How self-restriction laws can influence societal norms and address problems of bounded rationality

Georgetown Law Journal

Volumn 96, Issue 5, 2008, Pages 1775-1806

  VanDevender, Cecil ^a  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

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EID: 47849130512     PISSN: 00168092     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (172)

1. See John A. Robertson, "Paying the Alligator": Precommitment in Law, Bioethics, and Constitutions, 81 TEX. L. REV. 1729, 1730 (2003) (citing Jon Elster's definition of precommitments as "strategies that people use 'to protect themselves against passion, preference change, and ... time inconsistency. They do so by removing certain options from the feasible set, by making them more costly or available only with a delay, and by insulating themselves from knowledge about their existence.'").
2. See SENECA, On Anger, in MORAL AND POLITICAL ESSAYS 17, 62 (John M. Cooper & XF. Procopé eds. & trans., Cambridge Univ. Press 1995) (noting that Julius Caesar would burn sympathetic letters written to his vanquished foe, rather than read them and become angry at the letter-writers: "Although his anger was normally moderate, he preferred to avoid the very possibility of it, believing ignorance of a person's misdeeds to be the most gracious form of pardon.");
3. Jon Elster, Don't Burn Your Bridge Before You Come to It: Some Ambiguities and Complexities of Precommitment, 81 TEX. L. REV. 1751, 1752 (2003) (citing same).
4. See HOMER, THE ODYSSEY 276 (Robert Fagles trans., Penguin Books 1996) ("I told my shipmates, ... 'I alone was to hear [the Sirens'] voices,... / but you must bind me with tight chafing ropes / so I cannot move a muscle, bound to the spot, / erect at the mast-block, lashed by ropes to the mast. / And if I plead commanding you to set me free, / then lash me faster, rope on pressing rope.'").
5. Because of the fame of this classic example, self-restriction laws are sometimes referred to as Ulysses laws. See, e.g., JON ELSTER, ULYSSES AND THE SIRENS: STUDIES IN RATIONALITY AND IRRATIONALITY (rev. ed. 1984).
6. I use public law here to include family law and tax law-in short, anything that was promulgated by the legislature and is of general applicability.
7. See Lawrence v. Texas, 539 U.S. 558 (2003) (striking down Texas anti-sodomy statute as unconstitutional).
8. See id. at 599 (Scalia, J., dissenting) ("This [decision] effectively decrees the end of all morals legislation.").
9. See Cass R. Sunstein & Richard H. Thaler, Libertarian Paternalism Is Not an Oxymoron, 70 U. CHI. L. REV. 1159 (2003);
10. see also Gregory Mitchell, Libertarian Paternalism Is an Oxymoron, 99 NW. U. L. REV. 1245 (2005).
11. See Colin Camerer et al., Regulation for Conservatives: Behavioral Economics and the Case for "Asymmetric Paternalism," 151 U. PA. L. REV. 1211 (2003).
12. See Kevin A. Kordana & David H. Tabachnick, Rawls and Contract Law, 73 GEO. WASH. L. REV. 598, 613-14 (2005);
13. Eyal Zamir, The Inverted Hierarchy of Contract Interpretation and Supplementation,97 COLUM. L. REV. 1710, 1785-86 (1997).
14. It admittedly seems paradoxical to say that behavior could be self-regarding and costly to society. Here, I am thinking of activities like drinking, drug use, or gambling. They are self-regarding in the sense that the activities themselves do not have any direct effect on another person. But they are also potentially costly to society because the activities, if done compulsively, can directly precipitate other, non-self-regarding behavior, like theft, violent crime, and an increased rate of hospitalization.
15. Bounded rationality, a term from behavioral economics, refers to limitations on knowledge and self-control that cause an otherwise rational person to behave contrary to his own self-interests. See generally HERBERT A. SIMON, MODELS OF BOUNDED RATIONALITY (1982). In the context of compulsive behavior, for example, a boundedly rational person might generally act in accordance with predictive models of rational self-interest but behave irrationally where his compulsions are implicated.
16. See Problem and Pathological Gambling, ch. 4 of NAT'L GAMBLING IMPACT STUDY COMM'N REPORT (1999), available at http://govinfo.library.unt.edu/ ngisc/reports/fullrpt.html
17. (citing a 1997 Harvard Medical School study estimating 15.4 million problem or pathological gamblers in the U.S).
