Oughta be a Law!

Thought Provoking Law Quote: Hermione Granger

The popular Harry Potter book series featured the exploits of a group of teenage wizards as they navigate the travails of life, friendship, evil forces, and magical education at the Hogwarts School of Witchcraft and Wizardry. An ongoing theme throughout the series focuses on the forces of dark magic and the danger presented to society by a particularly powerful dark wizard known as Voldemort. Harry and his friends, including the very bright Hermione Granger, have discovered that Voldemort’s presence was once again threatening danger to society and they had reported it to the appropriate governmental authorities. However, in order to avoid a public panic, the government has not merely ignored their entreaties to take action, but has engaged in an aggressive campaign to discredit the young wizards and their statements. In this setting, the following exchange takes place between Hermione Granger and Minister of Magic Rufus Scrimgeour:

"'Are you planning to follow a career in Magical Law, Miss Granger?’ asked Scrimgeour. ‘No, I am not,’ retorted Hermione. ‘I’m hoping to do some good in the world!'"

From her point of reference in the eternal struggle between good and evil, Hermione conceptualized law as an impediment to the accomplishment of good.  In her eyes, law was bad and to “do good” one had to do something other than law.  Considering law through Hermione’s eyes introduces us to the complexity of the question, “What is law?”

Thought Provoking Law Quote: Alan Dershowitz

It has often been said that a trial is a search for truth. However, is there only one truth in a complex dispute? In 1995, former NFL star O.J. Simpson went on trial for the murder of his ex-wife and her friend. The criminal trial was broadcast on TV from the courtroom and captivated the nation’s interest. The “search for truth” was placed front and center in the American conscience. Harvard law professor Alan Dershowitz describes the scene in his article, Is a Criminal Trial a Search For Truth?:

A review of the trial transcript reveals that this phrase was used more than seventy times. The prosecutors claimed that they were searching for truth and that the defense was deliberately obscuring it. . . . The defense also claimed the mantle of truth and accused the prosecution of placing barriers in its path. And throughout the trial, the pundits observed that neither side was really interested in truth, only in winning. They were right – and wrong.

Simpson was acquitted of the criminal charges against him by the jury. The victims’ families also filed a civil lawsuit against Simpson for wrongful death of their loved ones. In the civil trial that took place immediately following the criminal trial, the jury found Simpson liable for the deaths. One incident, two trials, and two different “truths.”

Thought Provoking Law Quote: Anatole France

Nineteenth-century French author Anatole France had this to say of the equal application of law,

“The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.”

While the rules in civil litigation may be the same for both parties, are both equally well equipped to carry on the protracted conflict envisioned by the adversarial system? If a high school football team played a game against an NFL team, the rules might be the same for both teams, but what is the likely outcome?

One Case, Three Law Lessons

Sexual assaults on college campuses are a matter of great concern. Changes in the way that colleges and universities handle campus disciplinary proceedings based on allegations of sexual assault have changed radically in the last few years.  Those teaching law in universities are likely well aware of the panoply of legal issues raised by lowering the evidentiary standards for proof of guilt, barring cross examination or witness confrontation and other issues. (Click here to read an article on the topic by ALSB member, Audrey Wolfson LaTourette.)

Brown student, John Doe, had been found "responsible" for sexual misconduct by a University tribunal and was suspended.  The case hinged on a factual dispute regarding consent. At the time of the incident, the University had no clearly defined definition of consent, although one was later adopted.  Doe was suspended based on the retroactive application of the definition.  Also, he was barred from presenting evidence in his defense.

Doe challenged the faulty procedure in federal court. Because Brown is a private university, Doe did not have a due process claim.  He filed suit for breach of contract. Recently, Chief Judge William E. Smith of the U.S. District Court for the District of Rhode Island, ruled in Doe's favor and ordered his reinstatement at Brown.

Lesson 1: Disputes must be resolved by a fair procedure of which both parties have had prior notice.

