Chapter 1
Law & the Web of Society:
An Introduction
The Law, wherein, as in a magic mirror, we see reflected not only
our own lives, but the lives of all men that have been!
- Oliver Wendell Holmes, Jr., 18851
Perhaps no one has ever said it more eloquently than Justice Holmes. For indeed, the
march of law throughout history is a reflection of all the loftiest aspirations, deepest sorrows, and
most mundane daily contrivances of humanity. It speaks to our great purposes when, as in our
American Constitution, it strives to create “a more perfect Union” dedicated to justice, peace and
liberty.2 It speaks to our most profound anguish in documents like the International Convention
on the Prevention and Punishment of the Crime of Genocide.3 And it speaks to our
comparatively modest day-to-day needs in the thousands upon thousands of statutes and
ordinances aimed at such commonplace matters as traffic speeds, garbage removal, and food
safety. Law is the mirror of all that we want (and have ever wanted) to achieve and of all that we
want (and have ever wanted) to avoid.
And, we could take Holmes a step further. His metaphor suggests a one-way reflection –
law as mirror of us. But, surely, the reflection works both ways. For we as humans, collectively
and individually, also mirror the law. Most everything we do reflects some consideration of law,
and it does so whether we know it or not.
Indeed, the human life cycle and the law are inextricably intertwined from beginning to
end, both in the broadest societal sense and in the six to eight decades that most of us are
individually afforded here on earth. The law reaches us, and we it, from our genesis in the
embryonic fluid to our final resting place six feet under. In that respect, law and life take on
more than the smooth plane properties of a two-way mirror. To use a different metaphor, they
form a continuous and exquisitely complex web, woven around and about all that we do and all
that we are.
That metaphor – of law and society in a webbed relationship – is the one that informs our
thinking, and, consequently, that of this book.4 It is a particularly apt analogy in two respects.
First, from the perspective of one deep within the interior of a web, the web itself, composed of
all its many tangled threads, seems all-encompassing – it is ubiquitous. And so do we social
creatures find ourselves embedded in a social/legal structure whose extensive threads reach back
through the millennia, forward through generations yet to come; back through our conceptions,
forward through our deaths.
Second, webs are meandering, mysterious objects – they are inherently ambiguous. But
to the entomologist and the spider herself, they seemingly have no beginning nor any end. Too,
the relationship between law and society, though ubiquitous, is riddled with ambiguity, as law
serves seeming cross-purposes in society and society, in turn, demands contradictory deeds from
the law.
LAW AND SOCIETY: THE UBIQUITOUS WEB
In this book, we take law to be ubiquitous – to be everywhere – in two distinct, but interrelated
senses. It is pervasive in the very broadest socio-historical sense. Thus, the LAW writ large,
even as it informs and governs us today, threads back through the very furthest reaches of human
history. Indeed, in one very important meaning, it actually precedes human history. Thus, as we
discuss later in the book, classical liberal theories of natural law maintain that law is not
produced by any government entity; rather it simply exists to be discovered as part of the natural
order of the universe. The fact that such ideas are neither provable nor disprovable, makes little
difference. What does make a difference is the fact that our Founders relied heavily upon a
theory of natural law in constructing the basic guarantees of the U.S. Constitution. Thus,
whether we accept or doubt the existence of natural law, we are inextricably and significantly
tied to this ancient idea.
Nor is our social relation to natural law the only filament which tethers us to a long line
of ancient legal thought. So, the Law, at the turn of the 21st century is a complex web, the result
of century upon century, layer upon layer, of customary principle, statutory enactment,
regulatory fiat, and judicial interpretation, all linked to the delicate task of civilizing society and
social relationships. This very broadest sense of ubiquity will be addressed in Chapters 2 and 3.
Law, however, is ubiquitous in another, more ordinary sense. And it is this sense that
informs the remaining chapters of the book. For law is both more and less than a grand, abstract
web woven about all of human history. It is the stuff of everyday life, of the individual’s
everyday life, and of the individual’s everyday life all day long and from cradle to grave. The
web, in other words, envelops and binds not just law and society, but you, specifically, as a part
of law and society.
The Law: From Cradle to Grave.
