Regulation for the sake of appearance

Harvard Law Review

Volumn 125, Issue 7, 2012, Pages 1565-1638

  Samaha, Adam M ^a  

^a UNIVERSITY OF CHICAGO LAW SCHOOL   (United States)

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EID: 84861379614     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (459)

1. George Orwell, 1984, at 51 (Signet Classic 1961) (1949).
2. From the Federal Deposit Insurance Corporation's logo, reproduced at 12 C.F.R. § 328.1 (2011).
3. From the National Institute of Standards and Technology's radio broadcast, available by telephone at 303-499-7111. See History of WWV, Nat'l Inst. of Standards & Tech., http://www.nist.gov/pml/div688/grp40/wwv-history.cfm (last visited Mar. 25, 2012).
4. See Deborah L. Rhode, The Beauty Bias 34-35 (2010) (stating that people in the United States "spend[] more money on grooming than on reading material").
5. See First Research, Industry Profile: Advertising & Marketing Services 2 (2011) (estimating annual revenue for advertising and marketing at $88 billion in the United States).
6. Thomas Frank, The Conquest of Cool 62-67 (1997) (describing Volkswagen's 1960s advertising campaigns).
7. 1 Annals of Cong. 450 (1789) (Joseph Gales ed., 1834);
8. see also Bernard Schwartz, The Great Rights of Mankind 164-65 (1977).
9. See, e.g., 28 U.S.C. § 455(a) (2006).
10. Model Code of Judicial Conduct Canon 2, r. 2.11(A) (2007);
11. see also Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252, 2266-67 (2009) (emphasizing the need for public confidence in the judiciary).
12. See section IV. B, pp. 1620-34.
13. See, e.g., Buckley v. Valeo, 424 U.S. 1, 25-27, 46-48 (1976) (per curiam) (emphasizing public confidence);
14. see also section IV. A, pp. 1599-1619.
15. Legal scholarship on appearance-based regulation is thick regarding law's expressive function, See sources cited Elizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law: A General Restatement, 148 U. Pa. L. Rev. 1503, 1511-14 (2000), and there is helpful work on law and aesthetics.
16. See, e.g., Deborah L. Rhode, The Beauty Bias 34-35 (2010).
17. Susan M. Schweik, The Ugly Laws (2009).
18. Robert Post, Prejudicial Appearances: The Logic of American Antidiscrimination Law, 88 Calif. L. Rev. 1 (2000). A broader perspective is mostly missing, although there are important contributions.
19. For an argument for a deontological duty to appear ethical based on relational obligations, see Deborah Hellman, Judging by Appearances: Professional Ethics, Expressive Government, and the Moral Significance of How Things Seem, 60 Md. L. Rev. 653 (2001).
20. A critical reply is Matthew D. Adler, Expression and Appearance: A Comment on Hellman, 60 Md. L. Rev. 688 (2001).
21. For an analysis of how government might compete with private parties to reap benefits from manipulating people's misperceptions of risk, see Amitai Aviram, The Placebo Effect of Law: Law's Role in Manipulating Perceptions, 75 Geo. Wash. L. Rev. 54 (2006). Outside the law literature, a consequentialist account to which I am partial is Julia Driver, Caesar's Wife: On the Moral Significance of Appearing Good, 89 J. Phil. 331, 341 (1992), which argues that actions that are not intrinsically immoral can be wrongful when they seem immoral and observers either are offended or copy their misperception of the action. There are, of course, many pockets of appearance-related legal scholarship.
22. See, e.g., Larry D. Barnett, Law as Symbol: Appearances in the Regulation of Investment Advisers and Attorneys, 55 Clev. St. L. Rev. 289 (2007).
23. Raymond J. McKoski, Judicial Discipline and the Appearance of Impropriety: What the Public Sees Is What the Judge Gets, 94 Minn. L. Rev. 1914 (2010);
24. cf. Note, Satisfying the "Appearance of Justice": The Uses of Apparent Impropriety in Constitutional Adjudication, 117 Harv. L. Rev. 2708 (2004) (presenting a taxonomy of statements about appearances in the Supreme Court's constitutional opinions).
25. I do not include prophylactic rules, which are norms that reach beyond bad conduct in order to help ensure that such conduct does not occur. See, e.g., Jonathan Remy Nash, Standing and the Precautionary Principle, 108 Colum. L. Rev. 494, 515-17 (2008).
26. David A. Strauss, The Ubiquity of Prophylactic Rules, 55 U. Chi. L. Rev. 190, 200, 204-05 (1988). A leading reason to tolerate such crude regulatory overbreadth is that the feared conduct is too difficult to detect and therefore a (clear) proxy is adequate. This is old news. And although prophylactic rules do tend to target conduct that merely resembles bad conduct, my interest is in decisions that are defended in terms of the appearances that they are supposed to cause, not every decision that takes appearance into account. Prophylactic rules amount to regulation that applies to appearances, while I am interested in regulation for the sake of generating appearances. The former does not raise the same aesthetic, transparency, or causation questions.
27. Similarly, people may hold defensible objections to particular processes by which officials influence perceptions, as Professor Jed Rubenfeld has noted to me. Strong forms of these objections cut across all appearance/reality models. One might think that officials should never implant computer chips in people's heads without their consent, even if solely for the purpose of transmitting standard time whenever a subject wants to know it. These process-related objections are worth article-length treatment, and they are not the subject of my investigation, but they can be easily added to my general framework. They are in the nature of specific side constraints.
28. Supplemental Brief for the Appellee at 8, Citizens United v. FEC, 130 S. Ct. 876 (2010) (No. 08-205), 2009 WL 2219300, at *8 (emphasis added).
29. See Louis H. Sullivan, The Tall Office Building Artistically Considered, Lippincott'sMag., Mar. 1896, at 403, 408 ("[F]orm ever follows function, and this is the law. ");
30. cf. Adolf Loos, Ornament and Crime (1929), reprinted in Ornament and Crime 167, 169 (Michael Mitchell trans., 1998) (contending that "in economic respects [ornamentation] is a crime").
31. See Luke Harding, How One of the Biggest Rows of Modern Times Helped Danish Exports to Prosper, Guardian (London), Sept. 30, 2006, at 24.
32. John Lancaster, Pakistani Cleric Announces Bounty for Killing of Danish Cartoonists, Wash. Post, Feb. 18, 2006, at A21.
33. See F. Gregory Lastowka & Dan Hunter, Virtual Worlds: A Primer, in The State of Play 13, 13-16 (Jack M. Balkin & Beth Simone Noveck eds., 2006) ("[V]irtual worlds are real, as well. " at 15.);
34. cf. Yochai Benkler, There Is No Spoon, in The State of Play, at 180, 180-81, 186 (stressing social relationships that are enabled by collaborative software platforms).
35. See The American Heritage Dictionary of the English Language 88 (3d ed. 1992).
36. Merriam-Webster's Collegiate Dictionary 56 (10th ed. 1996).
37. See The American Heritage Dictionary of the English Language, 88 (3d ed. 1992), at 1505.
38. Compare, e.g., Maximilian Foster, Keeping Up Appearances (1914) (telling the tale of a couple who move to the big city and live beyond their means), with, e.g., The Al Sharpton Show, Syndication One, http://syndication1.com/al.htm (last visited Mar. 25, 2012) (displaying the "Keepin' It Real" catchphrase for Al Sharpton's radio show).
39. John H. Flavell, The Development of Children's Knowledge About the Appearance-Reality Distinction, 41 Am. Psychol. 418, 418 (1986) (internal quotation marks omitted).
40. See generally Nicholas Bunnin & Jiyuan Yu, The Blackwell Dictionary ofWestern Philosophy 483-84 (2004).
41. Brian Leiter, Law and Objectivity, in The OxfordHandbook of Jurisprudence and Philosophy of Law 969 (Jules Coleman & Scott Shapiro eds., 2002).
42. John Wisdom, Appearance and Reality, 52 Phil. 3 (1977).
43. This position was illustrated in Plato's Republic through the allegory of the cave, See Plato, The Republic bk. VII, 514a-518e, at 273-79 (Benjamin Jowett trans., Charles Scribner's Sons 1928) (c. 360 B.C.E.), in which even the sunlit world above could provide only a link to the Forms.
44. See Brian Leiter, Law and Objectivity, in The OxfordHandbook of Jurisprudence and Philosophy of Law 969 (Jules Coleman & Scott Shapiro eds., 2002), at 970-71 (explaining "constitutional independence" from the mind (which cannot include psychological facts), "cognitive independence" (which does), and "causal independence" (which is irrelevant to objectivity).
45. For conflicting interpretations of the dictum "Man is the measure of all things, " compare C.M. Gillespie, The Truth of Protagoras, 19 Mind 470, 482-84, 492 (1910), which understands it as relativist and subjectivist.
46. F.C.S. Schiller, Plato or Protagoras? 8-10, 15-18, 21 (1908), which understands it as pragmatic.
47. See Brian Leiter, Objectivity and the Problems of Jurisprudence, 72 Tex. L. Rev. 187, 192-94 (1993) (book review).
48. Even if nothing were metaphysically objective, there still would be practically important questions about how beliefs should be formed or defended.
49. Cf. René Descartes, Meditations on First Philosophy (1641), reprinted in Discourseon Method and Meditations on First Philosophy 45, 62-63 (Donald A. Cress trans., Hackett Publishing Co. 4th ed. 1998) (introducing the malicious-demon hypothetical in which a person's sense impressions are manipulated).
50. Hilary Putnam, Reason, Truth and History 5-8, 12-21 (1981) (arguing, however, that the "brain-in-a-vat" supposition has a self-refuting quality). The strong skeptical position is played out in Peter Unger, Ignorance1 (1975), which also suggests limits to the classical form of the argument, see at 5-6, 11-12.
51. Cf. Immanuel Kant, Prolegomena to Any Future Metaphysics 99-100, 109-10 (Lewis W. Beck ed., Liberal Arts Press 1950) (1783) (arguing that people cannot have knowledge of objects in themselves but that they can have important knowledge of objects as they appear).
52. David Lewis, Elusive Knowledge, 74 Australasian J. Phil. 549, 559 (1996);
53. see also David Lewis, Elusive Knowledge, 74 Australasian J. Phil. (1996) at 562-67 (suggesting that, in securing knowledge, different possibilities are properly ignored in different contexts);
54. cf. Ronald Dworkin, Objectivity and Truth: You'd Better Believe It, 25 Phil. & Pub. Aff. 87 (1996) (suggesting that truth claims must be partitioned by discourse).
55. Gerald J. Erion & Barry Smith, Skepticism, Morality, and The Matrix, in THE MATRIX and Philosophy16, 22-25 (William Irwin ed., 2002) (similar).
56. See Brian Leiter, Law and Objectivity, in The OxfordHandbook of Jurisprudence and Philosophy of Law 969 (Jules Coleman & Scott Shapiro eds., 2002), at 975-76 (discussing semantic objectivity).
57. See Brian Leiter, Law and Objectivity, in The OxfordHandbook of Jurisprudence and Philosophy of Law 969 (Jules Coleman & Scott Shapiro eds., 2002), at 975-76 (discussing semantic objectivity).
58. See Brian Leiter, Law and Objectivity, in The OxfordHandbook of Jurisprudence and Philosophy of Law 969 (Jules Coleman & Scott Shapiro eds., 2002), at 975-76 (discussing semantic objectivity).
