Whose Pocket?

If you're not a large corporation with unlimited funds for lawyers (or if you haven't bribed the judge) it may be difficult for to get prompt and proper adjudication of a lawsuit. The problem is one that most affects a plaintiff who is an average citizen suing a large firm. Two of their (the defendant's) techniques (among others) are delays in trial, and extension of the proceedings in order to make the litigation too expensive for the plaintiff to afford.

On the other hand, we hear, on occasion, of a jury that finds for a plaintiff and awards not only compensatory damages, which may not be large, but punitive damages in an amount that staggers us. The payment of many millions – or tens or hundreds of millions – may be decreed. Of course the defendant will appeal and invoke any legalities that may help it (I'm assuming it's a corporation) from paying the damages – at least not as much as has been determined. So the plaintiff, who may have won the case, remains without compensation for the harm done him, and faces more time in court.

Settlements, of course, will sometimes, shorten the process. The problems with them are that the amounts paid are less and, after the lawyer is paid, may not represent adequate compensation for the damages and for the plaintiff's time and aggravation. Often moreover, the parties are not allowed to disclose the details of the settlement, in the hope that others won't be encouraged to sue in the hope of a windfall.

Another consideration is that the punitive damages may actually be excessive in relation to the harm to the individual, although it may not be small when damages to all of those affected are considered. It winds up as a windfall for the plaintiff and his lawyer – one that may not be warranted. It helps them, but not the public at large. It's not fair.

Can a better system be devised? Perhaps. I'm not especially concerned about corporations that have harmed our citizens and, although aware of the faults, would continue to do so because it helps their bottom line and they don't anticipate ever having to pay the piper – or at least not having to pay very much. (I must admit my view that some companies that are following the rules and are unaware of damage they do should be evaluate differently. I leave that concern for another time.) My unease is with those who feel they have been wronged. I realize that individual suits may be a form of extortion but I'm convinced that the greater fault is on the part of those who wronged them, if that is the case.

I also feel that a large payment for silence, or excessive punitive damages awarded to an individual because a jury is feeling its oats, or for whatever other reason, does not serve the public good, however much we may enjoy the fact that a corporation with deep pockets is being humbled. I am also troubled by the long delays which deprive the plaintiff of justice.

My lack of legal credentials, however, does not forestall me from making some proposals for dealing with this situation. I'm nothing if not all-knowing – even in areas in which I lack knowledge. And I also recognize the fact that at certain levels the rules are decided locally, reflecting local views rather than those of the federal government. If they are deemed reasonable and worthy, one or more of my proposals could be incorporated into state law. There are three areas that I want to address.

The first relates to punitive damages. They should go to the government – to all of us (for tax relief, improved government projects, aid for the needy). They are fines that should not go to the individual suing. Too much of it goes to his lawyer in any case. Decisions about punitive damages should be argued following a decision about responsibility and not be part of the initial findings of the jury, although compensatory damages may, as discussed below. Government lawyers should take over if an initial decision of guilt is made. They'll have more time and backing than the plaintiff's lawyer, and are better prepared to withstand the actions of an opposing corporation's staff.

The second area of note for me is that of compensatory damages. From my perspective they should be generous if the jury believes the defendant to be at fault. In addition to repayment for the actual offense, the following areas should be compensated (assuming they are not factors in that offense): time lost related to the offense itself and the legal actions that followed; legal expenses (and perhaps these should be specified so that they don't come from the overall settlement); embarrassment and damage to the plaintiff's reputation; anticipated future losses and costs likely to result from the wrong; and any other area that the jury considers appropriate. The threat of such damages and of government lawyers in the second phase of the action may convince the wrongdoer that, since there would be no consideration of punitive damages, a quick settlement, even if generous, would be less costly than protracted legal actions. (Of course if the jury decides that the suit was frivolous, costs should be paid by the plaintiff.) Class action suits would not be affected by these rules.

Finally there is the consideration of time. “Justice delayed is justice denied.” Trials should be swift. There should be short time limits set for consideration of the facts prior to trial, for appeal of verdicts, preparations for appeals since the one appealing will already know why he is dissatisfied, and any subsequent actions. At some point the awarded damages should be paid, irrespective of the stage of litigation. Whoever considers the decision unjust would have to initiate a new suit at that time, and the rules would be the same.

The purpose of such procedures would be to speed the judicial process and ensure the rapid payment of whatever is due – whether to the plaintiff or defendant. And it is aimed at the payment to the government of sums that will be available for costs that later result from the actions that prompted the suit.

If “deep pockets” are going to cover the costs of damages they've done – both to the individual and to society, and to pay them in a reasonable time, it may be appropriate to change the rules of “the game.”

May 25, 2017

Doing – Part 2

There are other considerations, possibly lower levels in the process of decision-making, but I think not. Habit controls a lot of what we do. We're not conscious of the role it plays, even as we act according to our own long-standing patterns. You may think of it as a personal tradition, but it probably lacks the literary or historical “justification” of a tradition.

Additionally, it's not really habit, but a good deal of control is placed on those of us (and that means me) who are compulsive. It's control exercised by our own brains. Whether it means straightening pictures, picking up pieces of paper from the floor, or, more productively, putting away what we take out, there's a lot to be said for a compulsive personality – and it's not all bad.

And there are community expectations. Many of the things we do are in response to what is expected of us. We may not agree with them or even understand them, but we know that those around us will judge us on their basis. For example, the person with whom you are walking may chide you for not crossing against the light when there is no traffic coming. And you may wonder, as well, whether your actions make sense or if they're simply reflexes.

(Reflexes themselves may be the cause of some of our actions, but I won't address them here.)

