The Nonsense Factory

AUTHOR’S NOTE

This book describes law in its essentials. Law is riddled with quibbles and caveats, but in the interests of clarity, I have forgone the customary qualifiers of “generally,” “for the most part,” “subject to,” “absent other factors,” etc., save where it was important to emphasize exceptions/generality or when a concept was introduced for the first time. I have also focused on federal law, which applies nationwide.

This book presents law as it stood in 2018, though law’s tremendous inertia should keep matters current for some time. The most likely and consequential shifts over the next few years will involve federal agencies and executive power (Chapters 5 and 13, especially).

The standard inflation-adjustment is CPI-U (Consumer Price Index for All Urban Consumers). Anachronistic spellings and capitalizations have been updated where sensible.

Britain plays an outsize role in American law. Because English practices dominated British and early American legal thinking, I have conflated Britain and England where doing so is reasonable.

I have omitted the last three days of a Congressional term in references to years (e.g., the 115th Congress ran from January 3, 2017 to January 3, 2019, but for simplicity, its work is denoted as for 2017 to 2018). Citations within citations are also omitted without comment by default, and I have not conformed the endnotes to the nitpicker’s bible/legal citation manual, The Bluebook. There should only be four basic rules for citation: (1) accuracy; (2) reasonable consistency; (3) sufficient detail to give readers an impression of a source’s credibility and aptness; (4) enough information that one cut, one paste, and two clicks can retrieve the source.

PREFACE

THE EXCEPTION IS THE RULE

This book is about the increasingly serious failings of the American legal system. In the common view, law is a system of intelligible rules, made sensibly and applied evenly. That’s a reasonable definition of what law should be, but not an accurate description of what law has become. Over the past century, whole fields of law have grown so bloated and confused that not even a subset of their rules can be administered consistently. To cope, law modifies or ignores its own rules on the fly, and the entire legal system is backsliding toward a regime in which the arbitrary supplants the absolute. Eventually, what calls itself law will cease to deserve the name.

There’s no denying that law is bedeviled from within and without. The Trump Administration vividly reduced entire provinces of law to failed states, but that is not the only reason why the legal system needs a critique, nor is it what compelled me to write this book. Trump’s actions add an undeniable relevance, but only in the same way that discovering a gas leak adds urgency to the calamity of a house already on fire. Law’s crises preceded, and will outlast, Trump.

A major theme of this book is that as law becomes less lawlike, the essential goods we expect from the legal system—order, justice, legitimacy—will be in ever shorter supply. A minority of Americans already suffer these legal deficits, severely. But general legal decay consigns all of us to injustices large and small. Whether our antagonists are police, building inspectors, litigious opportunists, or Social Security benefits administrators, our legal difficulties are real, and they will get worse. These are the inevitable consequences of a system of rules self-liquidating into a chaos of exceptions.

Consider the right to trial by jury, provided by the Constitution, and American law’s crown jewel. It is The Rule. Yet American trial courts conduct very few trials—a withering that became quite pronounced in the 1980s.² In criminal matters, virtually all charges are now resolved by plea bargains, each fashioned according to the unaccountable whims of a prosecutor selecting from a vast menu of crimes. These bargains are the exceptions, made ad hoc, and they leach the jury trial rule of its value. Nevertheless, the Supreme Court condones plea bargains as useful expediencies, explaining that the rules of criminal procedure have made trials dauntingly intricate and expensive. Notice that the Court does not make a Constitutional argument; it offers a bullet point on the management consultant’s slide deck, sandwiched between “outsourcing” and “downsizing.” The Court works a betrayal, and claims that it’s for our own good.

Trials have also disappeared in civil proceedings, such as disputes over broken contracts, employment discrimination, cell phone overbilling, and medical malpractice. We are all potential parties to these sorts of civil disputes, and we have a right to trial by jury. Again, the Court says modern litigation is too cumbersome to fully honor Constitutional promises. The Court therefore sanctions arbitrations, privatized justice whereby stronger parties can divert troublesome litigation into fora of their own design, using whatever procedures and “judges” they deem most useful to themselves. The Court proclaims its satisfaction with these arrangements, and why not? Justice seems to be just another chore to life-hack.

