Form And Function In A Legal System - A General Study Part 10 pps

Thus, many formal choices are required here.Imprints and other effects of such choices will be manifest in the form and thecomplementary content of the rules.. An administrative agency t

opinions makes many of them more difficult for most addressees to apply thanwell-formed statutory rules or administrative regulations.

Law in the encapsulatory form of custom is often inappropriate, too Customarylaw takes time to evolve, whereas the nature of the cholera problem, and many otherproblems, required immediate preventative action Also, custom cannot respondquickly to developments in modern science Further, customary practices lack theauthoritative definiteness necessary for water quality standards in due form

Imprints and Other Effects of Choices within the Form of a Rule Assuming

that the legislature chooses the preceptual form of some version of a rule or rules

in which to set forth authorization of a basic regulatory program, the legislaturewill also make further choices within this form As we have seen, the features ofthe overall form of a rule: (1) are prescriptive, and directly or indirectly permit,require, prohibit, or otherwise guide action, or ordain a state of affairs, (2) havesome level of generality, (3) are definite in some degree, (4) are at least minimallycomplete in their parts, (5) are in structured relation as between parts, (6) are dulyexpressed, and (7) duly encapsulated Thus, many formal choices are required here.Imprints and other effects of such choices will be manifest in the form and thecomplementary content of the rules

An administrative agency to which the legislature delegates power to set latory standards in rules must similarly choose features of the form of such rules.The mere fact that a rule minimally qualifies conceptually as a rule, and thereforehas, for example, some level of definiteness, generality, and clarity hardly signifiesthat such minimal formal features will be appropriate for the task at hand Usually,further focused choices of formal features, with complementary content, will berequired

regu-The initial orienting choice of a law-making body to adopt a general legal policy

of cholera prevention is not itself primarily a choice of form as such Yet, this choice

of policy is of necessity a choice that must occur prior to, or simultaneously withascertaining the features of form that should define and organize the requiredrule or rules This initial policy choice will have to be made by resolving conflictsbetween health considerations on the one hand, and such other considerations ascost effectiveness, freedom to use natural water sources, and the rights of propertyowners in the watershed to use their lands Concurrently with this initial choice of

a general orienting policy, choices of constituent features within the overall form

of a rule will be required

Having selected the form of a rule as encapsulated in a statute ing, among other things, an administrative-regulatory program for controllingcholera, the New York legislators had to determine the degree of definitenessand formal features in the required law In the end, legislators decided to dele-gate the formulation of regulatory rules to a specialized administrative agency To

authoriz-Section Four: Choices of Preceptual and Related Forms 371

modern eyes, the usual rationales for such delegation were plainly applicable Such

an agency could be much closer to the problem Here, agency officials had beenaccumulating experience with the problem Hence, they could bring concentratedscientific and technological expertise to bear more readily than a legislature Bydelegating the formulation of regulatory rules to an agency, interested parties,including possible commercial and other polluters, could also participate fully inthe processes of fact-finding and rule formulation, which in turn could facilitatedissemination of the new rules, and could elicit cooperation of interested parties

In fact in New York, the administrative officials responsible for drafting rules

on water quality ultimately came to prefer a highly definite, general, and clearprimary rule Drafts of such a rule enabled administrators to focus on, deliberateover, and amend the rule as desired, in light of relevant data The choice of theform of a rule over a mere general statement of policy, and the choice of a moredefinite, general, and clear rule over one lacking these qualities, illustrate choices

of form that at least render the form and complementary content of the proposedlaw more fit objects for rational deliberation, one of many effects or imprints ofform A definitive choice rather than one that is less so, is likely to induce morecareful consideration of the question whether that choice is appropriate – a truththat applies generally to all issues as to form and content in a rule

A more definite, general, and clear rule poses fewer issues of interpretationand focuses required fact-finding prior to application Such a rule is less likely toprovoke disputes that must be resolved in court, as well In those disputes that

do go to court, such a rule will pose fewer problems of interpretation and finding The combined effects and imprints of the foregoing choices of form aresynergistic and thus exceed the mere sum of effects as taken separately

fact-Given the foregoing considerations of form, and especially given the relevantpolicy, it should be no surprise that the legislative and administrative drafters ofthe New York State Sanitary Code, after study and deliberation with regard to thescientific and technological aspects of the problem, eventually adopted a definite,general, and clear set of basic rules as the centerpiece of the regulatory program

at hand These rules included the following:

Raw water fecal coliform concentrations must be equal to or less than 20 coloniesper 100 milliliters or total coliform concentration must be equal to or less than 100colonies per 100 milliliters in at least 90 percent of measurements made over theprevious six months that the system was in operation Monitoring shall be conducted

in accordance with section 5-1.52 table 11A of this Subpart If both fecal and totalcoliform analyses are performed, the fecal coliform results will take precedence.23

Plainly, a law requiring that there be no more than “20 colonies per 100 milliliters,”would be vastly preferable to an indefinite formulation such as “no toxins in

23 N.Y Comp Codes R & Regs tit 10, §5-1.30(c)(1)(1998), as it currently reads.

unsanitary amounts.”24The imprints and effects of formal definiteness, generality,and clarity in this law synergistically enhance the objectivity of fact-finding ofadministrators who must apply such a law.

