By Robert H.
What are lawyers good for? Well here is one thing: Economists are better than you at noticing economic trade offs. Engineers are better than you at noticing design trade offs. We lawyers may just be better than you at noticing the trade-offs inherent to rule making.
This may be oversimplified, but I think the following is a good model for how lawyers think about rules. Imagine you've got n triangle. The vertices are labeled "simple" "clear" and "good outcomes in the case(s) at hand." When contemplating a rule change, pretend the current rule puts you in the middle of the triangle. The problem with making and updating legal rules is that any move towards one vertex is liable to move you away from another.
For example, Alex Tabarrok just blogged about a decision in which the Supreme Court ruled that some unsupervised state regulatory boards aren't exempt from the anti-trust act. In this case, the Court ruled that a state regulatory board made up of dentists can't try to create a monopoly in tooth whitening for their own industry. Tabarrok, not a lawyer, thinks that Kennedy was balancing federalist concerns (ie, letting states have the authority to regulate without federal interference) with concerns about regulatory capture.
Nope! Or at least, not entirely. He was also balancing along the triangle, as Alito's dissent makes clear. "Dentists can't use regulatory capture to make us all pay more for tooth whitening" is CLEARLY the right result (good outcomes), even if you love federalism. The problem is that getting there creates either ambiguity (moves away from "clear") or complexity (moves away from "simple"). That's because the new rule -- regulatory bodies like this need state oversight to be exempt from anti-trust law -- begs the question of what counts as sufficient state oversight. That question can either be left unanswered for district judges to work out on a case-by-case basis, which creates an ambiguity, or it can be worked out in exacting detail now or at a later date, which will create complexity. Complexity and ambiguity are bad, but Kennedy thought it was worth it in this case to get good results.
Alito didn't. He wanted a simple rule -- if a state says a regulatory body is backed by the state then that's good enough, and the regulator is exempt from anti-trust. That would have moved us away from good outcomes (now dentists get to screw us) but towards "simple" and "clear" (we now know exactly what sort of regulatory bodies are exempt, and the rule for telling us that that is relatively simple).
Obviously there is more to deciding a case than imagining this triangle, there was certainly more going on here than imagining a triangle, and some laws are so awful that you can improve them along all three of these dimensions. But there is definitely a truth here lawyers are sensitive to and most people are not: the world is really complex, our moral judgments are really complex, and if you want real world legal outcomes to match your judgment of right and wrong you are going to get law that is either very complex (which has costs) or which puts a lot of the burden on individuals applying ambiguous directives to the facts at hand (which has costs). The result is universally disappointing law: if the law gets an unfair result it is bad; if it is so impenetrable you need to hire an expert to explain it to you it is bad; and if the best your lawyer can say is "well, it could go either way, the judge gets a lot of wiggle room here," it is bad.
Good laws are less bad; no laws are good.
Pessimistic reasoning undermined by epistemic uncertainty.
Showing posts with label legal reform. Show all posts
Showing posts with label legal reform. Show all posts
Thursday, February 26, 2015
Friday, July 5, 2013
Feline Customary Law
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| Long Tail and Short Tail, Legal Experts |
Over the last year, my two cats have developed a complex, ever changing regime of customary law. It fascinates me, mainly because many of the laws they've developed clearly aren't instinctual (though instinct plays a huge role, obviously). For example, there is no instinctual rule determining who gets dominion over toys, instead the cats seem to work out a toy-specific rule within about an hour of a toy being introduced into the apartment, that rule being some function of who is the better fighter, who is the dominant cat, who wants the toy more, and the dumb luck of who first discovers it and/or plays with it more. In the main, the law governs:
1. Property rights with respect to toys, food, the litter box, and lounging spots. Most of these things are held in common with the law mediating when both cats want to use something at the same time, but some pieces of property, such as the smaller cat's comfort toy, pretty clearly belong to one cat and one alone.
2. What touchings are permissible, covering when it is permissible to initiate contact (everything from cuddling to starting to a fight) to what kind of contact is permitted (IE, when can can cuddling escalate to wrestling). So, for examples, it is pretty clearly forbidden to attack a cat when he is drinking water; if a cat is sleeping then you have to lick and nip him awake before you can start a fight; there is some unknown rule by which they determine what fights are play-fights and what fights are more serious; etc.
