Appearance is often given as a justification for decisions, including government decisions, but the logic of appearance arguments is not well theorized. This Article develops a framework for understanding and evaluating appearance-based justifications for government decisions. First, working definitions are offered to distinguish appearance from reality. Next, certain relationships between appearance and reality are singled out for attention. Sometimes reality is insulated from appearance, sometimes appearance helps drive reality over time, and sometimes appearance and reality collapse from the outset. Finally, sets of normative questions are suggested based on the supposed relationship between appearance and reality for a given situation. The subjects of these normative questions include aesthetics, transparency concerns, and the likelihood of a self-fulfilling prophecy. A closing section applies these ideas to prominent debates over campaign finance regulation and broken windows policing. Leading empirical studies are examined and, throughout, the Article draws from scholarship in philosophy, sociology, psychology, economics, and political science.
May 18, 2012
More from this Issue
Vol. 125 No. 7 Like many legal concepts, “private law” has recognizable referents yet eludes precise definition. Private law defines the rights and duties of individuals and private entities as they relate to one another. It stands in contrast to public law, which establishes the powers and responsibilities of governments, defines the rights and duties of individuals in relation to governments, and governs relations between and among nations. Private law includes the common law subjects that have long been central to U.S. legal education – contracts, property, and torts. But it is not limited to those subjects, nor to common law. Statutory fields such as intellectual property and commercial law fall within private law. So too do areas of law now mostly neglected in U.S. law schools, such as agency, unjust enrichment, and remedies. At a broader level, the phrase “private law” gestures toward an elusive set of distinctions between what is public and what is private. Private law is law, so government is involved, albeit in a particular way. Typically, it makes available institutions and procedures that enable individuals and entities to define their relationships and to assert and demand the resolution of claims against others. Courts are central to this framework, but so too are arbitral panels. In turn, this institutional framework builds on and partly incorporates customs and social norms pertaining to interpersonal interaction.
Vol. 125 No. 7 Courts and scholars today understand and discuss the institution of copyright in wholly instrumental terms. Indeed, given the forms of analysis that they routinely employ, one might be forgiven for thinking that copyright is nothing more than a comprehensive government-administered scheme for encouraging the production of creative expression and is therefore quite legitimately the subject matter of public law. While this instrumental focus may have the beneficial effect of limiting copyright’s unending expansion, it also serves as a source of distraction. It directs attention away from the reality that copyright is fundamentally a creation of the law and is thus endowed with a uniquely legal normativity that instrumental accounts find difficult to capture. In so doing, it also glosses over the rather crucial fact that copyright law’s basic structure is and indeed always has been that of private law.
Vol. 125 No. 7 Private law deals with the interactions of persons in society. If we think about all the effects produced by the relation between each pair of persons and then unlimited chains of such interactions – A sells Blackacre to B, who sells to C, who mortgages to D and rents to E, and so on – then prescribing results for such interactions is a potentially intractable problem. Private law would be an impossible enterprise. This is where property comes in.