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Lazy Law October 30, 2007

Posted by federalist in Government, Judiciary.
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Tim Wu delves into fascinating examples of what I would call lazy law: The legislature passes all sorts of laws, but the executive only enforces the ones that are generally palatable, or in which the public has particular interest at a particular point in time. There are adherents to the philosophy of prosecutorial discretion but to me this system seems upside down.

The problem is that this system leaves our legal landscape littered with laws that lie in wait like landmines. Anyone who steps on them is at the mercy of the prosecutorial authority. If the authority is looking to score political points (e.g., Spitzer, Nifong) or is being pressured by a special interest, or is simply in a bad mood, then a hapless citizen following a well traveled path gets blown up.

Our system of government is not designed to impose an appropriate level of accountability on prosecutors who enjoy such discretion.

If we had a strong culture of jury nullification perhaps this could work. (This would in effect reduce to a system of Common Law, like the one advocated by John Hasnas.)

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[…] have previously noted that the greatest peril of this situation is selective enforcement. I have since observed a more nefarious phenomenon: the government […]


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