Bruce Cannon Gibney - The Nonsense Factory: The Making and Breaking of the American Legal System

The young man knows the rules, but the old man knows the exceptions.

Oliver Wendell Holmes, Sr.

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

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

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

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

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

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