Formal definiteness and other features also leave imprints and effects that imize issues of interpretation, and in this way, facilitate efforts of administrativeaddressees and private addressees to construct pre-emptory reasons for determi-nate action under the rule Under an indefinite rule, for example, some cautiousaddressees, not wanting to risk sanctions, might not wish to exercise their fullpowers A private addressee, for example, might choose instead to discharge fewerpollutants than the law allows This could throw off a careful balance betweenbenefits and costs that law-makers intended Indeed, such an addressee mighteven incur substantially greater costs that could cause it to go out of business, or

min-at least to raise the price of any goods being made and sold

The policy content of a proposed rule may be distinctively improved throughcareful choices of appropriate generality, a formal feature that leaves its ownimprint or effect on a rule As we saw in ChapterFive, law-makers drafting aproposed rule must think through the degree of generality required by the pol-icy at hand Suppose, for example, that the generality of a related type of waterquality rule, as initially proposed, limits the discharge of pollutants within a givenwatershed area, except that the draft includes an explicit exception for Company

X which, under the terms of the proposed rule, would be allowed to dischargemore freely Here, let us assume, however, that all dischargers, including Com-pany X, fall within the policy of the proposed rule If the actions of Company Xare not rationally distinguishable from what would be the more stringently reg-ulated actions of other dischargers, due generality would, without more, requirethat the drafter abandon the exception and include Company X In the end, thescope of the duly revised rule would extend to its full policy reach Here thesynergy between due generality, a formal feature, and justified content, is alsoplain

Again, policy efficacy is not the only end at stake in these choices For example,such undergenerality as that hypothesized with regard to Company X, would notonly fail to serve policy but would also fail to treat like cases alike,25a general value

of the rule of law A general perception that an exception is unjustified would alsodiminish the legitimacy of the regulation in the eyes of addressees Choices of duegenerality can instill in addressees a sense of confidence that similarly situatedparties are being treated the same The appearance of equality and fairness is

24 40 C.F.R §131.3(b) (2002) does permit criteria to be “expressed as narrative statements,” but

pre-sumably these must be duly definite.

25Cf Thompson Water Works v Diamond, 356 N.Y.S.2d 130, 133–4 (App Div 1974) (“Plainly, the public

health should not be used as a pretext to aid one [water] supplier in competition with others to provide potable drinking water to the residents of the [v]illage ”).

Section Four: Choices of Preceptual and Related Forms 373

a factor that tends to lead addressees to recognize the rule as legitimate, andthese together tend to foster a spirit of cooperation – major contributions ofwell-designed form and content in a rule, also an additional synergy

To determine due generality of a regulatory scheme, law-makers must focus onthe scope of the regulatory policy, on the identity of possible addressees, and onthe language appropriate to name these addressees For example, the addressees

of a given water quality law inhabiting a watershed area that drains into a drinkingwater reservoir could be quite diverse These could include private individuals whomight pollute, private corporations or other entities who might pollute, and public

or private water suppliers who might pollute Sometimes, a single rule wouldjustifiably apply to all of the above addressees At other times, different rules should

be devised to apply to different types of addressees Section 5-1.30 of the New YorkState Sanitary Code applies to public suppliers of drinking water, and requires themalso to develop a filtration and disinfection system that guarantees water potability.The New York City Sanitation Code also applies to private entities who dischargepollutants into the watershed and requires them to obtain prior approval for suchdischarges The Code provides that the activities of “all persons undertaking, orproposing to undertake”26 discharges to which the Code applies “be planned,designed, scheduled, and conducted in such manner as not to constitute a source

of contamination to, or degradation of, the water supply,” and requires that anyperson undertaking such activities apply in advance to the City Department ofHealth for approval.27