3. Some national security law seems to govern how the body politic interacts with outside forces, such as myself, my girlfriend, and strangers. There actually isn't much joint action when it comes to defending the apartment, the bigger question is what to do when the legal regime is disrupted by those who aren't beholden to it. This is an especially difficult question when it comes to myself and my girlfriend, since A. It is very important to obey us so that we will keep feeding them and don't punish them, but B. we often force situations where obedience means a transgression of the law. So, for example, Bucephalus gets precedence when eating the wet food. What happens if I push him away from the bowl and don't let him access it while repeatedly placing Jean-Luc right beside it? Bucephalus has sole ownership of his comfort toy, what happens if I keep trying to get Jean-Luc to play with it while Bucephalus is stuck in the other room? The rule here seems to be that you should try to resist the human and obey the law, but after a concerted effort on the human's part you can give in and break the law without the other cat trying to stop you or holding a grudge.
***
Anyways, it's all interesting stuff (to me), and a useful remedy when you start thinking that the law should be simple, unchanging, and intuitive. In order to function together, two animals with the IQs of a pocket calculator have been forced to develop a law that is none of those things. I don't imagine a system of laws designed to regulate millions of humans is ever going to do much better.
Wednesday, February 6, 2013
Constitution Class Posting
My favorite podcast, econtalk, delved into con law this week, and boy was it a confused conversation!
Basically a law professor, Louis Michael Siedman, raised some objections to the constitution that lawyers have known about for a while. Then Russ Roberts, who is a smart economist but doesn't really follow constitutional law, tried to single handily invent all the responses to those arguments. But there's no need to do that, because people have been thinking about this stuff for a while!
I don't remember all the ins and outs, but this is basically how I think the debate should go:
I. Constitutional problem
A. Siedman: sees two big difficulties with the constitution.
i.. The inter-temporal difficulty. Why should past people get to bind present people? The foundational generation wasn't smarter or wiser, it was, if anything smaller and less informed. Why is the vote of some dude who has been dead for 200 years more important than my vote?
ii.. The counter-majoritarian difficulty. Democracy is good, right? Why does the minority of white, propertied males in the late 1780's get to make the rules? Why do they override a current majority?
B. Responses
i. Pre-commitment is important for the part of the constitution that deals with PROCESS. What day you hold an election, how many congressmen there will be, how long they serve, etc are all questions that 1. don't really have super important right answers over the long term, and 2. in the here and now can have huge effects. If you say "you know what, senators can now serve for EIGHT years" you lock in the current democratic majority. But what effect that will have 200 years from now is harder to say. So, rather than put all that process stuff up for big huge political fights in the now, we just let people in the deep dark past pre-commit us to a certain political process.
ii. We don't want to expose to majoritarian outcomes certain RIGHTS. There are lots of reasons we should adopt a pre-commitment strategy with rights. For example, these could be things we are pretty confident people get right most of the time, but where there might be pressure in certain situations to get it wrong. We can just sort of airily commit to stuff like, "yeah, free speech is great!" in the here and now, effectively constraining us when we the pro-baby-rape nazi starts spouting his nonsense.
iii. The founders *were* smarter because they lived in a CONSTITUTIONAL MOMENT. At certain times the whole of the body public is moved to engage in and change our most basic laws. The 1780's. The 1860's. The 1930's. The people are thinking more clearly about this stuff in constitutional moments, and we should make some things only changeable when they can be changed with the sort of super majority you get during those special times.
iv. We don't trust democracy because we FEAR THE MOB. Or ARE FASCISTS. Or whatever. The basic structure of Siedman's constitutional problem is, "we all agree in majority rule, why depart from it?" The answer here is, "because I don't agree with majority rule! The majority sucks! We should pre-commit to my policies because my policies are right and the people will probably f*** it up." This was something Russ, a libertarian skeptical that government will stay limited in a purely-majoritarian state, was trying to articulate.
v. TRADITION. Laws work in large part because of cultural norms. This by necessity makes people in the past more important than modern people for governing how modern people behave (they set the norms!) and gives a reason we shouldn't blindly try to chart our own course in everything. Norms make society work, lets not start questioning and rehashing them just because they are in the constitution! This is something Siedman was very strongly fighting against.
vi. No one wants to rename the USS CONSTITUTION, the oldest commissioned warship in the world.
