My comments on this topic are too long for a single post. This is part one of a multi-part discussion, which will eventually be compiled into a single essay. (IANAL)
As the legislative session opens, I wanted share some observations on law, discuss what makes good law, and explore ways to identify poor laws. In many cases, I believe “poor law” is often based on commonly held principles, but however well-intentioned is held back in its success by poor scripting, poor planning, or poor implementation. In this article I list items I consider to be some indicators of poor law; no single item purports to be a definitive identification, these are merely lenses I use in evaluating legislation. (I believe these same principles hold true for evaluating the rules of any organization or business, not just our laws.
In summary these indicators are 1) being overly specific, 2) being individualized, 3) the absence of consequences and 3) the violation of locality.
Specificity begets specificity
The more specific a law is, the more specific it needs to be. Once a lawmaker attempts to predict alternatives and possibilities, the need to expand the law to include all eventualities is inevitable. As more specifics are generated, the possibility of loopholes increases, resulting in further legislation. Additionally, an over-specific law replaces reasonable judgment at the “front lines,” or most local level, robbing affected parties of flexibility.
A hypothetical situation
Let us assume a state wishes to define a process for soliciting contractors for public works projects. All involved agree the process should be fair and equitable. The law is written to require a committee to review bids. In order to be impartial and avoid the appearance of political rewards or cronyism, the committee must be removed from the department actually requiring the service. Proposals must be made public for some period before being considered. Such a system would seem to be fair.
Well intentioned lawmakers may then further “refine” the process by appending provisions giving preference to local businesses or companies owned by minorities. An appeals process might be instituted to ensure any party can challenge the fairness of a decision–in order to by worthwhile, such a provision would require the bid process be halted, or reversed and reconsidered. At risk of offending some party, a process to challenge the project’s necessity (by reason of the environment, racial equity, cost concerns, etc.) might also be instituted. As the department requesting service and the fulfillment contractor are separated, a series of regular status reports might be required to ensure the contract is being filled appropriately. The list of possible refinements in the interest of fairness is extensive.
This “hypothetical” is a too common practice around the country. Examined in part, each additional requirement seems reasonable; as a whole, it is a cumbersome processes costing additional resources at every step. Process similar to this “hypothetical” are the reason many contractors bid for government projects at a significantly higher rate than they would for non-government customers.
Micromanagement In Action
A relatively new California law (Government Code 12950.1, which has spawned a host of training and consulting companies) requires companies of more than 50 employees to have sexual harassment training programs in place for all supervisors. The law replaced a much simpler one which simply stipulated employers were expected to take “reasonable steps.” The new version imposes requirements regarding the type and frequency of training, questions the experience of instructors, defines course content, and prescribes the method of instruction to a level that would embarrass even the most devoted micro-managers. Yet, the law provides no insulation from liability if complied with. It’s specificity is a burden to businesses, and provides no additional benefit (to citizens or business) over the law it replaced.
The listing of specific protected classes causes me to question many so-called hate crimes legislation—or any other anti-discrimination law. (Some may argue that Utah does not have hate crimes laws; this is half-truth. See Utah Code 76-3-203.3.) The trap of specifying groups introduces the possibility of excluding some group. Such a list might include ethnicity, culture (not the same thing!), religion (does this include atheists?), sexual preference, income level, family or marital status, employment (or lack thereof), disability or handicap, education level … the list goes on. Our current law, which has been on the books in some form for more than a decade, upgrades misdemeanors intended to “intimidate or terrorize” to felonies. It’s simple and adequate, focusing on principles rather than contingencies.
Will be continued…
- Kathy Sierra effectively discusses the inverse correlation between micromanagement and original thought in her article “BrainDeath by Micromanagement: The Zombie Function”
- Utah’s “hate crimes” law, challenged on grounds it was unconstitutionally broad and unconstitutionally vague, was ruled facially constitutional by the U.S. Tenth Circuit Court of Appeals. (Read the decision, Ward v. State of Utah.)
- For a philosophical argument against hate-crimes legislation, see Issues & Views, “Utah’s ‘hate crimes’ lobby tries again”