Choices of internal structural form in a rule can have their own importanteffects, here, as well Internal structure orders the relations between parts of awhole For example, a state program for regulation of water quality will include

a rule that specifies water quality requirements The program may also include arule that specifies the scope of the foregoing rule If so, this latter would be a choice

in the name of structural completeness The choice of whether to make a fine forviolation automatic, rather than discretionary, is also an internal structural choice

in the sense that it is a choice about the relation within a proposed rule as betweenthe part that specifies water quality, and the part that specifies the consequences offailing to meet those requirements At the same time, this choice is also a choice ofprescriptiveness, that is, whether the fine “must” or only “may” be imposed Theends and values at stake in such structural and prescriptive choices go beyond theefficacy of the policy of cholera prevention, and include minimization of scope forofficial arbitrariness, equality before the law, and fair notice of possible adverselegal consequences – all general values of the rule of law Well-designed formalfeatures of internal structure can thus serve these values, too

26 N.Y Comp Codes R & Regs tit 10, §128-1.4(a)(1998).

27Id., at §128-2.1(a).

Choices of Expressional Features The creator of a law must make important

choices in mode of expression and these are choices of form As we saw in Chapter

Five, these choices pertain to the degree of explicitness of the rule, to the extent

it is appropriately set forth in lay or specialized vocabulary, to the nature of itsgrammar and syntax, to how its relation to other rules is specified, and more Thesechoices leave imprints and have other effects that can “make or break” the rule.Laws should be explicit This facilitates the effective dissemination of the ruleand the ease with which its addresses can learn its content Choices of appropriatevocabulary, for example, as between technical and lay terms, are also especiallyimportant Similarly, simplicity of structure in the syntax of the rule, and inany of its exceptions or qualifications facilitates learnability Here, too, there isinternal synergy between other features of a well-formed rule and the feature ofits expression

Whether a law should employ technical or lay vocabulary often depends uponthe subject matter of the law and its addressees Although a speed limit law must

be communicated in a lay vocabulary, for example, “drive no faster than 75 milesper hour,” many laws, including some provisions of a water quality law, must usespecialized vocabulary, for example, “coliform concentrations must be equal to

or less than 20 colonies per 100 milliliters.” When the addressees are industrial

or highly specialized parties, technical vocabulary is appropriate for this reason,too For lay addressees it may be necessary, for example, to explain in a three-pagedocument expressed in lay terms what could be easily stated in a half-page oftechnical terms for expert addressees

For example, one part of the New York City Sanitation Code addressed toprivate citizens simply states that no person shall discharge pathogenic materials,hazardous substances, human waste, etc “without first obtaining written approvalfrom the department.”28The law then lists, in lay terms, what documents andinformation must be supplied to the department For example, the law requiresthe applicant to describe the activity, location, and topography of the area, and

to identify any existing structures at the location.29In contrast, when the relevantNew York law is addressed to officials who are to supply public water, it requiresthat the official water supplier monitor the water to ensure that the followingrequirements have been fulfilled:

(1) Raw fecal coliform concentrations must be equal to or less than 200colonies per 100 milliliters or total coliform concentrations must be equal

to or less than 100 colonies per 100 milliliters in at least 90 percent ofmeasurements made over the previous six months .

28Id., at § 128-2.3(b)(1).

29Id., at § 128-2.3(c)(1).

Section Four: Choices of Preceptual and Related Forms 375

(2) Raw water turbidity levels must not exceed five nephelometric turbidityunits .

(3) Disinfection must be sufficient to ensure at least 99.9 percent

inactiva-tion of Giardia lamblia cysts and 99.99 percent inactivainactiva-tion of viruses,

between a point where the raw water is no longer subject to tion by surface water runoff and a point downstream before or at the firstconsumer .30

recontamina-Indeed, when the state health code is addressed to civic water suppliers, the initions section defines some thirty-five terms, including jargon such as “CT,”31

def-“diatomaceous earth filtration,”32“first draw tap sample,”33“gross alpha cle activity,”34and “man-made beta particle and photon emitters.”35When theNew York City Sanitation Code is addressed to private citizens, it simply uses layvocabulary.36

parti-Other Imprints and Effects of Form on Addressee Self-Direction The efficacy

of a regulatory rule frequently depends upon the capacity of its addressees, layand official, for self-direction under the terms of the rule without further “on thespot” guidance from officials Here, legislators and administrative agencies must

be cognizant of the effects of choices of form at the law-making stage on behavior

of addressees at a later stage The general conditions for effective addressee direction under a rule, such as one prescribing a water quality standard, include:

self-(1) advance notice of the content of the rule,

(2) “learnability” of the rule,

(3) susceptibility of the rule to faithful interpretation in light of an interpretivemethodology,

(4) ready ascertainability of the facts to which the rule applies,

(5) sufficient ease of compliance,

(6) pre-emptoriness of the reasons for action arising under the rule,

(7) duly specified sanctions for noncompliance

None of these conditions can be satisfied without choices of well-designedfeatures of form at the lawmaking stage Well-designed features of form in arule or rules synergistically enhances all of the foregoing That is, the overalleffects of these choices, when operative together, exceed the mere sum of the

30 N.Y Comp Codes R & Regs tit 10, §5-1.30(c) (1998).

individual effects that would separately occur Moreover, the more appropriatethese choices, and thus the better designed the form, the greater the opportunityfor, and the greater the likelihood of, effective addressee (official as well as private)self-direction, and hence the greater policy efficacy of the rule, assuming that themeans-end hypothesis embodied in the content of the rule to be sound in the firstplace.

