Harvard Law Review
Appearance is often given as a justification for decisions, including government decisions, but the logic of appearance arguments is not well theorized. This Article develops a framework for understanding and evaluating appearance-based justifications for government decisions. First, working definitions are offered to distinguish appearance from reality. Next, certain relationships between appearance and reality are singled out for attention. Sometimes reality is insulated from appearance, sometimes appearance helps drive reality over time, and sometimes appearance and reality collapse from the outset. Finally, sets of normative questions are suggested based on the supposed relationship between appearance and reality for a given situation. The subjects of these normative questions include aesthetics, transparency concerns, and the likelihood of a self-fulfilling prophecy. A closing section applies these ideas to prominent debates over campaign finance regulation and broken windows policing. Leading empirical studies are examined and, throughout, the Article draws from scholarship in philosophy, sociology, psychology, economics, and political science.
Adam Samaha, "Regulation for the Sake of Appearance," 125 Harvard Law Review 1563 (2011).