59. See Brian Leiter, Law and Objectivity, in The OxfordHandbook of Jurisprudence and Philosophy of Law 969 (Jules Coleman & Scott Shapiro eds., 2002), at 975-76 (discussing semantic objectivity).
60. See Brian Leiter, Law and Objectivity, in The OxfordHandbook of Jurisprudence and Philosophy of Law 969 (Jules Coleman & Scott Shapiro eds., 2002), at 975-76 (discussing semantic objectivity).
61. Alternatively, perhaps "God plays dice" and some aspects of a metaphysically objective reality are irreducibly probabilistic.
62. As the discussion should make clear, appearance on its own does not drive reality, even under my definitions. Sometimes people rely on (their perception of) an appearance to form beliefs or attitudes, which then influence decisions to behave in some way. Over time, these behaviors may influence the pertinent reality, such as the level of corruption or violence. Occasionally I will describe this process using shorthand formulations that I trust will not obscure the sometimes complex causal chains involved.
63. See Jonathan E. Schroeder, Visual Consumption 92 (2002) ("Architecture is a language-a language of metaphor.... That is, built form constitutes a system of representation and signifying practices. Buildings mean something. ").
64. I thank Chris Thompson, a Chicago architect, for these examples.
65. See Jon Hilkevitch, Lake Shore Drive's Curve to Get New Stripes, Chi. Trib., Sept. 8, 2006, § 2 (Metro), at 3.
66. See Jon Hilkevitch, Lake Shore Drive's Curve to Get New Stripes, Chi. Trib., Sept. 8, 2006, § 2 (Metro), at 3.
67. That is, reliable after taking into account known controversies over methodological choices, such as excluding discouraged workers from the "unemployed" when calculating the unemployment rate.
68. Cf. Benjamin Woodson et al., Judicial Symbols and the Link Between Institutional Legitimacy and Acquiescence 1, 15-27 (2011) (prepared for delivery at the Annual Meeting of the American Political Science Association), available at http://ssrn.com/abstract=1902275 (reviewing studies and finding that judicial symbols tend to trigger feelings of judicial legitimacy and thus increase acceptance of unwelcome Supreme Court decisions among nonblack college student respondents with relatively low previous exposure to the Court).
69. Judges might psychologically internalize the norms that they display, see Self-Fulfilling Prophecy, in Dictionary of the Social Sciences 434 (Craig Calhoun ed., 2002) pp. 1578-79 (discussing self-fulfilling prophecies), and people might crowd a safe-looking bridge in a way that makes the structure less safe during the next time period.
70. see Self-Fulfilling Prophecy, in Dictionary of the Social Sciences 434 (Craig Calhoun ed., 2002) and accompanying text (discussing self-defeating prophecies).
71. See Richard Scott Carnell et al., The Law of Banking and Financial Institutions2-32 (4th ed. 2009).
72. Benjamin J. Klebaner, American Commercial Banking138-238, 241, 243-44 (1990).
73. See Susan Wagg, A Critical Look at Bank Architecture, in Money Matters 15, 23-24, 250, 254 (Joel Stein & Caroline Levine eds., 1990).
74. See Susan Wagg, A Critical Look at Bank Architecture, in Money Matters 15, 23-24, 250, 254 (Joel Stein & Caroline Levine eds., 1990).
75. see also Robert Nisbet, Men and Money: Reflections by a Sociologist, in Money Matters, at 7, 8 (describing banks and churches as relying on the faith and confidence of users).
76. See Susan Wagg, A Critical Look at Bank Architecture, in Money Matters 15, (Joel Stein & Caroline Levine eds., 1990), at 228-30, 235-36, 251-52.
77. See Susan Wagg, A Critical Look at Bank Architecture, in Money Matters 15, (Joel Stein & Caroline Levine eds., 1990), at 228-30, 235-36, 251-52.
78. Pub. L. No. 73-66, 48 Stat. 162 (codified as amended in scattered sections of 12 U.S.C.).
79. See 2 Jerry W. Markham, A Financial History of the United States 166 (2002).
80. See 12 C.F.R. §§ 328.0-.4 (2011).
81. See Richard Scott Carnell et al., The Law of Banking and Financial Institutions2-32 (4th ed. 2009), at 47, 309-10.
82. See generally Self-Fulfilling Prophecy, in A Dictionary of Psychology 681-82 (Andrew M. Colman ed., 2009);
83. see also Steven N. Durlauf & Lawrence E. Blume, Stigma, in TheNew Palgrave Dictionary of Economics, Online Edition (Steven N. Durlauf & Lawrence E. Blume eds., 2d ed. 2008).
84. L. Jussim, Self-Fulfilling Prophecies, in Encyclopedia of Social and Behavioral Sciences 13,830, 13,830-31 (2001) (requiring false beliefs).
85. James M. Olson et al., Expectancies, in Social Psychology 211, 222 (E. Tory Higgins & Arie W. Kruglanski eds., 1996) ("[T]he perceiver's expectancy serves to elicit behavior from the target that confirms the expectancy and that might not have occurred otherwise. "). There are much looser uses of the term on which I will not rely.
86. See, e.g., Sanford Levinson & Jack M. Balkin, Constitutional Dictatorship: Its Dangers and Its Design, 94 Minn. L. Rev. 1789, 1809, 1843-48 (2010) (involving assertions of crisis that help cause emergency power authorizations, but apparently not the existence of the asserted crisis).
87. See Robert K. Merton, The Self-Fulfilling Prophecy, 8 Antioch Rev. 193, 193-95 (1948).
88. See Robert K. Merton, The Self-Fulfilling Prophecy, 8 Antioch Rev. 193, 193-95 (1948).
89. See Robert K. Merton, The Self-Fulfilling Prophecy, 8 Antioch Rev. 193, 193-95 (1948).
90. accord William I. Thomas & Dorothy Swaine Thomas, The Child inAmerica 572 (1928) ("If men define situations as real, they are real in their consequences. ").
91. See Douglas W. Diamond & Philip H. Dybvig, Bank Runs, Deposit Insurance, and Liquidity, 91 J. Pol. Econ. 401, 403 (1983).
92. See Douglas G. Baird et al., Game Theory and the Law 39 (1994) (discussing unpredictable outcomes and focal strategies).
93. Sushil Bikhchandani et al., A Theory of Fads, Fashion, Custom, and Cultural Change as Informational Cascades, 100 J. Pol. Econ. 992, 1013 & n.28 (1992) (asserting that bank runs can result from socially costly yet fragile information cascades). The bank confidence situation presents a recursive expectations issue. One person must believe that some number of other persons will not withdraw, which depends on what other persons believe about everyone else's behavior (and so on). Achieving shared confidence might seem logically complex, but it happens.
94. Robert K. Merton, The Self-Fulfilling Prophecy, 8 Antioch Rev. 193, 193-95 (1948), at 195;
95. Robert K. Merton, The Self-Fulfilling Prophecy, 8 Antioch Rev. 193, 193-95 (1948), at 195;
96. See James M. Olson et al., Expectancies, in Social Psychology 211, 222 (E. Tory Higgins & Arie W. Kruglanski eds., 1996), at 222.
97. See Self-Fulfilling Prophecy, in Dictionary of the Social Sciences 434 (Craig Calhoun ed., 2002).
98. Again, less straightforward causal links might exist. Widespread belief that law enforcement will quickly apprehend wrongdoers should deter many rational actors from wrongdoing, making it easier for law enforcement to quickly apprehend the remaining contingent of wrongdoers-assuming that this effect is not washed out by potential victims' unexpectedly letting down their guard.
99. See Ian R. Bartky, Selling the True Time 1-3, 205 (2000) (emphasizing the role of astronomers).
100. Eviatar Zerubavel, The Standardization of Time: A Sociohistorical Perspective, 88 Am. J. Soc. 1, 6-8 (1982) (emphasizing the role of railroads);
101. see also Ian R. Bartky & Elizabeth Harrison, Standard and Daylight-Saving Time, Sci. Am., May 1979, at 46 (noting, however, both resistance to daylight savings time and certain pressures to redraw time zones).
102. See Demetrios Matsakis, Timekeeping at the US Naval Observatory, IEEE AESS Sys. Mag., June 2003, at 9, 9-12.
103. USNO Master Clock, U.S. Naval Observatory, http://www.usno.navy.mil/USNO/time/master-clock (last visited Mar. 25, 2012).
104. See U.S. Const. art. I, § 8, cl. 5.
105. See Michael O'Malley, Keeping Watch: A History of American Time 6-10 (1990).
106. See Adam M. Samaha, Endorsement Retires: From Religious Symbols to Anti-Sorting Principles, 2005 Sup. Ct. Rev. 135, 144-56 (observing that symbols not only can have emotional impact, but also may serve a signaling-sorting function).
107. See, e.g., Elizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law: A General Restatement, 148 U. Pa. L. Rev. 1503, 1511-14 (2000) (defining an expressive moral theory in terms of constraints on public meaning).
108. Deborah Hellman, The Expressive Dimension of Equal Protection, 85 Minn. L. Rev. 1, 2 (2000) ("[S]tate action violates Equal Protection if its meaning conflicts with the government's obligation to treat each person with equal concern. ").
109. Richard H. Pildes & Richard G. Niemi, Expressive Harms, "Bizarre Districts, " and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno, 92 Mich. L. Rev. 483, 506-16 (1993).
110. For criticism, see, for example, Simon Blackburn, Group Minds and Expressive Harm, 60 Md. L. Rev. 467, 488-91 (2001), which questions whether a concept of expressive harm is necessary to explain or justify law's functions.
111. Matthew D. Adler, Expressive Theories of Law: A Skeptical Overview, 148 U. Pa. L. Rev. 1363 (2000), which attempts to clarify expressive theories of law and doubts that law's meaning has "foundational moral relevance, "
112. For distinct usage of the term, see Richard H. McAdams, A Focal Point Theory of Expressive Law, 86 Va. L. Rev. 1649 (2000), which discusses solutions to coordination problems.
113. See Linmark Assocs. v. Willingboro, 431 U.S. 85, 87-88, 95-98 & nn.9-10 (1977) (distinguishing efforts to reduce misleading information, to publicize the number of white residents, and to subsidize residential stability).
114. For a controversial application of this common position, see Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 864-65 (1988), which listed public confidence among the factors for vacating a judgment based on the appearance of bias and affirmed vacatur even though the judge was unaware of his conflict of interest during trial.
115. 128 S. Ct. 1520, 1535 (2008) (plurality opinion);
116. see also Crawford v. Marion Cnty. Election Bd., 128 S. Ct. 1610, 1620, 1623 (2008) (opinion of Stevens, J.) ("[P]ublic confidence in the integrity of the electoral process... encourages citizen participation in the democratic process. ").
117. see also Crawford v. Marion Cnty. Election Bd., 128 S. Ct. 1610, 1620, 1623 (2008) (opinion of Stevens, J.) ("[P]ublic confidence in the integrity of the electoral process... encourages citizen participation in the democratic process. ").
118. Van Orden v. Perry, 545 U.S. 677, 697 (2005) (Thomas, J., concurring) ("The unintelligibility of this Court's precedent raises the further concern that, either in appearance or in fact, adjudication of Establishment Clause challenges turns on judicial predilections. ").
119. 540 U.S. 93, 150 (2003), overruled in part by Citizens United v. FEC, 130 S. Ct. 876 (2010);
120. see also Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 865-69 (1992) (retaining a modified abortion right and sourcing the Court's legitimacy partly in public perception of legally principled decisions and stare decisis).