18. See Bradley S. Fiorito, Comment, Calling a Lemon a Lemon: Regulating Electronic Gambling Machines to Contain Pathological Gambling, 100 NW. U. L. REV. 1325, 1337-38 & n.92 (2006)
19. (citing AM. PSYCHIATRIC ASS'N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 674 (4th ed., text rev. 2000)).
20. See id. at 1328-29.
21. MO. CODE REGS. ANN. tit. 11, § 45-17.010 (2001).
22. See Carol O'Hare, Self-Exclusion-Concept vs. Reality, 8 GAMING L. REV. 189, 189 (2004) (quoting Kevin Mullally, executive director of the Missouri Gaming Commission).
23. The acclaim has not been universal, though. See, e.g., id. (criticizing casino self-exclusion laws for being an ineffective way to combat compulsive gambling and for potentially exposing casinos to liability arising from failure to keep out all self-excluders).
24. See CAL. CODE REGS. tit. 4, § 12464 (2007);
25. ILL. ADMIN. CODE tit. 86, § 3000.745 (2007);
26. IND. ADMIN. CODE 6-3-1 (2004);
27. LA. ADMIN. CODE tit. 42, § 304 (2007);
28. MICH. COMP. LAWS ANN. § 432.225 (West 2001);
29. MISS. GAMING COMM'N REGS., § III(J) (2007);
30. NJ. ADMIN. CODE § 19:48-2.1 to -2.5 (2000 & Supp. 2004);
31. N.Y COMP. CODES R. & REGS. tit. 21, § 2836-19.6(e) (2007);
32. PA. CODE § 503.3 (2007);
33. R.I. GEN. LAWS § 41-9.1-25(c) (2006).
34. See Andy Rhea, Voluntary Self-Exclusion Lists: How They Work and Potential Problems, 9 GAMING L. REV. 462,463-67 (2005).
35. See CAL. CODE REGS. tit. 4, § 12464 (2007);
36. III. ADMIN. CODE tit. 86, § 3000.755 (2007);
37. IND. ADMIN. CODE 6-3-2 (2004);
38. LA. ADMIN. CODE tit. 42, § 304(C) (2007);
39. MICH. COMP. LAWS ANN. § 432.225(4) (West 2007);
40. MISS. GAMING COMM'N REGS., § III(J) (2007);
41. NJ. ADMIN. CODE § 19:48-2.2 (2000 & Supp. 2004);
42. N. Y. COMP. CODES R. & REGS. tit. 21, § 2836-19.6(e) (2007);
43. PA. CODE § 503.3 (2007);
44. R.I. GEN. LAWS § 41-9.1-25(c) (2006).
45. See MO. CODE REGS. ANN. tit. 11, § 45-17.020(1)(A) (2001) ("The applicant agrees that placement on the list is for life and the commission is not authorized to remove a person from the list").
46. See, e.g., III. ADMIN. CODE tit. 86, § 3000.780(a) (2007) ("Upon the expiration of 5 years from the date of placement on the Self-Exclusion List, any person who has been placed on the Self-Exclusion List may request the Administrator to remove his or her name from the Self-Exclusion List").
47. See MISS. GAMING COMM'N REGS., § DI(J)(5)(a) (2007). In Mississippi, though, the minimum term a self-excluder can specify is five years.
48. See id. § III(J)(2)(c)(2).
49. See, e.g., Rhea, supra note 19, at 462-63 (mentioning cases that have come to divergent conclusions on the issue).
50. See, e.g., MO. CODE REGS. ANN. tit. 11, § 45-17.020(1)(A) (2001) ("[T]he person understands ... that s/he may be arrested for trespassing if discovered on an excursion gambting boat... [and that] all chips, tokens and electronic credits in his/her possession at the time of the discovery will be forfeited.").
51. For more on this subject, see Rhea, supra note 19.
52. Sunstein & Thaler, supra note 7, at 1201.
53. See id. at 1172-73.
54. See id.
55. See Fiorito, supra note 13, at 1356 ("Sunstein and Thaler do not discuss gambling in their article, but their theory is directly applicable to the gambling milieu.");
56. The Avuncular State-The New Paternalism, ECONOMIST, Apr. 6, 2006 (discussing casino self-exclusion laws in the context of libertarian paternalism).
