*The Nonsense Factory: The Making and Breaking of the American Legal System*

That is the new book by Bruce Cannon Gibney, and it is one of my favorite books on the American legal system and one of my favorite books of this year.  Here is just one driblet from the work:

…only in America would an administrative law judge sue a local dry cleaner, claiming damages of $67 million for a lost pair of pants.

And this I had not known:

Worse, the legal content of any given state’s bar exam is not actually the law in that state.  The “multistate” part of the bar exam is exactly what it sounds like, but there is no such thing as “multistate” law: different states have different laws.  But even though the larger states, notably New York, California, and Texas, could create their own bar exams, almost all states use the synthetic law of a multistate exam, which is worse than useless: the right answer for the bar might not be the right answer in any state, which wastes students’ time and risks confusing them about the actual law.

I learned also that America has at least 940 legal journals.  Yet the Harvard Law Review had only 1,722 paid subscriptions for 2012, and the extremely well-known University of Virginia review had only 304 subscribers.

Between 1987 and 2017, staff available to Congress declined by about 30 percent.  The Capitol Police, however, expanded in numbers.  Congressional aides often make less than the janitors of the Senate.

OIRA, which is tasked with reviewing major regulations, typically has about 45 staffers.

The book offers up numerous anecdotes about how poorly some Supreme Court justices understand modern technology; Judge Scalia, for instance, was afraid that people could “capture” HBO signals from the airwaves.

…the entire federal judiciary costs about $7 billion, not even enough to buy 55 percent of the Gerald R. Ford aircraft carrier or fund federal health-care programs for fifty hours.”

Recommended, you can buy the book here.

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Factories are important, of course, but we should think harder about what they demand to be truly successful in today's business setting. Raw material, for example.

America's industrial might, not to mention America's combat readiness, relies heavily on a steady, bountiful supply of niobium, a key transition metal. If Brazil goes through with its plan to leverage its control over the world's niobium supply, America will see itself in hotter waters than we bargained for. Shouldn't we conced Brazilian legitimate demands and solve the situation right now before worse comes to worst?

Most lawyers are self-serving ambulance chasers. Most legislators are lawyers. Most laws are passed to benefit the self-serving ambulance chasers. THAT is the problem with the legal system.

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I was a little worried when I hadn't seen a post from Thiago for awhile.

What's in a name ? That which we call Thiago, by any other name, would post the same.

For me, the posts from Thiago and his many sock puppets are a source of much needed levity.

Agreed. I was worried about him for a bit there. He's gotten a little more subtle but it still isn't enough.

Hypotetically, what yould be enough?

Thiago, just find another outlet. No one here cares about your Brazilian obsessions and if we did what exactly do you want us to do about them?

And please don't play the 'I don't know what you mean' card. It's you, Thiago. It's always you.

1) "It's always you."

Obviously, I am always myself, but I think you are mistaking me for another person.

2) "if we did what exactly do you want us to do about them?"

As citizens of the world's democracy, isn't it our solemn duty to help to steer the mighty ship of state? Should we remain silent when we see our leaders pursuing a course of action we know to be disastrous? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? I don't think so.

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I don't know what you are talking about. This is an economics blog. I am talking about current economical news that can damage America's standing in the world in the most irreversible way.

https://www.miningnewsnorth.com/story/2019/07/01/critical-minerals-alaska/indispensable-twin-metals-critical-to-us/5746.html

Brazil's President has vowed to leverage Brazil's control of the much needed niobium into important concessions from developed countries and the cancellation of their diktats.

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The name Niobium is the result of Brazilian imperialism. All true scientists know it should still be called Columbium.

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In non-Manhattan NYC, people didn’t get cable until the late 80s. HBO was broadcast over the airwaves and wasn’t scrambled. I know people who “captured” HBO. Also, broadcasters would send unscrambled satellite signals, that would be captured into the 90s.

When did Scalia say what he said?

It was also pretty easy to 'capture' HBO back in the analogue cable days, particularly in smaller, multi-user apartment complexes.

