U.S. Law and Judiciary
Table of Contents
Personal Context
I am not a lawyer. I find myself disgusted and dismayed by the content and process of U.S. Law. Socrates had it right when he distinguished philosophers from dikasts. Further, I find it increasingly clear that powerful social parasites are using the structures, memes, and institutions of democracy, representative government, and justice for their own purposes, with utter contempt for the damage done to the host system. Apparently they feel safe within their gated communities, Swiss bank accounts, and island getaways. The rest of us must make do with the damaged reputation and health of our once great nation.
Therefore, I find it necessary to investigate and participate.
It should be noted I'm hardly alone in these sentiments. Many lawyers, judges, and politicians are also disgusted with the process and the results.
If that is so, can't we collectively do something about it? The answer is yes. We need a Kuhnian paradigm shift, and that (almost by definition) will not come from inside the judicial establishment. We need concerned non-lawyers taking up the challenge to reinvent law.
That is the purpose of this analysis: To restate commonly known "facts" in new ways and thereby trigger "Ah Ha" transitions in my fellow citizens. As the tipping factor is reached, we will be able to:
- Recognize and reward honest judges and politicians already in
the system (who are generally outmanned and outgunned, and need
community support).
- Vote in more honest judges and politicians (seeing past the
slick advertising which has kept the parasites in power)
- Begin rewriting laws to reflect the needs and desires of "We the
people"
For any of this to occur, we must have paradigm shifts of our own. For me that starts with understanding law from the bottom up....
What is Law
Law is a shared cultural artefact prescribing how some community of humans should interact with one another. Humans invent it, proclaim it, debate it, and enforce it. The law and the memes which give it structure evolve under the give and take of human interests. Unlike science (another cultural artefact), law is not constrained by physical reality or repeatable experimentation. Rather, like religion, it is free to evolve in many directions, each as unprovably "correct" as another. However, while in the U.S. it doesn't much matter whether you believe in a single god, multiple gods, or no gods at all, the law has very real practical consequences. People are killed, enriched, and impoverished in the name of law.
To put it simply, if you control the law, you theoretically control the lives and fortunes of everyone in your domain. Until recently, the practicality of detection and enforcement haven't allowed the law to reach its full potential, but those constraints rapidly evaporate. The twin nightmares of Huxley's Brave New World, and G. Orwell's 1984, mixed with the all-seeing eye of panopticism, are all coming true on the Internet. If you are a part of modern society, you cannot hide.
This is troubling, because like any cultural artefact, law can be abused. If it is to work at all, each person in the community must submit a portion of his/her autonomy to communal control. So long as we all do, and so long as the resulting power is used for the good of all, we have an effective and symbiotic system.
Unfortunately, it is so difficult to ascertain fair use of the power that we have to largely take it on faith that communal leaders are honest and fair dealing. Thus a parasitic agent (e.g., a biased judge) can easily misuse the donated power for selfish purposes. Eventually of course the community at large will notice. Then comes a dilemma: Do we just replace that one parasitic agent, or do we lose faith in the overall symbiosis and refuse to donate power?
Some segments of society have lost faith, and now consider the American judicial system irreparably parasitic. They see police as armed street gangs available for hire to the highest bidder. They see judges and politicians as pawns of big business.
Others see the situation as desperate but still salvageable. I'm in that camp. [NOTE: 2000-12-17: In the aftermath of the horrendous US Supreme Court decisions re the Bush/Gore election, my faith in non-violent solution slips further.]
Finally, some think the system is just fine as is. These break down to:
- Those in control of the parasitic agents. Of course it looks fine.
- Those who think they are now or might be soon be in control.
If your net assets are under $100M, think again. We are talking
serious power, and money is the fungible form of power. If a
favorable law enhances your wealth by $1B, yet only costs $0.1B in
campaign contributions, lobbyist fees, etc, then it is a better
payback (1000%) than actually doing something useful. Oh, $0.1B =
$100M, or the entire (official) sum collected for Bush in the most
expensive campaign in history. Hiring a politician and running him
for president is cheap for these players.
