various modes of communicating backfire claims, including through the media, in hearings, and in debates.
[*PG839] What is striking about most legal backfire claims is the absence of persuasive proof of the assertions one way or the other, notwithstanding the allure of the arguments. A backfire claim helped defeat the fairness doctrine despite limited knowledge concerning the doctrine’s instrumental effects.105 The futures of the Endangered Species Act and CAFE standards are also in jeopardy in part because of backfire claims, despite the empirical indeterminacy of the effect of these laws.106 The attractiveness and rhetorical power of backfire claims, despite their inconclusiveness, are the subjects of Parts II and III.
For too many reasons, legal backfire arguments are pervasive. This section sets forth the major reasons. First and most important, backfire rhetoric is persuasive, more convincing than it should be. Second, backfire arguments are easy to make. Typically, the lack of empirical evidence or convincing theoretical proof of the effect of a law allows a backfire adherent to author the claim with relative impunity. Third, assertions of backfire are easy to support. Claimants can select from a whole range of problems with promulgating successful laws. Of course, these latter two factors—lack of evidence one way or the other and myriad hurdles to effective lawmaking—also allow for more general criticisms of a law, for example, that it is ineffectual or its costs outweigh its benefits. These factors particularly add strength to the rhetorical appeal of a backfire argument by making the assertion seem more credible and understandable. In short, backfire arguments are effective, easy to make and support, and hard to refute.
Although lawmakers should depend on moral, economic, social, and institutional reasons, among others, for creating, revising, or expunging a law, the nature of the language chosen by supporters and critics to convey their ideas may also influence decision makers.107 [*PG840]“[L]anguage shapes thought . . . [the] choice of words can therefore have political and social consequences . . . .”108
Backfire rhetoric is a good example. By pronouncing the worst possible outcome for a law, the rhetoric is dramatic and ironic—the Endangered Species Act is supposed to save endangered species, but it is killing them.109 Backfire rhetoric is also forceful in that it conveys the feeling that there is nothing left to debate. The fairness doctrine shuts off dialogue about controversial issues instead of promoting discussion, so the law must be expunged.110 Backfire proponents also gain credibility by identifying with the goals and hence the values of a law’s supporters: “We are all on the same side. We want to protect consumers too, but this law simply will drive up prices and reduce their choices.”111 Cost/benefit arguments, on the other hand, devalue opponents’ goals by focusing on their costs.
Notwithstanding their identification with the goals of a law’s supporters, backfire arguments constitute emotional appeals that emphasize the absolute wrong-headedness of the methods a law employs to reach its goals.112 As such, backfire rhetoric naturally calls into question the knowledge and skills of a law’s supporters. Such emotional arguments may be very difficult to refute both because of the reluctance of debaters to confront them—”[I]t is very difficult to disagree with an emotional and horrifying story”—and because of their impact on the audience.113
Backfire arguments also tell a good story and therefore capture the attention of the audience. What could be more interesting than a tale about a law that does exactly the opposite of what it is supposed [*PG841]to do? Yet, backfire argumentation is deceptively simple and focused. As with good advertising, the backfire argument reduces to a core idea embodied in an interesting slogan:114 Consumer protection legislation increases prices and hurts consumers. The Fairness Doctrine stifles speech. These are catchy sound bites, attractive to the media, which then sends them out to the public who may take them as authoritative.115 To substantiate their position, critics often supplement these sound bites with anecdotes or statistics, often taken out of context or otherwise unreliable, which makes the backfire claim even more appealing and even less reliable.116
Critics who adopt the powerful rhetoric of backfire are often reinforced by the lack of meaningful empirical or theoretical proof on the effects of a law.117 Put simply, critics are undaunted by the prospect of being corrected by hard facts or indisputable theories.
