"There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What's there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced or objectively interpreted – and you create a nation of law-breakers – and then you cash in on guilt."

My personal theory of how this situation came about, however, could be called the "Walker, Texas Ranger" explanation. I think some lawmakers/enforcers turn vigilante when they are convinced a would-be criminal has gotten away with some potentially-criminal act because of how the law is written, so they seek to change the law.

As hackers, I assume we all have a lot of experience with [computer] code, and we're aware that a small change "here" can have unexpected side-effects "there." I know that when I learned about SML, Lisp, and functional programming without "side effects" I was blown away that it was possible to formally prove the execution of some functions. In other words, it is possible to write good, clean, predictable code.

Nothing like that exists for legal code, however. It's a tangled mass of declarative assertions, nested dependencies, GOTO statements, (naive) version control, and namespaces. A vigilante action to alter some part of the code essentially has unpredictable consequences for other parts of the code.

The changes couldn't be measured if you wanted. In a management sense, the project is totally out of control. Big surprise, then, that private enforcement and prisons are a growth industry. Some people see this for what it is: an opportunity. Just make sure you're an investor instead of a "customer."

Whatever the motivations of the agents referred to in the article, it is still the case that "inappropriate" laws were applied to (presumably) non-criminal activity. It's just speculation on my part, but my theory had to do with those how those laws came to exist.

Once the laws exist, then it's just a matter of any agent sufficiently familiar with those laws to apply them. By that point, it doesn't need to be vigilante activity. An agent with only the best intentions can end up causing harm (i.e. convert a free citizen into a criminal) simply because the laws are flawed.

http://video.google.com/videoplay?docid=-4097602514885833865

http://www.schneier.com/blog/archives/2008/07/why_you_should...

I'm currently reading a book titled "Three Felonies a Day" which details how the federal criminal system is broken. The book itself unfortunately is a series of anecdotes, rather than a deeper analysis of how we got to this situation. If you can find it at the library, I recommend skimming a few of the stories to get a feel for what's going on.

I'm obviously not a lawyer, but as far as I understand, federal law does not require a "guilty mind" (http://en.wikipedia.org/wiki/Mens_rea), at least not to the same degree that traditional state law requires. In addition, many federal crimes are written very vaguely, sometimes to good effect (handling unforeseen criminal acts, obviously wrong, but not specifically banned by law), but more often to ill effect (yeah, that's fraud!).

Then, finally, there is the issue of the approach federal prosecutors take in pursuing cases, in which the push for convictions is more important than the push for justice. This results in approaches to cases such as "ladder climbing", where you indict the lower rungs of an organization (mayor's aids for example) with the threat of years of jail, and have them plea bargain out to almost nothing in exchange to testify against the person above them. Often, the choice for the person being accused is so obviously one sided that they'll creatively spin their testimony so that innocent behavior suddenly because "fraud" or "obstruction of justice" or similarly vague crimes.

One more sneaky thing that federal prosecutors do is that certain things are crimes, even where not obvious. For instance, lying under oath is obviously a crime (perjury). Lying to a federal officer while not under oath is also a crime (a felony no less).

So basically, federal prosecutors can pin very serious crimes on almost anybody they wish, as this article pointed out with import/export restrictions about flowers.

We used to say, "Ignorance is no excuse for the law." The situation now though, is that there are so many laws and regulations that it is impossible not to be ignorant. Not only do we not know the laws, but we don't know how to find out what the laws are. Small business owners are especially prone to mistakes considering there are corporate laws, civil laws, tax laws, employment laws...

Well... mostly clearly. Clearly enough in the murder case, but there's certainly fuzzy cases. Still, there are an awful lot of crimes on the book that when you lack criminal intent, it doesn't actually make sense to prosecute from either a "rehabilitation" or "punishment" point of view, such as the ones in the article. What did society gain by any useful metric in the orchid case? In fact it lost a lot for no good reason.

Let's make a distinction between intent and awareness of the law. For example's sake, let's say you've been trading stock off a tip a company insider gave you, which is illegal. At the same time, you don't know it's illegal, but you are consciously trading the stock.

Intent -- You have the intent to trade the stock because you are doing it during the day, awake and fully aware of your actions. You would not have intent if you traded the stock while sleepwalking.

