Thursday, November 7, 2019

The US Supreme Court is now in session and the list of “hot button” cases to be decided this term will undoubtedly cause considerable discussion if not social unrest. My crystal ball is sufficiently cloudy that I cannot predict the outcome of any particular case, but I am interested in the impact of those cases on the rule of law and its preservation for our future.

The discussion of the rule of law was popularized in modern times by an English Victorian era law professor named A.V. Dicey. He wrote of the rule of law in England, and provided a number of lectures in the U.S.  There have been others such as Aristotle, John Locke, Montesquieu, FA Hayek, and Lon Fuller all of whom have written on the subject. The debate around the rule of law is quite lively and, I think, quite necessary to keep it thriving.             

There are four universal principles for the rule of law:  (1) Accountability;  everyone including government is accountable under the law, and no one is above the law; (2) Laws are clearly written, publicized, and applied evenly to protect fundamental rights; (3) open government insures  a process by which laws are enacted, administered and enforced fairly and efficiently; (4) a dispute resolution process is present to allow accessible and impartial resolution.  

Historically in the US, laws had two sources: (1) the legislatures of the federal government and the states; (2) the evolution of the common law through the courts. For the legislatures, the impetus for the creation of laws was by feedback from their constituents, the voting public, and now, unfortunately, through the persuasion of special interests.  The common law evolved through interpretation by the courts, in particular cases, of vague phrases found in the constitution such as due process, equal protection of the laws or cruel and unusual punishment, and in vaguely written legislative mandates through executive regulations thought to be necessary to protect public health and safety.

Legislating from the bench has become a popular political trope, heralded from the left, condemned from the right. I would submit that the evolution of the law through the courts now comes from the same pressure points that prompt legislatures to enact laws.

Public polling is a measurement of public opinion. Polls generally take one of two forms: standard quantitative methods which collect superficial responses and qualitative methods that places people in focus groups who may or may not share backgrounds or views.  Both have their strengths and weaknesses that add to their credibility or critique.

So, allow me to discuss the polls on three “hot button” issues: gun rights, abortion and immigration.  You can decide for yourself the validity of each poll.

#1: Days after the shootings in Dayton, Ohio and El Paso, Texas, President Trump announced that he saw a very strong appetite for background checks but no appetite for a ban on assault type weapons. An NPR/Marist poll held shortly thereafter revealed that 81% of Americans favored requiring background checks, 59% favored banning assault type weapons and 60% stating they believed it was possible to enact new gun regulations while maintaining the right to bear arms. Congress has created no new laws with a few states adopting new legislation.

#2: Citing the NPR/Marist polls on abortion, 75% of respondents want to keep Roe v Wade in place, while 66% voiced displeasure with the current status of abortion regulations throughout the country. Congress has done nothing; a few states have enacted more restrictive abortion policies.

#3: On immigration, a CBS poll found that 70% of Americans approve the idea of welcoming people from different cultures and felt it was very important to the overall health of our country.  In a February 19, 2019 Gallup poll, 30% said they wanted to increase immigration levels, 37% said levels should remain the same, and 31% said they favored a decrease in immigration levels. The President has proposed regulations to reduce the immigration numbers, Congress has not acted. 

Such is the effect of public opinion as measured through polling on the legislative process.

The evolution of law through the courts while agonizingly slow and tortured presents a different picture.  The courts did not seek cases involving rights, instead citizens brought them forward.  Of late, statistics show that the press of cases currently being brought in the courts have special interest backing.  Segregation and Jim Crow were overturned when African Americans had no real representation in the legislatures.  Roe v Wade was passed when the voices of women could be heard more forcefully in support of abortion rights. The grammar of the second amendment was used to stymie gun regulation when the voices, not of citizens but of special interest, were raised to influence the Supreme Court.

Such is the effect of public opinion on the evolution of law through the courts.

Both the legislative process and the judicial process are necessary to the vitality of rule of law as it relates to all of us on a day- to- day basis.  The discussion of the rule of law as it applies to what is going on in Washington, DC today is the subject of another article. 

