"There is always a philosophy for lack of courage."—Albert Camus

Saturday, April 22, 2017

"The more effectually to ensnare the people"

 "You may not be interested in law, but law is interested in you." —Leon Trotsky *
* Well, no, Trotsky didn't quite say that. The quote attributed to him says "war," not "law." But Trotsky didn't say "war" either -- he said "dialectic," a word whose meaning takes a lawyer's skill to twist and torture it into something resembling "war." But I am fairly certain misquoting a misquote is not actionable. And if it is, well, that's what the asterisk's for.

But the misquote is no less true for being misquoted, and and the derivative misquote might be truer still. To follow the law one must follow news about the law. And that is becoming harder every day. Lawmakers pass new and exciting laws with great regularity. But "lawmakers" is itself an elastic term needing a watchful eye. What we used to mean by the word was legislature: a bunch of people who stand for regular elections who meet in a capitol building. It was a tidy term that allowed us cracks like Twain's "No man's life, liberty, or property is safe while the legislature is in session," or Adams's "one useless man is a shame, two is a law firm, and three or more is a Congress," or Scalia's that "Congress...does not, one might say, hide elephants in mouseholes."

But legislatures and Congresses are like the old major television networks: we now have as many mini-legislatures in agencies and bureaus and commissions as we have cable and internet streaming media services, publishing more laws than the legal consumer could binge-read in a lifetime. Mandatory references in the CFR alone -- "shall," "must," "prohibited," etc. -- number over a million. Legacy legislators could never have produced content in such volumes, let alone review them. "The legislator," said the father of legislative reference work, Charles McCarthy, "is a busy man; he has no time to read."

And that is before we get to the court reporters published by our judiciary. To avoid what strikes their consciences as unhappy results, judges replace those of our rules that are perfectly understandable under mountains of abstruse exceptions.** This often seems unnecessary: the insurance policy that strict rules take out against their negative consequences is predictability -- clarity is the only premium they charge. When the legal system stops paying that premium, the coverage lapses, and the only predictability that remains is that we shall be ruled by a majority of robed persons.

The 18th century English jurist William Blackstone once remarked:
"In this country we do not tolerate criminal statutes like those of the emperor Caligula, who wrote his laws in very fine print and displayed them high on tall pillars, 'the more effectually to ensnare the people.'"
But the sentiment is, sadly, an anachronism. We moderns write very fine laws indeed, and stack them high as the sun.

Let us welcome, then, the robust use of the Congressional Review Act, the law that gives Congress the authority to overrule regulations by the alphabet-soup lawmaking agencies, bureaus, and commissions. Congress will need to stack the repeal bills high -- the ABCs have a big head start.



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** Take a perfectly fine legalistic doctrine: the judicial admission. A judicial admission is a statement of fact supporting your case made to the court in such an unguarded, unequivocal way that you're stuck with it for the duration of the case -- the other party is entitled to use it against you. So if you say you told your neighbor to return your lawnmower by no later than the following Saturday to establish he wrongfully withheld possession, and he comes back that you waited beyond the statute of limitations to bring an action, you can't turn around and say you only just discovered the wrongful possession. At least, that's the way it's supposed to work.

My law partner and I just won an appeal of a judgment given on a missing promissory note -- the trial judge could not shake the belief that a note is more like a contract than a check, and since you don't need the original wet-signature contract to enforce it, it shouldn't be a big deal the plaintiff can't find the original note. (Ever give a bank a photocopy of a check, expecting, without irony, to walk out with cash? Me neither.) The most vexing part was the plaintiff, God bless him, adopted the theory that the note never existed, and the parties intended to enforce the $15 million deal on a handshake. We stood up to move for nonsuit so fast I thought our heads would pop off. But ultimately we had to appeal the judgment.

We prevailed on other grounds, and while I hate to look a gift horse in the mouth, the reviewing court continued to disappoint any expectations that there is such a thing as a judicial admission. The current trend, it appears, is that there is not unless it is counter-admitted -- that is, it is not an admission at all, but a stipulation.

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Tim KowalTimothy M. Kowal is a civil litigator specializing in
trespass, land use, and business litigation.
You can contact Tim at (714) 641-1232 or tkowal@tvalaw.com.



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