Tipping point idea: Put a sunset provision on all federal laws

(To win over the electorate, conservatives have to be seen as a party with fresh ideas that benefit all Americans. This is the first in a series of Tipping Point posts, promoting ideas that will appeal to all voters, while becoming signature initiatives for conservatives and Republicans.)

United States Code

Did you know that the Code of Law of the United States (USC), which contains all the operative federal laws affecting your life is around 200,000 pages long and that, if one doesn’t count case annotations, it takes up about 6 feet of shelf space?  And did you know that the Code of Federal Regulations (CFR), which contains all the rules that agencies have enacted in order to apply thid federal law, occupies four times as much shelf space as the USC itself.  In other words, in the absence of a page count, one can be reasonably sure that the CFR far exceeds 800,000 pages.

Code of Federal Regulations

America’s common law has always held that “ignorance of the law is not excuse.”  That’s all well and good, but do you actually know your federal law?  I didn’t think so and, in all seriousness, nobody else does either.  We all know the big laws — don’t murder people, don’t cheat on your taxes, don’t download music without permission — but the devil for everyone is in the details.  The result is that citizens who believe they are law-abiding, may suddenly find themselves on the receiving end of a federal investigation.

The previous sentence implies that federal employees do know all this law.  They don’t.  They are reasonably conversant with the law in their area of expertise, and therefore do have that advantage over the ordinary citizen who cannot hire 24/7 legal counsel.  Otherwise, no, they don’t know it any better than you do.

What actually happens at the federal level is that a person or business comes to the government’s attention because of citizen complaints, political vendettas, or because the person or business is engaging in a specifically identifiable, but hard-to-prosecute illegal activity.  When that happens, the government looks at the person’s or business’s activities and then, through legal research, tries to see if those activities match anything prohibited under the federal laws and rules.

Al Capone at Alcatraz

Sometimes, this random approach to federal law is a good thing.  For example, back in the 1920s everyone knew that Al Capone was a mobster responsible for all manner of crimes.  The problem was that he was too wily for law enforcement, and they could never make any charges stick.  Some bright person in the federal government suddenly realized that, if the mountain won’t come to Mohamed, Mohamed must go to the mountain — and to that end, rather than trying to mesh Capone’s violent and offensive actions with some criminal law, decided to bring the tax code to Capone.

Capone was duly prosecuted for tax violations, and went to Alcatraz for seven years.  Although this wasn’t a long sentence, considering his terrible crimes, it was long enough that, by the time he came out, his rivals had taken over his criminal syndicate, leaving him with nothing but mental decline from the syphilis he acquired during his glory days.

Certainly we can celebrate laws that bring dangerous criminals to heel.  As often as not, though, the labyrinth of federal laws operates, not to haul in wily criminals but, instead, to trap the unwary.

Buried in paperwork

In addition to keeping a sword of Damocles over every citizen’s head, the plethora of unknown and unknowable federal laws has two profound effects on American society as a whole:  The first effect is that American’s are unable to rely on their legal system when they conduct their every-day activities.  The law, instead of being a reliable framework that allows people to plan for a stable, legal, and profitable future, instead becomes an arbitrary and capricious force, stifling economic activity.

If it will cost me hundreds of thousands of dollars to assemble the legislative information necessary to start a new business that won’t potentially land me in jail, I might decide that no business is worth that kind of start-up cost.  Nor is starting up a new business worth the risk that if, despite knowing the the laws that affect my business, I can still be undone by other areas of legislation and regulation that seem to touch upon my activities only marginally.

Struggling with paperwork

The second effect of laws and regulations that run into the millions of pages is that people lose their respect for the law.  Law should be seen as both the infrastructure for a stable, civil society and the lubricant that enables people to rub along next to each other without resorting to violence.  These basic functions only work, however, if people are capable of knowing the law.

What has happened in America, though, is that federal law has become an impenetrable maze that allows loopholes by the thousand for those rich enough or well-connected enough to exploit all those openings.  At the same time, federal law has becoming a meaningless background buzz for the ordinary citizen, who suddenly becomes aware of it only if he or she is unlucky enough to get trapped by one of its random, unknowable prohibitions or mandates.

What’s really tragic is that so many of these laws and regulations are useless or outdated.  To the extent that they have no current purpose, they exist only as traps for the unwary.  Until the trap is sprung, no one cares about these superfluous laws and rules and, if the trap springs in the government’s favor, the government has no incentive to purge them from the books.

Presidential candidates periodically announce that they’re going to trim back the CFR (I recall Al Gore getting this task in the 1990s), but it’s a boring job, so it never comes to anything — and meanwhile, Congress just keeps passing more and more laws, and the agencies enact more and more regulations.

Sunset

That’s where the idea of a Constitutional Amendment inserting a sunset provision in all federal laws (and their accompanying regulations) comes into play.  The Sunset Amendment would mandate that all federal law and their accompanying regulations automatically expire twenty years (or some other set time) after they go into effect.  The only way to preserve the laws and regulations would be for Congress to act affirmatively to vote on each law and reinstate it before it expires.

Three things should happen:  First, legislators will think twice about enacting laws that they’ll have to review again (and fight about again) in twenty years time.  Second, legislators will take more care writing the laws, since they and their aides will be tasked with wading through them and learning about their effects, along with working on current matters.  (Imagine if a Sunset Amendment had been in place when Obama’s Congress enacted all 2000+ pages of ObamaCare.)  Third, rather than undertaking the tedious work of reviewing patently irrelevant, obsolete, or failed laws, Congress will simply allow them to lapse without any discussion.

Of course, a Sunset Amendment would have to include a clause dealing with those laws and rules that are already on the books.  A practical approach would be to require that a specific number or percentage of laws and regulations would have to be reviewed and, if necessary, re-voted every year after the Amendment’s passage, for a set number of years, until each existing law and regulation has been voted upon or been allowed to expire.

Although cleaning up Federal laws and regulations is an issue that all Americans should embrace, and a burden that legislators should willingly shoulder as part of their job (not to mention a reasonable amount of work considering their salaries and pensions), it especially behooves Republicans and other conservatives to push for a Sunset Amendment.  The whole notion of “smaller government” makes sense only if we clean up old laws, in addition to enacting fewer, and less onerous new laws — and then we make sure that the law books don’t get cluttered up all over again.

If you think this is a good “sticky” issue to help Americans reach a tipping point that turns them towards smaller government, please take this idea and run with it:  talk about it on Facebook or Twitter; post it at your blogs (feel free to reprint this whole post, although I’d appreciate attribution); contact your Senators or Congressman; and bandy it about at the water cooler.  Good ideas make a difference only if people spread them around and then act upon them.

(Thanks again to Mike Devx for coming up with this good idea.)