Empirical studies of the effects of laws are difficult, costly, often indeterminate, and, therefore, rare, but this is not the place to analyze all of the pitfalls of empirical work.118 Perhaps one example will do. In order to investigate the frequent assertion of sellers and lessors of consumer goods that regulation only increases prices and reduces choice, I sought to measure the effects of New York’s Motor Vehicle Retail Leasing Act (MVRLA) on the price of auto leases in New York.119 The MVRLA, enacted in 1994, extends to consumer lessees certain disclosure and substantive protections, including respectively disclosure of the basis for calculating early termination charges and for computing excess wear and damage liability,120 and barring the [*PG842]lessee from contracting away her right to assert legal remedies against the lessor.121 Laws comparable to the MVRLA in other jurisdictions made comparison of the price of leases in states with and without leasing regulations problematic. Instead, I sought to compare lease prices in New York before and after the enactment of the MVRLA. Substantial methodological problems involving how to account for other possible reasons for changes in lease prices impeded this analysis too. For example, prices may fluctuate because of changes in federal law affording similar protections,122 changes in the demand for cars, changes in the popularity of leasing versus purchasing automobiles, and inflation and other federal monetary policy decisions. I have interviewed several automobile dealers and finance companies and sent out questionnaires regarding the effect of the MVRLA. But these data consist of self-serving opinions of questionable reliability.
Suffice it to say, then, that empirical studies of this nature are rare and persuasive ones even more infrequent.123 Without convincing evidence one way or another, critics can lambaste disfavored laws with claims of backfire almost with impunity. In fact, often combatants engage in backfire wars, with one side claiming the evidence demonstrates a backfire, and the other side insisting the evidence proves the law’s success.124 Typically, neither side’s evidence is very persuasive. For example, one commentator has asserted that the warranty of habitability, a law designed to protect residential lessees, drives landlords out of the housing market and therefore decreases available housing and raises rents for lower income persons.125 But the evidence is dated and unreliable because it is based largely on opinion [*PG843]and predictions.126 Proponents of the warranty of habitability in turn claim that the evidence proves that enforcement does not drive up rents or reduce housing.127 But proponents’ evidence is equally unpersuasive, allowing critics of the warranty to mount a counter-attack.128
Compounding the confusion, legal backfire rhetoric is also a facile strategy because of the complexity of law. Particular laws have both proximate and long-term, and practical and aspirational purposes and goals, some of which are especially conducive to the legal backfire attack.129 For example, one direct goal of hate crime legislation is to punish hate crime mongers.130 A long-term, and aspirational goal is to demonstrate symbolically society’s view of the evil of such crimes and to change people’s thinking about them.131 The latter goal, difficult, perhaps impossible, to evaluate with respect to success or failure, leaves open the counter argument that the law only increases resentment and hate.132
[*PG844] In the absence of persuasive empirical evidence, backfire warriors sometimes turn to other more theoretical modes of proof. To support the claim of backfire, recall that opponents of the fairness doctrine applied what is essentially an economic analysis of the incentives of broadcasters.133 For another example, consider Article 2 of the Uniform Commercial Code dealing with sales of goods. Consistent with Karl Llewellyn’s view of the importance of facilitating commerce by incorporating contextual realities in resolving disputes about the parties’ intentions, Article 2 directs court to interpret agreements with an eye towards any applicable trade custom and the parties’ dealings.134 Critics of this approach rely on economic analysis to support their claim that Article 2’s contextual orientation ironically backfires because it creates incentives for parties to be inflexible and uncooperative.135 Critics reason that under Article 2 a party incurs significant costs by being flexible—i.e., by not insisting on performance according to the express contract terms.136 By agreeing to late performance, for example, a party creates a “course of performance” and therefore loses not only the immediate benefits of performance on time but also the right to enforce the time-for-performance term in future performances of the same contract.137 This extra cost would not exist in a legal regime that enforced contracts as written regardless of a party’s acceptance of late performance. Hence, to avoid such extra costs, parties must be more rigid under Article 2 than under a law that ignored the parties’ course of performance.138
[*PG845] Although a very interesting academic argument, the “rigidity” theory should not alone constitute the basis for sustaining a claim of a legal backfire. Determining the incentive effects of Article 2’s contextual approach requires a richer analysis of people’s behavior. The costs of rigidity are likely to be high—consider, for example, the costs associated with alienating the party who requests to perform late—and a low-cost alternative exists, namely acceding to the request while reserving the right to performance on time in the future.139 Further, parties may voluntarily accede to a defective performance in part because they believe that people should be flexible and cooperate and in part because they believe that the benefits of being flexible (which include future accommodations of their own needs by the other party) outweigh the costs.140 Not only will parties therefore likely remain flexible under Article 2, but the costs to the parties of an alternative legal approach might be much higher. Consider the costs of entering legally enforceable contract modifications in a regime that ignored course of performance. For example, parties would have to plan and draft a new express contract each time they sought to alter the time for performance by a few days or face the possibility of judicial error in assessing their oral agreement to that effect. Without a writing or consideration, which is not necessary to modify a sales contract (but which is a primary source of evidence of an intention to contract), courts may be prone to make such mistakes.