57. Another way to approach this question would be to ask if the laws are sufficiently libertarian. Only a few states with casino self-exclusion laws permit the individual to remove himself from the list once he is on it, and those that do might make removal virtually impossible by, for example, imposing waiting periods of multiple years. But "[t]he libertarian paternatist insists on preserving choice." Sunstein & Thaler, supra note 7, at 1185. Therefore, even those states that create some mechanism for getting off the lists might be insufficiently libertarian: on the continuum between freedom of choice and coercion, a law that imposes very high costs on removing oneself from the list might preserve freedom of choice in a technical sense, even as it drastically inhibits the choices that are practically available to a person.
58. See Gerald Dworkin, Paternalism, in MILL'S ON LIBERTT. CRITICAL ESSAYS 61, 62 (Gerald Dworkin ed., 1997) ("By paternalism I shall understand roughly the interference with a person's liberty of action justified by reasons referring exclusively to the welfare, good, happiness, needs, interests or values of the person being coerced.").
59. See Bernard E. Harcourt, The Collapse of the Harm Principle, 90 J. CRIM. L. & CRIMINOLOGY 109, 113 (1999) ("The harm principle is effectively collapsing under the weight of its own success. Claims of harm have become so pervasive that the harm principle has become meaningless: the harm principle no longer serves the function of a critical principle because non-trivial harm arguments permeate the debate.").
60. See 3 JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARM TO SELF 84 (1986) ("[W]hen an earlier self voluntarily agrees or resolves that his later self do something and that the agreement be irrevocable, and his later self, equally voluntarily, wishes to revoke the earlier agreement, the case is not always to be treated as one sovereign person 'changing his mind' later, but at least sometimes as a close conflict between two equally sovereign persons.").
61. Some people might argue that this complexity demonstrates that the state should not be in the business of evaluating which of two conflicting statements of personal preferences is the true one. But, as discussed infra, the state can make such decisions in a nonpaternalistic way by following either or both of two established methodologies for distinguishing between two conflicting statements of preference.
62. See FETNBERG, supra note 34, at 82 (positing a similar hypothetical situation). For another similar example,
63. see id. ("Suppose, for example, that I ask a friend to wake me at five in the morning and urge him to pay no heed to my future self's protests at that hour. When five o'clock comes along, and wakened from a sound sleep I announce a change of mind, the friend is entitled to give greater weight to the clearheaded, deliberate resolution of the earlier self, than to the incoherent, sleepy mumblings of the later one.").
64. See infra section I.C.1.a.
65. See infra section I.C.1.b.
66. JOHN STUART MILL, ON LIBERTY 101 (Elizabeth Rapaport ed., Hackett Pub. Co., Inc. 1978) (1859).
67. See FEINBERG, supra note 34, at 57 ("A majority view, associated with the writings of Plato, Aristotle, Rousseau, Hegel, and Mill, among others, identifies a person's good ultimately with his self-fulfillment- a notion that is certainly not identical with that of autonomy or the right of self-determination.").
68. Id. at 65.
69. Kurt Eggert, Lashed to the Mast and Crying for Help: How Self-Limitation of Autonomy Can Protect Elders from Predatory Lending, 36 LOY. L.A. L. REV. 693, 727 (2003).
70. Id.
71. Id. at 728 (citing Harry G. Frankfurt, Freedom of the Will and the Concept of a Person, 68 J. PHIL. 5, 11 (1971)).
72. Id.
73. GERALD DWORKIN, THE THEORY AND PRACTICE OF AUTONOMY 20 (Sydney Shoemaker et al. eds., 1988);
74. Eggert, supra note 42, at 729 n.155 (quoting same).
75. Eggert, supra note 42, at 726 n. 145.
76. Id. at 738 (citations and quotations omitted).
77. Id. at 741.
78. Id.
79. Id. at 742.
80. Id. at 739.
81. Colin F. Camerer, Wanting, Liking, and Learning: Neuroscience and Paternalism, 73 U. CHI. L. REV. 87, 87 (2006).
82. See infra notes 92-99 and accompanying text.
83. Camerer et al., supra note 8, at 1219.
84. This suggestion need not conflict with the earlier one that self-restriction laws not be paternalistic. Although the state should not try to determine what is in an individual's best interests, it should consider how self-restriction laws will affect society in general.
85. Mitchell, supra note 7, at 1275.
86. Katherine Shaw Späht, Louisiana's Covenant Marriage: Social Analysis and Legal Implications, 59 LA. L. REV. 63, 74 (1998) (emphasis added).
