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How should we legislate laws?

radcen

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How should we legislate laws?

This is sort of a two-part survey without a poll, if you will. I am purposely leaving the questions open-ended. I want to see where people go with this.

1) When we (our legislators) pass laws, should said laws be narrowly specific, or should they be broad and open for interpretation?

2) When sentencing after a conviction, should we have mandatory minimum sentencing, or should we leave sentencing to the discretion of the judge?
 

radcen

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This will come off to some as contradictory, but so be it...

1) I would prefer narrowly specific laws. Open interpretation is too easily abused.

2) I want discretion back with the judge. Mandatory minimum sentencing has evolved to become too draconian.
 

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I'm having trouble answering your first question because I'm not clear on what you mean. Can you give me an idea of what you mean by a narrow law versus a broad vague one?

On your second I'm against mandatory minimums.
 

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How should we legislate laws?

This is sort of a two-part survey without a poll, if you will. I am purposely leaving the questions open-ended. I want to see where people go with this.

1) When we (our legislators) pass laws, should said laws be narrowly specific, or should they be broad and open for interpretation?

2) When sentencing after a conviction, should we have mandatory minimum sentencing, or should we leave sentencing to the discretion of the judge?
When one makes draconian laws such as three strikes or mandatory sentencing or even zero tolerance rules in our schools it is Laziness pure and simple, every case is different and the circumstances can and should play a part in determining what is Justice. When people throw out the ability to take all the facts into account they often throw out Justice along with it and as such defeat the purpose of passing the laws in the first place.
 

radcen

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I'm having trouble answering your first question because I'm not clear on what you mean. Can you give me an idea of what you mean by a narrow law versus a broad vague one?

On your second I'm against mandatory minimums.
An example of the first might be...

1) All distracted driving is verboten. Could mean anything... eating, cell phone talking and/or texting, talking to passengers, changing the radio station, whatever "distracted" is.

or

2) You cannot text while driving, narrowly defined. You could also have other narrow laws, i.e. no eating while driving, or whatever, but they'd be more specific and not left open as a "catch-all".
 

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How should we legislate laws?

This is sort of a two-part survey without a poll, if you will. I am purposely leaving the questions open-ended. I want to see where people go with this.

1) When we (our legislators) pass laws, should said laws be narrowly specific, or should they be broad and open for interpretation?

2) When sentencing after a conviction, should we have mandatory minimum sentencing, or should we leave sentencing to the discretion of the judge?

VERY specific and they should also be laws that prevent interpretation. Every law should have not the actual law, but an explanation that specifies EXACTLY how that law is to be applied. Using the law to accomplish anything outside of what is explicitly stated should be illegal.

Mandatory minimum sentencing should be the norm and it should be part of the law. If you pass a law against stealing, then it should also be required to include minimum sentencing standards.
 

soot

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An example of the first might be...

1) All distracted driving is verboten. Could mean anything... eating, cell phone talking and/or texting, talking to passengers, changing the radio station, whatever "distracted" is.

or

2) You cannot text while driving, narrowly defined. You could also have other narrow laws, i.e. no eating while driving, or whatever, but they'd be more specific and not left open as a "catch-all".

Based on this explanation I would lean toward specific/narrowly defined. I'd rather have more specific laws than fewer laws that are open to interpretation/abuse.

I don't necessarially oppose mandatory minimum sentences as part of a sentencing guideline but I do agree that in some instances they have gotten excessive/draconian. I would prefer that mandatory minimums actually be minimum and that the guidelines allow for more severe sentences.

Just as an example, the current mandatory minimum sentence for a 1st offense conviction for manufacturing, distributing, or possessing with intent to distribute involving 5+ kg of cocaine where no death or serious bodily injury is intended or results is 10 years. I'd prefer the mandatory minimum sentence be, maybe, 2 years and that the guidelines allow the judge to use his discretion when imposing a greater sentence up to maybe 10 or 15 years.
 

Henrin

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How about they actually do their job and not leave everything up executive agencies.
 

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An example of the first might be...

