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9.30.2004
The Induce Act & the Conservatives
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What do RICO, the asbestos crisis, and gay marriage all have in common with S. 2560, the proposed Induce Act?
This is not really a trick question. RICO, asbestos, and gay marriage all represent instances in which the legal system has, in the eyes of political conservatives, proven itself imperious, as in the dictionary definition: "haughty," "arrogant," "overbearing," "domineering."
The system has taken basic principles or language intended to cover limited situations and expanded them to and beyond the limits of their logic, thus producing results that transcend the bounds of good sense and the intent of the original lawmakers and pre-empt political decisionmaking.
Thus RICO is used against not against mobsters but tobacco companies or abortion protesters, asbestos has turned into a nightmare that bankrupts by-stander companies without helping the real sufferers, and gay marriage may be legalized nationwide by four Massachusetts judges rather than debated in legislatures.
Conservatives can produce a longer list of horror stories without breaking a sweat, and the proposed Induce Act is viewed as another in this line. Its proponents vow that it is intended only as a weapon against those who are cynically trying to make money by appropriating the value of the sweat of the brows of the creators of music and movies, not against honest tech innovators. But how can they guarantee this? If the language is susceptible to over-interpretation, then there will certainly be battalions of lawyers pushing for these, and there is no shortage of judges who will go along.
Add to this brew that the issue is arising in the middle of bitter political year, that a major proponent of the bill is "Hollywood," and that another large villain in the conservative anti-pantheon is "the trial lawyers," who are blamed for the legal mess, and it is not surprising that many conservative organizations have grabbed their rhetorical arms.
They are abetted by the tech companies, which have their own bitter experiences with legal system, and no faith at all in any guarantees that lawyers will be reasonable. [See "The Class Action Industrial Complex," Forbes (subscription required), Sept. 20, 2004.] The corporate instinct is to oppose any bill that is not totally unambiguous, and such a feat of draftsmanship is hard to find this side of Utopia.
The result of these swirling forces is that conservative groups and tech companies, both of which should be on the side of property rights and markets, have been enrolled on the side of the pirates. But this is not where either belongs in the long term, so both sides need to figure out how to craft a law, or develop legal doctrines, that will recognize that they both represent legitimate and vital interests that simply must be protected.
How they are to accomplish this, given the context of a badly sprained legal system and legal profession, is, shall we say, a bit of a challenge. The difficulty of the problem is also illustrative of how the neglected rot in the legal system is spreading.
posted by James DeLong : 9/30/2004 01:15:17 PM
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