At this point, the reader may wonder how a critic claiming a backfire can convince lawmakers if she lacks empirical proof and policy analysis is unpersuasive. That is just the point. Without convincing proof of some kind, the backfire claimant’s argument is hollow and lawmakers should therefore be wary of it. This does not mean that [*PG846]lawmakers should ignore the argument. Instead, as I develop more fully in Part IV, lawmakers simply should be on guard to resist giving it more credence than it deserves.
Crafting laws is an uncertain science. Laws may fail to achieve their purposes for hosts of reasons.141 What follows is not an inventory and analysis of all of the things that can go wrong, a discussion beyond the scope of this paper. Instead, I briefly present many of the lawmaking problems, involving both substantive imprecision and process constraints, that critics have implicated in their claims of backfire. This catalog of reasons for claimed backfires shows that critics have no trouble finding ammunition for their backfire claims, which helps account for the number of such claims.
One hurdle for lawmakers is drafting laws that are not too difficult to implement or enforce. For example, the drafters of the Endangered Species Act failed to find a way to alert landowners to the listing of species without allowing them lawfully to destroy habitats prior to the effectiveness of the law.142 Another challenge for the same lawmakers was to devise methods of policing landowner activity within the constraints of limited budgetary resources.143 It was not difficult for critics to emphasize these problems with the ESA in making their claims of backfire.
Lawmakers also inadvertently may create legal loopholes and perverse incentives. For example, under our tax laws, flexible spending accounts allow workers to withhold money from their pay to cover their medical costs for the calendar year.144 Workers pay no income tax on money withheld, but they forfeit the money if they do not spend it by the end of the year.145 Workers therefore may go on “spending binges” prior to the end of the year to exhaust their ac[*PG847]counts. Critics therefore contend that the “use-it-or-lose-it” loophole encourages excessive medical spending, even though a goal of the accounts was to achieve precisely the opposite effect.146
In addition, lawmakers may target inappropriate audiences. For example, we saw that critics claim that lawmakers directed CAFE at the wrong parties.147 In economic parlance, dependence on foreign oil constitutes a “negative externality” of oil consumption because the group that consumes the oil, car drivers, does not incur the cost of dependence directly.148 Lawmakers seeking to diminish this dependency cost should therefore direct the law at car drivers so that these consumers of oil “internalize the externality,” meaning they bear the cost they impose on others.149 But the law does not require consumers to purchase fuel-efficient automobiles nor does it deter increases in consumers’ vehicle miles traveled by, for example, heavily taxing sales of gasoline.150 Such moves may have been too politically controversial, but the end result is that critics can claim a legal backfire.
