Discrection and Rule of Law

--by Sebastian

Over at Crooked Timber, Chris Bertram riffs off of the recent badminton game throwing scandal at the Olympics to offer support for an organizing principle of discretion by law enforcers. 

There are people who devise and employ elaborate schemes to evade or avoid (I never know which is which) their taxes whilst staying just within the law. There are bankers who stay technically within a literal interpretation of the banking regulations, whilst engaging in dubious practices which undermine the regulator’s intention. There are employers who try to evade workplace regulations by reclassifying their workers as independent contractors. There are states which harp on about the technical details of the laws of war as they happily murder civilians. Well sometimes we need to punish the technically innocent but morally culpable.

...

Rule-of-law fetishists, Hayekians, and the like tend to think this is just appalling. Legislators, regulators, sports administrators and similar, should devise watertight systems of rules within which people are entitled simply to go for it. But it is highly questionable that such watertight frameworks are possible, even in principle. So we need to give the enforcers some discretionary power to zap the bad people: people who knew perfectly well that what they were doing was at or over the moral and legal boundaries but didn’t care. (On the tax front, the UK’s plan to introduce a General Anti-Avoidance Rule is designed to punish just these characters.) Such power is, of course, liable to abuse. But that’s just the way things unavoidably are. The solution is not to pretend that we can make the rules work perfectly, but to make sure the enforcers are genuinely democratically accountable and removable.

(Empahsis mine)

I would probably count as one of those rule-of-law fetishists.  Chris's formulation is bad in theory, and worse in practice.  Is it true that no law can cover every conceivable case?  Yes.  Is it true that some people somewhere will abuse the corner cases?  Yes.  Is it true that some discretion is necessary?  Certainly.  Does this mean that we should stop focusing on creating clear simple laws and just give enforcers lots more power to make things right?  No.  He is throwing out something very important because of imperfections in tough cases without apparently realizing how it functions in the not so close cases.

His examples (banking regulations, workplace regulations and law of war cases) suggest that he is concerned about using legal discretionary techniques to hit rich people who "knew perfectly well that what they were doing was at or over the moral and legal boundaries but didn't care." In the comments Chris writes "The OP said nothing about what the general level of regulation should be. What it did say is that, at any level, you are going to have this kind of conflict and that the solution then is not to proliferate further rule and sub-rules and definitions (because that’s just an arms race) but to allow the enforcers a general power to capture the instances that fall outside the literal rules on mere technicalities, where the perps are obviously acting in bad faith (as the badminton players, corporate tax evaders etc are)."  These quotes heavily frieght the issue with judgments that are quite murky in the real world: "knew perfectly well", "outside the literal rules", "mere technicalities", "obvious bad faith".  He seems to want us to give this power to virtuous prosecutors and regulators in a much more open way so that they will be empowered to bring these nasty rich people in line.

Theoretically, I'd prefer clean rules with little need for interpretation.  But I understand that from time to time the rules aren't clear enough and we have to let administrators act with some discrection.  But for the purpose of citizen/government interactions, it would be much better to make it as easy as humanly possible for people to know ahead of time what the rules are so they can guide their actions accordingly. 

Also in the comments, Phil makes a good point that brings the issue more into the real world: "The general trend is towards more regulators with more power. Endorsing it, on the basis that all we have to do is make them accountable, is a bit like voting for an Enabling Act on the grounds that we can always democratise the new regime later on."

We are already in a world with increasing regulatory power, and that power is not increasingly under democratic control.  We need more control over regulators first, before we start thinking about giving them more authority to punish the people who are 'obviously acting in bad faith'.  You can see interesting discussions of this problem at Volokh here and here.