Follow John Q. Public, ordinary American citizen, through just a few of the high points
of his life. John is conceived. His mother’s initial decision – whether to maintain or end the
pregnancy – is taken under color of judgments made by the U.S. Supreme Court5 and a tangle of
regulations based in federal and state legislative statutes.6 Depending upon which state his
embryonic debut takes place, his mother’s behavior – whether she drinks, takes drugs, gets prenatal care – may be governed by the law.7
John is born – a full-fledged human being after nine months in the womb. Like most of
us, he makes his entrance in a state-regulated hospital, his birth immediately recorded for the
purposes of obtaining a state-issued birth certificate. This certificate, required by law, will later
be essential to his obtaining such other legally essential items as his federally-mandated social
security number and his state-allocated driver’s license.
As a newborn, and on through his childhood, John will be required by law to obtain a
series of immunizing vaccinations from a legally-licensed medical practitioner, both for his own
protection against deadly disease and for the protection of those around him. If John does not
receive the mandatory shots, he will not be allowed to spend his earliest time away from home at
a decent daycare center (one licensed by the law of the state), nor, later, will he be able to attend
school, something he is required to do by law in most states until he is about 16 years old.
As a typical middle class American kid, John will receive, throughout the course of his
childhood, hundreds of toys from his doting parents and relatives. These toys, his folks presume,
meet certain safety standards, the product of regulations drawn up under color of law. Since the
vast majority of his toys will be made in China, they are governed by a series of (very loosely
enforced) laws designed to prevent the importation of goods made by child- or forced prisonlabor.8
John’s parents also presume that the food he eats at home has been inspected by
government agents, to ensure its safety. And, they assume that the hundreds of “Happy Meals”
he will ingest over the course of his childhood have been cooked at legally-established
temperatures so that he never succumbs to E.coli bacteria.9
Of course, as we have said, John will spend most of his youth in school. There, he will
be educated by teachers who must meet a number of requirements mandated by state law. The
subjects he is taught, too, are the product of law. And, increasingly, he will take one after
another after another after another legally-mandated competency tests to prove that he has
learned all that the law requires him to be taught.10
When he graduates high school, John will decide whether to enter the workforce, or go
on for more education. If he decides to go directly to work, his employment will be governed by
layer-upon-layer of law – law that determines the minimum salary he can be paid;11 whether and
under what circumstances he may band together with other employees to demand better wages
and conditions from his employer;12 the level of safety he can expect on the job;13 his rights to be
free from discrimination14 and harassment;15 and the amount of his paycheck that he must fork
over to the government, to name just a very few.
If he opts to prolong his educational experience, he no doubt will apply for any one or a
number of grants and loans established, over the years, by federal and state lawmakers. He will
expect, of course, that his college or university abides by the many civil rights laws promulgated
over the past four decades – some aimed specifically at educational institutions.16 And, he will
complete his education only by complying with the many by-laws established by the school he
attends – if he is one of the majority of students who attends a public institution, a lot of these
will have been set by the state legislature.
Within his early adulthood, we can anticipate John falling head-over-heels in love. If he
follows the normal course of events, he will want to get married. In a very significant respect,
the law determines whom he can (or more appropriately, whom he cannot) wed.17 In order to be
socially recognized, the law must license his nuptials. This is extremely important, for without
the legal nod, John cannot expect his life partner to share in the economic benefits to which he
will someday be entitled.
Later, if John is one of the unlucky “50 percent,” he or his spouse will decide to call it
quits. The end of his legal union, and his rights and duties thereafter, will have been spelled out
by state law. His divorce will be finalized, his property divided, and the custody of his children
determined by a court of law.
Remarried (and happy, we trust) later in life, John decides to spend his waning years in
comfortable retirement. Presumably, he will receive benefits from the social security fund into
which he has been required by law to put a portion of his paycheck throughout his working life.
And, hopefully, the employer maintaining his private pension fund has abided by laws regulating
the investment and disbursement of such monies.
Many years later, after John buries his second wife, according to state regulations, his
own failing health forces his children to place him in a nursing home.18 Their guilt is assuaged
somewhat by the thought that this home meets the legal standards of adequate end-of-life care.
Finally, ravaged by cancer and heart disease, John asks his care-givers to hasten the inevitable
end through lethal injection. Whether they can or cannot honor his request is matter of – guess
what? – law.19
The Law: All Day Long.
