This should more or less go without saying – that civil unrest indicates at least an incipient failure of the rule of law – but perhaps it doesn’t. Very fundamental things often don’t, somewhat paradoxically.
The main reason all governments have some formal dispute resolution mechanism – usually in the form of “courts of law” in more civilized places – is to apply the law in individual circumstances where there has been some question about how to apply it or whether it is being applied correctly.
The underlying assumption is that in the normal course of events the law is being followed.
There are two problems. First, if that assumption is untrue, can courts of law make up the difference? If the law is generally not followed but flouted, or honored only in the breach, the efforts of courts to resolve the disputes, supposedly only on the margins, amount to whistling past the graveyard.
But second, even if the assumption is true, will it be eroded over time by courts’ failure or refusal to do their job with some modicum of integrity?
We are witnessing a lot of civil unrest in the world. This is mainly occurring in Arab nations at present, but notably in those Arab nations that have close ties to the United States predominantly: Egypt, Bahrain, Libya.
Interesting that the US Constitution provides for the “right of the people peaceably to assemble” in the first amendment. This is an allowance for civil unrest. An admission that the rule of law is fragile. “Peaceable” civil unrest is like a stop loss point in the process of social disintegration. It is the immediate predecessor to violence – to revolution – if it is not properly addressed.
Lawyers and judges should be ashamed when there is civil unrest in their country. It means, precisely, that they haven’t done their jobs, that the bonds of civilized intercourse between individuals and their government have eroded to the point where many take to the streets and air their grievances there, as opposed to using the dispute resolution mechanisms already provided.
Sometimes I pick on Scott Greenfield. There’s a reason. For example, over in the comments section of one of his recent posts, an exchange between Greenfield and Mike about scumbag judges (or do I repeat myself):
I’ve never understood the confusion. It really shows the power that labels have on the mind. Legal semiotics, or something.
A judge is simply a lawyer who puts on a robe. Well, more than that, a judge is a lawyer who behaved a certain way, which usually meant groveling at the feet of power players.
Why do people expect those lawyer to suddenly become a serious, thoughtful, honest scholars, and appliers of the law? Shouldn’t we expect people to behave consistent with their character?
The robe is just a piece of clothing. It’s merely a symbol or artifact. What’s underneath the robe is what matters. And if judges are being picked from the supply of law-enforcement boot lickers, why should anyone expect judges to not issue unconstitutional warrants?
Greenfield’s response is lame, to the extent it is an attempt at humor. To the extent it is trying to say anything of substance, it is disingenuous:
Not to play Pollyanna, but there are good, honest, smart, fair judges. They were good, honest, smart, fair lawyers. How they ever managed to become judges remains a mystery.
It is not an answer to Mike’s comment to say that “…there are good, honest, smart, fair judges…” even if it’s true. Mike’s point – beyond cavil for any reasonably intelligent person who has practiced law – is that “usually” judges are stupid, or corrupt, or most often both. You can’t answer that by saying that some judges aren’t. Mike conceded that point in advance, at least rhetorically, by saying “usually”.
Why jump to the defense of the judiciary with a defense that isn’t really a defense? Because for a lawyer who’s been a fixture “in the trenches” for about 30 years, comments like younger lawyer Mike’s strike a nerve. Over-defensiveness is always revealing. It is an unconscious capitulation masquerading as an argument. It is guilt, as Shakespeare noted long ago (paraphrasing, for you pedants out there): methinks thou dost protest too much, Scott.
Maybe it’s a good idea to put some flesh on the bones here. The government keeps some statistics concerning the goings on in the nation’s courts – not many, but some. I’ll cite them here with publication numbers from the Bureau of Justice Statistics (BJS), a division of the US Department of Justice, in bold. Nobody much reads these statistics. No news outlets analyze them. If it bleeds, it leads, and metaphorical bleeding doesn’t count.
Read them and weep, though. Mike is being kind. Consider the picture from the most recently available statistics:
In 2006, there were about 1.1 million felony convictions nationwide in state courts alone. There were 14.4 million arrests. DOJ BJS Statistical Tables 2006, NCJ 226846
In that same year there were – at most – 18,000 constitutional civil rights complaints filed in federal courts stemming from state and federal enforcement of criminal laws, excluding prisoner petitions. NCJ 222989 I exclude prisoner petitions not because they significantly alter the statistical ratios, but because the comparison is more apt when only those civil rights claims from people who have something to do other than sit in a prison cell are considered, and also because non-prisoner petitions are more likely to involve a Plaintiff who has been genuinely wronged, even by the government’s own estimation.
Let’s put these statistics in context. In 2006 the number of civil rights complaints was less than 2% of the state felony convictions in the same year. But the fairer comparison would be to the number of arrests, which are more closely analogous to the filing of a complaint in the civil setting. That ratio would be 18,000 over 14.4 million – more like 1/10th of 1%.
