Legal Inconsistencies
Legal Inconsistencies
Legal Inconsistencies
Volume 55 Number 1
Fall 2019
Legal Inconsistencies
Raff Donelson
Recommended Citation
Raff Donelson, Legal Inconsistencies, 55 Tulsa L. Rev. 15 (2019).
This Article is brought to you for free and open access by TU Law Digital Commons. It has been accepted for
inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please
contact [email protected].
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LEGAL INCONSISTENCIES
Raff Donelson*
* Assistant Professor of Law and Philosophy, Louisiana State University. JD, Northwestern Pritzker School of
Law; PhD, Northwestern University; MA, University of Chicago. I had the great fortune to present earlier
versions of this paper at the Louisiana Law Scholars’ Symposium at Loyola University of New Orleans Law
School, the Criminal Law Theory Workshop at Northwestern Pritzker School of Law, the “Rule of Law”
discussion group at SEALS 2018, the Junior Faculty Works-in-Progress Conference at Marquette University
Law School, Jim Lindgren’s Law Scholars Workshop at Northwestern, the Intellectual Life Series at Tulane
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Law School, the New Voices in Criminal Justice session at AALS 2019, at the University of Arizona Law
School, and at the University of Toronto. I owe special thanks to John Anderson, Vincent Chiao, Michael
Coenen, Mihailis Diamantis, Chad Flanders, Ken Levy, Jim Lindgren, Saru Matambanadzo, Alice Ristroph,
and Gregg Strauss for especially helpful conversation on issues raised by this Article.
15
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It is a familiar thought from the rule of law literature and from everyday life that
legal norms within a given jurisdiction ought to be consistent. However, little work has
been done to explain this demand. This Article develops a theory of legal inconsistencies,
both what they are and why legal systems ought to avoid them. In addition to contributing
to a theoretical discussion of legal inconsistency, the Article also articulates a remedy
under American law for those harmed by inconsistencies. The Article contends that legal
inconsistencies violate Due Process.
I. INTRODUCTION
Sixteen-year-old Cormega Copening faced an unusual prosecution. He was charged
with possession of child pornography because his cell phone contained an explicit
photograph of himself. Some scholars think our child pornography laws are too zealous,1
others think the American suite of broad laws and tough penalties could go even further. 2
1. E.g., Amy Adler, The Perverse Law of Child Pornography, 101 COLUM. L. REV. 209 (2001) (criticizing
sex panic surrounding child sexuality); Carissa Byrne Hessick, The Expansion of Child Pornography Law,
21 NEW CRIM. L. REV. 321, 336 (2018) (noting and criticizing far-reaching definitions of child pornography);
Speech Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999), 42 S. TEX. L. REV. 545, 571 (2001) (defending the
constitutionally overbroad federal law aimed at stamping out child pornography); Kelley Bergelt, Stimulation by
Simulation: Is There Really Any Difference Between Actual and Virtual Child Pornography? The Supreme Court
Gives Child Pornographers a New Vehicle for Satisfaction, 31 CAP. U. L. REV. 565 (2003) (arguing for laws that
ban fake child pornography); Robert M. Sieg, Attempted Possession of Child Pornography—A Proposed
Approach for Criminalizing Possession of Child Pornographic Images of Unknown Origin, 36 U. TOL. L.
REV. 263 (2005) (developing a new legal theory to facilitate prosecuting more people for conduct related to child
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Whatever the wisdom of such laws as they currently stand, something seems particularly
RGGDERXW&RSHQLQJ¶VSURVHFXWLRQ*LYHQRXUUHDVRQVIRUhaving child pornography laws,
prosecuting Copening for possessing the picture of himself is not only unhelpful but also
FRXQWHUSURGXFWLYH 7KURXJK VXFK ODZV VRFLHW\ VHHNV WR SURWHFW FKLOGUHQ¶V SULYDF\ EXW
prosecuting Copening required the invasion of his privacy. Here, then, is an example of a
prosecutorial decision that is inconsistent with the justification for the criminal statute.
Copening was also charged with corruption of a minor for sending the same
photograph to his sixteen-year-old girlfriend, Briana Denson. There is something strange
about this too. In North Carolina, the jurisdiction where these events took place, Copening
and Denson were allowed to engage in sexual activity with one another, even as minors. 3
This means, as one commentator put LW ³&RSHQLQJ DQG 'HQVRQ FDPH XS DJDLQVW D
FRXQWHULQWXLWLYHFRQIOXHQFHRIODZV´ 4 To see this, consider the following question: what
ZRXOGMXVWLI\DOHJLVODWRULQWKLQNLQJWKDWVLJKWRI&RSHQLQJ¶VERG\FRUUXSWV'HQVRQZKHQ
in the form of a photograph but not when he appears in person? Though one might
disagree, it is understandable to claim that sight of Copening in a sexual pose always
corrupts Denson, whether in person or in photograph. It is also understandable to claim
that sight of Copening in a sexual pose does not corrupt Denson in person or in photograph.
The confluence is more puzzling. Here, then, is an example of inconsistency between the
justifications of two laws.5
This Article concerns inconsistencies in the law. More precisely, it concerns the
Consistency Principle, a central component of the rule of law. 6 Roughly, the principle
provides that, within a jurisdiction, the laws should be consistent. This Article investigates
the scope of the Consistency Principle, its justification, and what American courts should
do when that principle is violated.
The first part of this Article concerns the scope and justification of the Consistency
Principle. Nearly everyone can agree that the Principle prohibits a jurisdiction from giving
legal effect to norms that contradict one another,7 but determining what counts as
contradiction is far more complicated than previous writers have noticed. It is natural to
pornography).
3. Michael E. Miller, N.C. Just Prosecuted a Teenage Couple for Making Child Porn — of Themselves,
WASH. POST (Sept. 21, 2015), https://www.washingtonpost.com/news/morning-mix/wp/2015/09/21/n-c-just-
prosecuted-a-teenage-couple-for-making-child-porn-of-themselves/?utm_term=.6519fdb248a9.
4. Id.
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5. For a remarkably well-written student note discussing a related problem under Georgia law, see Emily L.
Evett, Comment, Inconsistencies in Georgia’s Sex-Crime Statutes Teach Teens That Sexting Is Worse Than Sex,
67 MERCER L. REV. 405 (2016).
6. Lon Fuller was one of the first scholars to state explicitly that the rule of law includes the Consistency
Principle. LON L. FULLER, THE MORALITY OF LAW 65±70 (rev. ed. 1969).
7. Scott Fruehwald, Choice of Law and Same-Sex Marriage, 51 FLA. L. REV. 799, 830±31 (1999) (³[I]t is a
basic principle of our judicial system that a person not be subject to inconsistent laws.´).
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otherwise laws could not fulfill their primary function, action guidance. 8 Upon inspection,
this is also too narrow, and again the Copening case shows us why: inconsistent laws can
guide action.
