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

P1: PJL 0521857651c11 CB966B/Summers 0 521 85765 1 December 5, 2005 19:54 370 Cumulative and Synergistic Effects of Legal Forms opinions makes many of them more difficult for most addressees to apply than well-formed statutory rules or administrative regulations. Law in the encapsulatory form of custom is often inappropriate, too. Customary lawtakestimetoevolve,whereas thenatureof the choleraproblem,andmanyother problems, required immediate preventative action. Also, custom cannot respond quickly to developments in modern science. Further, customary practices lack the authoritative definiteness necessary for water quality standards in due form. Imprints and Other Effects of Choices within the Form of a Rule. Assuming that the legislature chooses the preceptual form of some version of a rule or rules in which to set forth authorization of a basic regulatory program, the legislature will also make further choices within this form. As we have seen, the features of the overall form of a rule: (1) are prescriptive, and directly or indirectly permit, require, prohibit, or otherwise guide action, or ordain a state of affairs, (2) have some level of generality, (3) are definite in some degree, (4) are at least minimally complete in their parts, (5) are in structured relation as between parts, (6) are duly expressed,and(7)dulyencapsulated. Thus, many formal choicesare requiredhere. Imprints and other effects of such choices will be manifest in the form and the complementary content of the rules. An administrative agency to which the legislature delegates power to set regu- latory standards in rules must similarly choose features of the form of such rules. The mere fact that a rule minimally qualifies conceptually as a rule, and therefore has, for example, some level of definiteness, generality, and clarity hardly signifies that such minimal formal features will be appropriate for the task at hand. Usually, further focused choices of formal features, with complementary content, will be required. The initial orienting choice of a law-making body to adopt a general legal policy of cholera prevention is not itself primarily a choice of form as such. Yet, this choice of policy is of necessity a choice that must occur prior to, or simultaneously with ascertaining the features of form that should define and organize the required rule or rules. This initial policy choice will have to be made by resolving conflicts between health considerations on the one hand, and such other considerations as cost effectiveness, freedom to use natural water sources, and the rights of property owners in the watershed to use their lands. Concurrently with this initial choice of ageneral orienting policy, choices of constituent features within the overall form of a rule will be required. Having selected the form of a rule as encapsulated in a statute authoriz- ing, among other things, an administrative-regulatory program for controlling cholera, the New York legislators had to determine the degree of definiteness and formal features in the required law. In the end, legislators decided to dele- gate the formulation of regulatory rules to a specialized administrative agency. To P1: PJL 0521857651c11 CB966B/Summers 0 521 85765 1 December 5, 2005 19:54 Section Four: Choices of Preceptual and Related Forms 371 modern eyes, the usual rationales for such delegation were plainly applicable. Such an agency could be much closer to the problem. Here, agency officials had been accumulating experience with the problem. Hence, they could bring concentrated scientific and technological expertise to bear more readily than a legislature. By delegating the formulation of regulatory rules to an agency, interested parties, including possible commercial and other polluters, could also participate fully in the processes of fact-finding and rule formulation, which in turn could facilitate dissemination of the new rules, and could elicit cooperation of interested parties. In fact in New York, the administrative officials responsible for drafting rules on water quality ultimately came to prefer a highly definite, general, and clear primary rule. Drafts of such a rule enabled administrators to focus on, deliberate over, and amend the rule as desired, in light of relevant data. The choice of the form of a rule over a mere general statement of policy, and the choice of a more definite, general, and clear rule over one lacking these qualities, illustrate choices of form that at least render the form and complementary content of the proposed law more fit objects for rational deliberation, one of many effects or imprints of form. A definitive choice rather than one that is less so, is likely to induce more careful consideration of the question whether that choice is appropriate–atruth that applies generally to all issues as to form and content in a rule. Amore definite, general, and clear rule poses fewer issues of interpretation and focuses required fact-finding prior to application. Such a rule is less likely to provoke disputes