121. See Pierre L. van den Berghe, Race and Racism 9 (1967) (noting a socially assigned version of "race").
122. See, e.g., Dan M. Kahan, Social Influence, Social Meaning, and Deterrence, 83 Va. L. Rev. 349, 350-51 (1997) (indicating that law expresses shared valuations that might influence the behavior of those who perceive those messages).
123. Lawrence Lessig, The Regulation of Social Meaning, 62 U. Chi. L. Rev. 943, 954-55, 957-58 (1995) (recognizing that actions may retain a distribution of meanings across observers and that government may be inept at influencing social meaning).
124. To reiterate, I refer here to successful social conventions, not broken or rigged clocks.
125. See Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 932-38 (N.D. Cal. 2010) (relating testimony of Proposition 8 opponents and proponents).
126. See, e.g., NAACP v. Hunt, 891 F.2d 1555, 1566 (11th Cir. 1990) (stating that Alabama's Confederate flag display, although offensive to many, is a "political matter which is not within [the court's] province to decide").
127. For now. Cf. Salazar v. Buono, 130 S. Ct. 1803, 1819-20 (2010) (opinion of Kennedy, J.) (applying, but injecting criticisms of, the endorsement test for government use of religious symbols).
128. For now. Cf. Salazar v. Buono, 130 S. Ct. 1803, 1819-20 (2010) (opinion of Kennedy, J.) (applying, but injecting criticisms of, the endorsement test for government use of religious symbols).
129. See George Orwell, 1984, (Signet Classic 1961) (1949), at 36-37.
130. See Robert J. MacCoun, Voice, Control, and Belonging: The Double-Edged Sword of Procedural Fairness, 1 Ann. Rev. L. & Soc. Sci. 171, 189-93 (2005).
131. See Adam M. Samaha, Judicial Transparency in an Age of Prediction, 53 Vill. L. Rev. 829, 829-30 (2008) (explaining that complex institutions cannot be either fully known by any one person or fully unknown to all persons);
132. see also Mark Fenster, The Opacity of Transparency, 91 Iowa L. Rev. 885, 892-95 (2006).
133. See, e.g., Amy Gutmann & Dennis Thompson, Democracy and Disagreement95-101 (1996) (discussing the heritage of the publicity principle as a presumption to promote democratic accountability).
134. Francis E. Rourke, Secrecy and Publicity 4-5, 39-40 (1961) (presenting government secrecy as a threat to public observation and control).
135. Adam M. Samaha, Government Secrets, Constitutional Law, and Platforms for Judicial Intervention, 53 UCLA L. Rev. 909, 916-22 (2006) (analyzing the issue partly as a principal/agent problem).
136. Max Weber, Bureaucracy, in Economy and Society 956, 992 (Guenther Roth & Claus Wittich eds., 1978).
137. See Meir Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 Harv. L. Rev. 625, 665-77 (1984).
138. Benjamin S. DuVal, Jr., The Occasions of Secrecy, 47 U. Pitt. L. Rev. 579, 583 (1986) ("[S]ociety is distinctly ambivalent about the benefits of increased knowledge. ").
139. See Sissela Bok, Lying 34-39 (1979) (reviewing commonly accepted positions that justify certain lies, excuse them, or define away the objection to lying).
140. For the extreme position, see Immanuel Kant, On a Supposed Right to Lie from Altruistic Motives, in Critique of Practical Reason and Other Writings in Moral Philosophy 346 (Lewis White Beck trans., 1949).
141. This infeasible change is part of the case for hallucinogens and experience machines. Although drug-induced experiences are "real" on their own terms, I refer, as usual, to situations in which appearance and reality are related to the same proposition of interest (that is, hallucinations designed to take the place of a "real life" without them).
142. See William J. Burns & Paul Slovic, The Diffusion of Fear: Modeling Community Response to a Terrorist Strike, 4 J. Def. Modeling & Sim. 298, 298-301, 305-07 (2007).
143. Institutional responses to such misconceived demands might be best, if the reality cannot be credibly communicated.
144. For indications that federal prosecution of suspected subversives during World War I was partly an effort to moderate populist demand for persecution, see Paul L. Murphy, World War I and the Origin of Civil Liberties in the United States125-26, 165 (1979), which notes that federal officials denounced mob violence while attempting to harness patriotic fervor to build the war effort.
145. Similar logic applies to situations in which appearances are worse than reality, regardless of whether appearance or reality should be characterized as "bad. " I use the good/bad dichotomy for clarity in exposition, understanding that the analysis could be complicated by introducing gradations.
146. See Eric A. Posner, Law and Social Norms 18-27 (2000) (discussing costly conduct, or "signaling, " that may help separate good from bad types). A signal is an appearance as I define the term.
147. See The Matrix (Warner Bros. Pictures 1999).
148. I assume that appearance cannot be uncertain with respect to any given observer, although there can be disagreement across observers regarding how something appears.
149. See Frank H. Knight, Risk, Uncertainty and Profit 19-20, 231-34 (1921).
150. See, e.g., Simon French, Decision Theory 32-60 (1986).
151. David Kelsey & John Quiggin, Theories of Choice Under Ignorance and Uncertainty, 6 J. Econ. Survs. 133, 133-42 (1992).
152. Adam M. Samaha, Randomization in Adjudication, 51 Wm. & Mary L. Rev. 1, 18-21 (2009).
153. See Crawford v. Marion Cnty. Election Bd., 128 S. Ct. 1610, 1619-20, 1623 (2008) (opinion of Stevens, J.).
154. See Crawford v. Marion Cnty. Election Bd., 128 S. Ct. 1610, 1619-20, 1623 (2008) (opinion of Stevens, J.).
155. For indications that uncertainty maintenance is an accepted tactic in law enforcement, consider the confidential protocols for selecting subway stops for bag searches in New York City, See MacWade v. Kelly, 460 F.3d 260, 264 (2d Cir. 2006), and federal income tax returns for audit, See Internal Revenue Manual §§ 4.19.11.1.5.1.8-.10 (2007), available at http://www.irs.gov/irm/part4/irm_04-019-011.html.
156. Robert K. Merton, The Self-Fulfilling Prophecy, 8 Antioch Rev. 193, 193-95 (1948), at 204.
157. See, e.g., George A. Flanagan, Modern Institutional Advertising 63-69 (1967).
158. See, e.g., Cass R. Sunstein, Terrorism and Probability Neglect, 26 J. Risk & Uncertainty121, 121-22 (2003).
159. See, e.g., Paul Slovic et al., The Affect Heuristic, in Heuristics and Biases 397, 397, 420 (Thomas Gilovich et al. eds., 2002).
160. See, e.g., Mary Douglas & Aaron Wildavsky, Risk and Culture 72-73, 194-95 (1982).
161. Dan M. Kahan & Donald Braman, Cultural Cognition and Public Policy, 24 Yale L. & Pol'y Rev. 149, 149-50 (2006).
162. See, e.g., Cass R. Sunstein, Misfearing: A Reply, 119 Harv. L. Rev. 1110, 1111-12, 1118-19 (2006).
163. See, e.g., Cass R. Sunstein, Misfearing: A Reply, 119 Harv. L. Rev. 1110, 1111-12, 1118-19 (2006).
164. See, e.g., Cass R. Sunstein, Misfearing: A Reply, 119 Harv. L. Rev. 1110, 1111-12, 1118-19 (2006).
165. Jeffrey Goldberg, The Things He Carried, Atlantic Monthly, Nov. 2008, at 100, 100;
166. see also Thomas E. Baldwin et al., Understanding Public Confidence in Government to Prevent Terrorist Attacks, 5 J. Homeland Sec. & Emergency Mgmt., iss. 1, 2008, art. 4, at 16 (identifying response patterns among a small group of subjects who watched mock news broadcasts regarding terrorist attacks).
167. See Stephen Ansolabehere & Nathaniel Persily, Vote Fraud in the Eye of the Beholder: The Role of Public Opinion in the Challenge to Voter Identification Requirements, 121 Harv. L. Rev. 1737, 1750-60 (2008).
168. See Stephen Ansolabehere & Nathaniel Persily, Vote Fraud in the Eye of the Beholder: The Role of Public Opinion in the Challenge to Voter Identification Requirements, 121 Harv. L. Rev. 1737, 1750-60 (2008).
169. The Secret to Riches at 1:03, The Secret, http://thesecret.tv/secret-to-riches (last visited Mar. 25, 2012).
170. See Geraldine Downey et al., The Self-Fulfilling Prophecy in Close Relationships: Rejection Sensitivity and Rejection by Romantic Partners, 75 J. Personality & Soc. Psychol. 545, 545-53, 556-59 (1998).
171. See Geraldine Downey et al., The Self-Fulfilling Prophecy in Close Relationships: Rejection Sensitivity and Rejection by Romantic Partners, 75 J. Personality & Soc. Psychol. 545, 545-53, 556-59 (1998).
172. see also William E. Wilkins, The Concept of a Self-Fulfilling Prophecy, 49 Soc. Educ. 175, 179-80 (1976) (pointing out that self-fulfilling prophecies might be a function of misperceptions, ignorance, values, or the environment).
173. See Richard Scott Carnell et al., The Law of Banking and Financial Institutions2-32 (4th ed. 2009), at 24-25, 29-30.
174. See Richard Scott Carnell, A Partial Antidote to Perverse Incentives: The FDIC Improvement Act of 1991, 12 Ann. Rev. Banking L. 317, 322-24 (1993) (arguing that regulators of banks and thrifts had incentives to favor forbearance excessively).
175. Jonathan R. Macey, Commercial Banking and Democracy: The Illusive Quest for Deregulation, 23 Yale J. on Reg. 1, 15 (2006) (describing the moral hazard problem).
176. See, e.g., Richard Scott Carnell et al., The Law of Banking and Financial Institutions2-32 (4th ed. 2009), at 47, 309-10.
177. Douglas W. Diamond & Philip H. Dybvig, Bank Runs, Deposit Insurance, and Liquidity, 91 J. Pol. Econ. (1983), at 401.
178. Robert Rosenthal & Lenore Jacobson, Pygmalion in the Classroom 61-97 (1968).
179. Robert Rosenthal & Lenore Jacobson, Pygmalion in the Classroom 61-97 (1968).
180. Robert Rosenthal & Lenore Jacobson, Pygmalion in the Classroom 61-97 (1968).
181. Robert Rosenthal & Lenore Jacobson, Pygmalion in the Classroom 61-97 (1968).
182. Lee Jussim & Kent D. Harber, Teacher Expectations and Self-Fulfilling Prophecies: Knowns and Unknowns, Resolved and Unresolved Controversies, 9 Personality & Soc. Psychol. Rev. 131, 142 (2005) (surveying studies and finding coefficients for treatment to be around 0.1 or 0.2);
183. Lee Jussim & Kent D. Harber, Teacher Expectations and Self-Fulfilling Prophecies: Knowns and Unknowns, Resolved and Unresolved Controversies, 9 Personality & Soc. Psychol. Rev. 131, 142 (2005) (surveying studies and finding coefficients for treatment to be around 0.1 or 0.2);
184. Lee Jussim & Kent D. Harber, Teacher Expectations and Self-Fulfilling Prophecies: Knowns and Unknowns, Resolved and Unresolved Controversies, 9 Personality & Soc. Psychol. Rev. 131, 142 (2005) (surveying studies and finding coefficients for treatment to be around 0.1 or 0.2);
185. See, e.g., T. Alexander Aleinikoff & Rubén G. Rumbaut, Terms of Belonging: Are Models of Membership Self-Fulfilling Prophecies?, 13 Geo. Immigr. L.J. 1, 2 (1998) (examining selffulfilling prophecies in immigration decisions).