Having followed John Q. Public through a lifetime, we will now follow Jane Doe through
a single day. Jane, let us say, is a typical American college student. Thus, when her alarm goes
off at 7A.M. to wake her for her first 8 o’clock class, she naturally shuts it off, rolls over, and
goes back to sleep. When she does awake sometime around 11 (oh well, there’s always the
afternoon classes), she brushes her teeth, washes her hair, and scrubs herself confident in her
cleanliness because her toothpaste, shampoo, and shower soap all bear legally-required labels
listing their cleaning ingredients.20
Fresh and ready to learn, Jane jumps in her car. Though she resents the way it wrinkles
her clothes, she fastens her seatbelt because that is what the law demands.21 Her normal 80mph
cruise around the beltway headed toward school is slowed on three occasions – twice by the sight
of a police car whose occupant might easily pull her over for exceeding the 55mph limit set by
law, and once by the road construction being funded by a recently passed congressional
transportation act.22
Once on campus, and with an entire hour to go until her 2P.M. class, Jane settles in at the
Union with friends to drink coffee and grab a bite to eat. She is entirely confident that the food
and drink she buys will not sicken her because she knows they must meet certain legal standards.
In the middle of this pleasant repast, she panics, remembering that her professor has scheduled a
quiz for today. She fumbles nervously for a cigarette, but must go outside to smoke it since hers
is a state university and the legislature recently enacted a law banning lighted tobacco products
in public buildings.23
Anxiously approaching her classroom, Jane is delighted by that which universally brings
joy to college students: the “Class Canceled” sign. It seems her professor has been called to jury
duty and must, by law, make an appearance at court. Jane and her classmates thus wander
outside where a group of students is staging a protest. Fascinated, Jane watches as one of the
protestors sets fire to an American flag. As campus police descend on the dissidents, they
scream something about their free speech rights, presumably protected by the First Amendment
to the Constitution. The police, as they haul the students off, cite several university and local
ordinances aimed at preventing disturbances of the peace.24
After attending two late afternoon classes, Jane heads off to soccer practice. She feels
lucky knowing that while her mother had very limited athletic possibilities, today, the university
must, by law, allocate resources to her team, equal to those of the men’s team (Title IX, Civil
Rights Act of 1964). Though buoyed by this ideal of equality, Jane is disturbed when she learns
that the university has instituted new rules, requiring its student-athletes to submit to periodic
urine testing for drugs. When Jane and her colleagues protest this invasion of privacy, they are
assured that such testing has been upheld by the courts -- it’s legal (See, e.g., Vernonia School
District 47j v. Acton, 515 U.S. 646 (1995)).
Following practice, Jane hunkers down at the library for an evening of study. At 10P.M.,
proud of the work she has accomplished, Jane would like to unwind with a beer. But, Jane is
only 20 years old, and the law says she must be 21 to drink.25 Thus, her decision is not simply
whether to grab a brew, but whether to relax within or without the law. And so, Jane ends her
day as she began it, wrapped in the complex web of law.
We live a life, and we live it day-by-day, in the web of law.
LAW AND SOCIETY: THE AMBIGUOUS WEB
It would indeed make life easier – both in the broad societal sense and in the
individualized sense faced by John and Jane – if the ubiquitous web of law and society were a
simple, straightforward affair. But webs, by their nature, are complex things. And complex
things are seldom easy things. We ask much of law, and much of what we ask is inherently
contradictory. Thus, for example, as we shall see in Chapters Two and Three, we demand of the
law that it liberate us, that it zealously protect our freedom and our individuality, while
simultaneously directing it to control us, to keep us safe, to protect us, to tell us and others what
we should do. As a social condition, we ask the law to accomplish two huge, contradictory tasks
-- to accomplish both liberty and order. We force it to be ambiguous.
