Uncivil obedience

Columbia Law Review

Volumn 115, Issue 4, 2015, Pages 809-872

  Bulman Pozen, Jessica ^a   Pozen, David E ^a  

^a Columbia Law School ^*  (United States)

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EID: 84930252504     PISSN: 00101958     EISSN: None     Source Type: Journal    
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References (411)

1. Josh Meyer, Slowpokes Make Point at 55 M.P.H., L.A. Times (Apr. 26, 1993), http://articles.latimes.com/1993-04-26/local/me-27445_1_speed-limit (on file with the Columbia Law Review).
2. Infra notes 59–60 and accompanying text (explaining “uncivil obedience” label).
3. That is, it involves subversive modes of behaving in conformity with law. An important terminological clarification: In saying that uncivil obedients “obey,” “follow,” or “comply with” the law, we do not mean to suggest that they necessarily or even normally conform their behavior to the law because that is what the law directs them to do. We thus use “obedience” and related terms in a looser sense than some jurisprudes would allow. Note
4. Donald H. Regan, Reasons, Authority, and the Meaning of “Obey”: Further Thoughts on Raz and Obedience to Law, 3 Can. J.L. & Jurisprudence 3, 16 (1990) (“[A]n agent ‘obeys’ authority, in the strict sense, only if she regards the authority’s directives... as intrinsic reasons for action.”).Note
5. Tony Knight, Group to Protest Speed Limit by Driving 55 MPH, L.A. Daily News, Apr. 25, 1993, at N3.
6. The phrase “uncivil obedience” makes an appearance in several memoirs by former activists
7. A. Alan Borovoy, Uncivil Obedience: The Ta ctics and Ta les of a Democratic Agitator 15 (1991) (“The approach I advocate is a form of uncivil obedience. By this, I mean we should obey the law but stick it to the government anyway.”)
8. Jim Corbett, Goatwalking: A Guide to Wildland Living 98 (1991)
9. discussing “Uncivil Obedience, Disobedience, and Civil Initiative”, and in a smattering of academic articles. We are not aware of any work that has considered the phrase or the phenomenon, however labeled, in depth.
10. Kimberley Brownlee, Civil Disobedience, Stanford Encyclopedia of Philosophy (Dec. 20, 2013), http://plato.stanford.edu/entries/civil-disobedience [hereinafter Brownlee, Civil Disobedience] (on file with the Columbia Law Review). We draw in particular in this discussion on the influential formulations of John Rawls, Joseph Raz, Kimberley Brownlee, and Hugo Bedau.
11. Kimberley Brownlee, Conscience and Conviction: The Case for Civil Disobedience 18 (2012) [hereinafter Brownlee, Conscience and Conviction] (“[C]ivil disobedience must include a deliberate breach of law taken on the basis of steadfast personal commitment in order to communicate [one’s] condemnation of a law or policy to a relevantly placed audience.”)
12. John Rawls, A Theory of Justice 364 (1971)
13. defining civil disobedience as “a public, nonviolent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law or policies of the government”
14. Joseph Raz, The Authority of Law 263 (1979)
15. “Civil Disobedience is a politically motivated breach of law designed either to contribute directly to a change of a law or of a public policy or to express one’s protest against, and [dissociation] from, a law or a public policy.”
16. Hugo A. Bedau, On Civil Disobedience, 58 J. Phil. 653, 661 (1961) [hereinafter Bedau, On Civil Disobedience] (“Anyone commits an act of civil disobedience if and only if he acts illegally, publicly, nonviolently, and conscientiously with the intent to frustrate (one of) the laws, policies, or decisions of his government.”).
17. Compare, e.g., Rawls, supra note 6, at 364–68 (defining civil disobedience narrowly), with Raz, supra note 6, at 269 (arguing features proposed “in an attempt to articulate and justify a doctrine of the permissible forms of civil disobedience” are “arbitrary restrictions”). Note
18. Abe Fortas, Concerning Dissent and Civil Disobedience 63 (1968) (“[T]he disobedience of laws which are not themselves the target of the protest... constitutes an act of rebellion, not merely of dissent.”).
19. Brownlee, Conscience and Conviction, supra note 6, at 19 (recognizing both subcategories of civil disobedience); Rawls, supra note 6, at 364–65 (same)
20. Hannah Arendt, Civil Disobedience, in Crises of the Republic 49, 55–56 (1969) (same)
21. Marshall Cohen, Civil Disobedience in a Constitutional Democracy, 10 Mass. Rev. 211, 225 (1969) (same). In Daniel Markovits’s terms, the civil disobedient may “disobey one law... in defiance of another” law or legal regime. Daniel Markovits, Democratic Disobedience, 114 Yale L.J. 1897, 1936 n.85 (2005) (emphases added).
22. H.A. Bedau, Civil Disobedience and Personal Responsibility for Injustice, in Civil Disobedience in Focus 49, 52 (Hugo Adam Bedau ed., 1991) [hereinafter Bedau, Personal Responsibility] (noting “undeniable fact that some injustices are inaccessible to direct resistance by some who would protest them” (emphasis omitted))
23. Rawls, supra note 6, at 365 (“[I]f the government enacts a vague and harsh statute against treason, it would not be appropriate to commit treason as a way of objecting to it.... In other cases there is no way to violate the government’s policy directly, as when it concerns foreign afairs....”). Some would also exclude from the category of civil disobedience breaches of law that target nongovernmental entities Note
24. Raz, supra note 6, at 264 (bracketing protests against “actions or policies of private agents (trade unions, banks, private universities, etc.)”), while others insist it is arbitrary to exclude such protests insofar as they necessarily challenge “the legal framework that accepts [the condemned] policies and practices as lawful,” Brownlee, Conscience and Conviction, supra note 6, at 19 n.8 Note
25. Kent Greenawalt, Conflicts of Law and Morality 234 (1987)
26. As long as it does not seriously threaten the legal order, disobedience to correct private injustice cannot be ruled out on principle
27. Michael Walzer, Civil Disobedience and Corporate Authority, in Obligations: Essays on Disobedience, War, and Citizenship 24, 43 (1970) [hereinafter Walzer, Civil Disobedience] (describing type of civil disobedience that “takes place simultaneously in two diferent social arenas, the corporation and the state”).
28. For instance, is refusing to pay taxes to the extent that one expects them to benefit the military an act of direct or indirect civil disobedience regarding military policy?
29. Kimberley Brownlee, The Communicative Aspects of Civil Disobedience and Lawful Punishment, 1 Crim. L. & Phil. 179, 184 n.9 (2007) [hereinafter Brownlee, Communicative Aspects] (presenting this example).
30. U.S. Const. art. VI, cl. 2
31. Arendt, supra note 9, at 53 (“[B]ecause of its dual system[,] American law, in distinction from other legal systems, has found a nonficti-tious, visible place for that higher law on which in one form or another jurisprudence keeps insisting.” (internal quotation marks omitted)).
32. Charles L. Black, The Problem of the Compatibility of Civil Disobedience with American Institutions of Government, 43 Te x. L. Rev. 492, 506 (1965).
33. Rawls, supra note 6, at 365.
34. Walzer, Civil Disobedience, supra note 10, at 24
35. A man breaks the law [when engaging in civil disobedience], but does so in ways which do not challenge the legitimacy of the legal or political systems
36. Rawls, supra note 6, at 364 (invoking conscientiousness); Bedau, Personal Responsibility, supra note 10, at 51 (same)
37. Kimberley Brownlee, Features of a Paradigm Case of Civil Disobedience, 10 Res Publica 337, 338 (2004) (same).
38. Rawls maintains that civil disobedience must be guided and justified by fundamental principles of justice. A civil disobedient may not base her protest on morality or religion, let alone on self-interest (although these may coincide with and support her claims) Note
39. instead, she must appeal to “the commonly shared conception of justice that underlies the political order” and locate her protest within the majority’s contemporary understanding of justice. Rawls, supra note 6, at 365 Note
40. Cohen, supra note 9, at 212 (stating principles invoked by civil disobedient “are principles that he takes to be generally acknowledged”). Against Rawls, many commentators contend that the civil disobedient may seek to alter or expand the majority’s conception of justice, rather than appeal to its existing conception, and that moral or religious principles can equally motivate her dissent. Note
41. Greenawalt, supra note 10, at 230–35 (challenging narrowness of Rawls’s formulation); Peter Singer, Democracy and Disobedience 88–90 (1973) (same). Note
42. Brownlee, Conscience and Conviction, supra note 6, at 18
43. Rawls, supra note 6, at 366 (characterizing civil disobedience as “form of address”)
44. Raz, supra note 6, at 264–65 (noting expressive character of civil disobedience).
45. Rawls, supra note 6, at 366 (“[Civil disobedience] is engaged in openly with fair notice
46. it is not covert or secretive.”)
47. Bedau, On Civil Disobedience, supra note 6, at 655
48. Usually, though not always, it is essential to the purpose of the dissenter that both the public and the government should know what he intends to do
49. Cohen, supra note 9, at 212 (“[I]t is essential that [the civil disobedient’s actions] be performed in public, or called to the public’s attention.”).
50. Michael Walzer, The Obligation to Disobey, in Obligations: Essays on Disobedience, War, and Citizenship 3, 20 (1970) [hereinafter Walzer, Obligation].
51. Brownlee, Conscience and Conviction, supra note 6, at 23 (“Disobedience carried out covertly in the first instance to ensure that the act is successful may nonetheless be open and communicative when followed by an acknowledgment of the act and the reasons for taking it.”)
52. Raz, supra note 6, at 265 (“[O]nly the fact that an act of disobedience occurred and... the nature of its motivation have to be made publicly known.”).
53. Brownlee, Communicative Aspects, supra note 11, at 180 (stating civil disobedient must convey not only criticism “but also her desire for... a lasting change in law or policy”).
54. But cf. Raz, supra note 6, at 263–64 (arguing civil disobedience may be “designed either to contribute directly to a change of a law or of a public policy or to express one’s protest against, and [dissociation] from, a law or public policy,” but further noting all civil disobedience is designed “to have a political efect”). Although “[a]cts of civil disobedience often have focused and limited objectives,” Brownlee, Civil Disobedience, supra note 6, several commentators have recently called attention to variants that aspire to challenge political structures or stimulate democratic engagement more broadly. We discuss these variants infra notes 110, 253–257 and accompanying text. Note
55. Raz, supra note 6, at 264
56. Singer, supra note 17, at 93 (noting conscientious objection “is undertaken in order to avoid taking part in the policies to which one objects, rather than in order to change those policies”)
57. Walzer, Obligation, supra note 20, at 12 (classifying conscientious objection as form of civil disobedience)
58. Jeremy K. Kessler, The Administrative Origins of Modern Civil Liberties Law, 114 Colum. L. Rev. 1083, 1090 (2014) (arguing World War I activists and administrators conceived of conscientious objection “not as a right to opt out of the warfare state, but rather as a right to participate in... a particularistic manner”).