How did law become so lawless? In large part, because the rot is spreading from the top: the institutions that make the rules cannot be bothered to abide by them. Congress can’t even follow its own rules for making rules: to pass legislation of any importance, Congress resorts to emergency procedures that sidestep committees, open debate, and normal voting. Yet, for all the compromise and strain, Congress voids itself of surprisingly little substance. The real work of legislating is offloaded to bureaucracies, which take their own shortcuts to hustle product out the door. The net effect is that rules can be created in enormous volume, but not always well, nor in compliance with the authorizing law or the Constitution, America’s ur-rule. To apply the sprawling rule book in the real world, the system’s enforcers must cut corners of their own, engendering litigation that the Court must resolve. Naturally, the Court issues its own rules, barely workable in theory and mostly unusable in practice, which must be ignored in turn, and the cycle of expedience becomes fully self-perpetuating.

Notwithstanding these dysfunctions, a generally dismal reputation, and specific and well-publicized disasters, law has escaped a comprehensive critique. This is not the public’s fault, but the legal community’s. Scholars jealously guard their status as the definitive arbiters of legal discourse. For the most part, their work lacks scope and interconnection commensurate with claims of monopoly. Legal scholarship is overwhelmingly specialized, inward-focused, and prone to viewing grave catastrophes as mere by-products of theoretical kinks. Law’s provincial pathologists spend endless hours counting angels impaled on different pinheads, which fosters the false impression that law’s problems are compartmentalized or abstract, amenable to being ignored or tweaked. In fact, most of law’s problems are systemic, deriving from the same few sources—the swirl of rules and exceptions being a chief example. The whole of law is poisoned, with tangible and serious consequences, and requires a comprehensive overhaul.

To chance an extended metaphor, law is a giant factory. In a perfect world, the factory would be run according to a sensible plan, rigorously monitored, with customer satisfaction carefully scrutinized. In reality, the factory is bedlam. Every division receives instructions that are too complicated to follow and quotas that are impossible to meet. Each division tries to make its numbers by taking shortcuts, hoping that someone else will pick up the slack. Because the divisions don’t communicate and quality control has taken an extended holiday, few workers realize how awful the product is. A normal factory so poorly run would be overhauled or shuttered. But law is not a normal factory: it can force people to buy whatever it produces.

Naturally, customers are not satisfied, but until they understand that the entire legal enterprise is at risk and demand corresponding reform, we are all victims-in-waiting. Though our tragedies will differ in kind and degree, none of us can escape the decay of a system that controls every aspect of our lives. What law needs is a wide-angle critique, and that demands a generalist, which is where I hope to be useful. Rather unusually, my legal career broadened as it progressed. I began as a securities lawyer and, had I proceeded on the normal course, I would have ended as one. I would have burrowed into my specialty for forty years, and retired believing that I had the odd luck to toil in an unusually messy corner of the law, one whose disorganization was merely a function of being too vulgar to attract the attention lavished on glitzier subjects like Constitutional law (which surely worked better). However, I quickly left law firm practice to become a general counsel, and then a private client, working with more than a dozen law firms over the years. As I spent time with legal specialists in different areas—finance, employment, health care, construction, intellectual property, and tax—I noticed important commonalities. Everyone seemed to believe their specialty area was a mess, yet few attorneys asked if the rest of the system was similarly afflicted. They simply assumed that the legal system as a whole was reasonably healthy, overseen by a Constitutional Higher Power according to some sensible plan. They didn’t check if that was true. In fairness, that wasn’t their job. Their job was to answer technical questions and get me off the phone before any metaphysical (and potentially unbillable) questions issued. My job here is to provide a more panoptic view.