Public health laws imposing water quality standards depend heavily for theirefficacy upon the self-direction both of addressees who are officials and addresseeswho are private parties To that end, any public and any private water suppliers orpollutant dischargers must have advance notice of any rule imposing such stan-dards The constituent features of the overall form of a rule – its prescriptiveness,definiteness, completeness, generality, simplicity of rule structure, and expres-sional clarity, all in their own ways, enable addressees to interpret and learn therule, find relevant facts, and apply it

Definiteness not only helps to render the rule “learnable,” but prioritizes flicting policy considerations such as desired level of health versus costs of waterpurification techniques A definite rule, for example, one that provides that rawwater coliform concentrations not exceed “20 colonies per 100 milliliters” pri-oritizes health over cost in terms of that degree of definiteness At least any fur-ther reduction of concentrations would cost more A vague rule, for example,

con-“no toxins in unsanitary amounts,” would not efficiently prioritize at any exactdegree Other features of expressional form also contribute to prioritization here,especially explicitness, appropriate vocabulary, and rigorous syntax Again, thecombined effects of all these formal features taken together synergistically exceedthe sum of the effects of each that would occur alone

As we have seen, efficacious addressee self-direction on the part of officials, aswell as private parties, requires choices of features of the form of a rule that, asinterpreted, render it a source of reasons for determinate action or decision A

“no toxins in unsanitary amounts” rule would be rife with issues of interpretationand would be intolerably indeterminate The very same formal features in our

“20 colonies per 100 milliliters” rule that make it readily learnable also minimizeinterpretive issues Even so, there is still need for application of a duly formedinterpretive methodology for those interpretive issues that do arise Choices ofduly designed form are required to define and organize any such methodology, as

we saw in ChapterEight

A further condition of efficacious addressee self-direction under rules is theready ascertainability of the facts to which the rule applies The rule applier must

be able to determine the meaning of the rule, and then ascertain and classify therelevant factual circumstances as ones that do, or do not, fall under the rule Thelawmaker may choose a highly definite, general, and clear “bright-line” rule, and

so a particular limit, for example, “20 colonies per 100 milliliters.” These formal

Section Five: Choices of Form at the Stage of Public Promulgation 377

features and complementary content (along with requisite filter and water qualitytesting technology) greatly facilitate the fact-finding required for the addressee tocomply

A further related functional legal unit to be considered at the law making stageconsists of the possible sanction for non-compliance that the law-maker maywish to create and prescribe In ChapterNine, we considered formal choices thatdefine and organize the unit of a sanction There, we saw that a sanction couldnot even exist without choices of due form Further choices must also be made

as to what sanction should be available to punish noncompliance and to inducefuture compliance

section five: choices of form at the stage

of public promulgation

After the law-making stage, we come to a further major stage in the unfoldinglinear progressions of the administrative-regulatory technique, and of the public-benefit conferral technique – the two main techniques treated here Usually, thepolicy or other content of a law cannot be learned and thereafter implemented

by its addressees unless the law is somehow publicly promulgated Here, too,the imprints and other effects of form are fundamental In general, a statute oradministrative regulation cannot even be lawfully binding on its addressees unlessduly promulgated.37Also, if such law is not duly promulgated, it is not likely to

be an adequate basis for addressee self-direction, or for effective enforcement.Various features of the form of a rule, including its expressional feature, functionsynergistically here with promulgation, also largely a formal matter

In our illustration, Section 1100 of New York’s Public Health Laws requireevery new rule or regulation for the protection of potable public waters fromcontamination to be “published at least once in each week for two consecutiveweeks, in at least one newspaper of the county where the waters to which it relatesare located.”38 The statute requires the costs of publication “to be paid by thecorporation, municipality, state, or United States [or] institution benefited

by the protection of the water supply.”39It also provides that “the affidavit of theprinter, publisher, or proprietor of the newspaper in which such regulation

is published shall be conclusive evidence” on the question of publication.40

So, this law clearly requires public promulgation, though it does not include anystatement of the effects of failure to do so

37Cf M Lohm¨uller, Canon Law Studies, The Promulgation of Law, 7 (Catholic University of America

Press, Washington, DC, 1947).