II. The legal problem.
A. Siedman also says that the Supreme Court isn't really following the constitution and should fess up to it. He's less calling for us to ignore the constitution and more calling for us to be honest about ignoring the constitution. This isn't really a constitutional argument, it is a broader legal argument rooted in the INDETERMINACY DEBATE. To what extent is the law determinant? That is, to what extent do those little rules and cases on sheets of paper determine actual outcomes in courts and legislatures?
B. I don't really want to debate this because it's a huge question in the law, just sort of point out how inferior Siedman's argument is. Basically he says "here are some examples of people explicitly not following the constitution, even by their own lights. Therefor people should just admit that the constitution doesn't do anything important and no one follows it." But the mere fact that the constitution didn't bind some people in some cases doesn't prove it is all a sham. Obviously there is ground between "people always follow the constitution and it determines everything" and "people never give up their policy goals because they think they are unconstitutional and the constitution effectively does nothing." The Supreme court can be hypocrites only some of the time, and the rest of the time the constitution is guiding their decisions and doing real work. So a few specific examples of hypocrisy doesn't prove the constitution a sham.
C. As a side point, observe that if this is true and the constitution doesn't bind or limit us, the inter-temporal and counte-rmajoritarian difficulties go away.
Basically a law professor, Louis Michael Siedman, raised some objections to the constitution that lawyers have known about for a while. Then Russ Roberts, who is a smart economist but doesn't really follow constitutional law, tried to single handily invent all the responses to those arguments. But there's no need to do that, because people have been thinking about this stuff for a while!
I don't remember all the ins and outs, but this is basically how I think the debate should go:
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| Should this still be law? |
I. Constitutional problem
A. Siedman: sees two big difficulties with the constitution.
i.. The inter-temporal difficulty. Why should past people get to bind present people? The foundational generation wasn't smarter or wiser, it was, if anything smaller and less informed. Why is the vote of some dude who has been dead for 200 years more important than my vote?
ii.. The counter-majoritarian difficulty. Democracy is good, right? Why does the minority of white, propertied males in the late 1780's get to make the rules? Why do they override a current majority?
B. Responses
i. Pre-commitment is important for the part of the constitution that deals with PROCESS. What day you hold an election, how many congressmen there will be, how long they serve, etc are all questions that 1. don't really have super important right answers over the long term, and 2. in the here and now can have huge effects. If you say "you know what, senators can now serve for EIGHT years" you lock in the current democratic majority. But what effect that will have 200 years from now is harder to say. So, rather than put all that process stuff up for big huge political fights in the now, we just let people in the deep dark past pre-commit us to a certain political process.
ii. We don't want to expose to majoritarian outcomes certain RIGHTS. There are lots of reasons we should adopt a pre-commitment strategy with rights. For example, these could be things we are pretty confident people get right most of the time, but where there might be pressure in certain situations to get it wrong. We can just sort of airily commit to stuff like, "yeah, free speech is great!" in the here and now, effectively constraining us when we the pro-baby-rape nazi starts spouting his nonsense.
iii. The founders *were* smarter because they lived in a CONSTITUTIONAL MOMENT. At certain times the whole of the body public is moved to engage in and change our most basic laws. The 1780's. The 1860's. The 1930's. The people are thinking more clearly about this stuff in constitutional moments, and we should make some things only changeable when they can be changed with the sort of super majority you get during those special times.
iv. We don't trust democracy because we FEAR THE MOB. Or ARE FASCISTS. Or whatever. The basic structure of Siedman's constitutional problem is, "we all agree in majority rule, why depart from it?" The answer here is, "because I don't agree with majority rule! The majority sucks! We should pre-commit to my policies because my policies are right and the people will probably f*** it up." This was something Russ, a libertarian skeptical that government will stay limited in a purely-majoritarian state, was trying to articulate.
v. TRADITION. Laws work in large part because of cultural norms. This by necessity makes people in the past more important than modern people for governing how modern people behave (they set the norms!) and gives a reason we shouldn't blindly try to chart our own course in everything. Norms make society work, lets not start questioning and rehashing them just because they are in the constitution! This is something Siedman was very strongly fighting against.
vi. No one wants to rename the USS CONSTITUTION, the oldest commissioned warship in the world.
 |
| The USS Non-Binding Norms Subject to Majoritarian Outcomes under sail |
II. The legal problem.
A. Siedman also says that the Supreme Court isn't really following the constitution and should fess up to it. He's less calling for us to ignore the constitution and more calling for us to be honest about ignoring the constitution. This isn't really a constitutional argument, it is a broader legal argument rooted in the INDETERMINACY DEBATE. To what extent is the law determinant? That is, to what extent do those little rules and cases on sheets of paper determine actual outcomes in courts and legislatures?
