Adam Shinar (Harvard Law School) has posted Dissenting from Within: Why and How Public Officials Resist the Law (Florida State University Law Review, Vol. 40, Forthcoming, 2013) on SSRN. Here is the abstract:

  • This Article examines why and how public officials consciously resist the laws and policies they are in charge of implementing. The Article argues that this phenomenon is not an anomaly; it is pervasive and unavoidable, for it occurs in all government institutions and because the structures that are designed to promote compliance are the same structures that facilitate resistance.

 

  • The Article attempts to uncover the causes which render official resistance possible, arguing that resistance can be traced both to the limits inherent in the rule of law and to problems of institutional design. It then explores the strategies officials deploy to effectuate their resistance, ranging from blatant defiance to outsourcing resistance to private actors; from immunizing actions from judicial review to ordinary acts of interpretation and administrative prioritization. The Article then turns to discuss the normative implications official resistance generates. While official resistance is often portrayed as undermining law, and therefore undesirable, such a position is simplistic and ignores the benefits it entails, in particular those for triggering public discourse, unblocking political channels, and policy change. The Article also considers the ways in which official resistance can contribute to more just outcomes and more efficient regulatory arrangements. This counterintuitive conclusion should lead us to reexamine our notions of the rule of law, compliance, and obedience. Consequently, the Article advances a more nuanced approach and suggests how to take resistance into account in the ex ante design of laws and policies and in the ex post application of enforcement and monitoring measures.
 

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