I was reading one of my course books last week (probably Civil Procedure) and one of the minor notes mentioned a British case (early in the development of the jury system- 1200s? 1300s?) where a judge ordered the death penalty for a defendant despite a hung jury. The king responded by… literally hanging the judge. I’m sure that was the first and last time the King had to tell a judge to pay attention to the jury. Relatively speaking, some early product liability judgments were also huge- it got the attention of companies and helped focus them on the creation of safer products. Clearly, penalties we would now consider wildly disproportionate have at various points in the past helped establish precedent (both moral and legal) that certain things Just Aren’t Done.
So here is the thought that crossed my mind as I read that hanging case- do we need to do the same in spam? Life (or death) sentences for mass spammers until it is communicated that it is just not acceptable to spam? I realize, of course, that this would never fly constitutionally, and practically it is hard to define ‘mass’ spammer. But it really seems like it is a shame we probably couldn’t get away with killing a few spammers- because surely you wouldn’t need to do more than 1 or 2 before the point got across very clearly. To put it another way: I don’t think all spammers should die; I just think that enough spammers should die so that the rest stop doing it. :) We’re clearly in a fairly interesting historical situation, where some of the things we all hate have no clear moral or legal antecedents, and the penalties we’ve set up so far are clearly not discouraging enough.
So anyway… I’m really curious to do more reading and research about how, in times of historical change, precedent is set- because it seems like we need to do some precedent setting. Something else for the ‘papers to write’ file, I guess :)