Laws That Are Made To Be Broken: Adjusting for Anticipated Noncompliance

This Note explores and defends a legislative strategy that has neither been clearly articulated by legal theorists nor methodically pursued by practical lawmakers. Most laws are introduced with the expectation that they will sometimes be broken, but it is generally -thought that noncompliance diminishes the utility of laws. It is possible, however, to design laws the utility of which is actually enhanced by a certain amount of noncompliance. As a corollary, it can ·be shown that it is rational, under some circumstances, for a legislature to enact laws that are not just expected but are intended to be broken with a certain frequency, by a certain portion of the population or to a certain degree. It is in this sense that the laws discussed in this Note are aptly characterized as “made to be broken.”