38 N.Y Pub Health Law §1100(2) (Consol 1987).

39Ibid.

40Id., at §1100(3).

Plainly, a law must be accessible to its addressees Promulgation of the law

is a major stage in linear progressions of several of the law’s basic operationaltechniques We have seen that accessibility is dependent on major prior choices

of features of form including printed over oral, the explicit over the implicit, laylanguage over technical (where appropriate), and so on Promulgation rendersthe contents of legal duties and rights accessible to addressees It may also includerelevant rationales for the law In the case of public health programs, such ascholera prevention, clear communication not only of relevant legal duties, butalso of the rationales for such duties can elicit voluntary cooperation

An existing administrative agency with regulatory responsibility usually hasjurisdiction to promulgate whatever new law is adopted Such an agency itselftakes an overall institutional form with various features constitutive of this form,including composition, jurisdiction, structure, and procedure In the exercise ofjurisdiction not only to make, but to promulgate law, more specific formal choicesmay have to be made by the responsible agency Promulgation must be in someform of writing or print and clearly expressed Oral promulgation could be feasibleonly rarely

The public promulgation of a law not only serves policy or other purposes, butalso satisfies principles of the rule of law The principles of the rule of law require,among other things, that law be authorized, that it generally be in the form of rules(so far as feasible), that the law be clear and learnable, that it be duly promulgated,that it be prospective in effect, that it be relatively constant through time – all sothat people can abide by it, and so that those against whom it may be adverselyapplied can have fair notice and “due process.”

The formal requirement of promulgation rendering the law known and sible is an obvious necessity in our illustration of a law regulating water quality.Such a law could itself be highly learnable, yet its addressees not even know ofits adoption by the legislature, or by an administrative agency In a system dulyattentive to well-designed form, failures of public promulgation rarely occur Leg-islatures and official agencies take steps to convey the law they adopt to addresseesvia one or more of a variety of promulgative devices As I have explained, Section

acces-#1100 of the New York Public Health Law requires that every new rule ing to the supply of potable water be published once a week for two consecutiveweeks in at least one newspaper in the relevant county.41In many developed West-ern societies, new legislation is published in annual volumes of official statutes.New administrative regulations must be duly published too Beyond this, officialagencies responsible for the administration of an important new law commonlydisseminate it through annual booklets, through trade-association channels, andthrough the news media Sometimes a law can be duly communicated in public

pertain-41Id., at §1100(2).

Section Six: Form and the Stage of Addressee Self-Application 379

places, such as by posting a sign near a reservoir to announce that specified types

of pollutants may not be dumped in the area without a permit It is familiar thathighway traffic laws and many other laws are similarly communicated throughstrategically located signs As a further signal to addressees to take notice, manysigns and related devices are uniform in size and shape

section six: form and the stage of addressee

self-application

The next major stage in most linear progressions whereby laws are duly createdand duly implemented, is the stage at which the addressees learn of the law,interpret the law, ascertain any relevant facts, and apply the law Both state-madeand privately created law are generally implemented by addressees who take thelaw as providing legal reasons for actions or decisions Thus, nearly all that has

so far been said about the roles of well-designed form at such prior stages asthe law-making stage and the promulgating stage anticipates the law-applyingstage Choices of form have major cumulative effects at this stage, and some ofthe combined effects function synergistically here, as well Due form in the lawitself is required in the first place if addressees are to have the capacity to complywith and implement any law If, for example, a given rule is too indefinite, or toodeficient in expression to be faithfully interpreted and understood, or is not dulypromulgated and disseminated, then its addressees will not be able to apply thelaw to their own circumstances and act accordingly Few cumulative imprints andother effects of bad form could be more dysfunctional The relation between well-designed form and required addressee understanding of what the law requires is

an intimate one

A well-formed law, for example, a duly prescriptive, complete, and definite rulethat is also duly general, clearly expressed, and duly promulgated, can along withits complementary content, even inspire a general spirit of cooperation among itsaddressees In our illustration, addressees will know the purpose of the law Theywill also know that all other water suppliers or potential polluters must complywith the same rule or rules, and that their competitors will not be getting aneconomic advantage from failure to comply with the law On the other hand, alaw might, for example, be under-general and thus not applicable to certain privateaddressees who also supply water Other private suppliers to whom the law doesapply might well come to resent the law because they view it as drawing unfairdistinctions between themselves and other similarly situated water suppliers This,

in turn, could undermine any spirit of voluntary cooperation

A public or a private water supplier, or a party who discharges pollutants via aninadequate sewage disposal system, should have little difficulty applying the law,assuming it is set forth in the form of a determinate rule or rules, is expressed in

