Friday, September 04, 2020

Prophylactic Laws

 by Michael C. Dorf

Scholars and jurists debate the legitimacy of the practice by which courts create so-called prophylactic rules that go beyond what the written law strictly requires. The best-known examples of rules that some people regard as prophylactic are the Fourth Amendment exclusionary rule and the Miranda warnings designed to protect against the inherent coerciveness of custodial interrogation. Some scholars and jurists view these rules as prophylactic. In this view, the rules go beyond what the Fourth and Fifth Amendments respectively require in order to prevent violations of those amendments. Whether to classify these rules as prophylactic is controversial, as is the authority of courts to fashion prophylactic rules at all.

Were I writing today about judge-made prophylactic rules, I would now discuss the various opinions in the 2000 SCOTUS decision in Dickerson v. US (which confusingly referred to the Miranda warnings as a "constitutional rule," even as prior cases that seemingly remained good law treated it as prophylactic), and my take on that decision in an article I co-authored with Prof Barry Friedman. However, today I want to discuss a cousin of prophylactic rules--a phenomenon that is both more common and less controversial.

In my Verdict column this week, I discuss Shinzo Abe's legacy, in particular his failed effort to repeal or dramatically scale back Article 9 of the Japanese Constitution, which forbids a military. I note that one argument Abe and others offer is that Japan has been in de facto breach of Article 9 for decades, because its "self-defense forces" are a military in all but name. Thus, these reformers argue, it would be more honest to acknowledge as much rather than to continue to violate the constitution. I reply that this logic is flawed; it assumes that just because there are widespread violations of Article 9, it has no impact. Japan might be still more militaristic without Article 9. To paraphrase Michelle Obama, things can get worse.

Seen in this perspective, Article 9 has at least one important characteristic it shares with prophylactic rules in constitutional law: It goes further than the core justification in service of that justification. Some further examples will flesh out what I mean by calling Article 9 a prophylactic law.

Start with a mundane case. In many US jurisdictions, the speed limit on a non-interstate highway is 55 miles per hour. Drivers routinely travel on such highways at speeds in excess of 60 mph. Although the exact custom varies from place to place, in general one assumes that if one does not exceed the speed limit by 10 mph or more, one will not receive a ticket. Now someone might say that this is harmful. Having a law on the books and even posted on signs that everyone knows is not the "real" law breeds disrespect for the law. Wouldn't it be better simply to raise the speed limit to 65 mph and instruct the highway patrol officers to enforce that limit strictly?

The answer is almost surely no. Whatever the speed limit, strict enforcement--in the sense of ticketing people who drive just slightly over it--will not make sense. When not using cruise control (which is not appropriate in many contexts), even a good driver's speed will fluctuate a bit. In addition, safety will sometimes require exceeding the speed limit temporarily, as when passing a slow-moving vehicle and suddenly seeing traffic in the other direction. Thus, unless they are using tickets as a revenue-raising device, highway patrol officers will necessarily allow drivers a bit of leeway. That practice is in fact the source of the informal norm that one can modestly exceed the speed limit without legal jeopardy. Raising the speed limit so that the law on the books catches up with the law on the streets will simply reset the law on the streets higher. If all other amps went to 11, Nigel's would go to 12. 

Treble damages are another familiar example. The law sometimes authorizes plaintiffs to collect treble damages, even though that provides them with a windfall. Nonetheless, treble damages can be justified as a means of over-deterring acts that would otherwise be under-deterred because difficult to detect or prove. Very severe criminal penalties for difficult-to-detect crimes would serve the same purpose, although our sense of distributive justice and the notion that the punishment should fit the crime cut against the use of a deliberately excessive penalty.

Here's yet another, albeit highly controversial, example. Consider the absolute ban on torture. You might support it because you think (as I do) that torture is always immoral. Suppose, however, that you think that the optimal amount of torture isn't zero but just a little bit more than zero because it could be justified in a rare but true ticking-bomb scenario. You might nonetheless worry that if the law allows any torture at all, the authorities responsible for public safety will act overzealously and start hearing ticking bombs where there are none. Meanwhile, an absolute rule of no torture at all ever would not overdeter. In a doomsday scenario in which torture is really what is needed to save the population (if one could know such a thing), one might expect the authorities to break the law and deploy torture anyway; they will count on jury nullification or a pardon. Or they will be willing to accept a risk of post-hoc punishment in order to save numerous lives. Thus, even if the optimal amount of torture is slightly more than zero, an absolute prohibition will bring us closer to that optimal amount than would any kind of allowance.

I suspect that the foregoing examples barely scratch the surface. A wise law maker will consider not only the question what is the ideal outcome--whether the size of the military, how fast people drive, how much tortfeasors should pay in damages, or how much torture there should be--but also how to write the substantive and remedial aspects of the law to get closest to that ideal outcome in light of enforcement gaps.

6 comments:

  1. The speed limit one I actually find very interesting.

    The standard driving test in my state not only will fail the student for exceeding 3 mph over the speed limit, but will also fail the student for driving more than 3 mph UNDER the speed limit. This kind of rule teaches drivers that, at least in my state, the speed limit is not a limit at all, but is instead a "recommended" speed. Amazingly, choosing to drive a reasonable amount under the speed limit in order to avoid exceeding it is actually considered an unacceptable driving practice!