The first part of the Article, then, is a theoretical argument, one that aims to show
that the Consistency Principle has wider scope and requires different defense than others
have recognized. This theoretical argument relies on the Copening case as well as several
other cases of inconsistencies, historical and contemporary, domestic and foreign, to
demonstrate that the problem is not merely academic. That real-life individuals have
suffered from violation of the Consistency Principle prompts the second, more practical
part of the Article.
The second part of the Article develops a theory of legal relief for the teens ensnarled
in the sexting case and, more generally, for anyone who suffers under inconsistency. Part
II also responds to various objections to implementing that theory of relief. While there
are other potential fixes for the specific problem faced by these young people, on the best
theory of legal remedy, all violations of the Consistency Principle are unconstitutional
denials of due process.
8. Id. at 831 (³When a person is subject to inconsistent laws, that person cannot conform his or her conduct
to the law.´); Margaret Jane Radin, Reconsidering the Rule of Law, 69 B.U. L. REV. 781, 786 (1989) (offering
an interpretation of Fuller on which the point of the Consistency Principle is so that legal subjects can know what
they ought to do and perform accordingly); Richard H. Fallon, Jr., “The Rule of Law” as A Concept in
Constitutional Discourse, 97 COLUM. L. REV. 1, 8 n.27 (1997) (agreeing with Radin that the Consistency
of the Rule of Law, 24 L. & PHIL. 239, 261±62 (2005); JOSEPH RAZ, The Rule of Law and Its Virtue, in THE
AUTHORITY OF LAW 210±29 (2d ed. 2009). Meanwhile, thick conceptions of the rule of law are advocated in the
following work: Corey Brettschneider, A Substantive Conception of the Rule of Law: Nonarbitrary Treatment
and the Limits of Procedure, in GETTING TO THE RULE OF LAW: NOMOS L 52 (James E. Fleming ed., 2011).
11. E.g., Jurian Langer & Wolf Sauter, The Consistency Requirement in EU Law, 24 COLUM. J. EUR. L. 39,
43 (2017) (³[I]t is plausible that consistency (as a requirement of no contradictions) can be seen as an element of
the rule of law.´).
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Some scholars claim that laws violate the Consistency Principle when and only when
Law1 obligates someone to do something that Law2 forbids.12 To understand what such
scholars have in mind, imagine that a truancy law required a student to be in school on
Friday morning while a court summons required that same student to appear in court that
same Friday morning.13 If there were no exceptions to either law and no superseding
principle to remedy the conflict, this would be an inconsistency of the kind that some take
to be definitive of the problem. As I show below, this is just one kind of inconsistency in
the law; it is what I call an irreconcilable inconsistency between laws. This name stems
IURPWKHIDFWWKDWDSHUVRQFDQQRWUHFRQFLOHKHUVHOIWRWKHODZV¶GHPDQGVIRUVKe cannot,
under any circumstances, remain in the jurisdiction and avoid non-compliance with the
inconsistent set of laws.14
Though troubling when it arises, any given irreconcilable inconsistency is likely to
be short-lived because courts and legislatures have tools specifically designed to remedy
them. For example, legislatures and courts sometimes directly say in the text of a new law
or ruling that any prior legal norm that is inconsistent with the current law or ruling is
hereby null and void. This is a prophylactic measure to stop irreconcilable inconsistencies
before they start. In addition to this prophylactic approach, there are remedies on the back
end. Courts often decide, as a canon of statutory construction, that where two laws conflict,
the later enactments supersede prior ones.15
Despite being short-lived phenomena, irreconcilable inconsistencies receive most of
the scholarly, judicial, and legislative attention in conversations about the Consistency
Principle. This undue attention not only upstages more persistent kinds of inconsistency
but also obfuscates the general reason why inconsistencies harm legal subjects. This Part
of the Article focuses on the other kinds of inconsistency and on the obfuscation.
To preview the latter point, scholars are confused about the general problem that
inconsistency presents. They focus on a particular problem that arises with irreconcilable
inconsistencies: the action guidance problem. It is probably beyond dispute that a legal
system fails, qua legal system, if its norms cannot guide action. If nothing else, laws should
12. This conception of Consistency probably motivated Bruegger, given that he claimed, ³It is impossible to
simultaneously comply with laws that are contradictory.´ John A. Bruegger, Freedom, Legality, and the Rule of
Law, 9 WASH. U. JUR. REV. 81, 87 (2016). But see, e.g., FULLER, supra note 6, at 69 (construing inconsistency
very broadly as laws ³that do not go together or do not go together well´).
13. I assume that the school is not the court, and the student cannot be in two places at once.
14. Once at a lecture, I errantly claimed that an irreconcilable inconsistency obtains when one cannot, under
any circumstances, avoid non-compliance. Someone replied that one could always avoid non-compliance by
suicide. This is not strictly speaking true, for suicide is not always an available legal out: a jurisdiction might
criminalize suicide. Nevertheless, the reasoning behind the reply is right; sometimes one can avoid non-
compliance by leaving the jurisdiction, whether by death or emigration. I want to distinguish inconsistencies one
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can avoid only by leaving the jurisdiction from other kinds. The difference between this kind of inconsistency
and the others will become important below, see infra Part II.A.
15. E.g., Eisenberg v. Corning, 179 F.2d 275, 277 (D.C. Cir. 1949). For commentary on the lex posterior
derogat priori canon of construction, see HANS KELSEN, PURE THEORY OF LAW 206 (Max Knight trans., 2d rev.
ed., 1967).
16. See H. L. A. HART, THE CONCEPT OF LAW 40 (1961) (claiming that the primary function of law is to
guide action).
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guidance problems, however, action guidance cannot wholly explain why the rule of law
includes the Consistency Principle. Moreover, as I explain below, action guidance is not
even the whole story with irreconcilable inconsistencies.
A. Improved Taxonomy
There are four main ways to violate the Consistency Principle. Because we already
discussed irreconcilable inconsistencies between laws above, we now turn to the other
three. For each kind of violation, I rely on simple, hypothetical examples. The simplistic
examples help to illustrate the kind of violation most clearly. Real life has too many details;
that explains the currency of the old saying about failing to see the forest for the trees.
17. For Colleen Murphy, the Consistency Principle only provides that ³[o]ne law cannot prohibit what
another law permits.´ Murphy, supra note 10, at 241. Murphy is plausibly read as talking about reconcilable
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inconsistencies. When one law prohibits what another permits, compliance is still possible, as one might simply
refrain from doing what is prohibited by the other act.
18. This example is borrowed from KELSEN, supra note 15, at 207±08. Also, this proceeding point about the
perspective of the legal official is inspired by Kelsen¶s well-known claim that law is directed to officials, not
subjects.
19. Of course, no law enforcement officer is under such a duty. It would be impossible to fulfill and stupid
to try because every law enforcement agency must prioritize.
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contrary to the law that claims that the act is permissible; if she fails to arrest for adultery,
she acts contrary to the command to arrest for all violations of the criminal law.