But as a practical matter, Chris's focus is wrong.  We have all sorts of practice with regulatory and prosecutorial discretion, and in reality it tends to be employed against the poor, politically weak, and/or disfavored minorities while it tends to be employed in favor of the rich, politically strong, and/or favored majorities.  We give prosecutors discrection in charging, but they tend to wildly overcharge (for the purpose of getting a plea bargain) poor people far more often than they try to do so against rich people.  We know that drug sniffing dogs are far more likely to give false alerts when searching Hispanics in Chicago than when searching white people--suggesting that police discrection in searching (and in interpreting what counts as a drug alert from the 'trained' dog) is employed to the detriment of Hispanics [see here].  We know that the discretion offered by vagrancy laws is more likely to be employed against black people.  We know that cities will interpret disfavored groups as rioting while favored groups are demonstrating. 

In practical reality, clear simple rules operate to level the field somewhat between the rich and the poor, the favored and the unfavored.  They don't make it perfectly level, of course, but when ambiguity can be leveraged, it is the rich and favored who can leverage it, not the poor and unfavored.  Ramping up the ambiguity is more likely to let the IRS hit 5,000 waitresses than 1 millionaire. 

Comments

[Laura Koerbeer]

I agree. There's an end justifies the means argument implicit in Bertram's suggestion. I'd rather have the guilty go free than the innocent be convicted of...what? Giving someone the improession that they were trying to skate as close to the law as possible?

[ral]

Sebastian, re. the spark that ignited this (the Olympics badminton "scandal"), I imagine as a bridge player you are familiar with the underlying issue of contest conditions provoking "sportsmanlike dumping." It has been the topic of numerous editorials in the Bridge World and the net of it is, the blame should fall on the officials who create these conditions.

As for "discretion," I could not agree with you more. Once upon a time the idea that we are "a nation of laws, not men" was highly esteemed. It seems to have gone by the wayside, much to our detriment.

Laws that are unenforced or selectively enforced are bad laws. Enforcement that goes beyond the law is just the rule of the strong against the weak.

[liberal japonicus]

One thing that is missing is that different countries and different sports have different approaches to enforcement. In addition, subcultures in those will have different approaches. Golf is a good example of a sport that has a pretty fierce ethic of self enforcement. I surmise that Betram has the example of British tax enforcement in mind and may be influenced by this recent Guardian articlewhich, though about worldwide totals, is an especially tricky problem in the UK.

Roughly speaking, there are two approaches to enforcement, which is a strict letter of the law, which is what a lot of Americans have in mind and a much more fluid method, which is to write laws with maximal strictness and then give the enforcers the discretion in borderline cases, which is often what happens here in Japan. As an American, I feel myself drawn to the former, but I see the purpose of the latter is to create a consciousness within people to take the laws seriously when what seems like an incredibly draconian punishment is handed down to someone. Crappy if you are the one being made an example of, but sufficiently memorable if you are not.

One problem is when these two notions colide, it is very easy to get the worst of both worlds, where those without the wherewithal are made examples and those with tut tut.. This Fallows blogpost describes one of those clashes These sorts of situations are much more marked in sports because countries that are simply given the rule book may not clue into the culture around the game. Alternatively an international sport may develop different sub cultures with different approaches to rules. Unfortunately, in those cases, the only answer is an international body to decree what is acceptable and what is not. Ideally, the body should be able to catch these problems early.

[jrudkis]

I think that what the badminton players did was not only ethical, but required. They were seeking to win gold, and winning a tournament is not the same as winning a match. Do we think the same rules should apply to the NFL when they rest a QB after making the playoffs? If the tournament rules incent losing, the problem is the rules, not the players.

Clear rules make sense. I have no need for an IRS agent with "interpretation."

[McKinneyTexas]

Sebastian--a great post. I am not only a 'rule of law fetishist', I am a mundane rule of law fetishist.

[bobbyp]

In practical reality, clear simple rules operate to level the field somewhat between the rich and the poor

Yes. They are both free to sleep under bridges.

[Slartibartfast]

That's really the only thing that rich and poor have in common, though. Circle of the rich, circle of the poor, and a single point of tangency between them.