59. Arendt, supra note 9, at 76–77 (asserting nonviolence is “generally accepted necessary characteristic of civil disobedience”)
60. Bedau, On Civil Disobedience, supra note 6, at 656 (“The pun on ‘civil’ is essential; only nonviolent acts thus can qualify.”).
61. Brownlee, Conscience and Conviction, supra note 6, at 21–23
62. (contesting “presumed incivility of violence”)
63. Walzer, Civil Disobedience, supra note 10, at 25 (arguing “insistence on the absolute nonviolence of civil disobedience is... a little disingenuous,” in light of violence and coercion risked by all legal disobedience)
64. Howard Zinn, A Fallacy on Law and Order: That Civil Disobedience Must Be Absolutely Nonviolent, in Civil Disobedience and Violence 103, 111
65. Jefrie G. Murphy ed., 1971) (“[I]t would be foolish to rule out at the start, for all times and conditions, all of the vast range of possible tactics beyond strict nonviolence.”).
66. Raz, supra note 6, at 267 (“[C]ertain non-violent acts, indeed some lawful acts, may well have much more severe consequences than many an act of violence: consider the possible efects of a strike by ambulance drivers.”)
67. Brownlee, Conscience and Conviction, supra note 6, at 21–22 (“[F]ocusing attention on violence draws attention away from the presumptively more salient issue of harm.”).
68. Greenawalt, supra note 10, at 244–65 (arguing violence may sometimes be justified). Theorists have advanced additional criteria for distinguishing justified from unjustified civil disobedience.
69. Rawls, supra note 6, at 371–77 (proposing civil disobedience should be limited to instances of clear and substantial injustice, used as last resort, and involve coordinated action among minority groups).
70. Raz, supra note 6, at 275 (arguing such conditions represent attempt to “routinize” civil disobedience and “make it a regular form of political action to which all have a right,” when civil disobedience’s “exceptional character lies precisely... in the fact that it is (in liberal states) one type of political action to which one has no right”). Note
71. As with nonviolence, however, some contend that willingness to accept punishment is not a definitional component of civil disobedience but rather a morally significant consideration for evaluating its practice. Note
72. Raz, supra note 6, at 265 (adopting this view). Others stress the insufficiency of willingness to accept punishment as a basis for legitimation.
73. Cohen, supra note 9, at 214 (“It is mindless to suppose that murder, rape or arson would be justified if only one were willing to pay the penalty....”).
74. Martin Luther King, Jr., Letter from Birmingham City Jail, in A Te stament of Hope 289, 294 (James Melvin Washington ed., 1986) (emphases omitted)
75. (“[W]e would present our very bodies as a means of laying our case before the conscience of the local and national community.”). Drawing on King’s example, contemporary critics of Edward Snowden have insisted that his flight from prosecution disqualifies him from civil disobedient status.
76. Michael J. Glennon, Is Snowden Obliged to Accept Punishment?, Just Security (June 3, 2014, 9:00 AM), http://justsecurity.org/11068/ guest-post-snowden-obliged-accept-punishment (on file with the Columbia Law Review) (detailing and disputing this line of argument).
77. Rawls, supra note 6, at 366–67 (arguing “fidelity to law is expressed... by the willingness to accept the legal consequences of one’s conduct”)
78. Bedau, Personal Responsibility, supra note 10, at 51 (stating civil disobedience’s occurrence within framework of rule of law necessitates “willingness on the part of the disobedient to accept the legal consequences of his act”)
79. Bernard E. Harcourt, Political Disobedience, in Occupy: Three Inquiries in Disobedience 45, 46–47 (2013) (“[Civil disobedience] respects the legal norm at the very moment of resistance, and places itself under the sanction of that norm. If it resists the legal sanction that it brings upon itself, in truth it is no longer engaged in civil disobedience.”).
80. The possible application of multiple laws to “uncivil” behaviors is a focus of infra Part III.A.
81. Local 702 Int’l Bhd. of Elec. Workers, AFL-CIO v. NLRB, 215 F. 3d 11, 14 (D.C. Cir. 2000) (considering work-to-rule action in which employees were “adhering strictly to all company safety and other rules; doing exactly and only what they were told
82. [and] reporting to work precisely on time” (internal quotation marks omitted))
83. Direct Action: Solidarity and Sabotage, in We Are Everywhere: The Irresistible Rise of Global Anticapitalism 456, 457 (Notes from Nowhere ed., 2003) (“The notion of the work-to-rule is brilliantly simple—workers follow every rule, no matter how foolish, inefficient, or ill-advised. They break no laws, cause as much disruption as a strike, yet everyone still gets paid!”). William Simon has described work to rule as the practice of “bring[ing] an enterprise to a halt by refusing to cut the corners necessary for things to function smoothly” and cited it as a case of “scrupulous compliance with the law [that] is so burdensome and even disruptive that it occurs only as a form of protest.” William H. Simon, The Practice of Justice 90–91 (1998). Note
84. As one commentator explained: If you ran your car like American Airlines has been running for the last two weeks[,] if your car was leaking oil on the drive, write it up. Windshield wipers streaking, write it up. Shocks squeaking, write it up. Car pulls slightly to the left, write it up.... A lot of systems in the morning sometimes just don’t come on line in the correct sequence. You’ll get a light or the thing won’t test so the fix is to power it down and then power it back up. Is a pilot authorized to do this[?] [N]o but we all used to do it so the flight could depart on time. Now if the same problem occurs guys are putting it in the log book and taking the delay. Note
85. Terry Maxon, Another American Airlines Pilot Explains Why AA Is Having So Many Delays, Dall. Morning News: Aviation Biz Blog (Sept. 30, 2012, 6:22 PM), http://aviationblog.dallasnews.com/2012/09/another-american-airlines-pilot-explains-why-aa-is-having-so-many-delays.html (on file with the Columbia Law Review).
86. Frances Fox Piven & Richard Cloward, The Weight of the Poor: A Strategy to End Poverty, Nation (Mar. 8, 2010), http://www.thenation.com/article/weight-poor-strategy-end-poverty [hereinafter Piven & Cloward, We ight of the Poor] (on file with the Columbia Law Review) (originally published May 2, 1966).
87. Cloward and Piven argued that maximizing welfare rolls would strain the “big-city Democratic coalition: the remaining white middle class, the white working-class ethnic groups and the growing minority poor.” Id. To preserve that coalition, and spurred by lobbying from mayors and governors rather than the poor themselves, “a national Democratic administration would be constrained to advance a federal solution to poverty that would override local welfare failures, local class and racial conflicts and local revenue dilemmas.” Id. Although never fully implemented, the Cloward–Piven proposal remains a canonical text for the welfare rights movement. Note
88. Frances Fox Piven & Richard Cloward, Poor People’s Movements 275–88 (1977) (discussing proposal).
89. We explore some of the distinctive complexities raised by this category of examples infra Part II.B.4.
90. Heather D. Boonstra, Medication Abortion Restrictions Burden Women and Providers—and Threaten U.S. Trend To ward Very Early Abortion, 16 Guttmacher Pol’y Rev. 18, 21–22 (2013) (summarizing these laws); Guttmacher Inst., State Policies in Brief: Medication Abortion (2015), http://www.guttmacher.org/statecenter/spibs/spib_MA.pdf (on file with the Columbia Law Review) (same).
91. Boonstra, supra note 37, at 19 (describing ways in which FDA-approved regimen has become “antiquated”)
92. Stanley K. Henshaw & Lawrence B. Finer, The Accessibility of Abortion Services in the United States, 2001, 35 Persps. on Sexual & Reprod. Health 16, 20–21 & tbl.4 (2003) (finding eighty-three percent of medication abortions performed in 2001 used a third of FDA-approved mifepristone dose).
93. Cf. infra notes 233–236 and accompanying text (explaining why strength of conviction needed to inspire uncivil obedience is likely to be weaker on average than what is needed for civil disobedience).
94. For acts taken by groups, most of the individuals involved, or at least their leaders, must be properly motivated. Those members of the group who lack conscientiousness (or reformist intent) may not themselves be uncivil obedients, even if their collaborators and the act itself so qualify. Note
95. We assume that most work-to-rule actions, like other labor protests, will involve a complicated and evolving mix of narrowly instrumental and broadly political motivations. As long as the latter set of motivations exerts substantial influence, we think it appropriate to characterize such actions as conscientious. Note
96. As this discussion reflects, uncivil obedience by private citizens may require coordination on a significant scale—not just to be efective but even to be intelligible. One civil disobedient may be able to prick the conscience of the community by lying down in the middle of a busy street. One would-be uncivil obedient achieves nothing by driving at the speed limit. Note
97. We say “generally” because, as with civil disobedience, certain forms of reasonably prompt ex post publicity may sufce where contemporaneous publicity would be exceedingly costly or self-defeating. Supra note 21 and accompanying text. Note
98. Social meaning refers to “the attitudes and commitments that are communicated by words or actions” in context, which may not correspond to “the words that are actually being used.” Cass R. Sunstein, Social Norms and Big Government, 15 Quinnipiac L. Rev. 147, 154 (1995). Note
99. Reformist intent will often follow from conscientiousness, but not always, as when the actor has not formulated any prescriptive agenda or when the change she seeks is limited to her own case. More broadly, many controversial uses of law will fail to satisfy one or more of the elements above. For instance, tax gamesmanship and “strategic lawsuits against public participation” (lawsuits brought to silence critics by burdening them with the cost of a legal defense) will generally not be uncivil obedience because they are not conscientiously pursued for the reform of law or policy. But cf. infra notes 66–67 and accompanying text (discussing unusual case of tax gamesmanship that met these criteria). Note
100. infra Part II.B.3
101. supra notes 8–11 and accompanying text (describing direct–indirect distinction in civil disobedience literature).
102. Meyer, supra note 1 (“Their protest is aimed at getting Congress to repeal the federal speed limit law imposed during the Arab oil embargo in 1974 and to return such authority to the states.”)
103. Marks v. Mobil Oil Corp., 562 F. Supp. 759, 771–72 (E.D. Pa. 1983) (summarizing legislative history behind 1974 measure). Congress did in fact repeal the national speed limit two years later, in 1995, following a decline in the price of crude oil. National Highway System Designation Act of 1995, Pub. L. No. 104-59, § 205(d), 109 Stat. 568, 577.
104. For the canonical exposition of the distinction between law in action (or the “real rules”) and law in books (or the “paper rules”)
105. Roscoe Pound, Law in Books and Law in Action, 44 Am. L. Rev. 12 (1910)
106. Frederick Schauer, Legal Realism Untamed, 91 Tex. L. Rev. 749, 750–51 nn.5–6 (2013) (collecting other classic Legal Realist treatments of this distinction).