Consider a third case. In this case, I move from duty-imposing laws to power-
conferring laws.20 Suppose that a statute mentioned the full list of requirements for a valid
will. Among these is the requirement that testator shall have a witness. Suppose that a
provision of another statute, passed the same day as the first, requires a testator to have
two witnesses. These laws are inconsistent, for compliance with the first law ± having a
sole witness ± is non-compliance with the second, which requires two witnesses. However,
the inconsistency is not irreconcilable. A potential testator can get two witnesses, allowing
her to comply with both laws. Now, if the first law required one to have one and only one
witness and the second law required two witnesses, the potential testator would be in a
deeper bind, but this conflict still would not be irreconcilable. She could just forgo creating
a will altogether.21 The mark of irreconcilability is when compliance is impossible so long
as the person regulated remains within the jurisdiction.
20. For the distinction between duty-imposing and power-conferring laws, see HART, supra note 16, at 26±
38.
21. Indeed, most Americans do not have a will. Jeffrey M. Jones, Majority in U.S. Do Not Have a Will,
GALLUP (May 18, 2016), https://news.gallup.com/poll/191651/majority-not.aspx.
22. I thank Michelle Dempsey for raising this issue and inviting me to clarify this point.
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targets of the government action may be too costly. 23 A set of laws with inconsistent
justifications will always be unreasonable because the laws undermine one another, just
as the law providing that the truant student appear in court undermines the law providing
that the student appear in school at the same time.
Having distinguished inconsistency in justification from over- and under-inclusion,
OHWXVWXUQWRDQRWKHUH[DPSOHWRVHHWKHUROHWKDW³OHJDOO\SHUPLVVLEOHUHDVRQV´SOD\VLQ
understanding the phenomenon of inconsistent justifications. Suppose that a state law
DOORZVIRUPHUIHORQVWREHFRPHSXEOLFVFKRROWHDFKHUVWHQ\HDUVDIWHUWKHHQGRIWKHIHORQ¶V
sentence. Suppose that another state law creates an exception to that rule and forever bars
those convicted of illegal sale or possession of alkyl nitrites, colloquially known as
³SRSSHUV´ 7KH ILUVW ODZ VHHNV WR VWULNH D EDODQFH EHWZHHQ VKLHOGLQJ FKLOGUHQ IURP
wrongdoers and offering forgiveness to offenders, but the second law essentially, says,
³1RIRUJLYHQHVVIRUyou´ZKHUHWKHyou is those who sold or used poppers. These two
laws are not obviously inconsistent on the level of justification; perhaps the legislature
thought that poppers are particularly dangerous drugs or that former users or sellers of this
drug are particularly likely to market the stuff to children. Imagine that neither of these
claims is true, that these claims are not commonly thought to be true, and that no legislative
history or preambulatory text suggests that legislators think them true either. The
legislators in this example are not completely senseless; however, they carved out this
exception because they know that gay men are the most frequent users and sellers of
poppers.24 In essence, the legislature wants a way to prevent gay men from serving as
schoolteachers, but, suppose again, they cannot achieve this goal directly because of
constitutional constraints. Were this all so, we would find the two state laws inconsistent
on the level of justification. There are three possible justifications for having both laws:
(1) poppers are particularly dangerous, (2) those who used and sold poppers are
particularly likely to market to children, and (3) those who used and sold poppers are
disproportionately gay men, who we despise. If reasons (1) and (2) would not be avowed
by the legislature and if reason (3) is a legally impermissible ground for government
23. For example, during an epidemic outbreak, it may be a good idea to quarantine an entire area, as opposed
to testing each person to see if she is sick, since such testing may risk more infections.
24. Frank Romanelli et al., Poppers: Epidemiology and Clinical Management of Inhaled Nitrite Abuse, 24
PHARMACOTHERAPY 69, (2004) (³Inhaled nitrites (µpoppers¶) are also a common class of drugs that have a long
history of being abused in social settings, particularly among gay and bisexual men.´).
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No, they are not fully distinct. Irreconcilable inconsistencies are distinct from reconcilable
inconsistencies in the sense that no single situation can both be an instance of one and an
instance of the other. However, a case of irreconcilably inconsistent laws necessarily
features inconsistent justifications, and a case of reconcilably inconsistent laws necessarily
features inconsistent justifications too. To begin to see this point, consider the fact that the
specific reason for requiring two witnesses for a will (i.e. needing someone to corroborate
the other witness) tells against any rationale for a law that only requires one witness.
Indeed, every violation of the Consistency Principle features legal norms with inconsistent
justifications. With this said, when I use the term inconsistent justifications in the
remainder of the Article, I shall imply that the legal norms in question do not feature any
other Consistency-related faults such as irreconcilable inconsistency.
Principle from various places and times. By exploring many violations, we gain a more
25. Langer & Sauter note this kind of inconsistency too. Langer, supra note 11, at 50 (³Consistency is also
part of appropriate means. For example, there should be no conflicting exceptions or inherent contradictions
between a legal norm and its application.´).
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26. Cardiff v. United States, 194 F.2d 686, 687 (9th Cir. 1952), aff’d, 344 U.S. 174 (1952).
27. Id. at 688.
28. Technically speaking, of course, the inconsistency arose within a single statute. This fact is not important
for our purposes here; however, this fact will be relevant when we consider remedies for inconsistencies below.
When a single statute is inconsistent as the FDCA was in Cardiff¶s time, we can show that the statute violates
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due process by using the rationality test. As I explain below, the rationality test commonly used in modern
substantive due process analysis will not work for most inconsistencies since the discordant norms come from
different statutes.
29. ACLU, CRACKS IN THE SYSTEM: TWENTY YEARS OF THE UNJUST FEDERAL CRACK COCAINE LAW 1
(2006).
30. Id. at 2.
31. Id.
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face then, these laws appear to have inconsistent justifications. Whatever reason one has
for penalizing crack users and dealers at the level one does requires one to penalize cocaine
users and dealers at an equal or greater level.
This conclusion comes too fast though. The 100:1 disparity would be justified if
legislators believed that cocaine had different effects as crack versus powder. 32 Perhaps
Congress did believe this at one time, but multiple government commissions have proven
otherwise and have recommended against the disparity. 33 What else might make sense of
the disparity? If the difference in sentencing were race-based, as many have assumed,34
this would at least make sense, but it would not rescue the sentencing regime from
inconsistency. If the Congress endeavored to heap extra penalties on crack users because
such users tend to be poor Blacks, 35 this would not be a legally permissible ground of
acting. As noted above, we have inconsistency when there is no legally permissible
rationale for maintaining both laws.
Finally, it is important to remember that this disparity is no relic of the past. In 2010,
President Obama signed the Fair Sentencing Act36 into law, which did eliminate the 100:1
disparity. But it replaced that with an 18:1 disparity. 37 Inconsistency remains.38
32. Id. at 4 (³The rapid increase in the use of crack between 1984 and 1986 created many myths about the
effects of the drug in popular culture. . . . For example, crack was thought to be so much more addictive than
powder cocaine . . . .´).
