The High Cost of Low Sanctions

Low sanctions can initially appear to be a mitigating factor for unjust or inefficient laws, but this perception is likely wrong. This Article argues 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 laws accompanying these sanctions are more likely to perpetuate themselves and become part of the unquestioned background fabric of society. This Article focuses on intellectual property law (in particular, copyright) and examines the progression of suboptimal laws through widespread low sanctions that may mostly escape the public eye until sanctions then grow to more significant size. In intellectual property, as elsewhere, low-level sanctions coupled with problematic laws are less likely than their high-sanction counterparts to attract the attention of the media and lead to political action. This Article makes 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 Second, low sanctions decrease the odds that such a law will be repealed.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, and thus reduce any upsides that accompany the initial low level of the sanctions. By the time this occurs, it may prove an irreversible change because it is more difficult to abolish a law than to prevent its initial passage. 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 * Associate Professor of Law, Maurice A. Deane School of Law at Hofstra University; Yale Law School, J.D.; Yale College, B.A. I would like to thank Daniel Abebe, Miriam Baer, Shyam Balganesh, Will Baude, Barton Beebe, Chris Buccafusco, Michael Burstein, Bennett Capers, Greg Dolin, Harry First, Jeanne Fromer, James Gathii, Eric Goldman, Tomds G6mezArostegui, Christi Guerrini, Rob Heverly, Lital Helman, Cynthia Ho, Justin Hughes, Sonia Katyal, Adam Kolber, Ed Lee, Gregory Mandel, Andrea Matwyshyn, Stephen McJohn, Sean Moundas, Cassandra Robertson, Roberta Romano, Arden Rowell, David Schraub, Greg Shill, Jessica Silbey, Rebecca Tushnet, Robert Wagner, Felix Wu, Peter Yu, and my research assistants Vanessa Yu and Erik Harmon. I am also grateful to the participants of the Third Annual Tri-State Region IP Workshop at the NYU School of Law, the Works in Progress Intellectual Property conference at the Seton Hall University School of Law, the Chicago IP Colloquium at Loyola University Chicago School of Law, the 2013 Law & Society Association Annual Meeting in Boston, and the faculty workshop of the Suffolk University Law School. Last, my appreciation goes to the Maurice A. Deane School of Law at Hofstra University and its staff for support during my research.