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Posted: September 27, 2011

Re-thinking the court of public opinion: Part 2

It's easier than ever to end up on the wrong side of the law

Thomas Frey

Editor's note: This is the second of two parts. Read Part 1.

Along with the additional laws come the necessary enforcement divisions, prosecution teams, judges, lawyers, prisons, and a cadre of investors who find unique ways to invest in companies that profit from the income streams being generated.

According to a recent article in the Wall Street Journal, many of these new federal statutes don't require prosecutors to prove criminal intent, eroding a bedrock principle in English and American law. The absence of this provision, known as mens rea, a Latin term for "guilty mind," makes prosecution far easier.

Not only is "ignorance of the law" no defense, neither is criminal intent.

A study last year by the Heritage Foundation and the National Association of Criminal Defense Lawyers analyzed scores of proposed and enacted new laws for nonviolent crimes in the 109th Congress of 2005 and 2006. It found of the 36 new crimes created, a quarter had no mens rea requirement and nearly 40 percent more had only a "weak" one.

In addition, many of the new federal laws also set a lower bar for conviction than in the past. As federal, state, and local criminal statutes have mushroomed, and with the deck stacked in favor of the prosecutors, it has become increasingly easy for people to end up on the wrong side of the law.

Unstacking the Deck

Jury selection has become a refined science. Prosecutors and defense attorneys spend an inordinate amount of time trying to detect the exact mix of personalities that will lean a jury in their favor. By opening up the jury pool to a wider audience, strong personalities will have no more influence than everyone else.

A court system run this way will be like applying the Wikipedia model to the courts. Rather than a top-down approach to court decisions, the pyramid is inverted and it becomes a bottom-up approach. The judge-jury relationship will become vastly different in a crowdsourced environment. Instructions to the resident few are more easily monitored than instructions to the non-resident many.

When Systems Break

A prospective investor often looks at a new idea and asks the question, "How will this fail?" An entrepreneur will usually look at it from a vastly different perspective asking the question, "How can I make this succeed?" In the mind of an entrepreneur, nothing is static or fixed Everything is changeable, reworkable, and no barrier is too big to overcome.

For me, it's easy to see the advantages of a system like this. It's also easy to envision the challenges of making something like this work.

• What if 50,000 people vote and the "yes" votes only outnumbered the "no" votes by one vote?
• Will people be interested in deciding menial matters such as parking and speeding ticket disputes?
• Is there a limit to how many disputes a crowdsource audience will be willing to work with on a daily basis?
• Will the managers of the system feel more or less empowered than before?
• Will the end result be more expensive or less expensive? My initial thoughts are that it would be far less expensive, but the technical and security issues may drive up costs.
• Can a system like this also be used to devise creative forms of punishment that do not require incarceration?

Replacing our current system, a system that has become firmly entrenched in our society, will not happen easily. Change is always difficult. However, there will be thousands of questions similar to the ones I've listed above, and every one can be addressed in a thoughtful manner.

Final Thoughts

As Lord Acton famously stated in 1887, "Power tends to corrupt, and absolute power corrupts absolutely." The interesting end of the quote which is often left off concludes, "Great men are almost always bad men." Over time, the issues that courts will be dealing with will become increasingly cross-border disputes. International issues involving people from multiple nations and a spaghetti mess of intertwined laws, rules, and regulations.

Jurisdictional issues will further confound already complicated problems. A new system will be needed; one that transcends current boundaries yet still renders clear and concise resolutions. The "court of public opinion" takes on a whole new meaning when over a million people weigh in from around the world to decide the outcome of a dispute between two large corporations. The proceedings from each court case will be broadcast live around the world.

A new global dispute-resolution system cannot possibly work within the confined thinking and limitations of today's courts. So if a new system will be need then, why not begin the process of experimenting and implementing it now?
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Thomas Frey is the executive director and senior futurist at the DaVinci Institute and currently Google’s top-rated futurist speaker.  At the Institute, he has developed original research studies, enabling him to speak on unusual topics, translating trends into unique opportunities. Tom continually pushes the envelope of understanding, creating fascinating images of the world to come.  His talks on futurist topics have captivated people ranging from high level of government officials to executives in Fortune 500 companies including NASA, IBM, AT&T, Hewlett-Packard, Unilever, GE, Blackmont Capital, Lucent Technologies, First Data, Boeing, Ford Motor Company, Qwest, Allied Signal, Hunter Douglas, Direct TV, Capital One, National Association of Federal Credit Unions, STAMATS, Bell Canada, American Chemical Society, Times of India, Leaders in Dubai, and many more. Before launching the DaVinci Institute, Tom spent 15 years at IBM as an engineer and designer where he received over 270 awards, more than any other IBM engineer.

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