But there's another reason. And it has no explanation whatsoever. In fact it's almost embarrassing to discuss and I'm completely unable to vindicate it, but it's probably the best explanation for all my actions. To a degree it's a combination and a distillation of all the other rationales: I do things because that's what I do. I can't always justify what I do, but I know that if I do otherwise I'll have the feeling that I've done something wrong. It doesn't make much sense, but a lot of what I do is aimed at preventing me from feeling guilt.

I've omitted any direct language regarding “right” and “wrong.” A discussion of absolutes is likely to make the problem worse rather than help in its solution. Many would argue that they don't exist – that there are different norms in different societies and all are right. Isaiah Berlin writes (in The Power of Ideas – cited by Sacks)

Herder laid it down that every culture possesses its own centre [sic] of gravity; each culture has its own points of reference … The world was a great garden in which different flowers and plants grew, each in its own way, each with its own claims and rights and past and future. From which which it followed that no matter what men had in common … there were no universally true answers as valid for one culture as for another.

That, however, cannot be completely true. The flowers may look different but they all require water and nutrients. Because they differ morphologically, we should not attribute different needs to them. Nor to societies. There may be differences, but no matter what particular groups may claim, rape and murder are wrong. And the Bible makes it clear that human sacrifice is unacceptable. And whatever the practices of a particular group, cannibalism is condemnable. Some absolutes cross religious and ethnic boundaries, irrespective of practice. And when we try to show our tolerance be adopting a “live and let live” attitude – wen we let our society divide itself in the names of diversity and multiculturalism, we sacrifice both the flower and its nutrients.

The absolutes are the taboos of individual societies. They're negative – like five of the ten commandments. And while there are differences in the religious/ethnic codes that contain them, there are some that seem to be universal, even if the societies that follow them have never had contact with each other. So although there are many who ignore the taboos, and there are many who don't punish the violators, almost everyone seem to agree that it is wrong to commit murder.

But there are positives as well – positives that seem to apply in every society. Among them are socialization and cooperation. For a society to work its members must work together. So just as there are things we don't do, there are things we do. And both groups control our actions.

One final note. As those of you who read these essays (and I can count you on one hand) know, I am ill. So it is fair to ask how my medical condition affects my behavior? To what degree are the factors which I've already mentioned in play?

To understand the answer, it's necessary to understand me. I don't want to know what's happening. I don't ask my doctors very many questions, trying only to do what they say. So part of what I do is what I'm told to do. It's another layer of law added to the ones I've already discussed.

Time, in various forms, has taken over my thoughts and my actions. I'm likely to act more quickly when something comes up – not to put it off but to take care of it immediately. I live one day at a time – as if there's no difference from my previous experiences. Still, however, I plan for the future in certain ways. One of those ways is to make lists for others (I've always made lists) of what needs to be done, and to make sure that all economic, legal, and insurance issues are covered. Simultaneously, however, I look forward to planned events. I have goals – events I want to attend. I plan as if the future is unending.

But that's all background for me. It is more involved in how I do things than in what I do. And the “what” hasn't really changed. Denial is strong (fortunately) and I pretend that nothing has changed. That's not reality, but it allows me to do what I do because it's what I do. I'd like to think that it's all logical and well thought-out, but that's not the case. I do it because it's what I do. It's all that I know.

I don't know what else to do.

December 21, 2016

Doing

Why do I do what I do?

I can think of lots of explanations. Of course I follow the law, although there are times when it doesn't make any sense. I'm hardly the first to point out the gap between the law and justice, but the law's the law. And until it's changed we're obliged to follow it, at least that's the rule. “Right” and “wrong” aren't the issues. Only what legislators have specified are our responsibilities – even if “our” representatives were rewarded by lobbyists for taking such positions.

Let me get out of the way at the outset the force enunciated by Freud – the superego. It is the conscience that we usually ascribe to parental brainwashing, and it's the force that opposes id, which could lead to anarchy. Id tells you to do whatever you want to do, but superego says “no.” It holds the taboos of family and society and, to a very great degree, controls what we don't do. But I'll deal with it later. In the meantime, let me deal with the external forces.

Secular law, and the precedents it follows, have been our guidelines for a long time. The “Social Contract” which was reformulated by Hobbes and Locke (long after Socrates accepted the authority of the state) suggests that people have ceded control to their governments in order to establish conditions under which they can survive. It was up to the state to protect us from oppressors, although there have been many instances of the state taking such a role for itself.

Allowing both secular and religious law, however, especially as imagined in the Age of Enlightenment, sets the stage for both cooperation and a conflict between the two. There is a concept in Jewish law of Dina de-Malkhuta Dina – the law of the land is the law. It is a talmudic principle that we are obliged to follow the secular law that is not in conflict with religious law. There's a long-standing tradition in Judaism to support secular authority. It's an early exposition of the Social Contract. From Avot:

Rabbi Chanina the deputy [High] Priest said: “Pray for the welfare of the government (lit., monarchy), for if not for its fear, a person would swallow his fellow live.”

And there were others – prophets – who conveyed the same message to a people exiled from their own land. But it has its limits in Torah law. Rabbi Jonathan Sacks writes in To Heal A Fractured World

The existence of a covenant with G-d means that all human sovereignty is delegated, conditional and constitutional. This gives rise to the principles of crimes against humanity and justified civil disobedience. If there is a conflict between the laws of humans and the law of G-d, the latter takes priority. This is the greatest single safeguard against tyranny, totalitarianism and the rule of might over right. It is also the principle that brought into being one of the great moral institutions of humankind: the prophet, the world's first social critic. The man or woman who “speaks truth to power” does so on the specific mandate of G-d himself.

He points out that our first loyalty is to G-d, but we have responsibilities in terms of the secular government where we live.

