This is very interesting. I suspect there are a lot of unintended consequences that might follow.
This certainly seems better than just making TBTF (which I assume means too big to fail) entities be above the law.
The dead comment below by AnthonyMouse already pointed out that even in your scenario there's no difference with the status quo anyway. It's insane that it's dead and reeks of astroturfing, as nothing about it is worth flagging.
> Isn't that the other way around? The law already can't be enforced against the TBTF corporation, so what do they care if it stays on the books? But now you can't enforce it against someone else or they can point to you not enforcing it against them.
> Except that's the point. The government would now have to do that or they lose the law. If it's a good law then they don't want to lose it, but if it's a good law then they should be enforcing it against them.
> And, of course, the correct way to deal with this is to break the TBTF corporations into many smaller pieces so that stops being a problem.
The dead comment below by AnthonyMouse already pointed out that even in your scenario there's no difference with the status quo anyway. It's insane that it's dead and reeks of astroturfing, as nothing about it is worth flagging.
If you see such a comment, you can vouch for it (small menu point next to flag) and revive it. I did that now because I agree with your assessment - of late I do this very often because even comments which quote articles/laws etc. verbatim and with a link are flagged/voted to death.
I think the US court system is famous for being slow. Not sure if anyone wants to make it go even slower.
IANAL, but my understanding is this: Malicious prosecution is a defense. Selective enforcement is not. The difference is for judges and juries to decide.
It's unlikely people would have enough evidence of high enough quality to make that case. The prosecution will just say the evidence isn't enough.
You'll also get some nice incentives where the government will be arguing that a particular behavior is not a violation of the law so they don't have to charge someone they don't want to, which in turn leaves you with that precedent if the judge agrees with them and then they want to charge someone else for doing that later.
And lest people think this is a one way street, each side thinks the other deserves interpreting the law to “get the real baddies.”
As applied needs to be changed so that it can be included in setting precedent and when considering the norms given out for punishment because right now it's highly abused to prevent establishing legal norms from judicial findings the way our system is supposed to.
I’ve often thought this about laws involving speed limits. When 95% of the people driving in a major downtown area are technically breaking the law, what is the purpose of the law but to target whoever you like then? Either enforce it unilaterally or come up with new laws.
In order to do this you need to have laws that are designed to be reasonable for people to actually follow instead of laws that are designed to allow prosecutors to find a violation whenever they want to.
Actually enforcing them would create pressure to do that, but it would also create pressure to go back to selective enforcement when powerful people object to being subjected to the unreasonableness of existing laws.
A better solution might be to make a showing of selective enforcement a means to strike down a law. If you can show that someone else was doing the same thing without being charged then the prosecution either has to charge them too or that law is struck down and no one can be charged with it anymore.
Then instead of the incentive not to charge powerful people creating pressure for selective enforcement, the same incentive creates pressure to strike down the laws that can't reasonably be uniformly enforced.