87. See Cass R. Sunstein, On the Expressive Function of Law, 144 U. PA. L. REV. 2021, 2025 (1996).
88. See id.
89. Id. at 2026.
90. Id.
91. See id. at 2027.
92. See id. at 2049.
93. See id. at 2032.
94. Id. at 2031.
95. Id. at 2032.
96. Id. at 2050-51.
97. Id. at 2033.
98. Id at 2045-46.
99. See LA. REV. STAT. ANN. § 9:272 (2000 & Supp. 2007).
100. Katherine Shaw Spaht, Covenant Marriage Seven Years Later: Its As Yet Unfulfilled Promise, 65 LA. L. REV. 605, 605 (2005).
101. See ARIZ. REV. STAT. ANN. §§ 25-901 to -906 (2007);
102. ARK. CODE ANN. §§ 9-11-802 to -811 (2002 & Supp. 2007);
103. see also Spaht, supra note 72, at 605 (noting the adoption of the Arizona and Arkansas laws).
104. Katherine Shaw Spaht, Covenant Marriage: An Achievable Legal Response to the Inherent Nature of Marriage and Its Various Goods, 4 AVE MAMA L. REV. 467, 482, 485 (2006).
105. Id. at 469.
106. Id. at 482.
107. See id. at 484.
108. See David Crary, Bible Belt Is Also Divorce Belt, CHI. TRIB., NOV. 12, 1999, at 8.
109. Spaht, supra note 74, at 473 (citation and internal quotation marks omitted).
110. Id. at 474.
111. Tony Perkins, Covenant Marriage: A Legislator's Perspective, 12 REGENT U. L. REV. 27, 28 (1999).
112. Spaht, supra note 58, at 72.
113. Spaht, supra note 74, at 495 (quoting John Witte, Jr. & Joel A. Nichols, Introduction to COVENANT MARRIAGE IN COMPARATIVE PERSPECTIVE 1, 24 (John Witte, Jr. & Eliza Ellison eds., 2005)).
114. Perkins, supra note 81, at 29.
115. Id.
116. Spaht, supra note 58, at 130
117. (quoting Robert Rowthorn, Marriage and Trust: Some Lessons from Economics, 23 CAMBRIDGE J. ECON. 661, 688 (1999)).
118. See Spaht, supra note 74, at 489.
119. See id. at 489-91.
120. See id. This introduces another level of paternalism: state employees deciding for a couple that a covenant marriage would not be in their best interest.
121. Spaht, supra note 72, at 628.
122. Perkins, supra note 81, at 29.
123. See U.S. DEP'T OF HEALTH & HUMAN SERVS., BINGE EATING DISORDER 1, 3 (2004), available at http://win.niddk.nih.gov/publications/PDFs/bingedis10.04.pdf (calling binge eating "the most common eating disorder" and listing type 2 diabetes, heart disease, cancer, and depression among associated complications);
124. U.S. DEP'T OF HEALTH & HUMAN SERVS., STATISTICS RELATED TO OVERWEIGHT AND OBESITY (2007), available at http://win.niddk.nih.gov/ publications/PDFs/stat904z.pdf (estimating the total direct and indirect costs of overweight and obesity in the United States at $177 billion).
125. See Carrot and stickK: How To Help Your Good Self To Triumph over Your Bad Self, ECONOMIST, Feb. 7, 2008; stickK, Frequently Asked Questions, http://www.stickK.com/faq/php [hereinafter stickK FAQs].
126. See stickK FAQs, supra note 93.
127. See id.
128. See sources cited supra note 93.
129. See stickK FAQs, supra note 93.
130. See id.
131. Tennessee recently became the first state to require identification checks of anyone buying alcohol, regardless of how obviously over twenty-one the purchaser appears. See Lucas L. Johnson II, Tennessee Requires Stores To Check ID Card of Anyone Buying Beer, WASH. POST, July 1, 2007, at A7. In such states, it would impose little or no marginal costs on society to check the identification for a mark that indicates a self-restriction on alcohol consumption.
132. See Aussie State Plans Wristband Alarms for Gambling Addicts, STRAITS TIMES (Sing.), June 18, 2002;
133. Eggert, supra note 42, at 753 (citing same).
134. Convicted pedophiles have even requested a far more permanent form of self-restriction, castration. See After Castration, California Sex Offender Seeks Freedom, N. Y TIMES, July 4, 2006, at A12;
135. Sam Howe Verhovek, Texas Frees Child Molester Who Warns of New Crimes, N. Y. TIMES, Apr. 9, 1996, at B7.
136. But see Pedophile Who Sought Castration Is Released, ABC NEWS, May 4, 2005, http://abcnews.go.com/GMA/LegalCenter/story?id:= 726907 (suggesting that ankle bracelets, which convicted pedophiles in Texas are forced to wear-and therefore are not examples of self-restriction laws because they do not involve voluntary restriction-are ineffective in preventing recidivism).
