Jessica Bulman-Pozen and David Pozen (Columbia University – Law School and Columbia Law School) have posted Uncivil Obedience (Columbia Law Review, Forthcoming) on SSRN. Here is the abstract:
Scholars and activists have long been interested in conscientious law-breaking as a means of dissent. The civil disobedient violates the law in a bid to highlight its illegitimacy and motivate reform. A less heralded form of social action, however, involves nearly the opposite approach. As a wide range of examples attest, dissenters may also seek to disrupt a legal regime through hyperbolic, literalistic, or otherwise unanticipated adherence to its formal rules.
This Article asks how we might make sense of these more paradoxical protests, involving not explicit law-breaking but rather extreme law-following. We seek to identify, elucidate, and call attention to the phenomenon of "uncivil obedience." After defining uncivil obedience and describing its basic varieties and mechanisms, we explore tools that have emerged to limit its use. We explain that private law has developed more robust defenses against uncivil obedience than has public law, especially in civil law jurisdictions. We argue that the challenges uncivil obedience poses to public law values are as substantial as those posed by civil disobedience. And we suggest that uncivil obedience may be a particularly attractive tactic for ideologically conservative individuals and the contemporary Republican Party. For these reasons and others, we aim to show, uncivil obedience deserves much more of the sort of critical attention that has been afforded to civil disobedience.
Very interesting.