How Overregulation Breeds Corruption

Overregulation can breed corruption because it can categorize vast groups of otherwise normal people as criminal.

Here is how professor of law Lawrence Lessig has argued this case in his Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity:

Overregulation stifles creativity. It smothers innovation. It gives dinosaurs a veto over the future. It wastes the extraordinary opportunity for a democratic creativity that digital technology enables.

In addition to these important harms, there is one more that was important to our forebears,but seems forgotten today. Overregulation corrupts citizens and weakens the rule of law.

... We regulate automobiles to the point where the vast majority of Americans violate the law every day. We run such a complex tax system that a majority of cash businesses regularly cheat. We pride ourselves on our “free society,” but an endless array of ordinary behavior is regulated within our society. And as a result, a huge proportion of Americans regularly violate at least some law.

This state of affairs is not without consequence. It is a particularly salient issue for teachers like me, whose job it is to teach law students about the importance of “ethics.” As my colleague Charlie Nesson told a class at Stanford, each year law schools admit thousands of students who have illegally downloaded music, illegally consumed alcohol and sometimes drugs, illegally worked without paying taxes, illegally driven cars. These are kids for whom behaving illegally is increasingly the norm. And then we, as law professors, are supposed to teach them how to behave ethically—how to say no to bribes, or keep client funds separate, or honor a demand to disclose a document that will mean that your case is over. Generations of Americans—more significantly in some parts of America than in others, but still, everywhere in America today—can’t live their lives both normally and legally, since “normally” entails a certain degree of illegality.

The response to this general illegality is either to enforce the law more severely or to change the law. We, as a society,have to learn how to make that choice more rationally. Whether a law makes sense depends, in part, at least, upon whether the costs of the law, both intended and collateral, outweigh the benefits. If the costs, intended and collateral, do outweigh the benefits, then the law ought to be changed.

Alternatively, if the costs of the existing system are much greater than the costs of an alternative, then we have a good reason to consider the alternative.

... The rule of law depends upon people obeying the law. The more often, and more repeatedly, we as citizens experience violating the law, the less we respect the law. Obviously, in most cases, the important issue is the law, not respect for the law. I don’t care whether the rapist respects the law or not; I want to catch and incarcerate the rapist. But I do care whether my students respect the law. And I do care if the rules of law sow increasing disrespect because of the extreme of regulation they impose. Twenty million Americans have come of age since the Internet introduced this different idea of “sharing.” We need to be able to call these twenty million Americans “citizens,” not “felons.”

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