In Part One, I illustrated examples of how the “rule of law” has been subverted by partisan politics. Part Two will look at how the system of “civil” law — which is supposed to regulate the commercial lives of, and resolve disputes between, citizens — has been corrupted as well.
In his book, The Great Degeneration: How Institutions Decay and Economies Die, historian Niall Ferguson illustrates that a primary contributor to the collapse of a society is over-regulation of institutions by government.
As an example, Ferguson demonstrate how the Democrat-sponsored Dodd-Frank Act, passed in response to our 2008 economic crisis to supposedly rein in financial institutions, actually creates far more problems than it solves — and sets up the economy for a far worse crisis in the future. In Basic Economics, economist Thomas Sowell likewise explains how over-regulation contributes to, rather than prevents, economic downturns.
If regulations are in fact detrimental to the welfare of the society they are meant to serve, who then benefits from the regs? Regulators (some of whom are lawyers) whose sinecures depend on those regulations — and the lawyers who get paid to litigate disputes over the regs — that’s who!
Nobel Prize winning, and American Presidential Medal of Freedom recipient, economist Friedrich Hayek (who also is a lawyer) described the problem of over-regulation this way:
Leadership in the creation of regulations, “has shifted from the practitioners of private law to the public lawyer, with the result that today the preconceptions which govern the development of the law… are almost entirely fashioned by [lawyers] whose main concern is… the rules of organization of government.”
Have you ever tried to read a federal regulation? Here’s one I picked at random regarding “Compliance with the National Environmental Policy Act”.
The first thing I noticed is how many instances in which it refers to some other source. So to figure out what it means, you have to go look at other statutes or regs — and when you do so they also refer you elsewhere. Aside from being a pain in the ass, the lawyer part of my brain recognizes that every time one reg refers to another there is potential for more litigation to interpret what the referenced reg means.
Cross-references create opportunities for lawyers to get paid to argue over what each reg means. Those opportunities expand geometrically. It’s like a metastatic cancer growing in the body of government — and lawyers are the doctors who get paid to treat it. (Notice I said ‘treat’, not ‘cure’. Curing the disease would put them out of work.)
Using the law for self-aggrandizement by government lawyers is matched by members of the private bar – particularly those who ply their skills in the arena of “injury law” (getting compensation for those injured by others).
Known as ‘torts’ it’s one of the oldest branches of the law. The idea that if you injure someone, physically or financially, you should have to compensate them for economic losses resulting from that injury has been part of legal systems for nearly as long as societies have been organized. “Tort law has been an object of philosophical reflection at least since Aristotle’s Nicomachean Ethics.”
Providing a mechanism to facilitate such compensation is one of the reasons groups of people originally created government in general, and courts of law in particular. The alternatives, such as blood feuds, were detrimental to ordered society and the safety of the populace.
But those who created the tort system could not have envisioned what it has become.
Drive on any major road in a Florida metropolis and you’ll quickly notice how billboard advertising in predominated by lawyers – mostly of the ambulance chasing variety. One in central Florida – dubbed the “Wolf of the Turnpike” – has abandoned all pretext of professionalism by simply declaring how much money he has “won” for his clients.
Called “jackpot justice”, I’ve written that these ads make it sound like having a traffic accident can be like “winning the lottery” — if you just hire the right attorney.
Prior to 1977, such advertising by lawyers was prohibited by the organizations that regulated lawyers. It was perceived as unseemly — beneath the dignity of the profession. But then the United States Supreme Court ruled that lawyer advertising was “commercial speech” entitled to protection under the First Amendment, and struck down blanket prohibitions on lawyer ads.
For a while after that decision, states tried to at least limit lawyer advertising. But that has not been very successful either. Now as long a an ad doesn’t outright lie, pretty much anything goes. One law firm that claims to be the “Americas Largest Injury Firm” has billboards declaring “Size Matters!” They declare themselves for the people — for which they take a healthy percentage.
And in a twist on Benjamin Franklin’s admonition about “Doing well, by doing good!”, some lawyers profit from filing lawsuits in pursuit of a political agenda. I recently wrote about a group of atheists who sued a city because they were offended by having heard prayers at a ‘prayer vigil’ they voluntarily attended.
I wrote, “Not being an atheist, I can only speculate what the atheists sought to gain from such a lawsuit. But, being a lawyer, I damn sure suspect what the attorney who represented them sought to gain. If the atheists win their lawsuit on the basis of a violation of their First Amendment right, the City of Ocala could have to pay the atheists’ lawyer fees. Hence the lawyer’s motivation for the lawsuit.”
The most recent example of this nonsense is a Florida woman suing Hershey chocolate for “false advertising”.
https://www.youtube.com/watch?v=8j48BMSF4Ds
Let me enlighten you to what’s really behind the altruistic concern for the public that is so nobly being portrayed by the woman’s lawyer in that video.
Note that he is trying to get the suit into federal court as a ‘class action’. If he succeeds, he stands to “do well” for himself from the legal fees he’d be entitled to from Hershey.
So … how have we reached the point that “the rule of lawyers” has replaced “the rule of law”?
Gary Beatty lives between Florida and Pagosa Springs. He retired after 30 years as a prosecutor for the State of Florida, has a doctorate in law, is Board Certified in Criminal Trial law by the Florida Supreme Court, and is now a law professor.