Sexual assaults on college campuses trigger deep emotions.  Victims deserve sympathy, support, validation and ultimately, justice. But the accused must also not be denied the legitimate opportunity to defend against the claims. The criminal justice system, with its Constitutional protections for the accused has been developed and fine tuned over the last two centuries. Finding and developing a completely different private adjudicatory system in colleges and universities that gives adequate consideration to the legitimate interests of victims and accused alike is a minefield of litigation.

Lesson 2: Federal judges cannot be lobbied like legislators.  They are appointed for life specifically to be less influenced by public opinion and passions.  The same principles may or may not apply to elected state court judges.

Judge Smith had been the target of a substantial e-mail lobbying campaign intended to affect his ruling.  In blasting the effort, Judge Smith explained: 

[T]he court is an independent body and must make a decision based solely on the evidence before it. It cannot be swayed by emotion or public opinion. After the preliminary injunction, this Court was deluged with emails resulting from an organized campaign to influence the outcome. These tactics, while perhaps appropriate and effective in influencing legislators or officials in the executive branch, have no place in the judicial process. This is basic civics, and one would think students and others affiliated with a prestigious Ivy League institution would know this. Moreover, having read a few of the emails, it is abundantly clear that the writers, while passionate, were woefully ignorant about the issues before the Court.

Before the court was only the issue of the procedural propriety of the tribunal - not the issue of guilt or innocence.

Lesson 3: The law is not just a set of predetermined rules that are mechanically applied to achieve justice. There is a lot of trial and error and experimentation and evolution. And in that process, real people's lives are affected.

Cases are not just academic thought exercises. They are the legal outcomes of real, often tragic, events affecting real people. Courts do not have the advantage of legislators who can pass a law and send it out into society to  see what happens.  Judicial rulings apply immediately to affect the lives of the litigants in often profound ways.

"Our Rights Come From God . . . As Determined by Law-Makers."

According to Senator Ted Cruz's message for Constitutions Day 2016, one of the two transformative premises set out by the US Constitution is that, "Our rights come from God."



I didn't recall that part of the Constitution, but Ted is a Harvard Law School grad, so I thought maybe I missed something.  So I googled up a transcript of the Constitution at the National Archives site. Then I executed "find" functions for "God," "Creator," and "supreme being." I didn't get any hits. I didn't think I would.

At least one authoritative legal scholar says that the determination of what rights God has given us is a decision that is made by people.  So if people are deciding what rights come from God, then don't our rights ultimately come from people?




And when some people say that their God-given rights to refrain from assisting in the marriage of two women allow them to ignore the God-given human dignity of the wedding couple to be free from unwarranted discrimination, won't people (judges) have to make a decision based on what makes for a civil and orderly society? These seem much more like earthly matters than heavenly ones.

This all seems a bit more complex and nuanced than simply stating that "our rights come from God."

Thought Provoking Law Quote: What is the Statutory Interpretation Process?

The quote below from respected legal commentators on procedure is somewhat disheartening to those who seek absolute predictability and objectivity in the legal system.  As we know, those qualities run only so deep.

“Do not expect anybody’s theory of statutory interpretation, whether it is your own or somebody else’s, to be an accurate statement of what courts actually do with statutes. The hard truth of the matter is that American courts have no intelligible, generally accepted, and consistently applied theory of statutory interpretation.”

-          Professors Hart and Sacks writing in The Legal Process.

In the case below, the Rule of the Last Antecedent may resolve the dispute, "if the Supreme Court decides to apply it."  Or the court may apply the Series Qualifier Cannon, which requires exactly the opposite interpretation from the Rule of the Last Antecedent. Or perhaps after failing to find clarity in the plain meaning of the text, the legislative intent or the public policy, the Court will just say, "Oh, the hell with it!" and apply the Rule of Lenity.  Or, maybe they won't. 

What is the difference between a statue and a statute?

