From: Black Unicorn <unicorn@schloss.li>
Date: Thu, 14 Mar 1996 19:36:11 -0500
To: jim bell <jimbell@pacifier.com>
Subject: [Noise] Jim Bell: Legal Reformer
In-Reply-To: <m0twu6i-000932C@pacifier.com>
Message-ID: <Pine.SUN.3.91.960313145952.8242C-100000@polaris.mindport.net>
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On Wed, 13 Mar 1996, jim bell wrote:

> At 11:37 PM 3/12/96 -0800, Bill Stewart wrote:
> >At 05:40 PM 3/12/96 -0500, Black Unicorn wrote:
> >>Revise your statement to:
> >>"doesn't want anyone who hasn't spent a few years in law school to pass 
> >>judgement on pending legislation and the effect of supreme court decision 
> >>thereon..."
> >>and you'd be right on the money.
> >
> >I'm not a lawyer, though I've played a politician on TV.  I'll grant you
> >that lawyers and other trained legal professionals can do a far better
> >job of finding and analyzing cases than amateurs like myself, though 
> >I suspect a month or two's experience with Lexis would be enough to 
> >let many of "the rest of us" outsearch the average lawyer of 50 years ago
> >who had to rely on his or her wits alone.  But if the average intellegent
> >person _can't_ evaluate a law and have a reasonable chance of figuring
> >out what it says and what it means, there's something seriously wrong
> >with the way new laws are written, as well as enforced.

This I never denied.  I agree with Mr. Stewart, it's unfortunate that the 
law is so complex sometimes.  Unfortunate also is the fact that there is no 
solution.  "Thou shall not kill,"  while simple in concept, and generally 
understood, lacks specificty.  Kill what?  Do animals count? Define kill?  
Does self defense apply?  What about suicide?  Is the self included in 
the realm of those not to be killed?  (Incidently, the common 
understanding is incorrect in any event, the closer translation is "Thou 
shall not commit Murder.")

As legal jurisprudence moved from legal formalism (apply the letter of 
the law, and only the letter of the law, and damn the result, even if 
unjust or beyond the intention of the legislature) moved into legal 
realism, and progressive legal thought, it became more and more difficult 
to predict what the results of litigation might be.  This is because 
judges were no longer, at least to the extent they were in the early 19th 
and late 18th centuries, simple clerks who read the law and enforced it, 
but rather individuals who intrepreted the intent of the law makers, and 
applied the law with a mind to avoiding injustice.

The "Seal" is a classic example.  At one point, if your name was on a 
contract, that was it, you were bound by it.  Seems ideal in some ways, 
but what if you were intoxicated, or couldn't read?  What if you were 
told that the contract was a lease, and only after signing it did you 
discover it was a contract for your endentured servitude?

Legal formalism says:

"Is this your name here?"
"Yes, but-"
"Judgement for the plaintiff."

Well now.  How do you write a law that expresses the will of the 
lawmakers on a complex subject with the added twist of judicial 
intrepretation?  Judges are people too.  Some judges look at the 
congressional record to see what it was congress was trying to do 
exactly, some believe legislative history is a bunch of hooey.  Mr. Bell, 
apparently, thinks he can do a better job.  I'd like to seem him try.

I don't want to be an apologist for attorneys, I have a lot of problems 
with the legal profession in general.  This doesn't change the fact that 
not everyone on the planet can read a bill and a complicated supreme 
court decision and apply them together to an entirely unrelated area.  In 
fact, most lawyers will have problems too.  If not, then there would 
never be court cases.  The parties to litigation would already know the 
outcome, and fighting it would be pointless.  Do you really think this is 
ever going to happen?

Someone with almost no legal experience, on the other hand, is simply out of 
their league.  Mr. Bell, this means you.  I'm sorry we can't all run like 
Carl Lewis, I know that would be a perfect world, well in some people's 
view anyhow.  But this kind of finger pointing, and name calling, and 
cries of "elitist" it begins to look like the kind of left-speak that 
argues that everyone has the same potential in life.  Mr. Bell's opinion 
aside, (I already know what he thinks) I'd have to be an idiot to go to 
law school for 3 years plus post grad work and still come out knowing no 
more than someone who looks at lexis a lot.  Sorry, if that makes me 
elitist, so be it.  (I happen to be elitist for other reasons, but that's 
beside the point).

Can the average person read a criminal statute and tell how old a sexual 
partner has to be to avoid statuatory rape charges in their state?  
Sure.  That's easy.  That part of the law is fairly available.  Now take 
the same person and ask them what the supreme court case ruling that 
parents can sue a man for "corruption of a child" (taking her viginity) 
even after the pair is legally married means in their specific case.  Not 
so easy anymore.

