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Legal backfire claims, Endangered Species Act, Hate crime laws, Fairness doctrine, Federal Communications Commission, FCC, Energy Policy and Conservation Act, EPCA, Corporate average fuel economy, CAFE standards, Law and policy, Lawmaking challenges


Law and Society | Legislation


This Article focuses on legal backfire claims. A claim of legal backfire constitutes the position that a law produces or will produce results directly contrary to one or more of those intended. Legal backfire claims are pervasive, yet potentially misleading and harmful argumentation used primarily to undermine existing law (or policy) or to forestall the enactment of new law. This Article analyzes many examples of legal backfire to suggest that the concept is often a rhetorical strategy for opposing the promulgation of new law or policy or for attempting to have existing law rolled back, and that actual legal backfires are more rare (or at least unproven) than the use of the rhetoric would suggest. This Article also addresses a much more basic problem: the challenges to effective lawmaking and the limitations of techniques to evaluate the effects of law make an accurate assessment of law problematic. Ultimately, this Article suggests that lawmakers should proceed with caution when dealing with legal backfire claims because critics of laws almost invariably author these claims, the claims are rhetorically charged, and the claims themselves are extraordinary.

Publication Citation

Published in: Boston College Law Review, vol. 43, no. 4 (July 2002).