Presumed Consent and Ex Post Facto Civil Laws

Cass Sunstein, the regulatory czar, has recommended that it become legal to remove organs from deceased people who did not explicitly give consent by inventing a doctrine of “presumed consent”:

"Presumed consent preserves freedom of choice, but it is different from explicit consent because it shifts the default rule. Under this policy, all citizens would be presumed to be consenting donors, but they would have the opportunity to register their unwillingness to donate, and they could do so easily. We want to underline the word easily, because the harder it is to register your unwillingness to participate, the less libertarian the policy becomes."

In other words, it is possible for regulators to change a “default rule,” bury the change in a 1500-page law, and claim that anybody who was too busy actually having a life to hire a lawyer to fill out a zillion-page form that said otherwise is now an organ donor.

This is an example of a common phenomenon: agreeing to a contract (or lack of a contract) based on the current law followed by a legislature passing a law that changes the meaning of the contract. There were people who got married a few decades ago under the impression that marriage was until “death us do part” only to find their marriage vows had been changed into something temporary. The late Terri Schindler Schiavo said that she didn't want to be kept alive by extraordinary means followed by the Florida state legislature passing a law that changed the meaning of “extraordinary means.”

But wait, there's more. You can think of copyright law as a contract between writers, musicians, pharmaceutical manufacturers, etc. on one side and the public on the other side in which the members of the public agree not to use unauthorized copies for a limited amount of time in return for creative work on the other side. This is under attack at both ends. Copyright extension laws change the meaning of “limited amount of time” while proposed changes in drug re-importation laws change the meaning of “unauthorized copies.”

The Constitution bans ex post facto criminal laws; maybe we need a Constitutional Amendment to ban ex post facto civil laws. If a law is passed changing copyright terms; anything already copyrighted will retain the old terms and only new books/drugs/records will be covered by the new terms.