On
the Nature of the Law
April
25, 2021
I used to be a
lawyer. I have a law degree, and my legal training and experience are still
with me though I no longer practice law and am no longer a member of my state’s
Bar. After many years as a lawyer I burned out badly on the practice law, but I
can still do legal analysis, which was always my strength in legal practice in
any event. I still find the law to be interesting and important, though I
certainly will never practice it again. I have been thinking a good deal
recently about just what the law is and is not, what it can do and what it
cannot do. I don’t know that practicing lawyers think about it much, but those
are foundational questions that any in depth understanding of the law must address
and answer. I want here to consider just what the law is and what it can and
cannot do. Those are pressing questions today because we face such profound
issues of police reform and systemic racism in this country. We must understand
to what extent the law can resolve those issues and to what extent it cannot.
What is the law?
A couple of online definitions of law help us here. The website google.com
defines law in the sense I am using it here are “the system of rules which a
particular country or community recognizes as regulating actions of its members
and which it may enforce by the imposition of penalties.” The website
merriam-webster.com defines law in this sense as “a rule of conduct or action
prescribed…or formally recognized as binding or enforced by a controlling authority.”
A law then is a rule of conduct with enforcement authority behind it. In the
United States it comes in numerous forms. There are laws enacted by
governmental authorities from the local to the state and national levels. There
is also what we call common law (in every state except Louisiana) which
consists of a body of legal concepts and rules established not through
legislation but through court decisions. Criminal law is always statutory.
Civil law may be either statutory or common. Criminal law is enforced through
the enforcement of legal penalties, usually prison sentences, imposed on those
found to have violated a criminal law. Civil law generally deals with
judgements between individuals that may be enforced through various legal means
of making the provisions of a judgment a reality.
There is one
underlying fact about all law that I fear too many Americans do not understand.
All a law, whether criminal or common, can do is establish a standard of
conduct that a particular jurisdiction considers to be the minimum level of
acceptable conduct. Conduct that falls below that level constitutes a crime in
the case of criminal law and results in the imposition of legal penalties,
usually a term of imprisonment. Violations of civil law can result in a
judgment, usually but not always for the payment of damages, against a party to
a civil law case. All law establishes only that minimum level of acceptable
conduct. Behavior that falls below that level has legal consequences, or at
least it can have those consequences. The law does not specify ideal conduct or
even desirable conduct beyond that establishment of legal minimums. The aim of
the law is not to make people behave well, it is only to stop people from
behaving unacceptably badly and to impose either criminal or civil consequences
on them when they do behave unacceptably badly. The law does not and cannot
create an ideal society even when everyone obeys it. It only seeks to prevent
behavior that a jurisdiction considers unacceptable by imposing legal
consequences on those who behave unacceptably.
At the most basic
level then the law is a set of rules of behavior enforced by some authority
authorized to enforce them. There is however another question about the nature
of law that has agitated legal scholars for a long time. The conventional
wisdom about law used to be that each law has a set meaning that doesn’t change
in response to the facts of any particular case or its reading by any
particular judge. In this way of thinking about the law all a court has to do
is apply those set meanings to the case before it in a rational, logical way to
reach the one and only correct result. To this way of thinking a judge could be
more or less competent in rationally applying the law to a case at issue, but
the judge’s character, beliefs, convictions, and biases are irrelevant. This
view sees the law as more or less mechanical. Rationally apply the one meaning
of a relevant law to the case before you to get the correct outcome of the
case. To this understanding of the law that’s about all there is to it.
In more recent
times a different view of the law has become more prominent. This view sees the
law as anything but fixed, clear, and rational. The law always requires
interpretation. The outcome of any case is not a logical certainty. Different
judges will understand and apply the same law differently. To this
understanding of the law who the judge in a case is makes, or at least can
make, an enormous difference. The Judge’s character, beliefs, convictions, and
biases play a crucial, perhaps even determinative role in the outcome of a
case. This view certainly seems to be more in tune with the way the law
actually works than the older, more rationalistic view is. A couple of
realities will illustrate the point.
In recent years
we have seen Republicans in the White House and in Congress pack the federal
courts with judges they deemed to be sufficiently conservative. The current
Democratic administration, with its razor thin majority in the Senate, intends
to correct what it perceives to be an ideological imbalance by putting as many
judges on the federal bench as it can who it deems to be sufficiently liberal.
Clearly politicians of both parties perceive that who the judge is in a
particular case makes a big difference. Every judge brings his or her full self
to the task of judging. We all have our political, economic, and sociological
leanings. Those leanings can play a huge role in how a judge decides a case.
One example of
that reality is the development in federal constitutional law of a personal
right to privacy. The phrase “right of privacy” does not appear in the US
Constitution. However, in the case of Griswold v. Connecticut, 381 U.S.
479 (1965), the US Supreme Court held that the Constitution nonetheless creates
such a right. The case involved a Connecticut law that prohibited married
couples from using artificial birth control drugs. The case thus involved a
conflict between the value of personal liberty and the value of governmental
regulation of citizens’ behavior. A majority of seven justices decided to favor
personal liberty. That majority held that the Constitution protects “marital
privacy” even though that phrase does not appear in the Constitution. The
opinion of the court never made it very clear just where or how the
Constitution creates such a right, but it nonetheless held that it does. Two
justices dissented. They contended that because the Constitution does not
mention privacy there is no basis for the court to read a right to privacy into
it. These two justices appear to have valued government regulation of behavior
over personal liberty at least in this case. Different justices thought very
differently about the case. Who a particular justice was made all the
difference.
