This week a discussion of direct and indirect regulation turned to cigarettes. The legal regulation of cigarettes turned to other regulated products and behaviors, such as New York City’s ban on trans fats and state laws requiring adults to wear seat belts. Some students supported such laws because they promote societal good or reduce societal costs. Others criticized them as unwarranted “nanny state” interference in personal decision-making. (No one argued against laws regulating the effects of second-hand smoke or requiring use of automotive restraints for young children.)
A student emailed me after class, annoyed at the inconsistency in the laws we had discussed. He made a point I have heard from many non-lawyers, although he defines his frustration more clearly than most: “If I knew nothing about math symbols, only numbers, and you told me that 2 + 2 = 4, and 4 + 3 = 7, I would quickly learn how to do similar addition problems.” He wants law to achieve the same certainty. He cited the different ways in which the law regulates trans fats, marijuana, cocaine, and heroin, alcohol, and cigarettes. He also cited seat-belt laws. He asked “So why the inconsistency in the law?” Everything on his list is capable of providing some amount of personal pleasure, can have harmful consequences for the person who engages in them, and imposes direct and indirect social costs. He did not argue a particular agenda for or against anything on his list. To someone who teaches law to college undergraduates who (mostly) will not be lawyers, his question is more profound, : “I just feel that if I were to look at 2 + 2 = 4 and 4 + 3 = 7, I should be able to figure out similar problems . . . Trans fats, no seat belts, marijuana, and cigarettes should, based on the similar facts they share, all be outlawed or all be allowed.”
Until I started to teach I never thought at length about this intense desire for legal certainty. I saw it in clients, of course, but in the context of advising them about specific problems. At big firm billable rates they did not engage me to muse about the nature of the American legal system. When surrounded by lawyers, there is a comfort level with the law’s inherent ambiguity. We spend three years in law school distinguishing this case from that case, arguing why X and X1 are materially different and why Y and Z are the same thing. Nature, training, and experience enable most lawyers to live comfortably in the gray zone.
The next day I used this topic as a springboard for discussion in the class where it began. How do my students respond to the law’s ambiguity? “That’s the way the law has to be” said the first few speakers. Another student raised his hand. “I’d like to talk more about what is legal and what is illegal, and talk less about everything else.” I walked to one end of the board and wrote “legal.” Dragging the chalk along the board I drew a line to the far end and wrote “illegal.” “Law is pretty clear at these extremes” I said. “Most of what you encounter in business will not fall at either end. It will be here.” I drew a large oval around the middle of the continuum. “This is where the questions are most interesting.” He did not appear satisfied. He wants a checklist of behaviors so he knows what will land him in jail or make him liable for someone else’s harm.
I understand his desire for certainty. We are drawn to binary solutions for complex problems. But, as I said in class, the law only becomes more complex because we humans find new, precedent-setting ways to do each other harm. Teaching law as a checklist would create greater certainty but less understanding. As frustrating as it is for many of them, I believe I serve my students better by teaching why the law is often ambiguous.
*Last semester a student who did poorly on an early exam talked to me on the eve of the second exam. “I was thinking too much about the law in black and white” he said. “For this exam I’ve learned to embrace the gray.” He did much better the second time around.