The High Cost of Low Sanctions

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Low sanctions can initially appear like a mitigating factor for unjust or inefficient laws. Yet, this intuition is likely wrong. My article will argue 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 accompanying laws are more likely to perpetuate themselves and become part of the unquestioned background fabric of society. I will focus on intellectual property law, and in particular copyright, to examine the progression of sub-optimal laws through widespread low sanctions that may have mostly escaped the public eye until sanctions grew to more significant size. In intellectual property, as elsewhere, low-level sanctions coupled with problematic laws are less likely to attract the attention of the media and lead to political action than their high-sanction counterparts. This article will make 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 Second, low sanctions decrease the odds that such a law will be repealed.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, thus reducing any upsides that accompany the initial low level of the sanctions. By the time this occurs, it may be irreversible due to the likely enhanced difficulties of abolishing laws over preventing their passage in the first place. 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 such as to significantly intimidate alleged offenders with sometimes dramatic consequences, as recently seen in the stories about coder and Internet activist’s 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.