terms readily understandable by its addressees, and insofar as it calls for factualinquiries, these can be readily made in light of filter or other technology Becausethe law is in prescriptive and determinate form, it will also be pre-emptory, and itsaddressees should generally not let other countervailing considerations over-ridethe legal reasons for action or decision arising under it For example, a publicentity supplying water should reason as follows: we must act to limit “coliformconcentrations to no more than 20 colonies per 100 milliliters.” The law when pro-mulgated and thus acted upon, serves policy and other purposes, and is, as we haveseen, itself formal in several ways The legal reason for action or decision that thelaw gives rise to here is also formal in its pre-emptoriness and in its determinate-ness The various formal features of the rule: its prescriptiveness, completeness,generality, definiteness, and internal structure, contribute here So, too, do theformal expressional and encapsulatory features Again, the imprints and othereffects of these features of form come into play as well All these contributions ofform add up.

In the type of linear progression at hand, the addressee of the law, whetherpublic entity or private party, is expected to interpret the law, find any relevantfacts, and faithfully apply the law Various features of form and their imprintsand other effects facilitate this in many ways In our water quality example, theclarity and precision of the rule, which are attributable partly to its formal expres-sion and definiteness, along with any prescribed testing technology, simplify anyinterpretive and fact-finding tasks To facilitate regular determinations of whetherwater quality has, in fact, been compromised, state administrators can also posttables that specify maximum contamination levels, specify the type of samplingrequired, specify the location or types of water that must be sampled, and specifythe regularity with which such samples must be taken.42

Thus, in our illustration, toward the end of the various stages in our overalllinear progression from rule creation, to rule promulgation and dissemination,and to rule implementation through addressee self-application, we can see howchoices of well-designed form at all these stages can contribute to the quality ofpolicy content, to policy efficacy, to rule of law efficacy, and to the realization offundamental political values Our simple illustration reveals many choices of formthat drafters of such a law must make and the types of imprints and effects thatthose choices can have when they occur, and at later stages of the linear progression.Poor choices early on can preclude appropriate choices later, or make them morecostly Good choices early on can synergistically interact with other choices at thesame time and with later choices

In the type of illustration I have posed, private parties and officials can applywell-designed rules effectively out on the frontiers of human interaction in the

42 N.Y Comp Codes R & Regs Title 10, §5-1.12(b), 5-1.52 Table 11A (1998).

Section Seven: An Exceptional Yet Important Stage 381

vast majority of instances Such effective regulatory rules, and many others likethem, thus lead their lives primarily out on these very frontiers, and only quitesecondarily inside judicial or administrative adjudications The lives of these ruleseffectuate democracy as well as policy and other purposes Again, democracy

is not merely a “processual” value whereby majorities of elected representativesmerely participate in the making of laws Democracy is an “outcome” value, too.When laws are created by a democratic legislature, or their creation is delegated to

an administrative agency, and these laws are thereafter implemented, democraticwill is effectuated through actual outcomes, too

The specific contributions of each of the major types of choices of form inthe course of our linear progression, from initial creation of a law to its ultimateimplementation, cannot be isolated, disentangled, and measured with precision.Yet, the total cumulative contribution of all these choices of well-designed formmust plainly be a major factor in the efficacy of any such use of law, stage by stage inlinear progression, from initial creation of law to its ultimate implementation viaany relevant operational technique or techniques Concededly, any rule createdmust also have appropriate material or other components such as policy con-tent In our example, this content should include policy duly mediating betweenhealth on the one hand, and efficiency and other ends on the other Effectivenessalso requires complementary and other material components such as trained andinformed water purifiers, trained and informed waste dischargers, and technol-ogy for modern filtration and testing systems Even though it is not possible todisentangle and measure the relative contributions of form and these comple-mentary material and other components with precision, it is plain that choices

of well-designed form are indispensable These choices define and organize thefunctional legal units, and leave major imprints and other effects These choicesalso combine, integrate, and coordinate these units within an overall operationaltechnique or techniques that operate dynamically from stage to stage Effectiveworking law can never be formless Content without form in a law is not even

a possibility Also, what it would be like to have material and other components

in a formless “functional unit” can hardly be imagined, and such a “unit” couldhave little efficacy Apt choices of form are essential here to define and serve thepolicies of public health, to serve general values of the rule of law, and to servefundamental political values including democracy, legitimacy, and rationality

section seven: an exceptional yet important

stage – administrative intervention

Let us assume that the immediate addressees of a legal regulatory program sist solely of private persons or private entities, a state of affairs that frequentlyobtains If the creation and implementation of law in the administrative-regulatory

con-technique is well-designed and executed, trouble cases will not be frequent in thecourse of linear progressions When they do arise, administrative officials may

be authorized to intervene, and they may even have power to take immediateremedial action, including the imposition of sanctions, on due notice