Such cross-purposes, as we shall see in Chapters 5 through 9, permeate our lives as we
live them day-to-day, and through the years. The law (the web of so many laws) surrounding our
relationships, our births, our childhood, our identity, and our deaths -- indeed, our the entire
social-political economy -- often attempt to achieve countervailing goals, contradictory ends. It
is all one huge balancing act. And, we very often resort to the courts as the legal balancers of
last resort. Indeed, as we will explore, in ways small and large, balancing legal conflicts arising
in the course of lives lived is the great task of courts – so, a local court weighs John’s modest
claim against Jane after they meet, unhappily, during a parking lot fender-bender. That same
day, perhaps, far away in its “marble palace” in Washington, the Supreme Court weighs two
other competing claims, these with nationwide implications. Or, take, for examples, one small
slice of John’s life; one minor event in Jane’s day.
Suppose that John’s mother had been an unfortunate addict of drugs, unable to shake the
monkey from her back during pregnancy. And, suppose, tragically, that John had been born a
“cocaine baby.” Depending upon the state of his birth, John’s mother may have been subject to
prosecution under any of a number of child abuse and endangerment statutes. It seems simple
enough, but the LAW must then decide if John, in the womb, was indeed a “child” at all. As a
mere fetus, without specific constitutional protection, do his potential rights, or a state’s interest
in his potential rights, outweigh those of his mother to bodily autonomy? These are the kinds of
difficult questions with which courts wrestle every day – seemingly caught between one legal
rock and another legal hard place.26
Or, imagine Jane’s chance encounter with the student protestors. The United States
Supreme Court has unequivocally stated twice that flag burning is a legitimate form of political
speech, fully protected by the First Amendment.27 But, even this most fundamental of
fundamental liberties, our right to engage in “fully protected” speech, is subject to a whole host
of so-called “time, place, and manner” restrictions designed to maintain public order. If the
protestors failed to get a proper permit for their demonstration, if they were blocking access to a
campus building, if they were being too raucous, they might well find themselves on the wrong
side of the law in spite of their otherwise valid claims to free speech. Law constantly finds itself
running into other laws, and running into itself.
LAW AND SOCIETY: THE WORLD WIDE WEB
Once upon a time – actually, a time not so very long ago – the word “web” had a fairly
unambiguous meaning. To those of us lucky enough to be born in the 1950s and after, no doubt
the word “web” conjured up pleasant associations with the brightest, most loyal, and best writer
among characters in children’s literature (White 1952). But even to our progenitors, that
unfortunate multitude of forebear who came of age before “Charlotte,” the word web was clearly
associated with the work of spiders, if not the spider. Of course, that sense of the word “web” is
still prevalent and still forms the benchmark for our visualizations – and metaphors.
But over the last several years, the word has ceased to be pegged exclusively to the
endeavors our eight-legged friends. Today, when we use the word, we are just as likely – and
probably, in the environment of higher education, more likely – to be referring to the World
Wide Web, that wonderful network that has made communication and research on the Internet so
much easier and so much richer over the span of just a few short years. Today, using any one of
an ever-expanding number of search engines, an ever-expanding wealth of information is at our
fingertips. Part of this wealth (an ever-expanding part) is the law. Sources for finding,
accessing, analyzing, and critiquing the law have grown -- and grown rapidly – over just the few
short years of the Web’s existence. Law is on the Internet and it is there en masse.28
This book utilizes the word “web” in its new age, technological sense as well. Much of
our own research reported within these pages is the result of pouring over web-based data. Like
all who have dived head first into Internet research and writing over the past couple of years, we
have experienced as much frustration as success; we have wasted as much time as we have
effectively utilized. Yes, there’s a world of data on the Web, but vast portions of that world is
composed of junk and drivel. Indeed, were one to eliminate advertisements, personal webpages,
pornographic offerings, and the array of idiosyncratic chat rooms, most of the Web would
disappear. Still, what was left would offer the researcher an almost full platter of fascinating and
even essential information, including much of law and society.
At the end of this, and each subsequent chapter, we provide a section titled, “Law on the
Web.” Within these sections, we offer a number of relevant and useful websites, along with
hints for students of law and society interested in effectively utilizing the Internet. The World
Wide Web has clearly become – and is becoming more so day-by-day -- an integral part of the
larger and more ancient web of law and society.
. Holmes, “Speech to the Suffolk Bar Association,” The Speeches of Oliver Wendell Holmes (1891), cited in Hall
(1989: 3).
1
. “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure
domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of
Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
Preamble, U.S. Constitution.