1) All distracted driving is verboten. Could mean anything... eating, cell phone talking and/or texting, talking to passengers, changing the radio station, whatever "distracted" is.

or

2) You cannot text while driving, narrowly defined. You could also have other narrow laws, i.e. no eating while driving, or whatever, but they'd be more specific and not left open as a "catch-all".

Okay understood. In the space of regulating human behavior I agree that laws should be drawn narrowly. However even in your narrow case you cannot completely remove judicial interpretation. What does "text while driving" mean? Sure it applies to the driver manipulating the phone but what about a phone that has a voice interface? Is it texting to dictate a text message to your phone? If that's okay what about if you have to press a button on the phone to activate the voice function? Does it become texting because you had to push a button even though you verbally dictated the message? What about if the phone interfaces with an onboard system in your car?

Same goes with driving. Do I violate the law if I'm stuck in bumper-to-bumper traffic, haven't moved in 10 minutes and probably won't be moving any time soon and I text my wife to let her know I'm late for dinner?

In one of his books Scalia goes on at length about the sheer impossibility of completely removing interpretation from law.
 

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VERY specific and they should also be laws that prevent interpretation. Every law should have not the actual law, but an explanation that specifies EXACTLY how that law is to be applied. Using the law to accomplish anything outside of what is explicitly stated should be illegal.

Mandatory minimum sentencing should be the norm and it should be part of the law. If you pass a law against stealing, then it should also be required to include minimum sentencing standards.

What you want is impossible to achieve because of the inherent imprecision in language and for the fact that legislators cannot ahead of time predict every circumstance in which a law they draft may apply. (see my response to radcen above for a trivial example)
 

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What you want is impossible to achieve because of the inherent imprecision in language and for the fact that legislators cannot ahead of time predict every circumstance in which a law they draft may apply. (see my response to radcen above for a trivial example)

You ask for perfection and when you don't get it, are willing to accept garbage. Setting lofty goals is a good thing to do... We'll never have perfection, but what we can do is work towards getting as close as possible. The mindset that if we can't get perfection, then we shouldn't try is huge part of why our society is as screwed up as it is.
 

radcen

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Okay understood. In the space of regulating human behavior I agree that laws should be drawn narrowly. However even in your narrow case you cannot completely remove judicial interpretation. What does "text while driving" mean? Sure it applies to the driver manipulating the phone but what about a phone that has a voice interface? Is it texting to dictate a text message to your phone? If that's okay what about if you have to press a button on the phone to activate the voice function? Does it become texting because you had to push a button even though you verbally dictated the message? What about if the phone interfaces with an onboard system in your car?

Same goes with driving. Do I violate the law if I'm stuck in bumper-to-bumper traffic, haven't moved in 10 minutes and probably won't be moving any time soon and I text my wife to let her know I'm late for dinner?

In one of his books Scalia goes on at length about the sheer impossibility of completely removing interpretation from law.
You could have subsections of a law. For example...

A) No texting while driving.
A1) For the purpose of this law, "texting" is defined as <insert description(s) here>.
A2) For the purpose of this law, "driving" is defined as <insert description(s) here>.
 

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1) When we (our legislators) pass laws, should said laws be narrowly specific, or should they be broad and open for interpretation?
I’d suggest somewhere in the middle. Laws that are too specific run the risk of criminals getting away on technicalities or laws very quickly becoming obsolete as the world changes. Laws that are too generic carry obvious problems with abuse. I suspect the vast majority of established legalisation in Western countries already achieve this balance.

2) When sentencing after a conviction, should we have mandatory minimum sentencing, or should we leave sentencing to the discretion of the judge?
I think there should be general sentencing guidelines but judges should have some discretion in exceptional cases (in either direction). There should always be scope for defence or prosecution to appeal sentencing, especially where a trial judge has chosen to go beyond the guidelines.
 

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How should we legislate laws?

This is sort of a two-part survey without a poll, if you will. I am purposely leaving the questions open-ended. I want to see where people go with this.

1) When we (our legislators) pass laws, should said laws be narrowly specific, or should they be broad and open for interpretation?

2) When sentencing after a conviction, should we have mandatory minimum sentencing, or should we leave sentencing to the discretion of the judge?