If the panoptic view requires a generalist, the realist critique demands an expatriate. Residents, especially those at law’s higher ranks, have difficulty separating themselves from the very worldview that requires examination. Moreover, for all its other problems, law has, by definition, served its elites well, making it harder for them to see (or care) whether law is working for everyone else. Indeed, some traditions hold that the efficacy and morality of laws are not proper subjects for legal study—though the public surely cares about those matters, and the public is the nominal source, and intended beneficiary, of law. (Why else would it tolerate lawyers?) Furthermore, many eminent legal commentators, whatever their doctrinal perspectives, must maintain polite relationships with the legal system. One would no more expect an august professor or judge to write a broad and searing account of the legal system’s failings in the Harvard Law Review than imagine Jeff Bezos exposing the failures of techno-capitalism in the Wall Street Journal. Having extracted myself from the vocation of law, I’m largely immune to these considerations. While I stand behind the text alone, to the extent my arguments have credibility beyond these pages, it’s because I’m appropriately free of conflicting interests—as all lawyers, and all critics, should be.

Although I have no great responsibilities to law, I do have responsibilities to you, and they’re straightforward: to inform and to entertain. I’ll be glad if your reading provides some useful knowledge, such as your ability to nullify an unjust law if serving on a jury, notwithstanding the misleading instructions that judges often deliver. And I hope what follows is interesting. The law is fascinating, as the evergreen popularity of legal dramas makes plain. But the genuine article is so much more compelling and colorful than cinematic derivatives. Screenwriters might pause at having a character’s liberty depend on whether a fish is a “record, document, or tangible object.” But in real life, that issue went all the way to the Supreme Court, and it was a 5–4 nail-biter.³ (The result: a fish is not a “tangible object,” at least when it comes to the Sarbanes-Oxley Act. Actually, the case should have been decided 9–0, because why was government using an Enron-inspired law to hassle fishermen?)

Along the way, I hope to discredit law’s central claim, which is that the legal system works as a coherent whole to produce outcomes that citizens recognize as just. Opinion polls suggest that most Americans already disdain law, but whenever we vote, call 911, sign a contract, hire a lawyer, pray that the courts provide us deliverance, or do any of the million other things in which law plays a role, we reveal our residual faith in the system. Regrettably, that faith is increasingly misplaced if this book’s second theme is correct: that the law can’t fulfill its promises—not reliably, not in its present state.

Before we proceed, let me provide one more illustration of how the chaotic, unfeeling operations of the legal factory produce perfect, and perfectly legal, absurdity. Recall that the Court (and Congress and other members of the legal firmament) have allowed corporations to force consumers—you, me, everyone—into “gotcha” arbitrations. The mere act of testing a product can be enough to shunt consumers into this world of rigged non-trials. Well, as it happens, this book is a product, and by reading any further, those legal luminaries—but emphatically not other readers—hereby consent to binding arbitration, per the Appendix. What the Appendix requires is that arbitrations occur at the time and place of my choosing (Antarctica is charming, I hear), with my mother as sole arbitrator. To which some of the professors, judges, and Congressmen pilloried herein might respond: that’s nonsense.

Well, it might be nonsense, but it’s also the law.⁴

INTRODUCTION

It’s not only possible, but likely, that all three branches of government are controlled by criminals. At a minimum, it cannot be proved otherwise, for the simple reason that no one truly knows what the criminal laws of the United States contain. The U.S. Department of Justice, charged with enforcing federal criminal law, can’t even count the number of criminal provisions. The DOJ attempted a census in 1982, but after two years of intensive research, it could only say that “approximately 3,000 federal crimes” existed.² The difficulty was that America lacked (and lacks) a unified federal criminal code; Congress blithely sprinkles criminal provisions across the vast plain of law, a practice so unhelpful that DOJ’s counting project was undertaken “for the express purpose of exposing [its] idiocy.”³ What DOJ did not appreciate is that idiots are immune to charges of idiocy, and Congress continues to play Johnny Appleseed, sowing crimes in unknowable quantity, in unknowable locations. Of course, laws that cannot be counted or found also cannot be understood or obeyed. The legal system declares that our problem—which it surely is, though it shouldn’t be.

