NICK EICHER, HOST: It’s Monday morning and a brand new work week for The World and Everything in It. Today is the 29th of July, 2019.
Good morning to you, I’m Nick Eicher.
MARY REICHARD, HOST: And I’m Mary Reichard.
One thing I often hear about the legal system and lawyers, is a big sigh of frustration. First of all, it’s confusing. Even for lawyers.
So pity poor Vincent LaGuardia Gambini, Esquire. He finally passes the bar exam. He finds himself in court for the first time ever. This of course from a 1992 comedy, sometimes used in law-school classes, starring Joe Pesci in the title role, with the late Fred Gwynne as the patrician southern judge.
AUDIO: How do your clients plead? / Ah, my clients are caught completely by surprise. / What are you telling me? That they plead “not guilty”? / No. I’m just trying to explain. / The State of Alabama has its procedure. And that procedure, at this point in time, is to have an arraignment. Are we clear on this? / Yes. But, ah… / Mr Gambini. / You see, my clients… / Uh, Mr Gambini. All I ask from you is a very simple answer to a very simple question. There are only two ways to answer it: “Guilty.” Or “not guilty.” / But, your honor, my clients didn’t do anything. / Once again, the communication process, broken down. It appears to me that you want to skip the arraignment process, go directly to trial, skip that, and get a dismissal. / Now, How. Do. Your. Clients. Plead?
It’s not just slow procedures. It’s not just growly judges. Yes, courts are scary. But they’re also expensive.
And even if you do win, you still are out time and money. It’s up to you to collect if you earn a judgment for money damages.
EICHER: Right, and then there’s the perception that justice tilts in favor of the rich and famous. They can hire the best lawyers. They can wallpaper the opposition with interrogatories.
You have to ask: How did we get here?
Well, one person who’s thought about it is Bruce Cannon Gibney. In his book, The Nonsense Factory, Gibney surveys the American judicial system over the past 70 years. He thinks that quantity of law has been confused with quality of law, among other things.
Gibney is a co-founder of PayPal. He’s a lawyer by training. And now he’s a venture capitalist.
REICHARD: So I called him up to talk about his book. It’s hefty, over 500 pages. We started with the cost of hiring a lawyer. It’s painful. The average rate is $300 an hour on the coasts, and partners can charge up to $2,000 an hour.
GIBNEY: Legal prices are inflating over the past few years, about 8 percent a year, which is by the way, the same rate that luxury goods are appreciating. Essentially, law has become a luxury service. Now, the problem with that is that most people can’t afford any legal representation at all. There is no guarantee at the beginning of the case that it’s only going to take one hour or five hours or 15 hours. Listen, if you can’t afford access to justice, then justice functionally doesn’t exist for you.
Well, you write about many factors that create this problem. Let’s start with one of them. You think it begins with the training, right in law school?
GIBNEY: Right. So the first thing is that law school is extremely expensive. And this translates of course into very high legal prices. Even if we don’t actually use a lawyer ourselves, we’re constantly using legal services. The government is essentially the world’s largest law firm and we end up paying for that. And if you’re going to, if we’re all going to pay a bunch of money for legal services, those services ought to be good. But the problem with law schools is they teach law as existed in the 19th century, not the 20th. In the 19th century you know, laws were common law, right? They were judge made and they focused on the reasonable expectations of the communities. That we can all get. And that’s what they teach you in law school. Today, laws are, you know, implemented through statutes and regulations which simply say this is what you’re going to do. And uh, law schools don’t teach young attorneys how to interpret statutes even though that’s the mechanism by which, you know, we are governed today. So as a result, you have to spend the first couple of years your career relearning what law actually is. And that’s an expensive waste of time. It’s very frustrating.
So how we train lawyers is one problem. You also write about the complexity of the law. We have laws at the federal level, then all 50 states have their own laws. That’s federalism.
Are you suggesting we do away with it?
GIBNEY: So I love federalism in theory. I do think that, you know, states should be the laboratories of democracy. The problem is you know, the Supreme Court jurisprudence in the 20th century basically said, well, everything is interstate commerce. So if Congress really wants to do something, it can do it and it can override the states, but the states continue to pursue their own agendas and they have their own sets of prosecutors. You end up with these conflicts. You know, which law should I obey? If marijuana is legal in my state, and federal law still makes it, you know, a crime, what am I supposed to do? Right? It’s also not clear how much, you know, most Americans value sort of federalism. It’s not clear if they actually understand what federalism means. You know, it’s a cornerstone of our jurisprudence that federalism actually matters to citizens. It does matter to me, but I’m not sure it matters to everyone and we should figure out whether or not it’s actually true that people care about federalism.
Speaking as a rural person, I’m sure I don’t want people who only have lived in big cities to decide things for me. I mean, that’s what federalism helps prevent, and to change that would require doing away with our foundational documents.
But most people would agree that the legal system isn’t functioning well for the average person.
I have to ask you, did something happen to you to make you so passionate about fixing the legal system?
