Compliant Subversion

35 Pages Posted: 20 Oct 2018

See all articles by Jacob Hutt

Jacob Hutt

New York University School of Law

Date Written: November 1, 2017

Abstract

Compliance and subversion are not mutually exclusive. Police officers can comply with Miranda requirements while subverting their purpose through creative workarounds; individuals facing deportation can comply with immigration procedures while clogging them up with frivolous claims; anti-death penalty activists can avoid violation of Eighth Amendment doctrine while undermining the executions it approves. These and other deliberate actions to obstruct judicial protections of rights and powers fall in a gray area between compliance and noncompliance. This Note articulates a transsubstantive legal theory underlying these actions, referred to as “compliant subversion”: attempts to make judicial protections of rights or powers unworkable while maintaining facial compliance with the law. After defining this concept and exploring its manifestations across different areas of law, the Note examines how courts constrain compliant subversion with reference to the subversive intent underlying it. Finally, the Note presents a normative critique of when judicial consideration of compliant subversion is inappropriate.

Keywords: compliance, subversion, workarounds

Suggested Citation

Hutt, Jacob, Compliant Subversion (November 1, 2017). New York University Law Review, Vol. 92, No. 5, 2017. Available at SSRN: https://ssrn.com/abstract=3256215

Jacob Hutt (Contact Author)

New York University School of Law ( email )

139 MacDougal Street, 419R
New York, NY 10012
United States

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