In a recent post, I suggested that the media's portrayal of law is perhaps more important to the fostering or hindering of legal legitimacy than the law itself. I also re-iterated the AACSB requirement that students understand:
Here is an exercise in understanding political, legal and social contexts. The staff of the Jimmy Kimmel show interviewed people on the street asking them about their support for "Obamacare" versus "The Affordable Care Act." Of course, they are the same law. But removing the "Obamacare" label, makes the law more palatable. Although not a scientific study, this exercise supports the notion that the way the law is presented in society, whether through the media or the political system or both, affects the public's perception of the law.
Consider the answer to the question: "Do you believe that Obamacare will lead to gun prohibition?"
Click on the image below to see the video from a different source:
Our legal system depends to a great degree on the voluntary compliance of the citizenry. And the voluntary compliance of the citizenry depends to a great degree on the law's legitimacy - or at least the belief that the law is legitimate. That belief is based largely on the appearance of legitimacy created by the system's outward manifestations (to borrow a concept from agency/apparent authority law). Last week, this blog featured a video from Judge Posner talking about judicial decision-making. In it he says that while judges may decide cases one way or another based on political ideology, they can't say that they do. So they dress the justifications for their decisions up in fancy constitutional theories. Those "fancy theories" serve to legitimize the decision. That is why we teach about Legal Reasoning and Stare Decisis and we refer to quotes like being "a nation of laws, not of men" etc. Although we know that all these institutional concepts leave enough wiggle room for judicial decision making to be based on ideology, we wink and stammer and continue to talk about law being insulated from politics.
Certainly, the judicial system is a different political animal from a legislature. Everyone expects legislatures to be political. But, so far, we have maintained the all important appearance of legitimacy in the courts. And that has a tremendous impact.
Here is Justice Breyer talking about the importance of legitimacy:
Here is a clip from the movie "The Man of the Year." The scenario is that the nation is voting for the US President and, for the first time, employing a nationwide electronic voting system designed by a company called Delacroy. On election day, one of the programmers has discovered a programming glitch that is resulting in the votes being miscounted. She tries to tell someone and gets a talking to from Delacroy's general counsel.
(Note: This is a YouTube clip. If you find it useful, download it ASAP as it is likely to soon disappear subject to a copyright notice. We wouldn't want any of that learning going on for free!)
This political season gives us another opportunity to evaluate the effectiveness of law in shaping conduct. According to the Connecticut Post, Christina Ayala, the Democratic candidate for a seat in the Connecticut General Assembly from the city of Bridgeport was arrested and charged for a recent incident. According to police, Ayala, who was driving with two children in the car (ages 7 and 13) ran a red light, smashed into another vehicle rendering it a total loss, and then fled the scene. Ayala issued a statement expressing regret for her "mis-judgment."
One might think that this incident could effect Ayala's chances of getting elected. However, in a follow-up story, the Post reports that her political aspiration are likely intact. Expressing a view apparently held by many, Ayala's father intimated that the other driver should have been more vigilant. "This is Bridgeport. People take stop signs, they take traffic lights every day."
Apparently, ignoring public safety laws is common in Bridgeport, destroying the very reason for the law's existence. Instead of travelling the streets secure in a social contract that others will obey the law, you must conduct yourself as if this is the Wild West and everyone is free to make up their own rules. And soon, a person raised in and a participant in this environment will be elected to the legislature, ostensibly to make laws that everyone should feel free to ignore.
In teaching law to undergraduates, I had taken as a "given" that adherence to law is a universal value. Now I see that I have to consider the effect of geographic and cultural differences on student understanding. Some students may come from places where the law is commonly ignored.
According to Justice Scalia's comments in the video below, "Natural Law" is whatever the majority says it is. So, if the majority decides that same sex marriage (for example) is not to be allowed, then that is what "nature" dictates. It follows, then, that if the majority votes that public corporations should not have the same free speech rights as natural persons, then that should be law, despite constitutional protection (as interpreted by the Supreme Court). In reading Justice Scalia's comments during oral arguments and his decisions, one would conclude that Justice Scalia fancies himself an historian. How many times in the course of American history has "natural law" been used to justify denial of basic rights to unpopular minorities? In a democracy, is there not a need for an institution that protects against the tyranny of the majority?
Justice Scalia also queries what qualities of judges make them more qualified to determine what the law is than the democratic majority. This video can be a good device to raise the counter-majoritarion difficulty for class.