33. The United States Sentencing Commission recommended eliminating the disparity entirely in 1995, but
Congress refused and requested new ³guidelines that did not advocate parity.´ Id. at 6. A second report in 1997
40. Adam Taylor, An All-Female Crew Lands a Plane in Saudi Arabia. But They Can’t Drive From the
Airport., WASH. POST (Mar. 15, 2016), https://www.washingtonpost.com/news/worldviews/wp/2016/03/15/an-
all-female-crew-lands-a-plane-in-saudi-arabia-but-they-cant-drive-from-the-
airport/?noredirect=on&utm_term=.d56c1e1970ef. To be clear, Saudi Arabia did not merely lack a law
prohibiting women from flying planes, which one might see as mere oversight. Saudi Arabia explicitly licensed
women to fly, and much was made of this. Ghazanfar Ali Khan, Female Saudi Pilot Flies High, ARAB NEWS
(Apr. 29, 2014), http://www.arabnews.com/news/558946.
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GULYLQJ ZDV XQGHUJLUGHG E\ FRQFHUQV DERXW ZRPHQ¶V VDIHW\41 and spiritual welfare.42
These concerns are likely very misguided. Nonetheless, if one has these sorts of concerns,
what sense does it make to allow women to fly planes? If one opposes women driving
because they might be exposed to men outside their families, this can happen in a car or a
plane. Moreover, a woman might fly her plane to a place very far from the protection of
her family. Also, if one opposes women driving because a woman out on her own might
be given to sin, (absurd and sexist as such concern may be) this result can just as easily
obtain if a woman could fly a plane to wherever she wishes.
41. Neil MacFarquhar, Saudis Arrest Woman Leading Right-to-Drive Campaign, N.Y. TIMES (May 23,
2011), https://www.nytimes.com/2011/05/24/world/middleeast/24saudi.html (³Many opponents were religious
puritans who object to the very idea of women being exposed to strangers outside their homes by driving.´);
Hassan M. Fattah, Saudi Arabia Debates Women’s Right to Drive, N.Y. TIMES (Sept. 28, 2007),
https://www.nytimes.com/2007/09/28/world/middleeast/27cnd-drive.html (³Clerics and religious conservatives
maintain that allowing women to drive would open Saudi society to untold corruption. Women alone in cars,
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the paradigmatic case, that of irreconcilable inconsistencies, law no longer seems capable
of guiding action. Rendering this general thought more specific leaves us with the Simple
Action Guidance (SAG) Defense.
SAG Defense: inconsistencies are bad because they render law incapable of guiding
action at all.
The SAG Defense is obviously false. Law can guide action even when there are
irreconcilable inconsistencies. If someone faces legal penalties no matter what she does in
the jurisdiction in question, the law may encourage her to leave the jurisdiction, to conceal
herself from law enforcement, or to DFW VR DV WR PLQLPL]H WKH ODZ¶V KDUPV VD\ E\
complying with the legal norm with stiffer penalties, should the penalties differ.
CAG Defense: inconsistencies are bad because they render law incapable of guiding
action as it purports.
So far, this is extraordinarily vague. Allow me to flesh this out. Although a person
can react to the law in various ways and therefore, in the weak SAG sense, be guided by
the law in various ways, there is a stronger sense of being guided by the law. The law has
a certain set of conventions by which it guides in its official way. For instance, if the law
speed minimum together contradict that permission. In criminalizing driving above fifty
44. This is an old insight from punishment expressivists like Feinberg. See generally, Joel Feinberg, The
Expressive Function of Punishment, 49 THE MONIST 397 (July 1965).
45. Supra Part II.A.1.
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miles per hour and driving below sixty miles per hour, the law condemns driving altogether
along the stretch of highway. The law, thus, proclaims that driving on that stretch is
permissible and not permissible. In the same way that stating a contradiction conveys no
information,46 the law says nothing at all about driving along that stretch. Thus, it cannot
guide.47
I very much endorse CAG as a way of understanding legal norms, but the CAG
Defense²that the Consistency Principle must be observed, so that law can guide in the
way that it purports²cannot be the full story. This is not a full defense of the Consistency
3ULQFLSOH(YHQLQWKRVHFDVHVZKHUHODZGRHVJXLGHVXEMHFWV¶EHKDYLRUDVLWSXUSRUWVZH
can still have instances of inconsistency, particularly laws with inconsistent justifications.
Where laws with inconsistent justifications persist, the law does not, through its
conventions, proclaim that the very same conduct is permissible and impermissible.
Instead, Law1 says some conduct C1 is permissible, while Law2 says some other conduct
C2 is impermissible. The law can thus command something. The problem with such
commanding is that there is no legally permissible rationale for allowing C 1 while
prohibiting C2.
If the foregoing is correct, we must look beyond action guidance and must seek a
broader explanation of the fault that Consistency violations entail.
46. Manuel Bremer, Can Contradictions Be Asserted?, 7 LOGIC & LOGICAL PHIL. 167, 169 (1999) (³[A]n
antinomy asserts nothing.´).
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47. I thank Chad Flanders and Mihailis Diamantis for pushing me to explain this point. This explanation not
only helps me set up and knock down a potential defense of the Consistency Principle. It also helps further
explicate what is inconsistent about reconcilable (and irreconcilable) inconsistency. Before the explication in the
text, one might be tempted to think that there is something merely inconvenient about the situation. Now, it
should be clearer that in those inconsistencies, the law speaks with two voices, canceling itself out.
48. Steven M. Teles, Kludgeocracy in America, NATIONAL AFFAIRS, Fall 2013.
49. Id.
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DFFRXQWDEOH2QHPLJKWGHSDUWIURP7HOHV¶VOLPLWHGJRDOVKRZHYHUDQGGHYHORSDGHIHQVH
of the Consistency Principle based on his arguments. In particular, one might argue that
inconsistencies are bad because a) they signal upstream kludges and b) they, themselves,
cause inefficiency and lacks of accountability. Call this the Kludge Defense.
Those who might advocate for the Kludge Defense or some other related concern
HJRQHFDQQRWSODQRQH¶VDIIDLUVLIHYHU\WKLQJRQHGRHVLVFULPLQDOL]HG WKH\QRWHDUHDO
problem with inconsistency, but, like the action-guidance defenses before it, this defense
is too narrow. Inconsistencies need not involve kludges. The crack/powder cocaine
disparity has nothing to do with kludges; it has everything to do with harming a politically
unpopular group. Also, inconsistencies need not to be inefficient. Whenever efficiency is
mentioned as a concern, one must always remember that a means is never inefficient
simpliciter, it is inefficient to a particular end. As such, some means are inefficient to one
end but very efficient for another end. Inconsistencies like the crack/powder cocaine
disparity might be inefficient to the end of stopping drug abuse, but it might be very
efficient for another more nefarious purpose, like re-enshrining Black subjugation.50
50. One, of course, need not accept this particular claim about drug policy to appreciate and accept my general
point: inconsistency is not necessarily inefficient; thus, inefficiency cannot be the problem with inconsistency.