107. Meyer, supra note 1 (quoting protester Al Allen).
108. Piven & Cloward, Weight of the Poor, supra note 34.
109. Accordingly, it is not uncivil obedience—although it may be civil disobedience— if a person violates local law X on the view that X is invalid because incompatible with a provision of “higher” positive law. Note
110. In defining legality to require conformity with such privately as well as publicly generated obligations, we align ourselves with those who define civil disobedience in similarly expansive terms. Supra note 10. Note
111. supra notes 12–14 and accompanying text (noting this feature of civil disobedience).
112. Evasive behavior may not qualify as uncivil obedience for additional reasons, such as a lack of communicativeness or reformist intent.
113. infra Part III.C (considering informal regulation of uncivil obedience).
114. Mark A. Edwards, Law and the Parameters of Acceptable Deviance, 97 J. Crim. L. & Criminology 49, 58 (2006) (“[T]he unacceptably compliant driver might find himself subject to sanctions such as tailgating, horn-blowing, headlight-flashing, and obscene gestures....”) Note
115. Meyer, supra note 1 (describing angry responses by other drivers to National Motorists Association protest). As Mark Edwards observes more generally, while “[f]ormal institutions of enforcement are not well-equipped to punish normatively unacceptable legal behavior, because the acknowledged justification for their intervention—violation of formal law—is unavailable,” Edwards, supra, at 77, “[i]nformal social sanctions might be expected against behaviors that are formally compliant but normatively unacceptable,” Note
116. Although beyond the scope of this study, it would be possible to extend the idea of uncivil obedience to wholly nonlegal, unwritten norms, as in exaggerated compliance with a rule of etiquette. Cf. infra notes 247–249 and accompanying text (discussing James Scott’s related concept of “critiques within the hegemony”). Note
117. Legalism Definition, Webster’s Third New International Dictionary of English Language 1290 (3d ed. unabr. 1993) (defining “legalism” as “excessive reliance on legal principles and practices esp[ecially] as interpreted literally”). Most socially provocative behaviors that are lawful—from speaking in a loud voice to making outrageous claims to dressing like a chicken—are not provocative in the way they relate to law. Although inherently fuzzy at the margins, the distinction we are drawing between legally provocative behavior and otherwise provocative behavior is no more (or less) problematic than the well-established related distinction between legalistic behavior and otherwise lawful behavior. Note
118. Cf. Uncivil Definition, id. at 2485 (defining “uncivil” as, inter alia, “lacking in courtesy” or “not conducive to civic harmony and welfare”).
119. Although we believe the “uncivil obedience” label to be the most felicitous for the way it highlights the ironic character of these practices and the comparison with civil disobedience, cf. supra note 3 (explaining sense in which we use “obedience”), we do not mean for the label itself to do any critical work. Acts of incivility may be fully justified under certain circumstances. In what one assumes was an efort to isolate the positive connotations of “civil disobedience,” the speed-limit protesters discussed in the main text dubbed their action National Civil Obedience Day. Meyer, supra note 1. Note
120. Brownlee, Civil Disobedience, supra note 6 (describing civil disobedience as “invariably illegal,” without further explication). The civil disobedient, it is assumed, wants to be seen as violating an applicable positive law. While questions may arise as to whether her violation was justified by higher-law principles, there is typically no dispute as to whether a prima facie breach occurred.
121. This “area” may be a physical domain, as in the case of a specific freeway or workplace, or it may be a regulatory domain, as in the case of a specific tax code or public benefits system. In either case, the uncivil obedient must defy practices or expectations that are widely followed or held among the community of persons bound by the law of the area. We mean for this formulation to be a bit loose. Just how widely followed or held a practice or expectation must be, and just how to mark the boundaries of a relevant area or community, are not in our view matters that can be specified ex ante with precision. Note
122. Cf. Edwards, supra note 56, at 57 (observing existence of behaviors that are formally illegal but within socially constructed “parameters of acceptable deviance,” as well as behaviors that are formally legal but outside of these parameters). Note
123. (explaining that in addition to “well-recognized gap between law-on-the-books, or formal law, and law-as-enforced,” there “is a parallel gap between law-on-the-books and law-as-behaved”) Note
124. supra note 48 and accompanying text (noting distinction between “real” and “paper” rules).
125. Jeremy Brecher, Strike! 251 (revised ed. 2014) (explaining work slowdowns and work-to-rule actions were common labor tactics in 1930s and were variously called “the conscious withdrawal of efficiency,” “striking on the job,” or “sabotage”). Note
126. In the constitutional context, Mark Tu shnet defines workarounds as situations where, “[f]inding some constitutional text obstructing our ability to reach a desired goal, we work around that text using other texts—and do so without (obviously) distorting the tools we use.” Mark Tu shnet, Constitutional Wo rkarounds, 87 Te x. L. Rev. 1499, 1503 (2009).
127. Michael J. Graetz, The Decline (and Fall?) of the Income Ta x 35–39 (1997) (discussing Boyters’ protest and responses it elicited)
128. Jill Elaine Hasday, Family Law Reimagined 54 (2014) (same).
129. Recognizing that federal election law permitted him to express his wishes for the Super PAC as long as he communicated them publicly rather than privately, Colbert came prepared with a cardboard television set and broadcast his wishes from inside the set, all while sitting at Stewart’s desk. Katla McGlynn, Jon Stewart, Stephen Colbert Expose More Super PAC Loopholes Without “Coordinating,” Hufngton Post (Jan. 18, 2012, 9:01 AM), http://www.hufngtonpost.com/2012/01/18/jon-stewart-stephen-colbert-expose-super-pac-loopholes_n_1212670.html (on file with the Columbia Law Review) (last updated Feb. 23, 2012, 7:44 AM).
130. To hammer home the point, Colbert’s Super PAC, originally named “Americans for a Better Tomorrow, Tomorrow,” was unofcially renamed “The Definitely Not Coordinating with Stephen Colbert Super PAC” after Colbert put Stewart in charge. Under New Management!, Colbert Super PAC, http://www.colbertsuperpac.com/archive/ 011212a.html (on file with the Columbia Law Review) (last visited Mar. 16, 2015).
131. Jane O’Grady, Elizabeth Anscombe, Guardian (Jan. 10, 2001), http://www.theguardian.com/news/2001/jan/11/guardianobituaries.highereducation (on file with the Columbia Law Review). Although some might prefer to limit the concept of uncivil obedience to protests against government laws or policies, on our account at least some private codes of conduct may be targeted as well. Supra notes 51–52 and accompanying text.
132. John Del Signore, Drivers Protest Verrazano Bridge Toll with Pennies, Gothamist (May 19, 2009, 3:10 PM), http://gothamist.com/2009/05/19/drivers_protest_verrazano_bridge_to.php (on file with the Columbia Law Review) (“[F]ed up Staten Islanders disrupted trafic at the Ve rrazano Bridge toll booths for about 20 minutes yesterday by slowly paying the $10 toll in pennies to protest an imminent increase.”)
133. Jim Shea, It’s Time to Eliminate the Dreadful Penny, Hartford Courant, Mar. 5, 2014, at D1 (“As for the penny being an instrument of protest, let’s face it, the paying of taxes or fines in pennies lacks originality to the point of now being lame.”). Note
134. Depending on the jurisdiction and on the manner in which these behaviors are executed, some variants may run afoul of separate legal prohibitions, such as a specific cap on the number of pennies that may be used in any given transaction or a general ban on disorderly conduct, and therefore would not qualify as uncivil obedience. infra Part III.A (explicating this point). Note
135. supra notes 34–35 and accompanying text (summarizing Cloward–Piven plan). We will soon turn to a prominent set of contemporary examples, involving use of the quorum call, hold, and other procedural privileges by minority-party senators.
136. infra notes 96–102 and accompanying text.
137. This is the case across as well as within jurisdictions. For an example of administrative flooding from the United Kingdom
138. Mark Thomas, So Many Causes, So Little Time, Guardian (Oct. 11, 2006, 8:10 PM), http://www.theguardian.com/politics/2006/oct/12/houseofcommons.comment (on file with the Columbia Law Review) (describing wave of “mass lone protests,” as well as author’s own serial protests, in response to U.K. law requiring permit for all demonstrations near Houses of Parliament).
139. Michelle Alexander, Op-Ed, Go to Trial: Crash the Justice System, N.Y. Times (Mar. 10, 2012), http://www.nytimes.com/2012/03/11/opinion/sunday/go-to-trial-crash-the-justice-system.html?_r=0 (on file with the Columbia Law Review).
140. Jenny Roberts, Crashing the Misdemeanor System, 70 Wash. & Lee L. Rev. 1089 (2013) (exploring possible refinements to and extensions of Alexander’s proposal, focused on minor misdemeanors).
141. Oren Bar-Gill & Omri Ben-Shahar, The Prisoners’ (Plea Bargain) Dilemma, 1 J. Legal Analysis 737 (2009) (discussing collective-action problems faced by defendants).
142. Henry T. Lummus, The Trial Judge 46 (1937) (“If all... defendants should combine to refuse to plead guilty, and should dare to hold out, they could break down the administration of justice in any state in the Union.”).
143. Albert W. Alschuler, The Defense Attorney’s Role in Plea Bargaining, 84 Yale L.J. 1179, 1249 (1975) (describing general strikes as “most spectacular form of bargaining leverage that a public defender office can exert”).
144. Cf. Edwards, supra note 56, at 80 n.137 (“Either full enforcement or compliance would likely bring any functioning society to a crashing halt.”).
145. Mr. Roosevelt Answers, N.Y. Times (July 17, 1895), http://query.nytimes.com/mem/archive-free/pdf?res=9C04E2DA103DE433A25754C1A9619C94649ED7CF (on file with the Columbia Law Review).
146. Doris Kearns Goodwin, The Bully Pulpit 209–10 (2013) (discussing Roosevelt’s strict enforcement policy). As a journalist observed at the time: [Roosevelt’s] reasoning had all the simplicity of originality. He was appointed to enforce the laws as they appeared on the statute books. He enforced them. That was originality; it rarely had been done before.... When prominent citizens and influential newspapers protested, he answered: “I am placed here to enforce the law as I find it. I shall enforce it. If you don’t like the law, repeal it.” Note
147. Ray Stannard Baker, Theodore Roosevelt: A Character Sketch, McClure’s Mag., Nov. 1898, at 23, 30, available at http://www.unz.org/Pub/McClures-1898nov-00023 (on file with the Columbia Law Review).
148. Ulysses S. Grant, First Inaugural Address (Mar. 4, 1869), available at http://avalon.law.yale.edu/19th_century/grant1.asp (on file with the Columbia Law Review). More recently, critics charged that the Administrator of President Reagan’s Environmental Protection Agency was interpreting the Clean Air Act in a “deliberately rigid fashion” so as to “prod Congress into reworking” the Act.
149. Philip Shabecof, Mrs. Gorsuch as a Crusading Tiger? Critics Wonder Why, N.Y. Times (Dec. 26, 1982), http://www.nytimes.com/1982/12/26/weekinreview/mrs-gorsuch-as-a-crusading-tiger-critics-wonder-why. html (on file with the Columbia Law Review)
150. (“Mrs. Gorsuch said the imposition of sanctions would be ‘an unhealthy, regressive step.... But I always said I will fulfill my oath of office....’”).