that must be resolved in court, as well. In those disputes that do go to court, such a rule will pose fewer problems of interpretation and fact- finding. The combined effects and imprints of the foregoing choices of form are synergistic and thus exceed the mere sum of effects as taken separately. Given the foregoing considerations of form, and especially given the relevant policy, it should be no surprise that the legislative and administrative drafters of the New York State Sanitary Code, after study and deliberation with regard to the scientific and technological aspects of the problem, eventually adopted a definite, general, and clear set of basic rules as the centerpiece of the regulatory program at hand. These rules included the following: Raw water fecal coliform concentrations must be equal to or less than 20 colonies per 100 milliliters or total coliform concentration must be equal to or less than 100 colonies per 100 milliliters in at least 90 percent of measurements made over the previous six months that the system was in operation. Monitoring shall be conducted in accordance with section 5-1.52 table 11A of this Subpart. If both fecal and total coliform analyses are performed, the fecal coliform results will take precedence. 23 Plainly,a law requiring that there be no more than “20 colonies per 100 milliliters,” would be vastly preferable to an indefinite formulation such as “no toxins in 23 N.Y. Comp. Codes R. & Regs. tit. 10, §5-1.30(c)(1)(1998), as it currently reads. P1: PJL 0521857651c11 CB966B/Summers 0 521 85765 1 December 5, 2005 19:54 372 Cumulative and Synergistic Effects of Legal Forms unsanitary amounts.” 24 The imprints and effects of formal definiteness,generality, and clarity in this law synergistically enhance the objectivity of fact-finding of administrators who must apply such a law. Formal definiteness and other features also leave imprints and effects that min- imize issues of interpretation, and in this way, facilitate efforts of administrative addressees and private addressees to construct pre-emptory reasons for determi- nate action under the rule. Under an indefinite rule, for example, some cautious addressees, not wanting to risk sanctions, might not wish to exercise their full powers. A private addressee, for example, might choose instead to discharge fewer pollutants than the law allows. This could throw off a careful balance between benefits and costs that law-makers intended. Indeed, such an addressee might even incur substantially greater costs that could cause it to go out of business, or at least to raise the price of any goods being made and sold. The policy content of a proposed rule may be distinctively improved through careful choices of appropriate generality, a formal feature that leaves its own imprint or effect on a rule. As we saw in Chapter Five,law-makers drafting a proposed rule must think through the degree of generality required by the pol- icy at hand. Suppose, for example, that the generality of a related type of water quality rule, as initially proposed, limits the discharge of pollutants within a given watershed area, except that the draft includes an explicit exception for Company Xwhich, under the terms of the proposed rule, would be allowed to discharge more freely. Here, let us assume, however, that all dischargers, including Com- pany X, fall within the policy of the proposed rule. If the actions of Company X are not rationally distinguishable from what would be the more stringently reg- ulated actions of other dischargers, due generality would, without more, require that the drafter abandon the exception and include Company X. In the end, the scope of the duly revised rule would extend to its full policy reach. Here the synergy between due generality, a formal feature, and justified content, is also plain. Again, policy efficacy is not the only end at stake in these choices. For example, such undergenerality as that hypothesized with regard to Company X, would not only fail to serve policy but would also fail to treat like cases alike, 25 ageneral value of the rule of law. A general perception that an exception is unjustified would also diminish the legitimacy of the regulation in the eyes of addressees. Choices of due generality can instill in addressees a sense of confidence that similarly situated parties are being treated the same. The appearance of equality and fairness is 24 40 C.F.R. §131.3(b) (2002) does permit criteria to be “expressed as narrative statements,” but pre- sumably these must be duly definite. 