 

More thoughts on robots and the future

Robot

I wrote last week about the fact that the lapdog media is finally catching up with Obama’s claim that the problem with America’s economy is that ATMs are job destroyers, and that’s why our economy is a mess.  Many of you commented that, in your own industries, you’ve seen automation chip away at jobs so that a handful of people are doing what it once took dozens or even hundreds of people to do.  I agree completely.  Technology definitely destroys jobs.

What I was trying to say, though, is something different.  What’s unique about this ongoing recession/depression, is that the government has been working overtime to depress the new jobs that usually arise as a result of technology.  Absent government intervention, our transitions in the wake of a major technological change have usually been beneficial to the majority, even though there’s no doubt that a minority saw itself lost to history’s backwash.  For the first time, though, we’ve got a government so busy grieving for the minority who are becoming obsolete, that it’s enacted policies to ensure that the majority will suffer too.

I speak quite personally about this, because I’m a perfect example of someone who took modern technologies and spun off a new career.  My new career has been less profitable than my old one, but infinitely more enjoyable, not to mention a better match with parenting.

My graduating year from law school was one of the last years that saw new associates arrive at law firms that didn’t have desktop computers.  We had Word Processing departments, which would use primitive word processing machines (who else remembers old Wang systems?) to finalize briefs or, if they were particularly sophisticated, they had primitive software to do the same task.  To get a brief done, the attorney would hand write or dictate a brief, and then walk it over to a secretary, who would transcribe it.  It was a very time-consuming process.

Law books

Legal research was also done the old-fashioned way, which meant surrounding oneself with heavy books.  To research a legal question, you’d go to the Westlaw Digests.  You’d start by perusing the Decennial Digests (massive volumes that broke the law down into categories).  These were good, because you could do ten years worth of research in a single category.  If it had been nine years since the last Decennial Digest, though, you’d then have to go through nine years worth of annual digests, including the pocket updates stuffed in the back.  Once you had hand written a long list of potential cases, you’d head for the stacks and pull out volume after volume of case reporter.  You’d page through to your cases, and hope that at least some of them were on point.  Once you found them, you’d either write notes by hand, or you’d spend hours (and dollars) photocopying.

Both Westlaw and Nexis did have computer research available, but it had to be done on dedicated machines and it cost a small fortune.  It was much cheaper to pay an associate to do fifty or even one hundred hours of research, than to go onto Westlaw and spend a couple of hours writing and printing.  (Keep in mind that, back in those days, all connections were dial-up and were incredibly slow.)

Old desktop computers

Within a few years of my starting to practice law, the world turned upside down.  Lawyers got desktops and dedicated word processors became obsolete.  That’s when I fell in love with Word Perfect, which is still my favorite word processing software because you have the best control over the look of the final product.

In the beginning, those desktop computers were stand-alones, so you still had to walk to your secretary’s desk, only this time you’d hand over a floppy, rather than a sheaf of yellow paper or a little tape recording.  Just a year or so later, with the firm’s four walls, those floppies were obsolete, as the firms had become networked.  Suddenly, you didn’t even need to stand up to send your secretary that pleading that needed to be finalized.  Instead, you just pushed a button.

Online legal research continued to be expensive, but Lexis and Westlaw now had software that enabled you to use your laptop to connect directly to those services.  This was another technological advance that meant you didn’t need to get up from your chair.  (Right now, I’m seeing, not only a technological trend, but a trend in lawyers getting flabby and gaining weight!)

Woman at computer

One day, I sat at my desk and realized that I was totally self-sufficient. I didn’t need a secretary, since I’ve always been a better typist and word processor than any secretary I ever had, and I didn’t need access to a law library, since my desktop had become a law library.  I also realized that home computer prices were dropping and that the case-reporting services were dropping their prices in response to the increased competition that accompanied increased demand.  Since I hated going to court, and loved doing research and writing, I quit my job and set up a home practice.

Floppies

As the years went by, having a home office became easier and easier.  In the old days, I still had to put my documents on floppies, or print them up, and then hand-deliver them to my clients.  Within a short time, however, either my clients got email, so I could just send an attachment, or they upgraded their network services so that I could connect from home and simply upload my work onto their systems.

The new systems made hoards of young lawyers unnecessary.  While it had once been cheaper to give a second or third year associate a fifty hour research job, it was now much cheaper to contract the work out to me.  With my on-line research, home computer and printer, and network or email connections, I was not only faster and better than a young associate, I didn’t force the firm to carry me during the dead times, nor did it have to pay any benefits to me.  Technology would have destroyed my old job, but instead it created a new job for me, and one that I liked much better.

In the Obama economy, though, I have no work.  If I were a young lawyer done out of a job by new research and writing technology, it would be impossible for me to set up my own thriving business (and it did thrive for many years), because there is no work to be had for anyone, whether in a firm or outside of it.  The old jobs are dying, but the economy is too regulated, taxed, and constrained to create new niches.

And that’s what I meant when I said only Progressives believe that robots are job killers.  Their belief is true only to the extent they’ve made it so.  I fervently believe that, in the normal, non-Obama world, even as technology kills many jobs, a free market, coupled with human initiative, can create many more (better ones too).

Both mandatory unions and mandatory professional organizations are antithetical to Constitutional Free Speech *UPDATED*

California Bar Seal

The State Bar of California, which I have to pay into in order to practice law in the State of California, long-ago abandoned its core responsibility of ensuring that people who hold themselves out as lawyers to California citizens are at least minimally qualified.  As with all these mandatory organizations, it’s turned into a political advocacy group and, again in sync with all these mandatory organizations, it advocates Left. That is, it forces me to pay money if I want to have a livelihood in my chosen profession, and spends that money on heavily politicized issues such as abortion.  (It hews so far Left that, even when I was a Democrat, I was offended by many of the political stands it took with my money.)

The State Bar isn’t the only professional organization that leans Left.  The American Bar Association is heavily political too in a Leftist kind of way. The difference between the ABA and the State Bar, though, is that the form is a voluntary organization. I was therefore able to cancel my membership when I realized that my money was being used to support political causes that were unrelated to law and with which I disagreed.  Sadly, I can’t opt out of the State Bar — not if I want to be a practicing lawyer, that is.

Looked at this way, I have the same lack of rights as union members who don’t live in in right-to-work states. Here’s the deal: if unions and bar associations limited themselves to their original function, which was to ensure that union workers have good conditions or that lawyers have reasonable qualifications, union dues and mandated bar memberships would be less of an issue. Unions and Bar associations, however, have drifted far afield from these core responsibilities.  They’ve branched out since the 1970s or so to become political action groups taking far Left stands on just about everything.

When states mandate that workers must join unions or that professionals must join professional associations, the state is effectively coercing citizens into funding speech with which they may disagree. Looked at this way, mandatory participation in activist unions and professional associations is a profound perversion of the First Amendment right to free speech. Free speech doesn’t just include the right to speak freely, it also includes the right to refrain from participating in speech with which one doesn’t agree.

