by Jay Johansen | Mar 19, 2016
When people propose a new law, they often talk as if the law will magically enforce itself. They describe it as if once a law is passed declaring X illegal, that people will simply not do X any more, and that will be the end of the story.
If you asked, I presume they would concede that of course we will need police to enforce the law, and some people will manage to get away with breaking the law. But ten minutes later they're back to talking as if the law will magically enforce itself.
I read an article recently about some proposed new anti-discrimination law. Business leaders complained that this law would be expensive and difficult to comply with. A supporter of the law replied that this was ridiculous. "Are you discriminating now?" he asked rhetorically. "If not, then the law doesn't affect you at all. Just keep doing what you're doing."
This is absurdly simplistic. Every new law imposes costs. Costs in the literal sense of dollar and cents, and costs in the side effects that it imposes.
For example, suppose -- and I'll make a deliberately silly example here to avoid getting into the pros and cons of any real law -- suppose I believe that bald people are discriminated against in hiring, and I demand a law making it illegal to discriminate against bald people.
Most obviously, someone has to enforce the law. You need police -- or perhaps a new "Baldness Enforcement Agency" -- prosecutors and courts. These people presumably have to be paid. They will need office space, supplies and equipment. Resources will be devoted to enforcing this law that could have gone to enforcing other laws, such as laws against stealing and kidnapping and murder. Or if new policemen are hired, taxes have to go up. Maybe what people give up to pay the taxes is something frivolous, or maybe they have to give up ever owning a home or sending their children to college. The money has to come from somewhere.
Many laws impose costs on citizens or businesses. In the case of my hypothetical anti-baldness discrimination law, if the law is going to accomplish anything, government agencies are going to have to check on how many bald peole apply for jobs and how many are hired. Businesses will have to keep records of the "hair status" of every applicant and every person hired. They will have to file reports with the government. Government officials will have to study those reports and look for signs of discrimination. They'll have to collect and publish statistics so that people can measure progress in complying with the law. All of this will take time and money.
Lawyers and courts will have to study and interpret the law. Exactly what is the definition of "bald"? If someone has a little hair over his ears but none on top of his head, does that count as bald? Are we talking about only people who are naturally bald, or does someone who shaves his head count? Etc. If this sounds trivial and nit-picking, it's a fraction of the technicalities that people have gotten into about real laws. Many court cases consist of nit-picking arguments about the definitions of words used in a law. I came across a court case where a company claimed that their product was not "ice cream" but "frozen custard", and thus not subject to government regulations on ice cream. And so the lawyers argued about the definition of "ice cream". That wasn't a funny, trivial argument to the company: millions of dollars hinged on the answer.
Most laws have technicalities, special cases, and exceptions. Can a company insist that a person they hire to test shampoo must have hair? You may say, "Well of course, that's obviously a special case." But if it's not written into the law, how could a court even listen to such an argument? It is not normally a defense in court to say "I thought the law didn't apply to me". Try that one. "Yes judge, I know the speed limit on that road is 40 mph. But it was good weather, broad daylight, and my car was the only one in sight. It was perfectly safe to drive 50 mph." Think the judge will let you off on that argument? Even if you say that the courts can make exceptions on a case by case basic, then citizens can only speculate how a court will decide in their case. What if a movie-maker is casting someone to play a famous person who was not bald. Can they exclude bald people? A bald actor denied the job could say that he would wear a toupee. What if the producer thinks that toupees look fake? A judge would then be called on to decide how convincing a toupee is. How could anyone predict his decision in advance? Remember, if you guess wrong what the judge will decide, you could face fines or imprisonment.
A few years back Congress passed a law making it illegal for a corporation to sponsor a meeting where someone gives a "campaign speech". Many social advocacy groups, from the Sierra Club to the National Rifle Association, are organized as corporations, so the law wasn't just about keeping General Motors out of politics. I saw a panel discussion where the government agency charged with enforcing the law explained its definition of "campaign speech". Basically, they defined it as a speech that included key phrases like "vote for" or "elect". An activist objected that their definition was too narrow, and that they should decide based on the general content and tone of a speech on a case-by-case basis. One of the bureaucrats pointed out that this law called for penalties of up to five years in prison. What this person was saying is that the government shouldn't give people any hard and fast rules. You just give your speech, and then we'll evaluate it, and if we decide, based on our subjective interpretation of the "general tone" of your speech, that it crossed over the line, you go to jail for five years. This seemed unacceptable even to a bunch of government bureaucrats. Law is not a game.
People trying to comply with the law will often err on the side of safety. My baldness law would likely to result in discrimination against people with hair. Suppose two people apply for a job, one bald and one with hair. You think the man with hair is better qualified, but it's a close call. The law would create strong pressure to hire the bald man. If you hire the bald man, the matter is over. But if you hire the man with hair, the bald man can have you charged with discrimination. At the very least you have to go to court and pay lawyers to defend yourself. You will then have to convince the court that you had good reason to believe that the man with hair was better qualified. Many hiring decisions are made based on subjective factors. "He seemed to know what he was talking about." "I thought he would make a better fit for our team." Etc. Even if you use objective criteria, like a quiz, you can be accused of biasing the quiz or the scoring.
No matter how just and fair the law is, some innocent people will be wrongly convicted of violating the law. The police and courts may make honest but tragic mistakes. An over-zealous prosecutor may railroad someone that he just knows in his gut is guilty. The courts may be biased against someone for anything from personal reasons (like, this guy stole the judge's girlfriend when they were all in high school), to racial or political bias.
And so on. Every new law imposes costs. It is fair to say, yes, we recognize these costs, but the evil that this law addresses is so great that it is worth the cost. Few would say that laws against murder or kidnapping are not worth the cost. What is not legitimate is to pretend that the costs don't exist, or to dismiss them because you are not the one who will pay them.
© 2016 by Jay Johansen
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