186. David A. Strauss, The Law and Economics of Racial Discrimination in Employment: The Case for Numerical Standards, 79 Geo. L.J. 1619, 1640 (1991) (discussing a vicious circle of statistical discrimination and employee decisions not to invest in human capital);
187. see also Mayer G. Freed & Daniel D. Polsby, Privacy, Efficiency, and the Equality of Men and Women: A Revisionist View of Sex Discrimination in Employment, 1981 Am. B. Found. Res. J. 583, 633-36 (similar);
188. cf. Stewart Schwab, Is Statistical Discrimination Efficient?, 76 Am. Econ. Rev. 228, 233 (1986) (noting the difficulty of identifying the effects of statistical discrimination).
189. See Jonathan R. Macey & Elizabeth H. Garrett, Market Discipline by Depositors: A Summary of the Theoretical and Empirical Arguments, 5 Yale J. on Reg. 215, 220 (1988). The FDIC now attempts to vary assessments according to each bank's risk. See generally Assessments, Large Bank Pricing, 76 Fed. Reg. 10672 (Feb. 25, 2011).
190. See John C. Coffee, Jr., What Caused Enron? A Capsule Social and Economic History of the 1990s, 89 Cornell L. Rev. 269, 278 (2004).
191. Asli Demirgüç-Kunt & Enrica Detragiache, Does Deposit Insurance Increase Banking System Stability? An Empirical Investigation, 49 J. Monetary Econ. 1373, 1402 (2002) (studying explicit, government-run deposit insurance programs between 1980 and 1997).
192. Also worth noting are near-substitutes for banks, such as deposit facilities that are subject to less regulation, which makes regulation more like an option that people select into. See Jonathan R. Macey & Geoffrey P. Miller, Nondeposit Deposits and the Future of Bank Regulation, 91 Mich. L. Rev. 237, 267-68, 271-73 (1992). There remains the issue of systemic risk from a shadow banking system. See generally Gary B. Gorton, Slapped by the Invisible Hand: The Panic of 2007 (2010).
193. See Neil K. Komesar, Imperfect Alternatives: Choosing Institutions inLaw, Economics, and Public Policy 5 (1994).
194. David L. Weimer, Institutional Design: Overview, in Institutional Design 1, 12 (David L. Weimer ed., 1995).
195. See Adam M. Samaha, Undue Process, 59 Stan. L. Rev. 601, 661 (2006).
196. See Adrian Vermeule, Judging Under Uncertainty 78-79 (2006) (suggesting testable hypotheses regarding cross-institutional interaction).
197. See, e.g., James M. Buchanan & Gordon Tullock, The Calculus of Consent5-7 (1962).
198. See, e.g., Adam M. Samaha, Undue Process, 59 Stan. L. Rev. (2006), at 143-44 (discussing possible objections to such practices);
199. see also McCreary Cnty. v. ACLU of Ky., 545 U.S. 844, 860 (2005).
200. See, e.g., Mayer G. Freed & Daniel D. Polsby, Privacy, Efficiency, and the Equality of Men and Women: A Revisionist View of Sex Discrimination in Employment, 1981 Am. B. Found. Res. J., at 633-36.
201. David A. Strauss, The Ubiquity of Prophylactic Rules, 55 U. Chi. L. Rev. 190, 200, 204-05 (1988), at 1626-27;
202. see also Miss. Univ. for Women v. Hogan, 458 U.S. 718, 730 (1982) ("[The university's] admissions policy... makes the assumption that nursing is a field for women a self-fulfilling prophecy. ").
203. See, e.g., Richard H. Pildes & Richard G. Niemi, Expressive Harms, "Bizarre Districts, " and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno, 92 Mich. L. Rev. 483, 506-16 (1993), at 506-16;
204. see also Shaw v. Reno, 509 U.S. 630, 647 (1993) ("[R]eapportionment is one area in which appearances do matter. ").
205. See, e.g., Peter W. Morgan & Glenn H. Reynolds, The Appearance of Impropriety2-5 (1997) (criticizing overused charges of apparently unethical behavior);
206. see also United States v. Nat'l Treasury Emps. Union, 513 U.S. 454, 473 (1995) ("Congress reasonably could assume that payments of honoraria to judges or high-ranking officials... might generate a similar appearance of improper influence. ").
207. See, e.g., Fredrick Schumann, "The Appearance of Justice": Public Justification in the Legal Relation, 66 U. Toronto Fac. L. Rev. 189, 196-97 (2008);
208. see also Republican Party of Minn. v. White, 536 U.S. 765, 817-18 (2002) (Ginsburg, J., dissenting) ("Because courts control neither the purse nor the sword, their authority ultimately rests on public faith in those who don the robe. ").
209. For expression of such worries by elected officials, see, for example, Kurt Hohenstein, Coining Corruption 225-26 (2007), which recounts Senator Howard Baker's concerns about public confidence during debates over post-Watergate campaign finance legislation, and JohnMcCain with Mark Salter, Worth the Fighting for 337 (2002), which declares that "[q]uestions of honor are raised as much by appearances as by reality in politics, and because they incite public distrust, they need to be addressed. "
210. 5 U.S.C. §§ 7321-7326 (2006).
211. See United Pub. Workers v. Mitchell, 330 U.S. 75, 91-92 & nn.23-24, 103-04 (1947).
212. See United Pub. Workers v. Mitchell, 330 U.S. 75, 91-92 & nn.23-24, 103-04 (1947).
213. 413 U.S. 548 (1973).
214. See United Pub. Workers v. Mitchell, 330 U.S. 75, 91-92 & nn.23-24, 103-04 (1947).
215. H.R. Haldeman and John D. Ehrlichman were purged after oral argument in Letter Carriers but before the decision issued.
216. See Laurence Stern & Haynes Johnson, 3 Top Nixon Aides, Kleindienst Out.
217. President Accepts Full Responsibility.
218. Richardson Will Conduct New Probe, Wash. Post, May 1, 1973, at A1.
219. Seymour Martin Lipset & William Schneider, The Confidence Gap 16 (1983).
220. Seymour Martin Lipset & William Schneider, The Confidence Gap 16 (1983).
221. see also Robert E. Mutch, Campaigns, Congress and Courts 42-43 (1988).
222. John R. Alford, We're All in This Together: The Decline of Trust in Government, 1958-1996, in What Is It About Government that Americans Dislike? 28, 29-31 (John R. Hibbing & Elizabeth Theiss-Morse eds., 2001) (noting that few people expressed full or no trust in "the government in Washington" and that the shift was mostly from trust "most of the time" to "some of the time").
223. Pub. L. No. 93-443, 88 Stat. 1263.
224. For helpful background, see Robert E. Mutch, Campaigns, Congress and Courts 42-43 (1988), at 1-82.
225. Richard L. Hasen, The Nine Lives of Buckley v. Valeo, in First Amendment Stories 345 (Richard W. Garnett & Andrew Koppelman eds., 2012).
226. Richard L. Hasen, The Nine Lives of Buckley v. Valeo, in First Amendment Stories 345 (Richard W. Garnett & Andrew Koppelman eds., 2012).
227. Richard L. Hasen, The Nine Lives of Buckley v. Valeo, in First Amendment Stories 345 (Richard W. Garnett & Andrew Koppelman eds., 2012).
228. Richard L. Hasen, The Nine Lives of Buckley v. Valeo, in First Amendment Stories 345 (Richard W. Garnett & Andrew Koppelman eds., 2012).
229. Richard L. Hasen, The Nine Lives of Buckley v. Valeo, in First Amendment Stories 345 (Richard W. Garnett & Andrew Koppelman eds., 2012).
230. Richard L. Hasen, The Nine Lives of Buckley v. Valeo, in First Amendment Stories 345 (Richard W. Garnett & Andrew Koppelman eds., 2012).
231. Richard L. Hasen, The Nine Lives of Buckley v. Valeo, in First Amendment Stories 345 (Richard W. Garnett & Andrew Koppelman eds., 2012).
232. Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, 390 (2000) (emphasis added).
233. See Brief for the Attorney General & the FEC at 22, Buckley, 424 U.S. 1 (Nos. 75-436, 75-437) (indicating that "legislating to restore public confidence in elected government" is important "in times of deep public suspicion and apathy"). Popular demand might be an additional reason for regulation, but these public-pacification arguments still fall under the bridge model.
234. The mountain of legal scholarship on campaign finance regulation touches on appearance arguments, but sustained treatment is rare. See, e.g., Peter W. Morgan & Glenn H. Reynolds, The Appearance of Impropriety2-5 (1997), at 2, 5 (asserting that focus on appearance of ethical behavior has been counterproductive).
235. D. Bruce La Pierre, Campaign Contribution Limits: Pandering to Public Fears About "Big Money" and Protecting Incumbents, 52 Admin. L. Rev. 687, 713-14 (2000) (presenting a practitioner's argument for stronger evidence of efficacy).
236. Zephyr Teachout, The Anti-Corruption Principle, 94 Cornell L. Rev. 341, 394-95, 397 (2009) (arguing for a broadly defined anticorruption norm and downplaying the significance of appearance).
237. See generally Andrew N. DeLaney, Note, Appearance Matters: Why the State Has an Interest in Preventing the Appearance of Voting Fraud, 83 N.Y.U. L. Rev. 847 (2008) (analogizing from campaign finance to voter identification). Perhaps the most important law journal article on the subject is empirical.
238. See Nathaniel Persily & Kelli Lammie, Perceptions of Corruption and Campaign Finance: When Public Opinion Determines Constitutional Law, 153 U. Pa. L. Rev. 119 (2004).
239. See Nathaniel Persily & Kelli Lammie, Perceptions of Corruption and Campaign Finance: When Public Opinion Determines Constitutional Law, 153 U. Pa. L. Rev. 119 (2004).
240. See Nathaniel Persily & Kelli Lammie, Perceptions of Corruption and Campaign Finance: When Public Opinion Determines Constitutional Law, 153 U. Pa. L. Rev. 119 (2004).
241. See Nathaniel Persily & Kelli Lammie, Perceptions of Corruption and Campaign Finance: When Public Opinion Determines Constitutional Law, 153 U. Pa. L. Rev. 119 (2004).
242. Perhaps the most important doctrinal turn of events was a narrowing of the regulatory interest in preventing "corruption" to quid pro quo deals along with the dismissive treatment of "undue influence, " see Citizens United v. FEC, 130 S. Ct. 876, 909-10 (2010) (Kennedy, J.) and accompanying text, a concept that, as Professor Heather Gerken has suggested to me, is more clearly related to political equality commitments. My criticism of the Court's approach to appearance arguments, I should stress, does not depend on a broader understanding of "corruption. " I am unsatisfied either way.
243. 528 U.S. 377 (2000).
244. (Pointing to mass media accounts of shady political dealings, public support for contribution limits, and divided scholarship investigating the relationship between contributions and voting behavior).
245. (Pointing to mass media accounts of shady political dealings, public support for contribution limits, and divided scholarship investigating the relationship between contributions and voting behavior).
246. see also McConnell v. FEC, 540 U.S. 93, 144 (2003) (repeating Justice Souter's admonition).
247. see also McConnell v. FEC, 540 U.S. 93, 144 (2003) (repeating Justice Souter's admonition).
248. see also McConnell v. FEC, 540 U.S. 93, 144 (2003) (repeating Justice Souter's admonition).
249. Cf. Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252, 2266-67 (2009) (relying partly on public-confidence problems in requiring recusal of a state judge based on large independent expenditures in a judicial election).