All of this popped into my mind when I received an email from the president of the State Bar of California (emphasis mine):

Begging

By now, you should have already received your State Bar of California fee statement. Statements were sent out on Nov. 30, and many of you may be taking steps now to send your payments before the Feb. 1, 2013 deadline. If you have not yet received your statement, it may be helpful to know that you can sign in to My State Bar Profile to calculate and pay your 2013 fees.

As the president of the State Bar, I would like to take this moment to enlist your help with an important opportunity that you have through your annual dues.

As attorneys, other people’s problems challenge us to do our very best. We straighten out transactions gone awry. We resolve property and commercial disputes. We counsel our clients through criminal proceedings and personal difficulties and help with innumerable other problems that ordinary people have every day.

But there is a new challenge. Sadly, our economy has experienced an almost unprecedented downturn with interest rates at historic lows. It is the Interest on Lawyers’ Trust Account (IOLTA)* revenue that pays for civil legal assistance for indigent people statewide; and it is barely a quarter of what it was in 2008. There is no cushion left as we struggle to close the justice gap – the gap between the legal needs of the poor and the legal help we can provide for them. This is an unprecedented crisis for those we are charged with protecting.

But there is a powerful step each of us can take in seeking a solution to the justice gap. Your tax-deductible donation to the Justice Gap Fund (a component of the statewide Campaign for Justice) will expand access to justice for the millions of Californians with nowhere else to turn. The Justice Gap Fund is the only statewide vehicle to restore critical funding to nearly 100 legal nonprofits that serve our biggest cities as well as the most isolated rural communities.

A gift made at line 10 of your annual dues statement, or online anytime at www.CAforJustice.org, will make a real difference.

Please join me in the Campaign for Justice. Make a life-changing gift to the Justice Gap Fund – it will make a real difference to those who most need our help.

I have to say that my heart strings remain un-tugged.  The Leftist policies of coercive organizations such as the California Bar Association helped lead to a long, deep economic collapse and painfully drawn-out recession.  The Bar, with its speech amplified by coerced dues, managed to out-shout someone like me, who would have had more money if the Bar hadn’t taken it away.  If I could have been left to my own political speech, I might then have been more amenable to contributing to a fund that helps poor people entangled in the political system.  Because the fund is owned and managed by the same group of people who contributed to this mess, however, I’ll hang onto my money until I find more worthy charities.

UPDATE:  You have to check out Michael Ramirez’s perfect editorial cartoon, because it distills to a single picture the whole free speech (or non-free speech) argument I made above.

Congress not only can tax anything that moves, it can tax anything that doesn’t move

The Supreme Court opinion on ObamaCare runs to 193 pages.  It is the size of a book, only more boring than any book anyone would ever want to read — and that is true despite the fact that Ruth Bader Ginsburg, the worst writer on the court, didn’t write it.  I’ve been making a valiant effort to read it, but because I have other things to do with my life, I abandoned the darn thing about one-third of the way through.  For now, bottom line is sufficient.  Per the Supreme Court, ObamaCare imposes a tax on people who refuse to buy a product from a third-party. An example of that includes the Affordable Care Act which forces a penalty on those who do not take part in the newly-appointed health insurance marketplaces. That imposition is consistent with Congress’s power to impose taxes.

Ed Morrissey managed to encapsulate my immediate reaction to this, frankly, bizarre outcome:

It’s an interesting argument, but one that should have Americans worried.  Basically, this is a tax that you have to pay to private companies.  For all of the screaming the Right did over single-payer — and for good, outcome-based reasons — at least the money paid by taxpayers would go directly to government [see update II].  The Supreme Court has signed off on what is, in very practical terms, a tax levied by the insurance industry on Americans simply for existing.  It’s an amazing, and fearsome, decision that really should have both Right and Left horrified.

Nevertheless, this is the law of the land.  We can now look forward to taxes levied by the auto industry for not having bought a new car in the last seven years, the liquor industry for buying too few bottles of wine to maintain your health, and by the agricultural industry for not buying that damned broccoli after all. We might even have Obama attempt to impose a tax for not buying enough contraception; we can call that the Trojan tax.

Taxes have traditionally been levied to enable the government to buy and build things.  This is the first time in history, so far as I know, that a tax is being levied as a penalty against citizens who refuse to buy products from private vendors.  Taxes normally tax activity.  Sure, you pay taxes on a product when you buy a product but those are (a) state taxes, which are a different animal from federal taxes; and (b) taxes on a voluntary transaction.  That’s the important thing.  The transaction is voluntary.  You can opt to sit it out and the government cannot reach you.  Here, though, we are being told that the government can exact an onerous tax for inactivity.

The decision constitutes a radical redefinition of what constitutes a tax.  It is exactly what opponents said it was:  the biggest tax in history and one, moreover, that Americans cannot alter their behavior to avoid.  I am therefore at a loss to figure out why Roberts signed on to this decision, let alone authored it.  It is a staggering constriction on individual freedom.  The closest analogy to this tax is the poll tax of 1380, a tax that saw one of the biggest revolts in medieval British history and one that almost toppled the monarchy.  Poll taxes are flat taxes but, more importantly, they tax someone just for being.

Okay, that’s the bad news and it’s very bad in the long-term.  There are some potential short-term benefits, although they’re only possible, not probable:

Because ObamaCare is a tax, it’s easy to repeal the tax aspects, which leaves the whole thing unfunded.  Still, unfunded doesn’t mean vanished.  All the bits and pieces, the obligations, impositions, panels, etc., live on, unless Congress can gather itself together and formally repeal the whole darn thing.

The other short-term benefit is that it might galvanize those Americans who hate ObamaCare, leading them to vote for Romney.  That’s so not a sure thing, though.  It’s a great victory for Obama, and might finally put the wind at his back.  His signature legislation is a good thing, said the United States Supreme Court.  For many Americans, that might fall into the category of “that’s all she wrote.”  The fat lady has sung.  The opera is over.  It’s time to go back home and get on with your life.  If Roberts had some strange idea that he’d help a Romney election, he was taking a mighty big gamble with the American people, their freedom, and their money.  (Speaking of money, it’s no coincidence that the market plummeted once it received word that Congress not only can tax anything that moves, it can tax anything that doesn’t move.)

I am disheartened, but disheartened is not the same as defeated.  It is now imperative that Republicans take back Congress in its entirety and win the White House.  Jim Carville and others may proclaim the Tea Party dead, but I suspect they’ll see a Zombie Tea Party taking to the streets this summer.

Others blogging:

Kim Priestap

Maggie’s Farm/Bruce Kesler

American Power

The Anchoress and The Anchoress again

The Volokh Conspiracy (was Roberts somehow forced to uphold the law?)

