Academic journal article Harvard Law Review

Rule Porousness and the Design of Legal Directives

Academic journal article Harvard Law Review

Rule Porousness and the Design of Legal Directives

Article excerpt

Legal directives give effect to social policy. There has been extensive debate about how best to design the contours of the law to achieve that end. (1) However, this theoretical debate has generally overlooked one simple fact: rules are sometimes broken. Rules are not concrete walls that actively stop all the behavior they prohibit. (2) Rather, they are porous screens through which some prohibited conduct may pass. A rule's porousness is an essential element of the rule itself, and rulemaking should acknowledge and even exploit its contours.

A rule's porousness is often predictable and can be shaped through the design of the rule and its accompanying remedial regime--efforts to catch violators and penalties for violations. (3) Because rules can be porous and this porousness can be shaped, it is an underappreciated feature of legal directives that sorting between desirable and undesirable conduct happens not just at the level of deciding what conduct to prohibit, but also at the level of deciding how the directive is enforced or remedied, and ultimately at the level of people deciding whether to comply. Once it is recognized that selection occurs at several levels, it becomes apparent that there is a pervasive design choice about how much selection should happen at each level. Complex rules that are tailored to a purpose and perfectly followed are in some cases substitutable for seemingly overinclusive rules that are broken and thus accompanied by downstream selection effects. Some literature has acknowledged in particular contexts that rule-breaking may be an important feature of rule design, but there is little generalized discussion about this tradeoff as a matter of legal architecture.

This Note explores the phenomenon of rule porousness and its implications for the design of legal directives. Part I describes rule porousness and how such porousness may be shaped and harnessed. Part II discusses the tradeoff between porous rules and tailored rules as a choice about costs and efficacy. Part III explores the tradeoff between porous rules and tailored rules as a choice about different conceptions of democratic values and the rule of law.


A. Introduction to Rule Porousness

Rules are sometimes broken. As a result, there is often slippage between a rule and the conduct that follows from it. This slippage is so common as to be a fact of life. Everything from minor traffic regulations to the most serious of criminal laws and constitutional limitations are sometimes disregarded.

This slippage is generally not random. Rather, a rule's porousness may have a shape: some people are more likely to break a rule than others, and some situations are more prone to rulebreaking than others. Consider the reasons why people follow rules. The law and economics explanation is that directives are followed when the expected cost of noncompliance exceeds the expected benefit of noncompliance. Thus, compliance is a function of the benefit of breaking a rule, the probability that noncompliance will be detected, and the sanction for noncompliance. (4) This model is complicated by the effects of social norms (5) and moral commitment to following law. (6) These factors that drive compliance vary among different people and situations. Social norms influence people in distinct ways. For example, those occupying certain roles in society adhere more than other people to certain norms. (7) Some potential rulebreakers can more easily evade detection or punishment; (8) some rulebreaking is difficult to detect and prosecute, (9) and some rulebreakers can more easily conceal their actions. (10) Even similarly situated actors respond differently to rules because they perceive dissimilar risk of punishment or are differently risk averse. (11) Some rulebreakers respond differently to punishment itself. Monetary sanctions, for example, have little deterrent effect on insolvent people (12) and less deterrent effect on the wealthy than on the middle class. …

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