[hairshirthedonist]

Apropos of nothing of consequence, Slart's comment brings to mind the potty-training children's book "Everybody Poops."

[Ugh]

Ramping up the ambiguity is more likely to let the IRS hit 5,000 waitresses than 1 millionaire.

Not really.

[Bill Door]

One of the problems with "clean, simple rules" is how to react when someone presents the need to re-define or clarify.

"Don't murder" gets hedged around with rules defining self-defence, justifiable homicide, stand your ground, agency for the state, accidental death, negligent homicide.

Or do you leave it to the discretion of cops, prosecutors, judges, coroners, juries?

"Clean and simple" doesn't always stay that way.

[Countme-In]

The millionaire/billionaire (ambiguity inflation) has spent a lot of money under Citizens United and other campaign finance law to buy access to and even handpick the writers of the ambiguous laws on the books.

That language in banking and financial regulatory law was expressly written to give the regulators plenty of leeway to look the other way.

Course, it's only called ambiguity when they don't look the other way. Then it's called "the heavy hand of the law", with some coughing, shuffling, and yeah-buts by folks who a few minutes ago were slapping the back of one hand into the palm of the other and demanding less ambiguity.

Whattaya talk, whattaya talk?

The unlucky restaurant servers have no access to crafting ambiguous law, not that THAT stops anbiguity from preying on them.

I guess they are lucky duckies, receiving all of that ambiguity without paying for it.

Their employers, to some extent, natch have a say in ambiquity, except when there is none, in which case, who are these busybody pedant regulators quoting chapter and verse on e. coli?

What, no wiggle room? Where's my attorney, Counselor Wiggle R. Pleabargain?

It seems to me regulator Barney Fife got himself into plenty of trouble enforcing every jot and tittle on the books without bias to rich OR poor, but Andy Griffith used a little discretion in his dealings with the good citizens of Mayberry ..... "Well now, Barn, you got to use a little judgement here. Not every infraction is black and white."

I suspect some might find justice in unambiguous law enforced unambiguously, for awhile, but that wouldn't work in America, especially in some areas like finance, in which the continued forward movement of economic activity rests on a thin lens of grift and "presentation", the better to pull wool over the eyes.

If P.T. Barnum had been regulated unambigously, that fire exit labeled "This Way To The Egress" might have burned his libertarian hands.

I think I just took both sides of this argument, because ambiguity is my game.

[McKinneyTexas]

Or do you leave it to the discretion of cops, prosecutors, judges, coroners, juries?

There is always discretion (more like judgment actually) as to whether certain conduct is or is not a violation of a given law. Likewise, the concept of judicial discretion is a long established notion. Sebastian is addressing the notion that the state can conclude that an actor is technically within the law but that morally or what-have-you, the conduct is wrong or the mental state is bad and, based on that assessment, nonetheless impose punishment. That is, the state would have the discretion to sanction legal but undesirable conduct.

[Ugh]

That is, the state would have the discretion to sanction legal but undesirable conduct.

We have this in tax law already, it's called the "economic substance doctrine."

[wkwillis]

We have enough laws around to charge anybody for anything. Instead of changing the laws, you can change the cops, prosecutors, and judges, and get any result you want.

[Ugh]

That is, the state would have the discretion to sanction legal but undesirable conduct.

Also, who is "the state" here? Does it include the judiciary? They do, after all, "judge."

[McKinneyTexas]

Also, who is "the state" here? Does it include the judiciary? They do, after all, "judge."

Sure, it includes the judiciary, but a judge can't fine or imprison me for conduct that is legal.

[Countme-In]

Counselor, approach the Bench!

Yes, your Honor.

While your behavior in the case of Testicle versus Smith and Wesson doesn't violate the letter of the law, I'm warning you that telling the plaintive in this case within earshot of the jury that he is the best shot in Texas may well violate the spirit, some might call it the penumbra, of the law, not to mention the decorum in my courtroom, and I would be within MY discretion, ambiguous as the law is, to have you up before the Board, but I'll let it go this time.