Lawmakers may also have too much faith in their ability to change people’s attitudes and beliefs. Lawmakers can create appropriate incentives only if they can understand and predict human behavior.151 Without sufficient care by the drafters, laws inadvertently may impinge on the values of targeted groups or create emotional reactions, such as fear or resentment. Predicting behavior is a heady challenge for lawmakers and leaves them open to the claim that they got it wrong, even wrong enough to create a legal backfire. If critics are correct, for example, the United States economic embargo of [*PG848]Cuba only shores up the Castro regime by increasing its citizens’ nationalism.152 Instead of protecting cyclists, helmet laws may alarm them enough about the dangers of bicycling to lead them to some other even more dangerous activity.153
Lawmakers may also fail to foresee changing circumstances and create regrettably inflexible laws. In some instances, the environment may be changing so rapidly that lawmaking is inadvisable. A good example pertains to the scope provision of revised Article 2 of the UCC. The revisers have wrestled long and hard with the problem of whether and to what extent sale-of-goods law should apply to transactions involving combined goods and computer programs.154 Such transactions are not uncommon, of course, because many goods now contain computers and computer programs, including automobiles, medical equipment, even alarm clocks. Under current Article 2, the question is whether the “predominant purpose” of the transaction was the sale of goods.155 After myriad drafts attempting to refine the test to accord with modern technological realities, the drafters determined to preserve existing law because of the fear that codifying a new approach might lead to greater rather than less confusion (a legal backfire) as technology continues to develop.156
Special interests may have flexed too much muscle during the process of creating a law.157 For example, credit card companies have long lobbied for narrowing the protection of bankruptcy debtors who fail to pay off their credit card bills. Debtors facing bankruptcy, on the other hand, have more difficulty organizing and have been under represented in the deliberations.158 Based on a “massive effort” by the credit card companies “propelled by major political contributions,”159 new bankruptcy law revisions make bankruptcy discharges more difficult to achieve.160 Some evidence suggests, however, that the irresponsible distribution of credit cards by the companies caused most of the rise in bankruptcy filings and that most debtors in bankruptcy have suffered a legitimate financial crisis.161 If true, the new revisions may backfire by creating greater debtor pain in contravention of bankruptcy law’s fresh start policy.
Public opinion can also deter effective lawmaking. The role public opinion should play in fashioning laws is, of course, very controversial. Obviously lawmakers should repel fleeting sentiments that result from publicity over particular notorious occurrences such as an unusual gruesome crime. On the other hand, when public opinion [*PG850]consists of sustained, tangible alterations of perspectives, lawmakers should not, and probably cannot, ignore it because it reflects people’s values162 and likely enters the subconscious of the lawmakers.163 Still, lawmakers face the challenge of attempting to distinguish fleeting from sustained opinion and evaluating when the latter legitimately supports particular legislation. Is public opinion unjust or illogical? Was it formed on the basis of the pertinent facts? Did interest groups or the media harbor too much influence? Critics of hate crime laws, for example, insist that lawmakers have yielded to uninformed public opinion in creating these crimes and therefore predict a legal backfire.164
Political compromise may constitute a necessity of lawmaking, but it can also diminish laws so that they fail to serve their purpose or even backfire. For example, the Highway Beautification Act may thwart highway beautification because of the curious compromises made with industry: “The law gave billboard operators a five-year period in which to continue to operate nonconforming signs . . . and then, incredibly, [gave them a right] to compensation after that five-year period ended,” so that “the rational response . . . [was] to build as many lawful billboards as possible.”165 The Environmental Protection Agency decided to apply emissions regulation only to new cars in part because of politics, thereby encouraging the use of old cars and, according to critics, greater pollution.166 The reason lawmakers directed CAFE at car manufacturers and not drivers, which critics argue created a backfire, also may have been political expediency.167
Laws also may fail because of inadequate funding, for example, resulting from the lack of an adequate commitment or a political compromise. The Highway Beautification Act provided for states to receive federal funds to compensate private billboard owners for a portion of their lost revenue due to state regulation.168 Critics cite the [*PG851]Federal government’s lack of follow-through in appropriating sufficient funds as another reason the Highway Beautification Act has “thwarted” rather than promoted the elimination of billboards.169
None of the profusion of reasons for difficulties in lawmaking discussed above comes close to proving that any law backfired. The range of potential factors that might lead to a legal backfire, however, clearly affords critics of a law abundant potential explanations that appear to substantiate their claims. The plethora of factors therefore helps to account for the multitude of backfire allegations–with all of the potential supporting explanations, critics are not reticent to unleash a backfire claim.
