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>> A better solution might be to make a showing of selective enforcement a means to strike down a law. If you can show that someone else was doing the same thing without being charged then the prosecution either has to charge them too or that law is repealed and no one can be charged with it anymore.

This is very interesting. I suspect there are a lot of unintended consequences that might follow.

If you're going to say things like that you have to give examples.

You just created a large, TBTF corp's veto. Pass a law or have a law passed a corp TBTF doesn't want? Break it and force the Government's hand to strike it down.

Isn't that the other way around? The law already can't be enforced against the TBTF corporation, so what do they care if it stays on the books? But now you can't enforce it against someone else or they can point to you not enforcing it against them.

Except that's the point. The government would now have to do that or they lose the law. If it's a good law then they don't want to lose it, but if it's a good law then they should be enforcing it against them.

And, of course, the correct way to deal with this is to break the TBTF corporations into many smaller pieces so that stops being a problem.

Ideally what would happen is the corporation starts having enforcement action against it and then its leadership is forced out to rescue said corporation from failing.

This certainly seems better than just making TBTF (which I assume means too big to fail) entities be above the law.

TBTF is not a thing. It's all in your mind. Evergrande and Country Garden would've been classified TBTF in the minds of many USians, yet they failed.

The dead comment below by AnthonyMouse already pointed out that even in your scenario there's no difference with the status quo anyway. It's insane that it's dead and reeks of astroturfing, as nothing about it is worth flagging.

> Isn't that the other way around? The law already can't be enforced against the TBTF corporation, so what do they care if it stays on the books? But now you can't enforce it against someone else or they can point to you not enforcing it against them.

> Except that's the point. The government would now have to do that or they lose the law. If it's a good law then they don't want to lose it, but if it's a good law then they should be enforcing it against them.

> And, of course, the correct way to deal with this is to break the TBTF corporations into many smaller pieces so that stops being a problem.

Off topic:

The dead comment below by AnthonyMouse already pointed out that even in your scenario there's no difference with the status quo anyway. It's insane that it's dead and reeks of astroturfing, as nothing about it is worth flagging.

If you see such a comment, you can vouch for it (small menu point next to flag) and revive it. I did that now because I agree with your assessment - of late I do this very often because even comments which quote articles/laws etc. verbatim and with a link are flagged/voted to death.

I do this and did it in this case, but I've never seen it make a difference.

Both of your supposed counterexamples are Chinese. China does things differently from the USA.

My counterexamples prove exactly the point; TBTF is fugazi, arbitrary, something in your head.

Because two companies in China aren't it, it doesn't exist?

This is basically asking for discovery of another case when you are being suing for one case.

I think the US court system is famous for being slow. Not sure if anyone wants to make it go even slower.

Congress (and state legislatures) pass laws, but don’t necessarily authorize the resources to prosecute all offenders, so prosecutors are given some latitude who to target.

IANAL, but my understanding is this: Malicious prosecution is a defense. Selective enforcement is not. The difference is for judges and juries to decide.

"If you can show that someone else was doing the same thing without being charged"

It's unlikely people would have enough evidence of high enough quality to make that case. The prosecution will just say the evidence isn't enough.

The prosecution can say whatever they want, but the worst of the existing laws are the one that are pretty easy to prove, and it's the court rather than the prosecution who makes the decision.

You'll also get some nice incentives where the government will be arguing that a particular behavior is not a violation of the law so they don't have to charge someone they don't want to, which in turn leaves you with that precedent if the judge agrees with them and then they want to charge someone else for doing that later.

I think part of the balance is that law requires discretion because humans are not good at making deny lists which the law boils down to.

That's just conceding that you don't actually want to have laws and really only want to punish people when you don't like them.

That's pretty reductive. Or do you not see a difference for example between someone speeding to get to the hospital vs speeding to elude police after a bank robbery?

In fact most people are okay with selectively stretching time limits and elevating a low class misdemeanor into a felony in order to prosecute someone where the party who would be the injured party said there was no injury.

And lest people think this is a one way street, each side thinks the other deserves interpreting the law to “get the real baddies.”

Our system has that built in. You can only be punished as to the norm and standards, findings can create precedent for other cases, etc. The workaround is they just use an 'as applied standard' so that it only can 'apply' to the one case due to that case's unique 'circumstances'. They do it all the time to prevent precedents from being set. 'As applied' rules are excluded from setting precedent.

As applied needs to be changed so that it can be included in setting precedent and when considering the norms given out for punishment because right now it's highly abused to prevent establishing legal norms from judicial findings the way our system is supposed to.

> If you can show that someone else was doing the same thing without being charged then the prosecution either has to charge them too or that law is struck down

I’ve often thought this about laws involving speed limits. When 95% of the people driving in a major downtown area are technically breaking the law, what is the purpose of the law but to target whoever you like then? Either enforce it unilaterally or come up with new laws.

Going after every possible case would be staggeringly expensive for marginal gain, the cost society would massively exceed the benefits. Yes the system as it is that relies on discretion, but there’s always discretion involved, and we rely on separation of powers, public pressure, etc to act to try and correct excesses. Of course that is not guaranteed to work, and won’t work perfectly, but no system will. Societies are dynamic systems.

It’s all well and good until the person who has that discretion comes after you personally.

Careful there, you're attempting to introduce elements of reason and justice into law. When has that ever worked?