51. Danny Priel, The Boundaries of Law and the Purpose of Legal Philosophy, 27 L. & PHIL. 643, 646 (2008)
(³Much of what descriptive legal philosophers are concerned with is the question of boundaries, that is, the proper
way of distinguishing between those things in the world that are laws and those things in the world that perhaps
bear some resemblance to law but nonetheless are not laws . . . . They do so by looking at legal practice and by
trying to distinguish it from other normative practices and systems of norms (etiquette, rules of clubs, social
norms, morality and so on).´).
52. For a discussion of characteristics of law that particularly distinguish it from club rules, see RAZ, supra
note 10, at 116±20.
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53. See, e.g., HART, supra note 16, at 181±207; Mark C. Murphy, The Explanatory Role of the Weak Natural
Law Thesis, in PHILOSOPHICAL FOUNDATIONS OF THE NATURE OF LAW 3 (Wil Waluchow & Stefan Sciaraffa
eds., 2013).
54. For an early discussion of the difference between law and thugs who make demands on us, see HART,
supra note 16, at 19±23. For more recent discussion on the difference between organized crime and legal systems,
see SCOTT J. SHAPIRO, LEGALITY 215±16 (2011). But see, Matthew Kramer, Requirements, Reasons, and Raz:
Legal Positivism and Legal Duties, 109 ETHICS, Jan. 1999, 375, 393±95 (eliding the mafia/law distinction).
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whims of others,55 or, more colorfully, they live under the thumb of a mafioso. Ultimately,
mafiosos are under no compunction to justify their various demands; 56 their swords and
guns have the last word. To live under law, by contrast, the demands on our freedom
imposed by legal officials ± these have to be undergirded by reasons, and the reasons given
by the officials have to be reasons that can do the justificatory work, at least by the
RIILFLDOV¶OLJKW2WKHUZLVHZHMXVWKDYHO\LQJPDILRVRV:KHQWKHµOHJDO¶V\VWHPWUHats us
as involuntary clients of lying mafiosos, we are disrespected.57 We are treated as mere
PHDQVIRUWKHSXUVXLWRIRWKHUV¶HQGV 58
It is not important that we investigate the beliefs and desires of each and every legal
official in our jurisdiction to determine whether we are disrespected in this way. Rather,
as legal subjects, we should be able to look at our legal system as a whole and affirm it as
something that is decidedly not the mere whim of mafiosos. That means that the full set of
legal norms has to be undergirded by a coherent set of reasons. Otherwise, we should infer
we live under a mafia, under people who are not bound to give us reasons. This, no doubt,
sounds dramatic, but consider how inconsistent legal norms sound to someone bound by
them. The North Carolina government told Copening they were protecting his privacy by
showing his naked photos to a host of adults, releasing his name for journalists and others
to see, and threatening to put him on a sex offender registry. This would be hilarious if it
were not tragic.
55. A line from Joseph Raz is especially helpful here: ³[A]n act which is the exercise of power is arbitrary
only if it was done either with indifference as to whether it will serve the purposes which alone can justify use
of that power or with belief that it will not serve them.´ RAZ, supra note 10, at 219.
56. As Scott Shapiro notes, ³When organized crime happens to solve moral problems, these occurrences are
treated by us as serendipitous, as happy accidents. By contrast, the moral benefits generated by a just legal system
are not accidental or side effects of legal activity; rather, producing them is the very point of its activity.´
SHAPIRO, supra note 54, at 216.
57. Again, Raz helpfully explains this intuition: ³[O]bservance of the rule of law is necessary if the law is to
respect human dignity. Respecting human dignity entails treating humans as persons capable of planning and
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plotting their future . . . respecting their autonomy, their right to control their future.´ RAZ, supra note 10, at 221.
While Raz is talking generally about the rule of law, what he says applies specifically to the Consistency
Principle, an element of the rule of law.
58. IMMANUEL KANT, GROUNDING FOR THE METAPHYSICS OF MORALS, at Ak. 429 (James W. Ellington
trans., 3d ed. 1993) (³Man, however, is not a thing and hence is not something to be used merely as a means.´).
59. Karl Marx, Theses on Feuerbach, in THE MARX-ENGELS READER 143, 145 (Robert C. Tucker ed., 2d ed.
1978).
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60. Maybe prohibitory injunctive relief could be warranted too, but settling that questions takes us far afield
from the present inquiry, which is simply the general constitutional remedy.
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64. Lambert v. California, 355 U.S. 225, 228 (1957) (³Engrained in our concept of due process is the
requirement of notice.´).
65. Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926) (³[A] statute which either forbids or requires the
doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and
differ as to its application violates the first essential of due process of law.´).
66. Landgraf v. USI Film Prods., 511 U.S. 244, 266 (1994) (³The Due Process Clause also protects the
interests in fair notice and repose that may be compromised by retroactive legislation.´).
67. Cendant Corp. & Subsidiaries v. Dep¶t of Revenue, 226 P.3d 1102, 1109 (Colo. App. 2009), as modified
on denial of reh’g (Colo. App. 2009) (³There can be no secret laws because they violate very basic considerations
of due process.´) (internal quotations omitted).
68. United States v. Gresham, 118 F.3d 258, 262 (5th Cir. 1997) (mentioning that some courts have held ³it
would violate due process to convict a defendant for violations of a statute when compliance with it
is legally impossible´ then holding otherwise).
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69. The Bill of Attainder Clauses (U.S. Const. art. I, § 9, cl. 3; § 10, cl. 1) generally prevent legislatures from
simply declaring that some named parties are to receive ill treatment. This suggests commitment to the idea that
law ideally functions as setting out general rules of conduct, rules that parties can use to regulate their behavior,
rules that a judiciary might use to determine compliance.
70. See supra Part II.B.1.
71. United States v. Cardiff, 344 U.S. 174 (1952).
72. See infra Part III.A.3.c.
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a. First Amendment
The first alternative remedy to consider looks to a different constitutional provision.
Instead of taking a due process approach, one might argue that the North Carolina sexting
law violates the First Amendment.74 This approach may appear to be a non-starter, for it
is no secret that courts have long recognized that the First Amendment does not protect
obscene materials in general75 and explicit images of minors in particular.76 Some scholars
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73. The preceding overview of substantive due process can be found in many places; one of the best is ERWIN
CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 814±18 (4th ed. 2011).
74. Professor Mary Anne Franks is quoted making this argument in Miller, supra note 3.
75. Roth v. United States, 354 U.S. 476, 481 (1957) (³[T]his Court has always assumed that obscenity is not
protected by the freedoms of speech and press.´).