Today, the number of federal statutory crimes has grown from 3,000 to something well over 4,400, though the exact total is uncertain.⁴ What can be stated confidently is that there are far more than 4,400 ways to incur criminal sanction. By 2013, federal bureaucracies had emplaced some 300,000 provisions with criminal implications.⁵ To those unsettling and formidable totals must be added the various criminal laws and regulations of the fifty states and their bureaucracies, and the ordinances of the nation’s 19,508 “incorporated places.”⁶ Of these millions of prohibitions and demands, many are trivial (Massachusetts can fine you $100 for starting the national anthem, but failing to sing it to conclusion), others verge on nonsense (Alaska’s prohibition on being drunk in a bar, which police actually enforce), and some openly conflict (federal prohibitions on marijuana against state legalizations of the drug).⁷ But rules are rules, no matter how inane or contradictory, no matter how fragmented or incontinently produced. What exists, we must obey; ignorance of the law is rarely an excuse. Because obedience is impossible, we all become criminals. Surely there is something deeply repellent about a legal system that condemns everyone, even if only technically, and even without consequences.

Voluminous as the criminal laws are, they constitute only a subset of the much larger corpus of law, though how much larger a corpus is destined to remain mysterious. In 2013, after endless inquiries by citizens, an exasperated researcher at the Library of Congress declared that counting the number of federal laws in force was “nearly impossible,” and declined to go further.⁸ (The research division’s motto is in custodia legis, so these self-styled “legal custodians” seem to have lost track of their foster children—which seems illegal, but how are they to know?) One could plausibly argue that the unknowable superfluity of laws violates Constitutional guarantees of due process. That argument would be laughed out of court and most scholars would view it as embarrassingly unsophisticated, which speaks less about the merits of the due process argument than the mentalities prevailing in law’s higher ranks, whose members accept lunacy as the cost of doing business. Law’s elite (a word I use with no pejorative connotations) will happily critique any one error produced by the system, but rarely the system itself.

Yet, the system deserves a critique, because the stakes are so high. Law holds our lives and fortunes hostage. It reserves to itself the right to kill, draft, imprison, and tax us; affirm or void our marriages; regulate what we eat and drink; control how we work; and limit what we can say. Through “civil forfeiture,” law can seize our property without charging us with a crime first (or, indeed, ever), a procedure law enforcement has used to line its own pockets and by which government relieved Americans of more property in 2014 than burglars did.⁹ Against these powers and their abuse, citizens have limited recourse. The law grants its servants wide immunity from victims’ suits to recover compensation. A cop can shoot you without financial liability, even if you’ve committed no crime and pose no danger, and even if the cop’s conduct was otherwise unlawful, so long as it wasn’t so grossly unlawful that no “reasonable” officer would have sanctioned it. (Law’s definition of a “reasonable” officer is wildly unreasonable, but that’s for later.) Thus, we the people, the notional source of legal power, are in practice the subjects of a discretionary and overbearing monarch named Law.

Like all monarchs, law employs swarms of courtiers to assure us of our master’s benevolence. John Roberts declares American courts to be models of justice; police departments promise us their courtesy, professionalism, and respect; the Pledge of Allegiance speaks of the liberty and justice guaranteed to us by our republic of laws. When confronted with evidence that these ideals have been violated, law’s PR team processes through the spin cycle: first, deny the wrong (“an unfortunate accident”), then blame the victim (a “bad hombre”), and finally, and only in the most extraordinary cases, concede the wrong while denying its importance (“one bad cop”). The formula can be applied as necessary to the corrupt Congressman, hapless bureaucrat, or abusive warden. Even Roberts’s model federal judiciary now finds itself with explaining to do; in 2017, media reported that Alex Kozinski, one of the nation’s most esteemed federal judges, was a serial sexual harasser. (No great surprise, given that he was investigated in 2008 for hosting an open pornography server, a matter promptly whitewashed and filed away.) So Kozinski, the erstwhile upholder of laws, seems to have broken quite a few himself, though he still found the time to mentor our newest Justice, Brett Kavanaugh. Kozinski is hardly alone. Just as local litigators knew that a sleazeball stalked the Ninth Circuit long before the media identified him, so, too, insiders know that abusers, tyrants, and crooks inhabit their own provinces of the legal system. Insiders just don’t know if their experiences hold universally.