What are your thoughts on the impact of public opinion on modern day legislation or the Courts?  I look forward to hearing from you.


Wednesday, February 13, 2019

What Role Does Binary Thinking Have In Modern Law?

Happy New Year to everyone.  Beginning last year and well into this new year, I have been pondering why, if we live in an increasingly transparent, social, and interdependent world, do I feel like we are evermore polarized, uncivil, and frustrated with the world around us. It is truly a multifactorial problem.

One perspective has me looking at binary thinking. Binary thinking is a way of organizing thoughts and seeing the world as either/or, one thing or its supposed polar opposite.  Binary thinking assumes something is either true or false, right or wrong, good or evil, democrat or republican, liberal or conservative, secular or religious... Binary thinking can feel simple and comfortable, it does not require much thought or need for analysis. It is easier to adopt group think or binary thinking than to delve into the details.

The danger of binary thinking is that binaries are often false dichotomies, and it is extremely limiting, forcing people, behaviors, or thoughts into limited extreme positions without looking at the middle or the gray area. So, if one is a republican and a democrat offers a solution, the only binary choices are as republican versus democrat response. Since identify as republican in this scenario, one then slips into the binary.  In my opinion, it is the gray areas that offer more potential, more richness and subtlety at revealing workable solutions and may even hold the truth. It would seem that binary thinking and truth-seeking should have a long-term relationship, but it now seems as though to protect one’s group, tribe, or affinity group, one needs to shut out not only the “other side” but the middle ground as well.  Identification with a group position is now more important than a middle ground solution.  Fealty to ideology is now more persuasive than a nonperfect but workable solution.

Binary thinking does not and should not work for lawyers.  Examples follow.

As most of you know, I started the practice of law as a public defender in Denver.  The criminal law binary paradigm is guilt or innocence.  Then, as now, that binary is not reality.  More than 90% of criminal cases are plea bargained somewhere between guilt and innocence.  In the federal regulatory world enforced by the SEC, FDA, and other agencies, those companies accused of wrongdoing pay a huge fine but never admit doing wrong or guilt and yet are not declared innocent.  In drafting contracts, hardly is there ever a transaction where there is not some escape clause or mitigation of damages clause, i.e,. a middle ground between performance and breach.  Lawyers must dwell in that middle ground between the binaries if they are to truly serve their clients.

What really got me interested in the topic of binary thinking is what I see as the continued assault on the rule of law. Examples amongst our elected politicians, corporate executives, and boards of directors is that they consistently find ways around compliance to the strict letter of the law, let alone the spirit of the law, and spin around in that gray area.  More pointedly, our judicial system (the last bastion of defense for the rule of law) seems immersed in a thicket of contradictions.  The White House and Senate seem to be obsessed with appointing “conservative” judges who espouse a philosophy of Originalism or Contextualism.   Originalists argue that courts should say what the law is and not what it should be, suggesting that the related doctrines of originalism and contextualism offer greater certainty to preserve the rule of law than competing principles such as interpreting the Constitution as an evolving document.  Originalism is a form of binary thinking that says that if it is not in the Constitution, it is wrong or unconstitutional.   Contextualism seems to be a theory which allows the introduction of politics into judicial reasoning, by perhaps looking into the political discussions adopting the law as recorded in the statutory history.

Remember, the constitution is not written is stone, it has been amended 27 times and the Supreme Court has been interpreting the Constitution since its inception to make comprehensible or meaningful rulings related to the Constitution, an evolving society and, at times, to conform to the prevailing political winds.  There are those that also suggest that agents of change in American la, should be legislators not judges, again the binary of the legislature versus the courts. Given what is happening in our legislatures, both federal and state, are you confident that our elected officials act as agents for change to fulfill the preamble of the Constitution, which provides: “…to insure the domestic tranquility, provide for the common defense, promote the general welfare and secure the blessings of liberty to ourselves and our posterity...”?

What are your thoughts?