That certainly provides a background for my actions, but it doesn't really explain anything. The secular laws under which we live were written, and are written still, by people just like us, and our form of government is one in which there is a constant rewriting of statutes by other humans. Some of the laws are wise and should be followed – but, as Rabbi Sacks notes – not all.

And there is extensive debate concerning the authorship and authority of the different levels of religious law. Whether or not one accepts the idea of an original Divine origination, the copies that we have now, and certainly the commentaries, were human creations. Our traditions tell us that they are the will of G-d and that we should follow them, but it is easy to wonder about the authority of redacted, contradictory, and interpreted works conveyed to us by people like us.

Following them is clearly part of our tradition. Or, I should say, traditions. We follow the ways of our parents, our teachers, our shuls or our communities, our geographical areas and the strain of Judaism in which we were raised. But these are all the creations of humans who do things in certain ways, and they're not necessarily in agreement about how things should be done. And they're not necessarily good. Commenting on a musical interpretation. Toscanini said “Tradition is just the last bad performance.” Some attribute the assessment to Mahler, but whoever said it the view is clearly expressed that there can be problems with traditions – people make them, and people can disagree about them.

(To be continued)



December 21, 2016

Common Sense – Part 2

In apparent contravention of the Constitution's designation of Congress as the lawmaker, it has become common for our representatives to hand a rough outline of their wishes to the bureaucrats to flesh out. It's less time-consuming for Congress to leave the details to someone else. So the rules and regulations that control our lives are written by non-elected but tenured civil servants whose ideas become enforceable law. “The Free Dictionary” (on line) includes the following definition of a regulation – but remember that regulations, though issued as they indicate, “by various federal government departments and agencies to carry out the intent of legislation enacted by Congress,” are written by government functionaries and have “the force of law” even though Congress may never review them.

A rule of order having the force of law, prescribed by a superior or competent authority, relating to the actions of those under the authority's control.

Regulations are issued by various federal government departments and agencies to carry out the intent of legislation enacted by Congress. Administrative agencies, often called "the bureaucracy," perform a number of different government functions, including rule making. (Emphasis in original)

For example I can illustrate some of the silliness with tidbits taken from Philip Howard's book, “The Rule of Nobody.” They're only a sample because, sadly, the rules cited are only a minute sample of the idiocy that fills the manuals of those who run our lives. This is only a tiny sampling of the regulations that have been set for the evaluation of almost everything that we do. There are regulations for everything, and we're responsible for doing whatever they say. Logic is irrelevant and these regulations may not seem to make sense, but so what.

In 2011, the Community Soup Kitchen, New Jersey, was told that it must shut down its meal service. No official actually decided that there was anything wrong with the kitchen. For twenty-six years it had served upwards of three hundred meals per day to the elderly and needy, without incident. Members of various church congregations made food in their homes and provided countless grateful people with a potluck meal. That was the problem: New Jersey law requires that all food-service establishments must have their kitchens inspected, and doesn't have a provision exempting potluck meals. The health department couldn't inspect the kitchens of all the contributors, including parishioners from three dozen churches so officials felt they had no choice but to order the pantry shut down.

In 2011 the Colorado proposed new rules for day care centers. [They would be required to provide] “at least two (2) sets of blocks with a minimum of ten (10) per set” … Do regulators expect day care workers to count the blocks each morning? [You can be sure inspectors would.] … After public outcry, the rules were put on a back burner for further consideration [rather than immediately added] to the thirty-seven [37] pages of regulatory fine print that already exist, including that … “the light must be dim at nap time to provide an atmosphere conducive to sleep.”

Kansas code … There shall be no more than 14 hours time between a substantial evening meal and breakfast the following day. Which means that if someone eats dinner at 4 PM (s)he must be awakened at 6 AM for breakfast or there is a punishable violation by the nursing home.

Also in the Kansas code The nursing facility shall employ activities personnel at a weekly minimum average of .09 hours per resident per day. And Kansas must employ supervisors with mathematical skills.

One restaurant owner in New York was fined because the cheese patties next to the griddle [to be cooked in cheeseburgers] were 45 degrees not the required 41 degrees.

Government is filled with … stories of distortion of public goals to satisfy bureaucratic metrics – for example the end-of-year practice of agencies to go on a spending spree on unnecessary projects so that Congress doesn't cut their budget the following year.

A seventh grade girl in Indiana was suspended for a week in 2010, even though she immediately gave back a pill (for attention deficit disorder) that a friend had put in her hand. The principal said that he had no choice, since she technically had “possession” for a few seconds. Indiana has “zero tolerance rules.” He was playing by the book. It's less clear who wrote the book.

Another rule: Windowsill height shall not exceed three feet above the floor for at least ½ of the total window area. That's a clear indication of compliance. Don't mess with the inspectors.

(See also: http://theeconomiccollapseblog.com/archives/suffocated-by-red-tape-12-ridiculous-regulations-that-are-almost-too-bizarre-to-believe)

Binary rules like these are innumerable, and there can be no overstating the harm they cause. Their existence allows action without thought. Perhaps at one time some of them made sense, and the rules provided guidelines for action and for the evaluation of the actions performed. But it is unlikely that they ever made sense as “hard-and-fast” limiting criteria for the evaluation of any program. Yet they have become the points of reference by which our acts are judged. (The inspectors view this as following the letter of the law.)

It is no longer necessary to determine whether any particular action is logical – whether or not it is appropriate under the circumstances. Either it fits the previously prescribed criteria or it doesn't. Almost everything that we do has been reduced to components that are either “right” or “wrong.” And those that are “wrong” are not permissible. If an inspector (or, as I will indicate below, anyone else), who doesn't need to really understand what he is evaluating, views any item on his checklist as unfulfilled or improperly fulfilled, the project can, and probably will, be rejected. It's bullying. The need for the project is irrelevant. Whether or not the goals set out are met doesn't matter. And the bureaucrats don't have to go through the tedious job of choosing inspectors who know or care about whatever they are evaluating.

