Academic journal article Harvard Law Review

Regulation for the Sake of Appearance

Academic journal article Harvard Law Review

Regulation for the Sake of Appearance

Article excerpt

Appearance is oft en given a s a justification for decision s, including government decisions, but the logic of appearance arguments is not well theorized. This Article develops a frame-work for understanding and e valuating appearance-based justification s for government decision. First, working definitions are offered to distinguish appearance from reality. Next, certain relation ship s between appearance and reality are singled out for attention. Some-time, and sometimes appearance and reality collapse from the outset. Finally, sets of normative questions are suggested based on the supposed relationship between appearance and reality for a given situation. The subjects of these normative questions include aesthetics, transparency concerns, and the likelihood of a self-fulfilling prophecy. A closing section applies these ideas to prominent debates over campaign finance regulation and broken windows policing. Leading empirical studies are examined and, throughout the Article draws from scholarship in philosophy, sociology, psychology, economics, and political science.

Attention, comrades! . . . We have w o n the battle for production!1

Backed by the full faith and credit of the United States government[.] (2)

At the tone, twenty hours, nine minutes, Coordinated Universal Time. (3)


Appearance matters, and in more ways than one. Countless decisions are explained and justified by the resulting appearance and not, or not only, by the resulting reality. Most people probably do not leave home be-fore considering how their physical appearance will influence the perceptions of others. Cosmetics and cosmetic surgery are multibillion dollar industries, after all, to say nothing of commercial advertising and its image focus since before the 1960s. In fact, appearances help determine the health and survival of human institutions. If the importance of appearance was not clear much earlier, the economic catastrophes of the Great Depression and the Great Recession underscored the reality. Confidence is a state of mind, and it influences behavior. Everything from a stable banking system to thriving religious organizations, successful undercover operations, and voter turn out depends on it. It might not be exaggerating to say that the primary goal of human institutions is maintaining various impressions.

Unsurprisingly, then, appearance-based justifications in law and politics are common. Government officials regularly attempt to build public confidence by taking care of appearances. An especially old example is the Bill of Rights. It was promoted partly for the comfort it would give fair-minded critics of the new government, whose supporters professed no interest in crossing these lines. James Madison said that the amendments were offered "to satisfy the public mind that their liberties will be perpetual." (4) An especially familiar example arises in codes of judicial con duct. They obligate judges to reuse themselves when their impartiality can be reasonably questioned, not only when it is rightly question ed. (5) And especially controversial examples involve order maintenance policing and campaign finance regulation. For decades, academics and policy makers have debated whether the appearance of neighbor hood disorder instigates serious crime, and whether policing strategies directed at other wisemin or crimes can change that appearance and stop that dynamic. (6) For an equally longtime, supporters of campaign finance regulation have def end ed against court challenges by arguing that the money/politics relationship can be fashioned to minimize both the appearance and the reality of corruption. (7)

Although the justification is familiar, the special logic of appearance arguments is not well theorized, particularly with respect to legal institutions. (8) Appearance arguments can be slippery and, often enough, troublesome when asserted by those who claim to be working for the public good. …

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