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I think that the important part in the eternal debate about large vs small government is missed - the real problem is fuzzy government. The one with overly broa

I think that the important part in the eternal debate about large vs small government is missed - the real problem is fuzzy government. The one with overly broad and ill defined powers and fuzzy laws. What we need is a precise government where the functions and powers granted to the executive branch are not allowed for discretion, interpretation and overzeal. Unlike the rights of the constitution that are universal and eternal the laws describe the here and now - so every law should have its built in expiration trigger (10-20 years) - this will ensure that the congress will act to reauthorize it if they like it so much. And because of the limited time they will be forced to triage and some insanities will just expire.

toufka 14y ago
There is always an other side. In general, I think you want fuzzy laws, as there are fairly universally agreed 'bad' things, though not a single person has a good definition of 'bad'. A computer 'crime' or 'fraud' can easily be understood by an informed jury, judge and prosecutor and be just beyond the very letter of the law. So long as our system is adversarial in nature, I don't think an occasional push against the fuzzy line is in poor form, as long as there is commensurate push back. And in general, in the long run, this is a more equitable and just system than one of algorithmic rules where technicalities truly do trump intent.
- AnthonyMouse 14y ago
  I've never liked this argument. "Fuzzy" always helps prosecutors (unless the defense can argue that it's so fuzzy it's unconstitutional, which is pretty hard), because the prosecutor gets to choose who goes to court in criminal cases of first impression. They find someone with insufficient resources to mount a vigorous defense who happens to be wildly unsympathetic and the judge and the jury will make the contortions necessary to put them in prison -- and then that precedent sets the stage for the next prosecution. Make the law clear and some defendant will get off on a technicality, but only once, then you fix the loophole. Over time the law evolves to more accurately reflect congressional intent as they pass patches to fix bugs, instead of leaving it to the courts and the biases (like prosecutors choosing who to prosecute when they want a precedent) that come along with that.
- mpyne 14y ago
  I agree, if only because I've seen it tried, and because you're essentially having to write a computer program for the legal system to execute. It's hard enough to do this right for machines that will do essentially anything you ask of it the same way every time, I can barely imagine how disastrous this would end up in the hands of elected legislators.
- dredmorbius 14y ago
  And for this system to work (I support it, by the way), we need to remind judges and prosecutors that their discretion is key to making the system work appropriately. Which means holding them accountable for misuses of the system. It's for this reason that, after significant wavering, I've supported the petition for the removal of Carmen Ortiz, despite strongly supporting her prosecution of other white collar crimes. She simply lacks appropriate discretion for the position, especially in light of JSTOR and MIT's not pursuing independent legal action.
- krichman 14y ago
  Sometimes I think the real problem is that we've lost the viewpoint of "it's better 1000 guilty go free than 1 innocent be imprisoned". At the very least it shouldn't be so easy to, for example, drum up 35 years worth of charges on excessive downloading.
  - malandrew 14y ago
    In fact, the situation today is probably the opposite. With plea bargains, I believe conviction rates are as high as 99.5% (IIRC). Somehow I find it hard to believe that 99.5% of people charged with a crime in this country are actually guilty. That seems dangerously high. I know that many innocent people are let off when a case or charges are dismissed, but of all those that do go to trial, more than a mere half percent must be innocent.
    - krichman 14y ago
      99.5% of accused are found guilty? That's totalitarian.
      - malandrew 14y ago
        Mainly because of plea bargaining. "Fewer than 10 percent of the criminal cases brought by the federal government each year are actually tried before juries with all of the accompanying procedural safeguards noted above. More than 90% of the criminal cases in America are never tried, much less proven, to juries. The overwhelming majority of individuals who are accused of crime forgo their constitutional rights and plead guilty."[1] From what I've read elsewhere, of the 10% or so that do go to trial, something like 9 times out of 10 the verdict is guilty. Given that a federal criminal trial takes $1.5 million to defend and that the prosecutor has all the weight and resources of the federal government behind then and the citizen has to rely on his own financial resources (which are likely to be frozen if they are well-heeled defendants), then that rate of conviction isn't surprising in the least. Federal criminal cases are totally asymmetric in favor of the federal government. As citizens, we always complain of well funded people prevailing in civil and criminal cases because of the money they have to defend themselves, but we ignore the well funded prosecution that US district attorneys have that allow them to consistently find people guilty who may not be. [1] http://www.cato.org/sites/cato.org/files/serials/files/regulation/2003/10/v26n3-7.pdf http://www.cato.org/sites/cato.org/files/serials/files/regul...
newbie12 14y ago
Sunset provisions for regulations and programs is a long-time conservative policy plank. A Sunset law to force regulation review was actually part of the Contract With America, and the libertarian-conservative wing of Congress forced a sunset provision on the first Patriot Act.