Jay Cost (this may harm Obama more than he thinks in the long run)

Slate (Obama wins battle; Roberts wins war)

Noisy Room

 

Asserting executive privilege shows desperation in the Obama White House

Wow!

Wow!

From a lawyer’s point of view, it’s hard to imagine anything more stupid than for the Obama White House to assert executive privilege as to the Fast and Furious documents.  The subpoenaed documents must have some pretty damning information for the White House to make this move.

More than that, by having asserted the privilege, the lawyer-led White House showed either a profound misunderstanding of the nature of privilege or is conceding that the Fast and Furious scandal — which saw the Justice Department pour thousands of guns into criminal hands in Mexico, resulting in the murders of two American law enforcement officers and untold numbers of Mexican and American civilians — goes all the way up to the White House.

Wow!

If you’re wondering why those two conclusions (either the White House is dumb as a collective post or guilty as sin), here’s a little information about legal “privileges.”  Once a case is in the legal system, the law imposes upon each party a duty to reveal information, provided that the opposing party properly requests that information.  When I’m advising people who are contemplating litigation, I always warn them that filing suit means giving up lots of their privacy.  They’ll be required to turn over vast numbers of documents and to answer intrusive questions, provided that the other side can credibly show that the information sought is reasonably likely to lead to the discovery of admissible evidence.

A typical (and appropriate) discovery request might read “Please produce all communications between you and any realtors other than the defendant regarding the sale of your home at 123 Any Road in Nowhere Town.”  Those “communications” would cover writings, emails, phone messages, etc.  I’ve worked on cases that have involved the production of hundreds of thousands of pages, answers to hundreds of questions, and innumerable live depositions.

There are relationships, however, that the law considers so important it insulates from discovery or testimony any original communications between the parties to those relationships.  The law will not involve itself in trying to ferret out communications between a priest and a penitent, nor will it interfere with the bond between husband and wife.  Likewise, recognizing that an attorney cannot give counsel to a client without full and free communications between the two, the law protects any direct communications between an attorney and his client.

In my years as an attorney, I would have to say that “attorney client privilege” is the privilege I see asserted with the greatest frequency.  What I also see is lawyers who assert it in the hope that no one notices that a lawyer isn’t actually involved in the communication at issue — or, at least, wasn’t involved initially.

The deal is that you cannot shield otherwise unprivileged information by lodging it with your attorney.  For example, if your corporate client has a memo on file that says “I’ve got a great idea for defrauding our competitor,” your client cannot prevent the other side from discovering that document by mailing it to you, the lawyer, with a cover letter saying, “You need to know about this document.”  However, to the extent your client writes you a long letter explaining everything he knows about the case, good and bad, that letter to you is privileged.  In the same way, your response explaining the legal consequences of the events described in the letter is also privileged.

More simply put:  in order to assert any legal privilege, both of the parties covered under the privilege must have participated in the communication and must have exchanged original information that does not exist independent of the privilege.

Because of the way privilege operates, we can understand Obama’s assertion of executive privilege in only three ways.  (1) Obama’s White House was either involved in Fast and Furious, which is bad; (2) or it means that Obama’s White House doesn’t understand the nature of a privilege, which is embarrassing, especially with a lawyer at the helm; (3) or it means that the documents Holder is hiding are so dreadful that Obama’s White House would rather risk looking criminal or stupid than take the risk of allowing Congress and the public to see those documents.

No matter how you look at it, by inserting itself into this struggle between Holder’s Justice Department, on the one hand, and Congress, on the other hand, the White House made an already bad situation look much, much worse.

Just as Obama vows to ignore federal law, the California State Bar vows to ignore state law

In ordinary times, criminals disregard the law.  In the PC Obama era, however, elected officials and state government agencies don’t have much use for the law either.  Take Obama, for example.  Contrary to the original headlines regarding Obama’s newly discovered immigration rights, Obama’s recent announcement regarding illegal immigration isn’t an executive order.  Instead, it’s simply an abandonment of his executive responsibilities, insofar as he has now publicly announced that he refuses to enforce the laws that the legislative branch has passed.  He’s still King Obama, taking the law in his own hands but, instead of making the law, he’s breaking the law.

It turns out that, in Obama’s America, the federal executive branch is not the only government agency that has no use for explicit laws.  In California, the State Bar is vigorously arguing that it doesn’t need no stinkin’ laws either.  Let’s begin this discussion with the law itself.

Under California law (Calif. Bus. & Prof. Code sec. 6068), a licensed attorney is obligated to support both federal and state laws:

It is the duty of an attorney do to all of the following:

(a) To support the Constitution and laws of the United States and of this state.

Attorneys cannot plead ignorance of this requirement, as they must expressly state this obligation as part of the oath of office they take as a prerequisite to becoming fully licensed (Calif. Bus. & Prof. Code sec. 6067):

I solemnly swear that I will support the Constitution of the United States and the Constitution of the State of California, and that I will faithfully discharge the duties of an attorney and counselor at law to the best of my knowledge and ability.

Put simply, California requires that, to practice as an attorney, the licensee must orally and explicitly promise that he or she will to support, not break, either state or federal law.

With this in mind, how in the world can the State Bar of California argue that an illegal immigrant should become a licensed attorney?  Shouldn’t both the Bar’s and the newly licensed attorney’s first obligation be to turn the attorney in for violating explicit federal immigration laws?

An illegal immigrant who passes the bar exam and demonstrates good moral character should be eligible to practice law, the State Bar has declared in a court filing.

The bar, which oversees California’s 225,000 lawyers, told the state Supreme Court on Monday that federal law leaves regulation of the legal profession largely up to the states and does not appear to prohibit Sergio C. Garcia, 35, of Chico from obtaining an attorney’s license.

[snip]

The court cited two federal laws as potential obstacles. One prohibits illegal immigrants from receiving any “state or local public benefit,” including a professional license provided by a “state agency.” The other prohibits employers from knowingly hiring illegal immigrants.

In Monday’s filing, the bar said the first law doesn’t apply because the court is a branch of state government, not a “state agency.” In 1995, the bar noted, the U.S. Supreme Court ruled that federal courts aren’t government agencies.

[snip]

“There is no reason to believe he cannot take the oath and faithfully uphold his duties as an attorney,” the bar said. It said the policy considerations are similar to those the California court addressed in 1972, when it declared unconstitutional a state law requiring attorneys to be U.S. citizens.

It’s pure sophistry to say that the federal laws don’t apply just because the California court system is a self-regulated branch of state government.  This argument ignores entirely the fact that California’s own law, which does indeed govern, imposes upon attorneys the obligation to support the Constitution.  The Constitution, in turn, is the umbrella for federal legislation.  The same sophistry holds true when it comes to comparing legal immigrants, who have not violated any laws on their way into the country, with illegal immigrants, whose very presence is an offense to law.

