Legal Ethics and Reform

Is a Minimally Acceptable "Rule of Law" Found in the United States?

At the outset, it must be noted that the United States has in place the two most important outward manifestations of a functioning "rule of law": (1) codified (i.e., written) laws, which consist of statutes, regulations, and court opinions and (2) a functioning court system that operates in an open, standardized way. However, a deeper look is needed.

When analyzing a country's legal structure there are about a dozen key questions which must be asked and answered satisfactorily before it can be said that country has a minimally acceptable "rule of law". These questions cover the making, promulgating, and enforcement of laws in a society. Before proceeding it is best that these questions are set out with a brief explanation of why each question is important:

#1 Are the laws (and/or changes to law) written clearly in language accessible and intelligible to the average citizen of average intelligence? This is important because citizens have to feel confident that they can easily understand the law when reading it.

#2 Are the laws of manageable length such that it is not a major burden for the average citizen to read the entire law? Obviously voluminous codifications of law are very time consuming if properly read and studied. Therefore, codifications of law have to be of limited length.

#3 Are the laws complete in one writing? This is important so the citizen can go to one place to get a complete knowledge of the law. Making citizens go to multiple writings can be confusing.

#4 Are the laws fixed and unchanging (or if occasionally changed are these changes controlled as to frequency) so that the citizen has a chance to learn the law once and feel confident the law will remain constant for a considerable time into the future? The need for fixedness in the law is fairly obvious. No citizen can function efficiently in a society where the laws that govern his activities are in flux. If law changes frequently the citizen will find himself spending precious time reading and rereading the law in order to determine the current state of the law rather than pursuing his occupation and living his life.

#5 Are the rich and the poor treated equally under the laws and under the processes which the law establishes to settle disputes? Obviously laws that have special provisions that favor the rich or well connected are not fair, but just as unfair is a convoluted legal process which favors those who can afford high-priced counselors to guide them through the process while citizens of limited means struggle to obtain justice.

#6 If an average citizen runs afoul of the law or has a dispute with another citizen over a legal issue, is the dispute resolution process prompt, transparent, easily understood, and cost efficient? These are important if the average citizen of limited means is going to be able to get through the process at a reasonable cost and with a reasonable chance of being treated fairly.

#7 If the society has a multi staged way of making law, is there a blending or combining function, after the various stages have acted, to bring all these writings into an official unified whole such that the average citizen has a single simple writing to read which gives him the totality of the law he must know to function? Obviously if a society has multiple sources of law it is unfair to the citizen if the society fails to provide him with an integrated clear, single source for learning the law. If the society leaves the citizen with multiple writings, unintegrated and unrefined, the citizen will be forced to seek expert advice, at perhaps great cost, to get an integrated, though nevertheless unofficial, synthesis of all the law.

#8 If the country has a dominate religion, are the laws in that country compatible with the important precepts of that dominate religion? Obviously if society's codified law attempts to counter the values of the dominate religion, the seeds for disrespect of the codified law are laid and in time the secular government will be overthrown at the ballot box or by force. If the ballot box is used to install different leaders, those leaders must be able to return the codified law to compatibility with the religious precepts; if these leaders do not, or cannot, the government will eventually find itself overthrown by force.

Obviously no legal system can hope to meet all these ideals perfectly. For example, the rich will always find a way to gain advantage in both the making of law and the enforcement of law, and law making systems will usually contain some "checking mechanism" within them which necessarily delays the enactment of and adds complexity to final codification of any law. Additionally, modern society is full of technology and this technology necessarily creates a need for some complexity in the law. Since no legal system can hope to be completely free of flaws, the goal has to be a system that is relatively free of flaws.

