Skip to content

Instantly share code, notes, and snippets.

@utecht
Created January 22, 2013 20:09
Show Gist options
  • Save utecht/4597966 to your computer and use it in GitHub Desktop.
Save utecht/4597966 to your computer and use it in GitHub Desktop.
Thenmal: but my main question is why are contracts enforced by the government at the federal level.
Donut Donut: That question starts from a faulty premise that the contracts are what the government is enforcing a contract is enforced through a breach of contract claim policies are enforced through criminal charges the reason certain contract breaches, fiduciary breaches, and others often lead to criminal charges is because some of these breaches often involve a kind of criminal intent such as the intent to defraud someone a classic case of fraud is someone selling a car, lying about the car's condition (it has no engine), and making off with more money than the car is worth the relationship between the bad car dealer and the customer is a contractual one the reasons why we punish that kind of behavior get into the reasons why we punish any kind of crime the two big ones are retribution and deterrence we have an emotional response to the behavior of the wrongdoer and satisfy that response by making him suffer we also have a utilitarian response that says "we don't want people doing this, so we will increase the costs (in punishment) to the ones doing it and thereby decrease the number of people who do it" in short, civil law and criminal law require two different sets of government machinery that have different goals the things that we have made criminal are simply those things we felt are costly enough to society to warrant the criminal machinery probably because we felt the civil machinery would not create a great enough deterrent or that it does not satisfy our need for retribution in order for the JSTOR crime to make more sense, it's useful to think about what JSTOR is trying to accomplish JSTOR is sitting on a mountain of information, which has a high value (forget dollars and cents, just think of "value" in the abstract). And JSTOR has a right to protect this information it has. Suppose JSTOR simply kept the information locked in a vault somewhere. It would clearly be illegal for someone to break into the vault and take it for their own. But the information has no value to JSTOR unless JSTOR can allow others to use it. So, it forms a contract with other people to allow them to use the information according to the terms of the contract. Any use beyond the terms of that contract would deprive JSTOR of the property right of exclusivity, which, incidentally, also occurred when someone broke into their info-vault. When a party breaches a contract, they violate the other party's contract rights. However, that does not mean that contract rights are the only kinds of rights involved. If I agree to mow your lawn on friday for $30, we have made a contract. If I breach that contract by not mowing your lawn, I have violated your contract right to receive the lawn-mowing. You are therefore entitled to keep the 30 bucks. Your contract right was the only right I violated in that scenario. However, suppose I contract with you to borrow your car. You allow me to drive it for the weekend if I bring it back with a full tank of gas and a fully cleaned exterior and interior. If I never bring the car back, I have not only violated your contract right to have the car returned with the gas and detailing, I have also violated your property rights. Your property rights in the car, that is. You might argue that JSTOR doesn't own the articles in their database. That's true. But they DO own the DATA that makes up their database. So unauthorized copying of that data, violates their property rights. I'm not saying that property right violations are per se punishable with criminal charges. But violations of property rights are more often punished that way than, say, contract rights. If you're still not convinced, you'd probably fall in with the scholars that say society ought to self regulate. In other words, most criminal laws can be easily substituted with civil alternatives that are more efficent and more just. I don't find that argument altogether convincing, but I'm open to debate.
Sign up for free to join this conversation on GitHub. Already have an account? Sign in to comment