Monday, March 22, 2010
Legal institutions struggle when the legality of behavior, and the normative acceptability of that behavior, diverge. Sometimes behavior that is formally illegal is normatively acceptable; sometimes behavior that is legal is normatively unacceptable. Want proof? When you drive home today, drive 1 mph under the speed limit. You'll find that behavior that is illegal -- speeding -- is normatively acceptable, but that legal behavior -- driving below the speed limit -- is normatively unacceptable.
Legal institutions facing those divergences falter in predictable ways. Behavior that is legal but normatively unacceptable cannot trigger a formal response from legal institutions, so tends to trigger 'popular justice' responses -- sometimes as mild as tailgaiting, sometimes as severe as violent vigilantism. Behavior that is illegal but normatively acceptable usually does not trigger a formal enforcement response, but it can -- at the enforcer's discretion. The danger here is selective enforcement. Consider again the speeding example: what is racial profiling but selective enforcement against illegal but normatively acceptable driving behavior?
The same dynamic is at work with regard to property rights, as the recent lawsuits brought against Jammie Thomas and Joel Tennenbaum demonstrate. At least among the young and computer-savvy, non-commercial file-sharing seems to be normatively acceptable, even though it is illegal. According to the Electronic Freedom Foundation, one in five American Internet users is a file-sharer. Ask the next class you teach for a show of honest hands, and you'll probably find that estimate accurate.
The predictable danger when there is is such a wide divergence between the legality and normative acceptability of behavior is selective enforcement. Courts aren't good at avoiding being used as vehicles for selective enforcement. In both the Thomas and Tennenbaumcases, Judges Davis and Gertner openly lamented their inability to prevent their institution from being so used. Judge Davis in the Thomas case expressed serious misgivings about the unfairness of singling Thomas out for liability, stating that Thomas "acted like countless other Internet users. Her alleged acts were illegal, but common." Judge Davis recently slashed the damagesawarded against Thomas by 97%, from $1.92M to $54,000. He clearly is intent on fighting back against the perceived unfairness of selective enforcement against illegal but normatively acceptable behavior. But the RIAA isn't giving up, either; they have filed a motion for new trial on damages.
But even the RIAA must realize that it cannot hope to use the courts to selectively enforce against normatively acceptable behavior forever. Usually, eventually, property rights catch up to notions of normative acceptability.
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