Point being, it's easier to look at criminal law and decide what it is 
you are not supposed to do (because such statutes are fairly specific 
about the conduct they are trying to restrict, and need very little 
complexity) than it is to apply complex regulatory statutes to asset 
seizure cases and entirely distinct fields.  Mr. Bell seems to think that 
because he knows when he will get a parking ticket, he's qualified to 
render his legal opinions to the list as if they were gospel, and no one 
is entitled to question his qualifications.

> Well said.  If more people lambasted this "Black Unicorn"

That's Mr. Black Unicorn to you.

> fellow for his 
> legal-elitist ways, he'd actually be forced to either shut up or use 
> reasoned argument to support his odd position.

1) You wouldn't know reasoned argument if it bit you on the ass.
2) My position (Which I am assuming you are even intrepreting correctly) 
is hardly odd or uncommon.  I would say it's fairly common knowledge that 
you will be in better shape if you e.g. hire a lawyer to do your will 
than if you do it alone.  I would say you'd have to be an idiot to even 
try to represent yourself in the most simple criminal case for assault.

> Laws, as I understand it, used to be written so that ordinary people could 
> understand them.

And thus were patently inflexible.  That's legal formalism.  I might add 
that laws were not always so written.  Nero posted all the laws 
publically, and wrote them clearly.  At the same time, he posted them at 
the top of the columns in the senate, so no one could read them.  Writing 
law so it's accessible to the common man is not an easy thing.  One could 
easily make the arguement that laws were never accessible in that way, 
Mr. Bell's unsupported assertion aside.

> That's the way it ought to be today,

See my contract example above as to why this is complete ignorance and 
shortsightedness.

> but isn't, precisely 
> because the elitists have had their way for so long.

Simplicty and fair law simply do not go together.  If the elitists have 
had their way for so long, perhaps you should look to the electorate who 
continually sends them to the capitol.  I might add that I have never 
seen simple legislation in the way that you mean it from the law makers that 
have never even been to law school either.  (There are plenty of them too).

> There used to be a 
> saying, "Ignorance of the law is no excuse."  The presumption was that you 
> had a responsibility to know what the law said, and that most people could 
> understand what it said, and if you didn't take the time to know it you were 
> guilty despite this.  Today, that saying is laughably out of date:  When 
> people like "Black Unicorn" claim that ordinary people haven't the skills to 
> evaluate any law or proposed law, it is obvious that he and his ilk is a 
> major portion of the problem. 

I don't believe this is obvious at all.  First, what does my 
acknowledgement of the complexity of law, and the need for a profession 
to intrepret it have to do with my contribution of the problem?


Second, you say:

> Laws, as I understand it, used to be written so that ordinary people could
> understand them.  That's the way it ought to be today.

Forgive me, Mr. Bell, but isn't this exactly what you are accusing me 
of saying?  "Ordinary people can't understand the law," is your point, 
yes?  Why then aren't you part of the problem?

Or is it just when ">people like "Black Unicorn" claim that ordinary 
people [can't understand the law]" that there is a problem?  Your entire 
point hinges on your personal dislike of either me, or lawyers, as you 
have said exactly the same thing I have said all along.  Law is so 
complicated, you need a lawyer to figure it out.  Funny, that's precisely 
what I was trying to get at in telling you to stop posting to the list 
your ravings about Supreme Court cases because you had no idea what you 
were talking about.  Seems you've conceeded my point.  I may be elitist, 
but even you, in your own words, admit that my ilk is necessary.

> >(I suppose I've complained enough that there _is_ something
> >seriously wrong them that I'm not adding any new weight here;
> >if the author of a portion of a law can get up on the Senate floor
> >and say that he realizes that part of the law he's proposed is
> >unconstitutional and unenforceable, and that this doesn't bother him*,
> >I guess it's no surprise that one of the more-or-less "good guys"
> >in the Senate can propose a law so ambiguously worded that it
> >looks good on the face until a good lawyer takes the time to rip
> >it apart - maybe Leahy will read some of Junger's review?)
> 
> The system is sick, perhaps irretrievably so.  Dr. Strangelove (in the movie 
> of the same name) stated that "deterrence is the art of making the enemy 
> FEAR to attack."  I think the main problem (and the most direct solution) to 
> the "politician-problem" in this country is to make government agents FEAR 
> to do the wrong thing.

I'm sure this has something to do with the point at hand.

> Jim Bell
> jimbell@pacifier.com

---
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