toufka 14y ago

There is always an other side. In general, I think you want fuzzy laws, as there are fairly universally agreed 'bad' things, though not a single person has a good definition of 'bad'. A computer 'crime' or 'fraud' can easily be understood by an informed jury, judge and prosecutor and be just beyond the very letter of the law. So long as our system is adversarial in nature, I don't think an occasional push against the fuzzy line is in poor form, as long as there is commensurate push back. And in general, in the long run, this is a more equitable and just system than one of algorithmic rules where technicalities truly do trump intent.

AnthonyMouse 14y ago
I've never liked this argument. "Fuzzy" always helps prosecutors (unless the defense can argue that it's so fuzzy it's unconstitutional, which is pretty hard), because the prosecutor gets to choose who goes to court in criminal cases of first impression. They find someone with insufficient resources to mount a vigorous defense who happens to be wildly unsympathetic and the judge and the jury will make the contortions necessary to put them in prison -- and then that precedent sets the stage for the next prosecution. Make the law clear and some defendant will get off on a technicality, but only once, then you fix the loophole. Over time the law evolves to more accurately reflect congressional intent as they pass patches to fix bugs, instead of leaving it to the courts and the biases (like prosecutors choosing who to prosecute when they want a precedent) that come along with that.
mpyne 14y ago
I agree, if only because I've seen it tried, and because you're essentially having to write a computer program for the legal system to execute. It's hard enough to do this right for machines that will do essentially anything you ask of it the same way every time, I can barely imagine how disastrous this would end up in the hands of elected legislators.
dredmorbius 14y ago
And for this system to work (I support it, by the way), we need to remind judges and prosecutors that their discretion is key to making the system work appropriately. Which means holding them accountable for misuses of the system. It's for this reason that, after significant wavering, I've supported the petition for the removal of Carmen Ortiz, despite strongly supporting her prosecution of other white collar crimes. She simply lacks appropriate discretion for the position, especially in light of JSTOR and MIT's not pursuing independent legal action.
krichman 14y ago
Sometimes I think the real problem is that we've lost the viewpoint of "it's better 1000 guilty go free than 1 innocent be imprisoned". At the very least it shouldn't be so easy to, for example, drum up 35 years worth of charges on excessive downloading.
- malandrew 14y ago
  In fact, the situation today is probably the opposite. With plea bargains, I believe conviction rates are as high as 99.5% (IIRC). Somehow I find it hard to believe that 99.5% of people charged with a crime in this country are actually guilty. That seems dangerously high. I know that many innocent people are let off when a case or charges are dismissed, but of all those that do go to trial, more than a mere half percent must be innocent.
  - krichman 14y ago
    99.5% of accused are found guilty? That's totalitarian.
    - malandrew 14y ago
      Mainly because of plea bargaining. "Fewer than 10 percent of the criminal cases brought by the federal government each year are actually tried before juries with all of the accompanying procedural safeguards noted above. More than 90% of the criminal cases in America are never tried, much less proven, to juries. The overwhelming majority of individuals who are accused of crime forgo their constitutional rights and plead guilty."[1] From what I've read elsewhere, of the 10% or so that do go to trial, something like 9 times out of 10 the verdict is guilty. Given that a federal criminal trial takes $1.5 million to defend and that the prosecutor has all the weight and resources of the federal government behind then and the citizen has to rely on his own financial resources (which are likely to be frozen if they are well-heeled defendants), then that rate of conviction isn't surprising in the least. Federal criminal cases are totally asymmetric in favor of the federal government. As citizens, we always complain of well funded people prevailing in civil and criminal cases because of the money they have to defend themselves, but we ignore the well funded prosecution that US district attorneys have that allow them to consistently find people guilty who may not be. [1] http://www.cato.org/sites/cato.org/files/serials/files/regulation/2003/10/v26n3-7.pdf http://www.cato.org/sites/cato.org/files/serials/files/regul...

newbie12 14y ago

Sunset provisions for regulations and programs is a long-time conservative policy plank. A Sunset law to force regulation review was actually part of the Contract With America, and the libertarian-conservative wing of Congress forced a sunset provision on the first Patriot Act.