76. New York v. Ferber, 458 U.S. 747, 763 (1982).
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77. E.g., John A. Humbach, “Sexting” and the First Amendment, 37 HASTINGS CONST. L.Q. 433 (2010).
78. Paul Woolverton, Sexting Charges Dismissed for Fayetteville Teenager, FAYETTEVILLE OBSERVER (July
7, 2016, 12:01 AM), http://www.fayobserver.com/bae7b802-8b76-542b-9cd5-f0671cee3d47.html. It is unclear
from the journalistic report whether Copening¶s mother advocated for a law that would outright permit teen
sexting or whether she merely wanted a law with less strict penalties for the behavior.
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finds it in the particular jurisdiction in which it arises, (2) one might propose that Congress
and each state pass a single law that nullifies all instances of inconsistency, or (3) one
might hope for a single piece of legislation that purports to nullify all instances of
inconsistency. These emendations to the legislative fix invite new worries.
The first two emendations should be rejected as too unwieldy. Employing strategy
(1) could require countless new laws over time. Under (2), we need fifty-one new laws.
Though fifty-one is more manageable than the untold number of laws that might be needed
under (1), any scheme requiring fifty-one different sets of legislators to agree should be
rejected if a more practicable option exists. Option (3) is the most promising, but it is beset
by federalism problems. This contemplated single piece of legislation would have to be a
piece of federal law. If it were not federal law, it clearly could not remedy instances of
federal law that violate the Consistency Principle because state and local lawmakers cannot
repeal or otherwise invalidate federal law. 79 Moreover, no states can bind other states.80
However, even if it were a piece of federal legislation, purporting to bind all federal, state,
and local lawmakers, there would be a different federalism problem: Congress has no
power to regulate every area of state law. 81
c. Notice
A more promising and more general approach is to suggest that there is a failure of
notice when laws violate the Consistency Principle. Even from the perspective of someone
advocating for a due process theory, the notice theory has two advantages: first, notice
requirements are part of the requirements for due process, and thus, the notice theory is a
due process theory, and second, the Supreme Court has used a notice theory to strike down
a conviction when the defendant faced a reconcilable inconsistency. 82
Two problems attend the notice theory. First, current understandings of the notice
requirement cast doubt on the willingness of courts to extend the theory to inconsistent
justifications writ large. Second, just as a matter of semantics, it seems false to say that
79. Ableman v. Booth, 62 U.S. 506, 516±17 (1858) (holding that states cannot nullify federal law).
80. BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 571 (1996) (³[I]t is clear that no single State could . . .
impose its own policy choice on neighboring States.´); Brown-Forman Distillers Corp. v. N.Y. State Liquor
Auth., 476 U.S. 573, 582±83 (1986) (³[One state] may not project its legislation into other States.´) (internal
citations and brackets omitted); Bonaparte v. Appeal Tax Court of Balt., 104 U.S. 592, 594 (1881) (³No State
can legislate except with reference to its own jurisdiction.´).
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81. Of course, there is a theory on which Congress could regulate all areas of state law to attempt to remedy
all inconsistencies: it could claim that it was relying on its enforcement power granted by the Fourteenth
Amendment. U.S. CONST. amend. XIV, § 5. This theory, of course, requires that inconsistencies run afoul of
some Fourteenth Amendment guarantee. Thus, this legislative fix presupposes the correctness of some other
theory, which means that it is incomplete. Coincidentally, if my Due Process remedy is correct, Congress could
then pass statutes to try to stamp out inconsistencies.
82. United States v. Cardiff, 344 U.S. 174 (1952).
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but if part of the draw of the notice theory is that courts are already doing something like
that, this attraction is only partially right.
That courts have not extended the fair notice doctrine to cover inconsistent
justifications should not be surprising, for it seems patently false to claim that one has no
notice of what Government will do in many cases of inconsistency. To see this, consider
the speed limit/minimum case. Along that stretch of highway, if one drives, one runs the
risk of getting caught for breaking one of those traffic laws. If this silly confluence of laws
were longstanding, it would be disingenuous to contend that one had no notice in the
normal sense of the word. Consider also the crack/powder cocaine disparity. A disparity
in some form has been in place for over thirty years. Anyone who receives punishment for
dealing crack had notice. Make no mistake, those who face inconsistent laws have been
harmed, but their harm is the disrespect that legal inconsistency necessarily occasions, not
the harm from a failure of notice.
d. Equal Protection
The next alternative remedy to consider is an equal protection theory. To understand
how this remedy is supposed to work and why it is ultimately too limited, we must set out
in brief modern equal protection doctrine.
Under modern equal protection doctrine, courts evaluate whether government action
YLRODWHVWKH&RQVWLWXWLRQ¶VJXDUDQWHHRIHTXDlity by reference to three standards of review:
strict scrutiny, intermediate scrutiny, and rational basis review. 83 Strict scrutiny,
DSSURSULDWH ZKHQ WKH JRYHUQPHQW DFWLRQ FODVVLILHV RQ WKH EDVLV RI ³UDFH DOLHQDJH RU
QDWLRQDORULJLQ´RUZKHQWKHFODVVLILcation infringes on a fundamental right, requires the
government to show that the classification is narrowly tailored to furthering a compelling
government interest.84 Intermediate scrutiny, appropriate when the government action
classifies on the basis of sex, gender, or legitimacy, requires the government to show that
the classification is substantially related to furthering an important government interest. 85
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reason for the exclusion.88 Thus, some legal norms that violate the Consistency Principle
would also fail rational basis review under the Equal Protection Clause. However, the
important word in the previous sentence is some. There are many ways to violate the
Consistency Principle without following the structure of giving a benefit to one group and
withholding it from another. For instance, consider the irreconcilable inconsistency
offered at the outset, that of the student who must appear in court and appear in school at
the same time. This example features irrationality, but not an irrational classification. The
same is true of our speed limit/minimum example, for that case too features no irrational
classification. Indeed, many irreconcilable and reconcilable inconsistencies will not
violate the Equal Protection Clause. Laws with inconsistent justifications are those most
likely to violate the Clause.
The Equal Protection remedy is thus partial. It cannot reach all instances of
inconsistency. As noted above, ceteris paribus, partial remedies are to be rejected when a
complete remedy, like the Due process remedy, is on hand.
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give way to a legislature that insists on a particular construal of its legislation.92 This latter
point is instructive for thinking about how the canon remedy would work in practice and
for seeing the limitation of this remedy. If the canon remedy were in use and were applied
to a set of irreconcilable criminal laws, it would allow a court to interpret the inconsistent
laws such that the criminal defendant would not be liable for not complying with one law
in the set. Essentially, the court would claim that one of the criminal laws at issue is to be
UHDG DV H[HPSWLQJ SDUWLHV IURP FULPLQDO OLDELOLW\ LI WKH SDUW\¶V FULPLQDO DFWLRQ ZDV
compelled under threat of criminal penalty. Suppose that, after a court hands down its
ruling, the legislature writes a new law expressly disclaiming any such exemption. At this
point, a court would not be free to employ the consistency canon again, to read in
exemptions that the legislature deliberately withheld. Thus, the canon remedy can only go
so far if a legislature is committed to violating the rule of law.