250. United States v. Ballard, 322 U.S. 78, 94 (1944) (Jackson, J., dissenting).
251. See, e.g., McConnell, 540 U.S. at 248-49 (Scalia, J., concurring in part and dissenting in part).
252. See, e.g., McConnell, 540 U.S. at 248-49 (Scalia, J., concurring in part and dissenting in part).
253. Nixon, 528 U.S. at 411-30 (Thomas, J., dissenting).
254. For example, see Supplemental Brief for the Appellee at 8, Citizens United v. FEC, 130 S. Ct. 876 (2010) (No. 08-205), 2009 WL 2219300, at *8, among other arguments, of course.
255. See 2 U.S.C. § 441a(a)(1), (c) (2006).
256. Fed. Election Comm'n, Contribution Limits for 2011-2012 (2011) (showing inflation-adjusted limits for 2011-2012, including a $2500 cap on individual contributions to federal candidates per election, and a $30,800 cap on individual contributions to national party committees per year). These limits do not account for bundling.
257. See Appellee at 8, Citizens United v. FEC, 130 S. Ct. 876 (2010) (No. 08-205), 2009 WL 2219300, pp. 1589-90 (addressing uncertainty).
258. See generally Eric A. Posner, Law and Social Norms 18-27 (2000).
259. Recorded votes on campaign finance legislation might provide useful signals, but officials do not seem to support, say, biennial reauthorization of these laws.
260. If there is a signaling justification for statutory contribution limits, it must be institutionwide. Congress, for instance, might be competing with other government institutions and the private sector for the confidence of people concerned with social problems. But that story is more complicated-in part, evaluators would need to know the extent to which the competitor institutions impose campaign finance-like restrictions on behavior-and it would not recover the value of lost information about individual candidates, anyway.
261. See David M. Primo & Jeffrey Milyo, Campaign Finance Laws and Political Efficacy: Evidence from the States, 5 Election L.J. 23, 23 (2006) ("[N]o study has directly examined the connection between existing campaign finance laws and how citizens view their government. ").
262. See Nathaniel Persily & Kelli Lammie, Perceptions of Corruption and Campaign Finance: When Public Opinion Determines Constitutional Law, 153 U. Pa. L. Rev. 119 (2004), at 119.
263. See Nathaniel Persily & Kelli Lammie, Perceptions of Corruption and Campaign Finance: When Public Opinion Determines Constitutional Law, 153 U. Pa. L. Rev. 119 (2004), at 119.
264. Pub. L. No. 107-115, 116 Stat. 81 (codified primarily in scattered sections of 2 and 47 U.S.C.);
265. see also Nathaniel Persily & Kelli Lammie, Perceptions of Corruption and Campaign Finance: When Public Opinion Determines Constitutional Law, 153 U. Pa. L. Rev. 119 (2004), at 147-49 & fig.1.
266. See Nathaniel Persily & Kelli Lammie, Perceptions of Corruption and Campaign Finance: When Public Opinion Determines Constitutional Law, 153 U. Pa. L. Rev. 119 (2004), at 150, 156-57, 160, 167 n.119, 168.
267. See Nathaniel Persily & Kelli Lammie, Perceptions of Corruption and Campaign Finance: When Public Opinion Determines Constitutional Law, 153 U. Pa. L. Rev. 119 (2004), at 150, 156-57, 160, 167 n.119, 168.
268. See James E. Alt & David Dreyer Lassen, The Political Economy of Institutions and Corruption in American States, 15 J. Theoretical Pol. 341, 350 (2003). Another proxy is corruption prosecutions or convictions, See, e.g., Rajeev K. Goel & Michael A. Nelson, Corruption and Government Size: A Disaggregated Analysis, 97 Pub. Choice 107, 114 (1998), which is partly a function of law enforcement priorities. In a hideously dysfunctional regime, however, there would not be a positive correlation between corruption prosecutions and high corruption levels. A third proxy involves surveys of people's experiences with corruption. See section IV.A.3, pp. 1609-18.
269. See James E. Alt & David Dreyer Lassen, The Political Economy of Institutions and Corruption in American States, 15 J. Theoretical Pol. 341, 350 (2003), at 352-53 & tbl.1.
270. See James E. Alt & David Dreyer Lassen, The Political Economy of Institutions and Corruption in American States, 15 J. Theoretical Pol. 341, 350 (2003), at 352-53 & tbl.1.
271. See James E. Alt & David Dreyer Lassen, The Political Economy of Institutions and Corruption in American States, 15 J. Theoretical Pol. 341, 350 (2003), at 352-53 & tbl.1.
272. See James E. Alt & David Dreyer Lassen, The Political Economy of Institutions and Corruption in American States, 15 J. Theoretical Pol. 341, 350 (2003), at 352-53 & tbl.1.
273. See James E. Alt & David Dreyer Lassen, The Political Economy of Institutions and Corruption in American States, 15 J. Theoretical Pol. 341, 350 (2003), at 352-53 & tbl.1.
274. Limits on the total amount spent by candidates would presumably be held unconstitutional, except as a condition on receiving public financing. See Buckley v. Valeo, 424 U.S. 1, 52-54 (1976) (per curiam). Correspondence with the authors indicates that they used 1996 data from the Book of the States on whether states imposed restrictions on candidate expenditures or expenditures on behalf of a candidate. The latter might be a form of contribution under First Amendment doctrine.
275. Limits on the total amount spent by candidates would presumably be held unconstitutional, except as a condition on receiving public financing. See Buckley v. Valeo, 424 U.S. 1, 52-54 (1976) (per curiam). Correspondence with the authors indicates that they used 1996 data from the Book of the States on whether states imposed restrictions on candidate expenditures or expenditures on behalf of a candidate. The latter might be a form of contribution under First Amendment doctrine.
276. David M. Primo & Jeffrey Milyo, Campaign Finance Laws and Political Efficacy: Evidence from the States, 5 Election L.J. 23, 23 (2006), at 31.
277. David M. Primo & Jeffrey Milyo, Campaign Finance Laws and Political Efficacy: Evidence from the States, 5 Election L.J. 23, 23 (2006), at 31.
278. David M. Primo & Jeffrey Milyo, Campaign Finance Laws and Political Efficacy: Evidence from the States, 5 Election L.J. 23, 23 (2006), at 31.
279. David M. Primo & Jeffrey Milyo, Campaign Finance Laws and Political Efficacy: Evidence from the States, 5 Election L.J. 23, 23 (2006), at 31.
280. David M. Primo & Jeffrey Milyo, Campaign Finance Laws and Political Efficacy: Evidence from the States, 5 Election L.J. 23, 23 (2006), at 31.
281. David M. Primo & Jeffrey Milyo, Campaign Finance Laws and Political Efficacy: Evidence from the States, 5 Election L.J. 23, 23 (2006), at 31.
282. David M. Primo & Jeffrey Milyo, Campaign Finance Laws and Political Efficacy: Evidence from the States, 5 Election L.J. 23, 23 (2006), at 31.
283. David M. Primo & Jeffrey Milyo, Campaign Finance Laws and Political Efficacy: Evidence from the States, 5 Election L.J. 23, 23 (2006), at 31.
284. See Beth Ann Rosenson, The Effect of Political Reform Measures on Perceptions of Corruption, 8 Election L.J. 31, 34, 40 (2009).
285. See Beth Ann Rosenson, The Effect of Political Reform Measures on Perceptions of Corruption, 8 Election L.J. 31, 34, 40 (2009).
286. See Beth Ann Rosenson, The Effect of Political Reform Measures on Perceptions of Corruption, 8 Election L.J. 31, 34, 40 (2009).
287. See Beth Ann Rosenson, The Effect of Political Reform Measures on Perceptions of Corruption, 8 Election L.J. 31, 34, 40 (2009).
288. See sources cited Beth Ann Rosenson, The Effect of Political Reform Measures on Perceptions of Corruption, 8 Election L.J. 31, 34, 40 (2009).
289. There are other forms of corruption and other objectives for campaign finance regulation. I choose the two in the text because they are prevalent in contemporary legal debates.
290. See David M. Primo & Jeffrey Milyo, The Effects of Campaign Finance Laws on Turnout, 1950-2000, at 2 (Feb. 2006) (unpublished manuscript) (on file with the Harvard Law School Library) (finding no positive impact on turnout from state campaign finance laws post-Buckley, and finding a negative effect from public financing post-Buckley, but finding a positive effect from contribution limits on organizational donors pre-Buckley).
291. See Citizens United v. FEC, 130 S. Ct. 876, 909-10 (2010) (Kennedy, J.) (claiming that the regulatory interest vindicated in Buckley "was limited to quid pro quo corruption, " Id. at 909);
292. accord McConnell v. FEC, 540 U.S. 93, 298 (2003) (Kennedy, J., concurring in part and dissenting in part).
293. See, e.g., Richard H. McAdams, The Origin, Development, and Regulation of Norms, 96 Mich. L. Rev. 338, 380-81 (1997) (discussing shame, esteem, internalization, and guilt). You might think of the Minnesota tax compliance experiment at this point, although the results are not as strong as some suggest. Compare Stephen Coleman, Minn. Dep't of Revenue, TheMinnesota Income Tax Compliance Experiment: State Tax Results 5-6, 17-19 & tbl.2, 25 (1996) (finding increased income reported and taxes paid by randomly selected taxpayers who were told that tax compliance is actually the norm, at least at the p =.10 confidence level).
294. Marsha Blumenthal et al., Do Normative Appeals Affect Tax Compliance? Evidence from a Controlled Experiment in Minnesota, 54 Nat'l Tax J. 125, 130-35 (2001) (assessing the same experiment but reporting no statistically significant effect for included tax filers as a whole, with some subgroups reacting positively and others negatively).
295. But cf. Bo Rothstein, The Quality of Government 15, 100-01 (2011) (offering evidence that people in highly "corrupt" settings tend not to internalize the norm as good behavior).
296. Susan Rose-Ackerman, Truth, Honesty and Corruption: Reflection on the State-Building Process 16 (Yale Law Sch. John M. Olin Ctr. for Studies in Law, Econ., & Pub. Policy, Working Paper No. 255, 2001);
297. see also Emmanuelle Lavallée et al., Corruption and Trust in Political Institutions in Sub-Saharan Africa 3 (Afrobarometer, Working Paper No. 102, 2008) ("As informal institutions replace formal rules, citizens realize that respecting the formal rules is inefficient. ").
298. Pranab Bardhan, Corruption and Development: A Review of Issues, 35 J. Econ. Literature1320, 1331 (1997) (discussing a frequency-dependent-equilibria account of corruption).
299. Pranab Bardhan, Corruption and Development: A Review of Issues, 35 J. Econ. Literature1320, 1331 (1997) (discussing a frequency-dependent-equilibria account of corruption).
300. This difficulty helps account for contribution limits as institution-wide signals. See Pranab Bardhan, Corruption and Development: A Review of Issues, 35 J. Econ. Literature1320, 1331 (1997) pp. 1605-06.
301. I am assuming that ethical people have a realistic alternative to government service, while corruption-oriented people are at least equally drawn to government service. Cf. Francesco Caselli & Massimo Morelli, Bad Politicians, 88 J. Pub. Econ. 759, 760-62 (2004) (showing multiple equilibria concerning the fraction of capable politicians based on selection effects, even if voters have perfect information about candidate types, where less-capable people are at a disadvantage in the private sector).