Critics of a law can also latch on to more than one explanation for a legal backfire to help increase the claim’s appeal.170 Consider once again the allegation that the CAFE standards have backfired. Critics have a whole arsenal of reasons to support the claim.171 As mentioned, they can point out that CAFE is directed at the wrong parties.172 In addition, CAFE fails to account for consumers’ fickleness concerning oil prices. Although in the early 1980s consumers expressed concern about fuel efficiency, by 1982 consumers sought larger, fuel inefficient cars “as the memory of the gasoline lines of 1979 fade[d].”173 Nor did CAFE’s drafters foresee consumers’ love affair with light trucks, including minivans, SUVs, and trucks, which, under a major loophole in the law, enjoy a lower CAFE standard: “[I]n contrast to the passenger car fleet, which is using less fuel than in 1975, the light truck fleet is using twice as much fuel—35 billion gallons in 1993, compared to 18 billion in 1975.”174 Finally, CAFE lawmakers did not predict that as oil prices dropped and cars became [*PG852]fuel efficient, people would drive a sufficiently greater number of miles possibly to offset any gains in fuel efficiency, and then some.175
Each of these problems with CAFE standards may have lessened the beneficial effects of the law or even contributed to a legal backfire. The point is that although a backfire may be uncertain, the host of difficulties in creating the law contributes to a perception that the law indeed may have backfired.
In this Part, I show that the prominence of legal backfire rhetoric is a cause for concern. Overuse of the strategy contributes to a general anti-regulatory environment and to the potential subversion of beneficial laws. In addition, backfire claims distract lawmakers from careful consideration of difficult policy issues and contribute to unsatisfactory responses to important legal issues.
Legal backfire rhetoric contributes to an anti-regulatory environment that may not be justified or helpful. The question of the appropriate recipe of freedom and regulation in our law is, of course, very controversial. On any given issue, lawmakers should resolve whether to regulate or to defer to market forces based on a careful review of the nature of the problem, the applicable norms and principles, and the possibility of market failures. As a general matter, however, because of superior resources, industry critics of regulation can best gather whatever information is obtainable about the effects of a law, control its dissemination, and frame the debate to focus on the “economic costs and constraints” of regulation.176 Legal backfire arguments constitute one important component of this strategy. Constant and rhetorically charged claims of legal backfire, can influence lawmakers directly, such as by skewing their perspectives on the nature, quality, and degree of opposition to a law, or indirectly, such as by influencing public opinion or by fanning the flames of additional opponents of the legislation. In short, backfire rhetoric tends to cre[*PG853]ate an atmosphere that is not conducive to serious and objective consideration of important issues.
Take for example, the issue of consumer protection, which arises in many guises including product and property warranties, minimum wage laws, and product safety laws. Almost invariably, the response of counterposing interests has been to raise the red flag of backfire. As mentioned previously, the warranty of habitability, if critics are to be believed, only diminishes the availability of housing.177 Minimum wage laws increase unemployment (thereby decreasing overall income) by making labor too expensive.178 Mandatory disclosure laws “lull” consumers into taking greater risks.179 Although on examination each of these assertions seem less than persuasive, consistent and well-publicized barbs about the backfire of each and every consumer protection law can only poison the atmosphere against consumer protection in general.180
Needless to say, input, discussion, and debate about the efficacy of proposed or enacted laws constitute the foundation of effective government and I do not mean to suggest stifling dialogue about the quality of law. Instead, I want to urge participants to contribute responsibly and not to engage in what sometimes amounts to little more than scare tactics, and to exhort lawmakers to move cautiously when confronted with backfire claims.