The ability to judge – to find that all the rules have or haven't been followed – provides an industry by itself. When a documented failure to meet criteria exists there is opportunity supplement income by certifying the those criteria have, indeed, been met. It simply takes the joint agreement of the inspector and the inspected, however that agreement is met, in order to find compliance with the rules. We read all too frequently of such situations, with inspectors certifying compliance when it doesn't exist. And they may be more sensitive to real or imagined infractions when outsiders – lobbyists or others – convince them that such a determination will be in their interests.

Who benefits from these regulations? Ideally the public, but because they can be abused, and because they are abused, they often work to the detriment of the public. A lobbyist who gets a rule written that only the company he represents can follow may eventually be the cause of great expense to his competitors and the people they employ and serve. And those who know what the rules are can often find ways around them . Lawyers may specialize in determining what you can get away with legally.

It's often the case that laws, and the rules and regulations that flesh them out, have superseded common sense, substituting thoughtlessness and profit for useful concepts. They have substituted rules for common sense. But from where did they arise? There are, of course legal precedents that are followed irrespective of their appropriateness. But the rules? They come from representatives who have not thought through the implications of what they propose – what they mean in the “real world” and “on the ground” situations. They come from those who would benefit from the rules and have enough influence to have them imposed. They come from bureaucrats and other public “servants” – often long dead – who once justified, or do now, their existence and salaries by writing rules. And the often included their own biases and preferences in them. And the rules, once enacted, became the enforceable law of the land.

And the laws and regulations can be used as excuses to delay or derail important projects. All you need is an experienced lawyer who can find some deviation from a rule written long ago for another reason or which had no use even then. Or institute a law suit that has no real basis.

Can anything be done? Maybe. At least for some things.

It's not plausible that there will be a change in all laws and regulations. Certainly not all at once. Ideally there might be some kind of citizen panel to review them – perhaps one containing “experts” in the law and in the field being evaluated. Of course it would require some kind of agreement as to how such a might be selected, but sooner or later we have to come to grips with the dilemma of such choices. And the expense of the panels should not be overlooked. But if the number of rules and inspectors can be reduced it may be economically beneficial. Right now we're having trouble with other choices. Too political, and the two parties have difficulty with compromises, but that's a separate issue.

The same mechanism should be available when it is believed that a project is being stalled or canceled without good reason. A panel should be established to make such a determination. Some fear that a panel like that will lack the expertise to make a reasoned decision, but we trust juries in cases of life and death. Surely we can trust our fellow to decide that a nursing home should be licensed even if the windowsill is an inch high. We should be controlling the rules. They should not be controlling us.

Similarly State and Federal laws should be reviewed for applicability in the twenty-first century. Thomas Jefferson believed that the Constitution should be reviewed every twenty years or so – that one generation should not be bound by the laws of a previous generation. Perhaps his view was extreme, but the time comes when the past has passed, and we should update it. It's not an easy proposition and will require a lot of planning, but now is the time to start. The common sense we should have is not that of the eighteenth century.




December 14, 2016

Continuing The DACA Overload

However they came to the United States, and irrespective of who's to blame, the 800,000 or so individuals now designated as “dreamers” are here illegally. They're called “dreamers” because it's a title that invites sympathy. Their defenders claim that they're honest, hard-working, tax-paying, loyal Americans who deserve our thanks and support, and who should be allowed to stay with a path to citizenship provided. There should be an amnesty, like the one afforded those who fled our country during the Vietnam War.

Whether or not that view is merited, the fact remains that they're here illegally. DACA doesn't change that. In a country that purports to accept the position that no man is above the law, somehow we are sympathetic to a violation of the Constitution by a President sworn to uphold that document. He has stated publicly “I do solemnly swear (or affirm) that I will … preserve, protect and defend the Constitution of the United States.” It says so in Article II, but the document does not give him the authority to decide what the law should be, nor that he may decree what he thinks it should be.

Among the reasons we declared our independence, and clearly written as the final justification in the preamble to the Declaration of Independence, was that “The history of the present King of Great Britain is a history of repeated injuries and usurpations all having in direct object the establishment of an absolute Tyranny over these states.” We rejected the idea that all power would reside in one individual, and we placed legislative responsibility elsewhere.

It states, at the beginning of Article I, “All legislative Powers herein granted shall be vested in a Congress of the United States.” All. Among the powers specifically assigned to Congress was to “establish an [sic] uniform Rule of Naturalization.” It was Congress's prerogative to decide issues of immigration, and it did so. And when pressed to ease restrictions on minors smuggled into the United States it did not do so. Whether the choice was a wise one or not, it was their choice, and the unilateral declaration of the President was a violation of his oath to defend the Constitution.

But he did it. And he secured the support of a sympathetic group – the “dreamers.” And their supporters. Still, however, notwithstanding the President's actions, they were not “dreamers” but illegal immigrants. However the costs of deportation (if we move in that direction) – politically, economically and in terms of our emotions and our appearance internationally – would be devastating. It would thus be almost impossible, for a variety of reasons, to do so. President Obama has won. Whatever the legality of his action, it will remain in place. Lawsuits to overturn President Trump's suspension of the amnesty, however attractive they may be politically and emotionally, don't alter the Constitution.