302. I am assuming that ethical people have a realistic alternative to government service, while corruption-oriented people are at least equally drawn to government service. Cf. Francesco Caselli & Massimo Morelli, Bad Politicians, 88 J. Pub. Econ. 759, 760-62 (2004) (showing multiple equilibria concerning the fraction of capable politicians based on selection effects, even if voters have perfect information about candidate types, where less-capable people are at a disadvantage in the private sector).
303. See Inna Čábelková & Jan Hanousek, The Power of Negative Thinking: Corruption, Perception and Willingness to Bribe in Ukraine, 36 Applied Econ. 383, 383 (2004) (indicating that reformist reactions are highly contingent).
304. Because of the trend toward increasing anticorruption regulation in the United States, aside from repeal by judicial review, the effect of deregulation on perceptions is more difficult to study. It is nonetheless possible that regulatory efforts to create formal incentives will suggest to observers that many people share a need for such incentives.
305. I thank Dan Kahan for helping me develop these thoughts.
306. World Bank, World Development Report: The State in a ChangingWorld 102 (1997);
307. accord Bo Rothstein, The Quality of Government 15, (2011), at 100, 146 (asserting that corrupt systems are sticky);
308. Inna Čábelková & Jan Hanousek, The Power of Negative Thinking: Corruption, Perception and Willingness to Bribe in Ukraine, 36 Applied Econ. (2004), at 383.
309. A related question is whose perceptions are likely to be influenced, not just how many people's.
310. For the possibility that corrupt bargains can rightly circumvent misguided government policy, see Nathaniel H. Leff, Economic Development Through Bureaucratic Corruption, Am. Behav. Scientist, Nov. 1964, at 8, 11-12.
311. Which observes that a corrupt and ineffective bureaucracy undermined Brazil's attempt to implement food price controls, and Daniel Levy, Price Adjustment Under the Table: Evidence on Efficiency-Enhancing Corruption, 23 Eur. J. Pol. Econ. 423, 439-40 (2007), which examines the potential efficiencies of corruption in the Republic of Georgia's black markets.
312. And here I leave aside the question of what should count as "corruption. " See, e.g., Lawrence Lessig, Republic, Lost 230-31 (2011) (using systematic influences that change the intended influences on an institution).
313. Andrei Shleifer & Robert W. Vishny, TheGrabbing Hand 91 (1998) (using a loose version of "sale by government officials of government property for personal gain").
314. Nathaniel H. Leff, Economic Development Through Bureaucratic Corruption, Am. Behav. Scientist, Nov. 1964, at 8 (using extralegal influence on policymaking or implementation).
315. Daniel Treisman, The Causes of Corruption: A Cross-National Study, 76 J. Pub. Econ. 399, 399 (2000) (using misuse of public office for private gain). Like recent Supreme Court majorities, I concentrate on quid pro quo trades of (campaign) cash in exchange for an official decision.
316. See Daniel Treisman, The Causes of Corruption: A Cross-National Study, 76 J. Pub. Econ. 399, 399 (2000).
317. See James E. Alt & David Dreyer Lassen, The Political Economy of Institutions and Corruption in American States, 15 J. Theoretical Pol. 341, 350 (2003), at 342-44.
318. Natalia Melgar et al., The Perception of Corruption, 22 Int'l J. Pub. Opinion Res. 120, 121-22 (2010) (investigating a variety of factors that might influence corruption perceptions around the world, such as income inequality and education, but not law or law enforcement efforts).
319. Daniel Treisman, The Causes of Corruption: A Cross-National Study, 76 J. Pub. Econ. (2000), at 399.
320. The direction of influence, if any, from some of these variables is theoretically ambiguous.
321. For instance, civil service protection might professionalize a bureaucracy such that its employees refuse bribes, or it might increase corrupt bargains by providing those employees with an unwarranted sense of security.
322. See Daniel Kaufmann & Shang-Jin Wei, Does "Grease Money" Speed Up the Wheels of Commerce? 16 (Int'l Monetary Fund, IMF Working Paper No. WP/00/64, 2000).
323. See William Spain, A Compendium of Corrupt Illinois Governors, Wall St. J., Dec. 10, 2008, http://online.wsj.com/article/SB122885197858492201.html.
324. As Professor Clay Gillette has suggested to me, public tolerance for corruption in New Orleans might have diminished after Hurricane Katrina. See Mike Tolson, Katrina's Mark on New Orleans Remains 5 Years After Storm, Hous. Chron., Aug. 29, 2010, http://www.chron.com/news/nation-world/article/Katrina-s-mark-on-New-Orelans-remains-5-years-1587771.php. Shifts in public expectations regarding corruption might come from exogenous shocks, including exposure to other systems via the post-Katrina diaspora.
325. See Dexter Filkins, Afghan Corruption: Everything for Sale, N.Y. Times, Jan. 2, 2009, http://www.nytimes.com/2009/01/02/world/asia/02iht-corrupt.1.19050534.html;
326. Corruption Perceptions Index, Transparency Int'l, http://www.transparency.org/policy_research/surveys_indices/cpi (last updated Dec. 1, 2011) (reporting aggregations of surveys on corruption perceptions and showing Afghanistan's falling from 117th out of 159 ranked countries in 2005 (scoring 2.5/10.0) to 179th out of 180 in 2009 (scoring 1.3/10.0).
327. For a partial success story about Indonesia's Anti-Corruption Commission and Anti-Corruption Court, see Simon Butt, "Unlawfulness" and Corruption Under Indonesian Law, 45 Bull. Indonesian Econ. Stud. 179, 179-82 (2009), which points out the advantages of a new, specialized, and noncorrupt enforcement regime, along with the potential for overdeterrence from vague and overbroad anticorruption norms.
328. The theoretical and empirical literature on corruption is growing with the recognition that corrupt political regimes pose hurdles to economic development. See, e.g., Toke S. Aidt, Corruption, Institutions, and Economic Development, 25 Oxford Rev. Econ. Pol'y 271, 271-72 (2009) (finding that corruption experiences among business managers and general corruption perceptions are negatively correlated with per capita wealth, while only the corruption-perception measure correlated with per capita GDP changes). Additional case studies from abroad can be found in Robert Klitgaard, Controlling Corruption (1988).
329. See also Federico Varese, The Transition to the Market and Corruption in Post-Socialist Russia, 45 Pol. Stud. 579, 580 (1997). A leading account of corruption from economic, political, and cultural perspectives is Susan Rose-Ackerman, Corruption and Government (1999).
330. See also Andrei Shleifer & Robert W. Vishny, TheGrabbing Hand 91 (1998), at 11-12, 91-108.
331. See Inna Čábelková & Jan Hanousek, The Power of Negative Thinking: Corruption, Perception and Willingness to Bribe in Ukraine, 36 Applied Econ. (2004), at 383.
332. Susan Rose-Ackerman, Trust and Honesty in Post-Socialist Societies, 54 Kyklos 415, 423-25 (2001) (reviewing perception studies and noting a result in which respondents' predicted happiness at achieving success through bribery depended on the perception that others were engaged in similar transactions).
333. See Inna Čábelková & Jan Hanousek, The Power of Negative Thinking: Corruption, Perception and Willingness to Bribe in Ukraine, 36 Applied Econ. (2004), at 390, 396.
334. See Inna Čábelková & Jan Hanousek, The Power of Negative Thinking: Corruption, Perception and Willingness to Bribe in Ukraine, 36 Applied Econ. (2004), at 390, 396.
335. See Inna Čábelková & Jan Hanousek, The Power of Negative Thinking: Corruption, Perception and Willingness to Bribe in Ukraine, 36 Applied Econ. (2004), at 390, 396.
336. See Bianca Clausen et al., Corruption and Confidence in Public Institutions: Evidence from a Global Survey 2 (World Bank Dev. Research Grp., Working Paper No. 5157, 2009).
337. See Bianca Clausen et al., Corruption and Confidence in Public Institutions: Evidence from a Global Survey 2 (World Bank Dev. Research Grp., Working Paper No. 5157, 2009).
338. A respondent's reported corruption perceptions might be a function of that person's disapproval of incumbent policies. There is somewhat less reason to think that a respondent is more likely to report actual corruption experiences based on other such variables, although it is possible, especially in ambiguous situations.
339. See Alvaro González et al., The Incidence of Graft on Developing-Country Firms pt. 5 (World Bank, Policy Research Working Paper No. 4394, 2007) (concluding that firms' corruption perceptions adjust slowly to experiences).
340. Emmanuelle Lavallée et al., Corruption and Trust in Political Institutions in Sub-Saharan Africa 3 (Afrobarometer, Working Paper No. 102, 2008), at 16 (finding that corruption perceptions and experiences are associated with lower trust in political institutions in the African countries studied, although the negative effect of perceptions weakens as access to services degrades while the negative effect of experiences rises).
341. Wonbin Cho & Matthew F. Kirwin, A Vicious Circle of Corruption and Mistrust in Institutions in Sub-Saharan Africa: A Micro-Level Analysis 1 (Afrobarometer, Working Paper No. 71, 2007).
342. Wonbin Cho & Matthew F. Kirwin, A Vicious Circle of Corruption and Mistrust in Institutions in Sub-Saharan Africa: A Micro-Level Analysis 1 (Afrobarometer, Working Paper No. 71, 2007).
343. Wonbin Cho & Matthew F. Kirwin, A Vicious Circle of Corruption and Mistrust in Institutions in Sub-Saharan Africa: A Micro-Level Analysis 1 (Afrobarometer, Working Paper No. 71, 2007).
344. See Bianca Clausen et al., Corruption and Confidence in Public Institutions: Evidence from a Global Survey 2 (World Bank Dev. Research Grp., Working Paper No. 5157, 2009), at 30 fig.1.
345. See section III. C (discussing expertise/bias trade-offs);
346. Section IV. C (comparing judicial treatment of campaign finance challenges with policy debates over broken windows policing).
347. See Bernard E. Harcourt & Jens Ludwig, Broken Windows: New Evidence from New York City and a Five-City Social Experiment, 73 U. Chi. L. Rev. 271, 278-87 (2006).
348. See George L. Kelling & Catherine M. Coles, Fixing Broken Windows 16, 19-20 (1996).
349. James Q. Wilson & George L. Kelling, Broken Windows: The Police and Neighborhood Safety, Atlantic Monthly, Mar. 1982, at 29, 31 (emphasis removed).
350. Wesley G. Skogan, Disorder and Decline 2 (1990).
351. See James Q. Wilson & George L. Kelling, Broken Windows: The Police and Neighborhood Safety, Atlantic Monthly, Mar. 1982, at 29-32 (explaining the idea based on observations, logic, and a few analogous studies).
352. See, e.g., Bernard E. Harcourt, Illusion of Order 76-78 (2001) (reporting on robbery, rape, burglary, assault, and also purse snatching).
353. Wesley G. Skogan, Disorder and Decline 2 (1990), at 73-75 (reporting on robbery).
354. Robert J. Sampson & Stephen W. Raudenbush, Systematic Social Observation of Public Spaces: A New Look at Disorder in Urban Neighborhoods, 105 Am. J. Soc. 603, 608, 628-30, 637-38 (1999) (reporting on homicide, burglary, and robbery).
355. See, e.g., George L. Kelling & Catherine M. Coles, Fixing Broken Windows 16, (1996), at 19-20 (focusing on signals, albeit not in the technical economic sense that involves credible communication of one's private information).
356. Bernard E. Harcourt & Jens Ludwig, Broken Windows: New Evidence from New York City and a Five-City Social Experiment, 73 U. Chi. L. Rev. (2006), at 281-82 & n.37 (noting the possibility of herding and information cascades).