The canon remedy is, then, a provisional kind of solution to violations of the
Consistency Principle. The Due Process remedy, by contrast, is final. Short of changing
RXUFRQVWLWXWLRQDOVWUXFWXUHQRRQHZLOOEHDEOHWRGLVUHJDUGFRXUWV¶DWWHPSWVWRVWDPSRXW
consistency violations. For those partial to the canon remedy, I should note what might
count as an added bonus for the Due Process remedy: courts will regularly read statutes
such that they do not contravene the Consistency Principle because of the constitutional
avoidance canon.93 Thus, these two strategies will, more or less, coincide.
B. Objections
Several worries attend the kind of cause of action for which I advocate. First, one
might worry that there might be too many inconsistencies, such that no one can be
prosecuted for anything. Second and alternatively, one might worry that any seeming
inconsistency can be made consistent, such that this theory of relief will help no one. Third,
one might wonder whether there is positive value to having inconsistencies in the legal
system, value that might be lost, were my theory to be accepted. Fourth, one might worry
92. As the Court noted about the absurd results canon, ³[j]udicial perception that a particular result would be
unreasonable may enter into the construction of ambiguous provisions, but cannot justify disregard of what
Congress has plainly and intentionally provided.´ Comm¶r v. Asphalt Prods. Co., 482 U.S. 117, 121 (1987).
93. Crowell v. Benson, 285 U.S. 22, 62 (1932) (³When the validity of an act of the Congress is drawn in
question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will
first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.´).
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LVDIRRO¶VHUUDQG94
There are two ways to respond to this worry. One can deny that violations are so
numerous, or one can bite the bullet and say that we ought to combat violations even if
they lurk at every turn. I shall take the first path, for true inconsistencies are less common
than a potential objector might think. It is implausible to suggest that irreconcilable
inconsistencies are everywhere. The most plausible version of this objection suggests that
laws with inconsistent justifications are everywhere. To see that this too is an exaggeration,
I consider two situations where significant inconsistencies seem to arise, but I show how
the seeming inconsistencies can be resolved. The proceeding test cases should allow us to
see that many seeming consistency problems can be similarly defused.
The first case concerns abortion. Legal abortion and fetal homicide laws appear to
be in tension. To put the point more formally, one might think there is an inconsistency
between permitting abortions and criminalizing as murder the intentional killing of a fetus
by someone other than a mother or her agents. 95 One might see inconsistent justifications
because one might believe that the only justification for permitting abortions is that fetuses
are not persons and further that the only justification for criminalizing as murder the
intentional killing of a fetus is that fetuses are persons.96 This seeming inconsistency can
be fixed, as there are justifications for abortion that grant the personhood of fetuses.97 One
PLJKWMXVWLI\DERUWLRQE\KROGLQJWKDWIHWXVHVKDYHQRPRUDOULJKWWRDZRPDQ¶VERGLO\
UHVRXUFHVMXVWDVDVLFNSDWLHQWPD\KDYHQRPRUDOULJKWWRDKRVSLWDO¶VUHVRXUFHV± even if
denial of such resources would result in the rHVSHFWLYH SHUVRQ¶V GHDWK 6WLOO VR WKLV
justification would continue, it would be wrong for someone else to murder the fetus or
sick patient once the mother or hospital has decided to extend support for the furtherance
RIWKHUHVSHFWLYHSHUVRQ¶VOLIH
The second case concerns a heart-wrenching story involving a family raising a child
with severe mental illness.98 Jim and Toni Hoy adopted Daniel as a toddler and raised him
alongside their other three children. Though Daniel was a typical toddler, after a few years,
the young boy began having violent outbursts. The Hoys sought medical attention but often
94. The foregoing is my best reconstruction of an excellent point raised by Etienne Toussaint.
95. See, e.g., 18 U.S.C. § 1841 and Ala. Code § 13A-6-1 for laws that criminalize this way.
96. For a version of this argument, see Arina Grossu, Fetal Homicide Laws and the Logical Inconsistency of
Abortion, FAMILY RESEARCH COUNCIL (Mar. 7, 2014), https://www.frc.org/op-eds/fetal-homicide-laws-and-the-
logical-inconsistency-of-abortion.
97. E.g., Judith Jarvis Thomson, A Defense of Abortion, 1 PHIL. & PUB. AFF. 47 (1971). The proceeding
argument in the text is a variant of Thomson¶s arguments in that article. For a similar point made thirty-four years
later, see Carolyn B. Ramsey, Restructuring the Debate over Fetal Homicide Laws, 67 OHIO ST. L.J. 721, 724
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(2006) (³Proponents of legal abortion have much to lose by agreeing to conduct the debate about reproductive
rights within a framework that hinges on the status of the fetus and thus sidelines the threat to the pregnant
woman¶s autonomy.´).
98. Christine Herman, To Get Mental Health Help for a Child, Desperate Parents Relinquish Custody, NPR
(Jan. 2, 2019, 2:31 PM), https://www.npr.org/sections/health-shots/2019/01/02/673765794/to-get-mental-
health-help-for-a-child-desperate-parents-relinquish-custody. I thank Colin Miller for bringing this case to my
attention.
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bR\VDSDUW´99 When the Hoys again came to a hospital, seeking help for Daniel, they were
turned away because of their inability to pay. More bad news was to come that day, for the
Illinois Department of Children and Family Services WROG 0UV +R\ ³,I \RX EUing him
KRPHZH¶UHJRLQJWRFKDUJH\RXZLWKFKLOGHQGDQJHUPHQWIRUIDLOXUHWRSURWHFW\RXURWKHU
kids . . >D@QGLI\RXOHDYHKLPDWWKHKRVSLWDOZH¶OOFKDUJH\RXZLWKQHJOHFW´ 100
This second case may sound like it features an inconsistency.101 If the Hoys take
Daniel home, they break the law; if they leave him where he is in the hospital, they break
the law. This would be an inconsistency of some kind, were the only two places in the
world the Hoy household and the hospital. Of course, this is not so. There were lots of
other options: they could have left Daniel with a relative or friend who does not have
children, one parent could have gotten a second home to raise Daniel away from the other
three children, or they could have done what they, in fact, did do. Jim and Toni
relinquished their custody of Daniel, so that he would become a ward of the state and
receive the medical attention he needed for free. No doubt this was a tragedy. No one
should minimize this, but, if the preceding is correct, what happened to the Hoys was no
violation of the Consistency Principle after all.
&DQ¶W$Q\WKLQJ%H0DGH&RQVLVWHQW"
The foregoing response to the first objection, however, makes defending against the
second objection all the more difficult. One might worry that an ingenious government
attorney will always find a way to make sense of why a jurisdiction should have two laws,
even if there is a seeming tension between said laws. This weighty objection merits a more
thorough response than I can provide, so my response will be partial.