151. U.S. Const. art. II, § 3.
152. Presidential Authority to Decline to Execute Unconstitutional Statutes, 18 Op. O.L.C. 199 (1994) (defending this general proposition and suggesting factors that ought to bear on nonenforcement decisions).
153. Andrew J. Parmenter, Note, Nullifying the Jury: “The Judicial Oligarchy” Declares War on Jury Nullification, 46 Washburn L.J. 379, 402–10 (2007) (cataloging eforts by U.S. judges to prevent and delegitimize jury nullification). Jury nullification occurs when a jury acquits a defendant it believes to be guilty “either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury’s sense of justice, morality, or fairness.” Black’s Law Dictionary 989 (10th ed. 2014). In cases where the jurors’ reasoning, including their possible dissatisfaction with the law, remains opaque to the outside world, nullification would further fail the communicativeness requirement of uncivil obedience. Note
154. Parmenter, supra note 87, at 391 (listing Georgia, Indiana, and Maryland as having such constitutional provisions).
155. Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L.J. 677, 680 (1995) (proposing jury nullification as means to subvert racial oppression in criminal justice system and stimulate “implementation of certain noncriminal ways of addressing antisocial conduct”).
156. David J. Barron & Todd D. Rakof, In Defense of Big Waiver, 113 Colum. L. Rev. 265, 267 (2013) (explaining, under “big waiver,” executive agencies claim statutory authority to decide whether policies adopted by Congress should be dispensed with or replaced).
157. No Child Left Behind Act of 2001, Pub. L. No. 107-110, § 9401(a), 115 Stat. 1425, 1972 (2002) (codified at 20 U.S.C. § 7861(a) (2012)).
158. U.S. Dep’t of Educ., ESEA Flexibility, http://www2.ed.gov/policy/elsec/guid/esea-flexibility/index.html (on file with the Columbia Law Review) (last modified Feb. 25, 2015) (indicating forty-three states have been granted waivers).
159. Barron & Rakof, supra note 90, at 268. In the White House’s own words, because No Child Left Behind was “stand[ing] in the way” of state progress and Congress would not amend the law, the “Administration moved forward to ofer states flexibility within the law—as authorized by provisions in the law itself.” White House, Reforming No Child Left Behind, http://www.whitehouse.gov/issues/education/k-12/reforming-no-child-left-behind (on file with the Columbia Law Review) (last visited Mar. 5, 2015). As a presidential candidate, Mitt Romney pledged that he would dismantle the Afordable Care Act, lawfully, in a similar manner, although critics pointed out that only certain provisions of the Act were subject to waiver.
160. Julie Rovner, Can Mitt Romney Really Repeal Obamacare?, NPR (Oct. 30, 2012, 4:00 AM), http://www.npr.org/2012/10/30/163929221/can-romney-really-repeal-obamacare (on file with the Columbia Law Review) (quoting Romney as saying, “On day one of my administration, I’ll direct the secretary of Health and Human Services to grant a waiver from Obamacare to all 50 states”).
161. Cf. Victoria F. Nourse, A Decision Theory of Statutory Interpretation: Legislative History by the Rules, 122 Yale L.J. 70, 90 (2012) (explaining, in United States today, even self-identified purposivist interpreters always “begin with text”)
162. Andrew Tu tt, Fifty Shades of Te xtualism, 29 J.L. & Pol. 309, 309 (2014) (“‘We are all Te xtualists now’ has become such a popular refrain [among American commentators] it borders on cliché.”).
163. The inverse has happened: In a 2013 case, for example, Judge John Gleeson cited his “fundamental policy disagreement” with certain “excessively severe” drug-ofense sentencing guidelines in exercising his legal authority to impose a lighter sentence. United States v. Diaz, No. 11-821, 2013 WL 322243, at *1 (E.D.N.Y. Jan. 28, 2013). Bracing as Judge Gleeson’s arguments are, there is nothing particularly provocative as a legal matter about a judge’s utilization of an authority, clearly recognized in Supreme Court doctrine, to downward-depart from the guidelines based on policy disagreement. Note
164. Ricardo Alonso-Zaldivar, Republicans Threaten Health Care Read-a-Thon, Newsday (Dec. 18, 2009, 1:43 PM), http://www.newsday.com/business/republicans-threaten-health-care-read-a-thon-1.1660956 (on file with the Columbia Law Review) (noting “senators usually waive” their right to have such bills read aloud on floor).
165. Niels Lesniewski, Reid, Obama Call for Senate Rule Changes to Curb Filibusters, CQ To day (Oct. 28, 2010, 4:39 PM), http://www.cq.com/doc/news-3756760?7&print=true (on file with the Columbia Law Review).
166. Walter J. Oleszek, Congressional Procedure and the Policy Process 304 (9th ed. 2014).
167. (observing holds “are a more prominent feature of today’s Senate” and quoting one senator as lamenting that holds “have come into a form of reverence which was never to be”). The hold is an informal device through which individual senators or groups of senators, whose identities may be withheld from the public, inform party leaders that they do not want a particular measure to be taken up on the floor. Id. at 256. Note
168. Sheryl Gay Stolberg & Mike McIntire, A Federal Budget Crisis Months in the Planning, N.Y. Times (Oct. 5, 2013), http://www. nytimes.com/2013/10/06/us/a-federal-budget-crisis-months-in-the-planning.html?pagewanted=all (on file with the Columbia Law Review) (reviewing this campaign).
169. David E. Pozen, Self-Help and the Separation of Powers, 124 Yale L.J. 2, 39– 46 (2014) [hereinafter Pozen, Self-Help] (discussing these tactics and pressure they have placed on separation-of-powers conventions). Conceivably, a President could retaliate against Congress through obstructionist uncivil obedience of her own, as by vetoing every bill that crosses her desk until Congress changes some preexisting law or policy. Note
170. supra notes 8–11 and accompanying text (explaining civil disobedience is widely understood to include direct and indirect variants); supra notes 45–46 and accompanying text (extending this distinction to uncivil obedience). In late 2013, minority-party senators’ continual use of the filibuster precipitated filibuster reform, unintentionally generating the sort of change that direct uncivil obedience seeks. Note
171. Jeremy W. Peters, In Landmark Vote, Senate Limits Use of the Filibuster, N.Y. Times (Nov. 21, 2013), http://www.nytimes.com/2013/11/22/us/politics/reid-sets-in-motion-steps-to-limit-use-of-filibuster. html (on file with the Columbia Law Review) (explaining Senate Democrats voted to end use of filibuster for executive branch nominees and non-Supreme-Court judicial branch nominees).
172. Michael Cabanatuan et al., A Million Say: Let Us All Stay/Historic Day: Across the Nation, a Rallying Call for Immigrants, S.F. Gate (May 2, 2006, 4:00 AM), http://www.sfgate.com/news/article/a-million-say-let-us-all-stay-historic-day-2519475.php (on file with the Columbia Law Review) (describing this protest as “nation’s largest coordinated demonstration since the war in Vietnam”).
173. Anita Hamilton, A Day Without Immigrants: Making a Statement, Time (May 1, 2006), http://content.time.com/time/nation/article/0,8599,1189899,00.html (on file with the Columbia Law Review) (discussing protest’s economic impacts).
174. This performance of law-following, however, was itself an admission of systematic law-breaking. Undocumented workers were not truly complying with laws prohibiting their employment, or they would not have held jobs in the first place. It is necessary to isolate the one-day protest as the relevant time period, then, to appreciate its character as direct uncivil obedience. Note
175. supra note 11 and accompanying text (noting potential blurriness of this distinction in civil disobedience context). We speculate that extreme indirectness is more likely to occur with civil disobedience than with uncivil obedience. The idea that law-breaking can be an expressive, reformist tactic is fairly well understood. The idea of law-following as such a tactic is less familiar. For those who seek to protest a certain law or policy by assiduously adhering to a distant law or policy, there is an added risk that the novelty of their approach will distract from, rather than amplify, their critical message. Lying down in the middle of traffic (unlawfully) and driving fifty-five miles per hour on the freeway (lawfully) are both extremely indirect means to protest a war. Only the latter tactic, however, seems not just attenuated but incoherent, implausible. Note
176. supra notes 74–79 and accompanying text (discussing these proposals).
177. Brownlee, Civil Disobedience, supra note 6.
178. David Fontana & Donald Braman, Judicial Backlash or Just Backlash? Evidence from a National Experiment, 112 Colum. L. Rev. 731, 747 n.53 (2012) (“The hierarchical-individualist worldview tends to be associated with the Republican Party and with those self-identifying as ‘conservative’ Note
179. The egalitarian-communitarian worldview with the Democratic Party and with those self-identifying as ‘liberal.’” (citing Dan M. Kahan, Culture, Cognition, and Consent: Who Perceives What, and Why, in Acquaintance-Rape Cases, 158 U. Pa. L. Rev. 729, 784–85 & fig.7 (2010))). Note
180. Comprehensive uncivil obedience of this sort can be contrasted with the phenomenon that Bernard Harcourt calls “political disobedience.” Harcourt, supra note 30, at 47. Responding to the Occupy Wall Street movement, Harcourt recently proposed this term to capture a species of disobedience that resists not just a condemned law or policy but “the very way in which we are governed.” Id. Political disobedience rejects “the structure of partisan politics, the demand for policy reforms, the call for party identification.... It turns its back on the political institutions and actors who govern us.”Note
181. We find it difficult to envision uncivil obedience operating on such a model, if for no other reason than its painstaking concern for legal detail. Uncivil obedience’s strategic adherence to and reliance on the formal legal system implies that its rejection of existing political structures will never be quite so profound or so radical. Political disobedience “refuses to play the game.” Id. at 59. Uncivil obedience, even on a comprehensive scale, plays it with extreme dexterity. Note
182. The horizontal separation of powers across the branches of the federal government is much less fecund in this regard. Although it is possible to imagine Congress responding to a disagreeable Supreme Court ruling by passing new legislation that technically comports with the terms of the ruling but is widely understood as an efort to subvert its substance, actual cases of such legislative uncivil obedience appear to be rare at best. Note
183. Robert A. Schapiro, Polyphonic Federalism: Toward the Protection of Fundamental Rights (2009)
184. Jessica Bulman-Pozen, Partisan Federalism, 127 Harv. L. Rev. 1077 (2014)
185. Heather K. Gerken, The Supreme Court, 2009 Term—Foreword: Federalism All the Way Down, 124 Harv. L. Rev. 4 (2010)
186. Roderick M. Hills, Against Preemption: How Federalism Can Improve the National Legislative Process, 82 N.Y. U. L. Rev. 1 (2007)
187. Cristina M. Rodríguez, The Significance of the Local in Immigration Regulation, 106 Mich. L. Rev. 567 (2008).
188. Jessica Bulman-Pozen, From Sovereignty and Process to Administration and Politics: The Afterlife of American Federalism, 123 Yale L.J. 1920 (2014).