Nevertheless, if there really aren’t too many bad apples, and most of those are promptly fished out of the barrel, then perhaps the legal system deserves our patience as it self-corrects. Brutal cops will be disciplined, corrupt Congressmen will be shamed into resignation or voted out of office, erring judges will be unseated, presidents will face legal sanction, and so forth. These comeuppances happen all the time, and are touted as proof that the system works, but that can only be true up to a point. If Volkswagen discovers a defect and issues a prompt and voluntary recall, it’s fair to infer that VW has a stern commitment to quality. If VW issues dozens of recalls and only after media exposés (which is essentially what happened with VW’s emissions scandals), the more plausible interpretation is that there’s something rotten in Wolfsburg. Every complex system makes mistakes, but only gravely flawed systems make mistakes in volume—and law does make mistakes in volume.

In earlier pages, I contended that an important reason for the frequency and seriousness of legal failures is that law’s constituent parts do not understand each other very well. (Nor, as we’ll see, do they understand the public they serve.) I do not argue that all parts of the legal system need to agree; indeed, the Constitutional system of checks and balances presupposes that they often will not and should not. Rather, my argument is that when various parts of the legal system interact, they need to comprehend the workings of their partners. That comprehension often goes missing. For example, when Congress passes ambiguous or otherwise defective laws, judges must be able to decipher the purpose of those laws to apply them properly. To perform their interpretive feats, judges use a set of elaborate canons that they believe allow them to inhabit the minds of Congressional drafters. But empirical research shows that many legislative drafters are unaware of judicial canons, and those drafters who do know about the canons either disregard them or reject many of them outright. Accordingly, judges sometimes reach erroneous results because they have used the wrong tools. The law is filled with these sorts of misunderstandings, and as legal product passes from one department to another, defects compound.

To assess the scope of law’s dysfunctions, this book takes a general tour of the American legal system (which I’ll sometimes call “law,” as context allows). To keep things to a single volume, this book breaks with several traditions. In legal academia, it’s customary to survey all the monuments of existing scholarship, no matter how ancient or boring. That’s about as gratifying as visiting the Met and allotting equal time to van Gogh’s paintings and a tray of Dutch doorknobs. Close detail will be provided when it matters, but I’ll leave the microscope on the shelf whenever possible, and this is for the best. (I once wrote an academic article parsing the word “scienter,” which roughly means “wrongful intent.” That took forty pages; holding to those standards, a book analyzing the Constitution would consume at least 300,000 pages, while a treatment of the Affordable Care Act’s regulations would demand several hundred million.) Rather than going through the tiresome motions required of Respectable Contributions to Legal Discourse, this book reviews the general dynamics of the American legal system and its most consequential successes and failures.

I hope that the evidence adduced persuades you of my thesis which, to recapitulate, is that the various cogs in the legal machinery often do not mesh, leading to miscarriages of justice. For non-lawyers, this may not seem terribly ambitious. Yet, it points a gun directly at the heart of law. Law claims—indeed, must claim—that its parts work in harmonious comprehension. If judges don’t understand how Congress works, they will misinterpret legislation. If Congress, which has delegated enormous power to executive branch bureaucracies, doesn’t understand how those bureaucracies work or how much power has been given away, legislators may find their intentions disregarded, or even thwarted. And, of course, for legal actors to understand each other, they must possess a degree of self-awareness. But like the mad, forlorn Lear, they have but slenderly known themselves. Congress, for example, rarely reads or understands the legislation it passes, which is how the Senate managed to accidentally and dramatically raise some corporate taxes in its version of the Tax Cuts and Jobs Act of 2017.¹⁰ The goal is to simply produce rules quickly and in volume, taming any monsters by means of exception. Worse still, law’s departments, each overwhelmed by managing its own Island of Dr. Moreau, hardly realize that their beasts have escaped to breed with other creatures in a larger archipelago of deformity.

The chapters that follow examine the different parties that make, interpret, and enforce law. However, description is not enough—law doesn’t simply exist; it should be effective and legitimate. Accordingly, the first chapters address what laws can do, how they can be made well, and where their limits lie. These matters are not properly addressed in American law schools, an omission that reverberates throughout the legal system for the obvious reason that law school graduates fill many critical positions in the system. Lacking a firm notion of the sane and the good, lawyers can only make undereducated guesses, using hunches informed by legal customs. These customs are more habits than heuristics, but to the extent law thinks, these are its default modes of cogitation.