25 Cf. Thompson Water Works v. Diamond, 356 N.Y.S.2d 130, 133–4 (App. Div. 1974) (“Plainly, the public health should not be used as a pretext to aid one [water] supplier in competition with others to provide potable drinking water to the residents of the [v]illage. . . . ”). P1: PJL 0521857651c11 CB966B/Summers 0 521 85765 1 December 5, 2005 19:54 Section Four: Choices of Preceptual and Related Forms 373 afactor that tends to lead addressees to recognize the rule as legitimate, and these together tend to foster a spirit of cooperation – major contributions of well-designed form and content in a rule, also an additional synergy. To determine due generality of a regulatory scheme, law-makers must focus on the scope of the regulatory policy, on the identity of possible addressees, and on the language appropriate to name these addressees. For example, the addressees of a given water quality law inhabiting a watershed area that drains into a drinking water reservoir could be quite diverse. These could include private individuals who might pollute, privatecorporations or other entities who might pollute, and public or private water suppliers who might pollute. Sometimes, a single rule would justifiably apply to all of the aboveaddressees.At other times, different rules should be devised to apply to different types of addressees. Section 5-1.30 of the New York StateSanitary Code appliestopublicsuppliersofdrinking water,andrequiresthem also to develop a filtration and disinfection system that guaranteeswaterpotability. The New York City Sanitation Code also applies to private entities who discharge pollutants into the watershed and requires them to obtain prior approval for such discharges. The Code provides that the activities of “all persons undertaking, or proposing to undertake” 26 discharges to which the Code applies “be planned, designed, scheduled, and conducted in such manner as not to constitute a source of contamination to, or degradation of, the water supply,” and requires that any person undertaking such activities apply in advance to the City Department of Health for approval. 27 Choices of internal structural form in a rule can have their own important effects, here, as well. Internal structure orders the relations between parts of a whole. For example, a state program for regulation of water quality will include arule that specifies water quality requirements. The program may also include a rule that specifies the scope of the foregoing rule. If so, this latter would be a choice in the name of structural completeness. The choice of whether to make a fine for violation automatic, rather than discretionary, is also an internal structural choice in the sense that it is a choice about the relation within a proposed rule as between the part that specifies water quality, and the part that specifies the consequences of failing to meet those requirements. At the same time, this choice is also a choice of prescriptiveness, that is, whether the fine “must” or only “may” be imposed. The ends and values at stake in such structural and prescriptive choices go beyond the efficacy of the policy of cholera prevention, and include minimization of scope for official arbitrariness, equality before the law, and fair notice of possible adverse legal consequences – all general values of the rule of law. Well-designed formal features of internal structure can thus serve these values, too. 26 N.Y. Comp. Codes R. & Regs. tit. 10, §128-1.4(a)(1998). 27 Id., at §128-2.1(a). P1: PJL 0521857651c11 CB966B/Summers 0 521 85765 1 December 5, 2005 19:54 374 Cumulative and Synergistic Effects of Legal Forms Choices of Expressional Features. The creator of a law must make important choices in mode of expression and these are choices of form. As we saw in Chapter Five, these choices pertain to the degree of explicitness of the rule, to the extent it is appropriately set forth in lay or specialized vocabulary, to the nature of its grammar and syntax, to how its relation to other rules is specified, and more. These choices leave imprints and have other effects that can “make or break” the rule. Laws should be explicit. This facilitates the effective dissemination of the rule and the ease with which its addresses can learn its content. Choices of appropriate vocabulary, for example, as between technical and lay terms, are also especially important. Similarly, simplicity of structure in the syntax of the rule, and in any of its exceptions or qualifications facilitates learnability. Here, too, there is internal synergy between other features of a well-formed rule and the feature of its expression. Whether a law should employ technical or lay vocabulary often depends upon the subject matter of the law and its addressees. Although a speed limit law must be communicated in a lay vocabulary, for example, “drive no faster than 75 miles per hour,” many laws, including some provisions of a water quality law, must use specialized vocabulary, for example, “coliform concentrations must be equal to or less than 20 colonies per 100 milliliters.” When the addressees are industrial or highly specialized parties, technical vocabulary is appropriate for this reason, too. Forlay addressees it may be necessary, for example, to explain in a three-page document expressed in lay terms what could be easily stated in a half-page of technical terms for expert addressees. Forexample, one part of the New York City Sanitation Code addressed to private citizens simply states that no person shall discharge pathogenic materials, hazardous substances, human waste, etc. “without first obtaining written approval from the department.” 