There are a lot of reasons the law has grown to be so complicated.
I’d like to walk through a few and hear your reactions.
Because I am more familiar with criminal law, I will draw my examples from that world; even though I believe that criminal law is much simpler than civil law, it certainly can be complicated enough to the lay observer and I feel it will work well for this discussion.
Before I start, I would like to know if this interests you - I don’t want to go through an in-depth typing session only to have you say, “Sod off - I don’t care.”
Well now ** Bricker**, we really should begin this polite exchange of opinions and ideas with a modicum of mutual respect, and besides, I 've never said “sod off” to anybody (I don’t know what “sod-off” means) and I certaintly wouldn’t want for you to invest your vauable time in an in-depth discussion if you find me somehow…lacking.
But as to my interest, I am as interested, and as eager, and as ready to charge, as a newly-horned buck in full rut.
Thank you. I grow impatient awaiting your response.
The first is that the law should be just - that is, ultimately, results under the law should pass the common-sense feeling of fairness: that penalties should be proportionate to the crime, that people receive fair notice of what acts are prohibited, and that there’s a general sense of “fair play” regarding of the law is administered.
The second naturally follows from the first: that similarly situated persons should be treated the same. In other words, the law should be applied in such a way that it’s predictable. If we have a law against assault with a deadly weapon, and we have two people charged with assault using a baseball bat, we wish to avoid Guy #1 being told that a baseball bat doesn’t count as a deadly weapon, and Guy #2 being told that it does. I don’t express an opinion on whether a baseball bat actually is a deadly weapon - just that it should be treated the same way for both people.
We could keep things simple. Just make a simple law saying that assault with a deadly weapon is a crime, and leave it up to a particular judge to decide if a baseball bat is deadly enough to qualify. But if we do that, we open the door for Guy #1 and Guy #2 to be treated very differently, just based on the luck of the judge they draw. One judge may feel that a bat is deadly; another may feel that it’s not deadly in the way a sword or a gun is, so it’s not a “deadly” weapon within the meaning of the law. It seems to me pretty obvious that treating Guy #1 and Guy #2 differently is a violation of the “fair play” aspect I mentioned earlier.
So how can we do this?
We can choose to be guided by precedent. The first time a guy uses a baseball bat in an assault, we get a verdict from a judge, and have it reviewed by other judges. But for the future, we don’t have to go back over that territory again and again - we have already made note of how Guy #1 was treated; we can confidently apply the same treatment to Guy #2.
Of course, we may decide over time that a mistake was made way back when with poor Guy #1. We may decide that it’s in our best interests to change the way we view baseball bats as weapons. But as a general principle, we agree that, in order to be fair, and understanding that a written law cannot contemplate every single potential weapon ahead of time, we will be guided by precedent in applying our laws, as well as the written words of the laws.
Let’s stop here; I’d like to ask if you follow me so far, and if you agree with me so far. If not, I’d like to know where you’d suggest a change in how to do things.
I’ll just make two quick observations about this.
1: If you think that there was “a few hundred million bucks” to be made on tonsillectomies and circumcisions, you know less about the subject than I thought. In Indiana, for instance, there were 146.7 tonsillectomies per 100,000 population. This procedure is worth maybe $150 on an outpatient basis. This gives a rate of 431,361 tonsillectomies/year for $64,704,150.00/year for the entire country. Are you saying all those tonsillectomies are unnecessary? They would have to be for your statement to be true.
2: Your use of the word heresy does require a “transformation” of meaning. I have no idea how the word can go from meaning “Espousing unorthodox ideas” to mean “Enforcing orthodoxy and corruption”. And I haven’t seen anyone else use it in that way. If you are going to unilaterally shift the meaning of words and language to suit your own purposes, then you are just as “guilty” as the legal class of using language to manipulate.
One aside: anyone else want to take a crack at the partial-cab-rank scenario I mentioned earlier?
