The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
That's the title of a very interesting forthcoming Columbia Law Review article by Jessica Bulman-Pozen and David Pozen; here's an excerpt, just to show a sense of what the article covers:
In April 1993, a group of California motorists hit the road to protest the fifty-five-miles-per-hour freeway speed limit. The motorists did not violate any laws, or even test any legal bounds. But their actions caused significant disruption and enraged people around them. What did they do? "[J]ust about the worst thing you can do to your fellow freeway drivers: They stayed within the speed limit." To challenge the fifty-five-miles-per-hour rule and encourage its repeal, the National Motorists Association members devised a peculiar form of dissent: meticulous compliance with the very law they opposed.
Scholars and activists have long been interested in conscientious and communicative breaches of law as an instrument of protest. The civil disobedient violates a legal command in a bid to register dissent and motivate reform. Yet as the freeway protest underscores, people may also seek to disrupt an existing legal regime by adhering—in a hyperbolic, literalistic, or otherwise unanticipated manner—to its formal rules.
This Article asks how we might theorize and respond to these more paradoxical challenges to the status quo. We seek to identify, define, and elucidate the phenomenon we call uncivil obedience. In important respects, uncivil obedience is the mirror image of civil disobedience. On most accounts, civil disobedience consists of an open violation of law and a willingness to submit to punishment. Uncivil obedience inverts these terms. Instead of explicit law-breaking, it involves subversive law-following. If civil disobedience is unusually deferential to legal authority, relative to ordinary unlawful conduct, uncivil obedience is unusually defiant of established social practice, relative to ordinary lawful conduct. And it carries no clear legal consequences. As the California Highway Patrol spokesman said of the speed-limit protestors, "If they're going on the freeway at 55, there's not much we can do to them."
Uncivil obedience is a recurring feature of public and private law contestation. Unlike civil disobedience, however, it is an obscure feature, a neglected category. An appreciation of its workings, this Article aims to show, offers practical and conceptual rewards for scholars, protesters, and policymakers alike. Investigating this phenomenon can help us to think through not only relatively minor examples such as the speed-limit protest but also more significant institutional conflicts, ranging from Senate filibusters to state anti-abortion measures to employee work-to-rule actions. Moreover, it can refract some light back on debates over civil disobedience….
Certain acts of protest do not involve "disobedience" in the sense of a breach of law, and yet neither are they easily accommodated within familiar models of lawful dissent. Recall the speed-limit protesters discussed in the Introduction. They were not civil disobedients. By driving fifty-five miles per hour (without occupying the breakdown lane, obstructing emergency vehicles, or violating any other relevant directives), they deliberately stayed within the limits of the law. And while abiding by the law is itself nothing special, the conspicuous law-abidingness of the motorists' action was a striking feature; it displayed an extraordinary attentiveness to the rules on the books, as against common practice and widely shared sense of desirable practice. Demonstrations, boycotts, pickets, and other traditional types of protest may conform to the law as well, but the manner in which they do so is not likewise an ironic or constitutive aspect of their resistance.
Canvassing other areas of law, we find many more examples of actors engaging in a practice that seems to be a looking-glass version of civil disobedience: challenging a legal or policy scheme by adhering, in methodical yet unexpected ways, to its formal provisions. Like the speed-limit protest, some of these examples involve hyperbolic compliance with authoritative commands. Employees with grievances occasionally use a tactic that has nearly the opposite character of walking out on the job. "Working to rule," they do exactly what they are told, adhere exactly to safety protocols, or report to and depart from the premises exactly on time. After collective bargaining between American Airlines and its pilots failed in 2012, for instance, the pilots began to file incessant—and technically mandatory—maintenance requests. Rather than violate company policies or industry regulations to make a point about their value to the airline, they complied in a rigid and highly disruptive manner.
Other examples involve maximalist uses of codified rights to "crash" or "flood" a system. In 1966, Columbia University sociologists Richard Cloward and Frances Fox Piven wrote a famous article in The Nation that called for "a massive drive to recruit the poor onto the welfare rolls" in order to "precipitate a profound financial and political crisis" that would lead to a replacement of welfare with "a guaranteed annual income and thus an end to poverty." Cloward and Piven's plan eschewed legal fraud or trickery. Instead, it sought to exploit the "vast discrepancy . . . between the benefits to which people are entitled under public welfare programs and the sums which they actually receive." If millions of eligible poor people could be mobilized to claim their statutory due, Cloward and Piven thought the welfare system would collapse, its moral and material inadequacies laid bare.
Still other examples involve the actions of government officials, including their creation of new laws. In recent years, several states have enacted legislation mandating that all medication-induced abortions adhere strictly to a regimen approved (but not required) by the Food and Drug Administration (FDA) in 2000. Evidence-based medicine generated a less onerous alternative protocol after 2000, and the vast majority of abortion providers have not followed the FDA-approved regimen for more than a decade. Although the challenge to abortion rights is clear, proponents of this legislation feign obsequiousness to federal authority, insisting that they are merely hewing to the health and safety standards established by the U.S. government….