Judicial Selection by Election and the Rule of Law

A recent federal lawsuit challenges the Alabama electoral process for selection of state judges.  The allegation is that statewide judicial selection assures the failure of minority candidates for the bench. Think Progress reports:

The lawsuit notes that since 1994, every African American candidate that has run for any of the three top courts has lost to a white candidate. Only two black judges have ever been elected to the state Supreme Court, and zero have served on either the Court of Criminal Appeals or the Court of Civil Appeals in the entirety of the state’s history.

State Judicial elections were employed from the very founding of the nation as a way to ensure judicial accountability and counter elitism and political cronyism in judicial selection.  But judges are supposed to be accountable to the rule of law, not to popular sentiment. The string of videos of campaign ads below raise significant questions about judicial fidelity to the rule of law. They seem to use code phrases and images to portray a fidelity to political ideology or religious principles or popular "values."  Some promise "proper" interpretation of the Constitution - whatever that means.

What does it take to get elected to a judicial position?  Is the belief that judges adhere to a "rule of law" just a quaint relic of judicial philosophy?  Or is law inherently constituted of a judge's background, beliefs, upbringing, prejudices, "values," religion, education, political ideology and world view?  Do we know this, implicitly, and cling publicly to the "rule of law" to maintain legitimacy? What do we deduce from these ads?

"Proper" Constitutional Interpretation:

Judges and Faith and Values:


 Judges and Church Participation:






Judges and Life Experience:

The Judge

Hey hillbilly miscreant, "you'd better thank God that your granddad's the judge."

House Committee on Science Once Again Called Out For Denying Science

Legislatures make law.  But what makes legislatures make law? Of what is their law constituted? Logic? Reason? Justice? Science?  Where does "law" come from?

Click here for a prior post about legislators proudly displaying their ignorance of the things upon which they legislate.

Click here or on the image below to once again be flabbergasted:

Social Norms And Conduct

Social norms, like law, help to control conduct. Some people fear social ostracization perhaps even more than legal punishment. It is this fear that causes people to act within regularly acceptable social bounds of conduct.  Of course, one may be more interested in acting according to the social norms of a rogue group whose own norms of conduct may challenge the law.

In the video below, the guy chooses an unorthodox way to try to activate his key card - and pays the social price.

Can Law Control Conduct?

A man assaulted in the men's room of Levi's stadium in San Francisco is partially paralyzed and has had to have part of his skull removed. 

If the purpose of law is to maintain order by controlling conduct, then why does it fail so miserably so often? Although the law prohibits fraud and larceny, people still do it. The usual explanation is greed or financial desperation. But what is so valuable to be gained by beating another person senseless that one would risk the law's sanctions?  Is there any way to make the law more effective?

WARNING! Images of violence:

As if we Needed More Evidence . . .

. . . that teenagers' brains are not yet fully developed.  yet, we still have twelve-year-olds hunting without supervision and teenaged drivers without any restrictions on front seat passengers.  Is it surprising when we get front seat passengers lighting a driver's arm pit hair on fire? Thankfully, the injuries resulting from the expected crash were not tragic.

The law cannot make teenagers control their own goofy impulses, but it can hopefully limit the opportunities for those impulses to be fatal.

This is Why You Can't Carry Your Gun on Campus

I sometimes have students indignantly query as to why they are not allowed to carry firearms on campus.  Some call the rule "ridiculous."  After all, they are responsible, law abiding gun owners. Well, the shooter in the incident described in this video was also, ostensibly, a responsible, law abiding gun owner - until he wasn't any longer.  Everyone starts out as "law abiding" until they no longer abide by the law.  When that time comes, the consequences to others are much different depending on whether the former "law abider" is armed or not.

Pop Quiz

Who is credited with making the insightful observation:

 "The law must be stable, but it must not stand still"? 

