Monday, October 15, 2007

Slate on How Laws Die

Tim Wu writes an entertaining history of porn prosecution in the US. In the early 70's under Richard Nixon, Congress established a Commission to recommend what to do about the sudden proliferation of porn. The commission horrified the politicos by stating that the problem was not the porn producers but society. Thirty some years later, what is actually in practice from prosecutors is what the Commission recommended -- overlook porn and encourage frank discussion of sex. This is just one illustration of how the wisdom of crowds (link and here) can work. Click on the title of this post to read the whole article. Here is a snip:

But who, exactly, reached all of these conclusions and made them our de facto law? Not Congress, the courts, or any individual president. Instead it was a combined product, over decades, of the decisions of hundreds of prosecutors, FCC officials, FBI agents, and police officers—all of whom decided they had better things to do than chase around pornographers the way they chase murderers. Their consensus—that normal pornography just isn't harmful in the sense that, say, drugs are—has driven the current law more so than any official enactment.

There are, by the way, strange consequences to the tolerated illegality of obscenity. Porn, considered as a regular product, is strong stuff. Yet it is free of most consumer safety regulation—the warnings, age limits, or worker safety rules that the American legal system insists upon for even fairly innocuous products. The United States is a country where fishing lures can warn, "Caution: Harmful if swallowed." Yet porn, banned but nonetheless tolerated, has ironically managed to avoid virtually all regulation.

The birth of a new law is something the media, lawyers, and academics pay great attention to. But the decay and death of old laws can be just as important, even when they're unobserved. The story of our obscenity laws highlights where, exactly, American laws go to die.
The Wu article goes on to examine other informal changes to law in the U.S., such as the numbers of prescription drugs that are legal alternatives to illegal drugs. It amounts to a sweeping, unoffical decriminalization of the statutes underlying the War On Drugs. Read the whole article for interesting thoughts on how our laws change in unofficial but very real ways through the actions of non-legislative bodies.

After enough time, society changes and laws that once seemed vital can look pretty dumb. There are plenty of entertaining sites about stupid (or outdated) laws. See for a nicely organized example.

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