2
3
. That convention, ratified in response to Nazi war atrocities, is today the basis for the International Court
of Justice’s prosecution in Bosnia and Herzegovina v. Yugoslavia. See the International Court of Justice, Docket at
http://www.icj-cij.org/idocket/ibhy/ibhyframe.htm. Date last modified: June 15, 1999. Date visited: September 2,
1999.
4
. We are not the first to use the word “web” in relation to the law, though we use it very broadly while
others, far more eloquent than we, have tended to utilize it narrowly in criticism. For example, of the two, Solon,
the ancient Athenian lawgiver said, “Laws are like spiders’ webs, which stand firm when any light, yielding object
falls upon them, while a larger thing breaks through them and escapes.” (From Plutarch, The Banquet of the Seven
Wise Men in Bartlett’s (1968: 68b-69a). In a similar vein, though two thousand years later, the English satirist,
Jonathan Swift maintained that “Laws are like cobwebs, which may catch small flies, but let wasps and hornets
break through.” (“A Critical Essay Upon the Faculties of the Mind,” 1707 in Bartlett’s (1968: 388b). Unlike Swift,
we would maintain that the law envelops both flies and wasps, though like Swift, we would admit that it generally
swaddles the wasp more gently than it does the fly.
5
. Over the past two and one-half decades, the Supreme Court has handed down a number of key decisions on the
subject of abortion, most notably, its seminal holding in Roe v. Wade, 410 U.S. 133 (1973). Roe and other abortion
related law will be discussed more fully in Chapter 6 below. Throughout this brief chapter, only a very few of many
legal examples will be cited in footnotes. For more complete discussions, please refer to relevant subsequent
chapters.
. Depending on her state, John’s mother, in deciding whether or not to terminate her pregnancy, may have to
receive counseling, wait for some period of time, or abide by additional rules and regulations.
6
7
7. For example, during its 1997-98 Term, the Supreme Court refused to review a case challenging South Carolina's
law allowing the prosecution of pregnant women who use illegal drugs. Lower courts have upheld the law. See fn
26 below.
8
. Although both international labor laws and American law supposedly prohibit the importation of goods
manufactured using unfair labor practices, such laws tend to be easily evaded.
9
. A variety of laws govern the conditions under which food is prepared. Recently, in light of a number of
high-profile bacterial infections, legislatures have been busy amending required cooking temperatures. For
example, The New York State assembly recently established 158 degrees as the temperature at which restaurant
meat must be cooked, up 18 degrees from previous standards. “Serving Up Safety,” The Times Union, 21 October
1997, p. D1.
0
10. Throughout the past decade, state legislatures and school boards throughout the country have
mandated increasingly many competency tests, both for students and teachers. Not to be outdone, even national
lawmakers have gotten into the act. Recent proposals being considered in Congress include making federal
categorical aid contingent upon states instituting competency tests at every grade level and submitting their content
and performance standards and assessments to the Department of Education, and giving federal money to states
that pay teachers based on merit and testing teachers for competency.
1
1. As of March 2000, the minimum wage set by Congress is $5.15 per hour.
2
12. Labor-employer relations are governed by a raft of state and federal laws, notably the so-called TaftHartley Act.
3
13. See for example, The Occupational Health and Safety Act of 1970.
4
14. See notably, The Civil Rights Act of 1964.
5
15. Title VII of the Civil Rights Act prohibits discrimination in employment, including harassment. The
law on the subject of sexual harassment, however, has always been vague and confusing. During its 1997-98 Term,
the Supreme Court issued a series of rulings seeking to clarify the law. See, Burlington Industries v. Ellerth, 524
U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Gebser v. Lago Vista Indep. Sch. Dist.,
524 U.S. 274 (1998); and Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998).
6
16. Notably, Title IX of the Civil Rights Act mandates equal school athletic opportunities for women.
7
17. In 1996 Congress passed, and President Clinton signed, The Defense of Marriage Act, defining
marriage as a union between a man and a woman and allowing states to refuse to recognize same-sex marriages
performed in other states. Most states specifically forbid marital union between people of the same gender. Legal
actions in Vermont, however, suggest that this might change. In Baker v. Vermont 744 A.2d 864 (S Ct VT 1999),
several gay couples challenged the constitutionality of the state’s “exclusion of same-sex couples from the secular
benefits and protections offered married couples.” The Vermont Supreme Court employed a balancing test
“premised on an appropriate and overriding public interest.” The court held that same-sex couples’ right to the
statutory benefits of marriage outweigh the state’s interest in restricting the institution of marriage.
