Embrace the Gray*

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.

5 thoughts on “Embrace the Gray*”

  1. I think the “grayness” of our legal system is like that on purpose, by the founders and developers of our legal system, and its ancestor – the British legal system. Many of these developers – judges and lawyers – were also founders of our democratic political system, one with many layers of checks and balances, and room for (sometimes) endless debate.

    Laws in our country are arguable and elastic on purpose so that a) they are what the People want and b) everyone gets a fair shake (though sometimes certain members of society get a more fair shake than others). If laws were not ambiguous, then a single judge could determine both guilt and punishment and removing thus democratic idea of judgment by a jury of peers.

    The same idea goes for the creation of laws in the Congress. Our legislative system is so arduous because the voice of the people must be heard amongst the debates, in simple polls or through lobbying a politician. If this system was more direct, with less debate and fights over meaning of the legislation, laws could be passed too hastily and not be in the public interest.

    I’m trying to get at Randall’s student’s point as well, Embrace the Gray, and realize that it is more a benefit for the people than a boon to society (and students of law).

  2. I agree that the “gray” in law is necessary because as society changes and evolves, so must societal institutions. The grayness in the law allows new precedent to be set as new types of cases are brought to court. Humans have the tendency to find new ways to harm one another as new technologies are developed and new mediums are found for theft, violence, harrassment, and negligence. Look at Internet law for example: the number of cyber crimes has increased exponentially, and individuals with access to the Internet experience identity theft and credit card fraud everyday because of this. Ten years ago, identity theft still existed, but definitely not to this extent. Individuals with the desire to steal, but who are afraid to risk placing a hidden camera on an ATM machine or stealing a bank card, now use the Internet to mask their identities. People find the Internet expedient for crime, because it is not as easy to get caught; however, as Internet law and identity detection develop, a new medium will perhaps be discovered for crooks and criminals to act out their inhibitions. Hence the gray, as new ways to perform criminal acts and civil transgressions are discovered, the law has to find new ways to address them.

    Sometimes, new precedent is set, not because of new technology or new crime, but because perceptions of what is acceptable and what is not acceptable often change in society. A simple example is the institution of slavery in America. Although slavery was the norm for about two hundred years since the colonization of the North American continent, today it is seen as an embarrassment in the history of this nation. A contemporary example of this trend business law is in the 1988 revision of the Lanham Act. This provision protects firms whose brand names are damaged in comparative advertising campaigns. Prior to this act, it was legal in comparative advertising to bash competitive brands. The Federal Trade Commission has also started to crack down more on false advertising recently. Last year, KFC was forced to drop a series of ads claiming that it was a healthy choice in fast food by the FTC. Each one of these ads had a disclaimer at the bottom of the screen to qualify these semi-fabricated claims. What would have passed for legitimate advertising twenty years ago is now viewed as gross misconduct towards consumers.

  3. Legal certainty is far from achievable. I believe that the two extremes of “legal” and “illegal” exist, however, simply as boundaries for the practice of the law and justice in the “middle of the continuum.”
    “No crimes were ever alike,” according to William Godwin* who wrote in the 18th century. I strongly agree with his maxim that, “Every case is a rule to itself.” If we have a “checklist of behaviors” so we “would know what will land” us in jail or make us “liable for someone else’s harm,” then according to Godwin, it would not be “real justice” to reduce “all men to the same stature” with respect to the crime committed. Instead, the “contemplation of all the circumstances of each individual case” is what achieves justice.
    Therefore, there is no white to black in the law as in legal to illegal. It all depends on the implementation of justice which is the balance that guarantees the best judgment under the rule of the law.

    * The quotes of William Godwin appear in the book ‘A Conflict of Visions’ by Thomas Sowell pg. 196-197.

  4. A legal system to guide people cannot be “black and white”, simply because it would never apply. In Mathematics you are either right or wrong. But Math is also best done by computers, calculators and robots. To attempt to define people’s actions in a cut-and-dried, right/wrong system would be ludicrous! When are people logical? Predictable? Rational? Almost Never! Since humans are not animals or robots, they are subject to emotions, whims, fantasies, feelings and everything else involved in their cerebral cortex. When an equation involving a human doesn’t add up, it is usually due to outside factors. Math cannot account for society, circumstances, or other variables. The law must be malleable so it may incorporate the very fact that humans are irrational.

  5. Although the student complaining about the ambiguity of the law makes some good points, I disagree with his statement claiming “Trans fats, no seat belts, marijuana, and cigarettes should, based on the similar facts they share, all be outlawed or all be allowed.” This is impossible. As he mentions “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,” it is important to remember that each of these areas are very different. Yes, I agree that these can all be harmful and “impose direct and indirect social costs,” but on the other hand you must also take into consideration their differences. For instances, one time not wearing your seatbelt can lead to death, while the chances of dying from eating one item of food with a minimal amount of trans fat are very slim. Because these items are in fact different and do not impact each individual in exactly the same way, it is important to embrace these differences within the law and recognize that every situation is different. The law should not be so concrete to the point where someone who has two oreos will be punished equally to someone who is using marijuana.

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