28 The law then lists, in lay terms, what documents and information must be supplied to the department. For example, the law requires the applicant to describe the activity, location, and topography of the area, and to identify any existing structures at the location. 29 In contrast, when the relevant NewYork law is addressed to officials who are to supply public water, it requires that the official water supplier monitor the water to ensure that the following requirements have been fulfilled: (1) Raw fecal coliform concentrations must be equal to or less than 200 colonies per 100 milliliters or total coliform concentrations must be equal to or less than 100 colonies per 100 milliliters in at least 90 percent of measurements made over the previous six months 28 Id., at § 128-2.3(b)(1). 29 Id., at § 128-2.3(c)(1). P1: PJL 0521857651c11 CB966B/Summers 0 521 85765 1 December 5, 2005 19:54 Section Four: Choices of Preceptual and Related Forms 375 (2) Raw water turbidity levels must not exceed five nephelometric turbidity units (3) Disinfection must be sufficient to ensure at least 99.9 percent inactiva- tion of Giardia lamblia cysts and 99.99 percent inactivation of viruses, between a point where the raw water is no longer subject to recontamina- tion by surface water runoff and a point downstream before or at the first consumer 30 Indeed, when the state health code is addressed to civic water suppliers, the def- initions section defines some thirty-five terms, including jargon such as “CT,” 31 “diatomaceous earth filtration,” 32 “first draw tap sample,” 33 “gross alpha parti- cle activity,” 34 and “man-made beta particle and photon emitters.” 35 When the NewYork City Sanitation Code is addressed to private citizens, it simply uses lay vocabulary. 36 Other Imprints and Effects of Form on Addressee Self-Direction. The efficacy of a regulatory rule frequently depends upon the capacity of its addressees, lay and official, for self-direction under the terms of the rule without further “on the spot” guidance from officials. Here, legislators and administrative agencies must be cognizant of the effects of choices of form at the law-making stage on behavior of addressees at a later stage. The general conditions for effective addressee self- direction under a rule, such as one prescribing a water quality standard, include: (1) advance notice of the content of the rule, (2) “learnability” of the rule, (3) susceptibility of the rule to faithful interpretation in light of an interpretive methodology, (4) ready ascertainability of the facts to which the rule applies, (5) sufficient ease of compliance, (6) pre-emptoriness of the reasons for action arising under the rule, (7) duly specified sanctions for noncompliance. None of these conditions can be satisfied without choices of well-designed features of form at the lawmaking stage. Well-designed features of form in a rule or rules synergistically enhances all of the foregoing. That is, the overall effects of these choices, when operative together, exceed the mere sum of the 30 N.Y. Comp. Codes R. & Regs. tit. 10, §5-1.30(c) (1998). 31 Id., at § 5-1.1(j). 32 Id., at § 5-1.1(o). 33 Id., at § 5-1.1(w). 34 Id., at § 5-1.1(y). 35 Id., at § 5-1.1(af). 36 N.Y. Comp. Codes R. & Regs. Title 10, §128 (1998). P1: PJL 0521857651c11 CB966B/Summers 0 521 85765 1 December 5, 2005 19:54 376 Cumulative and Synergistic Effects of Legal Forms individual effects that would separately occur. Moreover, the more appropriate these choices, and thus the better designed the form, the greater the opportunity for, and the greater the likelihood of, effective addressee (official as well as private) self-direction, and hence the greater policy efficacy of the rule, assuming that the means-end hypothesis embodied in the content of the rule to be sound in the first place. Public health laws imposing water quality standards depend heavily for their efficacy upon the self-direction both of addressees who are officials and addressees who are private parties. To that end, any public and any private water suppliers or pollutant dischargers must have advance notice of any rule imposing such stan- dards. The constituent features of the overall form of a rule – its prescriptiveness, definiteness, completeness, generality, simplicity of rule structure, and expres- sional clarity, all in their own ways, enable addressees to interpret and learn the rule, find relevant facts, and apply it. Definiteness not only helps to render the rule “learnable,” but prioritizes con- flicting policy considerations such as desired level of health versus costs of water purification techniques. A definite rule, for example, one that provides that raw water coliform concentrations not exceed “20 colonies per 100 milliliters” pri- oritizes health over cost in terms of that degree of definiteness. At least any fur- ther reduction of concentrations would cost more. A vague rule, for example, “notoxins in unsanitary amounts,” would not efficiently prioritize at any exact degree. Other features of expressional form also contribute to