(1) Sixty years (60) x the victims who had their appendix removed because of medical ignorance by open body surgery that required several days of hospitalisation for those who recovered, without counting those who died x five hundred dollars per event*
(2) Sixty years (60)of fad circumcision x a two million male citizens x twenty bucks ($20) a pop.*
(3) Sixty years of surgical tonsilectomies requring two days stay in hospititals x two hundred ($ 200) bucks
** adjust above for inflation.*
The meaning of “heresy”.
** Americian Heritage Dictionary**
NOUN: Inflected forms: pl. her·e·sies
1a. An opinion or a doctrine at variance with established religious beliefs, especially dissension from or denial of Roman Catholic dogma by a professed believer or baptized church member. b. Adherence to such dissenting opinion or doctrine.
2a. A controversial or unorthodox opinion or doctrine, as in politics, philosophy, or science.
b. Adherence to such controversial or unorthodox opinion.
Damn, ** paperback**, if you insist that you alone will decide the absolute meaning of words, you will soon be speaking only to your own two ears. Best of luck, fellow.
One minute,** Bricker**, your two opening propositions are the verbal equlivent of squeezing a tube of toothpase in the middle. What a mess for a beginning. Give me a minute or two to put the paste back in the tube.
Milum: Now your definition squares exactly with the sense I posted earlier. How do you think it supports you use of “heresy” to mean “corruption” or “enforcing orthodoxy”? In fact, the definition you yourself posted talks of variance with established beliefs and dissension. I didn’t “decide the absolute meaning of” heresy. Your own definition undercuts what you were saying. I now have serious doubts about whether you are reading what is written.
And WRT the tonsillectomy (*) argument, you still are implying that every single tonsillectomy for the last 60 years was unnecessary. If that is what you believe, please say it. Because you are way off base on this. I take it you have never intubated a 6 year-old. If you had, you’d know that tonsils and adenoids have to come out sometimes.
While the procedure used to be almost routine for children, it is not and has not been “routine” for a number of years. Go look at my earlier cite on the subject. The rate is dropping now and has been dropping for years.
Your “quibbling” on both points only shows that you are arguing from preconceived notions rather than data.
*I’m not even touching the circumcision argument for fear of resurrecting the ghost of JDT.
Now Bricker before I address your two propositions about law let us agree on what is meant by the term “law”, by asking this question…
What is the essence of “law” that delimits “law” so that the use of the word “law” transmits a clear idea that can communicated between human beings?
But the nature of all words is such that I must answer this question by saying that there isn’t one.
But with great care I will try to stay within the shaded area of the overlap of our two meanings and respond to your two propositions.
** Bricker**
The main reason that so-called “common-sense of fairness” and “a general sense of fair play” in the administration of our laws is that the idea of “individual justice administrated fairly” works best for the common good. The common good is an evolutionary mechanism that works well against competing social systems based on coercion.
Agreed.
What? Either your example is exaggerated to make your point or both judges should be removed from office. The “deadly” aspect of anything is relative to whether or not the object can, in fact, cause death. A bat in a box can’t; a bat swung at a head can.
Why don’t you trust judges?
What? Judges can’t think? Presedent citations limit the options of judges to incoperate case specifics to the unique case that he oversees at hand.
How do lawyers currently learn of “precedent” rulings? Not by movies, not by audio tapes, but by the written word. So, Bricker, how are these precedents different in effect from “laws”.
Remember Bricker, that all words are in a constant state of transition and as such they are fuzzy things that obscure absolute meaning.
You want a list?
(1) Deregulate the legal profession state by state by devising a practical test of competency and allowing all who pass it become eligible to practice laws before the courts.
(2) Get the courts out of the debt collection buisness. Let the creditors collect their own bills.
(3) Promote the appointment and election of farmers, barbers, steelworkers, etc. to local judgeships.
(4) Allow all attorneys to advertize their services without restrictions other than the normal prohibitions against “false or exaggerated claims”.
(5) Encourage the passing of a law prohibiting the enactment of any federal law that contains more wording than the United States Constitution.