The second problem with backfire rhetoric obviously flows from the first. The ease of use and the powerful effect of legal backfire rhetoric can mislead lawmakers and undermine their faith in existing law that may be serving a salutary purpose. As we have seen, legal backfire rhetoric helped bring down the FCC’s long-standing Fairness Doctrine, and contributes to the assault on the Endangered Species [*PG854]Act and CAFE standards.181 Such laws are no doubt controversial and some may be unwise or even backfire. In the absence of convincing proof, however, decision makers should be wary of legal backfire arguments lest they abandon legislation that benefits or would have benefited society. This is especially true of legislators, whose processes do not require the same careful perusal of facts and framing of issues as a court or administrative proceeding.182
Legal backfire rhetoric not only can turn lawmakers against beneficial laws, it also can provide lawmakers with a convenient after-the-fact rationalization for a decision made on other, more controversial, grounds. For example, the fairness doctrine fell from grace during the anti-regulatory environment of the Reagan years.183 The FCC began to view the airwaves as no different from any other commercial resource that should be governed by market forces.184 Although this perspective may have been the FCC’s primary or only reason for extinguishing the fairness doctrine, the FCC saw the need to disarm fairness doctrine supporters by claiming that the fairness doctrine actually reduced the airing of controversial issues, a claim that they could not sustain with empirical proof.
We have seen that legal backfire argumentation is dramatic and forceful. Lawmakers and analysts therefore may overreact by abandoning a careful review of a problem and by instigating quick, but dramatic solutions, which ultimately may prove very unsatisfactory. [*PG855]For example, in an interesting and provocative article, Professor Sunstein’s stated goal was to discuss “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.”185 Although many of his examples of “regulatory strategy” backfires lack persuasive substantiation, Sunstein nonetheless makes some rather dramatic suggestions.186
For example, Sunstein claims generally that “[R]edistributive regulation will have complex distributive consequences, and the group particularly disadvantaged by the regulation will typically consist of those who are already most disadvantaged.”187 More specifically, he asserts that “[a]n important consequence of the minimum wage is to increase unemployment by raising the price of marginal labor; and those at the bottom of the ladder—the most vulnerable members of society—are the victims.”188 Sunstein’s support for these propositions is slim,189 and recent studies tend to rebut the assertion that “a rise in [*PG856]the minimum wage invariably leads to a fall in employment.”190 Sunstein nonetheless advocates a powerful palliative, admonishing Congress not to “attempt to redistribute resources through regulation.”191
Backfire claims also distract lawmakers and analysts from pursuing more pressing issues concerning a law. We have seen that legal decision makers confront a host of issues, including the feasibility of and appropriate strategies for implementing a law, assessing a law’s costs and benefits, and evaluating its normative justifications. For example, should lawmakers have directed CAFE standards at automobile manufacturers or drivers? Does the Endangered Species Act unfairly restrict property owners and stifle development? Is the Fairness Doctrine unconstitutional? Lawmakers have enough to worry about without having to deal with an often speculative claim of legal backfire. Unfortunately, we have seen that backfire claims often become the focus when lawmakers do their work.192
In light of the previous discussion, how should lawmakers react when opponents of a law sound the alarm of legal backfire? To respond to this question with greater specificity, I consider one final example of an alleged legal backfire, namely hate crime legislation.