prioritization here, especially explicitness, appropriate vocabulary, and rigorous syntax. Again, the combined effects of all these formal features taken together synergistically exceed the sum of the effects of each that would occur alone. As we have seen, efficacious addressee self-direction on the part of officials, as well as private parties, requires choices of features of the form of a rule that, as interpreted, render it a source of reasons for determinate action or decision. A “notoxins in unsanitary amounts” rule would be rife with issues of interpretation and would be intolerably indeterminate. The very same formal features in our “20 colonies per 100 milliliters” rule that make it readily learnable also minimize interpretive issues. Even so, there is still need for application of a duly formed interpretive methodology for those interpretive issues that do arise. Choices of duly designed form are required to define and organize any such methodology, as we saw inChapter Eight. A further condition of efficacious addressee self-direction under rules is the ready ascertainability of the facts to which the rule applies. The rule applier must be able to determine the meaning of the rule, and then ascertain and classify the relevant factual circumstances as ones that do, or do not, fall under the rule. The lawmaker may choose a highly definite, general, and clear “bright-line” rule, and so a particular limit, for example, “20 colonies per 100 milliliters.” These formal P1: PJL 0521857651c11 CB966B/Summers 0 521 85765 1 December 5, 2005 19:54 Section Five: Choices of Form at the Stage of Public Promulgation 377 features and complementary content (along with requisite filter and water quality testing technology) greatly facilitate the fact-finding required for the addressee to comply. A further related functional legal unit to be considered at the law making stage consists of the possible sanction for non-compliance that the law-maker may wish to create and prescribe. In Chapter Nine,weconsidered formal choices that define and organize the unit of a sanction. There, we saw that a sanction could not even exist without choices of due form. Further choices must also be made as to what sanction should be available to punish noncompliance and to induce future compliance. section five: choices of form at the stage of public promulgation After the law-making stage, we come to a further major stage in the unfolding linear progressions of the administrative-regulatory technique, and of the public- benefit conferral technique – the two main techniques treated here. Usually, the policy or other content of a law cannot be learned and thereafter implemented by its addressees unless the law is somehow publicly promulgated. Here, too, the imprints and other effects of form are fundamental. In general, a statute or administrative regulation cannot even be lawfully binding on its addressees unless duly promulgated. 37 Also, if such law is not duly promulgated, it is not likely to be an adequate basis for addressee self-direction, or for effective enforcement. Various features of the form of a rule, including its expressional feature, function synergistically here with promulgation, also largely a formal matter. In our illustration, Section 1100 of New York’s Public Health Laws require every new rule or regulation for the protection of potable public waters from contamination to be “published at least once in each week for two consecutive weeks, in at least one newspaper of the county where the waters to which it relates are located.” 38 The statute requires the costs of publication “to be paid by the corporation, municipality, state, or United States [or] institution benefited by the protection of the water supply.” 39 It also provides that “the affidavit of the printer, publisher, or proprietor of the newspaper in which such regulation is published shall be conclusive evidence” on the question of publication. 40 So, this law clearly requires public promulgation, though it does not include any statement of the effects of failure to do so. 37 Cf. M. Lohm ¨ uller, Canon Law Studies, The Promulgation of Law,7(Catholic University of America Press, Washington, DC, 1947). 38 N.Y. Pub. Health Law §1100(2) (Consol. 1987). 39 Ibid. 40 Id., at §1100(3). P1: PJL 0521857651c11 CB966B/Summers 0 521 85765 1 December 5, 2005 19:54 378 Cumulative and Synergistic Effects of Legal Forms Plainly, a law must be accessible to its addressees. Promulgation of the law is a major stage in linear progressions of several of the law’s basic operational techniques. We have seen that accessibility is dependent on major prior choices of features of form including printed over oral, the explicit over the implicit, lay language over technical (where appropriate), and so on. Promulgation renders the contents of legal duties and rights accessible to addressees. It may also include relevant rationales for the law. In the case of public health programs, such as cholera prevention, clear communication not only of relevant legal duties, but also of the rationales for such duties