There will, however, have to be a clear expression by Congress of the law they favor. (And, perhaps, a reiteration of the Constitution's delineation of the functions and powers of the President and Congress.) It should be made clear that, from that time forward all illegal immigrants, however they reached our country, would be returned to their country of origin. No lengthy procedures will be required if they cannot prove their legal status and the date of their arrival or residence. As for those already here, in an attempt not to break up families, those under a specified age, whose parents are present, should be returned with them to the country of origin unless there is a justifiable fear of harm that might come to them – in which case we should discuss with their homeland's authorities why there is such a risk.

As for the remainder of the group, they should be quickly vetted for illegal activity apart from their immigration status. If such information is found, they should be tried for their alleged crimes and sent home after completion of any sentence if convicted. They should be treated as any suspect would be if he were a citizen. Those who are deemed to be possible criminals should be subject to the laws of the country in which they reside. And those who are simply living at the expense of taxpayers should do that in their countries of birth.

Those left after the initial screening should have a path to citizenship – not because they're entitled to it by law but because existing situations, even if their origin is questionable, are sometimes impossible to reverse. The path should be more difficult than that for those who have followed a legal course, but it should be available. Those who choose not to accept it should remove themselves to a place where they feel they would fit in better.

I offer these thoughts fully cognizant of the fact that I am supporting an action I consider completely illegal. It's my hope, however, that the President and Congress (and the courts for that matter) will revert to the roles set out for them in the document that they swore (or affirmed) they would uphold. Policies based on emotion but not supported by law may make us feel good about ourselves individually, but they weaken us as a nation.

The Law Is An Ass

Don't look at me. Those aren't my words. Mr. Bumble said it (in Charles Dickens's Oliver Twist) and, for better or worse, that's what many people think. It doesn't matter if a law is just. It's just the law. And it will be followed whatever the implications.

One of the other main complaints is that, from the public's perspective, there are too many lawyers, and that they stimulate litigation and are more interested in winning cases and making money than they are in obtaining justice. It's a question of win or lose rather than right or wrong. One of the most popular “lawyer jokes” (yes, that's a genre) describes one dead lawyer as “a good start.”

Apart from the legal documents which we can't understand, there are two primary stages for the law from the point of view of the average citizen – as it applies to him [or her]

1. directly – as a juror or, for better (he sues someone or benefits from a law) or worse (he is sued by someone or is affected detrimentally by a law) or
2. indirectly – vicarious interest in the affairs of others, fact or fiction brought to him by the media.

Direct involvement is generally a hassle. The further one stays from the legal system the better. Win or lose one winds up with a major expense and an ulcer. But indirect involvement is fun. Most enjoyable are those instances when there is a trial and the individual matches his knowledge of the evidence and his “expertise” against the real or fictional jury. We know some things that jury members aren't allowed to know and, obviously, we are not party to much of the testimony they hear. And we often learn more than they about the application and the implications of the law at issue. The description of that law, and its application, are usually limited by the magistrate in jury instructions to the way they pertain to the particular case.

But that's often not good enough. Even after all the evidence is presented and the judge has described the law and the options of the jury, there are many instances when one or more jurors is uncertain about how to vote. There are “hung” juries (situations when a jury cannot reach a verdict) and mistrials based on that uncertainty. And there is occasionally an instance of “jury nullification”

when a jury returns a verdict of "Not Guilty" despite its belief that the defendant is guilty of the violation charged. The jury in effect nullifies a law that it believes is either immoral or wrongly applied to the defendant whose fate they are charged with deciding. (Doug Linder – University of Missouri – Kansas City)

That's an uncommon result however – usually because the jury doesn't think of it. More common are the cases in which one or more jurors has questions about the case whose answers would make deciding easier. But the rules are the rules and it's often difficult to get answers that are needed. Questions must be addressed to the judge and answered by him in terms of the testimony already given or based on the specific law. Sadly that may not solve the problem. Perhaps the rules themselves are in need of modernizing with the goal of achieving a fair decision rather than a judgment of who is the winner in a legal competition; between grandiloquence and a quest for truth. There is a difference between law and justice. There are times when attorneys avoid subjects they fear would be harmful to their cases, and they are not obligated to present them.

One way to deal with what is at least a part of the problem is to let jurors question witnesses and judges. They're the ones who must make the decisions. (Depositions are available to lawyers giving them the opportunity to gather facts and decide what will and will not be presented to the jury. As a result those affected indirectly often have questions and opinions beyond what is presented or permitted in court.) Perhaps jurors' questions should be screened and reworded by judges or others, but if jurors have questions, answering them is the best way to get an informed decision. Would there be more or fewer appeals? How would it affect costs? Would it affect the number of appeals? How would it affect the interest and attention of jurors? With additional information – specifically clarification of points of fact and law – jurors might reach more, and more-informed, decisions. They might reach them more quickly than is currently the case. And by questioning the judge, jurors may learn that their concerns are covered by existing statutes, and nullification is unwise and unnecessary.

It's not the way things are done but that doesn't make it wrong. The system as it now exists allows attorneys to conceal what they don't want to say, and to use their rhetorical skills to try to convince jurors to accept their arguments – even if they are concealing pertinent information which their opponent doesn't consider, though a juror might. And the current system limits a judge to a strict set of rules, precedents, and interpretations rather than a full a full menu. He is limited to judgments of the past, and the jury generally (but not always) doesn't learn what the judge meant. And if the judge (or the lawyers or witnesses) is biased, there is no way now for jurors to determine this.

Perhaps this is going too far. As things stand, however, testimony is limited and may not reflect reality. Changing the entire legal system is not only impractical but will never be done. Perhaps smaller changes should be considered. Kibbitzers might be better jurors than those limited by table rules. A wise owl is more to be desired than an ass.

