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Almost all regulatory complexity is the result of closing loopholes lawyers found in earlier, simpler regulation. Congratulations to them, because all the legal specialists in each regulatory area will be poring over any new, ‘simplified’ regulation with the religious fervour of a leading Talmudic scholar to find out exactly what is implicitly allowed until enough bad news comes out that the current regime is restored.
Take two of the regulatory and legal standards that libertarians hate most - the definition of tax evasion and the definition of wire fraud. Detractors are completely correct that both are extremely vague (the former is essentially ‘anything that violates the spirit of paying your fair share of taxes’ and the second is ‘lying about anything that might lead to any gains for yourself through any medium of communication’), but their vagueness is largely organic and downstream from the fact that any stricter standards would make the enforcement of the rules pointless because any intelligent lawyer or other actor could rules-lawyer their way out of it.
Any standard of tax evasion or anti-bribery law or anti-corruption enforcement regime that does not effectively rely on ‘the spirit of the law’ (a thousand year old standard in common law anyway) is doomed to fail. This was the big tax revolution for rich people in the 90s, by the way. All those articles about how ‘despite top tax rates being 70/80/90% in the 1960s, rich people actually didn’t pay very much tax at all’ are true. What changed tax from something nobody smart paid to something most rich people pay at least some of (even if you disagree with how much) was an IRS (and other national tax agencies) that had the power to go after people solely for spirit of the law type violations.
I feel like we need something roughly equivalent to a doctrine of "oh come on". I realize I'm only gesturing vaguely towards a large area of idea-space, but it seems plain at this point that humans will game any system made of rules made of words until it's completely corrupted.
I'm not a believer in the ability to computerize law, so the only way forward seems to be to rely on the restraint of lawyers...
...ok, well that's obviously not going to work. We need to give them some sort of skin in the game. Something to lose when it goes wrong. As such, I propose, roughly, the following system:
Whenever an argument is deemed "clever", either by a judge or a panel that reviews cases, it goes in front of a jury of 10 randomly selected people from the voting public. If less than 50% of them respond with "oh come on", nothing happens. If more than 50% of them say "oh come on", the lawyer making this argument is shot. Less than 70%, they're shot in the foot. Less than 90%, they're shot in the chest. If it's unanimous, they're shot in the head.
I'd be down for that only if the jury can vote to recommend this law to be stricken down, then the govt is forced to put it into a proposition so the public gets to vote the law out. No amendment, no copy paste this article into that article. Removed.
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Ah yes, the classic we can't tell them the rules because then we wouldn't be able to jail/ban/disappear the people we don't like. It's bullshit when forum mods/jannies do it and it's bullshit when the law does it (a lot more so) too.
If the intent of the EO is to focus on strict liability regulatory crimes, then it will be a move away from straightforward application of the letter of the law and towards first a prosecutor's and then a jury's impression of your internal mental state at the time you did the actus reus.
For lesser regulatory offences (like speeding), strict liability and modest fines works very well in practice, as long as the rules are sufficiently simple relative to the complexity of the regulated activity that all drivers can know what the speed limit is with ordinary effort.
You still need an actus reus. If you remove “strict liability” you are just adding a new element government must prove; not changing the predicate to something wishy washy.
If there's a high and specific mens rea requirement like "corruptly" or "willfully," you can get away with less specificity in describing the actus reus
Sure of course. But if all they are doing is adding a mens rea requirement, then there is less chance of randomly being jailed.
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I mean if you want arbitrary power and think that's necessary to maintain your society, at least have it say in black and white that's how it goes, don't go about pretending you have limited government. That's the worst of both worlds, you don't even get the benefit of unquestionable authority.
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Does this EO touch either of those? I am pretty sure that crimes of wire fraud already require mens rea, unless someone has invented exciting new forms of emergent autonomous wire fraud recently.
That said, the other regulatory standard that libertarians hate the most is KYC/AML, and those do seem to me like they fall squarely in the crosshairs of this EO. Those are the primary reason I'm tentatively excited/optimistic about this order.
The EO says that
If I were a bank regulator, I would assume absent explicit instructions to the contrary that the entire money laundering/terrorist financing apparatus (at a regulatory level there is no distinction between the two) is out of scope of the EO because related to national security. In any case, the EO doesn't really help as applied to money laundering regulations, because the authorising statute includes a catch-all section (31 USC 5322) making all willful violations of money laundering regulations criminal.
The enforcement/investigation for KYC/AML looks like a 4th amendment violation or at least looks like its structured to do something that would be a 4th amendment violation if the government directly did the thing.
Although SCOTUS has fairly consistently ruled that that type of search (accessing a third party business's records about you without your knowledge or consent) is not a 4th amendment violation, including specifically in the case of bank records with Miller in 1976.
I am neither an American nor a lawyer, but even I can see that 4th amendment doctrine is a hot mess. I don't know what a sensible set of rules looks like from a policy perspective.
Here's one. Make it illegal for the government to store any data about a citizen including meta-data, which is not publicly accessible to that citizen. While you're at it make it illegal for companies to "share" data with the government in a non public way unless it's with subpoenas. (And subpoenas for all data for everyone who ever searched for google.com in google's search box doesn't count)
Also if you've been a really good boy for a set amount of time have the capability to request deletion of said data, (granularly)
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