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
- Recognize and reward honest judges and politicians already in
the system (who are generally outmanned and outgunned, and need
- 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
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....
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.
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
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
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.
David H. Getches. Water Law in a Nutshell . West Publishing, 1997.
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
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
- K. Hegland. Introduction to the Study and Practice of Law , 2nd ed.
West Publishing, 1995
- 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.
- J. Mayer, J. Abramson. Strange Justice , Houghton Mifflin, 1994.
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.
Further -- 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."
[Hmmm, does this remind you of the Supreme Court forcing a Dec 12, 2000
deadline which in fact was not a recount deadline?]
Arthur R. Miller, Michael H. Davis.
Intellectual Property: Patents, Trademarks, and Copyright in a Nutshell
West Publishing, 1990.
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.
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,
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?
- 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".
- 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.
- 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
Robert R. Wright, Morton Giteman. Land Use in a Nutshell .
West Group, 2000. ISBN 0-314-23859-X. I found nuisance law and zoning law
particularly relevant. E.g., I should investigate the "spot zoning"
aspects of the Westgate Chapel sprawl.