B. I don't really want to debate this because it's a huge question in the law, just sort of point out how inferior Siedman's argument is. Basically he says "here are some examples of people explicitly not following the constitution, even by their own lights. Therefor people should just admit that the constitution doesn't do anything important and no one follows it." But the mere fact that the constitution didn't bind some people in some cases doesn't prove it is all a sham. Obviously there is ground between "people always follow the constitution and it determines everything" and "people never give up their policy goals because they think they are unconstitutional and the constitution effectively does nothing." The Supreme court can be hypocrites only some of the time, and the rest of the time the constitution is guiding their decisions and doing real work. So a few specific examples of hypocrisy doesn't prove the constitution a sham.
C. As a side point, observe that if this is true and the constitution doesn't bind or limit us, the inter-temporal and counte-rmajoritarian difficulties go away.
Friday, December 28, 2012
Lawyers (Other Than Me) Aren't Useless
I've noticed a weird trend of smart, pragmatic type thinkers assuming that lawyering isn't really a sector of the economy we want to expend resources on or see a lot of innovation in. Here's Matt Yglesias.
I think the basic idea is that law is a zero sum game, and more resources spent on lawyering just turns it into an arms race. Party A gets better lawyers so Party B has to get better lawyers and now we are spending more on lawyers, but it is still Party A vs Party B with the same facts and the same law and the same equally good lawyers (if better than the last ones) representing each client. We don't gain anything, just more expensive and subtle legal tricks to get to the same outcome
This way of thinking about the legal profession is breathtakingly stupid.
The basic problem here is that once Party A and Party B get better lawyers, they also might get a different outcome. Maybe Party A was going to win, but there is some subtle and obscure point of law or argument or fact that can only be dug up by great lawyering, so now Party B will win. It doesn't matter that the arms race means they *both* have great lawyers capable of making subtle arguments, once they got there it turned out that the subtle arguments are all in Party B's favor.
This happens. I've seen it. Sometimes, as things get elevated to better and more senior attorneys, someone catches something or writes something or thinks something that worse lawyers missed, and it changes the whole case, without the great lawyers on the other side having their own set of innovative tricks to change things back again. Better lawyers can change outcomes, and that means they can help society in three ways:
1. They Make Better Laws
In our country, courts make law. Better lawyers means better judges (who are normally required to be lawyers) getting better, fuller arguments presented to them by both parties before they make that law. I would guess that smarter judges hearing smarter arguments from smarter lawyers make smarter laws.
2. Our Legal System Can Bear More Complexity
I think there is a dumb idea among non-lawyers that the law is complex because lawyers and judges and legislators make it so. That ain't the case. The law is complex because the world is complex. *Really* complex. It is nice when the legal system can be complex too, because excessively simple rules either lead to 1. Unjust and inefficient outcomes as a mess of complex real world fact patterns are decided with too-simplistic rules not designed to account for them or, 2. A lack of predictability as the rules are made wishy-washy enough to deal with complexities on a case-by-case basis. So, as an example, here's a dude complaining that the world has gotten more complex with the advent of driverless cars, and we desperately need a bunch of complex new law to deal with it. New weird facts have raised uncertainties under the old, general laws, so now people want the law to be more specific and complex. Happens all the time.
But if we want a complex system where outcomes can hinge on subtleties, we need minds that can grasp subtleties to work that system. The basic limits on how complex the law can be without costs becoming unbearable are library sciences and lawyer smarts. The smarter the lawyers, the less we have to trade off flexibility for predictability.
3. It's fairer
There's probably a reason, once we dug up all the best, most subtle arguments, Party B won. When a party wins after the court has been exposed to all the arguments -- subtle and simple -- they are more likely to be the party we want winning then when a party wins after being exposed to only the most obvious arguments.