September 28, 2016

Values And The Law

There was a time when “values” referred to “family values”: contraception, abortion, sexual practices, and “gender” identification. It was an issue that was of greatest concern to conservatives, who were accused of trying to impose their ideas on the rest of us. Specifically it was considered to be an attempt of “conservative Christians” to impose their religious beliefs on us, (much as it was the goal of other religious groups to force us to abide by their views – atheism and other similar issues) notwithstanding their beliefs and those of others, and the interpretation of the Constitution by the Supreme Court. Following Roe v Wade they considered it settled law that abortion was legal and those who argued against it were urging their followers to disregard the law.

The debate has changed. Now the concern over values seems to be that of the supporters of “American values” as they relate to immigration. We were all immigrants and we should welcome all who want to be a part of our great nation. And those who have entered our country with disregard of the legislated procedures should be granted citizenship, or at least allowed to live here without any threat of governmental action. That perspective rests not only with individuals, but with the governments of some cities – “sanctuary cities” – that disregard federal law, but demand that their law enforcement agencies not be penalized by the national government for ignoring its rules. The only people whose voices they hear are the protesters – the squeaky wheels – who consider the law to be wrong and demand that it be ignored.

It's hard to know whether there is support for the concept because it is generally the decision of the city's leaders to adopt the status rather than the choice of voters. But that's not really the point. What is really the question is whether cities have the authority to ignore – violate – our country's laws, with or without the agreement of their citizens. And if they do violate federal mandates, are they entitled to governmental support which, from a practical standpoint, implies agreement with the way they have determined their priorities and with their disagreement with federal law. Do citizens and non-citizens have the right to choose which laws they will follow and which they will ignore? Is that the American way? They may claim “civil disobedience,” but hiding from officials makes that claim absurd.

In 1780, seven years before the writing of our Constitution, and nine years before it was adopted, John Adams included the idea of a “government of laws, not of men” in the Massachusetts Constitution. It was an idea that was held firmly in all of the colonies that formed our country, and it is still approved by most Americans. Is ignoring Federal laws an American value? Or is it an act of men (and women) seeking to gain points from voters?

Yes we were all immigrants – or our predecessors were. Most, however, entered this country according to the rules in place at the time. There was a period when there was no law on the matter and then, like most countries, laws were established regarding who might enter and what procedures had to be followed to do so. A defined process was established. And for citizenship as well. And among the requirements for citizenship was a commitment to follow our laws. Indeed, many of our “entitlements” were limited to citizens or others who were here legally.

There are an estimated eleven million persons in our country who have not followed the rules. There are many others who have been waiting patiently for legal procedures to be followed in regard to their applications for entry. Those who are already here (but not those waiting in line) are often enjoying the benefits of our nation, including jobs and entitlements. Their children go to school here and they use our medical facilities when they need them. It's hard to fault those who come because they are intent on a better life. Our ancestors did the same and there are many who do so now. But it cheapens our traditions to suggest that “American values” require that we grant blanket citizenship to those who have knowingly violated the law. I wonder if those who protest in their support know that they are promoting the selective adherence to our laws and encouraging immigrants to violate the law. They are imposing their values on the rest of us. And it sends the wrong message to others, especially those who have sought legal immigration. However lovingly we may characterize their quest, they have violated the law. However sentimentally and sensitively we may view their plight, it is contrary to Adams's teaching. And it is contrary to our values.

Exiling them all, sending them back to countries that many of them left long ago, isn't the answer, but neither is a blanket amnesty. They should be registered and provided with a path to legitimacy that includes some form of penalty for their disregard of our laws. Many of them are nice people, but they are not above the law. And we must make it clear that those who, in the future, violate our laws will be punished far more severely for their acts.

We are a “government of laws, not of men.” That's an American value.

May 18, 2017

Equal Justice

I heard on the radio about a woman who stabbed a man (her husband?) because he rejected her sexual advances. She was arrested, but released on $10,000 bail.

It intrigued me, and I looked on Google to see if there were any similar cases. Here is some of what was listed:

Cops: Woman, 26, Wielded Hatchet After Her Demands For Sex Were Repeatedly Rebuffed – It's dated June 28, 2016, and contains the following “... Free on $5500 bond, she is scheduled for a July 26 court hearing.”

Woman, 56, is arrested after she 'threatened a 25-year-old with a knife and a wooden cane because he rejected her sexual advances' Her bail was $3,500

Woman Threatens Husband with a Knife to Perform Oral Sex – She was sentenced to 90 days in jail after pleading guilty.

The details of these cases are not of interest to me. And while I have no reason to question the reports, I don't have independent verification of the facts. On the other hand, I suspect that there are other similar circumstances that are not listed in the online files. It seems likely to me that the incidence is under-reported. I doubt that many men would complain to authorities that they were forced by a woman to have sex. And I doesn't seem probable that they would do so with sufficient evidence for the woman to be arrested and charged.

As I mentioned, I'm not especially interested in what happened between the man and the woman. It's none of my business. But the criminal justice system is in the public realm and I pay taxes to support it (even if the offenses were in other jurisdictions), so I am more involved in that aspect of the situations. And I'm interested in the equity of the law and its penalties.

I remember, as well, the Bobbitt case. Although it took place in 1993, the story is hard to forget – a woman amputating her husband's penis because she “snapped.” His provocations were responsible for her state of mind. And because of the temporary insanity, she was found not guilty, requiring only psychiatric evaluation. While her husband's misdeeds may have – indeed, they almost certainly did – caused her to take action, her conduct, and that of the jury that excused it, raise questions. As does the penalty.