Because of a perceived dramatic increase in crimes involving violence against minority groups in the 1980s and 1990s, Congress and state legislatures promulgated “hate crime” laws that in one common permutation increase sentences for crimes “motivated . . . by racial, ethnic, national origin, [or] sexual orientation prejudice.”193 Notwithstanding the laudatory goals of such laws, they have created significant controversy over, among other things, whether hate crimes [*PG857]have increased,194 whether hate crime laws are justified under any theory of punishment,195 whether they impinge on free speech, and what they accomplish.196 All of these are serious and important arguments about the costs and benefits of hate crime laws that are worthy of further study. Here, I focus on an additional argument of critics, that hate crime laws “will actually do harm” because they will backfire.197
Critics assert that hate crime laws will backfire both with respect to their proximate goals of punishing and deterring wrongdoers and to their long-term goal of reducing prejudice in society.198 Concerning the goals of punishing and deterring wrongdoers,199 an important focus of critics of the legislation is on the requirement that prosecutors prove the motive behind an attack, namely that the perpetrator of a crime intentionally sought the victim because of race or other difference.200 The requirement of proving motivation leads to many questions: “If a white mugs a black and delivers a slur in the process, is it a ‘hate crime’ or an ordinary mugging with a gratuitous slur at[*PG858]tached?”201 Critics believe that sorting out such issues will “complicate” the trial and actually “impede” justice by making convictions and punishment of perpetrators less likely.202
Perhaps even more serious, critics of hate crime laws see the makings of a legal backfire with respect to the long-term goal of increasing social harmony. As a general matter, critics argue that “[t]he new hate crime laws . . . redefine the crime problem as yet another arena for conflict between races, genders, and nationality groups.”203 Critics believe the laws will “contribute to splintering our society” by creating an exaggerated view of the frequency of such crimes.204 Critics also claim that hate crime statistics create the impression that non-criminals share the sentiments of perpetrators, such as when spokespersons cite violence against black churches as evidence of widespread bigotry in society.205 Moreover, theorists assert that hate crime laws will create controversy and conflict over what prejudices should constitute hate crimes and what incidents should be prosecuted.206 As a result of these problems with hate crime laws, critics claim that instead of reducing intolerance, hate crime legislation will exacerbate it.207 In addition, instead of increasing society’s confidence in our sys[*PG859]tem of criminal justice, hate crime laws may undermine it.208 For critics, the only logical conclusion is to repeal hate crime statutes,209 or at least to define hate crimes as narrowly as possible.210
How should lawmakers react to the claims that hate crime laws will diminish justice and increase intolerance? Because of the propensity of critics of laws to author legal backfire claims of this nature, because of their rhetorical appeal, and because of their extraordinary nature, lawmakers should proceed with caution and should resist overreacting to the backfire claims. Analysts should begin by gathering and evaluating whatever hard evidence exists on whether hate crime laws are likely to impede or promote the conviction of wrongdoers and increase or reduce the divisions in society. As with other backfire claims, however, this process likely will be inconclusive, at best.211 Lawmakers should also consider and evaluate the economic, psychological, sociological, or, for that matter, any other type of policy reasoning that sheds light on these backfire claims.212
Critics of hate crime laws seem most persuasive when they discuss the difficulties of implementing the laws. For example, can juries effectively sort out whether a crime was racially motivated?213 This issue obviously impacts on whether the laws can achieve justice in individual cases, but it is also pertinent to the question of the effect of hate crime laws on intolerance. After all, serious injustices in the results of [*PG860]hate crime cases can only increase resentment and suspicion that the laws cater to unfounded minority demands. Still, the requirement in criminal law (and, for that matter, in other areas of the law) of determining a person’s motive is more common and less onerous than critics like to admit. For example, juries in theft cases must determine whether the defendant intended “to permanently deprive [the victim] of the property” and in murder cases routinely determine (when raised) whether a defendant’s motive was self-defense.214 Moreover, the criminal justice system’s approbation of judicial and prosecutorial discretion demonstrates that the system “deliberately create[s] opportunities for the exercise of discretion in determining the appropriate punishment for an offender based on offender motivation.”215 In fact, there may be nothing new at all in hate crime laws’ strategy of increasing the punishment of perpetrators with ‘bigoted’ motives.”216 Without more, allegations that determining motive is too difficult and will lead to incorrect results and resentment in the community, and that the motive inquiry somehow sets hate crime laws apart from ordinary criminal justice administration, should not compel repeal of hate crime laws.
