Structural Laws and the Puzzle of Regulating Behavior
Cheng, Edward K.
This Article offers a new way of thinking about over criminalization. It argues that in regulating behavior, legislatures have relied excessively on statutory prohibitions and ex post enforcement by police and prosecutors. Regulation by "fiat" alone is often inadequate; proscriptive laws need accompanying structural ones that can cabin behavior and help alter existing social norms. After developing a theoretical framework for distinguishing "fiat" from "structure," the Article tackles the puzzling question why legislatures persist in focusing almost exclusively on fiat-based measures despite the availability of more effective structural ones. The answer turns out to be surprisingly complex, ranging from institutional inertia, to attitudes about liberty, to political considerations. Applying these theoretical arguments, the Article then turns to three concrete examples: tax evasion, speeding, and music piracy. Tax evasion offers an uncommon chance to observe the successful implementation of structural laws, whereas speeding illustrates the more typical scenario in which a fixation on fiat yields low compliance rates, opportunities for arbitrary and discriminatory enforcement, and public disrespect for the law. Music piracy presents a contemporary debate at the crossroads between fiat and structure, and the Article explores the ramifications of the two choices. The Article concludes with some broader questions about the desirability and the future of structural regulation.