If a man, using a knife or a hatchet (or any other “persuader”), attempted to force his wife or any other woman to perform a sexual act, my sense is that he would not have been treated as leniently by the legal system. I am sure that his bail – if any were permitted at all – would have been considerably higher. And any incarceration would have been significantly longer. No mention is made of sexual predator status, but a man would surely have been entered in the sexual offender registry for life. It isn't clear from the articles that the women involved in these incidents suffered the same fate. Not even Lurena Bobbitt, who wasn't responsible for what she did (though if her husband had performed a mastectomy on her the result may have been different).

I have no intention of defending the men who have abused women, however they have done it. With or without weapons other than their fists. Abusive actions call for penalties. Severe penalties. And such actions are usually those of men.

Usually, but not always.

Do we treat women more leniently? It seems that way. Is it society's chivalry? Do we assume women can do no wrong? Sexual abuse of students used to be considered a problem of male teachers, until we learned otherwise. Men and women have differences, but many of them can be characterized by numbers – by quantity rather than quality. Women may be less likely to engage in abusive sexual conduct, and their sexual drives may differ in degree from men's, but we deceive ourselves if we deny their existence; we delude ourselves when we view women as if they were (what we believed were) the innocent damsels of the Middle Ages of whom we read. They were, and they are, people, and just as responsible for their actions as men.

It is fashionable, and has become so in part at the urging of women, to view men as insensitive boors responsible for all the ills we suffer. We have accepted that construct and assume that whatever has transpired, if there is any blame to be assigned, it is to the man. We have trained men to feel guilty all the time. Admittedly there are many who don't buy in, but at present it is “correct” to blame the man and let the woman off the hook. Women are in the majority but we treat them as a minority, and it is society's bias that the minority is being oppressed by the rest of us. So we grant them as many of the benefits of the law as we can, or create new laws to do so, while shielding them from its responsibilities. The scales of justice which, in the past, were weighted against them, now provide them with favor. We talk about equality, but we don't practice it.

We need to grow up. Society needs to mature. The time must come when we not only say that we are all equal, but we act that way. Perhaps some day we'll have, to paraphrase John Adams, a government of [equitable] laws, not of [women and] men. That doesn't seem to be the case currently.





September 22, 2016

Obeying The Law

If one person kills another, justifiably from his perspective, and perhaps ours, anticipating that he will never be caught, is he in violation of the rules of society?

If a small and honest entrepreneur decides against filing her income tax form one year because her fiscal position is tenuous at that time and it is unlikely that an audit will follow anyhow, should we look the other way?

If someone enters this country because he is unhappy with life where he is, and correctly determines that things will be better here, yet he does so without ever declaring his act to authorities, is he acting illegally?

Is the assault of a drug dealer a crime that justifies punishment? Suppose a close relative died of an overdose. Does that change things?

All four of the people whom I've described are acting illegally. We may be sympathetic with their motives, but they have all violated our laws as surely as those who act with malice and contempt of society's standards – at least with the standards of the United States. In that respect they are no different from those we designate as “common criminals.”

We all are swayed by “extenuating circumstances.” We all wonder what we would do in a difficult circumstance. We all would consider extending the benefit of the doubt in particular cases to the accused as we would want it extended to us were we in the dock. But by doing so we would be doing a disservice to our country and to our neighbors. We would be saying that only those whom we hate or fear, or who threaten us in some other way, should be subject to our laws and the penalties for violating them.

Yet they're all illegal acts, irrespective of the way we react to them. The violation most debated at this time is that of the “illegal immigrant” who may be a hard-working, tax-paying, generous, and helpful individual, but who entered the country contrary to our laws, or who overstays a legal limit. We're especially likely to be forgiving of the person who is law-abiding and a “credit” to the community. And if he or she has children born here we view it as an assault on “American values” to even suggest an impropriety. After all, we're all immigrants or the descendants of immigrants, and the “oppression” of poor immigrants is not “who we are.” In order to legalize their status, however, as is demanded by many, we must either suspend our concept of citizenship or pass legislation making their presence legal from the time they came: the first is an extra-legal ad hoc action while the latter as an attempt at a legal solution to the situation. But both are equally problematic, if not illegal themselves.

How is a protest rally, by well-meaning citizens, designed at forcing the government to look away any different from the decision of a dictator to ignore the corruption of his administration? Both require that we disregard our own laws and their violation by those whose actions we don't wish to punish. And passing legislation that declares that something that was prohibited in the past is now acceptable and a violator has not committed a crime, is an ex post facto law – which is specifically forbidden by the Constitution (Article 1, Section 9). We ordinarily think of such laws as ones that criminalize legal acts retroactively, but, as is noted in the Wikipedia article on the subject, “An ex post facto law (corrupted from Latin: ex postfacto, lit. out of the aftermath') is a law that retroactively changes the legal consequences (or status) of [any] actions that were committed, or relationships that existed, before the enactment of the law.” And the constitutional prohibition is clear, not a matter of interpretation. No Bill of Attainder or ex post facto Law shall be passed. There's no subtlety there. Some may view any change as a matter of amnesty, pardon, reprieve, or interpretation, but such a construction is simply a way to pardon ourselves from any responsibility for ignoring the law in favor of a current passion.

Favoring a “current passion” rather than the law, however, permits other actions, of equal doubtfulness, should passions change. And it cheapens the value of our laws in the eyes of those we want to follow them. We'd like mercy and justice to have identical paths, but that's not always the case.

The problem is not a simple one. Besides the consequences for individuals, there are also implications for society, the economy, education, and security among numerous others. It affects the way the world sees us and our status as we condemn lawlessness elsewhere. And it affects the perceptions of those who have “played by the rules,” even though veering from them would have been adventagious. A solution will have to be found, and it will be found one way or another. There are too many people involved. The soution will please many and offend many. It will please the “law-abiding” but illegal immigrants by legitimizing them, while offending those who are truly law-abiding and have waited patiently as they have gone through the tedious steps required by law; it will please those who have protested the current administration's stance, while offending those who favor the maxim of “a nation of laws, not of men” (John Adams).