More recently, many people have 'captured' HBO in the sense they used Slingboxes to, err share, their parents' subscription.

Today, I've heard it's common to just use their HBO Go account.

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August 2014
https://www.c-span.org/video/?c4496818/justice-scalia-confused-hbo-public-spectrum

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HBO is still broadcast over the air from satellites. Scalia's point in the argument in question was that Aereo could be used for such signals- it was only the business decision to go with local over-the-air television broadcasts. Of course, to capture HBO in 2014 required the additional step to decrypt the signal- something that didn't have to be done until around 1986-87- I forget exactly when the premium cable channels started encrypting their feeds, but my father and mother had to purchase a decoder to get HBO/Showtime at some point when I was in college (they had bought a satellite dish in 1982).

All in all, the story about Scalia seems like a cheap shot, and probably not even a well founded one at that.

Read the transcripts. The whole court was talking about public broadcasts the whole time. Scalia then out of nowhere brings up HBO which is clearly not publicly broadcasted and for that he got a much needed correction. Like the Al Gore invention of the internet, it was overblown by the media but he doesn't come away looking like a million bucks. Unlike Al Gore, Scalia is not a dummy politician but a Justice in the highest court so you would expect a certain level of precision. Sotomayor on the other hand is clearly a savvy tech consumer.

https://www.c-span.org/video/transcript/?id=53806

Who would expect a judge sitting on a court that handles all sorts of cases to be a technology expert?

Scalia’s competency was beyond question (and I say that as someone who disagrees with many of his Opinions).

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It's a reasonable wager most of those subscriptions are purchased by academic libraries. Back in the day, firm libraries allocated their space to case reporters, reference works, and select treatises. Law reviews are consequential in the legal academy, not for the research working lawyers have to do. That includes judges and law clerks.

Law reviews are unique among academic journals in being edited by students. I doubt many of them make use of the blind referees which are standard everywhere else.

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The book offers up numerous anecdotes about how poorly some Supreme Court justices understand modern technology;

News flash! Expertise is specialized.

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Imperial China used an examination system to select its bureaucrats on the basis of their knowledge of Confucian classics. It was meritocratic, but these scholar-bureaucrats lacked the practical knowledge to cope with the modern world.

One day, historians will agree it is equally silly today to vest ultimate authority in those whose sole qualification is fussing over constitutional arcana. Meanwhile, modern China is run by engineer-technocrats.

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"News flash! Expertise is specialized."

... and legal specialists are supposed to fully understand our American legal system -- but nobody does.
Our legal system is indeed absurd nonsense --- a vast Tower of Babel that changes daily. SCOTUS certainly does not understand even 10% of its actual workings.

"

"The law is often but the tyrant's will, and always so when it violates the rights of the individual." - Thomas Jefferson

A software engineer might say garbage collection is deficient, or not implemented.

The American legal system obviously needs to be reformed along Christian lines. From now on everyone should just love their neighbors as much as they love themselves and always do the right thing, and never do the wrong. Then everything will be alright.
It's so simple. The fact that it hasn't been done is further proof (as if further proof was needed!) that the current administration and party in power are in league with the forces of darkness.
If foolish people refuse to think and behave correctly they must be made to do so, for their own good.

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No, a software engineer would say - correctly - that there is no process for refactoring law to maintain a manageable level of complexity.

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The system is a sort of "secular theocracy". In a theocracy there is a priestly class that exercises a monopoly on interpreting a revered foundational document, and on that basis claims a final-say veto right on every issue, frequently overruling elected representatives.

The principal difference between the Supreme Court of the US and the Guardian Council of Iran is the nature of the "clerics": the revered foundational document is a constitution rather than a sacred text. Hence a "secular" theocracy.

Also, in practice, the Iranian Guardian Council is extremely heavy-handed and interventionist, whereas the US Supreme Court is rather circumspect, rarely moving too far ahead of public opinion and often deciding cases on narrow grounds. But there is no guarantee that it will always be so cautious.