189. Jessica Bulman-Pozen & Heather K. Gerken, Uncooperative Federalism, 118 Yale L.J. 1256, 1278–80 (2009) (arguing certain state responses to USA PATRIOT Act were “akin to civil disobedience”).
190. supra notes 36–38 and accompanying text.
191. Amelia Thomson-DeVeaux, Oklahoma’s Abortion Battle Goes National, Am. Prospect (Oct. 30, 2013), http://prospect.org/article/oklahomas-abortion-battle-goes-national (on file with the Columbia Law Review) (describing these five state laws as “part of the larger cascade of abortion restrictions that have swept the country in the past three years”).
192. Boonstra, supra note 37, at 18–21.
193. (“These restrictions are profered, although exclusively by abortion opponents, in the purported interest of protecting women’s health and safety. According to antiabortion activists, undergoing an abortion using a protocol other than that approved by the FDA... is a ‘prescription for disaster.’”).
194. Brief for Petitioners at 14–15, Arizona v. United States, 132 S. Ct. 2492 (2012) (No. 11-182), 2012 WL 416748 (“Throughout the legislative process..., S.B. 1070 was revised to clarify and reinforce its express adoption of federal immigration standards, and the necessity that it be enforced in conformity with those standards.”).
195. Arizona, 132 S. Ct. at 2497–98 (describing S.B. 1070).
196. Jessica Bulman-Pozen, Federalism as a Safeguard of the Separation of Powers, 112 Colum. L. Rev. 459, 490–91 (2012) (explaining Arizona’s contention “that the federal executive is betraying Congress by underenforcing the federal immigration laws”).
197. This argument against preemption became known as the “mirror-image theory.”
198. Margaret Hu, Reverse-Commandeering, 46 U.C. Davis L. Rev. 535, 539 n.7 (2012). The theory’s basic claim, in the words of its architect, is that “[s]tate governments possess the authority to criminalize particular conduct concerning illegal immigration, provided that they do so in a way that mirrors the terms of federal law.” Kris W. Kobach, Reinforcing the Rule of Law: What States Can and Should Do to Reduce Illegal Immigration, 22 Geo. Immigr. L.J. 459, 475 (2008).
199. Katherine T. Vukadin, Obamacare Interrupted: Obstructive Federalism and the Consumer Information Blockade 26–29 (July 27, 2014) (unpublished manuscript), available at http://ssrn.com/abstract=2472594 (on file with the Columbia Law Review) (cataloging tactics used to burden navigators)
200. Nicholas Kusnetz, Obamacare’s Hidden Battle: Insurance Agents Push State Regulation of Guides to New Marketplaces, Ctr. for Pub. Integrity (Aug. 9, 2013, 5:00 AM), http://www.publicintegrity.org/2013/08/09/13144/obamacares-hidden-battle-insurance-agents-push-state-regulation-guides-new (on file with the Columbia Law Review) (“At least sixteen states have passed navigator laws since 2012....”).
201. Kusnetz, supra note 123 (quoting numerous state sponsors who stress “[i]nsurance has long been the realm of the states” and who “maintain that these laws simply establish state oversight and ensure that consumers will be protected from unscrupulous or uninformed navigators”). Note
202. In a similar fashion, state legislatures have challenged women’s exercise of abortion rights by enacting TRAP (Targeted Regulation of Abortion Providers) laws that impose onerous licensing requirements on abortion facilities. States mandate specific physical dimensions for procedure rooms, hallways, and janitors’ closets; require hands-free sinks and complex ventilation systems; and impose design standards for parking lots and covered entrances. Note
203. Rachel Benson Gold & Elizabeth Nash, TRAP Laws Gain Political Traction While Abortion Clinics—and the Women They Serve—Pay the Price, Guttmacher Pol’y Rev., Spring 2013, at 7 (summarizing and criticizing this trend). These laws are justified by proponents as health and safety regulations of the sort the Supreme Court has upheld, Note
204. Mazurek v. Armstrong, 520 U.S. 968 (1997) (per curiam) (upholding state law requiring that abortions be performed by licensed physicians), even though the requirements imposed on abortion providers are significantly more exacting than those imposed on other medical facilities and the laws are widely understood to undermine and signal opposition to—without directly flouting—the constitutional right to abortion. Note
205. Editorial, Virginia’s Abortion Assault Claims a Victim, Wash. Post (Apr. 26, 2013), http://wapo.st/183RdOT (on file with the Columbia Law Review) (characterizing Virginia’s TRAP law as anti-abortion “ideological crusade masquerading as concern for public health”). Note
206. Cf. supra notes 53–54 and accompanying text (explaining evasion cannot constitute uncivil obedience). Note
207. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 877–78 (1992) (joint opinion of O’Connor, Kennedy & Souter, JJ.).
208. At this writing, Oklahoma’s medication-abortion law has been enjoined, while Ohio’s, North Dakota’s, and Texas’s have been upheld and a challenge to Arizona’s is pending. Planned Parenthood of Greater Te x. Surgical Health Servs. v. Abbott, 748 F. 3d 583, 605 (5th Cir. 2014)
209. Planned Parenthood Sw. Ohio Region v. DeWine, 696 F. 3d 490, 516–18 (6th Cir. 2012)
210. MKB Mgmt. Corp. v. Burdick, 855 N.W.2d 31, 32 (N.D. 2014); Cline v. Okla. Coal. for Reprod. Justice, 313 P.3d 253, 262 (Okla. 2013)
211. Planned Parenthood Ariz., Inc. v. Humble, 753 F. 3d 905, 918 (9th Cir. 2014) (instructing district court to preliminarily enjoin Arizona’s law). The Fifth Circuit recently upheld Te xas’s TRAP law.
212. Planned Parenthood of Greater Te x. Surgical Health Servs., 748 F. 3d at 590–600 (upholding admitting privileges requirement).
213. Arizona v. United States, 132 S. Ct. 2492 (2012). We return to the Arizona case infra notes 191–200 and accompanying text.
214. supra notes 12–14, 51–54 and accompanying text (explaining these points).
215. Kathleen M. Sullivan, The Supreme Court, 1991 Te rm—Foreword: The Justices of Rules and Standards, 106 Harv. L. Rev. 22, 58 (1992).
216. Scott Dodson, The Complexity of Jurisdictional Clarity, 97 Va. L. Rev. 1, 16 (2011) (using similar speed-limit examples to illustrate rules–standards distinction)
217. Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 Duke L.J. 557, 560 (1993) (same)
218. Russell B. Korobkin, Behavior Analysis and Legal Form: Rules vs. Standards Revisited, 79 Or. L. Rev. 23, 23 (2000) (same).
219. Sullivan, supra note 131, at 58 n.231 (citing Margaret Jane Radin, Presumptive Positivism and Tr ivial Cases, 14 Harv. J.L. & Pub. Pol’y 823, 828–32 (1991))
220. Richard H. Fallon, “The Rule of Law” as a Concept in Constitutional Discourse, 97 Colum. L. Rev. 1, 49 (1997) (“[A]s is well recognized, ‘rules’ and ‘standards’ do not so much define a dichotomy as reflect ranges along a continuum.”).
221. Cass R. Sunstein, Problems with Rules, 83 Calif. L. Rev. 953, 992 (1995).
222. Dodson, supra note 133, at 17.
223. supra notes 32–33, 65 and accompanying text (explaining work to rule)
224. David Luban, Misplaced Fidelity, 90 Te x. L. Rev. 673, 688 (2012) (book review) (observing work to rule is efective “because in the real world we expect people to make the innumerable minor adjustments that rules cannot capture”). In this sense, the use of the word “rule” in the label “work to rule” is entirely appropriate.
225. supra note 67 and accompanying text (describing Boyters’ protest against marriage tax penalty).
226. supra notes 96–102 and accompanying text (considering systematic Senate obstructionism as form of uncivil obedience).
227. supra notes 1–4, 47–48 and accompanying text (discussing this protest).
228. Seana Valentine Shifrin, Inducing Moral Deliberation: On the Occasional Virtues of Fog, 123 Harv. L. Rev. 1214, 1217 (2010).
229. (arguing relatively opaque and moralistic idiom of standards induces deliberation).
230. Cf. Eric A. Posner, Deference to the Executive in the United States After September 11: Congress, the Courts, and the Office of Legal Counsel, 35 Harv. J.L. & Pub. Pol’y 213, 220 (2012) (“The legal landscape is a complex mix of rules and standards, which often overlap. Drivers must obey both traffic rules like the speed limit and trafic standards like laws against reckless driving and tort norms against negligent driving.”). On the potential role of “abuse of right” as a super-standard proscribing incivility
231. infra Part III.B.1.
232. Minn. Stat. Ann. § 609.74(2) (West 2009) (defining public nuisance to include intentionally “interfer[ing] with” or “obstruct[ing]” “any public highway or right-of-way”)
233. Utah Code Ann. § 76-9-102(1)(b)(iv) (LexisNexis 2013 & Supp. 2014) (defining disorderly conduct to include “obstruct[ing] vehicular or pedestrian trafic” with “inten[t] to cause public inconvenience, annoyance, or alarm”). Other jurisdictions, in contrast, limit the ofenses of disorderly conduct and public nuisance to a distinct set of enumerated behaviors or to the creation of hazardous conditions.
234. Tex. Penal Code Ann. § 42.01 (West 2013 & Supp. 2014) (restricting definition of “[d]isorderly [c]onduct” to enumerated behaviors)
235. Tex. Civ. Prac. & Rem. Code Ann. §§ 125.062–.063 (West 2011) (limiting “public nuisance” to “continuously or regularly associat[ing] in gang activities” or habitually using particular location “for engaging in gang activity”). In a much-publicized 2011 incident, a Utah man who paid a disputed bill in pennies was cited for disorderly conduct—although reportedly for dumping thousands of coins over the counter and floor rather than for using pennies per se. Note
236. Eoin O’Carroll, 2,500 Pennies: Is It Legal to Pay a Bill in Pennies?, CSMonitor.com (June 6, 2011, 1:01 PM), http://www.csmonitor.com/Business/2011/0606/2-500-pennies-Is-it-legal-to-pay-a-bill-in-pennies (on file with the Columbia Law Review).
237. Just consider the potential costs to personal freedom and public discourse of maintaining an open-ended (though not unconstitutionally vague) prohibition on disorderly conduct.
238. Frederick Schauer, The Convergence of Rules and Standards, 2003 N.Z. L. Rev. 303, 312–15 [hereinafter Schauer, Convergence] (cataloging “rule-avoidance strategies”).