***
Anyways, I'm not claiming we should pay lawyers more or less or the same. Obviously the benefits of spending more on lawyering has costs. I'm just saying, the benefits exist in the first place. You can't unthinkingly dismiss the idea that spending a lot on lawyering is socially useful.
It seems to me that having smart, ambitious, hardworking people become lawyers is a huge waste. When Apple and Google compete to produce the best smartphone operating system, consumers win as products improve. But while there's presumably some level of lawyerly incompetence that would be socially problematic, at the margin, big firms getting better and better at suing one other doesn't help anyone.
I think the basic idea is that law is a zero sum game, and more resources spent on lawyering just turns it into an arms race. Party A gets better lawyers so Party B has to get better lawyers and now we are spending more on lawyers, but it is still Party A vs Party B with the same facts and the same law and the same equally good lawyers (if better than the last ones) representing each client. We don't gain anything, just more expensive and subtle legal tricks to get to the same outcome
This way of thinking about the legal profession is breathtakingly stupid.
The basic problem here is that once Party A and Party B get better lawyers, they also might get a different outcome. Maybe Party A was going to win, but there is some subtle and obscure point of law or argument or fact that can only be dug up by great lawyering, so now Party B will win. It doesn't matter that the arms race means they *both* have great lawyers capable of making subtle arguments, once they got there it turned out that the subtle arguments are all in Party B's favor.
This happens. I've seen it. Sometimes, as things get elevated to better and more senior attorneys, someone catches something or writes something or thinks something that worse lawyers missed, and it changes the whole case, without the great lawyers on the other side having their own set of innovative tricks to change things back again. Better lawyers can change outcomes, and that means they can help society in three ways:
1. They Make Better Laws
In our country, courts make law. Better lawyers means better judges (who are normally required to be lawyers) getting better, fuller arguments presented to them by both parties before they make that law. I would guess that smarter judges hearing smarter arguments from smarter lawyers make smarter laws.
2. Our Legal System Can Bear More Complexity
I think there is a dumb idea among non-lawyers that the law is complex because lawyers and judges and legislators make it so. That ain't the case. The law is complex because the world is complex. *Really* complex. It is nice when the legal system can be complex too, because excessively simple rules either lead to 1. Unjust and inefficient outcomes as a mess of complex real world fact patterns are decided with too-simplistic rules not designed to account for them or, 2. A lack of predictability as the rules are made wishy-washy enough to deal with complexities on a case-by-case basis. So, as an example, here's a dude complaining that the world has gotten more complex with the advent of driverless cars, and we desperately need a bunch of complex new law to deal with it. New weird facts have raised uncertainties under the old, general laws, so now people want the law to be more specific and complex. Happens all the time.
But if we want a complex system where outcomes can hinge on subtleties, we need minds that can grasp subtleties to work that system. The basic limits on how complex the law can be without costs becoming unbearable are library sciences and lawyer smarts. The smarter the lawyers, the less we have to trade off flexibility for predictability.
3. It's fairer
There's probably a reason, once we dug up all the best, most subtle arguments, Party B won. When a party wins after the court has been exposed to all the arguments -- subtle and simple -- they are more likely to be the party we want winning then when a party wins after being exposed to only the most obvious arguments.
***
Anyways, I'm not claiming we should pay lawyers more or less or the same. Obviously the benefits of spending more on lawyering has costs. I'm just saying, the benefits exist in the first place. You can't unthinkingly dismiss the idea that spending a lot on lawyering is socially useful.
Sunday, December 2, 2012
Laughing Matters
This is a video of a naked wizard with a micro-penis being repeatedly tased by policemen. More on that later.
So the common law makes a lot of use of a concept called "reasonableness." I think lawyers like to pretend that this is a very precise term of art with different, clear meanings in different situations, but the fact is that is crap. There's been manful work in trying to convert "reasonable" into a more objective standard -- several federal appellate judges have tried to make "reasonable," in the context of the tort of negligence, mean something like "cognizant of the cost-justified level of risk," for example -- but the fact of the matter is we frequently throw jury instructions to people that basically say, "Do you think the defendant acted reasonably? Reasonable means acting in a manner that is..." followed by vague bullshit.