In modern times, specialization has invaded many areas of life; some would argue that knowledge of the law and legal processes should also involve specialization. These people would say that people should have to pay to gain knowledge of the law and understanding of legal processes. Of course this argument does not consider the difference between voluntary acceptance of specialized help versus the compulsory acceptance of specialized help. At $2.50 a loaf a consumer accepts the baker's offer of bread, but at $25 per loaf the consumer may logically choose to become his own baker or choose to stop eating bread completely. Such choices are not available to the citizen who wishes to know the law affecting his activities and/or needs help with a legal process, that citizen can't effectively opt to learn all the law by himself. More difficult would be the decision to represent himself in a legal proceeding. The final option, the total opt out option, is absolutely unavailable. No society can allow people to opt out of the legal system in the way a citizen can choose to give up bread completely.

With the forgoing in mind, the American legal system must now be examined with full awareness that perfection is not possible:

1) Are America's laws written in a language, format, and style that are clearly understood by the average citizen? Even the briefest review of the court opinions, statutes, and regulations issued by the state and federal governments on any topic shows that laws overwhelm to the average American. The citizen is faced with two less than desirable choices (a) hire a lawyer to go through the mass of written law so that lawyer is in a position to answer questions that might occur to the citizen or alternatively instruct the citizen about how to organize his affairs to be compliant with the law. Or (b) carefully read the popular and speciality press hoping that the authors of these articles have covered all the points which might affect the citizen's affairs. Rich people will generally opt for (a) while people of more average means must settle for (b). In any event, when the law governing a given topic are housed in perhaps six different codifications or writings there is no way an average citizen can read and fit it all together successfully. (The six sources of legal codifications and writings are state legislators, state regulators, state courts, federal legislators, federal regulators, and federal courts.)

2) Are the writings which comprise the law in a given area of manageable length such that the average citizen can read all the law he needs to know in a reasonable length of time? Again since perhaps six entities have their fingers in the law making process, the size of the writings becomes quite large as one body tries to adjust, amplify, and qualify the legal writings by the other five law making entities.

3) Are America's laws complete in one writing? Again since at least six entities have their fingers in the law making process the number of writings is equal to the number of governmental entities that have chosen to address the given area of life. For instance, a small brokerage firm that is doing business in twenty states has responsibility for knowing not only what the courts, legislature, and regulatory bodies in each of the states has written but must also know what the federal courts, regulators and Congress have written. The total is 63 different governmental entities. In addition the government has created self regulatory organizations, such as the NYSE and NASD, which have the power to issue additional regulations. So the grand total for this small broker dealer is 64 or 65 entities. The effect is a patchwork of laws that only an expert can hope to unravel. If this patchwork problem existed in only one or two areas of life perhaps, it would be acceptable, but unfortunately this problem exists in nearly every area of the law.

4) Are American laws relatively fixed and generally unchanging? Unfortunately the opposite is true. With multiple governmental bodies ready, willing, and able to generate more law, the temptation seems to be too great. Legislative bodies act to demonstrate to the voters that are willing to be tough. Regulators like to close the barn door after the horse has fled, when a wrong is done the regulators love to change regulation to address the problem. Their work effecting the innocent and guilty alike. Courts love to demonstrate their "brilliance" by writing opinions that supercede both the legislators' and regulators' work. All this is happening one after the other (ie seriatum), so the different codifications or writings come into being at different times. The net effect is constant change.

5) Are rich and poor Americans treated equally when laws are made or courts operate? Unfortunately the people who make laws are also candidates for office, and candidates for office need campaign contributions, so law makers are necessarily more attentive rich people who can arrange big contributions and less attentive to poor people who can't arrange contributions. In addition, the complexity of the court process requires that litigants have representation, and representation is expense. A simple case will cost each litigant $10,000 to $20,000; cases with more complex fact patterns will cost each litigant $100,000 plus. With numbers like these, it is very easy to see why rich and poor do not have equal effective access to America's courts.

6) Do Americans have a fast, cost efficient, and just court system to hear their cases? Unfortunately America's courts are slow, expensive, and the results are not always predictable because the quality of the legal representation has a disproportionate effect on the result. Rich people who can afford excellent representation generally get better results than one might predict. While poor people have to settle for less skillful advocates representation and/or represent themselves, on a pro se basis; they get fewer favorable results than one might expect.