239. Lenox Educ. Ass’n v. Labor Relations Comm’n, 471 N.E.2d 81, 82–83 (Mass. 1984) (holding “concerted refusal by public school teachers to perform services
240. customarily performed by teachers generally, but not expressly described in their most recent collective bargaining agreement,” constituted unprotected strike)
241. Jeld We n Corp., Case 9-CA-28831, 1992 WL 83506, at *1–*2 (NLRB Office of Gen. Counsel Feb. 4, 1992) (finding work-to-rule action, in which employees “strictly adher[ed] to Employer instructions,” constituted unprotected slowdown).
242. Riverside Cement Co., 296 N.L.R.B. 840, 841 (1989) (stating, in decision for employees who alleged unlawful retaliation for engaging in work to rule, “[w]here an action is voluntary, the concerted refusal by employees to perform that action is a protected concerted activity and does not constitute an unlawful partial strike”).
243. Boyter v. Comm’r, 668 F. 2d 1382, 1388 (4th Cir. 1981). Without expressing a view on the merits, the panel remanded the case to the tax court “to determine whether the divorces, even if valid under Maryland law, are nonetheless shams and should be disregarded for federal income tax purposes for the years in question.” Id. When this happened, the Boyters divorced for a final time without remarrying, vowing to remain divorced until the law was changed. Graetz, supra note 67, at 37. Note
244. Schauer, Convergence, supra note 146, at 311–21 (hypothesizing general tendency for rules and standards to converge)
245. Pierre Schlag, Rules and Standards, 33 UCLA L. Rev. 379, 428–29 (1985) (noting “tendency of rules to evolve or degenerate... into standards, and standards to evolve or degenerate into rules”). When standards become “rulified” over time through the eforts of interpreters and enforcers to provide more concrete guidance—so that, for example, motorists come to learn that driving under sixty-five miles per hour in dry weather will be deemed to comply with a directive to “drive safely”—opportunities for uncivil obedience may reemerge. Note
246. Coinage Act, 1971, c. 24, § 2(1d) (U.K.). For similar rules, see, for example, Currency Act 1965 (Cth) s 16(1) (Austl.) (restricting ability to tender payment using coins of various denominations); Currency Act, R.S.C. 1985, c. C-52, § 8 (Can.) (same). The United States Senate’s new limitations on the filibuster provide another example of a more fine-grained set of rules adopted to counteract uncivilly obedient uses of the prior regulations. See supra note 102 (describing this development). Note
247. Dodson, supra note 133, at 16 (summarizing literature). Conversely, standards are often praised for, among other things, being easier to craft and fairer as applied to particular cases. Id. at 17. Note
248. The United Kingdom’s bar on payments in bronze coins exceeding twenty pence, for example, knocks out not only disruptive tax protests but also innocent attempts by children to empty their piggy banks at the candy store. Note
249. Vaughan Lowe, The Politics of Law-Making: Are the Method and Character of Norm Creation Changing?, in The Role of Law in International Politics 207, 212–21 (Michael Byers ed., 2000) (defining “interstitial norms” as norms that lack “independent normative charge of their own” but instead “direct the manner in which competing or conflicting norms that do have their own normativity should interact in practice,” and citing abuse of right as prominent example). Note
250. For useful surveys
251. Council of Europe, Abuse of Rights and Equivalent Concepts (1990), and Michael Byers, Abuse of Rights: An Old Principle, A New Age, 47 McGill L.J. 389 (2002). The doctrine has been substantially codified in European domestic systems but remains largely uncodified in international law. Note
252. Alexandre Kiss, Abuse of Rights, in 1 Encyclopedia of Public International Law 4, 4 (Rudolf Bernhardt ed., 1992).
253. The term “abuse of right” is thus misleadingly narrow insofar as it suggests that only Hohfeldian rights are implicated. Cf. Joseph M. Perillo, Abuse of Rights: A Pervasive Legal Concept, 27 Pac. L.J. 37, 54 n.76 (1995) (invoking Hohfeld and noting “term ‘abuse of rights,’” as used by author and countless others, “encompasses rights, powers, privileges, immunities, etc.”). There is a long-running debate over whether the term is more deeply misleading because conduct found to be an abuse of right is best understood as never having been within the scope of the right, rather than as a genuine exercise of the right that loses protection because of its abusive character. Note
254. Marcel Planiol, Tr eatise on the Civil Law no. 871 (La. State Law Inst. Trans., 11th ed. 1939) (insisting “the right ceases where the abuse commences”)
255. Frederick Schauer, Can Rights Be Abused?, 31 Phil. Q. 225, 225–27 (1981) (exploring this puzzle).
256. A.N. Yiannopoulos, Civil Liability for Abuse of Right: Something Old, Something New..., 54 La. L. Rev. 1173, 1195 (1994)
257. Joseph Voyame et al., Abuse of Rights in Comparative Law, in Abuse of Rights and Equivalent Concepts, supra note 154, at 23, 23 (describing abuse of right as “legal mechanism designed to ease the inflexibility of the legal relationships derived from statutory, judicial or treaty rules”). Note
258. Byers, supra note 154, at 393–94 (listing Germany, Italy, and Austria as examples of legal systems that conceive of abuse of right in these terms)
259. Voyame et al., supra note 157, at 28–31 (listing Italy, Austria, and Liechtenstein as countries that continue to employ “extremely narrow” approach of making “malicious intent... the sole essential element of the abuse”). The German Civil Code, for example, provides that “‘[t]he exercise of a right is unlawful, if its purpose can only be to cause damage to another.’” Byers, supra note 154, at 393 (quoting Bürgerliches Gesetzbuch [BGB] [Civil Code] art. 226 (Ger.), translated in The German Civil Code (Simon L. Goren trans., 1994)). Note
260. Anna di Robilant, Abuse of Rights: The Continental Drug and the Common Law, 61 Hastings L.J. 687, 691 (2010) (identifying this as “classical textbook example” of abuse of right).
261. Voyame et al., supra note 157, at 31–35 (discussing countries that “define any harmful act perpetrated in the absence of legitimate interest as an abuse”).
262. Di Robilant, supra note 159, at 691–92
263. John H. Crabb, The French Concept of Abuse of Rights, 6 Inter-Am. L. Rev. 1, 9 (1964) (“When the right is being abused, the actor is technically or mechanically within the formal limits of the right accorded, and may also be acting carefully. But he is not employing the right in conformity with its nature and purpose....”).
264. Kazuaki Sono & Yasuhiro Fujioka, The Role of the Abuse of Right Doctrine in Japan, 35 La. L. Rev. 1037, 1037 (1975).
265. Byers, supra note 154, at 395 (quoting BW art. 13(2) (Neth.), translated in New Netherlands Civil Code (P.P.C. Haanappel & Ejan Mackaay trans., 1990)).
266. Voyame et al., supra note 157, at 35 (summarizing approach of countries that “apply an objective conception of abuse of rights”).
267. (quoting Louis Josserand, “the father” of modern French abuse-of-right theory).
268. di Robilant, supra note 159, at 691–92 (“At the height of nineteenth-century industrial struggles [in Europe], unions were found to abuse their right to strike when their action departed from the right’s ‘normal function.’”).
269. supra notes 96–102 and accompanying text (describing these Senate behaviors). At present, the doctrine of abuse of right “is rarely mentioned in constitutional law,” although some influential European jurists have begun to urge this change. András Sajó, Abuse of Fundamental Rights or the Difficulties of Purposiveness, in Abuse: The Dark Side of Fundamental Rights 29, 33 (András Sajó ed., 2006). Abuse of right has been “neglected” in public law, according to Sajó, because of the prominence of concepts such as “discretionary power and legislative sovereignty” and the privileging of “categorical” (rather than balancing) approaches to rights. Id. at 34. Note
270. On the notorious vagueness of abuse of right, see, for example, Robert Krieps, General Report, in Abuse of Rights and Equivalent Concepts, supra note 154, at 166, 173 (“[E]ven an experienced jurist... would be hard put to say precisely what was the criterion that determined that a right had been abused....”)
271. Voyame et al., supra note 157, at 23 (“[W]ithin most countries, there is no unanimous agreement as to the scope of the prohibition of abuse of rights; doctrinal disputes and contradictory judgments are commonplace.”).
272. Yiannopoulos, supra note 157 (reviewing history of abuse of right in Louisiana law).
273. [1895] A.C. 587 (H.L.) 594 (appeal taken from Eng.).
274. Perillo, supra note 156, at 40
275. D.J. Devine, Some Comparative Aspects of the Doctrine of Abuse of Rights, 1964 Acta Juridica 148, 164 (“Despite the lack of any general principle of abuse of right,... in some particular instances, English Law does admit what amounts to [such] a doctrine.... These instances occur mainly in the law of nuisance, conspiracy, abuse of process and qualified privilege in defamation.”)
276. di Robilant, supra note 159, at 696 (arguing abuse of right “was silently at work” in English and especially American private law during late nineteenth and early twentieth centuries, through “functional equivalents” such as “‘malice’ tests and ‘reasonable user’ rules”).
277. But cf. Perillo, supra note 156, at 69–77 (emphasizing haziness surrounding idea of good faith in American contract law and arguing abuse-of-right framework would be clearer and more constraining).
278. Email from Jody S. Kraus, Patricia D. & R. Paul Yetter Professor of Law and Professor of Philosophy, Columbia Law Sch., to authors (Sept. 8, 2014, 3:26 PM EDT) (on file with the Columbia Law Review).
279. Henry E. Smith, An Economic Analysis of Law Ve rsus Equity (Oct. 22, 2010) (unpublished manuscript), available at http://www.law.yale.edu/documents/pdf/LEO/HSmith_LawVersusEquity7.pdf (on file with the Columbia Law Review). For a similar theory of the duty of good faith in civilian contract law
280. Ejan Mackaay, The Economics of Civil Law Contract and of Good Faith 15 (2009) (unpublished manuscript), available at https://papyrus.bib.umontreal.ca/xmlui/bitstream/handle/1866/3016/Mackaay_Trebilc ock-Symposium%20_3_.pdf (on file with the Columbia Law Review) (arguing good faith supplies “residual concept with which to fashion new remedies [for opportunism] where no existing one is appropriate”).
281. Smith, supra note 174, at 33.
282. Douglas Laycock, The Triumph of Equity, 56 Law & Contemp. Probs., Summer 1993, at 53, 53.
283. Paul MacMahon, Good Faith and Fair Dealing as an Underenforced Legal Norm, 99 Minn. L. Rev. (forthcoming 2015) (manuscript at 38–49) (on file with the Columbia Law Review) (detailing “underenforcement” of duty of good faith in American contract law). Note
284. Stephen B. Burbank, The Bitter with the Sweet: Tr adition, History, and Limitations on Federal Judicial Power—A Case Study, 75 Notre Dame L. Rev. 1291, 1292 (2000) (“It did not take long after Professor Chayes celebrated the ‘triumph of equity’ in public law litigation to recognize that the announcement was premature.... (quoting Abram Chayes, The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281, 1292 (1976)))
285. Thomas D. Rowe No Final Victories: The Incompleteness of Equity’s Triumph in Federal Public Law, 56 Law & Contemp. Probs., Summer 1993, at 105, 105 (reviewing cases “demonstrating the limited nature of equity’s ‘triumph’ in federal public law” and modern Supreme Court’s “hostility toward the spirit of equity” in this area)
286. David E. Pozen, Constitutional Bad Faith, 129 Harv. L. Rev. (forthcoming 2016) (manuscript at 8–19) (on file with the Columbia Law Review) (documenting margin-alization of principle of good faith in American constitutional law)
287. Vernon Va lentine Palmer, “May God Protect Us from the Equity of Parlements”: Comparative Reflections on English and French Equity Power, 73 Tul. L. Rev. 1287, 1292 (1999) (“[Historically,] English equity was confined to private law. It had little or no public-law dimension or application....”). Abuse of right has been similarly sidelined in European countries’ domestic public law. Supra note 167.