And that's all fine. The law is never going to produce outcomes with mechanical certainty, there is plenty of room for vague concepts. But why this vague concept? Is it unique? What are the outlines of this "reasonableness?" Well, we can all agree that there is behavior the bulk of people think is reasonable, there is behavior a majority of people think is reasonable, there is behavior people disagree about, and there is behavior a large or small majority of people think is unreasonable. For most actions (most things that are done, I mean, not most kinds of actions), there is probably majority agreement about whether the action is reasonable (in a single society, anyway). And there are probably a lot of cultural, factual, random, and very human factors going into that judgment. So great.
The problem is, that seems very similar to a lot of human concepts: compare thinking about whether stuff is "reasonable" to thinking about whether it is disgusting, funny, sexy, etc. But the law is really loathe to use those concepts.
Take funny. Funny comes up in the law. Whether something is satire matters for copyright purposes. Whether someone is joking could matter for contract purposes (IE, did he make an offer to contract or was it just a joke). But the law normally avoids engaging the question of humor directly: it just asks whether a reasonable person would have interpreted it as a joke or contract offer, it defines satire without reference to whether it is *successful* satire, etc.
More interestingly, we could use "funny" as a concept by which to judge actions, like we do "reasonable." We don't actually care if someone saw a tortfeasor commit an act of negligence and thought it was reasonable. We only care whether his actions were, in some objective sense, reasonable. It's an "objective" standard.
So take the video of the naked wizard with a micro-penis prancing around a music festival until cops tase him. Was that reasonable force? I don't know! But let's propose another standard: police are justified in using as much force as is reasonable or hilarious. I think reasonable minds could disagree about whether the cops acted in a way that was reasonable, but they clearly acted in a way that was hilarious. If you don't think a naked wizard with a micropenis being tased is funny then you, sir or madame, are a stick in the mud. And maybe we can throw on another check, and get a law like: "force is justified when it is reasonable. If it isn't clear whether it is reasonable, it is justified if it is hilarious. If it still isn't clear, it is not justified if it is horrifying." etc. Rather than trying to parse close cases of reasonableness, we can set up a hierarchy of vague notions our society cares about and go down the list until it isn't a close case anymore. I care more about living in a society where cops can't do things that are horrifying than I do living in a society where cops do things that are marginally reasonable to a random collection of jurors.
This may be a really dumb idea.
So the common law makes a lot of use of a concept called "reasonableness." I think lawyers like to pretend that this is a very precise term of art with different, clear meanings in different situations, but the fact is that is crap. There's been manful work in trying to convert "reasonable" into a more objective standard -- several federal appellate judges have tried to make "reasonable," in the context of the tort of negligence, mean something like "cognizant of the cost-justified level of risk," for example -- but the fact of the matter is we frequently throw jury instructions to people that basically say, "Do you think the defendant acted reasonably? Reasonable means acting in a manner that is..." followed by vague bullshit.
And that's all fine. The law is never going to produce outcomes with mechanical certainty, there is plenty of room for vague concepts. But why this vague concept? Is it unique? What are the outlines of this "reasonableness?" Well, we can all agree that there is behavior the bulk of people think is reasonable, there is behavior a majority of people think is reasonable, there is behavior people disagree about, and there is behavior a large or small majority of people think is unreasonable. For most actions (most things that are done, I mean, not most kinds of actions), there is probably majority agreement about whether the action is reasonable (in a single society, anyway). And there are probably a lot of cultural, factual, random, and very human factors going into that judgment. So great.
The problem is, that seems very similar to a lot of human concepts: compare thinking about whether stuff is "reasonable" to thinking about whether it is disgusting, funny, sexy, etc. But the law is really loathe to use those concepts.
Take funny. Funny comes up in the law. Whether something is satire matters for copyright purposes. Whether someone is joking could matter for contract purposes (IE, did he make an offer to contract or was it just a joke). But the law normally avoids engaging the question of humor directly: it just asks whether a reasonable person would have interpreted it as a joke or contract offer, it defines satire without reference to whether it is *successful* satire, etc.
More interestingly, we could use "funny" as a concept by which to judge actions, like we do "reasonable." We don't actually care if someone saw a tortfeasor commit an act of negligence and thought it was reasonable. We only care whether his actions were, in some objective sense, reasonable. It's an "objective" standard.