What’s going on here is open-and-above-board, so it’s we’re not concerned here with ordinary “cash corruption.”  That is, this is not a situation in which a private citizen makes a payment to a government official in return for the latter’s promise to look the other way.

What we have here is worse.  We are witnessing a profound ethical corruption that sees public institutions deliberately flouting their own laws.  This is a dangerous slippery slope.  Once the reliability of law is gone, the only thing left is despotism or anarchy, with the former being the tyranny of an individual or group and the latter being the tyranny of the mob.  When political officials expressly ignore the law, they are no better than ordinary criminals.  What’s being stolen, though, is more valuable than money or jewels.  It’s the essence of our liberty.

 

I finally understand those Harvard Law grads

Throughout my legal career, the Harvard Law grads of my generation and after have bewildered me.  The ones I met practicing in the San Francisco Bay Area, more often than not, were distinguished by two things:  lousy legal skills and strident aggression.  I was pretty sure that this perception on my part wasn’t simply the sour grapes of one who didn’t go to an Ivy League law school.  For example, I’ve always had the highest respect for Yale Law grads, although I think they tend to be almost obsessively detail-oriented.  It really was something about those Harvard grads.

I admit that I met a very narrow spectrum of Harvard grads.  The “white guys” were almost all pre-1984 grads (meaning that they pre-dated me by a lot).  They were stiff and pompous, but they were decent lawyers.  The ones I worked with (and against) were the younger folks.  The only white males were (1) a guy who claimed to be half Native American, although this genetic legacy was not apparent; (2) and the other guy who claimed to be a quarter Native American and who was trilingual.  (He also had a serious drug problem, but that’s a story for another day.)  The rest of the Harvard folks I worked with were female, obvious ethnic minorities (that is, they didn’t have to tell everyone about their unique, non-white ethnic background), or gay.  Or all three of course.  I know Harvard was graduating white males, but they seemed not to be landing in my small circles.

For the most part, the small group of Harvard lawyers that I met were not good lawyers.  They were aggressive, but their research and analysis skills were significantly less good than the same skills I saw in those who graduated from other law schools, be they very famous (Yale or Boalt) or less so (Baylor, Hastings, Santa Clara, etc.).  Since many of the Harvard Law grads were indeed very bright, they buffed up their basic lawyering skills with the years, but none seemed to tone down that bizarre aggression.

Let me stress again that, working in and around San Francisco, I was looking at a self-selected group of Harvard lawyers.  San Francisco, after all, was then, as it is now, a magnet for Leftist political extremists.  I didn’t know the word “Progressive” back then, but I bet they did.  It’s just that, in this world, the Harvard grads were even more Progressive than the others.

David French, who arrived at Harvard Law in the year that Obama left (Obama left in the spring, French arrived in the fall), tells what the environment was like back then.  If that was the same environment that existed during the mid- and late-1980s, it goes a long way to explain those, to me, mysterious Harvard grads.

The problem with patents

We’ve all heard and read about the fact that profiteers are stifling patents.  They buy up patents, not to encourage innovation, but to shake down people who come up with ideas they claim overlap with the patents that they’ve purchased (and that sit, unused, in their faults).  Frugal Dad came up with a charming graphic showing the problem:

patents infographic

Source: http://frugaldad.com

 

A case regarding citizen journalists proves, once again, that bad facts make for bad law

When I first saw the headline — “A $2.5 Million Libel Judgment Brings The Question : Are  Bloggers Journalists?” — I have to admit that I felt a bit queasy.  When I write something snide about President Obama, Harry Reid, Nancy Pelosi, or any of the other prominent Democrats I routinely criticize at this site, am I exposing myself to massive liability?  Well, probably not, because they’re public figures and we have enormous latitude to criticize them.  But what about a post I might write criticizing, not a political figure, but a local businessman.  Can he sue me . . . and win?

The answer, it seems to me, is that Mr. Businessman is just as likely to win against blogger as he would have been if, in the old days, I sent nasty letters to the editor, distributed flyers or otherwise widely and impugned his character.  If my statements are true, I win.  If they’re false, I lose.  I would have been at risk in the old days and I’m still at risk in the new if I choose to shout out lies from an electronic rooftop.

So why is the $2.5 million dollar libel judgment an issue?  Because the blogger in question sought to protect herself by claiming that she was a journalist, not a blogger.  She therefore contended that Shield Laws allowed her to hide her sources while successfully protesting her innocence in a defamation lawsuit.  When the judge said she wasn’t a journalist, bloggers got nervous.  After all, we bloggers consider ourselves a “new media,” providing information that the old media, usually for political reasons, often leaves on the cutting room or newsroom floor.  What’s unnerving is that, if we’re not journalists, even when we scrupulously present facts, we’re still at risk of litigation, something that has a very chilling effect even on the most honest writer.

As is so often true with legal cases, though, the details should be comforting — and this is true despite the fact that I think the judge committed a definitional error that must be redressed.  This case, though, is not going to be the one that makes correcting that legal error easy, because the facts really militate against the blogger.  By any standard, Crystal Cox, the defendant against whom the district court judge imposed the $2.5 million libel judgment, was not making any effort to conduct herself according to journalistic norms.  Instead, Cox was the journalistic equivalent of a vexatious litigant.

For those of you who have missed out on the joys of a vexatious litigant (“VL”), a VL is someone who uses the court system to dominate and harass enemies.  These people are often lawyers, and they will file in pro per suits (meaning that they represent themselves) against anyone who crosses their radar.  Since litigation is expensive, a perfectly innocent person might find himself targeted by a plaintiff who has dozens of cases going simultaneously, and who files hundreds of costly motions in each case.  The unwitting defendant can either settle immediately, even though he knows he’s being subject to judicial blackmail, or he must spend the money to answer the case and respond to all the discovery and motions.

While the judge in any given case may impose sanctions against the plaintiff, that’s an uneven remedy.  Eventually, though, if the plaintiff acquires a reputation around the courthouse, a judge can defang him by declaring him a “vexatious litigant” who can proceed in the Court system only with judicial permission.  Although it’s a draconian remedy because we are loath to deny people access to the civil court system, it’s still a necessary thing to do when someone uses the system, not as an instrument of justice, but as a tool for economic blackmail, humiliation and harassment.  As I noted, though, it’s a last remedy, not a first remedy, and a lot of people get badly burned before it goes into effect.

From everything I’ve read about Crystal Cox, her website, titled “www.ObsidianFinanceSucks.com,” was a one woman vendetta against a corporate Bankruptcy trustee and an individual employee, filled with hundreds of posts savagely attacking both of them.  Her claims against them, usually presented in the form of hyperbolic questions, rather than factual statements, accused them of fraud, illegal activity, theft, and just about everything else short of stealing lollipops from babies and using goats for impure purposes.  As the judge made clear in decisions written in both July and August, one would be hard put to classify Cox’s content as objective journalism.