can elicit voluntary cooperation. An existing administrative agency with regulatory responsibility usually has jurisdiction to promulgate whatever new law is adopted. Such an agency itself takes an overall institutional form with various features constitutive of this form, including composition, jurisdiction, structure, and procedure. In the exercise of jurisdiction not only to make, but to promulgate law, more specific formal choices may have to be made by the responsible agency. Promulgation must be in some form of writing or print and clearly expressed. Oral promulgation could be feasible only rarely. The public promulgation of a law not only serves policy or other purposes, but also satisfies principles of the rule of law. The principles of the rule of law require, among other things, that law be authorized, that it generally be in the form of rules (so far as feasible), that the law be clear and learnable, that it be duly promulgated, that it be prospective in effect, that it be relatively constant through time – all so that people can abide by it, and so that those against whom it may be adversely applied can have fair notice and “due process.” The formal requirement of promulgation rendering the law known and acces- sible is an obvious necessity in our illustration of a law regulating water quality. Such alaw could itself be highly learnable, yet its addressees not even know of its adoption by the legislature, or by an administrative agency. In a system duly attentive to well-designed form, failures of public promulgation rarely occur. Leg- islatures and official agencies take steps to convey the law they adopt to addressees viaone or more of a variety of promulgative devices. As I have explained, Section #1100 of the New York Public Health Law requires that every new rule pertain- ing to the supply of potable water be published once a week for two consecutive weeks in at least one newspaper in the relevant county. 41 In many developed West- ern societies, new legislation is published in annual volumes of official statutes. Newadministrative regulations must be duly published too. Beyond this, official agencies responsible for the administration of an important new law commonly disseminate it through annual booklets, through trade-association channels, and through the news media. Sometimes a law can be duly communicated in public 41 Id., at §1100(2). P1: PJL 0521857651c11 CB966B/Summers 0 521 85765 1 December 5, 2005 19:54 Section Six: Form and the Stage of Addressee Self-Application 379 places, such as by posting a sign near a reservoir to announce that specified types of pollutants may not be dumped in the area without a permit. It is familiar that highway traffic laws and many other laws are similarly communicated through strategically located signs. As a further signal to addressees to take notice, many signs and related devices are uniform in size and shape. section six: form and the stage of addressee self-application The next major stage in most linear progressions whereby laws are duly created and duly implemented, is the stage at which the addressees learn of the law, interpret the law, ascertain any relevant facts, and apply the law. Both state-made and privately created law are generally implemented by addressees who take the law as providing legal reasons for actions or decisions. Thus, nearly all that has so far been said about the roles of well-designed form at such prior stages as the law-making stage and the promulgating stage anticipates the law-applying stage. Choices of form have major cumulative effects at this stage, and some of the combined effects function synergistically here, as well. Due form in the law itself is required in the first place if addressees are to have the capacity to comply with and implement any law. If, for example, a given rule is too indefinite, or too deficient in expression to be faithfully interpreted and understood, or is not duly promulgated and disseminated, then its addressees will not be able to apply the law to their own circumstances and act accordingly. Few cumulative imprints and other effects of bad form could be more dysfunctional. The relation between well- designed form and required addressee understanding of what the law requires is an intimate one. Awell-formed law, for example, a duly prescriptive, complete, and definite rule that is also duly general, clearly expressed, and duly promulgated, can along with its complementary content, even inspire a general spirit of cooperation among its addressees. In our illustration, addressees will know the purpose of the law. They will also know that all other water suppliers or potential polluters must comply with the same rule or rules, and that their competitors will not be getting an economic advantage from failure to comply with the law. On the other hand, a lawmight, for example, be under-general and thus not applicable tocertain private addressees who also supply water. Other private suppliers to whom the law does apply might well come to resent the law because they view it as drawing unfair distinctions between themselves and other similarly situated water suppliers. This, in turn, could undermine any spirit of voluntary cooperation. A public or a private water supplier, or a party who discharges pollutants via an inadequate sewage disposal system, should have little difficulty applying the law, assuming it is set forth in the form of a determinate rule or rules, is expressed in [...]