357. Dan M. Kahan, Social Influence, Social Meaning, and Deterrence, 83 Va. L. Rev. (1997), at 370-71 (concentrating on social meaning).
358. See Bernard E. Harcourt & Jens Ludwig, Broken Windows: New Evidence from New York City and a Five-City Social Experiment, 73 U. Chi. L. Rev. (2006), n.37, at 1, 46-51 (describing the so-called "quality-of-life initiative").
359. George L. Kelling & William H. Sousa, Jr., Do Police Matter?: An Analysis of the Impact of New York City's Police Reforms 2 (2001), available at http://www.manhattan-institute.org/pdf/cr_22.pdf (same).
360. See William Bratton with Peter Knobler, Turnaround 154-56 (1998) (describing the strategy).
361. George L. Kelling & Catherine M. Coles, Fixing Broken Windows 16, 19-20 (1996).
362. James Q. Wilson & George L. Kelling, Broken Windows: The Police and Neighborhood Safety, Atlantic Monthly, Mar. 1982, at 131-32, 133 figs.4.1 & 4.2 (showing numbers).
363. See N.Y.C. Police Dep't, Police Strategy No. 5: Reclaiming the PublicSpaces of New York 29-32 (1994) [hereinafter Police Strategy No. 5].
364. See N.Y.C. Police Dep't, Police Strategy No. 5: Reclaiming the PublicSpaces of New York 29-32 (1994) [hereinafter Police Strategy No. 5].
365. See Bernard E. Harcourt, Illusion of Order 76-78 (2001), at 2 (noting that reported stop-and-frisk activity increased even more).
366. See Andrew Karmen, New York Murder Mystery 25 tbl.1.2 (2000).
367. See, e.g., George L. Kelling & William H. Sousa, Jr., Do Police Matter?: An Analysis of the Impact of New York City's Police Reforms 2 (2001), available at http://www.manhattan-institute.org/pdf/cr_22.pdf, at 5, 11-12 (stating that police initiatives other than broken windows policing are difficult to track with measurable proxies and noting the development of Compstat procedures).
368. David Weisburd et al., Reforming to Preserve: Compstat and Strategic Problem Solving in American Policing, 2 Criminology & Pub. Pol'y 421, 424-33 (2003) (studying Compstat-like programs and their diffusion).
369. See, e.g., George L. Kelling & William H. Sousa, Jr., Do Police Matter?: An Analysis of the Impact of New York City's Police Reforms 2 (2001), available at http://www.manhattan-institute.org/pdf/cr_22.pdf, at 2-3 (contrasting root-cause theories and police-impact theories).
370. Magdalena Cerdá et al., Misdemeanor Policing, Physical Disorder, and Gun-Related Homicide: A Spatial Analytic Test of "Broken-Windows" Theory, 20 Epidemiology533, 533 (2009) (collecting alternative theories).
371. See, e.g., Magdalena Cerdá et al., Misdemeanor Policing, Physical Disorder, and Gun-Related Homicide: A Spatial Analytic Test of "Broken-Windows" Theory, 20 Epidemiology533, 533 (2009), at 533.
372. See Wesley G. Skogan, Disorder and Decline 2 (1990), at 73-74, 193 tbl. A-4-1.
373. See Wesley G. Skogan, Disorder and Decline 2 (1990), at 73-74, 193 tbl. A-4-1.
374. See Wesley G. Skogan, Disorder and Decline 2 (1990), at 73-74, 193 tbl. A-4-1.
375. See Bernard E. Harcourt, Illusion of Order 76-78 (2001), at 60-61.
376. See Bernard E. Harcourt, Illusion of Order 76-78 (2001), at 60-61.
377. Cf. Robert J. Sampson & Stephen W. Raudenbush, Seeing Disorder: Neighborhood Stigma and the Social Construction of "Broken Windows, " 67 Soc. Psychol. Q. 319, 336-37 (2004) (finding that racial and economic variables influence whether individuals perceive disorder).
378. See Robert J. Sampson & Stephen W. Raudenbush, Systematic Social Observation of Public Spaces: A New Look at Disorder in Urban Neighborhoods, 105 Am. J. Soc. (1999), at 603, 608, 628-30, 637-38 (finding that coded levels of disorder in Chicago neighborhoods generally do not mediate the effect of other neighborhood characteristics on homicide, burglary, and robbery, and emphasizing the importance of collective efficacy alone).
379. But cf. Pamela Wilcox et al., Busy Places and Broken Windows? Toward Defining the Role of Physical Structure and Process in Community Crime Models, 45 Soc. Q. 185, 199-200 (2004) (reporting results from a cross-sectional study that physical disorder does mediate the effect on violence and burglary from business-oriented public spaces, but not from schools or playgrounds).
380. See George L. Kelling & William H. Sousa, Jr., Do Police Matter?: An Analysis of the Impact of New York City's Police Reforms 2 (2001), available at http://www.manhattan-institute.org/pdf/cr_22.pdf, at i-ii.
381. See George L. Kelling & William H. Sousa, Jr., Do Police Matter?: An Analysis of the Impact of New York City's Police Reforms 2 (2001), available at http://www.manhattan-institute.org/pdf/cr_22.pdf, at i-ii.
382. See George L. Kelling & William H. Sousa, Jr., Do Police Matter?: An Analysis of the Impact of New York City's Police Reforms 2 (2001), available at http://www.manhattan-institute.org/pdf/cr_22.pdf, at i-ii.
383. See George L. Kelling & William H. Sousa, Jr., Do Police Matter?: An Analysis of the Impact of New York City's Police Reforms 2 (2001), available at http://www.manhattan-institute.org/pdf/cr_22.pdf, at i-ii.
384. See George L. Kelling & William H. Sousa, Jr., Do Police Matter?: An Analysis of the Impact of New York City's Police Reforms 2 (2001), available at http://www.manhattan-institute.org/pdf/cr_22.pdf, at i-ii.
385. See George L. Kelling & William H. Sousa, Jr., Do Police Matter?: An Analysis of the Impact of New York City's Police Reforms 2 (2001), available at http://www.manhattan-institute.org/pdf/cr_22.pdf, at i-ii.
386. see also Hope Corman & Naci Mocan, Carrots, Sticks and Broken Windows, 48 J.L. & Econ. 235 (2005) (studying citywide data on monthly misdemeanor arrests and finding an association with declines in car theft and robbery but not other crimes).
387. See Bernard E. Harcourt & Jens Ludwig, Broken Windows: New Evidence from New York City and a Five-City Social Experiment, 73 U. Chi. L. Rev. 271, 278-87 (2006).
388. See Bernard E. Harcourt & Jens Ludwig, Broken Windows: New Evidence from New York City and a Five-City Social Experiment, 73 U. Chi. L. Rev. 271, 278-87 (2006).
389. See Bernard E. Harcourt & Jens Ludwig, Broken Windows: New Evidence from New York City and a Five-City Social Experiment, 73 U. Chi. L. Rev. 271, 278-87 (2006).
390. See Bernard E. Harcourt & Jens Ludwig, Broken Windows: New Evidence from New York City and a Five-City Social Experiment, 73 U. Chi. L. Rev. 271, 278-87 (2006).
391. See Bernard E. Harcourt & Jens Ludwig, Broken Windows: New Evidence from New York City and a Five-City Social Experiment, 73 U. Chi. L. Rev. 271, 278-87 (2006).
392. See Bernard E. Harcourt & Jens Ludwig, Broken Windows: New Evidence from New York City and a Five-City Social Experiment, 73 U. Chi. L. Rev. 271, 278-87 (2006).
393. See Bernard E. Harcourt & Jens Ludwig, Broken Windows: New Evidence from New York City and a Five-City Social Experiment, 73 U. Chi. L. Rev. 271, 278-87 (2006).
394. See Bernard E. Harcourt & Jens Ludwig, Broken Windows: New Evidence from New York City and a Five-City Social Experiment, 73 U. Chi. L. Rev. 271, 278-87 (2006).
395. Bernard E. Harcourt & Jens Ludwig, Broken Windows: New Evidence from New York City and a Five-City Social Experiment, 73 U. Chi. L. Rev. 271, 278-87 (2006), at 276.
396. Bernard E. Harcourt & Jens Ludwig, Broken Windows: New Evidence from New York City and a Five-City Social Experiment, 73 U. Chi. L. Rev. 271, 278-87 (2006), at 276.
397. Bernard E. Harcourt & Jens Ludwig, Broken Windows: New Evidence from New York City and a Five-City Social Experiment, 73 U. Chi. L. Rev. 271, 278-87 (2006), at 276.
398. Bernard E. Harcourt & Jens Ludwig, Broken Windows: New Evidence from New York City and a Five-City Social Experiment, 73 U. Chi. L. Rev. 271, 278-87 (2006), at 276.
399. Bernard E. Harcourt & Jens Ludwig, Broken Windows: New Evidence from New York City and a Five-City Social Experiment, 73 U. Chi. L. Rev. 271, 278-87 (2006), at 276.
400. See Magdalena Cerdá et al., Misdemeanor Policing, Physical Disorder, and Gun-Related Homicide: A Spatial Analytic Test of "Broken-Windows" Theory, 20 Epidemiology533, 533 (2009), at 539 (characterizing the effect of misdemeanor arrests on gun-related homicides between 1990 and 1999 as "small").
401. Steven F. Messner et al., Policing, Drugs, and the Homicide Decline in New York City in the 1990s, 45 Criminology 385, 401, 405 (2007) (controlling for mean reversion and finding a statistically significant but modest effect of misdemeanor arrests on gun-related homicides and robberies between 1990 and 1999, and also finding a relationship between a proxy for cocaine use (cocaine-related accidental deaths in hospital records) and lower homicide rates).
402. Richard Rosenfeld et al., The Impact of Order-Maintenance Policing on New York City Homicide and Robbery Rates: 1988-2001, 45 Criminology 355, 377 (2007) (similar for robberies and homicides);
403. see also Steven D. Levitt, Understanding Why Crime Fell in the 1990s: Four Factors that Explain the Decline and Six that Do Not, 18 J. Econ. Persp. 163, 176-83 (2004) (crediting increased imprisonment, increased numbers of police officers, deflated crack markets, and legalized abortion for widespread crime-rate declines during the 1990s).
404. See Richard Rosenfeld et al., The Impact of Order-Maintenance Policing on New York City Homicide and Robbery Rates: 1988-2001, 45 Criminology (2007), at 362, 374.
405. See Richard Rosenfeld et al., The Impact of Order-Maintenance Policing on New York City Homicide and Robbery Rates: 1988-2001, 45 Criminology (2007), at 362, 374.
406. See Richard Rosenfeld et al., The Impact of Order-Maintenance Policing on New York City Homicide and Robbery Rates: 1988-2001, 45 Criminology (2007), at 362, 374.
407. See George L. Kelling & William H. Sousa, Jr., Do Police Matter?: An Analysis of the Impact of New York City's Police Reforms 2 (2001), available at http://www.manhattan-institute.org/pdf/cr_22.pdf, at 10 (using 1989-1998 precinct-level data). Kelling and Sousa also report that about forty-five percent of the variance in violent crime was not explained by the four independent variables in their model.
408. See Steven F. Messner et al., Policing, Drugs, and the Homicide Decline in New York City in the 1990s, 45 Criminology (2007), at 405 (separating gun-related from other homicides, then finding a statistically significant association between misdemeanor arrests and the former but not the latter).