So take the video of the naked wizard with a micro-penis prancing around a music festival until cops tase him. Was that reasonable force? I don't know! But let's propose another standard: police are justified in using as much force as is reasonable or hilarious. I think reasonable minds could disagree about whether the cops acted in a way that was reasonable, but they clearly acted in a way that was hilarious. If you don't think a naked wizard with a micropenis being tased is funny then you, sir or madame, are a stick in the mud. And maybe we can throw on another check, and get a law like: "force is justified when it is reasonable. If it isn't clear whether it is reasonable, it is justified if it is hilarious. If it still isn't clear, it is not justified if it is horrifying." etc. Rather than trying to parse close cases of reasonableness, we can set up a hierarchy of vague notions our society cares about and go down the list until it isn't a close case anymore. I care more about living in a society where cops can't do things that are horrifying than I do living in a society where cops do things that are marginally reasonable to a random collection of jurors.
This may be a really dumb idea.
Wednesday, November 28, 2012
Digesting Justinian
My last post went after some dumb lessons people were drawing from ancient Rome. In the spirit of being constructive, here's a better lesson:
So for a long time Rome's legal system had these people called the jurists. If you were in a lawsuit you would go to a jurist and tell him about your case. Then he'd write a legal opinion applying the law to your facts (normally favorably), tell you exactly what to plead, etc. He wouldn't actually argue the case -- advocates like Cicero were for that -- but he'd come up with smart reasons for why you should win, and would grapple in smart ways with any novelties or tough questions of law your case presented.
If a Jurist was particularly smart, his decisions would sort of take on an air of gospel truth, and eventually become law. And this worked great. Over time the Romans developed the most important legal system in world history, still the basis of the law in dozens of countries, exactly this way. But as time dragged on more and more jurists kept writing. By the middle of the empire, when jurists stopped being a thing, there was a *lot* of gospel truth out there, written by a *lot* of well respected jurists.
So it became a library sciences problem. And, as they have so often in the past, the library sciences failed civilization. Romans just didn't have the publishing industry or the filing skills to make sure anyone -- much less hick lawyers out in the provinces -- had access to what every jurist said ever. So some lawyer in northern France would go on vacation in Spain and come back with a bunch of books he found (authentic? who knows!) from famous jurists. Suddenly, he's throwing out established legal "facts" no one in the entire province had ever heard before. Big problem!
So the emperor Justinian fixed all that. First, he basically pruned the list of people whose writings were considered "canon." Then, he went through the writings of the people who were left, cutting and pasting, arranging by topic, and throwing a lot of stuff out. Only what he left in counted as law. That became the digest, and it's the most important legal work ever in the history of animals.
So what can we learn from all this? Well, sometimes perfectly good methods for generating law, if left on too long, generate too much law. And sometimes going through all that big mess of law and throwing out the bad stuff and keeping the good stuff works wonders.
This has a huge bearing on our society. We don't have jurists, but we do have the common law, and the most unique characteristic of common law legal systems is that judges can make law. Full stop. When Americans talk about "the law," they aren't just talking about all the bills passed in all the legislatures, they're talking about every word every appellate judge has said since the 1700's. And that's a lot of law!
Fortunately, library science has kept up -- who knows where we would be without computers -- but while we are physically capable of managing all that law, you can't help but wonder if all the expense is worth it. When you hire a lawyer you are paying for him to subscribe to a service that collects and annotates all those cases, paying for him to search through all those cases, and paying for him to try to make sense of all of them and how they affect you. It ain't cheap! Multiply that by hundreds of thousands of lawyers and you get a lot of money being thrown after this stuff.
People are cognizant of this I think, though it's hard to separate complaints that the law is too complicated (in this complex a society, probably inevitable) from the complaint that there is just too much of the damn stuff. But even though people are aware of it, you almost never hear anyone propose Justinian's solution: let's just throw out a lot of the common law. People have codified the common law before, but that process, while radical, normally clarifies that anything not intentionally changed in the common law still matters, and normally allows for past common law to interpret the new code, so it's not as radical as what I am suggesting: put together some panels, decide what cases count and what don't, and move on, the vast bulk of American common law gutted from the system. Will it be a political process? Probably. Will it run into due process and contract clause problems if it tries to be retroactive? Yup. Is it still worth doing? I don't know! But it's worth thinking about.
