> [...] The last time the Supreme Court addressed the matter, in 1888, it ruled that “the whole work done by the judges constitutes the authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all.”
A solution to how ridiculous old laws are is automatically expire them. That way, the politicians are forced to reevaulate them.
England had a case in the 1800s where everyone forgot that trial by battle still existed from the middle ages. Someone invoked it and it was upheld, but parliament quickly found it within them to repeal the law after that case.
An approach with sunset dates ensure the most important laws are at the forefront of national discourse, and ensures that lawmaking doesn't degenerate to "keep trying til you pass it, then smooth sailing because no one ever actively looks at these things anyway."
Legislated law is not something to be treated lightly; especially at the Federal level in the United States, where the protection of liberty is a first class objective of the government's existence in the first place.
Vote to uphold, I assert, is a clearer demonstrator of the Will of the People rather than vote to repeal. Vote to Repeal allows refuge in obscurity for keeping laws in force that most would not even wish to have in effect just by virtue of the majority of people being ignorant of them.
Also, it cuts down on the tendency of law scholasticism to create a privileged class through the exploitation of loopholes, and archaic blue laws.
If a law is truly worth having, let it be tested in the fires of reaffirmation. That which is without question, should pass with minimal controversy. That which is in woeful need of update or reformulation, will be brought to the forefront of the national consciousness and reshaped to better serve the interests of the Public. That which is no longer the Will of the People may be safely set aside to fade into the gentle repose of history, and the Public shall enjoy a restored liberty for it's having done so.
My two cents.
Each aspect of the law is carefully considered and debated every N years before being reaffirmed or rejected?
Or,
Every N years the legislature passes a pro-forma "the laws are still the laws" bill, which no one bothers to read or debate or modify in more than a cursory sense?
Every N years, a pro-forma bill is drafted, but a few legislators will take the opportunity to grandstand about the existing legislation that relates to the theme of their upcoming re-election campaign. This result in a few high-visibility but ultimately low-impact tweaks.
Two edge cases will also arise less frequently. First, the extra importance of the pro-forma bill means that fillibuster threats have extra leverage. This will play out similarly to the government shutdown. Second, in instances where one party controls both houses and the Presidency during re-up time, sweeping legislative reforms are more likely (e.g. repealing Obamacare would have been easier if repeal was the default).
Laws are, and should be treated as maintenance items. If you can't be bothered to have a token yes vote, it doesn't belong on the books.
If nothing else, it also keeps the culture intact, and gives a more realistic rendering of your long term representatives voting proclivities and priorities. It forces politicians to take a position, and live up to it instead of taking refuge in building their career around niche special interests.
I acknowledge there are good points being made, and that yes, there has to be a willingness to change the way we approach the legislative process. I still believe it would not be as problematic as people think.
There's second and third order incentives created to have better discipline with regards to the structuring of legislation in order to facilitate easy processing by those bound by it, and those charged with reaffirming.
This manifests as a disincentive to create rider networks on unrelated bills, the ability to structure congressional committees around bundles of related subject matter (a procedure that currently works), and it allows the new voter to at least have their voice heard, and vote counted in regards to fundamental issues of the laws they are bound by. This takes it from something other people forced on you, to something you voted for. This would greatly increase the closeness of the voter to their government. Should dramatic upset happen, it represents a signal that a cultural consensus needs to be arrived at.
I doubt that the vast majority of people are so deluded to not be able to agree on the basics on a regular basis. I do, however, think that there may be a preference for less mainstream political movement in the absence of a requirement to agree on the fundamentals with regularity. Polarization becomes much more difficult when we're forced to come to a compromise to preserve what is truly important.
And what is truly important is that which can be passed no questions asked.
Deadlock is the gift of the Founders, but getting something done, even if it was a foregone conclusion, goes a long way to maintaining faith in the system.
And guess what? In X so many years, if the legislative process doesn't pan out...just let it drop, and go back to what worked.
Nothing even structurally changes. It's just default bill behavior that does.
I’d love to type more but I’m on my phone and down to one thumb due to an injury. Sorry for not engaging more on this!
The problem both legislators and developers face is one of triage. There is always a high-priority backlog, and this means trivial issues that are stupid but not severe tend to go unaddressed unless someone goes on a personal crusade.
In the abstract, I agree that sunset would be ideal, but in practice I worry it would cause even more of a triage problem than legislators already face, which I think this proposal would address.
This sort of legal amnesia has major drawbacks. Hand politicians the opportunity to make crisis and they'll take advantage of it. Do we really want debt-limit style brinksmanship around murder statutes?
