By Robert Harrington
Rights Talk
The trouble with lawyers
Rights Talk is the name of a book by Mary Ann Glendon which describes and decries the rights-centered nature of political discourse in the United States. Her subtitle is The Impoverishment of Political Discourse. And so it is.
The ongoing debate over the library in Gilroy is a case in point.
Americans tend to view all issues in terms of rights. We are obsessed with them: civil rights, the right of free speech, criminal rights, children's rights, gay rights, abortion rights, victim rights. No one speaks of duty or responsibility.
Rights talk does not lend itself to resolution of differences. All sides demand their rights and fold their arms. But hardly any rights are absolute, and they must be traded one against another. Rights talk tends to hide this fact, and we shout at each other with increasing stridency.
This tendency is not new. Glendon points out that Alexis De Tocqueville remarked on it in 1835. In Democracy in America, Tocqueville wrote: "Scarcely any question arises in the United States which does not become, sooner or later, a subject of judicial debate; hence all parties are obliged to borrow the ideas, and even the language usual in judicial proceedings, in their daily controversies." It would be hard to construct a more accurate description of our political debates in 1997.
Concerning the library controversy, City Councilmember Connie Rogers said: "Technology has raced ahead of the law. Nobody knows what's legal. Some people believe they are sure of what's moral, but do they have the right to decide for everyone else?" Everything bows before the law. Rights trump morality.
Susan Fuller, County Librarian, spoke only of the courts and the First Amendment. "Speech is only unprotected when specific items are so judged in a court of law," she said. In other words, pornography is only pornography if a judge has stamped it. Community sentiment is of no consequence. Parents count for naught. Pastors have no say. The courts rule all.
Even those on the other side felt duty bound to declare their allegiance to rights. Lizanne Bradley spoke of people who gave their lives for the First Amendment. Cynthia Walker gave her de rigueur panegyric: "I am an adamant and enthusiastic supporter of free speech...." Stuart Allen lectured us on the rule of law.
We are paralyzed by this incessant lawyer-talk. Glendon said: "In the home of free speech, genuine exchange of ideas about matters of high public importance has come to a virtual standstill." This is true even in matters of relatively minor public importance, such as how we run our libraries.
Rights talk is a dialect which admits only one dimension: the legal dimension. We have no language for expressing community imperatives, matters of spirit and sociability. Each individual stands alone before the government and the law. Glendon says, "Lacking an adequate linguistic or conceptual apparatus to deal with the intermediate institutions that stand between the individual and the state, we regularly overlook the effects of laws and policies upon the environments within which society flourishes.... The oversight is not inconsequential." The consequences are that the "environments within which society flourishes" wither from neglect, and civility gives way to discovery proceedings, legal briefs, motions, trials, and unending appeals.
Judges rarely do anything to discourage this process. They have been perfectly happy to consider even such questions as when life begins, euthanasia, and the definition of marriage. When they can't articulate their judgments in plain language, they just take over an institution, such as school districts found to be at variance with the latest half-baked theory of social scientists. No part of our lives is safe from their meddling.
In this rights talk mode, we are trapped as pawns on the chessboard of the law, playing the same game to a draw over and over.
Connie Rogers would have us believe that she can look at Sandi Zappa's examples of Internet porn, wring her hands, and say "I just don't know."
Susan Fuller insists that we must take it through the 5- to 10-year legal process, page by page, so judges can make the call.
Let's not play this game any more. Our moral compass is not so broken that we can't tell good from bad. As Dick the butcher said in King Henry VI: "The first thing we do, let's kill all the lawyers."
The trouble with lawyers
I have sympathy with Linda Bowles' recent diatribe against lawyers, but it's a little like the weather: Everybody complains, but nobody does anything about it.
Someone pointed out that lawyers are only doing what we're asking them to. There's some truth to that, and for too many of us, a lawsuit is the court of first resort. As Columnist Robert Mitchell told us recently, if we think there's too much litigation, we should consider filing fewer lawsuits.
The flood of litigation is only a symptom, however. The underlying problems and what should be done about them have been pointed out by a number of thinkers.
One reform of merit would be to adopt the "English rule," whereby the loser in a lawsuit pays the winner's attorney fees. This idea, promoted by Dan Quayle among others, would replace our empty talk about frivolous lawsuits with meaningful action.
Many have pointed to the abuses resulting from contingency fees. The common law name for that is "champerty," something I learned from Mathew Scully's recent op-ed piece in the Wall Street Journal. Scully points out that it was illegal in olden common law because the lawyer was "no longer merely an advocate serving client and law but a self-interested claimant acting under the guise of justice." Doing away with contingency fees would go a long way toward curing the problem Bowles is exercised about.
Judges are complicit in the problem, and the power of the judiciary has grown vastly from what the founders envisioned. To bring things into better balance, Robert Bork recommends that we amend the constitution to allow Congress to override any decision of the Supreme Court. This proposal isn't as radical as it sounds but has no chance of success.
Lino Graglia, professor of law at the University of Texas, points out that most of the excesses of the Supreme Court spring from the "due process" and "equal protection" clauses in the Fourteenth Amendment. He recommends an amendment to clarify the Fourteenth Amendment to its original intention, which was to be only a prohibition of racial discrimination.
Richard Epstein, professor of law at the University of Chicago, offers by far the most comprehensive proposals for fixing our problems with lawyers and the law that I know of. These are spelled out in his 1995 book, Simple Rules for a Complex World. His rules are only seven in number but cover an amazingly broad range of the law. In only 360 pages, Epstein not only spells out his simple rules but also discusses their application in everything from collective bargaining to environmental protection.
Bowles reminisced about the good old days when Congress was populated by ordinary citizens, but our obsession with the law harks back at least to 1835 when Tocqueville remarked on it. Thoughtful action to stem the tide of overbearing laws and lawyers has no chance in an era where the president's legislative agenda is focused on things like how many days a woman stays in a hospital after giving birth.
Gilroy Dispatch, November 21, 1997