[Likewise, m]any taxpayers and toll-payers, for instance, have communicated criticism by paying the required sum in low-denomination coins. Whereas work-to-rule provokes by fixating on the precise terms of an instruction, this tactic takes advantage of the fact that official directives invariably fail to address various matters. Under certain conditions, the resulting silences can then be filled in antagonistic yet lawful ways….
Legal provocation is not limited to actions taken by lay citizens or their lawyers. Government officials and entities can engage in it too. One virtue of the concept of uncivil obedience, in our view, is that it helps illuminate methodological continuities across public and private dissent.
We will consider the special case of subnational legislation shortly. But the most easily recognizable form of legal provocation in government may be the maximalist enforcement tactics that have been adopted by certain chief executives. Just as full compliance is not common or desirable in many areas of law, neither is full enforcement. Without a specific legislative instruction to do so, there is little reason to expect that an executive will implement any given authority or prosecute any given prohibition to a T, at the inevitable cost of depleting resources available for other responsibilities. Full enforcement, consequently, may be seen as upending rather than perfecting the existing socio-legal order.
For example, when Theodore Roosevelt became head of the New York Police Commission in the 1890s, he began to strictly enforce laws that required saloons to close on Sundays. Previously, the laws had been rarely and selectively enforced, according to Roosevelt, "to blackmail and browbeat the saloon keepers who were not the slaves of Tammany Hall." Roosevelt contended that his approach might precipitate repeal of the Sunday closing law, and furthermore "prevent the Legislature from passing laws which are not meant to be enforced." He thus instantiated President Ulysses Grant's dictum: "I know no method to secure the repeal of bad or obnoxious laws so effective as their stringent execution."
Executive nonenforcement of the law, in contrast, will not as a general matter qualify as legal provocation. In the American constitutional system, a policy of presidential nonenforcement runs straight into the Take Care Clause and its requirement "that the Laws be faithfully executed." Some believe that nonenforcement can be justified when the law at issue is clearly unconstitutional or in other circumstances. But if a policy of nonenforcement provokes, it is not because it flaunts its formal legality but rather because it flirts so brazenly with illegality. Jury nullification is similar in this regard, at least in the many jurisdictions where its lawfulness is denied by judges and other authorities. (In those jurisdictions where the jury's power to nullify is recognized in the constitution or otherwise clearly established, an explicit and reform-minded scheme of nullification—such as Paul Butler's proposal to remedy the racial impact of our drug laws—could count as uncivil obedience.)
While nonenforcement usually will not provoke in the necessary manner, practices that are similar in effect, but different in their legal posture, may do so. Consider the case of "big waiver." In recent years, the executive branch has seized on broad waiver provisions in federal statutes to dramatically alter the regulatory landscape. The No Child Left Behind Act of 2001, for instance, authorizes the Secretary of Education to "waive any statutory or regulatory requirement" of the Act, with limited exceptions. The Obama Administration has seized on this authority to grant more than forty states waivers from the Act's onerous requirements—and, in so doing, has required this supermajority of states to conform to its vision of sound educational policy. Frustrated by Congress's failure to amend No Child Left Behind, the executive has effected "nearly wholesale administrative revision" of the statute, all pursuant to the express terms of the statute. …
Finally, it bears mention that legal provocation may occur within, and not just by, institutions of government. We can see this vividly in the modern U.S. Senate. In recent years, minority-party Senators have relied on a host of procedural privileges to undermine measures that have already become law or are on course to doing so. These Senators have demanded that the entire text of lengthy bills be read aloud on the Senate floor. They have made "seemingly endless quorum calls and motions to reconsider previous votes." They have used the filibuster in a routine matter, rather than in its traditional and, in the view of many, intended capacity as "the tool of last resort." They have likewise used "holds" to stymie nominations and bills on an unprecedented scale. Together with allies in the House of Representatives, several of them have deployed still more unorthodox maneuvers in a campaign to defund "Obamacare." Although their criticisms are pitched in the language of conscience and crisis and their tactics defy longstanding conventions, the Senators who engage in these behaviors have emphasized the formal legality of their obstructionism. They have waged their campaign to undermine the majority agenda not as law-breakers but as legal mavens, devotees and defenders of the procedural rulebook….
[Conclusion:] Whatever the fate of civil disobedience, this Article has suggested that its legalistic doppelganger is alive and well—and an increasingly prominent element in American politics. Moreover, uncivil obedience may be thriving in part because of the very developments that have marginalized civil disobedience. Even as the proliferation of rights language in statutes, constitutions, and judicial decisions has limited opportunities for conscientious law-breaking in the service of basic liberties, it has simultaneously expanded opportunities for disruptive modes of adherence and implementation. The denser and more detailed the law on the books, the more rules there will be for protesters to exploit in technically valid yet subversive ways. This Article is a first pass at investigating this phenomenon. Scholars, activists, and regulators alike will need to continue the study of uncivil obedience if they wish to reckon with the full possibilities and problems of dissent in the years to come.