My own experience
in court confirms for me that who the judge is can make all the difference. For
much of my legal career I practiced personal injury law, almost always on the
defense side. Both we defense lawyers and the plaintiffs bar knew that there
were plaintiff’s judges and defense judges. Sometimes a case would be assigned
to a judge who one side or the other thought to be so biased against them that they
exercised their right under Washington state law to have that judge removed
from the case. Who the judges are can make a big difference in a case on appeal
too. I’ll use one case that I tried as an example. I’ll try to keep this
discussion brief.
Back in the 1980s
I tried the case of Campbell v. ITE Imperial Corporation. It was a product liability case. An employee
of the Snohomish County Public Utility District had been seriously wounded when
he reached out to clean a piece of electrical equipment that had not been deenergized.
He sued the manufacturer of the piece of equipment, ITE Corporation, which I
represented at trial. I argued first of all that the piece of equipment that my
client had manufactured was not unreasonably unsafe (the legal standard in a
product liability case in Washington state) in the context of work by
professionals on high voltage electrical equipment. I also argued that the
piece of equipment was not the cause of the plaintiff’s injuries. His
supervisor on the job on which he was injured sent him to clean a piece of
equipment that was not on the original work order for the job and without going
through the standard procedures for making sure that a piece of equipment
someone was to work on had been turned off. The jury agreed with that argument
and returned a defense verdict.
The plaintiff
appealed directly to the Washington State Supreme Court. I had left the law
firm I had been with when I tried the case by the time the appeal came up for
argument. Another lawyer from that firm argued the case before the Supreme
Court. In a divided opinion the majority of the Court held that there was
insufficient evidence in the record to support the trial court giving the jury
an instruction on the law of what’s called subsequent superseding cause.[1]
A minority of the judges on the Court, in a separate opinion, listed all of the
evidence I had gotten into the trial court’s record and couldn’t figure out how
the majority could say there was no such evidence in the case. The state
Supreme Court reversed the trial court’s defense judgment. It remanded the case
to the trial court for a retrial. I understand that the parties then settled
the case.
The conclusion is
unavoidable, I think, that the majority in that case reversed the judgment of
the trial court not because the law dictated that result, which it certainly
did not. The majority reached its decision because those judges favored the
injured plaintiff over the corporate defendant. To rule in the plaintiff’s
favor the majority had to disregard all of the evidence of subsequent superseding
cause in the record of the trial and make the totally unsupported claim that
such evidence wasn’t there. The inclination of a majority of the Court to favor
an injured individual over a corporation decided the case. Other judges may
well have reached a different conclusion.
That’s how the
law works in actual practice. Who the judge is can make a significant
difference in the outcome of a case. Perhaps we’d like to think that the law
works the way scholars used to say it works, that it is perfectly rational,
that there is only one correct result in every case, and that every competent
judge will reach that result and no other. Any lawyer with any amount of trial
experience will tell you however that that is not how it works. The law simply
is not as clear and firm in actual application as we’d like it to be or even
believe that it is. Because it is human the law is not perfect. Because they
are human judges are not perfect. Each judge reacts to the case before her with
all of her experience, beliefs, and biases. It cannot be otherwise. The law is
therefore fluid and subject to being interpreted in many different ways. That’s
why those politicians work so hard to put judges they like on the federal court
bench.
We have asserted
that all the law can do is set a minimum standard of conduct and provide legal
consequences for people who do things that do not meet that standard. Another
example very much in the news these days will illustrate that point. The
history of the United States is rotten to its core with racism. Everything is
legal that is not legally prohibited, a fact that made it possible for racists
in both the south and the north to create strictly segregated societies in
which white people were privileged and Black people were oppressed. It took
nearly one hundred years after the abolition of slavery for the federal
government to enact laws that sought to enforce the Fourteenth Amendment, laws
that make at least some forms of racial discrimination illegal. President
Truman integrated the armed forces in 1947. The United States Supreme Court
ruled in 1954 that racially segregated public schools are unconstitutional even
if they are supposedly equal. Only in 1964 did Congress pass the Civil Rights
Act of that year. Only in 1965 did Congress pass a law designed to end racial
discrimination in voting, the Voting Rights Act of 1965. Those laws establish
legal minimums of acceptable conduct with regard to race relations and provide
for various penalties in cases where the laws are violated. Those laws are
important, but they can only do what any law can do. They establish those legal
minimums. As important as that legal function is, it does not end racism. It
doesn’t even end racial segregation, for states, businesses, and individuals
are immensely creative in finding ways to discriminate while not technically
violating the law. Today the state of Georgia, for example, has enacted a
voting law the obvious purpose of which is to suppress the vote of the Black
citizens of that state. The proponents of that law think that it can survive
constitutional and legal challenge in court because they say that its purpose
is not to discriminate against anyone, its purpose is to improve election
security. It remains to be seen what the courts will do with that law. I hope
and pray that it will be declared invalid, but that result is far from certain.
Because all a law
can do is establish a legal minimum of conduct, and because the outcome of any
case in court is not certain, establishing racial justice in the United States
is not primarily a matter of passing new laws. Some new laws may be necessary,
laws reforming police procedures for example. But laws will not end American
racism. They can’t. Racism is only marginally a legal issue. It is much more a
matter of the head and the heart, of individual attitudes and institutional
dynamics, than it is a matter of the law. Law can regulate behavior to some
degree, but it cannot change hearts and minds. Those of us who abhor our
country’s history and present reality of racism must do much more than pass
laws. We must change hearts and minds. Laws won’t do that. I pray that other
means of defeating racism will.
[1]
You’ll find the state Supreme Court’s opinions at Campbell v. ITE Corp.,
107 Wn. 2d 807, 733 P. 2nd, 696 (1987).
No comments:
Post a Comment