- Those who have no clue. If you don't understand the phrases
"standing", "judicial restraint", or "fair dealing", you are clueless.
Let's put it this way: You know those nice words in the Bill of
Rights? They don't apply to you.
As one might expect, given no grounding in reality, the law can take extraordinary flights of fancy. This plus cultural isolation has led to numerous independent evolutionary pools. In the context of my own home, the relevant evolutionary pools are the English Common Law system, the U.S. Constitution and Federal regulations, and the Washington State Code. Plus the mass of case law which bubbles around these historical themes. The law of the Inuit or of Mongolia might be better law for my family but those meme pools don't count.
Isn't there some meat behind these flights of fancy? Don't the lawyers and judges actually know something? Richard Posner [ pos90 ] investigated the matter and concluded:
- First, there is no such thing as "legal reasoning". Lawyers and judges answer legal questions through the use of simple logic and the various methods of practical reasoning that everyday thinkers use.
- Second, ... the justification... -- the demonstration that a decision is correct -- often impossible.
- Third, ...difficult legal cases can rarely be decided objectively.
- Fourth, large changes in law often come about as the result of a non-rational process akin to conversion.
- Fifth, law is an activity rather than a concept
- Sixth, there is no longer a useful sense in which the law is interpretive. This is true of statutory and constitutional law as well a common law.
- Seventh, there are no overarching concepts of justice, that our legal system can seize upon to give direction to the enterprise.
- Eighth, law is functional... Hence in areas where the social function is efficient allocation of resources, law appropriately takes its cue from economics.
Ah yes, economics.. Likes to put on airs by calling itself the dismal science , though in fact it is incapable of significant nullable experiments, and thus is no science at all. Rather it is akin to astrology and weather reporting: The payoff for a few right answers is high enough to justify listening to a raft of duds, even when you have no hope of distinguishing one from the other.
Now that we've opened the door to economics, what about someone else's view of the relevant economic balances? David Kairys ([kair98]) has collected relevant writings. The very fact that these papers are considered insightful and transformational shows how stunted legal thinking has become.
How do we participate in the Law?
The law is like chess. You have to learn the basic rules, learn the classic strategems, learn special-case gambits, and finally put it all together for each case/game with an inventive flair. It's all adversarial, with the winner on both performance and style points declared by a judge or a jury.
Winning on style takes years of practice and coaching. Young lawyers are groomed through prep school and college debate societies, on through internships to finally take the helm as partners in prestigious firms with powerful connections.
Winning on performance requires legwork and mind-numbing attention to detail. That is what 80 hr weeks are for. Again, the big firms have an advantage. If the legal resources were actually available on the Internet to the community at large (hey, those are our laws!), community-based efforts could compete on legwork and detail. Unfortunately, many legal resources are sold to publishers who then sell them at stiff prices to law firms, and not to the "public". Hmmm, something fishy here...
So how does a non-lawyer get into the game?
Step one is to get excited (probably angry) about something. Watching Seattle's Mayor Schell outlaw gasmasks and watching City/County/State LEO's attack unarmed protesters led me to a) city law re emergency proclamations, b) state law re riot and assault, and c) federal law re right to assembly and free speech. See: WTO
Step two is to learn how the heck judges could let this happen. That means learning how the law really works, not how they tell you in civics class. For the US, start with the US_Constitution. Then turn to the West In_a_Nutshell series. For each topic, a respected scholar surveys the field, identifies the memes and describes how case law has evolved. Whether you agree with the analysis or not, you are fairly sure to get a view of how judges and other lawyers see the field.
Step three is to learn how to study the law. See [hegl95]. The most dismal section was lawyers (even very successful ones) talking about their careers. As far as I'm concerned, the only reason to enter the Law as a profession is to help undo the damage done by career lawyers. And that should only be after a fruitful career elsewhere, with plenty of fond memories to fall back on.