... action In what would be an ultra-exceptional stage arising in a linear progression of the administrative-regulatory technique, let us assume that an alleged private violator chooses to dispute an administrative determination of violation and under the law demands a judicial determination of the facts and applicable law Thus, for example, assume an alleged supplier of polluted water, or an alleged discharger... requires that information be gathered and disseminated For example, a valid statute simply cannot be adopted without information regarding what counts as a valid statute in the society, who has the authority to adopt it, and what the procedures are to be followed This information is only available via knowledge of the overall form and constituent formal features of a legislative body and of a valid statutory... of law, and lends rationality and legitimacy to the entire enforcement process Such a law delimits scope for official arbitrariness in determining the existence of any violation in particular cases, and this, too, serves rationality and legitimacy Again, the imprints and other effects of well-designed form can be deep and indelible section eight: ultra-exceptional stage – trial and appellate court action... if non-compliance occurs At the next stage, administrative inspection, sanctioning or other action to determine and to secure compliance also requires that information be elicited and disseminated For example, state inspection and testing of water samples simply is the gathering of information regarding water quality This information is then compared to other information – the water quality standards... democracy and, 186 form- oriented analysis and, 10, 19–20 legitimacy, 186 policies and, 183 reinforcive rules and, 140–141 voluntary compliance and, 186 reinforcive rules defined, 73 democracy and, 186 form and, 27 form- oriented analysis and, 10, 74, 75–76 games and, 100 general description of, 4, 5 jurisdiction and, 185–186 legitimacy, 186 normative cement and, 76, 96 policies and, 183 political values and, ... necessary for my purposes to treat the forms of all types of functional units and systematizing devices, and although I have not frontally and systematically treated the forms of trial and appellate courts in this book, these units also take their own overall forms The overall form of a court is a form of a major institutional unit with its own complementary material and other components Thus a form- oriented... and disseminated For example, at the initial stage, the choice to use the administrative-regulatory technique to fight cholera is, as a rational choice of form, one that presupposes the gathering and consideration of information regarding the nature of the problem, and, among other things, information regarding the comparative means-end efficacy of each basic form of operational technique to deal with... a court comes into play This, of course, requires the parties to have information regarding what a court is and how it operates Also, information, in the way of evidence and witness testimony, must be put before the court The court considers the information and alleged information so presented, makes findings of facts, and issues an opinion, that contains and relates information regarding the disposition... problem Plainly, rational choices of operational techniques cannot be made in an informational vacuum in which little is known either about the forms of these techniques or their comparative efficacy The very nature of the problem of rationally suiting legal means to ends compels such informational inquiry at the outset At the next major stage in a linear progression, the law-making stage, form again requires... a linear progression to create and implement law to serve ends The choice of an operational technique such as the administrative-regulatory, within which various first-level units and second-level systematizing devices are combined, integrated and coordinated, affects much that follows in the ensuing linear progression, including especially overall preventative efficacy When the administrative regulatory . informational inquiry at the outset. At the next major stage in a linear progression, the law-making stage, form again requires that information be gathered and disseminated. For example, a valid statute. possible addressees, and on the language appropriate to name these addressees. For example, the addressees of a given water quality law inhabiting a watershed area that drains into a drinking water. Such a law delimits scope for official arbitrariness in determining the existence of any violation in particular cases, and this, too, serves rationality and legitimacy. Again, the imprints and