I suspect your opinion on the indeterminacy of the law -- how capable the law if of "forcing" outcomes to legal cases on judges and juries -- affects how you think about the Justinian solution. If you think the law is pretty indeterminate, then all that common law floating around doesn't do much but complicate the process of judges making pragmatic policy decisions. If you think the law forces decisions on judges, then all that common law floating out there should make decisions more automatic and easy, since so many cases have already been addressed.
Short blogging, I an't good at it.
So for a long time Rome's legal system had these people called the jurists. If you were in a lawsuit you would go to a jurist and tell him about your case. Then he'd write a legal opinion applying the law to your facts (normally favorably), tell you exactly what to plead, etc. He wouldn't actually argue the case -- advocates like Cicero were for that -- but he'd come up with smart reasons for why you should win, and would grapple in smart ways with any novelties or tough questions of law your case presented.
If a Jurist was particularly smart, his decisions would sort of take on an air of gospel truth, and eventually become law. And this worked great. Over time the Romans developed the most important legal system in world history, still the basis of the law in dozens of countries, exactly this way. But as time dragged on more and more jurists kept writing. By the middle of the empire, when jurists stopped being a thing, there was a *lot* of gospel truth out there, written by a *lot* of well respected jurists.
So it became a library sciences problem. And, as they have so often in the past, the library sciences failed civilization. Romans just didn't have the publishing industry or the filing skills to make sure anyone -- much less hick lawyers out in the provinces -- had access to what every jurist said ever. So some lawyer in northern France would go on vacation in Spain and come back with a bunch of books he found (authentic? who knows!) from famous jurists. Suddenly, he's throwing out established legal "facts" no one in the entire province had ever heard before. Big problem!
So the emperor Justinian fixed all that. First, he basically pruned the list of people whose writings were considered "canon." Then, he went through the writings of the people who were left, cutting and pasting, arranging by topic, and throwing a lot of stuff out. Only what he left in counted as law. That became the digest, and it's the most important legal work ever in the history of animals.
So what can we learn from all this? Well, sometimes perfectly good methods for generating law, if left on too long, generate too much law. And sometimes going through all that big mess of law and throwing out the bad stuff and keeping the good stuff works wonders.
This has a huge bearing on our society. We don't have jurists, but we do have the common law, and the most unique characteristic of common law legal systems is that judges can make law. Full stop. When Americans talk about "the law," they aren't just talking about all the bills passed in all the legislatures, they're talking about every word every appellate judge has said since the 1700's. And that's a lot of law!
Fortunately, library science has kept up -- who knows where we would be without computers -- but while we are physically capable of managing all that law, you can't help but wonder if all the expense is worth it. When you hire a lawyer you are paying for him to subscribe to a service that collects and annotates all those cases, paying for him to search through all those cases, and paying for him to try to make sense of all of them and how they affect you. It ain't cheap! Multiply that by hundreds of thousands of lawyers and you get a lot of money being thrown after this stuff.
People are cognizant of this I think, though it's hard to separate complaints that the law is too complicated (in this complex a society, probably inevitable) from the complaint that there is just too much of the damn stuff. But even though people are aware of it, you almost never hear anyone propose Justinian's solution: let's just throw out a lot of the common law. People have codified the common law before, but that process, while radical, normally clarifies that anything not intentionally changed in the common law still matters, and normally allows for past common law to interpret the new code, so it's not as radical as what I am suggesting: put together some panels, decide what cases count and what don't, and move on, the vast bulk of American common law gutted from the system. Will it be a political process? Probably. Will it run into due process and contract clause problems if it tries to be retroactive? Yup. Is it still worth doing? I don't know! But it's worth thinking about.
I suspect your opinion on the indeterminacy of the law -- how capable the law if of "forcing" outcomes to legal cases on judges and juries -- affects how you think about the Justinian solution. If you think the law is pretty indeterminate, then all that common law floating around doesn't do much but complicate the process of judges making pragmatic policy decisions. If you think the law forces decisions on judges, then all that common law floating out there should make decisions more automatic and easy, since so many cases have already been addressed.
Short blogging, I an't good at it.
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