137. It might be worth noting that some of the potential self-restriction laws discussed below express their messages through the criminal law - specifically, by giving people the option to criminalize otherwise legal behavior, thereby conveying a message of the self-restricter's (and in many cases, the state's) disapproval of the behavior. Casino self-exclusion laws already operate through the criminal law. But there are not any extant examples of primarily expressive self-restriction laws that operate through the criminal law, and one possible objection to the proposals that follow is that the criminal law carries too much condemnatory force and potential for stigmatization for it to be properly used as a mechanism for expressing disapproval. Two responses come to mind. First, part of this concern can be mitigated through the choice of punishment for violating the self-restriction law. For example, if violating a self-restriction law results in a nominal fine, then it seems overly formalistic to say that the involvement of the criminal law automatically makes it an inappropriately powerful tool for attempting to shape societal norms. Misdemeanors are crimes, too, but we do not normally think that misdemeanors strongly or oppressively inculcate values. Second, "[t]he criminal law has traditionally been seen as performing a moral educative function." See Dan M. Kahan, The Anatomy of Disgust in Criminal Law, 96 MICH. L. REV. 1621, 1653 (1998)
138. (reviewing WILLIAM IAN MILLER, THE ANATOMY OF DISGUST (1997)).
139. Under this view, it is normal and appropriate to use the criminal law to shape societal norms. But see Adil Ahmad Haque, Lawrence v. Texas and the Limits of the Criminal Law, 42 HARV. C.R.-C.L. L. REV. 1, 33-34 (2007) (arguing that Kahan's belief "that the expression of social condemnation may be sufficient to justify punishment of individuals who display defective moral values ... is a minority view even among expressive theorists of the criminal law").
140. Kahan, supra note 103, at 1655.
141. See supra notes 62-63,90 and accompanying text.
142. See Roe v. Wade, 410 U.S. 113, 164 (1973) (recognizing a woman's right to choose to obtain an abortion prior to fetal viability);
143. see also Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 845-46 (1992) (reaffirming Roe v. Wade on stare decisis grounds).
144. See Jessica Powley Hayden, Note, The Ties That Bind: The Constitution, Structural Restraints, and Government Actions Overseas, 96 GEO. L.J. 237, 243 & n.35 (2007) (noting that individual rights can be waived, but structural rights cannot).
145. Perkins, supra note 81, at 28-29.
146. See Kahan, supra note 103, at 1655.
147. It might also make sense to create certain exceptions-such as in cases of rape-as the default rules and let people opt-out of those exceptions only if they manifest a considered preference to do so.
148. See Lawrence v. Texas, 539 U.S. 558 (2003) (invalidating Texas statute criminalizing homosexual sodomy).
149. See id. at 577-78.
150. See, e.g., Mark Strasser, Monogamy, Licentiousness, Desuetude and Mere Tolerance: The Multiple Misinterpretations of Lawrence v. Texas, 15 S. CAL. REV. L. & WOMEN'S STUD. 95, 95 (2005) (describing various conflicting readings of Lawrence).
151. Lawrence, 539 U.S. at 578 (emphasis added).
152. Id.
153. Id. at 580 (O'Connor, J., concurring) (quoting Dep't of Agrie, v. Moreno, 413 U.S. 528, 534 (1973)) (alteration in original).
154. Id. at 583 (citations and quotations omitted).
155. See William N. Eskridge, Jr., Lawrence's Jurisprudence of Tolerance: Judicial Review To Lower the Stakes of Identity Politics, 88 MINN. L. REV. 1021, 1025 (2004). Perhaps "signal[ing] the majority's preference for heterosexuality" is subtly but crucially different from signaling the majority's disapproval of homosexuality, with the former constitutionally legitimate and the latter illegitimate. But that distinction seems more semantic than substantive.
156. See also WILLIAM N. ESKRIDGE, JR., DISHONORABLE PASSIONS: SODOMY LAWS IN AMERICA 1861-2003, 36 ("Justice Scalia was wrong to conclude that ... Lawrence constitutionalized the 'homosexual agenda' and, further, precluded the states from adopting regulations reflecting and trying to influence public morality. In the short term, the Constitution may tolerate some regulations whose justification is, essentially, no promo homo.").