GIBNEY: Ah, just becoming a client myself. So I was a lawyer for one year and it was, you know, it was intellectually stimulating. People would present me with a problem. I would go into court, you know, if it worked out great, if it didn’t work out. Yeah, that was fine too. And if there was no answer and it costs $100,000 to arrive at the answer that there was no answer, that was fine. Someone else paid the bill.
Then I became a client. And I realized that that’s just completely unsatisfactory.
You know, when people go to lawyers, they’re not looking for sort of a, you know, an, it’s not an academic exercise. They have rights, they have concerns that they want vindicated and defended. And so there should be reasonable answers. It’s difficult for lawyers to provide them because the law itself is incredibly complicated. You can’t read a law in plain English.
One of the aspects of law we talk about often on Legal Docket is the administrative state, or the runaway administrative state. The subject comes up every term before the Supreme Court, federal agencies making so any rules.
You’re not a fan, either. Talk about that.
GIBNEY: It’s never been Constitutionally clear that Congress can simply delegate its job. It’s not clear that Congress can simply outsource the act of being Congress. And the Supreme Court has recently hinted, you know, three or four justices have hinted that they might be willing to revisit this issue. The other thing that really bothers me about agencies, the federal bureaucracy is that they operate their own courts. And this is not well-known, but, and again, this is not a right or left issue.
The problem is that the agency not only provides the prosecutor and the law, it provides the judge and it’s no small coincidence the agencies tend to win in their own courts.
The real problem has been the growth in executive power. And this is not a comment on, on Trump or Obama, it’s just a comment on the executive branch as a whole. Because Congress is no longer capable of writing all the legislation that governs the United States, outsource everything to agencies.
Problem is, is that the administrative state belongs in the executive branch—that’s just not the way the system is supposed to work because it eliminates checks and balances. So as a result, we have a lot of policy volatility. You know, Bush undoes what Clinton does. Obama undoes what Bush does. Trump undoes what Obama does. This is no way to run a society. You can’t just do things by fiat. There should be a social consensus.
Ok, so far you’ve cited the way we train lawyers as a problem. Federalism with the 50 states and the federal government at cross purposes. The administrative state is not what the Founders intended.
You are also critical of the language of the law.
GIBNEY: Right. The legal system requires, for example, public companies to state the results in plain English because otherwise, how could investors understand how well a company’s doing? Well, why can’t the government do the same thing? Why can’t laws be written in plain English?
Now people think this is a crazy idea. If you go to an elite law school, they’d say that’s, you know, the law is too complicated to be explained in plain English, you know.
To which the response has been, what’s the point, right? If the instruction manual for the dishwasher uses calculus and astrophysics, you can’t work the dishwasher. The dishwasher serves no purpose. And so if laws can’t be understood by the people who are supposed to be doing what the, you know, supposed to be following instructions, then they just don’t work. They’re not fair. There’s no due process. There’s no notice.
Like the criminal code, for example?
GIBNEY: There are 4,400 statutory crimes in the Federal Code. Actually no one is quite sure. The Department of Justice tried to count. That proved to be impossible. We don’t know how many crimes there are.
There are 300,000 regulations with quasi-criminal prohibitions. I have to tell you, humanity is just not that inventive. There are, there aren’t 300,000 crimes in the universe. There, there are a certain, you know, limited set, you know, lying, stealing, etcetera. And we should focus on those.
But unfortunately the law just sort of proliferates and I think this is one source of frustration. Because there are so many laws they can be enforced with discretion and that discretion can end up being an exercise in discrimination. Just as you can be stopped for driving while black, you can be audited for filing taxes while rich. In theory the law is not supposed to operate like this.
But if we have hundreds and hundreds of thousands of rules, that means someone has to decide whether or not they’re going to enforce a rule against any particular person.
The problem seems so huge, overwhelming.
GIBNEY: You know, people should not resign themselves to a dysfunctional legal system. United States, for example, is, is aside from Britain, the only country in the West where you do not need any training to be a federal judge, right. To be a, to, to be a national judge. In France, you actually go to judge school. There is something bizarre about this idea that, that, that, you know, any lawyer is competent to take any case. Any judge is competent to rule on any matter.
You know, we should have a sort of reasonable specialization. And in other countries results are more predictable and less expensive results. It can be better because it is better in other places. We can do it too.
In all our conversation, Gibney primarily laid out only the problems with the American legal system.
Solutions are more elusive.
In his book, he wrote that “at some point, the public will decide that legal dysfunction has risen to an intolerable level and shift from polite requests for incremental reform to adamant demands for fundamental change.”
Personal story, briefly. I was just in court last week. It was the culmination of six years of worry and great expense. A contractor put the wrong gutter system on my house and we’ve had serious problems ever since, including damaging flooding. My husband and I got a favorable judgment, but no guarantee that we’ll ever be made whole. Truth to tell: I don’t expect a dime, only the small satisfaction that the person who harmed us is much less likely to harm others.
Frustrating? You could say that.
Solutions? Again, another story, for another day.
And that’s this week’s Legal Docket.