Moreover, cleanly sunsetting laws within our common law system is hard. Case law builds on statute. Regularly wiping away vast portions of case law will have unanticipated consequences.
Of course with neccessary complexity so high today that wouldn't be that workable - every individual EPA regulation may be important but only come up to specific subsets.
The closest thing I could see as viable would involve Cryptography and standard law files as the mode of distribution and a server which accepts uploads of valid laws - which could be defaulted to "one person with another server ensures everything remains in force".
Do they? Or do they think they're somehow immune to murder being suddenly legal?
Yes. Presumably politicians don't want to be murdered by their opposition. It wouldn't lapse more than once.
There are a lot of good reasons that this is a really bad idea. But the fundamental reason is that there are always a few politicians everywhere who can't be trusted to act in good faith.
It's a part of the U.S. legal code that can't even be changed by legislatures with sudo access.
(Although SCOTUS can apparently update the firmware.)
If only we had some kind of distributed system that could be used, to maintain a complex codebase with thousands of contributors... oh wait we already have git. Imagine if federal law was a monorepo, and state, county, city laws were branches. It sounds like a nightmare to manage, but lawyers are increasingly tech-savvy and, for example, bitbucket allows one to edit files from a web interface and immediately create pull requests. Additionally, there are already consensus-based and k-of-n cryptosystems that could be used to review and sign pull requests -- this could be the basis of a true technological republic.
What happens is you have mass renewal laws, which end up being de facto non-expiring laws with a veneer of expiration.
My argument sounds like “can’t work 100% so do nothing” but laws that are given sunset clauses because of their controvesiality (e.g. USA Patriot Act) are routinely renewed as their very existence seems to justify their continued existence, while the sunset clause had been added to mollify objectors.
And on that "the whole work done" is also another prominent anachronism of US flavour of British common law.
Other common law countries, let alone mainstream civil law countries do not maintain automatic correctness, authoritativeness and infallibility of institute of justice, from which stems the absence of unqualified immunity of judges in a lot of nations.
A scope of legal authority must be very strictly and clearly defined, and based upon constitutional and fundamental legal principles, with easy pathways to invalidate it if done in wrong. In other words, there must be critical criteria of its validity.
In US on other hand, in principle and in theory, a judge or juror can issue a ruling completely contravening a law in most the most antithetical, polar way, and nothing will be able to do anything with him, and his ruling will be legally valid.
Is that not what appeals and jury selection processes are for?
Or to eliminate prosecutorial discretion.
The actual case seems to be a copyright dispute over whether or not the State of Georgia can copyright its own laws.
I disagree with that claim and I think it is irresponsible for a lawyer to call what he was doing a "form of terrorism" or "part of a strategy of terrorism". I think it's even more irresponsible for a lawyer to equate what he was doing and his words, a "form of standards terrorism", to unqualified "terrorism".
Now every time this guy is googled, his name will be associated with terrorism, thanks to this suit, putting doubt on his work, which is meant to balance the power between the state and its citizens. You don't see why the state calling this guy a terrorist is reprehensible?
But it's not a story about Georgia trying to smear Malamud, it's a fairly dry story about the copyright case[1] they're bringing against him. Responsible editors don't take legal stories about appelate copyright cases and slap "terrorism" in the headline, they just don't.
[1] It's even a fairly subtle copyright case. The laws themselves are public domain, what he copied was the annotations (e.g. links to relevant court cases) that appear in the heretofore-privately-published law texts. Do curated links count as copyrightable material? I don't know! It's an interesting subject and I'm interested to read about it. But not when it's headlined as a terrorism accusation.
The federal court opinion [1], which rules in favor of Malamud's NGO, does not once mention "terrorism". The case is a copyright one. (And an important one at that.)
I'm guessing the quote was from the lawyers' remarks, not the actual charges. So serious faux pas more than abuse of power.
[1] http://media.ca11.uscourts.gov/opinions/pub/files/201711589....
We don't have any context beyond a Georgia lawyer saying "strategy of terrorism." Given how broadly that term is used nowadays, sort of like "war on X", this could have been a reference to Public.Resource.Org's legal or PR strategy or many other things.
It's a terrible choice of words, particularly for a government lawyer. But I don't see the evidence in the text to support the headline that he was accused, formally or informally, of terrorism. (Nor that he believed he was fighting terrorism, versus copyright, accusations or charges.)
TL; DR A lawyer using the term "terrorism" loosely is not the most interesting facet of this case.
Actually, we have both context and original source documents, going back to 1992. Consider discussions on this page, which I suspect will include lots of people arguing the accusation, as a case in point of how very few people read and do their research.