From there you branch out. Take the current topic which has your blood boiling. Read the available material, looking for ways to put your "bad guy" in jail. Doing so will force you to see (and learn to counter) his probable defenses.
Since police attacking protesters was my trigger, I started with the U.S. Constitution. See [barr99]. That led to readings on the Justices themselves, and to the startling realization that I wouldn't trust these guys to mediate a bar fight, much less pontificate over the future of the nation.
So pick your current "bad guy" and go for it.
References
- getches97
David H. Getches. Water Law in a Nutshell . West Publishing, 1997. ISBN 0-314-21157-8.
Water or lack of it is what makes raw land into desert, scab rock, swamp, lush verdant meadows, rain forest, bountiful farmland, disaster-prone flood plains, slum shanty towns, or millionnaire gated estates. It is essentially free, if you can only get the law to agree it is yours to use. Remember "Chinatown" and "Erin Brockovich"? That was water law in action. Worried about salmon recovery, Puget Sound dieoffs, or the runoff from your neighbor's driveway. That is water law. No wonder there has been so much sharp dealing over the years.
Further, in an era of global warming induced changes in rainfall, and in an era of corporate mining of aquifers, this is (or ought to be) a hot topic.
The law itself is a mishmash of common law re trickling brooks in the English countryside, pre-industrial watermills, rough-and-tumble mining claims, gigantic hydropower dams, and massive irrigation of semi-arid lands. What a mess. As usual, "those with the gold make the rules".
- hegl95
- K. Hegland. Introduction to the Study and Practice of Law , 2nd ed.
West Publishing, 1995
- kair98
- D. Kairys (ed). The Politics of Law: A Progressive Critique , 3rd ed. Basic Books, 1998
An anthology of alternative (non mainstream) views of law and politics. The most impressive insight is how pitiful and lonely these voices sound. Thomas Paine would have fit right in politically, but he'd have been disgusted with our nation for sinking so low.
- mayer94
- J. Mayer, J. Abramson. Strange Justice , Houghton Mifflin, 1994.
ISBN 0-395-63318-4.
After the Clarence Thomas hearings, after David Brock's The_Real_Anita_Hill , two Wall Street Journal reporters set out to find the facts. While the authors are not talented propagandists -- their good guy/bad guy phrasing is transparent -- they are doggedly effective reporters. When you ignore the adjectives and read for verifiable content, you get something like this:
For partly societal and partly personal reasons, Thomas is a profoundly self-centered self-promoter, opportunist, and misogynist. In a pinch he is willing to lie and destroy the lives of others to get his way. For partly societal and partly personal reasons, Hill is a bit naive and a bit self-serving. In a pinch she is willing to work with disgusting men to maintain a semblance of her chosen career. As for the sexual harassment, Thomas really did say those things, and Hill really did run away but then spoke up out of a sense of duty.
Nevertheless, Thomas and Hill are pawns. The real players are the movers and shakers behind the scenes who had no qualms in destroying an innocent citizen (Hill) and nor in elevating a misogynist and liar (Thomas) to the Supreme Court, nor in using the US Senate to do the dirty work. The players (including George HW Bush) were after power, and all else faded in the rush to win a "war" with their adversaries.
"War" was the Republican term, and I consider their resultant attacks on the US Senate acts of treason. This is my own reading of the facts. It is fairly clear the authors were far more concerned about demonstrating conclusively the sexual harassment issues. I am of course concerned about sexual harassment and Thomas's "the witness is a hooker" defense. But the key to me is that the Republicans were utterly contemptuous of the process of democracy, and of the institutions with which they were entrusted. The Democrats in contrast appear as complete buffoons, incapable of understanding fully what was happening, unwilling for personal reasons to battle what they did understand , and utterly incapable of protecting the nation from the Republicans' orchestrated attack on traditional American values of honesty and fair dealing.