Canada is arguably one example of a considerably more activist and quite liberal Supreme Court, which suits most Canadians fine at the moment. But it would be somewhat difficult for any hypothetical future federal government of a political stripe comparable to the Ford or Kenney provincial governments (in Ontario and Alberta, respectively) to actually carry out any real policy shifts.

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Bring back the rivers of fire.

Bring back the air pollution that can match China's.

Actually, law is a good thing, if people are thoughtful. All law is is an expression of the population.

As for law framed as an impediment to progress, we actually innovate and create new products with law.

Take HMOs for example. This innovation became legal under a state's cooperative laws and overcame the corporate practice of medicine restriction, and later Minnesota and after that federal laws, created a new product. The early innovation in Minnesota is responsible for one of the largest HMOs being located there.

Same with California.

Law can create products that have value that would never had been available without law. Law is also why you have more confidence in purchasing stock, or putting money in a bank.

Wow, having a legal system is a good thing? Gee thanks Bill. That's really insightful.

For some on this site, it is.

Indeed.

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For you it is inciteful. I really wish that were a word.

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CA law making noncompetes unenforceable gave it the highly trained workforce to create and run Silicon Valley. Nobody is going to spend a decade to learn this complicated stuff if an employer can make them sign it away. Shockley had disagreements with Noyce, Moore, and several others, so they all left to found several semiconductor companies. If those talented men just wasted a collective few man-decades waiting for their noncompetes to expire we would never have a tech industry like it is today. Moral of the story isn't just that a legal system is good but that the laws you make certain incentives possible.

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"Actually, law is a good thing, if people are thoughtful."

awright then Bill -- America now has hundreds-of-thousands of your thoughtful laws on the books. Is that enough for you ??

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I don't think the description of the bar exam is accurate. My state uses multi-state materials supplemented with written examinations on state law. I would be surprised if many states rely solely on the multistate, but if they do its probably in recognition that while its technically true that each state has different laws, they all, except Louisiana, share a common law basis. So, contract law is probably at least 90% the same in each state, and what the legal training purports to do is to teach the legal terminology and how the system categories different issues, so that the lawyer knows how to spot the issues that needed to be researched. Also, as part of common law, change is constant.

The bar exam is useless (and so is state level licensing), but the multi-state is about as close to useful as the bar gets. No one at a major law firm specializes in any “state” law. You understand a framework (consisting of federal, state and common law principles) and can advise on issues after targeted follow on research. A good lawyer can only spot the issue, they shouldn’t opine from memorization.

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The legal system is one of the many important ways that Sweden is freer than the United States, and as far as I know the difference there is not captured in the economic freedom indices.

In this respect it isn't just Sweden, but many countries with a juster legal system (e.g., loser-pays).

Sweden is freer than the US?

I don't think so, unless being free means getting free stuff.

Citizens of the US have more freedoms than any people on Earth. Of course, those freedoms are challenged by Congressional malfeasance, since Congress writes the laws, but the system of checks and balances helps to pull the system back into equilibrium. It has worked very well for approximately 240 years.

'Citizens of the US have more freedoms than any people on Earth.'

Like the freedom to be taxed twice, both by the government where they reside when earning money outside of the borders of the U.S., and by the American government. No other country (well, except for Eritrea) enjoys such glorious freedom, because obviously, freedom on the American model is not free - https://www.taxesforexpats.com/expat-tax-advice/Citizenship-Based-Taxation-International-Comparison.html

Of course, the way American citizens are forbidden from travelling to, or buying products from, a number of countries is another example of that exceptional American freedom.

Only if you make over $105,000 or something like that. In which case you can probably afford a lawyer to get you off the hook.
Anyway, as they say, it's our contribution to remaking the world the way America knows it should be.

Americans do indeed have the freedom to sleep either on the street or in a Beverly Hills mansion, depending on their inherent worthiness and diligence in "playing by the rules".

