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Acoustic separation is a simple and

powerful concept developed by Meir Dan-Cohen in a Harvard Law Review article.

Which helps distinguish between two sorts of legal rules.

Conduct rules, which are addressed to the general public and

are designed to guide the public's behavior.

And decision rules which are directed to officials who are then

tasked with applying the conduct rules.

When these two rules diverge, the law tries to maintain an acoustic separation

between what the general public hears and what the public official hears.

For example, criminal law says to the public, it's a crime to commit murder.

But it says to the jury,

it's a crime to commit murder if there is proof beyond a reasonable doubt.

Systems with acoustic separation can help accommodate competing social values.

But they raise important problems of implementation and legitimacy.

Implementation problems arise when the messages leak.

For example, when potential murderers learn that they can avoid punishment

if they deny prosecutors the requisite level of proof.

Legitimacy problems can arise if the public

realizes that the decision rules diverge substantially from the conduct rules.

Acoustic separation occurs in a variety of contexts.

McDonald's for example, has discounted coffee for customers 55 and over.

But I think, intentionally, they poorly advertise this fact.

By having the discount rule for it's staff, and another rule

advertised as the price above the counter, it might hope to have the news leak only

to those older customers who really care about getting a slightly cheaper price.

The acoustic separation tool is useful because it alerts you to the fact that

the law can speak simultaneously, and

manage to say different things to different audiences.

Homework.

Can you think of other circumstances where regulations do or

should try to implement acoustic separation?

Can you think of a circumstance where the effort to maintain different messages to

different audiences has failed?

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2.11 - Lecture