    It's certainly possible to imagine a place (say, London) where the cultural norm is different, and all drivers are expected to drive 5mph under the speed limit as a way to avoid ever exceeding it. As my cab driver told me, the heavy fines from speed cameras for exceeding the speed limit make drivers learn very quickly never to exceed that limit (at least around the cameras.)

    I think your torture example actually comes pretty close to my feelings on the matter, although even WITH an absolute prohibition I suspect individuals still see ticking bombs where there are none, and authorities will look the other way. If the ideal amount of torture is infinitesimally more than 0, the ideal law would have to prohibit things that are technically not torture, but come close to it.

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  2. Yes, there is the variability in speed limit enforcement and I view this as necessary given that we are human and only capable of a certain amount of precision, and as you say the demands of situations call for alterations. As, well as the difficulty and impossibility of prosecuting a one or two mph violation (a challenge to the calibration of the equipment); as well as it would swamp the system's docket. Likewise to the other examples, we set the rule where it will do as much good as it can, and agree the Article 9 keeps it from 'getting worse'.

    And to add to the speed limit observation., this came to mind as I read the post.
    Pennsylvania Title 75,Section 3368(c)(4)...

    (4) No person may be convicted upon evidence obtained through the use of devices authorized by paragraphs (2) and (3) unless the speed recorded is six or more miles per hour in excess of the legal speed limit. Furthermore, no person may be convicted upon evidence obtained through the use of devices authorized by paragraph (3) in an area where the legal speed limit is less than 55 miles per hour if the speed recorded is less than ten miles per hour in excess of the legal speed limit. This paragraph shall not apply to evidence obtained through the use of devices authorized by paragraph (2) or (3) within a school zone or an active work zone.

    So, when using radar a 'tolerance' seems to be built in to the rule. I have thought this is a part of the source of allowing some excess. ( Speed may also be determined by following for a distance of at least .3 of a mile; with the 6 or 10 mph rule)

    If I may briefly to Greg, that context is licensing test and the narrow tolerance may be to re-enforce the focus on obeying the law, as a driver begins a 'lifetime' of motor vehicle use.

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  3. Edit to my comment...( Speed may also be determined by following for a distance of at least .3 of a mile; with the 6 or 10 mph rule): should read 'without the 6 or 10 mph'

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  4. Dear Professor Dorf,

    Would it be fair to view international law's prohibition on states using military force other than either in self-defense or with the approval of the UN Security Council as being a case of such a rule? I mean, the West has violated this prohibition on numerous occasions in the past (Kosovo, Iraq, Syria, arguably Afghanistan and/or Libya), but there is a concern that creating a "humanitarian intervention" exception to this rule (or, really, any other kind of exception to this rule) could open the door to bad behavior by unsavory actors in regards to this. On the flip side, though, the status quo ensures that strong, powerful countries get to violate international law with impunity while weak countries do not and can instead get punished for violating international law in the very same way that strong, powerful countries can do so without any problems on their own part.

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  5. Thanks for the various comments. I'll just say a word about Coyote's suggestion, which I think is right. In my view, powerful countries would get away with more than weaker countries no matter what the law. So any international law purporting to restrain the use of military force would be differentially applied and differentially violated. Whether the particular norms we have are better than an express allowance for humanitarian interventions is a tough question, but I think not having one makes some difference at the margins. I would note that countries determined to go to war for reasons other than humanitarian ones & w/o Security Council authorization will frequently attempt to justify doing so on self-defense grounds (as the Bush admin did w/r/t Iraq).

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  6. Yes, Bush Jr. did try justifying Iraq on self-defense grounds (preventative war and all of that), but he and/or his administration also tried to justify Iraq on humanitarian grounds--especially after the initial WMD justification for Iraq turned out to be bunk. Basically, the logic was that Saddam Hussein was an extremely brutal tyrant who was oppressing and mistreating the Iraqi people and who thus needs to be removed and replaced with a democratic Iraqi regime. Interestingly enough, even with the subsequent insurgency and war against ISIS, one could certainly be able to make a case that Iraq might be better off in real life than it would have been had Saddam Hussein remained in power and possibly subsequently became even bloodier during the Arab Spring (specifically as in Syria) than it became in real life. In real life, Iraq might have lost in the range of 200,000-300,000 lives as a result of the US invasion, but theoretically this number could have been doubled or more had Saddam Hussein still remained in power and then brutally crushed any Arab Spring-style rebellion that might have eventually broken out in Iraq in the 2010s or whenever (in a scenario with no Iraq invasion back in 2003).

    BTW, in regards to the West violating international law, it looks like Russia found inspiration from the West in regards to this. After previously being a strong supporter of state sovereignty in international forums, Russia eventually saw that its argument was getting nowhere and thus gradually decided to shift track after Kosovo became independent and had its declaration of independence declared legal by some international court in 2010. Basically, the West's actions in regards to Kosovo (some, but not all, of which violated international law) provided a type of inspiration for Russia to act the way that it did in Crimea and the Donbass in 2014 and beyond. The West could, of course, differentiate Kosovo, Crimea, and the Donbass based on the facts of each case, but once a precedent is out there, one can't always fully control how exactly other parties are going to use it. (This is also true in regards to US constitutional law, BTW. This is especially evidenced by the 1960s voting rights cases, which served as necessary precedents for conservative SCOTUS Justices in their Bush v. Gore ruling in 2000. Without these precedents, Bush v. Gore could not have been decided the way that it was--as in, on equal protection grounds. Instead, it would have had to either be decided on Article II grounds or alternatively Al Gore would have won the case.)

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