I think our laws should be narrowly specific. They should not be broad and open to interpretation because that can lead to abuse.

I support mandatory minimum sentences and laws describing exactly what each offense is and making it harder for plea deals. Because it seems a lot of times if someone has money then they can hire the best lawyers and get off with a slap on the wrist or Scott free. Like that Affluence teen who got off with a slap on the wrist when most other people would have gotten jail time. There has also been cases like Judge Edward Cashman who gave a slap on the wrist to a child molester,which it took massive public outcry for the judge to change the sentence from 60 days in jail to a 3 to 10 year sentence.
 

Paleocon

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How should we legislate laws?

This is sort of a two-part survey without a poll, if you will. I am purposely leaving the questions open-ended. I want to see where people go with this.

1) When we (our legislators) pass laws, should said laws be narrowly specific, or should they be broad and open for interpretation?

2) When sentencing after a conviction, should we have mandatory minimum sentencing, or should we leave sentencing to the discretion of the judge?

Laws proscribing specific behaviours should be reasonably specific, but you can never specify all possible circumstances. Laws that are results based (i.e. it is a crime to cause X with Y level of culpability) are necessarily open ended.

If it were up to me mandatory sentencing would only apply in capital cases, but that's because I would greatly expand the use of the death penalty.
 

Gaius46

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You ask for perfection and when you don't get it, are willing to accept garbage. Setting lofty goals is a good thing to do... We'll never have perfection, but what we can do is work towards getting as close as possible. The mindset that if we can't get perfection, then we shouldn't try is huge part of why our society is as screwed up as it is.

I'm saying just the opposite and would submit that you are asking for perfection - perfectly drawn laws that require no interpretation.

I'm all for better written - it's amazing how sloppy many laws are - narrow laws but recognize that the perfection you seem to seeking is as mythic as the unicorn.
 
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You could have subsections of a law. For example...

A) No texting while driving.
A1) For the purpose of this law, "texting" is defined as <insert description(s) here>.
A2) For the purpose of this law, "driving" is defined as <insert description(s) here>.
So if I’m posting this from my phone while riding my motorbike, I’m OK? ;)

Laws are written like this but the definitions more general. They’ll talk about things like “use of electronic communication devices” and “in control of a motor vehicle” – specific in relation to the principle but general enough to cover all the likely realities and technical advances.

This is an interesting area in this context. In the UK (and I suspect elsewhere) there have long been generic laws against “Driving without due care and attention” which basically boiled down to the opinion of the police officer, judge and jury. In practice, there would be examples where it would be obvious to all concerned that the way the driver was behaving was dangerous but it does leave large grey areas, one where using mobile phones in various ways while driving fell in to. While there is general acknowledgement that using a phone while driving is generally an unnecessary distraction and potentially dangerous, it would be difficult to bring convictions under the generic law. That when the additional specific laws referring to phones were brought in. A combination of generic and specific laws covered all eventualities.
 

Gaius46

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You could have subsections of a law. For example...

A) No texting while driving.
A1) For the purpose of this law, "texting" is defined as <insert description(s) here>.
A2) For the purpose of this law, "driving" is defined as <insert description(s) here>.

Sure you could but you'll still eventually run into the same problem.

Another example - one that Scalia used - is an ordinance that makes it "illegal to operate a motorized vehicle in a park." You run up again against what's a motorized vehicle? Cars certainly. So are private ambulances but is it a crime to drive a private ambulance into a park to assist someone's who's had a heart attack? What about motorized toy cars and motorized skateboards? What do you do if the law was drafted before those things even existed?

You're always going to run into the interpretation problem. It is impossible to be that precise with language and you can't expect legislatures to be clairvoyant and predict every eventuality ahead of time.
 

radcen

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I'm saying just the opposite and would submit that you are asking for perfection - perfectly drawn laws that require no interpretation.

I'm all for better written - it's amazing how sloppy many laws are - narrow laws but recognize that the perfection you seem to seeking is as mythic as the unicorn.
Some believe that many newer laws are purposely vague precisely so they can be used as a "catch all".
 

radcen

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Sure you could but you'll still eventually run into the same problem.

