Flouting the Law

Abstract

What happens when a person's commonsense view of justice diverges from the sense of justice he or she sees enshrined in particular laws? Does the perception of one particular law as unjust make an individual less likely to comply with unrelated laws? This Article advances the Flouting Thesis-the idea that the perceived legitimacy of one law or legal outcome can influence one's willingness to comply with unrelated laws-and provides original experimental evidence to support this thesis. The results suggest that willingness to disobey the law can extend far beyond the particular unjust law in question, to willingness to flout unrelated laws commonly encountered in everyday life (such as traffic violations, petty theft, and copyright restrictions), as well as willingness of mock jurors to engage in juror nullification. Finally, this Article explores the relationship between perceived injustice and flouting and offers several possible explanations, including the role of law in American popular culture and the expressive function of the law in producing compliance. I. Introduction Do ordinary citizens flout the law in response to a specific instance of perceived injustice? The idea that general lawbreaking can emerge from one unjust legal doctrine or decision has intuitive appeal. For example, Professor David Cole has argued that constitutional doctrines that allow untrammeled police discretion-such as that which led to the brutal beating of Rodney King in Los Angeles or the tragic police shooting of Amadou Diallo in New York-can undermine the public's perception of the legitimacy of law enforcement generally.1 This loss of legitimacy and distrust of the fairness of the legal system, Cole argues, can in turn lead to more widespread lawbreaking.2 The Rodney King example is instructive in this regard. In 1992, the acquittal of the four police officers who beat Rodney King touched off the worst civil unrest seen in any American city in nearly thirty years. The streets of Los Angeles became the site of chaos and lawlessness. For four days, city residents looted stores, destroyed property, assaulted and shot one another, and set buildings on fire. When it was over, more than fifty people were dead,3 nearly 12,000 people were arrested,4 and over 800 buildings were burned to the ground.5 Undoubtedly, the causes contributing to the expression of community frustration during this time were numerous and complex.6 However, there is no doubt that the perceived injustice of the acquittals of the police officers was a proximate cause of the 1992 civil unrest in Los Angeles.7 The 1992 Los Angeles example is an extreme one to be sure. At the same time, it suggests further, more general questions-questions that are at bottom empirical-about whether, and under what circumstances, citizens' perceptions of injustice lead to diminished deference to the law generally. Does perceived injustice in our legal system-whether in the form of wrongful convictions or acquittals, excessive punitive damage awards, outmoded public morals statutes, sentencing disparities between crack cocaine and powder cocaine, or mandatory minimum sentencing regimes lead to greater willingness to flout the law in the everyday lives of ordinary people? Further, assuming that this is the case, does flouting typically manifest itself not in mass unrest but in more subtle, lower-level, and harder-to-detect ways, such as littering, tax cheating, theft of services, and jury nullification? The idea that there is a relationship between perceived injustice of specific laws and diminished general compliance with the law has been either proposed or assumed by many theorists in a variety of contexts.8 For the purposes of discussion in this Article, I call this idea the Flouting Thesis. Despite its prominence, there is, however, a glaring absence of empirical evidence regarding the Flouting Thesis, which has been widely assumed but never proven.9 Investigating the possibility that lawbreaking can flow from perceived injustice is central to our understanding of how to secure citizen cooperation and compliance with legal rules, and so the lack of empirical investigation regarding the Flouting Thesis is puzzling. …

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