288. Oliver E. Williamson, The Economic Institutions of Capitalism 47 (1985).
289. Smith, supra note 174, at 9.
290. supra note 148 and accompanying text (discussing this litigation).
291. supra note 147 and accompanying text (noting mixed case law in this area).
292. Robert M. Schwartz, Strikes, Picketing, and Inside Campaigns 30 (2006).
293. The empirical and methodological challenges would be formidable, but researchers could conceivably perform interjurisdictional comparisons of rates of work-to-rule actions, tax payments in coins, eforts to flood the courts, and so forth. At a minimum, surveys and laboratory experiments could be used to test perceptions of various kinds of uncivil obedience across common-law and civil-law subjects. Note
294. Cf. H.C. Gutteridge, Abuse of Rights, 5 Cambridge L.J. 22, 22 (1933) (asserting “theory of the abuse of rights... has been rejected by our [Anglo-American] law” in favor of “theory of the extent of individual rights which can only be described as the consecration of the spirit of unrestricted egoism”). Note
295. supra Part II.B.4.
296. Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142–43 (1963).
297. Hines v. Davidowitz, 312 U.S. 52, 67 (1941).
298. Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 373 (2000) (“What is a sufficient obstacle is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects.”). Note
299. S. Ct. 2492 (2012)
300. supra notes 119–122 and accompanying text (describing Arizona’s challenged immigration law).
301. supra note 122 and accompanying text (explaining “mirror-image theory”).
302. Arizona, 132 S. Ct. at 2522 (Scalia, J., concurring in part and dissenting in part)
303. (“[T]o say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind.”).
304. (“Arizona law would interfere with the careful balance struck by Congress with respect to unauthorized employment of aliens.”).
305. State laws touching on immigration and foreign afairs have been invalidated on grounds of field, as well as conflict, preemption. In Arizona, the Supreme Court invoked both field and conflict preemption, even, oddly enough, with regard to the same provision of the state law.
306. (noting certain “specific conflicts between state and federal law simply underscore the reason for field preemption”).
307. supra note 121 and accompanying text (reviewing Arizona’s argument).
308. Adam B. Cox, Enforcement Redundancy and the Future of Immigration Law, 2012 Sup. Ct. Rev. 31, 33 (arguing Arizona “endors[es] the idea that immigration law is centrally the product of executive ‘lawmaking’ that bears little relation to immigration law on the books”). Similar reasoning appeared in Buckman Co. v. Plaintifs’ Legal Committee with respect to state tort law. 531 U.S. 341 (2001). The Buckman Court emphasized that “the federal statutory scheme amply empowers the FDA to punish and deter fraud against the Administration,” and held that the FDA’s discretion in exercising this authority amounted to part of the federal law bearing preemptive effect. Id. at 348. Note
309. Wyeth v. Levine, 555 U.S. 555, 583 (2009) (Thomas, J., concurring in the judgment) (“I have become increasingly skeptical of this Court’s ‘purposes and objectives’ pre-emption jurisprudence. Under this approach, the Court routinely invalidates state laws based on perceived conflicts with broad federal policy objectives, legislative history, or generalized notions of congressional purposes that are not embodied within the text of federal law.”) Note
310. Ernest A. Young, Executive Preemption, 102 Nw. U. L. Rev. 869, 871 (2008) (contending preemption based on agency activity “seem[s] to shift preemptive authority from Congress to the agency—a result that contravenes both the text of the Supremacy Clause and the structural safeguards of federalism and separation of powers”).
311. As a growing literature emphasizes, there are many reasons one might welcome state dissent from federal policy and accordingly be wary of “civilizing” reforms.
312. Bulman-Pozen & Gerken, supra note 114, at 1284–94 (identifying potential benefits of “uncooperative federalism”)
313. Hills, supra note 112, at 4 (proposing “often competitive interaction between the levels of government” can make “Congress a more honest and democratically accountable regulator of conduct throughout the nation”)
314. Ernest A. Young, The Rehnquist Court’s Two Federalisms, 83 Te x. L. Rev. 1, 130–34 (2004) (arguing limiting federal preemption of state law would advance values such as citizen participation and deliberation).
315. Cf. supra note 62 (discussing diferent types of environments in which uncivil obedience may occur).
316. Robert C. Ellickson, Order Without Law 167–78 (1991) (defining close-knit groups as ones in which “informal power is broadly distributed among group members and the information pertinent to informal control circulates easily among them,” and arguing their members will tend to develop and maintain welfare-enhancing norms of cooperation)
317. Lisa Bernstein, Opting Out of the Legal System: Extralegal Contractual Relations in the Diamond Industry, 21 J. Legal Stud. 115, 140 (1992) (discussing importance of “geographical concentration, ethnic homogeneity, and repeat dealing” for emergence of reputational norms).
318. Lior Jacob Strahilevitz, Social Norms from Close-Knit Groups to Loose-Knit Groups, 70 U. Chi. L. Rev. 359, passim & 365 n.31 (2003) (exploring conditions under which cooperative norms can arise in non-close- knit settings and positing that members’ ability to monitor noncooperation and communicate about each other’s reputations matters more than group size per se).
319. Ellickson, supra note 202, at 4 (“Neighbors in fact are strongly inclined to cooperate, but they achieve cooperative outcomes not by bargaining from legally established entitlements,... but rather by developing and enforcing adaptive norms or neighborliness that trump formal legal entitlements.”)
320. Eric A. Posner, Law and Social Norms 12 (2002) (“[T]hat people do not rely on the law to solve day-to-day cooperative problems is clear from both formal research... and casual empiricism.”).
321. supra notes 34–35, 67, 74–79 and accompanying text (presenting these examples).
322. U.S. Senate, Citadel, https://www.senate.gov/reference/reference:item/Citadel.htm (on file with the Columbia Law Review) (last visited Mar. 25, 2015) (crediting William S. White’s 1957 book The Citadel with “populariz[ing] the idea of the Senate as a ‘gentlemen’s club’”).
323. Sarah Binder, Through the Looking Glass, Darkly: What Has Become of the Senate?, Forum: J. Applied Res. Contemp. Pol., Dec. 2011, art. 2, at 1, 1.
324. (discussing breakdown of comity in Senate).
325. supra notes 96–102 and accompanying text (discussing senatorial uncivil obedience).
326. supra notes 53–56 and accompanying text (noting possible formal and informal responses to uncivil obedience).
327. On the varieties of informal sanctions that may be applied
328. Richard A. Posner & Eric B. Rasmusen, Creating and Enforcing Norms, with Special Reference to Sanctions, 19 Int’l Rev. L. & Econ. 369, 370–72 (1999) (cataloging “sanctions that enforce [social] norms”).
329. Caterpillar, Inc., 322 N.L.R.B. 674 (1996) (discussing supervisor’s informal and formal retaliation against employees for engaging in protected work-to-rule behaviors).
330. Toni M. Massaro, Shame, Culture, and American Criminal Law, 89 Mich. L. Rev. 1880, 1916 (1991) (“Informal sanctions appear to work best within relatively bounded, close-knit communities, whose members ‘don’t mind their own business’ and who rely on each other.”).
331. “Inclusive,” “soft,” or “incorporationist” positivism, in contrast, holds that the existence and content of law may depend on moral principles insofar as they are explicitly or implicitly incorporated into a society’s rule of recognition.
332. Andrei Marmor, Exclusive Legal Positivism, in The Oxford Handbook of Jurisprudence and Philosophy of Law 104 (Jules L. Coleman & Scott Shapiro eds., 2002) (comparing exclusive and inclusive legal positivism)
333. Frederick Schauer, Formalism, 97 Yale L.J. 509, 510 (1988) (defining formalism as decision making constrained by “specific linguistic formulation of a rule”). Our aim in this paragraph and the next is to convey the basic sense in which uncivil obedience may be facilitated by legal formalism and positivism. There are countless jurisprudential nuances that we gloss over in the effort to offer a succinct statement of the issue.
334. Simon, supra note 32, at 79–85 (proposing “substantivism” as umbrella term for all conceptions of law that reject core premises of positivism). Dworkin’s notion of “law as integrity” is developed in Ronald Dworkin, Law’s Empire 176–224 (1986).
335. This proposition is vigorously disputed by numerous philosophers.
336. Frederick Schauer, Official Obedience and the Politics of Defining “Law,” 86 S. Cal. L. Rev. 1165, 1167 n.10 (2013) (collecting sources).
337. Markovits, supra note 9, at 1898–901 (reviewing prominent eforts to “determine[] the metes and bounds of justified liberal disobedience”).
338. Rawls, supra note 6, at 364.
339. Cass R. Sunstein, Why Societies Need Dissent (2003) (arguing dissent performs variety of valuable social functions).
340. Russell Kirk, The Conservative Mind: From Burke to Elliot 38 (7th rev. ed. 2001) (reading Burke to teach “even the most intelligent of men cannot hope to understand all the secrets of traditional morals and social arrangements; but we may be sure that Providence, acting through the medium of human trial and error, has developed every hoary habit for some important purpose”). Note
341. supra notes 96–102 and accompanying text (describing these transformations). Those who believe that unwritten “constitutional conventions” tend to promote stability, ef ciency, or fairness in a political system might be similarly concerned about such intragovernmental uncivil obedience. Note
342. Pozen, Self-Help, supra note 101, at 27–48 (explaining constitutional conventions and their application to U.S. context).
343. supra Part III.B.1 (exploring relationship between abuse of right and uncivil obedience).
344. We say “presumptive” because in any given case a wide range of factors, including the justness of the uncivil obedient’s cause, may overcome any such qualms about her tactics. Note
345. By “public law values,” we mean to invoke values such as “openness, fairness, participation, impartiality, accountability, honesty and rationality” that are widely understood to reinforce the rule of law and to reflect core goals of constitutional and administrative regulation. Michael Taggart, The Province of Administrative Law Determined?, in The Province of Administrative Law 1, 3 (Michael Taggart ed., 1997). Note
346. supra Parts III.A–B (examining possible legal responses to uncivil obedience).
