Low sanctions can initially appear to be a mitigating factor for unjust or inefficient laws, but this perception is likely wrong. This Article argues that low sanctions may have a pernicious effect on the democratic process and on legislative rule making because, as both public choice theory and historical precedent suggest, the laws accompanying these sanctions are more likely to perpetuate themselves and become part of the unquestioned background fabric of society. This Article focuses on intellectual property law (in particular, copyright) and examines the progression of suboptimal laws through widespread low sanctions that may mostly escape the public eye until sanctions then grow to more significant size. In intellectual property, as elsewhere, low-level sanctions coupled with problematic laws are less likely than their high-sanction counterparts to attract the attention of the media and lead to political action. This Article makes several claims about low sanctions. The first is that low sanctions increase the likelihood that a problematic law will be passed. Second, low sanctions decrease the odds that such a law will be repealed. Third, unjust laws with low sanctions bear the risk that the sanctions will (sometimes gradually) rise, and thus reduce any upsides that accompany the initial low level of the sanctions. By the time this occurs, it may prove an irreversible change because it is more difficult to abolish a law than to prevent its initial passage. The media plays a key role in these processes when it focuses on the identifiable victims of high sanctions and fails to pay attention to the statistical victims of low sanctions. Last, whether sanctions for single offenses are high or low, prosecutors can accumulate counts in a way that significantly intimidates alleged offenders with sometimes dramatic consequences. This practice was visible in the recent stories about computer coder and Internet activist Aaron Swartz’s prosecution and suicide. Examples from intellectual property and other legal areas should encourage us to take a closer look at existing or proposed legislation that appears harmless enough at first glance due to its low sanctions or lack of enforcement.
November 2015, Vol. 67, No. 6
Liesa L. Richter, Posnerian Hearsay: Slaying the Discretion Dragon
Sapna Kumar, Regulating Digital Trade
W. Keith Robinson, Economic Theory, Divided Infringement, and Enforcing Interactive Patents
Sandra F. Sperino, Retaliation and the Reasonable Person