San Diego Law Review


Emily Sherwin

Library of Congress Authority File

http://id.loc.gov/authorities/names/n79122466.html http://id.loc.gov/authorities/names/n2001094452.html

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Rules are designed to reduce error by prescribing actions that, in the run of cases, will produce better results than the subjects of rules would obtain if they judged for themselves what to do. At the same time, rules sometimes produce errors when applied to particular cases. If the sum of error under rules is less than the sum of error rules prevent, then the rule-making authority has reason to issue "serious" rules-rules to be followed in every case. Because rules are imperfect, however, the subjects of rules do not always have good reason to follow them. This means that the authority cannot achieve all that it would like to achieve through rules unless its subjects are somehow distracted from reasoned evaluation of what they ought to do. To some extent, the authority may be able to provide such distraction through sanctions or deception, but neither will be fully effective. From these premises about the operation of legal rules, this paper draws some conservative conclusions. The most important of these is that the success of a legal system depends significantly on a habit of obedience among its subjects. The habit of obedience, however, may be disrupted if law ventures too far from prevailing practices and beliefs or upsets too many private expectations. This unsolvable problem dims the prospects for comprehensive social reform through law.

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