Another example - one that Scalia used - is an ordinance that makes it "illegal to operate a motorized vehicle in a park." You run up again against what's a motorized vehicle? Cars certainly. So are private ambulances but is it a crime to drive a private ambulance into a park to assist someone's who's had a heart attack? What about motorized toy cars and motorized skateboards? What do you do if the law was drafted before those things even existed?

You're always going to run into the interpretation problem. It is impossible to be that precise with language and you can't expect legislatures to be clairvoyant and predict every eventuality ahead of time.
Yes, but laws can be modified. If you run into something not covered, add A3.
 

radcen

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So if I’m posting this from my phone while riding my motorbike, I’m OK? ;)

Laws are written like this but the definitions more general. They’ll talk about things like “use of electronic communication devices” and “in control of a motor vehicle” – specific in relation to the principle but general enough to cover all the likely realities and technical advances.

This is an interesting area in this context. In the UK (and I suspect elsewhere) there have long been generic laws against “Driving without due care and attention” which basically boiled down to the opinion of the police officer, judge and jury. In practice, there would be examples where it would be obvious to all concerned that the way the driver was behaving was dangerous but it does leave large grey areas, one where using mobile phones in various ways while driving fell in to. While there is general acknowledgement that using a phone while driving is generally an unnecessary distraction and potentially dangerous, it would be difficult to bring convictions under the generic law. That when the additional specific laws referring to phones were brought in. A combination of generic and specific laws covered all eventualities.
Right, but as the other poster noted, what about stopped at a red light? Technically, you're operating a motor vehicle, but you're not moving.

An argument could be made that you're still a potential danger, but take it a step further... parked in a parking lot with the engin running while someone runs into the store for 5 minutes.
 

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Right, but as the other poster noted, what about stopped at a red light? Technically, you're operating a motor vehicle, but you're not moving.

An argument could be made that you're still a potential danger, but take it a step further... parked in a parking lot with the engin running while someone runs into the store for 5 minutes.
Stopped at a red light is arguably a worse time to be using a phone that on the move. Parked at the side of the road is difference. The exact definition of “operating a motor vehicle” will vary but there are always going to be fuzzy lines regardless. That’s where practical common sense comes in from all concerned. I very much doubt any police officer would ticket or arrest a driver for using a phone while parked and I’m sure a judge would strike it down if they did. That’s how the practical balance works (and I’d argue, the only way it could work).
 

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Yes, but laws can be modified. If you run into something not covered, add A3.

Two pragmatic problems -

1. We don't update most of our laws already. Partially for institutional reasons, updating laws takes as much effort as drafting new ones, and partly because there are so many that it would be more than a full time job. That would become even worse with thousands of new narrowly written laws. And,

2. What do we want judges to do with cases before them that the current law doesn't cover because it was narrowly drafted? In criminal cases you could say "Okay the defendant wins because the law as written really doesn't cover him" but what about in civil cases?
 

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Some believe that many newer laws are purposely vague precisely so they can be used as a "catch all".

That may be so but I was thinking more along the lines of sloppy sentence construction and use of punctuation that leaves people to guess at what functions clauses have and what they apply to.
 

radcen

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Two pragmatic problems -

1. We don't update most of our laws already. Partially for institutional reasons, updating laws takes as much effort as drafting new ones, and partly because there are so many that it would be more than a full time job. That would become even worse with thousands of new narrowly written laws. And,

2. What do we want judges to do with cases before them that the current law doesn't cover because it was narrowly drafted? In criminal cases you could say "Okay the defendant wins because the law as written really doesn't cover him" but what about in civil cases?
It probably does take as much time. And I have noticed that lawmakers prefer new laws over updating existing laws. The cynical part of me says that is because they can point to the new law and tell their gullible constituents, "See what I did.". It's kind of six of one and half-a-dozen of the other, though I'd prefer updating whenever possible to keep redundancy to a minimum.

I don't get your #2. If it's not illegal, it wouldn't be before a judge to begin with. If there's a need then people will be clamoring for it to be illegal. As far as a civil aspect, something doesn't have to be illegal to sue over. "Emotional distress" isn't illegal, so far as I know, and people sue for that all the time.
 
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