Awareness of the law -- You are not aware that your actions are a crime, despite having an intent to perform those actions. This makes no difference -- you are held accountable for your actions whether you knew they were illegal or not, as long as you were cognizant while you were taking those actions.

IANAL, so again, the language is probably all flubbed. But it's my understanding that intent matters, not awareness of the law. Can anyone correct me if I'm mistaken?

In the realm of political laws, ignorance absolutely excuses. Why should it be obvious that importing orchids requires certain paperwork?

I think we need a line between criminality and what i'll call "regulation" -- which, if intentionally ignored should become criminal, but otherwise there services should help people be law-abiding.

http://news.ycombinator.com/item?id=722676

That time via Fox News:

http://www.foxnews.com/opinion/2009/07/21/heritage-house-law...

They're essentially identical and both written by the same partisan think tank dude.

Whoever's funding this set of talking points clearly wants to push deregulation of some sort using it as pretext.

The problem with your scheme is the protection of the commons.

[1] To your point: it's true that we have more things we can make laws about, but I suspect that it isn't true that we should make laws about every specific thing. Fraud is fraud, murder is murder. It shouldn't matter whether you use the internet, a telephone, or pencil and paper to defraud someone, in the same way that we don't need a separate murder statute for each choice of murder weapon.

Of course, juries work better when they are able to find on both the facts and the justice of the law. We've deviated from this at our peril.

Mens rea, criminal intent, has historically been the simplifying agent in law. That's why you don't see a terribly complicated set of case laws surrounding, say, murder. The problem with lots of current criminal statutes is that you can be guilty of violating them without any intent to harm.

What about if, in self-defense, someone goes further than necessary? He's attacked and choked by someone bigger and stronger. He reasonably fears for his life. Through chance or skill, he gets the upper hand, and knocks his attacker out. Then, before caveman adrenaline has faded, he slams the guy's head into the pavement until he dies. Do you apply the single "thou shalt not kill" law?

I don't really want answers to these specific questions, but to the meta-question: how do you handle actions which are harmful to society, but which cannot be resolved by straightforward common-sense ethical reasoning?

The hard, borderline cases that you mention are relatively rare. No matter how complicated your system of laws, these cases tend to require humans, either judges or juries, to make a careful decision.

If you have 10,000 laws rather than 10, you end up instead having to decide which of the many conflicting laws that could be applied should be applied to the situation. In marginal cases, human judgement is extremely difficult to replace.

One simple law about theft that can't neatly answer the question seems preferable to the current tens or hundreds of possibly applicable pedantically worded laws that can't neatly answer the question.

Common law has tended to focus obsessively on mens rea. Statute law has tended to disregard it. The difference probably has something to do with having to make a judgement about a particular case with the humans that are going to be affected standing there in front of you, as compared to dreaming up a bunch of laws in the abstract, or coming up with laws to address a politically attractive but wildly uncommon situation.

I believe this argument is empirically strong. You can see for yourself that there are (at least) hundreds of years of case law about murder. And yet the law surrounding murder seems quite a bit more straightforward than the laws surrounding, say, exporting electronics. This is because criminal case law has been sharpened by a focus on criminal intent.

http://www.huntingtonnews.net/state/090605-rutherford-statet...

And in any case, arguing around the edges of self-defense is a far cry from the sort of felony paperwork violations that got us into this discussion.

So perhaps the most clarifying question I could ask is: how many examples can you find of case law criminalizing paperwork mistakes with no criminal intent or intent to harm others, as compared to how many examples of that are there in statute law?

Like (I think) most reasonable people, I'm not in favor of criminalizing paperwork mistakes with no criminal intent.

Common law? Worked out pretty well for the English for about 1000 years.

Technology, a capital infrastructure, and pervasive wealth solves this problem, not politicians.

Once again we see free markets failing to cope with externalities and twisted incentives. Children don't want to work on farms, nor are they qualified to make such judgements, nor are their parents, in exactly the same way that parents can't consent to numerous other things for their children (for instance, a parent can't consent to marry off an 11 year old daughter).

Whether you're poor or not, having your children pad your income isn't a viable solution, nor is it efficient, and yet it is the short-term solution the free market demonstrably arrived at.

I'm certainly not defending the FLSA's farm exemption, which was clearly just a bow to a powerful special interest group [1].

Of course children don't want to work on farms or in factories. Does anyone want to work in a factory?