A. Roscoe Conkling, influential 19th century US Senator from NY


B. Roscoe Pound, former Dean of Harvard law School


C. Ezra Pound, American expatriate poet


D. Paula Poundstone, comedienne


The answer, of course, at least according to SearchQuotes, is Paula Poundstone. (see screen shot below)

If it's on the internet it must be correct, right?  Here is an example to share with students about double-checking sources.

The real answer, as most readers will know, and as most  internet sites state correctly, is Roscoe Pound.

Song of Civil Disobedience

Law affects the conduct of the people.  But if the people use their conduct to peacefully disobey the law, then maybe the people affect the shape of the law.

Rosa Parks.  She sat on a bus.

Law's Mixed Messages

The Department of Homeland Security has been running an ad campaign around the catch phrase "If you see something, say something."  While not "law" in a strict sense, the campaigns promotes an official governmental policy encouraging people to come forward when something suspicious is observed.

Recently a patron of a bank in Glastonbury, Connecticut spotted a man carrying a gun.  He notified bank employees. The gun toter turned out to have a valid carry permit.  So, the police charged the customer who spoke up with breach of peace for upsetting the bank employees.

Apparently, the new policy message is, "If you see something, keep your mouth shut or answer for it in court."

UPDATE 9/26/13: The Hartford Courant reports that the state has declined to prosecute the charges.  This article also gives more details about what happened that justify the actions of the police:
Mr. Gursky apparently wrote a note "man with a gun" and attempted to show it to a teller while saying "gun." He apparently then left the bank taking the note with him even though the teller had not yet seen it.  He did not wait around to make any explanation to any other bank personnel or the police officers who were on the way as a result of the teller's call.

To me, these facts sharpen the analysis on the way law works.  If the law works by sending messages, then the way those messages are presented to the public is an important element of "the legal system." In essence, that makes the media part of the legal system.  If the media chooses to under-report facts in an effort to make a story sound more exciting or interesting to read, then the message that gets sent is different than the one that would have been received if all the facts were reported.  In this case, as first reported (see the video below), the law enforcement action seems ridiculous. Then bloggers, like me, pick up the story, repeat it as it as been reported, and pretty soon the internet is abuzz with a story about how inconsistent and ridiculous the law appears. With more people getting their news on line or from twitter, there is even more incentive for media to make stories shorter and more intriguing to draw readers. If shorter and more intriguing means "incorrect" and "misleading," then that exacerbates a problem of eroding legal legitimacy.

If the law's legitimacy depends on the respect of the people, and that respect can be manipulated by the way the law is reported by the media, then isn't some portion of media studies a legitimate part of legal studies. Perhaps we should be teaching "The Legal and Ethical and Public Environment of Business;" including media studies, interest group politics, legislative law-making and public perception.  The new AACSB standards require that business students have an understanding of the political environment of business as well as the regulatory.  Who is teaching that?

A Church, A Courtroom and Then Goodbye

Law affects the lives of real people in real ways. From the incomparable Patsy Cline:

Criminalizing Homelessness

If we start with the premise that law can be employed as a tool to shape society, then we should probably be disturbed about this report from Morning Edition on NPR.  You will hear as you listen to the story, that more municipalities are criminalizing homelessness and cracking down on churches and agencies that try to aid the homeless.  Rather than investing in shelters, soup kitchens, mental health and addiction services, the governmental response is to target the victim.  Is this the best use of law?  Is it an issue of justice or expedience? Can homelessness be "solved" by criminalizing it?

Business interest are a factor here as cities seem to be using these laws to try to clear the presence of the homeless from their downtown business districts. That raises other questions about the role of law.

The NPR story available at the audio link is very good.  Below is a video that might be used to complement the story.

Law Music Video: The Chemical Worker's Song by Great Big Sea

This week the law music video is The Chemical Worker's Song by Great Big Sea.  

What is the nature of "industry" and what role should law play in its regulation of worker safety, consumer safety, financial dealings, etc.?