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launched a war on drugs aimed at reducing the consumption of regulated
narcotics that 7 percent (or 16 million) Americans now use. 18
That is a drop from the high (so to speak) in 1979 of 14 percent of the
population. We regulate automobiles to the point where the vast majority
of Americans violate the law every day. We run such a complex
tax system that a majority of cash businesses regularly cheat. 19 We
pride ourselves on our “free society,” but an endless array of ordinary
behavior is regulated within our society. And as a result, a huge proportion
of Americans regularly violate at least some law.
This state of affairs is not without consequence. It is a particularly
salient issue for teachers like me, whose job it is to teach law students
about the importance of “ethics.” As my colleague Charlie Nesson told
a class at Stanford, each year law schools admit thousands of students
who have illegally downloaded music, illegally consumed alcohol and
sometimes drugs, illegally worked without paying taxes, illegally driven
cars. These are kids for whom behaving illegally is increasingly the
norm. And then we, as law professors, are supposed to teach them how
to behave ethically—how to say no to bribes, or keep client funds separate,
or honor a demand to disclose a document that will mean that
your case is over. Generations of Americans—more significantly in
some parts of America than in others, but still, everywhere in America
today—can’t live their lives both normally and legally, since “normally”
entails a certain degree of illegality.
The response to this general illegality is either to enforce the law
more severely or to change the law. We, as a society, have to learn how
to make that choice more rationally. Whether a law makes sense depends,
in part, at least, upon whether the costs of the law, both intended
and collateral, outweigh the benefits. If the costs, intended and
collateral, do outweigh the benefits, then the law ought to be changed.
Alternatively, if the costs of the existing system are much greater than
the costs of an alternative, then we have a good reason to consider the
alternative.
PUZZLES 201