1. Jonathan Rauch argued that America is making a mistake in allowing what he calls Hidden Law to be replaced by what he calls Bureaucratic Legalism. Hidden Law refers to unwritten social codes, whereas Bureaucratic Legalism refers to state-provided due process for every problem. Thus, universities formerly expected insults and epithets among students to be resolved via informal modes such as apologies, while today many universities have written codes forbidding offensive or discriminatory verbal conduct. Similarly, four kindergarten students in New Jersey were suspended from school for three days because they were observed “shooting” each other with their fingers serving as guns.
a. Can you think of other examples where we have gradually replaced Hidden Law with Bureaucratic Legalism?
2. According to the National Conference of State Legislatures, as of 2013, at least 29 states had either enacted or introduced legislation prohibiting the practice of “sexting” (cell phone transmission of nude photos of themselves and other risqué material) by minors.
a. What objections would you raise to a criminal law forbidding sexting by minors?
b. Is this an area where the government should simply refrain from intervention? Explain.
3. A Rhode Island man pleaded guilty to child molestation. As an alternative to imprisonment and as a condition of his probation, the judge ordered him to purchase a newspaper ad displaying his picture, identifying himself as a sex offender, and encouraging others to seek assistance. One Florida judge has sentenced hundreds of shoplifters to carrying in public a sign that reads: “I stole from this store.” Constitutional law expert Jonathan Turley says “creative sentencing” is growing, a trend he disapproves of and regards as a strategy for entertaining the public more than deterring crime.
a. What objections would a defendant’s lawyer raise to these public humiliation punishments?
b. Would you impose a “humiliation sentence” if you were the judge? Explain.