A few interesting notes:
"Evil Flourishes When Good People Do Nothing". Needlepoint sampler motto, which helped Anita Hill decide to speak up.
pg 228Further -- and this was even more important to the Republicans -- the full Senate would vote on the nomination the following Tuesday, regardless of what happened...."The schedule," commented another Democratic senator, "was insane."
pp 270-271[Hmmm, does this remind you of the Supreme Court forcing a Dec 12, 2000 deadline which in fact was not a recount deadline?]
- miller90
Arthur R. Miller, Michael H. Davis. Intellectual Property: Patents, Trademarks, and Copyright in a Nutshell West Publishing, 1990. ISBN 0-314-75738-4.
My take: Humans are obligate model builders and conveyors. We cannot survive as a species without shared culture, including ideas and inventions. Most emphatically, we cannot operate as free citizens if the mechanisms of citizenship are not free.
It is perhaps acceptable to tweak this baseline with a few temporary perks for authors and inventors. That was the founding fathers intent. But corrupt legislators, at the behest of greedy "content owners", have extended this into a permanent regimen for traditional formats, and have added whole categories such as genome patents. It matters not at all the the Supreme Court has approved this extension -- they have already proven themselves to be corrupt behind redemption in the Bush/Gore 2000 recount decision.
So we have a body of law devoted to a fictional creation called "Intellectual Property", about which only fully vetted (as in "drank the coolaid") lawyers and judges may speak.
Learn the law, elect legislators who are not owned by "content owners". Eliminate this form of parasitism from our world culture.
Until then, learn to use the law upon itself. Open Source Software, Open Hardware, Open Science, and Creative Commons are mechanisms to build a parallel culture which is in fact free ("free as in speech, not as in beer"). These have reached sufficient maturity to be sufficient for home, office, and military. Further, tackle existing patents at their Achilles heel: Obviousness. The crap that has been argued by patent lawyers and accepted by patent judges is disgusting.
- podger97
Ellen S. Podger, Jerold H. Israel. White Collar Crime West Publishing, 1997. ISBN 0-314-21163-2.
A hodgepodge of fraud (mail, wire, securities), racketeering, pollution, fasle reporting, bribery and extortion, tax violations, etc.
My take: These crimes can all be potent destroyers-of-lives, but they are treated as awkward tiffs at a gentlemens' club. Perpetrators seldom are audited, seldom get caught, seldom go to trial, seldom go to jail, and seldom if ever do true hard time. It is a percentage game with the risk/reward balance in favor of the criminal. And now (2007) Bush is firing federal prosecutors and eliminating tax audits for the rich.
Just how crooked does the game have to be?
- pos90
- R. A. Posner. The Problems of Jurisprudence , Harvard University Press, 1990
He is rather impressed with his own eloquence, but if you allow that indulgence, it is a solid piece of work. Of course, to a scientist or even a mathematician, the results are rather "Well, duh".
- rcw99
- Peace Officer's Pocket Guide to the Revised Code of Washington Criminal Laws, 1998-1999.
The "little red book". There is no excuse for the LEO's in the Seattle WTO police riots not knowing this stuff.
- revel98
- O. Revell, D. Williams. A G-Man's Journal . Pocket Books, 1998.
A top FBI agent's career. Oliver ("Buck") Revell was everywhere the FBI was in the news. But somehow (at least in his telling of it) he never made a serious misstep, and the other guys were always in the wrong. It reminds me of Julius Caesar's Gallic Wars.
If you care about Ruby Ridge or Waco or Oklahoma City, you need to read this book.
The most interesting aspect was his account of earning his "street degree". See pp 25-27 for why honorable men become LEO's. See pg 28 for how they learn to play rough. See the rest of the book for how these early lessons play out in the context of recent American history.
Creator: Harry George
Updated/Created: 2008-03-06