If the government lawyers said "he is behaving like a terorrist" or "this is terrorism," I'd agree with you. But we don't know that. We just have government lawyers describing something, within unknown context, as a "strategy of terrorism" and a headline running that into an accusation.
Whether and how it happened is irrelevant.
It's a fair challenge. My response isn't that you're wrong, just that the article provides insufficient evidence for me to agree with you. Describing a legal action as a "strategy of terrorism" is, to me, a faux pas. Describing a person's activities as a "strategy of terrorism" is abusive if employed to dissuade them from continuing a legal battle and possibly defamatory.
But I do think it is bad practice for the state to turn up the rhetoric in its legal disputes when it turns a legitimate adversarial dispute about the legality of actions into an improper attack on a citizen’s character. But on the other hand, there are plenty of circumstances where we feel it is totally proper (e.g. criminal prosecutions, but probably also lawsuits for fraud, gross negligence, and intentional physical injury). It is hard to balance the state’s dual roles as neutral arbiter/enforcer of the law and adversarial participant in it. The executive/legislative/judicial split helps, but does not solve it.
USA is one of few countries where there is close to nothing amounting to codified criminal abuse of office laws, the few criminal abuse of office laws are state level in USA. The wider official crimes class of offences, is also poorly represented, if not to say not being recognised as such.
Even if you compare USA to worst offenders on that front, from how it was in USSR, to China and other joke polities. They did jail more office abusers than US. Sounds silly, but look at the digits.
While this was never indicative of political commitment, and USSR was horridly corrupt through its whole history, there was at least a minimal acknowledgement that completely useless/incompetent people must be kicked out from official positions, or after demonstrable public screw up.
Here is a list of things amounting to official crimes in self respecting polities:
- Criminal incompetence
- Criminal dereliction of duty
- Insubordination
- Providing criminal agency
- Criminal conflict of interest
- Exceeding official authority
- Conduct of crime under official authority (have no idea for a better translation)
- Criminal deprivation of rights
- Failing official audit
- Criminal violations of cadre/appointment/recruitment policies/procedures
- Loss of official records/communications/accounting
- Income/assets beyond known means while serving in office (a charge as such, literately)
Any real code will have few times more of the above, and of stuff nowhere remotely considered an official crime in USA.
There is a lot of law, at the federal and state levels, concerning abuse of power [1]. This takes the form of both statutes, which tend to use the term of art "malfeasance in office," e.g. [2], and court precedent (both of which are the law).
> there was at least a minimal acknowledgement [in the USSR] that completely useless/incompetent people must be kicked out from official positions
Office abusers tend to lose their office through elections and term limits. Where this safety valve doesn't exist, a more pointed approach is needed.
[1] https://en.wikipedia.org/wiki/Abuse_of_power
[2] https://law.justia.com/codes/louisiana/2011/rs/title14/rs14-...
And that law is of very abstract, and ephemeral kind — the very criteria of fault in how USA approaches official crimes.
And as I stated above, most of that law is state level patchwork and case law rather than federal level statutory rules.
No, it's highly specific, drawing from cases going back to the founding of the Republic.
> most of that law is state level patchwork and case law rather than federal level statutory rules
Statute isn't stronger than case law. They're both law in a common-law system [1]. (Insider trading, for example, isn't defined in federal statute, but it's still commonly penalized.)
No, it isn't.
Even if you do not consider the moderately modern exercise of official crimes laws, the few that were used are few. As what I know of their historicity, most of early work on that lines were about official crimes being an offshoot of treason/sabotage/sedition/subversion and such.
And if you start discussing their moderately modern exercise, then, well, as I stated above, the court record of abuse of office cases is of charges not reaching the court to begin with or being dropped.
> Statute isn't stronger than case law.
Statute is a clear writing in text saying "things A, B, and C are a crime." When it comes to that, case law is weaker because it is much more open to interpretation with it being a collection of opinions, interpretations, philosophising, from time to time bordering on "legal theology."
It is much weaker against official crimes in reality, when DAs can wiggle their way out of need to fill charges using numerous excuses provided by law's openness to interpretation
P.S. That Louisiana law that you pulled, well, is a Louisiana law, not federal.
For corruption, charges tend to come up. For more ambiguous forms of abuse, the investigations tend to do the political damage required to push people out of office. At the end of the day, you want a high bar for removing elected people from office. (You want a higher bar still for jailing them.)
> Statute is a clear writing in text
So are court opinions. Clear writings, in text, that describe the ruling's logic in detail.
Statutes can be re-interpreted by courts just as easily as precedents--it's a total myth that one form of the law is weaker than the other. If anything, case law is more concrete than statute--tangibly speaking, what courts decide is more important than what you think the text of a statute means.