7) Does America have an official source which summarizes all the law in easily understood language? Unfortunately America does not have such a authoritative source. Even rich people who have lawyers that review all the law and prepare "summaries of the current state of the law" in a given area can only say they have an unofficial document. Poor people can only depend on press accounts and editorials as to the current state of the law. There are expensive services which attempt to summarize all the law on various subjects, but these services are written in legalese and indexed for lawyers.

8) Does America's dominate religion, which is Christianity, enjoy a certain deference when law makers are considering laws that intersect with key traits of that religion? Unfortunately law makers, particularly judges, are actually hostile to the precepts of America's dominate religion. The list is well-known homosexual marriage, abortion, public display of the ten commandments, prayer in school, etc.

With the above analysis in mind, it is time to rate the quality of the "rule of law" in America. First it must be again acknowledged that America does have codified or written laws rather than simply the oral pronouncements of some king or potentate. Second America does have courts that open regularly, accept petitions from plaintiffs, empanel jurors, let witnesses testify, and arrive at decisions. So it would certainly be wrong to assert that America has no "rule of law" at all. As pointed out above, the quality, quantity, consistency, costs, predictability, and complexity of these laws and processes are problematic. So what is the bottom line. As a general proposition it can be said America has a functioning "rule of law" particularly for those with extensive financial resources. However, once the details are studied, major questions arise particularly when the legal needs of middle or lower class people are considered.

Since rich people and large corporations are able to obtain justice under almost any governmental system, the way a society's laws and legal processes treat middle and lower class people has to be the true measure of legitimacy. Under this standard, America's legal system fails to meet a minimally acceptable "rule of law" standard.

Two additional ideas:

(1) Is there a societal advantage to having such an imperfect, incomplete "rule of Law" in America. This question must always be asked when a major dysfunctional process is discovered. Most such dysfunctional processes get changed unless there exists some powerful group(s) which is benefitting from its continued existence. Consider that: lawyers receive extra income because the rich must repeated pay to get advice about the meaning of the law and/or have their disputes litigated, law enforcement officials are confident they can intimidate anyone because the no citizen can possible be familiar with all aspects of all law that he is suppose to know and follow, and finally judges, legislators, and regulators benefit because citizens are constantly having to come forward hat in hand asking for some special provision or modification to the law to provide relief or advantage.

(2) What revision to America's legal system would improve the quality of the rule of law. Obviously the law needs to be generalized, made more intelligible to average people, and reduced in size. This means great amounts of detail and special exceptions needs to be removed from the written law. It also means that enforcement of the law will require greater degrees of proof because certain behavior will have to be shown to violate a general principle rather than some specific requirement or detail proscription.

Perhaps an example is important. If there is a law that says "no mutual fund may take a order initiated after 4PM Eastern time" is very detail and proving a violation is easy; whereas a law that says "a fiduciary with co-mingled funds under management or control may not perform any act which disadvantages one beneficiary vis a via any other beneficiary" would require more proof to show that taking orders after 4 PM cause a disadvantage to some and a benefit to others. With general laws the decision makers at a judicial hearing that makes the decision as to guilt suddenly has more latitude.

To get to more general writings that are clearer and briefer, the courts, regulators and legislators are going to have to work with English majors, and not lawyers, to find the right wording. The need to compress current writings from the courts, legislators, and regulators into complete, simpler, combined writings is going to require cooperation on the part of the three law making groups. Once the compressed, simple writings are available the courts, legislators, and regulators are going to have to sign off saying that they each accepts this compressed writing as "the law", and, most important, allow it to take precedence over their own work. Finally, in the future, the trial courts will look to the simple, compressed writing as "the law". Obviously this whole subject needs greater analysis than can possible be given here, but it should be remembered that France, Germany, Spain, and Italy operate with such simple general laws. So America knows it can be done, the task is to find a way to do it in America

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