For the last couple of days, Slate has been running a series of articles from Tim Wu, a prof from Columbia Law. He identifies and discusses several areas of American society where the political apparatus has failed to keep pace with accepted social norms. From Harry Potter fan sites to the Amish refusing to pay Social Security taxes to the widespread disregard of immigration laws by just about everyone, Wu demonstrates that many upstanding Americans almost can’t help breaking the law.
This method of effecting change in the structure of our laws was ignored in my high school civics class, and we don’t talk about it much in law school either. Is it right or proper that the enforcement of a given law lies in the hands of a few police chiefs or district attorneys? And does it matter whether a new rationale emerges for ignoring old law, as the internet is forcing an evolution in the understanding of copyright, or if it’s a new law set up to persecute an old and widely tolerated vice?
When the Supreme Court refused last week to review the Alabama law banning the sale of sex toys everywhere in the state, the Tuskaloosa News ran a story stating that “enforcement of the law doesn’t seem to be high on officials’ list of threats to society.”
So if that’s the case, why bother? They passed the law in 1998. It has likely cost the state hundreds of thousands of dollars in legal fees and court time since then. And they’re not going to enforce it anyway. Wouldn’t everyone have been better off if the Alabama legislature had simply done nothing? On the other side of the coin, the law is now presumptively valid and in effect. Should prosecutors and cops have the power to simply decide not to enforce it?