The solution will be outside of the course we like to believe we take, but, at the moment, it is unavoidable. In order to move on without causing too much additional internal discord – some is unavoidable – a compromise position will have to be reached. And it should include mechanisms by which this or similar perceived disparities can be addressed in the future; ways they can be dealt with without having to violate our own laws

For it cannot be denied that, whatever the good will, the “illegal” immigrants are, indeed, here illegally.

Objective Standards

There ain't no such thing.

That's a rather flat-footed statement. It's dogmatic. But, like (almost) all of my words, it's true. There ain't no such thing as objective standards.

We use them to determine which candidate for a particular position should be selected; who's smart and who isn't; whether a violation of the law can be documented; if a specific individual is qualified to be a firefighter; what frequencies can be used for transmission of internet messages; and similar decisions for which measurable criteria can be determined.

“Can be determined.” By whom? “(A)y, there's the rub.” For the specific “objective” criteria were dreamed up by someone. In reality, however old and honored they are – and some of them seem to be eternal truths – they're really subjective. They're codified subjectivity. For example, Madison, Wisconsin limits the volume of air compressors to 88dB at 50 feet. Miami, Florida Is also troubled by the noise from such devices and forbids it from 6 PM to 8 AM on weekdays and any time on Sundays. They're objective standards which mean that you're violating the law if your air compressor emits a volume of 89dB (at 50 feet) in Madison, or if you use one at all in Miami on Tuesday at 6:15 PM. Better to use a compressor that registers 87dB (at 50 feet) in Madison on a Sunday at midnight, or one that pollutes the ear at 89dB on Tuesday afternoon in Miami. Otherwise you're violating the law. Clearly there are different sensitivities depending on where you are. But it is less clear whose sensitivities they are.

They're subjective, not objective. They're formalized subjectivity, though after a while they take on a patina of objectivity. Everyone knows that those who don't abide by the rules are, in fact, lawbreakers. “Ignorance of the law is no excuse for crime.” (Actually, according to Black's Law Dictionary, the regulation is that Ignorantia juris non excusat – “ignorance of the law doesn't excuse.”) But someone made that rule, and someone wrote the laws that it defends. And a precedent solidifies a position's correctness. It sets the standard. When was the precedent set? A while back – though we may not even know when. And who set the precedent? Judges and lawyers. People. People who believed that what they considered right and wrong were, in fact, right and wrong.

But people tend to have different opinions. Calendars ought to be objective, but they differ from place to place and time to time. Rules regarding sexuality may differ between Samoa and Saint Louis. But the local rules pertain in the different places. It's far more of a problem than different perceptions of noise in Madison and Miami. And the “objective” standards to permit carrying a gun in Dover, Delaware differ from those in Dover, England. (Or, for that matter, in Dover, New Jersey as contrasted with Jersey in the Channel Islands.) Concepts of cultural relativism abound, and with them there are variations in objective standards.

Do secular “objective” laws trump the standards set by “divine” law? That, too, is a subjective decision. Both may have fixed, “objective” standards, yet they may disagree. Still, within the context of each system, it has somehow been ordained what is acceptable and what is not. Indeed, those following what they accept as divine laws, and the standards that accompany them, may have different views about what they are or should be. Even within a religion (and much more between them) there are different traditions which provide standards for “proper” behavior. Traditional Judaism requires a minyan (quorum) of ten males over the age of Bar Mitzvah (13) in order to say particular prayers. Other branches may be less choosy, if they seek a minyan at all.

There are different objective standards. And they change. Today's fashion standards would have been belittled in the past and they certainly will be in the future.

If subjective views are the basis for the designation of objective standards, it is important to consider who is setting those standards. It's usually the higher-ups in a hierarchy – for example G-d in religion – but those on lower rungs often flesh out the meanings of the laws. Over the millennia men have been the rule-makers in most of public life, which means that in many areas women cannot meet the standards they set. That doesn't mean that the standards are wrong, only suspect. But, in all honesty, I'd rather have a 220 pound male policeman defending me than a 120 pound woman, or a firefighter carrying me who can lift 175 pounds rather than one who can't. I'd rather be defended by an attorney with an IQ or 140, than one with an IQ of 115, even if both have passed the Bar examination and are, objectively, equal. Maybe that's wrong and those ideas are only a product of my own subjectivity. (Perhaps I disagree with those setting them regarding what the objective standards should be.) And in the United States, regulations are often determined by unelected bureaucrats who have been left to do so by a Congress not interested in getting involved in the details As long as our representatives, themselves, are exempt it doesn't matter what objective standards are set for the rest of us, so there is no need to review them. They can live with subjectivity to which they aren't subject. So for others it is reasonable to accept “zero tolerance” criteria. Deviation from some “objective” criterion is a violation of standards and not to be tolerated. That's certainly the case when particular standards are set for inclusion in a group or in a profession, whether according to a rulebook or according to licensing procedures.

That doesn't invalidate standards. It's good to be able to rely on a train schedule, or any other schedule (although there are many who are lax about following them). And it makes sense for scientists to set strict criteria for the determination of principles or properties in their fields. But it is foolish not to recognize that the standards they set are subjective, and might be different if others were to set them. And it's legitimate to review such standards from time to time and place to place if any question exists about their applicability. Which doesn't mean that they are wrong, just that most are the result of human biases. The only ones that may have validity beyond those human biases are any that are of divine origin. There are absolutes.

But otherwise there ain't no such thing as objective standards.