8
18. A patchwork of state and federal regulatory law currently governs nursing home care. In 1998,
President Clinton announced a series of new federal regulations intended to upgrade such care, and requested
Congress to take additional action (Goldstein 1998: A3).
9
19. Although the Supreme Court has said that all Americans have a right not to have their lives prolonged
by artificial means (Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990)), it has established no
such rights for ending life prematurely, leaving the legality of physician-assisted suicide up to the individual states
(Washington v. Glucksberg, 521 U.S. 702 (1997) and Vacco V. Quill, 521 U.S.793 (1997)).
0
20. The law here is very ambiguous and a virtual minefield for the consumer. Most body cleansing
products are really synthetic detergent products which come under the jurisdiction of the federal Food and Drug
Administration (FDA). Such “detergents” are regulated by the FDA and require ingredient labels. Moreover, “true
soaps” which make cosmetic claims (i.e., they claim to moisturize or cure acne) also require FDA labeling.
However, “true soaps” which make no such claims, fall under the jurisdiction of the Consumer Product Safety
Commission (CPSC), which does not require product labeling. To find out everything you ever wanted to know
about the status of soap, visit: http://vm.cfsan.fda.gov/~dms/cos-215.html, U. S. Food and Drug Administration,
Center for Food Safety and Applied Nutrition, Office of Cosmetics Fact Sheet (last modified May 9, 1996) (Date
visited: March 21, 2000).
1
21. All states have laws requiring the use of seatbelts; most require all passengers to buckle up and
require children under the age of four to be in safety seats.
2
2. In May of 1998, Congress passed, and President Clinton signed, the Transportation Equity Act of
1998. Over the next six years, the law triggers roughly $200 billion in federal spending on transportation-related
items nationwide, including road and bridge repair and mass transit upgrades (Dao 1998: A1).
3
23. In response to a published report in1993, finding environmental smoke to be hazardous, many states
and localities banned smoking in public and private buildings, including offices, stadiums, and restaurants
(Biskupic1998: A4). Moreover, Congress has banned smoking in most of the nation's schools, except in designated
areas closed to children and President Clinton has banned it in all federal workplaces. USA Today, 22 July1998.
4
24. See Footnote 27 below.
5
25. It is illegal in all states for a person under the age of 21 to purchase alcoholic beverages. Moreover,
in 1995, President Clinton signed into law so-called “zero tolerance” legislation making it illegal for a person under
21 to drive in any state after drinking a measurable amount of alcohol no matter what the state’s legal limit is.
6
26. In 1998, the U.S. Supreme Court refused to review a decision of the South Carolina Supreme Court
upholding the conviction of a woman under just such a statute. Whitner v. South Carolina, 328 S.C. 1; 492 S.E.2d
777; Rehearing Denied November 19, 1997. Certiorari Denied May 26, 1998, Reported at 523 U.S. 1145 (1998).
As more and more states begin considering or implementing such statutes, it is almost certain that the nation’s High
Court will have to review one. Critics of such laws claim that they directly jeopardize (indeed, are aimed at
subverting) the fundamental rights of women to reproductive freedom outlined in Roe v.Wade, in effect, by treating
fetuses as “persons” under the law.
7
8
27. Texas v. Johnson, 491 U.S. 397 (1989) and U.S. v. Eichman, 496 U.S. 310 (1990).
28. As we shall see subsequently, law is not only on the Internet, but it is increasingly concerned with the Internet.
Our access to and use of the Internet has become an issue of intense legislative activity, as Congress and the state
legislatures are forced to deal with such problems as on-line fraud, junk mail or SPAM, pornography, encryption,
funding, and many others. In 1997, for the first time, the Supreme Court got into the Internet act with its decision in
Reno v. ACLU, 117 S. Ct. 2329 (1997), ruling that the Communications Decency Act of 1996 (CDA) was
unconstitutional. See discussion in subsequent chapters.