Because Cox’s posts were so over-the-top, the judge concluded fairly easily that they couldn’t possibly be construed as anything other than pure opinion, which is protected under the First Amendment.  He was therefore inclined to dismiss the case against her.  One of her posts, however, had a gloss of journalistic objectivity and, more importantly, showed up at a site where it wasn’t published under the “ObsidianFinanceSucks” heading and where it wasn’t surrounded by dozens of other posts demonstrating that Cox has a monomania that leaves even her “objective” writing highly suspect.  It was in this context that the judge decided Cox wasn’t a journalist, and that her nasty post constituted good, old-fashioned defamation, akin to handing out a flyer in a shopping mall.

Where I differ with Judge Hernandez, although I think he made the correct decision regarding Cox, is in his effort to define objective journalism so as to deny Cox constitutional protection for her statements.  As far as I can tell, his definition puts most of our major media on notice that it’s at risk:

Cox tried to invoke the Shield Law, which allows journalists to protect confidential sources, but Judge Marco Hernandez ruled Cox was not a journalist and therefore not entitled to the protections. He wrote, “there is no evidence of any education in journalism, any credentials or proof of any affiliation with any recognized news entity or proof of adherence to journalistic standards such as editing, fact-checking or disclosures of conflicts of interest.”

While the New York Times, the WaPo, MSNBC and other traditional media sites can undoubtedly claim that their writers hold university credentials, it’s becoming increasingly questionable whether they subscribe to such traditional “journalistic standards . . . as editing, fact-checking or disclosures of conflicts of interest.”  Indeed, one of the things internet bloggers excel at doing is catching the MSM when it fails to follow those journalistic ethics (and one does wonder whether the MSM’s disdain for these basic requirements is something individual writers learn at those credentialed schools).

Given that the MSM so frequently falls very far short of what the judge considers to be ethical minimums, being affiliated with these “recognized news entities” in no way assures the reader that he can rely on the truth of the matter asserted in any given news report.  A reputable blog spot, one that rigorously edits, fact-checks and discloses, should qualify as journalism, and be entitled to all First Amendment protections, without having to pay lip-service to establishment conventions (journalism school, major media affiliation) that, in fact, do not provide any assurance that the content is honest, credible, complete or unbiased.

Since Cox strikes me as a monomaniac with a bee in her butt, I’m somewhat surprised that Eugene Volokh, who is one of the most reputable, insightful legal bloggers and new media journalists out there, is getting involved in this particular case:

Crystal Cox did not respond to our emails and phone calls seeking comment. It appears, however, she plans to continue to fight. She represented herself in the defamation suit, but now has legal help from UCLA Law School and blogger Eugene Volokh. He has taken the case pro bono in hopes of getting the decision reversed. Volokh has written about the First Amendment’s protection of the press, arguing it’s not solely intended for the media as an institution, but anyone doing the work of journalism.

Volokh is right as a matter of law, of course.   Judge Hernandez is simply wrong to define journalism to include only people who have trained in establishment schools and who write for establishment (i.e., Leftist) media, a bright line that would astonish and offend the Founders.

Based on what I’ve been able to glean from Judge Hernandez’s opinions, however, both of which quote extensively from some of the hundreds of posts Cox wrote for “www.ObsidianFinanceSucks.com”, Cox is the wrong defendant to use as a standard for expanding the definition of journalism to include citizen journalists writing at blogs.  Cox’s writing isn’t coherent, factual reporting, with full disclosure.  Instead, it’s a malevolent stew of opinion and hostility.  She’s a vexatious blogger, and a common law defamer, not a legitimate journalist.  Indeed, she’s a perfect example of bad facts making for bad law.  I’m just worried that, if Volokh pursues this, this bad law will be enshrined at an appellate level, rather than merely at the district court level.

What happens when government (state or federal) is pathologically hostile to business

This post tells the story of a case on which I worked.  It’s a true story.

Picture this: It’s 2001.  You live in California and you own a small business that consists of you and maybe three to five at-will employees.  Your profits are decent.

One morning, Jane, one of your employees, announces that she’s quitting, effective immediately, and stalks out.  You know — or think you know — your California law, which requires that, when an employee quits, you have her payment ready within three days of her departure.  (That would be Calif. Lab. Code § 202.) You therefore immediately prepare Jane’s final paycheck, covering the two hours she worked before she quit.

One day goes by, but no Jane.  Two days, but still no Jane.  On the third day, you actually drive over to her last known address to drop off the check, only to discover it’s a vacant apartment.  You head back to the office, check still in hand.  Jane didn’t ask that you mail the check to her, nor do you have a current address, so for the time being, you just hold on to it.

On the fifth day after quitting, Jane shows up, grabs the paycheck, and again disappears.  You breath a sigh of relief, thinking you’re finally done with Jane.  If only you knew, the story is just beginning….

A month goes by, and you suddenly get a notice from the California Labor Commissioner telling you that Jane is claiming that you violated California law.  Your crime?  You did not get Jane’s final paycheck to her within three days of her quitting.  Since you had the paycheck ready immediately, and her failure to receive it was solely the result of her own unavailability, you laugh at this charge, thinking you’ve got a slam dunk case.

You show up on the assigned day to argue your case before the Labor Commissioner.  The Labor Commissioner announces that the three day rule means the employee must have the money in hand by the end of the third day — regardless of either your efforts to pay her or her lack of effort to receive the money.  To punish you, the Labor Commissioner imposes statutory sanctions (or “waiting time penalties”) against you, and insists that you pay Jane an amount 27 times greater than the wages she was actually owed.

Shocked by the unfairness of it all, you hire an attorney, who tells you that you’re right — you complied with your statutory duty, and the Labor Commissioner erred.  The attorney tells you that this is indeed a slam dunk case, and that you should appeal it, which means filing an original action in Superior Court.  Sounds good to you….

The case goes to trial.  Jane is represented by the Labor Commissioner, so this is a freebie for her — the people of the State of California, through their tax dollars, are paying Jane’s attorneys fees.  The judge appears confused by the issues and eventually announces what he believes is a Solomonic ruling.  He holds that, despite the statute’s clear language — Calif. Labor Code §  202 explicitly imposes on the employer only the burden of having payment ready, not the burden of ensuring that the employee receives payment — you should have gotten the payment directly to Jane.  However (and this is where the Solomon part comes in) the judge will halve the sanctions award against you.

While miffed at the fact that you couldn’t get the judge to agree with you entirely, you still leave the Court with a light heart — after all, you got the original award against you cut by 50%, which must be viewed as a clear victory.  Au contraire, my innocent California employer.