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One might take a look at Scalia's dissent in the 2014 Aereo case, as discussed in TechDirt here.

https://www.techdirt.com/articles/20140625/09340227683/supreme-court-uses-bizarre-looks-like-cable-duck-test-to-outlaw-aereo.shtml

It looks like he's got a pretty good grasp (better than Breyer who wrote the majority opinion) of what's going on both technically and legally.

Opinions are written by law clerks, whereas questions asked during oral arguments presumably originate from the justices themselves.

But others have already pointed out examples where HBO signals were broadcast over airwaves. And in any case, knowing that "HBO" is the name of a cable channel has nothing at all to do with grasping "modern technology". You might not know that if you don't watch TV.

I agree with Scalia's decision, but he still got HBO wrong.

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I have long believed in our system. Every system has some failures, some weird outcomes, but I thought that on the whole our system was as good as it gets. However, the more I hear about the outcomes of suits such as the recent glyphosate actions the more I question whether we need some radical change. Perhaps juries are outdated, but where is there a better way? Laws are made via the political process which means that the loud and powerful will drown out the voices of abstract justice.

A jury is not the best tool for assessing risk or fault in cases involving the results of scientific studies

I will never forget the case of a woman suing somebody over a cancer she claimed was caused by silicone breast implants.

There was a TV show about the case, maybe "60 Minutes" or "20/20", I don't remember. The jurors were interviewed on the show, and one juror, an Hispanic gentleman, said he realized the plaintiff's attorneys had not proven the implants caused her health problems but the plaintiff had all these big medical bills and someone had to pay.

The jury decided for the plaintiff.

I realized right then and there a jury trial is not the best method to adjudicate a scientific issue.

Too bad you didn't realize, in that moment, that a public health system was a more efficient alternative.

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The courts get jammed in California, lawyers representing one side or the other of the myriad of regulations. The regulations are payoffs by a fairly ignorant legislature to special groups in their district. Business goes through sudden legal stops constantly, costs rise everywhere. Nightmaresville.

The US Supremes have a load of lunacy, completely different but the same result, jammed courts.

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About that $7 billion figure- there are only 856 federal judges, so that comes out to about $8 million dollars/judge. Does that 7 billion figure include the court house, equipment, and security, or are those costs part of the marshal service and the GSA?

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The snippet is just wrong on the multistate portion of the bar exam. The multistate tests the basic common law areas (contracts, torts, property, evidence, etc.) that are largely the same state to state (and US constitutional law, which is uniform). Are there subtle differences in these areas from state to state? Sure. But this is testing on the vast bulk of the law that is largely uniform. (Also, in some areas, there are two rules, and some states adopt each one; the multistate tests on that.) Such a bad misunderstanding of this issue does not incline me to read (or purchase) the book.

'Such a bad misunderstanding of this issue does not incline me to read (or purchase) the book.'

But surely Prof. Cowen writing 'one of my favorite books on the American legal system and one of my favorite books of this year' should be enough to override such concerns.

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'Correct in most states' won't help you in a malpractice case.

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I haven't read the book, but I don't think that characterization of the multistate portion of the bar exam is fair. While there are tons of local variations -- and those variations occur not just by state, but by appellate district or even by courtroom -- the multistate portion can reasonably be thought of as an attempt to describe a center of gravity of national jurisprudence on common law topics (contract, tort, etc.). That center of gravity is useful to predict (or argue!) how the law in any given jurisdiction is likely to evolve. Moreover, because many, probably most, lawyers find that their practices require consideration of the law in other jurisdictions, it is very helpful to begin with a rough idea of the likely shape of those other jurisdictions law.

To venture beyond my knowledge, perhaps the multistate portion could be thought of as a starting point for Bayesian analysis of a field where the "correct" answers constantly evolve both geographically and temporally.