The due process argument I propose is much like rationality review used in both
substantive due process jurisprudence and equal protection jurisprudence. While
rationality review is easy to satisfy in many cases, 102 it is not toothless. Likewise, what
one might call Consistency Review would be easy to satisfy in many cases, but it, like
rationality review, would not be toothless either.103 If the most ingenious government
99. Id.
100. Id.
101. Colin Miller suggested this to me both in person and online, Colin Miller (@EvidenceProf), TWITTER
(Jan. 3, 2019, 9:48 PM), https://twitter.com/EvidenceProf/status/1081034583712374785 (³[A] Catch-22: take
him and you¶re committing a crime; DON´T [sic] take him home & you¶re committing a crime.´). This is also
how Mr. Hoy himself understood his experience, for he said of the Department of Family and Children Services¶
ultimatum, ³[t]hey put our backs against the wall, and they didn¶t give us any options.´ Herman, supra note 98.
102. Jeffrey D. Jackson, Classical Rational Basis and the Right to Be Free of Arbitrary Legislation, 14 GEO.
J.L. & PUB. POL¶Y 493, 494 (2016) (³[A]lmost any possible legislation can be justified under modern rational
basis review.´); Raphael Holoszyc-Pimentel, Reconciling Rational-Basis Review: When Does Rational Basis
Bite?, 90 N.Y.U. L. REV. 2070, 2071 (2015) (³Rational-basis review, the most deferential form of scrutiny under
the Equal Protection Clause, rarely invalidates legislation.´).
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103. Robert C. Farrell, Successful Rational Basis Claims in the Supreme Court from the 1971 Term Through
Romer v. Evans, 32 IND. L. REV. 357 (1999) (³This Article addresses successful rational basis claims under the
Equal Protection Clause in the Supreme Court. These cases are sufficiently rare to stand out as unusual, but they
do exist.´); Katie R. Eyer, The Canon of Rational Basis Review, 93 NOTRE DAME L. REV. 1317, 1341±53 (2018)
(arguing that we only view rationality review as ineffectual and overly-deferential owing to myopic focus on
Supreme Court cases, to the exclusion of state court cases).
104. In Holoszyc-Pimentel, supra note 102, at n.2, we get a list of cases where the Supreme Court has held
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that a law violated Equal Protection, using rationality review: United States v. Windsor, 570 U.S. 744
(2013); Romer v. Evans, 517 U.S. 620 (1996); Quinn v. Millsap, 491 U.S. 95 (1989); Allegheny Pittsburgh Coal
Co. v. Cty. Comm¶n, 488 U.S. 336 (1989); City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432
(1985); Hooper v. Bernalillo Cty. Assessor, 472 U.S. 612 (1985); Williams v. Vermont, 472 U.S. 14
(1985); Metro. Life Ins. Co. v. Ward, 470 U.S. 869 (1985); Plyler v. Doe, 457 U.S. 202 (1982); Zobel v.
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Williams, 457 U.S. 55 (1982); U.S. Dep¶t of Agric. v. Moreno, 413 U.S. 528 (1973); James v. Strange, 407 U.S.
128 (1972); Jackson v. Indiana, 406 U.S. 715 (1972); Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164
(1972); Eisenstadt v. Baird, 405 U.S. 438 (1972); Lindsey v. Normet, 405 U.S. 56 (1972); Reed v. Reed, 404
U.S. 71 (1971).
105. FYODOR DOSTOYEVSKY, THE BROTHERS KARAMAZOV (Bk XII, Ch. XII).
106. U.S. CONST. art. I, § 9; id. amend. X.
107. U.S. CONST. art. VI, cl. 2.
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4. Judicial Activism
The final objection to be considered is a worry about the potential for judicial
activism, should courts attempt to eliminate inconsistency from American law. In its most
plausible version, this objection admits that irreconcilable and reconcilable inconsistencies
should be subject to judicial review and rectification, but the objector would draw the line
there. The objector would contend that the other two categories of inconsistency ±
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09/18/2019 11:37:45
enforcement ± are too political. To find that two laws cannot rationally accommodate one
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another is to make a subjective, political decision, one might think. In our system of
governance, we do not entrust judges with such decisions. Such decisions should remain
with the political branches of government, the executive and the legislature, for they, not
judges, are democratically accountable. Call this the Judicial Activism Complaint. Below
I advance two responses to the Complaint.
The first response is to reject the main premise of the Complaint, namely that judges
are not democratically accountable as a general matter. Were laws reviewed for
consistency, as I advocate, many cases would likely come before state courts. As I envision
it, most of the people who would litigate consistency concerns would be appealing criminal
convictions, convictions for violating state law. In particular, the average criminal
defendant bringing such an action would contend that the justification of the state statute
under which he was convicted was inconsistent with either the method of prosecuting him
or with the justification of some other state statute. In the envisioned situation, allowing
courts to resolve this problem would not be undemocratic because ³[t]he majority of state
court justices and judges in this country are elected.´111 Of course, we can imagine
consistency issues also arising in federal courts; if so, the Complaint rears its head again.
However, we must be careful here. While federal judges are appointed, they are appointed
by elected officials in a process that is highly politicized; thus, it is hard to claim that the
demos has no input.
This first response is unlikely to convince those who would press the Judicial
Activism Complaint. Potential objectors can concede that judges have some democratic
accountability yet still worry that my proposal gives judges, bearing too little democratic
accountability, too much leeway to decide matters based on personal whims, rather than
law.
Here I shift, then, to the second response to the Complaint. Allowing Consistency
review will empower courts no more than employing current rationality tests. Courts, both
state and federal, already ask whether laws rationally advance their conceivable objectives
under rationality tests, which are components of both Equal Protection and Substantive
IV. CONCLUSION
This Article has sought to fill a gap in both our legal understanding and practice.
Though previous writers have discussed legal inconsistency, this Article has offered a
more comprehensive view of the phenomenon, by differentiating the various kinds of legal
inconsistency, highlighting several of its instances, and explaining why avoiding
inconsistency matters. I have argued that there are four kinds of legal inconsistencies:
irreconcilable inconsistency, reconcilable inconsistency, inconsistent justifications, and
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are problematic because, when a polity allows inconsistencies to persist, it disrespects its
111. Sandra S. Newman & Daniel M. Isaacs, Historical Overview of the Judicial Selection Process in the
United States: Is the Electoral System in Pennsylvania Unjustified?, 49 VILL. L. REV. 1, 13 (2004).
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legal subjects, tells them that they do not deserve to be given reasons for the various legal
demands placed on them. In responding to the gap in our practice, no one has fully
theorized what remedies for inconsistency might exist under American law. I have put
forward a Due Process solution. Though this may not be the last word on either the
descriptive or remedial fronts, I hope to have pressed the conversation forward.
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