In 2001 — when these events took place — the attorneys fee statute governing appeals from Labor Commissioner awards imposed attorney fees and costs against a party who appeared before the Court and was “unsuccessful in the appeal.”  (That was Calif. Lab. Code § 98.2(c), repealed.)  However, as of 2001, two California decisions had held that this facially-neutral language didn’t really mean what it said.

Instead, said the two cases, what that facially neutral language really meant was that, if an employee appealed a Labor Commissioner award and bettered his position by even a penny, he was deemed successful on the appeal, so that the employer would have to pay the employee’s (or, really, the tax funded Labor Commissioner’s) attorneys fees.  The contrary, however, was not true.  If an employer appealed a Labor Commissioner award and bettered his position by 99.9999%, but not by 100%, he was deemed unsuccessful.  He therefore still got to pay the employee’s (or, rather, the Labor Commissioner’s) attorney fees.

What this meant for Jane’s employer was that, even though she managed to better her position on appeal by 50% — she still lost!  She still got to pay the Labor Commissioner’s attorneys fees at fair market value.

The situation in 2001 was therefore as follows:  No rational employer could take the risk of an appeal from a Labor Commissioner award, since there was a huge chance that the employer, whether entirely or even partially correct, would still end up with a judgment requiring him to pay something, even a nominal something, to the employee.  (Judges hate giving employees nothing.) If that happened on appeal, the employer will be responsible for the oh-so-costly attorneys fees, fees that were usually far in excess of the underlying wage dispute.

And when you stop and think about it, this perverted reading of a facially neutral statute was a green light to the Labor Commissioner to do some nasty stuff.  Begin with the fact that Labor Commissioner employees are generally unsympathetic to employers.  This non-intuitive, twisted, backwards reading of a facially neutral statute gave these employees an incentive to ratchet up sanctions against employers to ridiculous amounts, because the Labor Commissioner employees knew that the employer couldn’t afford an appeal.  Even if the employer prevailed on the appeal by lowering the sanction to a more reasonable amount, the employer would still be impossibly burdened by the Labor Commissioner’s attorneys fees.

Keep in mind, too, that these attorneys fees were a complete windfall for the Labor Commissioner, since Commission attorneys are automatically paid by the State of California for their efforts.  And last I heard, when they receive attorneys fees from some hapless employer, the Labor Commissioners offices are not refunding the taxpaying citizens in that amount.

Bad as the above-described situation sounds, it actually got worse after 2001.  There was a brief, shining moment in 2002/2003 when the California Supreme Court, in a burst of profound rationality, said that courts couldn’t take a facially neutral attorneys fee statute, and read it to impose disproportionate burdens on employers.  (That moment of common sense was brought to you by Smith v. Rae-Venter Law Group (2002) 29 Cal. 4th 345.)  That was too good to last, of course.

Here’s the “got worse” part:  In 2003, the California legislature announced its explicit intention to overturn Smith v. Rae-Venter.  The current version of the fee shifting statute now gouges the employer in no uncertain terms: “If the party seeking review by filing an appeal to the superior court is unsuccessful in the appeal, the court shall determine the costs and reasonable attorney’s fees incurred by the other parties to the appeal, and assess that amount as a cost upon the party filing the appeal. An employee is successful if the court awards an amount greater than zero.”  (See Calif. Lab. Code §  98.2(c).)

There is now no possibility of another Smith v. Rae-Venter decision helping hapless employers.  The Legislature has declare in no uncertain terms that the employer can avoid paying the employee’s attorneys fees (read, “the Labor Commissioner’s fees”) only if the employer walks out of Court owing the employee nothing — and obtaining that outcome, especially in liberal courts in the Bay Area or L.A., is a pretty big risk for any small employer to take.  This means that employers simply have to swallow the cost when a greedy employee manages to get the ear of a Labor Commissioner who believes it’s fine to impose disproportionate sanctions against a hapless employer, so as as that sanction will benefit a “downtrodden” employee.

Why does this sad story matter?  It matters because this little bit of social engineering — unknown to most people — is driving business out of California.  I personally know of at least two businesses that have just packed up and moved to other states precisely to avoid these kind of hidden costs.  Those oh-so-clever judges misinterpreting the law before 2002, and the “compassionate” Legislature enacting unfair laws in 2003, all think their good intentions say it all.  They truly believe they’re insulating poor, downtrodden employees from the risk of attorneys fees.

What they’re not thinking about, though, is the fact that these employees will be even more downtrodden when businesses keep pulling out of California, leaving the State without enough jobs — and the government without enough taxpayers to run itself.

There’s a reason I’m telling this story today:  it’s because the problem I’ve described above is not limited to the state level.  The National Labor Relations Board has held that Boeing cannot build a plant in South Carolina:

In a stunning move well beyond the scope of their legal mandate, the Obama Administration appointee controlled National Labor Relations Board is suing Boeing Corporation for, get this, building a second production line for their new Dreamliner passenger plane in South Carolina rather than in Washington state.

[snip]

South Carolina is a right to work state whose voters this past November overwhelmingly amended their state’s constitution to ensure that a worker has the right to vote on whether they want to be represented by a labor union. The workers at the Boeing plant in South Carolina have also taken the bold step of booting out the union that represented them, effectively ending the International Association of Machinists and Aerospace Workers stranglehold on Boeing production.

Now, Obama’s NLRB is attacking Boeing’s job creation in South Carolina as “union retaliation” directly related to a 2008 labor strike which crippled Boeing’s production in Washington state.

Now that those state governments that are in thrall to unions and labor have made it virtually impossible to do business in State A, the federal government is upping the ante by making it illegal for a business to move to State B.  I’ll reiterate here what I often say:  The Left may call them corporate fat cats or “rich people,” but I call them employers.  When you make it impossible for them to do business, they’re going to leave.  And if you make it impossible to leave, they’re going to die on the vine, leaving both State A and State B without jobs.

Cross-posted at Right Wing News

The Bookworm Turns : A Secret Conservative in Liberal Land,
available in e-format for $4.99 at Amazon or Smashwords.

A society needs minimum standards

A lot of people look at laws that are hard to enforce and say, “let’s get rid of those laws.”  The three major recipients of this line of reasoning are drugs, prostitution and illegal immigration.  People ask, “Why criminalize these inevitable behaviors, especially since criminalizing them draws into the law enforcement net people who seem more like victims than bad actors?”

I happen to think that some behavior needs to be criminalized, because a society has to draw lines defining what its values are.  I won’t touch the drug question in this post, since I think it was well hashed out here in Don Quixote’s earlier post.  However, I would like to talk about prostitution and illegal immigration.  The first issue — whether we’re right to make prostitution illegal — seems to me to reflect two core values.  The first is respect for women.  We as a society refuse to allow women to be treated as pure sexual commodities.

