Title: Taking Cues: Inferring Legality from Others' Conduct
Abstract: This article was written for a forthcoming collection on Internal Point of View in Law and Ethics. The article begins by observing that individuals - that is, those who want to comply with the law for its own sake - may be influenced by how others behave. Where the law is unclear, those who are inclined to follow the law may derive their understandings of the law, in part, from the fact that others act in certain ways without any enforcement consequences. This is true even though, for judges interpreting the law, it is relatively unimportant how those who are potentially subject to the law conduct themselves. The article then explores the implication of these premises for lawyers counseling clients about unsettled law. It suggests that, in addition to receiving a lawyer's prediction of how a high court will ultimately interpret the law or a lawyer's own opinion of what the law means, individuals might want to form their own judgment of what an uncertain law means in light of the interpretive principles that they consider important, including the legitimacy of taking cues from others. Therefore, advice about enforcement consequences - i.e., that others act in a certain way without interference by enforcement authorities - may be significant not only for the proverbial bad client who cares only about enforcement consequences but also for the law-abiding client.
Publication Year: 2006
Publication Date: 2006-11-29
Language: en
Type: article
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Cited By Count: 1
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