Let us return to our illustrative context The New York Public Health Law rizes the New York City Commissioner of Environmental Protection to enter andinspect any private property within the relevant watershed to determine if the reg-ulations have been or are being violated.43The formal definitiveness of the waterquality standard prescribed in regulations, and the existence of reliable testingtechnology readily facilitate such official determinations If the Commissioner

autho-or an agent thereof determines that a private party is guilty of a violation andfinds that this would contaminate the water supply of the City, the Commissionermay “summarily enforce compliance with such regulation and may summarily

abate or remove the cause of the violation and to that end may employ such

force as may be necessary and proper.”44Such a summary procedure is itself mal, though, of course, it has complementary material and other components.Also, the very existence of such an administrative body or official is itself definedand organized by features of institutional form, such as the compositional, juris-dictional, structural, and procedural Without such form, there simply could be

for-no duly defined and organized institution or entity such as a Commissioner ofEnvironmental Protection, a Commissioner of Public Health, or a Department ofPublic Health

Let us assume, contrary to likely fact, that today an actual outbreak of aninfectious disease known to be waterborne, such as cholera, occurs.45The StateDepartment of Health (usually in cooperation with local or federal authorities)would investigate the quality of water sources in the area, sources that may eveninclude some private ones Pursuant to that investigation, let us assume the StateHealth Commissioner determines that a contractor built a subdivision withoutfollowing regulations as to sewage disposal, that the water supply became pol-luted, and that this was the source of the disease The State Health Commissionercould then order the municipality that controls the water supply to: (1) requirereconstruction of the sewage disposal system, or (2) discharge chlorine into areservoir or other source of supply to kill existing bacteria, or (3) take daily sam-ples of the water supply to check for further signs of the bacteria, or (4) impose atimetable for the construction of an adequate water treatment facility, or (5) somecombination of these.46

43 N.Y Pub Health Law §1101 (Consol 1987).

Section Eight: Ultra-Exceptional Stage – Trial and Appellate Court Action 383

In all these, and in still other ways, potable water policies are effectuated withregard both to private polluters, and to public municipalities responsible for waterquality Without due form of any one of the kinds heretofore considered, andespecially without the prescriptive definitiveness and clarity of the water qualitystandard, effectuation of these policies would be problematic, or be far more atrisk

The formal features heretofore considered also delimit the scope for potentialdisputes This is perhaps most dramatically so of definiteness and clarity of expres-sion in bright-line rules The availability of complementary material componentssuch as electronic or other mechanical measuring devices for determining waterquality, and of duly trained personnel also drastically delimits scope for disputes.There is synergy here, as well, between the formal and the nonformal, because therules can themselves be drafted effectively to take account of available technologyand trained personnel, thereby making administrative intervention at this stageeven more effective

The policies of the statute, efficiency of implementation, and the avoidance

of disputes, are not the only immediate values to be served by well-designedform in such cases of official intervention and coercive enforcement Such formcontributes to ease of administration Also, a determinate and clear law enforced

by an official in what is, and is perceived to be, a highly objective fashion, inducesvoluntary compliance by others, serves the rule of law, and lends rationality andlegitimacy to the entire enforcement process Such a law delimits scope for officialarbitrariness in determining the existence of any violation in particular cases, andthis, too, serves rationality and legitimacy Again, the imprints and other effects

of well-designed form can be deep and indelible

section eight: ultra-exceptional stage – trial

and appellate court action

In what would be an ultra-exceptional stage arising in a linear progression of theadministrative-regulatory technique, let us assume that an alleged private violatorchooses to dispute an administrative determination of violation and under thelaw demands a judicial determination of the facts and applicable law Thus, forexample, assume an alleged supplier of polluted water, or an alleged discharger

of pollutants in the watershed refuses to comply, or complies under protest, with

an order from the State Health Commissioner or other official to cease allegedpolluting activities, and wishes to appear before a trial court to challenge the order.Much can be at stake in such a dispute for the accused, including the possibilitythat the accused may lose a license to discharge some pollutants, have to pay afine, or even in an extreme case, be incarcerated (An alleged violation could also

be litigated in a civil case for its bearing on tort liability to others.)

