Given the extensive prohibitions of intentional violence in the legal system, it also follows from the legality test that uncivil obedience will almost always be non-violent in character. While the nonviolence that usually accompanies civil disobedience mitigates the violation of the law, the nonviolence associated with uncivil obedience reflects the fact that no violation has occurred. Legal provocation tends to take one of the basic forms. In the simplest cases, it is a legal order addressed to the public. In some (relatively rare) cases, simply obeying the order can be provocative. The protest against the speed limit is one example. Members of the National Motorists Association drove as fast as the law allowed. Nevertheless, their action made headlines because on Southern California highways, the “law as it stands” departed so radically from the “book law” that compliance with the latter was perceived as a deviant act. 64 64 See id., p. 50 (indicating that in addition to a “recognized gap between book law or formal law and law as applied”, there is “a parallel gap between the law in books and the law as it stands”); See also footnote 48 and accompanying text (distinction between “real” and “paper” rules). On the other hand, non-implementation of the law by the executive branch will generally not be considered a legal provocation.

In the U.S. constitutional system, a policy of non-enforcement by the president boils down directly to the due diligence clause and its requirement “that laws be executed conscientiously.” 85 85 U.S. Const. II, § 3. Close Some believe that non-enforcement may be justified if the law in question is clearly unconstitutional or in other circumstances. 86 86 See, for example, Presidential Authority to Reject to Execution Unconstitutional Statutes, 18 op. cit. O.L.C. 199 (1994) (which makes this general argument and suggests factors that should influence non-enforcement decisions).

Close But when a policy of non-enforcement provokes, it is not because it displays its formal legality, but because it so brazenly flirts with illegality. The annulment of the jury is similar in this respect, at least in the many jurisdictions where its legality is challenged by judges and other authorities. 87 87 See generally Andrew J. Parmenter, Note, Nullifying the Jury: “The Judicial Oligarchy” Declare War on Jury Nullification, 46 Washburn L.J. 379, 402–10 (2007) (listing the efforts of American judges to prevent and delegitimize jury annulment). Jury annulment occurs when a jury acquits an accused and finds him guilty, “either because the jury wants to send a message about a social issue that is more important than the case itself, or because the result dictated by law contradicts the jury`s sense of justice, morality or fairness.” Black`s Law Dictionary 989 (10th edition 2014). In cases where the jury`s reasoning, including possible dissatisfaction with the law, remains opaque to the outside world, the repeal would also fail to meet the requirement to communicate non-civil obedience. Close (In jurisdictions where the jury`s power to annul is recognized or otherwise clearly defined in the Constitution, 88 88 See Parmenter, op. cit. note 87, pp.

391 (in which Georgia, Indiana and Maryland list such constitutional provisions). Include an explicit, reform-oriented nullity regime – such as Paul Butler`s proposal to address the racial effects of our drug laws 89 89 See Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L.J. 677, 680 (1995) (proposes jury annulment as a means of undermining racial oppression in the criminal justice system and stimulates the “implementation of certain means” non-criminal to combat anti-social behaviour”). Near – could be considered uncivil obedience.) Finally, it is worth mentioning that legal provocations can occur within government institutions, and not only. We can see this clearly in the modern U.S. Senate. In recent years, senators of minority parties have invoked various procedural privileges to undermine measures that have already come into force or are about to come into force. These senators demanded that the full text of the lengthy bills be read in the Senate. 96 96 See Ricardo Alonso-Zaldivar, Republicans Threat Health Care Read-a-Thon, Newsday (December 18, 2009, 1:43 p.m.), www.newsday.com/business/republicans-threaten-health-care-read-a-thon-1.1660956 (filed with Columbia Law Review) (noting that “senators normally waive their right” to have such bills read on the ground).