Why law?

February 13, 2018

Governments, including democracies, make laws and rules. Lots of folk spend lots of time telling us we don’t need regulation, or at least we need lots less. Laws and rules are restraints on our freedom to do what we want. And most people are honest. So why do we need law?

Let me tell you about a janitor at Albany Law. John DeMateo was very much beloved. Our gymnasium is named for John. He was always ready to lend a helping hand, often going way out of his way to be helpful. He hired students for the maintenance staff, giving them ways to earn the money they needed to get through their schooling. During breaks, especially the summer break, John used to put out an urn of coffee strictly on the honor system. Put in a quarter and take a cup. No one was watching. What John told me was fascinating. He never had any problem with people helping themselves to free coffee. I’m sure some people must have paid a little later when they got that quarter. But they were honest. However, and this is a big but, every summer someone figured out where he kept the money. It only took one. John still put the urns out but he told me that it barely paid his expenses. The vast majority of us were honest, but one dishonest person changed everything.

Law is for the few people whose unscrupulousness can make life miserable. I’ve heard a Harvard dean claim that a code of professionalism is better than law because scientists will follow it. But if there is any significant profit to be made from being unscrupulous, someone will follow that path too. Business tells us that most businessmen are honest. I’m sure that’s true. But how many unscrupulous business people does it take to make life miserable for the rest of us – especially when the unscrupulous, who cut corners that endanger the rest of us, can brag about how cheap their stuff is. Cheap indeed. And that puts pressure on everyone else. It puts pressure on other businesses, especially when it’s hard to find out who’s doing what. How easy is it for us to know that the workers who make our beloved running shoes are treated well? Or to understand the medical implications of all the stuff that goes into our food. Competition isn’t a level playing field. Many regulations are appreciated by business because they squeeze out the unscrupulous and make it easier to treat customers well and still stay in business. Generic chants about regulation are just sloppy reasoning that hide serious issues.

So when Trump and his cabinet officers tell you they’re going to weaken or eliminate regulations, does that mean everything is going right so we can trust what people are doing? Or does it mean a green light for those who are going to take advantage of non-enforcement to do us harm? Most people want to treat others well, but the few that don’t care will make life difficult for the rest of us. Sloppy language covers serious mistakes.



Is Trump responsible for violent rallies? Law says probably not.

August 29, 2017

The Hill asked me to analyze the likelihood that the president could be held legally responsible for the violence at demonstrations. For my analysis click here. As the saga of Jones v. Clinton and the subsequent impeachment made clear, high profile cases can have unpredictable results.

What should we expect of law, judges and judicial nominees

April 8, 2017

People often ask me whether something is constitutional. I often respond by asking what they mean. Our Constitution is only as good as the people handling it. Beyond that it’s a piece of paper, that bends, folds and tears. The Founding Fathers often referred to constitutional language as parchment barriers.

All law is about prediction. What will the Court, or a judgment do and will the president or the governors enforce what they decree? The 13th, 14th and 15th Amendments became meaningless for decades after President Hayes removed the troops from the former Confederate states. Brown really meant something when Eisenhower sent the troops to Little Rock.

Sure, I think the Constitution should mean more; it should protects us. But I have only the power of argument. When I argue in the courts, I don’t just tell them what I think is right – I argue in ways I think will influence the court I am addressing. I learned that lesson years ago after writing a brief on behalf of several political scientists to explain an aspect of the 1st Amendment. We were only appearing as friends of the court, but our views carried the day on the Court of Appeals. One of the judges wrote that his reasons were well stated in our brief. Of course I thought that judge was a genius. But though we won on the Supreme Court, the grounds of victory had nothing to do with our brief. Plaintiff’s attorney crafted his argument to fit the specific concerns of the justices who would support our position. We eked out a 5-4 victory but when those justices left the Court, it was quietly overruled. It all depends.

Republicans pronounce that sympathy is no part of law, but then where is justice? They claim bound to follow only ancient dictionaries to tell us how two-century old language should be read now, assuming the ancients wouldn’t lift a finger about our problems. Or they claim to rely on precedent. But precedent isn’t self-justifying. We distinguish the authority of Brown v. Board of Education from the  horror of Dred Scott or Plessy v. Ferguson because Brown accurately stated enduring values and the others did not. That’s a judgment about decency and has nothing to do with balls and strikes. This is not a baseball game; language interpreted without decency and humanity slanders the people who wrote and adopted it. Nominees hiding behind precedent hide their heartlessness behind smokescreens and deny the obvious, that their values, or lack of them, will determine how they see and shape the law.

Gorsuch could not tell you that because his sense of good and evil are far from what most Americans would accept. So he and his supporters rely on empty jargon about precedent. But judges exercise judgment about precedent just as they do about language. That’s why we need judges with good judgment, not judges claiming to be logicians with computers who derive answers automatically, unthinkingly and without reference to consequences. That refusal to care is the bastardization of law. When Justice Blackmun protested a decision that left no one  responsible for the helplessness of a small boy, he wrote “Poor Joshua” with understated eloquence. Poor Joshua indeed. Law, like the Tin Man in the Wizard of Oz, needs a heart.

— This commentary was broadcast on WAMC Northeast Report, April 4, 2017.

The Threat of Self-Styled Armed Militias

May 20, 2014

Some of us remember having to sign loyalty oaths. In the language of the U.S. Supreme Court, one had to swear that he or she had not “advocate[d] the overthrow of government by force, violence, or any unlawful means.” That included the overthrow of “the Government of the United States or of any political subdivisions.” In the 1950s everyone from barbers to professors had to sign those things and even cafeteria workers got fired on mere suspicion of disloyalty, the absence of proof notwithstanding.

Of course it was political. Senator McCarthy famously attacked President Truman and many of the people in the cabinet as disloyal. Republicans attacked Democrats and liberals as if they supported a Communist invasion. It was a campaign of character assassination. Charges were brought without facts that prosecutors were willing to reveal until the Supreme Court pointed out that it had the obligation to insist on fundamental due process like the right to see the charges and confront witnesses. But at least, at some level, however misguided, it was about patriotism.

Now, a group of armed self-styled militiamen blocked the federal government from charging Cliven Bundy the fee for grazing his cattle on federal land. Then they took their weapons to a closed federal canyon, to open it by force for use by ATVs. They bluntly deny the authority of the federal government. To make it worse, prominent Republicans called Bundy’s refusal to pay for grazing his cattle on federal land, and the armed intervention of his militia supporters, “patriotic.” Read the rest of this entry »

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