And, if hear one more guffaw from members of the jury, a missing testicle will the least of our concerns. Am I clear?

Yes, Your Honor.

Just a second, Counselor. Lean in a little closer ................. I have a little story to share with you .... harrumph .... ahem... that you might find germane.

.... the testicles of a Texas midget hurt and ached almost all the time. The midget went to the doctor and told him about his problem.

The doctor told him to drop his pants and he would have a look. The midget dropped his pants.

The doctor stood him up onto the examining table, and started to examine him. The doctor put one finger under his left testicle and told the midget to turn his head and cough, the usual method to check for a hernia. "Aha!" mumbled the doctor, and as he put his finger under the right testicle, he asked the midget to cough again. "Aha!" said the doctor once more, and reached for his surgical scissors. Snip-snip-snip-snip on the rightside... then snip-snip-snip-snip on the left side.

The midget was so scared he was afraid to look, but noted with amazement that the snipping did not hurt.

The doctor then told the midget to walk around the examining room to see if his testicles still hurt. The midget was absolutely delighted as he walked around and discovered his boys were no longer aching.

The doctor said, "How does that feel now?"

The midget replied, "Perfect Doc, and I didn't even feel it. What did you do?"

The doctor replied "I cut two inches off the top of your cowboy boots."

I guess the courtroom and testicle humor belongs on lj's open thread, but you takes your best shot.

[wj]

It should probably be noted that the same people who demand the ability of the law to sanction those who do things that are technically legal, but with results that they dislike are exactly the same people who would scream loudest if (more likely when) they were the ones on the receiving end.

What they actually want, whether they admit it to themselves or not, is for the law to do the work of making the world work the way that they, personally, would prefer. That is, they get to be absolute dictator -- and nobody else gets a say. Experience suggests that this does not lead to happy outcomes for the vast majority of the population. No matter who the supposedly benevolent dictator is.

[Phil]

Sure, it includes the judiciary, but a judge can't fine or imprison me for conduct that is legal.

How do contempt of court fines and detentions play into that? Some judges seem sort of capricious about what does and doesn't constitute contempt, and some of it is probably "legal" in the strictest sense.

[Hartmut]

Sure, it includes the judiciary, but a judge can't fine or imprison me for conduct that is legal.

I'd consider that to be a very naive statement, unless you add a 'legally'. But as we say over here "Recht haben heißt nicht Recht bekommen" (to be in the right does not guarantee to be treated justly).

[Carleton Wu]

I think Im with Bill on this- the problem isn't that laws couldn't be designed to eg prevent assigning an artificially low value to private-traded financial instruments before putting them into an IRA. It's that the laws are designed with such loopholes, and when the loopholes are eliminated others are intentionally introduced. Look at the fights now over the Volcker Rule- one side clearly wants toothless, unenforceable 'regulations'.

This seems to me to be similar to the problem of fines and pollution- it's not that fines don't work in principle, it's that when the fine is .1% of the cost of fixing the underlying problem per year, they don't actually create an incentive to do the fix.

Having said that, Im totally a rule of law guy- if the crooked corp made a contribution to the crooked pol to write the crooked law that way, then we have to abide by that- until such time as we toss the crooks out and get better politicians.
[Of course, that doesn't mean we can't have generally-worded laws eg we don't have to specify all of the ways a corporation could provide favors to a politician when making an anti-bribery law. Just that if we didn't make that law, we can't create it after the fact.]

Finally, I dont think the proposed solution would work in any case, except to provide occasional red meat for the mob. There is no reason to suppose that a bought-and-paid-for politician can write a loophole into a law but can't exercise control over a super-regulator (or that the regulator cannot be bought directly). This will only get invoked when the mob is inflamed, to *protect* the crooked regulators and pols by disguising their business-as-usual with a few sacrificial scapegoats. Id rather have everyone see the sausage being made & hopefully spark some changes.