Or anyway that somebody had to carry the can for unfortunate events: saboteur engineers, murderous doctors, what have you.
law enforcement falls behind the false state of qualified immunity, which can apply to every person in the confines of law enforcement, and that derived from a bad court ruling that perpetuates till today.
worse, people do not understand the full import of many laws and instead focus on how they negatively affect a disliked group. this allows politicians at all levels to protect themselves as well as punish those they don't like all with public support.
Abuse of office happened not be the part of Ch.11 of US Criminal code (Title 18, not 25) as was told by a comment below
The second major error is that you conflate the presence of such criminal laws with anti-corruption measures. In reality, the existence of laws that allow jailing someone for making mistakes at work ("incompetence," "failing official audit," etc.) is a tool of corruption. Simply appoint the right auditor and you can eliminate anyone who disagrees with you. Making poor job performance a crime, for someone with no mens rea, is inherently totalitarian and abusive.
Lastly, it is simply not a factually correct statement to say that the "USA has very little in terms of law on personal liabilities of officials and their scope."
(a) First, I'll address the support you cited. Your reference to 25 C.F.R. § 11.448 is inapposite: it doesn't support your position because it isn't a statute, and it is utterly inapplicable anyway because it only applies on certain Native American reservations. A Bureau of Indian Affairs regulation was not a good choice for you here. See https://www.law.cornell.edu/cfr/text/25/11.448 and https://www.law.cornell.edu/cfr/text/25/11.118
(b) I'll address the presence of the law you claim does not exist.
(i) Brief overview. Title 5 of the U.S. Code (5 U.S.C. § 101 et seq.) is the statutory law that governs federal employees (except uniformed members, who are governed by title 10, title 14, or title 32, depending on component and status). Additional crimes are in title 18; additional constraints are found in specific titles depending on subject matter (e.g., the VA is governed by title 38).
(ii) Specific examples (procedurally): Chapters 43 and 75 provide specific guidance on holding federal civilian employees accountable for malfeasance of any sort. Any lingering questions you have about the U.S. system should probably begin there.
(iii) Specific examples (substantively): Since criminal statutes seem to hold special significance for you, let me direct your attention toward 18 U.S.C. § 201 (bribery), 18 U.S.C. § 203, 209 (supplementation of salary), 18 U.S.C. § 205 (representational conflicts of interest), 18 U.S.C. § 208 (personal conflicts of interest), and so on. Additionally, take a look at 10 U.S.C. § 892 (military failure to obey an order and/or dereliction of duty).
I give you +1 for a good, substantiated argument
But still, US has very lax stance on official responsibility, and very fundamentally on the idea of whether a failure to perform duty in office or required specific performances pass as an offence for an official.
> Making poor job performance a crime, for someone with no mens rea, is inherently totalitarian and abusive.
Does US has a stance on failure in official duty being mens rea defensible? A number of Western democratic state don't think so. I'm not meaning for something like an ordinary clerk failing to show at work being a case of it, but for government officers with highest levels of responsibility — positions onto which people certainly don't get by simple promotion.
Your citation was not to "title 25," either. This was not a numerical mistake. You cited the regulatory code, rather than the statutory code. They are entirely different bodies of law.
> the point that most of the official offences are not a matter of title 18 (criminal code) stands
Yes. Another point that still stands is that you fundamentally misunderstand how important it is not to over-criminalize behavior of this type.
The surest sign that a regime is corrupt is that it imprisons those it claims are corrupt. See, e.g., https://www.scmp.com/news/china/article/1679489/xi-jinping-v...
Well yes, I will not be a lawyer. After all finally remembered, ch 11 of title 18 (criminal code) is what was buzzing in my head at the time. Somehow "abuse of office" felt like it belonged there.
I concede on that, IANAL defence does not work when you engage in a dispute with a lawyer with encyclopedic knowledge of the code, and you totally embarrass yourself :)
> Yes. Another point that still stands is that you fundamentally misunderstand how important it is not to over-criminalize behavior of this type.
And you cite China as an example, out of all countries...
Lets follow this logic: a single stroke of a pen by a senior government officer of a big country can easily cause enough damage (economic, property, life, moral) for it to be comparable to a war loss. Just let the guy go? Last time I checked, generals loosing wars were usually relieved of heads, not jobs (even in USA, during the revolutionary era.)
The senior-most official positions must be coming with responsibility other than something like "suspension of no more than 14 days," and this is what a lot of nations subscribe to, and not all of them are communist satrapies.
In big part of Western Europe and former UK colonies Misfeasance in public office is at least a matter of an administrative liability with a lot of actionable laws against it.