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As a lawyer, I have to say most of these anecdotes make me anti-recommend the book. So what if a dude asks for $67 million for a pair of pants? He's not going to get it. The formal ability to put that amount into the complaint doesn't change the actual result of the litigation.
As for the MBE, if you can't study for the bar and then forget it all and learn the actual law, you're not cut out to be a lawyer. Even if the bar exam was a good test of the general law of the state, it would be irrelevant to most people's actual practice, which will be fairly specialized and not some general law stuff. But you need a standardized way to test people if you're going to have a licensing requirement, unless you want to test and license by specialty instead. The real problem with the bar exam is that it's too easy, resulting in too many people becoming lawyers, too many of whom are incompetent. And it takes like a week and a half to study for the bar exam if you're the type of person who should be a lawyer, so anyone who is having a significant amount of time wasted by MBE prep should just not do it.

Did the defendents get a quick decision and expenses? I don't think they did in this situation. The process is the punishment.

Rule 11 of the Federal Rules of Civil Procedure would result in sanctions for this kind of claim. Also, attorney sanctions as well. There are also state and other federal laws limiting this kind of frivolous conduct.

Did it happen? Rule 11 is great, wonderful and magical, but did it apply in this situation? I don't think it did. I read about it a while ago, don't remember, I'll waste my and your time looking it up, but memory tells me it was a long drawn out multi hearing procedure.

As derek implies, the legal system protects their own.

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May 3 2005 was the event. It went to trial in 2007, and all appeals ran out in 2009. The Chungs were awarded costs, and represented pro bono at the appeals.

There was no Rule 11 sanction from what I can see. Any sane system, especially in this case would have told the guy to go pound sand after refusing multi thousand dollar offers of settlement. But it isn't a sane system, this stuff takes time a clogs up the courts making the delays in these situations intolerable.

Four years out of your life because some jackass thinks his pants are worth $67 million dollars.

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Rule 11 is woefully underused by the federal judiciary.

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Agree with you Patrick. He would most likely be sanctioned and have to pay court costs for this frivolity. But, for persons who are unfamiliar Rule 11, this meme strikes a cord, which is not founded in reality. I would agree with you that the examples given would not cause me to recommend the book either.

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Lawyer here, also agree. I can't imagine a single attorney in practice is getting "confused" by a majority rule they learned in 3 weeks of bar studying and then immediately forgot. These anecdotes sound silly but not a single one is representative of some sort of deeper problem with the legal system.

To be clear, there are plenty of deep problems with the system--but they're not these. If these anecdotes are indeed representative of this book, I'm quite confident that this author has an extremely shallow understanding of American law and practice.

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Our Forefathers,

Who wrote the Constitution,

Like Scalia,

Did not know you could capture HBO signals from the airwaves, either.

Yet, we have some who argue, that, like Scalia, that the Constitution was not intended to be adaptable or reflective of change brought about by changes in technology. Yet, they don't apply that reasoning to say that the Constitution applies only to muskets that were available in the 1790's

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And yet every judge seems to be described as a "no-nonsense" judge. A lot of nonsense judges have been sneaking into the system.

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Novelist Charles Dickens put it best:

This proverbial expression is of English origin and the ass being referred to here is the English colloquial name for a donkey, not the American 'ass', which we will leave behind us at this point. Donkeys have a, somewhat unjustified, reputation for obstinance and stupidity that has given us the adjective 'asinine'. It is the stupidly rigid application of the law that this phrase calls into question.

It is easy to find reference works and websites that attribute the phrase to Charles Dickens, who put it into print in Oliver Twist, 1838. When Mr. Bumble, the unhappy spouse of a domineering wife, is told in court that "...the law supposes that your wife acts under your direction", replies:

"If the law supposes that," said Mr. Bumble, squeezing his hat emphatically in both hands, "the law is a ass - a idiot".

In fact, 'the law is an ass' is from a play published by the English dramatist George Chapman in 1654 - Revenge for Honour:
Ere he shall lose an eye for such a trifle... For doing deeds of nature! I'm ashamed. The law is such an ass.

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People do not subscribe to individual law journals because they receive access to all those journals via the subscription services they do subscribe to (Westlaw, Bloomberg Law, Lexis).