But it gets worse. If historical ratios hold, something less than one-third of the civil rights complaints that are filed will meet any significant degree of success. Two-thirds will be dismissed at the complaint stage or upon “summary judgment” – a remedy, by the way, that is widely available and granted to defendants in civil cases but not defendants in criminal cases, 7th amendment considerations be damned.
Thus, of the 18,000 civil rights complaints filed in 2006 stemming from state and federal enforcement of criminal laws, something less than 6,000 will attain any degree of success. NCJ 222989 Thus, based on these statistics, the incidence of valid claims of constitutional civil rights violations in the constitutionally laden area of criminal law enforcement is 6,000 over 14.4 million.
This is considerably less than one-tenth of one percent; in other words, a statistically almost insignificant amount. It would be fair to just call it zero violations of civil rights in the United States stemming from criminal law enforcement.
These ratios are substantially confirmed by an entirely distinct set of statistics comparing the 2006 nationwide government “direct expenditures” on all law enforcement functions at the federal, state and local level – $214 billion (NCJ 224394) – and the collective median awards for the successful civil rights actions stemming from law enforcement activities for the same year, which could not have exceeded 6,000 at $100,000 a piece for a total of not more than $600 million.
In other words, the awards for civil rights violation stemming from criminal law enforcement could not have exceeded one-quarter of 1% of the expenditures on law enforcement, and were likely considerably less.
Civil rights actions are authorized by a federal statute – Title 42 US Code, Section 1983; but as you can see from the figures, that statute has been effectively repealed by the federal judiciary which, as a statistical and practical matter, refuses to entertain such cases. As a result, they are brought with less and less frequency. Perhaps understandably, lawyers don’t bother.
Yet in 2010, the United States Supreme Court granted certiorari in Connick v. Thompson, an extremely anomalous case where a Plaintiff was awarded – though of course he has not yet collected – a $14 million judgment because prosecutors framed him and he did a long prison stretch. A decision isn’t out yet, but the fact that the case was given plenary consideration at all is what is important for present purposes. Certiorari is granted only to a handful of those requesting it, supposedly to consider “important” or unsettled questions of constitutional law. The question of constitutional law that the SCOTUS considered important enough to review the Connick case, at the urging of nation’s district attorneys and law enforcement, can be found here.
When stripped of the technical jargon, it boils down to this: in a legal regime which already essentially acknowledges effectively zero actual, actionable, compensable civil rights violations stemming from the government’s enforcement of the criminal law against individuals, the Supreme Court thought it was important to consider further restricting civil rights complaints by individuals against the government stemming from its enforcement of the criminal law, at the urging of the government. Apparently one case where a Plaintiff prevails for an an individually significant, though overall (in view of the $214 billion in law enforcement expenditures) paltry sum of $14 million is too much, and the SCOTUS is going to review it to see if there’s any way they can reverse, in a case where it is conceded that the prosecutors framed a criminal defendant.
Digest that for a minute. And then let’s be blunt: SCOTUS as an institution is fucking nuts, or fucking corrupt, or both, and the other courts of the nation both state and federal are following it, like lemmings, into the abyss.
Keep in mind that the Connick case is only a paradigm, a representative sample of what has happened. It is repeated in many forms, in many cases, over and over throughout the legal/judicial regime in the United States. Large, institutional litigants and their minions are not held accountable in the courts when they break the law, even when they do so willfully and egregiously; while individuals are increasingly imprisoned for increasingly trivial offenses, or even framed when they are entirely innocent.
What this means is that the rule of law has broken down in the United States. The process was and has been ongoing all through Scott Greenfield’s watch, and to a lesser extent mine. Younger attorneys like Mike are inheriting our mess and telling us what a mess it is, and Scott’s answers are: 1) there are some honest and fair judges; and 2) stop whining, you’re the slackoisie. The first is effectively untrue; and the second is, under the circumstances, patronizing, insulting, and an embarrassing evasion of responsibility at the same time. It’s Jamie Dimon and Hank Paulson on a smaller scale and in a different venue.
The unrest in the wider world should remind us, the lawyers, how important it is that we do our job. Forget the judges – they are, by definition, feckless and beyond hope. They have always been far less important to the rule of law than lawyers, just as they are now.
Scott, and the other lawyers of the United States, have a far more important job right now than propping up the rule of law corpse on the excuse that they have to “make a living”. There’s a lot at stake, and that excuse will not cut it. If what has been happening all over the world won’t convince you to take some responsibility and act, I don’t know what will.
When the demons you have entertained your entire professional life come pounding on your door one night – this time for you – it will be too late.
You, too Gamso.