In this final, and ultra-exceptional stage of our illustrative linear progression,after any required administrative steps have been exhausted, a trial court maythen be called upon to decide issues of law and of fact, and to decide whetherany sanction (or remedy in a civil case) may be imposed.47A trial court takes itsown overall form, and as we have seen, its constituent formal features are com-positional, jurisdictional, structural, procedural, methodological, and preceptual.After a trial, the loser may appeal to an appellate court, a body that also takes itsown overall form.

Such cases before trial courts are ultra-exceptional in administrative-regulatorymatters in the American and various other systems, both because significantdisputes seldom arise under such duly formed law, and because those disputesthat do arise are usually resolved through administrative action without judicialintervention, or if there is judicial intervention, it may be solely by appellate review

of administrative agency or other action Let us assume that rather than admitwrong, or negotiate some other resolution, our alleged wrongdoer challenges theforegoing administrative order in a trial court (In various Western systems, suchcases comprise a very small proportion of the total instances occurring within anysimilar linear progression.)

Here, in some systems, two fundamental principles of appropriate institutionalform converge First, and as we saw in ChapterNine, there is a formal structuralprinciple that the function of implementing a sanction against a violator is to

be separated from the function of determining, with finality, in a contested casewhether a violation subject to sanction has occurred Second, there is the formalprocedural principle of the rule of law that before any such sanction is imposed,the party to be adversely affected shall be entitled to due process, that is, havenotice and a fair opportunity to contest the facts and the law on which any suchsanction (or remedy) may be premised before an independent and impartial court(or other tribunal)

In our illustration, let us assume the State Commissioner of Health (or someother agency) takes the dispute to a court for a finding of violation, an injunctiveorder restraining the wrongdoer, and for imposition of penalties.48In court, thealleged wrongdoer may pursue a number of avenues For example, this party mayargue that the Commissioner’s order suffers from procedural flaws Or the allegedwrongdoer may argue that the actions of the Commissioner exceeded statutorilyprescribed authority Or the alleged wrongdoer may contend that no violation, infact, occurred

In the American and various other Western systems, in cases arising in thestandard linear progression involved in our illustration, actions of trial courts areunusual It does not follow, however, that courts play no role in the implementation

47 Of course, courts could come into play much earlier In our illustration, they might be involved at the very outset, as when someone became ill from drinking water and sued in court for the harm caused.

48 N.Y Pub Health Law §1102(2)(b) (Consol 1987).

Section Eight: Ultra-Exceptional Stage – Trial and Appellate Court Action 385

of such law except in those unusual cases in which they are called upon to takeaction The mere standing availability of independent and impartial courts beforewhom administrative bodies, prosecuting officials, and others may summon thosewho refuse to admit, or dispute, that their actions constitute regulatory, penal,

or other wrongs, operates to serve the basic policy at stake here – the policy ofproviding and protecting potable water Here, courts stand ready, on proper proof,

to enforce the law and thus “back up” administrative bodies, or other officials,who can demonstrate they are in the right on the facts and the law This standingreadiness of courts is generally known to possible violators and lends furthercredibility to the law itself, thereby often inducing voluntary compliance.Yet a court is not merely a “club” to be used only by an administrator or anadministrative agency on the heads of primary addressees of the law Privateparties, too, can usually go to court to challenge the legality of agency actions atvarious stages of a linear progression In some systems, such parties must first

“exhaust administrative remedies.”

Moreover, when a dispute over fact or law does arise between an administrativebody on the one hand, and an addressee of regulatory law on the other, andthe dispute is not satisfactorily resolved by the regulatory agency, the standingavailability of a court to resolve it often induces the disputants to resolve thedispute on their own, especially when the law involved is in determinate form

In the overwhelming proportion of the small class of disputed cases that do arise

at this stage in some systems, the opposing parties themselves typically settlethrough negotiation in the shadow of the law In such instances, besides servingthe policy involved, the standing possibility of judicial action also serves generalvalues of the rule of law and fundamental political values, such as legitimacy,rationality, and justice The possibility of judicial action even serves democracyinsofar as the threat of it leads to implementation of the general policy enacted by

a democratically composed legislature

Although it is not necessary for my purposes to treat the forms of all types offunctional units and systematizing devices, and although I have not frontally andsystematically treated the forms of trial and appellate courts in this book, theseunits also take their own overall forms The overall form of a court is a form

of a major institutional unit with its own complementary material and othercomponents Thus a form-oriented analysis parallel to that applied to legisla-tive institutions in ChapterFouralso applies to courts Although both types ofinstitutions have compositional, jurisdictional, structural, procedural, method-ological, and preceptual features of form, these differ importantly in the two types

of institutions In an earlier chapter, I illustrated one of the major differences evant here, namely, the dialogic procedure of a typical court in contrast to thenondialogic procedure of a legislature.49

rel-49See supra Chapter Two, at56