(6) Get the courts out of the buisness of ruling on the method of collection of legal fees of the attorneys who are involved in the litigation.
My example was exaggerated to make the point. If we need something more nuanced, consider a man trying to effect a robbery while armed with… his dentures. He removes his dentures from his mouth and holds them, threatening to “bite” his victim using his dentures like castanets. “And remember,” he says, “the human bite is very dangerous!”
Was he armed with a deadly weapon?
Actually, they don’t. If there is a case before a judge that has unquie specifics that make it different from the precedent, the judge is perfectly free to fashion a new approach. He does this by distinguishing the facts that make the current case different from the precedential ones. Of course, the facts must meaningfully distinguish the two cases. If the first denture-wearing robber was absolved of using a deadly weapon, but the current case involves custom dentures carved into razor-sharp fangs (perhaps by an Angel or Buffy fan), the judge might well distinguish the current case - special dentures - from the previous case of ordinary dentures.
But we would not expect a judge to note the the previous case involved a crime on a Monday, and the current case involves a crime on a Wednesday, and for this reason he finds a difference in the presence or absence of a “deadly weapon” in the dentures.
I do trust judges!
But I would argue that two reasonable people may reach different results under manifestly similar conditions. I trust judges to use their discretion and wisdom, but I do not imagine that they will be a cadre of lock-stepping automatons, ruling the same way with machine-like efficiency.
By introducing reliance on precedent, we seek to minimize the varying effects that an individual judge may have on application of the law. It’s better, I say, to provide a consistent and fair framework that all judges may use, rather than simply to rely on each individual judge’s sense of fairness. Although I certainly trust them.
They are not! Precedent is called “case law,” as distinguished from statutory law. But yes - under this system, precedents BECOME law.
But words are all we have, until that telepathy thing gets perfected. As fuzzy as they may be, it’s the only tool available.
Since I’m in the middle of explaining how and why our system is as complex as it is, I’d like to hold off on addressing this proposal, because it assumes the truth of what I’m trying to disprove – the proposition that practicing law is not a complex undertaking.
As I said, I was going to focus primarily on the criminal law side of the house, because I was most familar with it. But briefly: the civil side of law exists precisely to avoid this approach. If you’re a 6’5" 300 pound behemoth, and I’m a 5’6" 130 pound shrimp, it seems to me I’d be wise to not enter into a credit relationship with you, since I have no effective way to enforce the terms of our agreement if you default.
For the reasons expressed in response to #1, I’d like to table a response for the moment.
No objection from me.
That is not the result contemplated by the Constitution. The document itself repeatedly says “Congress shall have the power to…” I suppose this hinges on what you mean by “a law.” Right now, laws can be quite long. This rule might merely mean that each paragraph of the existing federal code be considered its own separate “law” – or it may mean that Congress is stripped of the ability to legislate in areas that the Constitution expressly gives it powers to address.
Now, I agree that in today’s world, Congress sticks its nose in plenty of places that should be the sole province of state law. But if we’re talking about the complexity of law, as a general concept, I don’t think a discussion about whether a particular law is state or federal is germane. For the purposes of this discussion, in fact, I am perfectly willing to concede massive power to the states and away from Congress. But that simply transfers the laws from one sovereign to another, and doesn’t really address our main subject of complexity, does it?
Isn’t this what the bar exam is? If you’re only argument is that people should be allowed to take the bar exam without first attending law school, you have an arguable point. One I disagree with, but an arguable point.
Yeah. Let’s let Vito and Max take care of debt collection. Or let’s go back to the old “earmark” system.
Bankruptcy law is a tool to allow for the even distribution among creditors of limited property of the debtor. Although it is in need of some reform to prevent abuse by the debtors, it is certainly promotes civility and stablility in financial dealings, which, under your scheme, would lead to unfathomable abuse.
You want lawyers to be legally competent, but judges shouldn’t be? What kind of goofy mixed up world do you want?