My point is simply that if you go to some random third-world country where children are working in factories, and you do nothing else than prevent them from working in factories, you very likely have not increased their quality of life. To your horror, you will see an increase in children scrounging for food in dumpsters. You will see them selling wares on the street. And you will see fewer families escaping a brutal life of farm labor to seek a better life in cities.

Your point about free markets also misses the mark. You could repeal all the child labor laws today in the US, and you would not find (a statistically significant number of) factories hiring children for the simple reason that with modern industrial techniques children wouldn't even be productive enough to justify their space on a factory floor. This is part of the reason why teenage unemployment is so high even though teens will work for minimum wage.

[1] Not to say that I think much harm comes from this today.

That the complete solution to this problem involves more than simply outlawing child labor doesn't mean that outlawing child labor is itself ineffective. There are child labor problems in economies that can otherwise provide for children --- even if you have a stable economy, you still need the rule of law.

Finally, it seems hollow to argue that, after 70+ years of regulation of child labor, repealing child labor laws would not change the facts of child labor on the ground in the US. While the economy certainly has more to do with the end of child labor than the law does, the law still plays a significant part. As a society, we've eliminated child labor and adapted to that circumstance. That is, at least in part, a victory of child labor prohibition.

To say that child labor is simply an artifact of outmoded manufacturing practices misses the fact that plenty of modern companies do engage in child labor, in jurisdictions that allow it.

At any rate, you can have the last word, because this conversation is devolving. I think the idea that society can get along just fine on 10, 100, or even 1000 laws is naive; child labor is a simple example, but I could come up with many more vivid examples as well --- for instance, the fact that marital rape has only been addressed within the last century or so.

Seriously?

I can simultaneously believe that we have many unjust or incompetent laws on the books and not be a libertarian.

Once a law is broad and vague, it is subject to interpretation and may become subjective. Which is the original point of this article.

Sorry, no solution found yet :-)

The two examples in the article were both entrepreneurs and small business owners. Would it have helped them to have better legal representation from the beginning? If so, exactly what form?

The article didn't mention their legal structures used; the fuel cell fellow may have been incorporated somehow, but I'd bet the orchid importer's vehicle was a sole proprietorship. Would operating as a corporation or LLC have helped?

I doubt this is something we can answer fully in this thread. But maybe we can get started.

-Aaron

You're also forgetting case-law here too. It's possible for someone to read all of the laws on the books, but not realize what the current interpretation by the courts of those laws is (or will be).

There are certain people in the world like this. There always have been. Unfortunately, they seem to be drawn to law enforcement. The best any system can hope for is to minimize their impact. I do agree that our current system does a very poor job of it.

Of course that wouldn't work for a rich or famous person -- the cops would be embarrassed -- but for the rest of us we've been in a situation for many decades where there are so many laws that we're basically in a police state. The only reason more folks don't rise up is that so far, mostly, it's a benevolent dictatorship.

I love the analogy between code and the law, because it's so true. We in the IT industry have a unique insight into how complex systems are created and maintained. Our current legal system is way out of whack.

But politicians get elected for doing something -- and that means spending money, passing laws, or fighting wars. That's about all the options they have. So the system continues to spend more and more money, create more and more complex laws, and we end up with "wars" on poverty, drugs, and carbon emissions.

All laws should have an expiration date.

Martha Stewart might disagree.

In many ways, the rich and famous actually make perfect targets. Prosecutors and politicians can stir up some of the general contempt that many people still quietly harbor against the wealthy. It can be a great way for a budding prosecutor to break into higher office (c.f. Eliot Spitzer).

Your observations are otherwise completely sound.

I agree that rich/famous people certainly can make a good target, but whether a particular rich/famous person will make a good target depends on the power to which that individual has access to, obviously. Money talks, regardless of how many people hate you for having it. I would suggest that the amount of wealth an individual has access to would be a far more accurate predictor of whether that individual will be taken down in court as opposed to celebrity. It just so happens that many famous people are also wealthy.

Sure there's always going to be exceptions, but you can't seriously be suggesting that rich/famous people in general make perfect targets in court? I'm thinking a famous, yet poor person might be the best kind of target.

True enough for O.J. Simpson. But Michael Milken could give you a different take on that issue. Prosecutors often want to make a name for themselves, and prosecuting John Q. Public doesn't further that goal as well as nailing Daddy Warbucks.