Of course, in reality that principle teeters on the edge of a very slippery slope.  We allow pornography and Vogue Magazine, and sleazy TV shows and sex in movies, all of which arguably fall into the same category of female exploitation.  It’s hard to draw bright lines, because the relationship between men and women is always going to be sexualized.  More than that, women tend to do a lot of parading for each other, not in a sexual way, but in a boastful way.

As a perfect example of this last point, I urge you, if you can, to watch Chris Rock’s Good Hair, which examines the obsession so many black women have with avoiding the genetic legacy of “nappy” hair, opting instead to try to replicate straight, long, Anglo hair.  The link I included above advertises the video as “funny” and, in a way, it is.  Mostly, though, it’s tragic.  It turns out that black women who want Anglo hair have two choices:  dangerous chemicals or staggeringly expensive human hair weaves.  The irony with this Hobson’s choice is that the women’s real audience isn’t men or white people, it’s other black women.  I doubt white people notice black hair much.  (The last time I noticed was in the early 70s, when ‘fros were a political, not a fashion, statement.)  Even worse, the black men to whom Rock spoke hated the weaves:  they hated the time and money spent, and they hated the fact that weaves mean that black women will not allow anyone to touch their hair, nor will they engage in any activities that mess that precious hair.

My point about the black women’s hair is that, as is true with so many sexualized activities, those activities are actually aimed at women.  (Think:  fashion magazines.)  Prostitution, however, creates a direct dynamic between male and female that we, as a moral, Judeo-Christian culture, wish to avoid.  That we are frequently unsuccessful in that effort doesn’t mean we should give up trying.  This is a line — a moral, ethical and social line — that we draw to define who we are and what we value.  It sends a message to the people within our culture.  Those who argue that legalizing prostitution actually protects the prostitutes miss the point:  the whole institution is corrupt.  Legalizing it is a band-aid over a festering wound.  Certainly the British Muslims who turn British women into their sex slaves understand the real dynamic at work.  (Porn, by the way, isn’t much better.)

I can make much the same argument for doing away with the laws governing illegal immigration, all of which focus on the ills resulting from the immigration laws themselves:  (1) Mexicans are nice people; (2) children are the innocent victims of their parents’ illegal acts; (3) we need the labor and its wrong to turn workers into criminals; etc.  Those are all the details.  The bigger principle, however, is that a nation needs to protect its sovereignty, and that includes making decisions about who crosses its borders.  Defending borders is a use-it-or-lose it proposition.  Either you are a nation, or you are a patch of land over which people fight.  I’d prefer the former, as opposed to the anarchy of the latter.  With that overarching principle in mind, I’m willing to accept the challenges of enforcement, and the tragedy of divided families (a tragedy that wouldn’t happen, of course, if the parents hadn’t decided to gamble with their children’s lives).

I’m sorry if this is a bit of a wondering post, but my chaotic day has meant that I’ve been writing these six paragraphs over the last six hours.  I admit that I’m weaving in some random thoughts as they come along, but I’m hoping that y’all get my point — one with which you can agree or disagree.  I just feel relieved that I finally was able to sit down and wrap this thing up!

It’s no fun, being an illegal alien *UPDATED*

Life can be tough when you break the law.  The people who murdered Annie Mae Aquash discovered this fact when they were arrested and tried for murder 35 years after killing Aquash.  Sara Jane Olson, an SLA terrorist during the 1970s, discovered that when her quiet, suburban life in Minnesota was revealed and she spent several years in jail, despite the fact that she had three children.  My sister’s friend discovered this tough rule when he was hauled off to jail after unwittingly having had sex with an underage girl.  (That is, he wasn’t a predator.  Except for the absence of gray hair, the girl looked older than I do.)

Open today’s paper (I don’t care which paper; any paper), and you will read about someone who committed a crime and got hauled off to jail — and that is true whether the crime was old or new, whether the person acted knowingly or unknowingly, and whether the person had children or not.  As to that last, it’s worth noting that our American prisons are crawling with people who have left children outside.

How different is the story when the lawbreaker comes from Latin America, illegally, and drives around the streets of America, illegally.  That person, we are assured, is a law abiding citizen, other than all that illegal activity, and it’s just so unfair that such a person, not to mention his or her children, has to pay the for this illegal activity.  I’m not making up this maudlin outrage.  It comes courtesy of a front page story in today’s New York Times online (complete with illustration of one illegal lady hugging her daughter and, to amp up the emotions, her grown niece too):

It was just another suburban fender-bender. A car zoomed into an intersection and braked too late to stop at a red light. The Georgia woman driving it, an American citizen, left with a wrecked auto, a sore neck and a traffic fine.

But for Felipa Leonor Valencia, the Mexican woman who was driving the Jeep that was hit that day in March, the damage went far beyond a battered bumper. The crash led Ms. Valencia, an illegal immigrant who did not have a valid driver’s license, to 12 days in detention and the start of deportation proceedings — after 17 years of living in Georgia.

Read the rest here.  Depending on your political orientation, come prepared with either a handkerchief or a barf bucket.  The article’s push is to get driver’s licenses for illegal immigrants, because it’s so unfair that they’re currently out on the road, unlicensed, and running the risk that their illegal driving might reveal their illegal status.

This post, obviously, ties in with my earlier post about the DREAM Act which, while it takes into consideration the needs of children raised in this country, totally ignores the fact that it is an open incitement to illegal behavior.

Honestly, if one gets to pick and choose with impunity the laws with which one wishes to comply, why have laws at all?  This, by the way, is a familiar plaint on my part, since I routinely see judges, when ruling on a given case, decide who the underdog is and then proceed to rule in that party’s favor, regardless of the controlling law.

I’ve worked on a lot of those cases, and I’ll concede that my clients aren’t always nice or good, and the person on the other end is sometimes suffering a real hardship.  Having said that, though, on such cases, my client is totally within his rights under the law, and the other person doesn’t have a legal leg to stand on.  I’ll also concede that our common law has always had an “equitable” side that leans towards abstract fairness, but this ancient principle was always meant to flex the letter of the law, not ignore it entirely.

The problem with our modern approach, which views the law as an impediment to justice, is that it leaves us as a society in which there is no rule of law.  Our whole system of statutes and cases is just a pretense, since any given judge does what he or she wants at any given time.

Of course, without a system of laws, one inevitably descends into anarchy.  Laws may sometimes have harsh outcomes, but if they’re reliably enforced, people can actually plan to avoid those outcomes.  In a “legal” system in which the most pathetic person always wins, the only thing people need to do with their lives, whether in the world of contracts or the world of crime, is to plan on being pathetic losers.  You lose — you win!  This is no way to run a functioning, predictable, reliable, successful society.

Cross-posted at Right Wing News

UPDATE: Sadie sent me a link that’s perfectly apropos.