Most of the excerpted criticisms here can be overcome with a minimum amount of research. There certainly are real problems with our legal system, but those real problems are obscured by the examples mentioned in the blurb.

+1 It is both amusing and telling that Professor Cowen doesn't know about online legal research. Some may not realize that even old law review articles are available through online legal data bases. HeinOnline, for example, has actual scans of the pages of law reviews going back to the 1850s.

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Gibney is a promoter of the libertarian-authoritarian axis. https://www.inc.com/bruce-gibney/silicon-valleys-libertarian-problem.html Long live the surveillance state. Trump is the pied piper of the ignorant. Gibney is the pied piper of the scapegoat.

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I'm pretty sure that Prof Cowen knows that extreme anecdotes are not a good way to judge an institution. Also, in addition to the other correct comments defending the multi-state, the bar exam is not designed to test an applicant's ability to memorize specific state laws; instead, it tests the applicant's ability to learn several bodies of law, which she may not ever use, and then apply those laws, analytically, to specific facts. If you can do that, you may *begin* to practice law, where you will look up the specific statutes, cases and rules of your jurisdiction.

She? Is that a typo? Women are barred from taking that bar exam in all 50 states, which I would assume that you would know if you are a lawyer.

Use of a generic "she" is a not-uncommon affectation in the legal industry.

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To anyone with a knowledge of the actual operationss of the market in question--which I realize academic economists rather disdain--these are remarkably stupid points. The laws of the 50 states are generally very similar (there are a number of reasons for that), and the multistate bar exam doesn't test arcana like Medicaid reimbursement rates or abortion licensing, but mostly principles of commercial law. Law reviews are student-edited journals which run articles mostly written by professors. Most of their content is not intended for, nor useful to, actual legal practitioners, and the small part that is can be found online. The overwhelming bulk of the subscribers to law reviews will be other law schools, of which there are only a few hundred.

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"Congressional aides often make less than the janitors of the Senate." at least give hope that the labor markets are working.

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The US tort system is the low-hanging fruit for anybody who wants some form of socialized medicine. No country with any sort of social insurance or single payor has anything like it. It's where we'll get the money if anybody bothers to look. Economists seem strangely incurious about it.

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The lawyers in the comments section trying to argue against the author's thesis by contesting his depiction about the bar exam are simply proving the author's point, and revealing how lawyers are trained to split hairs and miss the forest for the trees. What is the point of a bar exam? Presumably, to ensure lawyers are adequately prepared for practice in the jurisdiction that maintains the exam. Ok, what does state-specific aptitude and knowledge mean? For aptitude, if the bar exam is supposed to be an exercise in displaying aptitude for applying legal rules to facts, then stipulate the rules in the exam and forget the insane amount of memorization the bar exam requires. Also, wasn't that the whole point of law school? What is a state bar exam adding to this, unless we recognize a lot of law schools are terrible at preparing their students to become lawyers.

Ok, how about knowledge? Well this is the author's point: most states' common-law doctrines have long been codified into state codes, many of which vary from one another in important ways. The whole reason why there are 50 state bars, presumably, is because those bars think that (their* legal rules and practices are meaningfully different and need to be learned. What other justification is there for specific state bars? But if that's the case, then why does the MBE reward the ability to memorize literally hundreds of "rules" that aren't actually rules, just close sorta-kinda approximations of "general principles"? If the goal is knowledge, tie it to the state in question, and make it be the actual rules in that state.

The end result is that the bar exam is costly, stressful, and doesn't prepare new lawyers for practice. As some commentators noted, they learned it in three weeks and promptly forgot it. If so, doesn't that demonstrate precisely how irrelevant the test is?

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The suit against the dry cleaners has about as much relevance to the overall state of the US legal system as the bogus horror over the grandmother burned by McDonalds overheated coffee. See this for what really happened with the suit against the cleaners - https://www.wikiwand.com/en/Pearson_v._Chung - anyone can sue but the law and commonsense win out in the end! What's more relevant to millions of people are forced arbitration agreements that prevent them from enforcing legitimate legal rights in court.

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