157. I use "liberty" here in the legal sense of imposing legal obstacles to or consequences for undertaking an action. Any expression of societal disapproval might, of course, make people feel less free to undertake the action but, in the absence of legal obstacles or consequences, I do not think the effect on a person's perceived freedom to act without social repercussions amounts to restriction of liberty.
158. See Eskridge, supra note 118, at 1085 ("The state can have morals legislation, but it cannot condemn or criminalize conduct that is deeply moral to many productive Americans.").
159. See generally Randy E. Barnett, The Proper Scope of the Police Power, 79 NOTRE DAME L. REV. 429 (2004).
160. See supra note 70 and accompanying text.
161. See Barnett, supra note 121, at 429 (quoting a nineteenth-century definition of the police power as the imposition by the government of "such a restraint as will prevent the infliction of injury upon others in the enjoyment of [their private rights]").
162. See R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 429 (1992) (Stevens, J., concurring) (noting, in the context of government regulation of private speech, that "the scope of protection provided expressive activity depends in part upon its content and character");
163. see also Joseph Blocher, School Naming Rights and the First Amendment's Perfect Storm, 96 GEO. L.J. 1, 21-25 (2007) (describing the "complicated family tree" of government speech cases).
164. See U.S. CONST. amend. I.
165. See Kahan, supra note 103, at 1652-53 ("It's true that liberal regimes renounce (at least in theory) rankings of a particular sort-such as those based on race, gender, and class-but they haven't renounced all perceptions of high and low, noble and base, worthy and unworthy. Even egalitarians hold pedophiles and sadists in low esteem, for example, not just because such persons threaten physical harm, but because their values reveal them to be despicable. Indeed as Miller points out, those who seek to raise the states of historically subordinated groups seek to reshape our emotional economy so that we'll come to see racists, sexists, and homophobes, among others, as debased in exactly the same way. On this account, the proper course for liberalism is not to obliterate disgust, but to reform its objects so that we come to value what is genuinely high, to despise what is genuinely low.").
166. See, e.g., Neil Swidley, What Makes People Gay?, BOSTON GLOBE MAG., Aug. 14, 2005, at 33 (quoting Michael Bailey, a psychology professor at Northwestern University, who concludes that, at least with regard to male sexual orientation, "there's now enough evidence to suggest it is 'entirely in-born'").
167. Some supporters of anti-sodomy laws might try to distinguish these laws by arguing that sodomy is merely a practice, while race and sex are intrinsic properties. But when, as here, the practice is so closely tied to identity, this distinction seems to carry little force.
168. If they were promulgated, however, perhaps it could be done in conjunction with a self-restriction law in which a person could make it a crime to engage in anti-gay hate speech or otherwise discriminate against homosexuals, thus setting up a clear opposition of competing societal norms. See Eskridge, supra note 118, at 1025 ("The LGBT social movement wants to persuade America that gay is good, while the traditional family values (TFV) countermovement wants to persuade America that many gay rights would undermine the family, marriage, and other cherished institutions. This is a fine debate for America to have. The Court is simply insisting that the players not hit below the belt and turn a fair fight into a brawl.").
169. See 4 U.S.C. § 8(k) (2000) ("The flag, when it is in such a condition that it is no longer a fitting emblem for display, should be destroyed in a dignified way, preferably by burning.").
170. If the Supreme Court determines that the Second Amendment renders most gun-control bans unconstitutional, see District of Columbia v. Heller, 128 S. Ct. 645 (2007) (granting certiorari to determine the constitutionality of a District of Columbia handgun ban), a self-restriction law permitting people to make it illegal for them to purchase or own firearms could also shape societal norms and allow people opposed to gun ownership to take advantage of the intrinsic good of living in a world in which gun possession is illegal, at least for them.
171. See Hannah Brückner & Peter Bearman, After the Promise: The STD Consequences of Adolescent Virginity Pledges, 36 J. ADOLESCENT HEALTH 271, 275 (2005) (finding that fifty percent of respondents who had consistently taken abstinence pledges had engaged in vaginal intercourse by age nineteen).
172. But see The Final Cut, ECONOMIST, May 31, 2007 (noting that less than one percent of passengers have taken up British Airways' offer to offset carbon emissions).