347. Cf. supra notes 42–44 and accompanying text (discussing relationship between communicativeness and candor in practice of uncivil obedience).
348. supra Part II.B.3 (explaining direct–indirect distinction).
349. Baker, supra note 83, at 30.
350. Adam Shinar, Dissenting from Within: Why and How Public Officials Resist the Law, 40 Fla. St. U. L. Rev. 601, 650 (2013) (“Overt resistance is likely to be better than covert resistance at promoting dialogue and debate....”).
351. David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency 42 (2006). Dyzenhaus expressly ties his idea of grey holes to executive officials, but the central insights can be generalized to other actors.
352. David Dyzenhaus, Schmitt v. Dicey: Are States of Emergency Inside or
353. Outside the Legal Order?, 27 Cardozo L. Rev. 2005, 2026 (2006) (arguing “grey holes are more harmful to the rule of law than [are] black holes” because only former mask their “lack of substance”).
354. supra notes 28–30 and accompanying text (discussing these accounts of civil disobedience).
355. supra notes 53–54 and accompanying text (noting possibility of finding of illegality, notwithstanding uncivil obedient’s genuine, well-founded belief in legality of her conduct).
356. supra Part III.C (discussing informal regulation of uncivil obedience).
357. Cf. Brownlee, Communicative Aspects, supra note 11, at 181 (“[T]he legal protester will not be called upon by the law to defend her decision to protest. This means that whatever conscientious intentions underpin her protest need not meet the same standards as those that distinguish serious civil disobedients from ordinary ofenders.”). Note
358. Brownlee, Civil Disobedience, supra note 6 (noting one harm “usually identified with civil disobedience” is that it “can encourage more than just other civil disobedience; it can encourage a general disrespect for the law”). Note
359. supra Parts II.B.2, II.B.4 (describing uncivil obedience by government of-cials and institutions).
360. Rawls, supra note 6, at 373.
361. Markovits, supra note 9, at 1899–901 (highlighting this feature of traditional civil disobedience and citing American civil rights movement as “most prominent” example) Note
362. Brownlee, Civil Disobedience, supra note 6 (“The historical paradigms of Gandhi, King, the sufragettes, and Mandela are representative of that kind of civil disobedience which aims to guarantee legal protection for the basic rights of a specific constituency.”). Note
363. Curtis A. Bradley & Trevor W. Morrison, Presidential Power, Historical Practice, and Legal Constraint, 113 Colum. L. Rev. 1097, 1140 (2013) (noting “pervasive existence of public ‘law talk’” in United States, in which government officials “almost always endeavor[] to argue that [their] actions are lawful”).
364. supra note 99 and accompanying text (noting role of “holds” in recent senatorial uncivil obedience).
365. supra Part II.B.4 (considering these examples).
366. Cf. supra notes 154–155 and accompanying text (describing related concept of abuse of right in international law).
367. Recent legal scholarship has complicated this association in other respects.
368. Heather K. Gerken, Dissenting by Deciding, 57 Stan. L. Rev. 1745 (2005) (arguing disaggregated institutions enable minorities to constitute local majorities and thereby dissent through governance decisions)
369. Shinar, supra note 228 (exploring resistance by government officials to laws and policies they are responsible for implementing).
370. supra notes 233–236 and accompanying text (discussing limited liability that attends uncivil obedience).
371. James C. Scott, Domination and the Arts of Resistance 105 (1990) [hereinafter Scott, Arts of Resistance].
372. James C. Scott, Weapons of the Weak 26 (1985) (suggesting in some cases “symbolic compliance” with despised norm may be maximized in order to minimize “actual” compliance).
373. Scott, Arts of Resistance, supra note 247, at 105
374. Saul D. Alinsky, Rules for Radicals: A Practical Primer for Realistic Radicals 128 (1971) (“The fourth rule [of power tactics] is: Make the enemy live up to their own book of rules. You can kill them with this, for they can no more obey their own rules than the Christian church can live up to Christianity.”).
375. David S. Law & Mila Versteeg, The Evolution and Ideology of Global Constitutionalism, 99 Calif. L. Rev. 1163, 1191 (2011).
376. We bracket here many complexities regarding the precise boundaries of, and relationships between, the “first-generation” and “second-generation” concepts
377. Philip Alston & Ryan Goodman, International Human Rights 285 (2012) (observing these “two sets of rights can neither logically nor practically be separated in watertight compartments”).
378. supra notes 32–35 and accompanying text (setting out these examples).
379. Markovits, supra note 9. Markovits’s essay, which was inspired by the antiglobal-ization protests of the mid-2000s, presciently anticipated the Occupy Wall Street movement. (speculating about “growing prominence” of disobedience concerned more with democratic legitimacy and accountability than with liberal rights).
380. More specifically, democratic disobedience, “when it is justified, pursues processes rather than outcomes, employs coercion only in destabilizing ways, and serves momentary coalitions rather than entrenched constituencies.”
381. Piven & Cloward, Weight of the Poor, supra note 34 (suggesting each of these objectives).
382. Soc’y for Personality & Soc. Psychol., Are Conservatives More Obedient and Agreeable than Their Liberal Counterparts?, ScienceDaily (June 27, 2014), http://www.sciencedaily.com/releases/2014/06/140627113048.htm (on file with the Columbia Law Review) (“Historically, conservatives are viewed as being more obedient and more respectful of leadership. Whereas, liberals tend to be associated with protests and blatant acts of rebellion.”).
383. Bob Altemeyer, The Authoritarian Specter 6–49 (1996)
384. reviewing evidence that “right-wing authoritarians,” who tend to be conservative, exhibit high degree of submission to established authorities
385. George Lakof, Moral Politics: How Liberals and Conservatives Think 65–140 (2d ed. 2002) (arguing conservatives have “strict father” morality while liberals have “nurturant parent” morality)
386. Shalom H. Schwartz et al., Basic Personal Values, Core Political Values, and Voting: A Longitudinal Analysis, 31 Pol. Psychol. 421, 444–46 (2010) (finding people who endorse values of conformity and tradition tend to be conservative).
387. Jonathan Haidt, The New Synthesis in Moral Psychology, 316 Science 998, 1001 (2007). According to Haidt: The current triggers of the Authority/subversion foundation... include anything that is construed as an act of obedience, disobedience, respect, disrespect, submission, or rebellion, with regard to authorities perceived to be legitimate.... [I]t is much easier for the political right to build on this foundation than it is for the left, which often defines itself in part by its opposition to hierarchy, inequality, and power. Note
388. Jonathan Haidt, The Righteous Mind: Why Good People Are Divided by Politics and
389. Religion 168 (2013) [hereinafter Haidt, Righteous Mind].
390. 261Katherine Beckett & Theodore Sasson, The Politics of Injustice 48 (2d ed. 2004) (“Conservatives [in the 1960s] identified the civil rights movement—and, in particular, the philosophy of civil disobedience—as a leading cause of crime.”) Note
391. Wil Mara, Civil Unrest in the 1960s: Riots and Their Aftermath 47 (2010) (“[Conservatives] have little patience for those who practice civil disobedience. In their minds breaking the law is breaking the law....”); Russell Hittinger, Resisting the Sovereign, 3 Te x. Rev. L. & Pol. Note
392. (“[T]here is almost nothing favorable to be said about civil disobedience from conservative quarters....”)
393. Abigail A. Fuller, Conflict Resolution and Conservative Ideology: The Use of Civil Disobedience by Operation Rescue (Dec. 1990) (unpublished manuscript), available at http://www.colorado.edu/conflict/full_text_search/AllCRCDocs/90-1.htm (on file with the Columbia Law Review) (stating civil disobedience “has rarely been used by conservative social movements”).
394. Lynn Robert Buzzard & Paula Campbell, Holy Disobedience: When Christians Must Resist the State 1–20 (1984) (ofering examples of civil disobedience undertaken by conservatives).
395. Cf. Robert W. Gordon, The Past as Authority and as Social Critic: Stabilizing and Destabilizing Functions of History in Legal Argument, in The Historic Turn in the Human Sciences 339, 352 (Terrence J. McDonald ed., 1996) (observing reform tactics that exploit legal system’s need for formality and generality and “employ the norms and procedures of the system against itself” may be seen as accepting, at deeper level, “ideological legitimacy of the system as a whole”).
396. Haidt, Righteous Mind, supra note 260, at 86
397. Peter DeScioli & Robert Kurzban, Mysteries of Morality, 112 Cognition 281 (2009) (discussing significance of third-party moral condemnation)
398. Dan Sperber & Nicolas Baumard, Moral Reputation: An Evolutionary and Cognitive Perspective, 27 Mind & Language 495 (2012) (discussing evolutionary and cognitive bases of humans’ desire to secure good moral reputation).
399. This hypothesis may break down at the extreme right end of the ideological spectrum, where individuals are deeply alienated from the prevailing legal order and less likely to accept law’s claim to legitimate authority.
400. While much of the social-psychological literature on morality addresses liberals and conservatives rather than Democrats and Republicans, the contemporary correlations of liberal–Democrat and conservative–Republican are sufficiently strong to apply the literature’s insights to party politics. Note
401. Alan I. Abramowitz, The Disappearing Center 139 (2010) (“The overwhelming majority of House and Senate Democrats are liberals, and the overwhelming majority of House and Senate Republicans are conservatives.”) Note
402. Robert S. Erikson et al., Public Opinion in the States: A Quarter Century of Change and Stability, in Public Opinion in State Politics 229, 238 (Jefrey E. Cohen ed., 2006) (“It is approaching common knowledge that the United States is becoming increasingly polarized in terms of the party-ideology connection.”). Note
403. supra Part II.B.4, notes 96–102 and accompanying text (exploring these developments).
404. Other examples of uncivil obedience that we have discussed, such as the speed-limit protest, are not readily identifiable in partisan or ideological terms.
405. Barbara B. LaBossiere, When the Law Is Not One’s Own: A Case for Violent Civil Disobedience, 19 Pub. Af. Q. 317, 317 (2005) (discussing “historical elements that have led to civil disobedience’s undoing in the United States”)
406. Herbert J. Storing, The Case Against Civil Disobedience, in Civil Disobedience in Focus, supra note 10, at 85, 85 (“The most striking characteristic of civil disobedience is its irrelevance to the problems of today.”).
407. Brownlee, P Civil Disobedience, supra note 6
408. “Some theorists maintain that civil disobedience is an outdated, overanalysed notion that little reflects current forms of political activism....”).
409. Cf. Markovits, supra note 9, at 1901 (“The civil rights movement—and the rights revolution more generally—represented the heyday of liberal disobedience.”). Note
410. Developing this argument and citing protests against Vietnam War, nuclear weapons, and globalization as examples of issues not amenable to liberal disobedience Note
411. Brownlee, Civil Disobedience, supra note 6 (citing environment, animal rights, nuclear disarmament, globalization, and foreign policy as issues at fore of contemporary activist agenda that do not focus on individuals’ basic rights). Note