Other backfire claims seem even less compelling. The core of the claim that hate crime laws are likely to increase bigotry is based on the supposed lack of need for the laws in the first place.217 According to critics, instead of reacting to an epidemic of hate crimes, lawmakers succumbed to interest group pressure and transient public opinion in [*PG861]an environment in which lawmakers had little to lose in supporting the laws.218
By supporting hate crime legislation, [politicians] could please the advocacy groups without antagonizing any lobbyists on the other side (there were none) and without making hard budgetary choices. The hate crime laws provided an opportunity to denounce two evils—crime and bigotry—without offending any constituencies or spending any money. . . .
Hate crime legislation provides politicians the opportunity to say to [the general voting population]: “we condemn prejudice and bigotry in the strongest and most solemn way. Moreover, in condemning prejudice, we affirm our own prejudice-free character and assert a moral claim to your support.”219
Certainly, people generally impatient with legal regulation who believe that hate crime laws are unnecessary are likely to resent the laws and perhaps even to resent those whom the laws are designed to protect.220 Moreover, if there were little need for hate crime laws and lawmakers precipitously adopted the laws simply to suit lobbyists or fleeting public opinion, the likelihood that the end-product would be unsatisfactory and therefore fail or even backfire would obviously increase. In addition to supplying a rather bleak and one-sided picture of the legislative process, however, the evidence supporting these allegations is not convincing. Critics’ principal support for the lack of an epidemic of hate crimes is based not on empirical evidence but on a historical review of the prevalence of intolerance in our society over the long term.221 In short, there is no epidemic because intolerance [*PG862]has always been a significant problem. If this assertion is correct, however, it only demonstrates that the time is long overdue to try something to deal with the problem. In fact, however, although far from definitive, some evidence appears to show that intolerance has increased.222 Such statistics tend to dispel the notion that lawmakers chose a politically expedient route in creating hate crime laws instead of responding to at least a perceived real problem. At any rate, critics have failed to sustain the argument that hate crime laws will backfire because there is no need for them.
Even assuming an increase in hate crimes, will hate crime laws only contribute to greater intolerance because of resentment from the very groups the laws seek to influence? Such animosity could come in many forms. For example, jailed perpetrators might join prison hate groups that reinforce each other’s dismal perspectives.223 Citizens with parochial viewpoints might wrongly believe hate crime laws are unnecessary and resent them or even commit offenses to protest the mainstream perspective.224 Interest groups might resent their exclusion from the protections of a hate crime law or decry the failure of prosecutors to treat an incident as a hate crime.225 But this is all speculation, at best supported by a few lonely, albeit sensational, anecdotes.226 In fact, it is just as likely that hate crime laws will benefit [*PG863]society, if in no other way than by demonstrating symbolically that hate crimes are a particular anathema, which society will no longer tolerate.227 In addition, it is just as plausible that supporters of hate crime laws, including such diverse groups as “African Americans, Jews, Asians, Christians, Muslims, victims, immigrants, gays, educators, and the police,”228 will find greater common ground by pursuing their mutual concern.229 Without some persuasive evidence of a backfire, then, hate crime laws should not be repealed simply because critics raise the specter of a legal backfire. Lawmakers should turn their attention to other vexing issues presented by hate crimes legislation, such as their definition, justification, constitutionality, and deterrence value.
Although this Article focuses on legal backfire claims, it touches upon a much more basic problem: The challenges to effective lawmaking and the limitations of techniques to evaluate the effects of law make an accurate assessment of law problematic. Among the many questions raised by this observation, this Article has dealt with the issue of how lawmakers should react to legal backfire claims. Because critics of laws almost invariably author legal backfire claims, because the claims are rhetorically charged, and because the claims are rather extraordinary—a law has produced a result directly contrary to that intended—lawmakers should proceed with caution.