409. See Steven F. Messner et al., Policing, Drugs, and the Homicide Decline in New York City in the 1990s, 45 Criminology (2007), at 405 (separating gun-related from other homicides, then finding a statistically significant association between misdemeanor arrests and the former but not the latter).
410. see also Jeffrey Fagan & Garth Davies, Policing Guns: Order Maintenance and Crime Control in New York, in Guns, Crime, andPunishment in America 191, 204-06 (Bernard E. Harcourt ed., 2003) (concluding that stopand-frisk activity in 1998 did not predict homicide rates in 1999, with the exception of stops for violent or drug offenses and the ensuing homicide victimization rate for Hispanics).
411. Magdalena Cerdá et al., Investigating the Effect of Social Changes on Age-Specific Gun-Related Homicide Rates in New York City During the 1990s, 100 Am. J. Pub. Health 1107 (2010).
412. Magdalena Cerdá et al., Investigating the Effect of Social Changes on Age-Specific Gun-Related Homicide Rates in New York City During the 1990s, 100 Am. J. Pub. Health 1107 (2010).
413. Magdalena Cerdá et al., Misdemeanor Policing, Physical Disorder, and Gun-Related Homicide: A Spatial Analytic Test of "Broken-Windows" Theory, 20 Epidemiology533, 533 (2009), at 536, 538-39 (finding a "weak" inverse association between misdemeanor arrests and gun homicides over time, but not via a proxy variable for neighborhood disorder based on sidewalk cleanliness).
414. See Magdalena Cerdá et al., Investigating the Effect of Social Changes on Age-Specific Gun-Related Homicide Rates in New York City During the 1990s, 100 Am. J. Pub. Health (2010), at 1108 (excluding only Central Park and relying on medical examiner records for locations of injury and causes of death).
415. See Magdalena Cerdá et al., Investigating the Effect of Social Changes on Age-Specific Gun-Related Homicide Rates in New York City During the 1990s, 100 Am. J. Pub. Health (2010), at 1108 (excluding only Central Park and relying on medical examiner records for locations of injury and causes of death).
416. See Magdalena Cerdá et al., Investigating the Effect of Social Changes on Age-Specific Gun-Related Homicide Rates in New York City During the 1990s, 100 Am. J. Pub. Health (2010), at 1108 (excluding only Central Park and relying on medical examiner records for locations of injury and causes of death).
417. See Magdalena Cerdá et al., Investigating the Effect of Social Changes on Age-Specific Gun-Related Homicide Rates in New York City During the 1990s, 100 Am. J. Pub. Health (2010), at 1108 (excluding only Central Park and relying on medical examiner records for locations of injury and causes of death).
418. See Magdalena Cerdá et al., Investigating the Effect of Social Changes on Age-Specific Gun-Related Homicide Rates in New York City During the 1990s, 100 Am. J. Pub. Health (2010), at 1108 (excluding only Central Park and relying on medical examiner records for locations of injury and causes of death).
419. See Magdalena Cerdá et al., Investigating the Effect of Social Changes on Age-Specific Gun-Related Homicide Rates in New York City During the 1990s, 100 Am. J. Pub. Health (2010), at 1108 (excluding only Central Park and relying on medical examiner records for locations of injury and causes of death).
420. See Anthony A. Braga & Brenda J. Bond, Policing Crime and Disorder Hot Spots: A Randomized Controlled Trial, 46 Criminology 577, 582-85 (2008).
421. See Anthony A. Braga & Brenda J. Bond, Policing Crime and Disorder Hot Spots: A Randomized Controlled Trial, 46 Criminology 577, 582-85 (2008).
422. See Anthony A. Braga & Brenda J. Bond, Policing Crime and Disorder Hot Spots: A Randomized Controlled Trial, 46 Criminology 577, 582-85 (2008).
423. See Anthony A. Braga & Brenda J. Bond, Policing Crime and Disorder Hot Spots: A Randomized Controlled Trial, 46 Criminology 577, 582-85 (2008).
424. See Anthony A. Braga & Brenda J. Bond, Policing Crime and Disorder Hot Spots: A Randomized Controlled Trial, 46 Criminology 577, 582-85 (2008).
425. See Anthony A. Braga & Brenda J. Bond, Policing Crime and Disorder Hot Spots: A Randomized Controlled Trial, 46 Criminology 577, 582-85 (2008).
426. See Anthony A. Braga & Brenda J. Bond, Policing Crime and Disorder Hot Spots: A Randomized Controlled Trial, 46 Criminology 577, 582-85 (2008).
427. See Anthony A. Braga & Brenda J. Bond, Policing Crime and Disorder Hot Spots: A Randomized Controlled Trial, 46 Criminology 577, 582-85 (2008).
428. Rudolph W. Giuliani, The Next Phase of Quality of Life: Creating a More Civil City (Feb. 24, 1998), http://www.nyc.gov/html/rwg/html/98a/quality.html, at 4.
429. Rudolph W. Giuliani, The Next Phase of Quality of Life: Creating a More Civil City (Feb. 24, 1998), http://www.nyc.gov/html/rwg/html/98a/quality.html, at 4.
430. Rudolph W. Giuliani, The Next Phase of Quality of Life: Creating a More Civil City (Feb. 24, 1998), http://www.nyc.gov/html/rwg/html/98a/quality.html.
431. William Bratton with Peter Knobler, Turnaround (1998), at 156 (discussing transit authority policy).
432. William Bratton with Peter Knobler, Turnaround (1998), at 156 (discussing transit authority policy).
433. See Bernard E. Harcourt & Jens Ludwig, Broken Windows: New Evidence from New York City and a Five-City Social Experiment, 73 U. Chi. L. Rev. 271, 278-87 (2006), at 274-75 (collecting media reports);
434. see also Andrew Karmen, New York Murder Mystery 25 tbl.1.2 (2000), at xii-xiii (stating that the media orthodoxy was to give credit to NYPD).
435. See Harold Takooshian & Richard H. Tashjian, Citizen Attitudes Toward Police and Crime, 2001, in Citizens Crime Comm'n of N.Y.C., Crime, Police, and the Community 4 (2001). The survey was conducted before 9/11. See Citizens Crime Comm'n of N.Y.C.,, at ii-iii.
436. See Harold Takooshian & Richard H. Tashjian, Citizen Attitudes Toward Police and Crime, 2001, in Citizens Crime Comm'n of N.Y.C., Crime, Police, and the Community 4 (2001), at 6.
437. See Harold Takooshian & Richard H. Tashjian, Citizen Attitudes Toward Police and Crime, 2001, in Citizens Crime Comm'n of N.Y.C., Crime, Police, and the Community 4 (2001), at 6.
438. See Harold Takooshian & Richard H. Tashjian, Citizen Attitudes Toward Police and Crime, 2001, in Citizens Crime Comm'n of N.Y.C., Crime, Police, and the Community 4 (2001), at 6.
439. See Harold Takooshian & Richard H. Tashjian, Citizen Attitudes Toward Police and Crime, 2001, in Citizens Crime Comm'n of N.Y.C., Crime, Police, and the Community 4 (2001), at 6.
440. Nat'l Research Council, Fairness and Effectiveness in Policing 229 (Wesley Skogan & Kathleen Frydl eds., 2004);
441. see also Anthony A. Braga & Brenda J. Bond, Policing Crime and Disorder Hot Spots: A Randomized Controlled Trial, 46 Criminology (2008), at 579.
442. James Q. Wilson & George L. Kelling, Broken Windows: The Police and Neighborhood Safety, Atlantic Monthly, Mar. 1982, at 30.
443. Wesley G. Skogan, Disorder and Decline 2 (1990), at 5.
444. Wesley G. Skogan, Disorder and Decline 2 (1990), at 5.
445. For warnings that people convert perceptions of poverty and the presence of racial minorities into perceptions of disorder, see Robert J. Sampson & Stephen W. Raudenbush, Systematic Social Observation of Public Spaces: A New Look at Disorder in Urban Neighborhoods, 105 Am. J. Soc. (1999), at 336.
446. Anthony A. Braga & Brenda J. Bond, Policing Crime and Disorder Hot Spots: A Randomized Controlled Trial, 46 Criminology (2008), at 600.
447. Anthony A. Braga & Brenda J. Bond, Policing Crime and Disorder Hot Spots: A Randomized Controlled Trial, 46 Criminology (2008), at 600.
448. see also Ralph B. Taylor, Breaking Away from Broken Windows 22 (2001) (distinguishing the effects of different types of neighborhood disorder or incivilities on crime and decline, and indicating different kinds of policy responses).
449. Bernard E. Harcourt & Jens Ludwig, Broken Windows: New Evidence from New York City and a Five-City Social Experiment, 73 U. Chi. L. Rev. 271, 278-87 (2006), at 282 ("[T]he broken windows hypothesis [of misconduct] is, in principle, consistent with a variety of potential policy levers, ranging from changes in policing to community organizing. ").
450. Robert J. Sampson & Stephen W. Raudenbush, Systematic Social Observation of Public Spaces: A New Look at Disorder in Urban Neighborhoods, 105 Am. J. Soc. (1999), at 638 & n.36.
451. See, e.g., Richard R.W. Brooks, Fear and Fairness in the City: Criminal Enforcement and Perceptions of Fairness in Minority Communities, 73 S. Cal. L. Rev. 1219, 1249 (2000).
452. See, e.g., Richard R.W. Brooks, Fear and Fairness in the City: Criminal Enforcement and Perceptions of Fairness in Minority Communities, 73 S. Cal. L. Rev. 1219, 1249 (2000).
453. Ralph B. Taylor, Incivilities Reduction Policing, Zero Tolerance, and the Retreat from Coproduction: Weak Foundations and Strong Pressures, in Police Innovation 98, 107-08 (David Weisburd & Anthony A. Braga eds., 2006).
454. Casual judicial empiricism is in no way restricted to campaign finance cases. See, e.g., Stephen Ansolabehere & Nathaniel Persily, Vote Fraud in the Eye of the Beholder: The Role of Public Opinion in the Challenge to Voter Identification Requirements, 121 Harv. L. Rev. 1737, 1750-60 (2008), at 1750-60 (casting doubt on judicial understanding of the impact of voter identification laws).
455. Dan M. Kahan et al., Whose Eyes Are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism, 122 Harv. L. Rev. 837, 840-43 (2009) (doubting the Court's ability to characterize risk uncontroversially based on a high-speedchase video).
456. Janice Nadler, No Need to Shout: Bus Sweeps and the Psychology of Coercion, 2002 Sup. Ct. Rev. 153, 155 (detecting an "ever-widening gap between Fourth Amendment consent jurisprudence... and scientific findings about the psychology of compliance and consent").
457. See section III.C.
458. Serious judicial concern about transparency and contribution limits is not highly likely, in my judgment. Judges are partly an extension of the political system and not the leading candidates for attacking its legitimacy. Furthermore, charging widespread corruption might reinforce the perceived need for more regulation, which several Justices plainly oppose, and the Justices who are more tolerant of regulation might not want to effectively concede that law has been ineffective so far. That said, mainstream judges with different ideological commitments might be willing to point out that defenders of campaign finance regulation cannot be sure what the actual corruption level would be if current regulations were invalidated. Those judges also might be willing to consider the risk of a destructive self-fulfilling corruption prophecy.
459. For a responsibly limited take on an empirical conclusion, consider Steven F. Messner et al., Policing, Drugs, and the Homicide Decline in New York City in the 1990s, 45 Criminology (2007), at 407, which closes with a caution about resource allocation issues and the negative effects associated with order-maintenance policing.