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notes to chapter seven

savvy and charming to put on a seatbelt; Charles W. Gusewelle et al., Round Table Discussion: Violence in the Media, Kansas Journal of Law and Public Policy 4 (1995): 39, 47.
44. The analysis here was in part suggested by Minow, Making All the Difference.
45. See Tracey L. Meares, Social Organization and Drug Law Enforcement, American
Criminal Law Review 35 (1998): 191.
46. Eric Posner (The Regulation of Groups) points to contexts within which government action may have had this effect.
47. See Tracey L. Meares, Charting Race and Class Differences in Attitudes Toward Drug
Legalization and Law Enforcement: Lessons for Federal Criminal Law, Buffalo Criminal Law
Review 1 (1997): 137.
48. In the mid-1970s the U.S. government sponsored a campaign to spray paraquat (a herbicide that causes lung damage to humans) on the Mexican marijuana crop. This sparked a
public outcry that resulted in congressional suspension of funding in 1978. However, following
a congressional amendment in 1981, paraquat spraying was used on the domestic marijuana
crop during the 1980s. The publicity surrounding the use of paraquat in Mexico is generally
believed to have created a boom in the domestic marijuana industry and also an increase in the
popularity of cocaine during the 1980s. See generally Michael Isikoff, DEA Finds Herbicides
in Marijuana Samples, Washington Post, July 26, 1989, 17. In Drug Diplomacy and the Supply-Side Strategy: A Survey of United States Practice (Vanderbilt Law Review 43 [1990]: 1259,
1275 n.99), Sandi R. Murphy gives a full history of the laws passed relevant to paraquat; see also
A Cure Worse Than the Disease?, Time, August 29, 1983, 20.
49. Roe v. Wade, 410 US 113 (1973).
50. Rust v. Sullivan, 500 US 173 (1991).
51. Maher v. Roe, 432 US 464 (1977).
52. Hodgson v. Minnesota, 497 US 417 (1990).
53. This distinction between direct and indirect regulation, of course, has a long and
troubled history in philosophy as well as in law. Judith J. Thomson describes this difference in
her distinction between the trolley driver who must run over one person to save five and the
surgeon who may not harvest the organs from one healthy person to save five dying people; see
The Trolley Problem, Yale Law Journal 94 (1985): 1395, 139596. This difference is also
known as the double effect doctrine, discussed in Philippa Foot, The Problem of Abortion
and the Doctrine of the Double Effect, in Virtues and Vices and Other Essays in Moral Philosophy (Berkeley: University of California Press, 1978), 19. See also Thomas J. Bole III, The
Doctrine of Double Effect: Its Philosophical Viability, Southwest Philosophy Review 7 (1991):
91; Frances M. Kamm, The Doctrine of Double Effect: Reflections on Theoretical and Practical
Issues, Journal of Medicine and Philosophy 16 (1991): 571; Warren Quinn, Actions, Intentions,
and Consequences: The Doctrine of Double Effect, Philosophy and Public Affairs 18 (1989):
334. The trouble in these cases comes when a line between them must be drawn; here I do not
need to draw any such line.
54. Richard Craswell suggests other examples making the same point: The government
could (a) regulate product quality or safety directly or (b) disclose information about different
products quality or safety ratings, in the hope that manufacturers would then have an incentive
to compete to improve those ratings; the government could (a) allow an industry to remain
monopolized and attempt directly to regulate the price the monopolist charged or (b) break up
the monopolist into several competing firms, in the hope that competition would then force
each to a more competitive price; the government could (a) pass regulations directly requiring
corporations to do various things that would benefit the public interest or (b) pass regulations
requiring that corporate boards of directors include a certain number of independent representatives, in the hope that the boards would then decide for themselves to act more consistently with the public interest.