And when I was a wee-little lawyer, I had the displeasure of working in front of non-lawyer magistrates, and I can tell you from experience, there was a great deal more injustice done in front of them.
A discussion of attorney advertisement, I think, needs to be in it’s own thread.
Actually, there has been a movement among legal commentators, judges, and legislators, to use more plain language in statutes. And encouraging berevity of language is fine, but how would you enforce it? Areas of the law, such as tax, corporations, or capital punishment, require many detail specific statutes. I’ll agree wholeheartedly, there is way too much extra language and unnecessary verboseness in many statutes, but they should be looked at on a statute by statute basis.
Back to Vito and Max? I think this kind of regulation would have the exact opposite effect, that rather than decrease the fees paid to lawyers, it would increase it.
(6) Get the courts out of the business of ruling on the method of collection of legal fees of the attorneys who are involved in the litigation.
Hey ** Bricker**, you criminal law types are missing a sweet bet, check out the boys and girls over in civil.
And, I get it ** Hamlet**, you guys don’t need no Vito and Max. You got your own Vitos and Maxes sitting as judges in the Florida Supreme Court.___
$49 Million Lawyers’ Fee Okayed in Case Where Clients Got Nothing
September 28 2003
Dismissing all objections, the Florida Supreme Court has granted final approval to settlement of the flight attendants’ secondhand smoke class action. The case induced a promise from the tobacco industry to donate $300 million to charity; flight attendants can go ahead and press individual claims if they want, but aren’t guaranteed any results.
And the husband-and-wife litigators Stanley and Susan Rosenblatt of Miami were accorded (the technical term is “waltzed off with”) $49 million in legal fees and stuff.
The Rosenblatt’s deal also required that the burden of proof in the individual cases be shifted to the tobacco companies, that the statute of limitations be removed, and that each defendant be given a videotape of the proceedings to be used in their trial. Florida attorneys have taken their cases on contingency fees.
(Note to mods: small portions of a larger article here).
Yeah, the flight attendants got shafted, all right. :rolleyes: The award was later reduced to a measly half million, but tha’s a lot more than the nothin’ they would have recieved.
Italics mine. Originally the plan was for anyone who can fog a mirror to practice law. Now you say a “practical test of competency”, presumably a bar exam, should be adminstered. Which is it? Or is it really neither, and you’re just pulling our chain?
Ah pravnik, I see you’ve come to bury the Milum, not praise him.
But not this trip. The dusty post that you have dredged up from catacombs forgotten is fully consistant with the post that I posted today. Please allow me to adroitly integrate the two seemingly disparate posts…
** Deregulate the legal profession state by state by devising a practical test of competency and allowing all who pass it become eligible to practice laws before the courts. Then we could drop protective legal exams and thereby allow those who wish to hire out their legal skills to advertize in the free market. In this way we can flood the courts with newly franchised attorneys and de-nut the bar associations and restore justice for all Americans - rich and poor. **
The point, Ace309, is that words (especially written words) are diluted in meaning by verbosity.
The American constructors of the United States Constitution knew this and so presented the first principles and laws to direct an entire vast nation using fewer words than a instructiion pamplet on how to operate a vacuum cleaner.
Words are slippery things and laws need to be concrete.
Regarding the Constitutional Convention: of the 55 delegates, 35 were lawyers, who were in the business of practicing law to make money. Some had also been judges. They relied on the English common law system of precedent and case law in their own practices and set up a federal court system that would operate the same way. Precedent and case law is not a recent invention, it’s our legacy from those same founding fathers.
Also, you think they didn’t use legal terminology in writing the Constitution? What do you think corruption of the blood, ex post facto, writ of habeas corpus, and bill of attainder are?
Finally, I’d point out you’re still backpedaling on legal competency exams, because that’s not what you said. You said drop legal exams. You included no qualifier. If that’s not what you really meant, perhaps you see now how occasionally including extra words to clarify what is meant can avoid problems down the road.
