I had intended to write a post on Liberalism and the Rule of Law, but I simply don’t have the time this morning. As a place holder, I’ll simply mention that Lord Bracton, an English jurist writing in the 13th century wrote that “it is only when an expression of the prince’s will is in conformity with this lex regia that his will becomes a binding law.” He wasn’t the first to express such things, but in terms of setting the English-American common law on such a path, he was fairly influential. It’s a pretty extraordinary claim, when you looked at the available evidence. Empirically, it looks like legal authority springs from the force the King can bring to bear. But, here, Bracton is claiming that the king springs from the law; not that the law springs from the king.

That’s one of the things at the heart of liberalism — that authority springs from the law not vice versa.

O.k., so I kind of got the post up. But, otherwise, consider this an open thread.

I just became the president of the board of directors of our county’s legal aid corporation.
I’ll try not to let the power go to my head. The legal aid corporation has two attorneys and their staff who provide legal services to the poor in non-criminal, non-profit generating cases. These days the bulk of their efforts seem to be in CHINS type proceedings (Children in Need of Services — parental termination type cases). They also do a fair number of divorces and a handful of whatever else walks in the door, including landlord/tenant disputes, contract disputes, etc.

For me, it once again raises the question of the purpose of donating or subsidizing legal services to the poor. Not just as a matter of my own intellectual curiosity, but also as a way of pitching the organization to potential donors. Tippecanoe County Legal Aid gets a substantial portion of its funding from United Way, but also from direct donations and through its fund raising events (the golf outing being nearest and dearest to my heart).

There is the basic fairness reason, of course. Everybody should have a lawyer. Some folks can’t afford it. Therefore, we should help pay for them to have one. This is enough for your basic do-gooder. But what about those for whom pure altruism isn’t reason enough? That’s when I start thinking about the fundamentals of our legal system itself.

I think it was an Alvin Toffler book where I read law described as “potential violence.” If you don’t abide by the law, ultimately, guys with guns will come and force compliance; either on behalf of the state, in criminal cases or on behalf of other citizens in civil cases. Part of the social contract is that we have all handed our right to do violence over to the State in return for its protection and the expectation that the State will, if necessary, do violence on our behalf to protect our rights. Part of the reason we agree to this bargain is because the alternative is a Hobbesian state of nature where our lives are solitary, poor, nasty, brutish, and short. In such a state, the only property you could truly call yours would be only so much as you could hold by force against the force of others.

“That’s great, Doug, but what about the poor people?” Glad you asked. Part of the trick of our legal system is the fact that, by and large, Government use of violence is needed only rarely. Most people go along with the system without the need for actual force. If the Government had to force compliance with every order, the system would collapse. Most people go along with the system because at some level, even if they lose their particular case, they believe it is more or less fair. That belief unravels if the poor are systematically unable to afford lawyers and simply get steamrolled by the system. This is particularly true in cases involving huge issues to the person’s life such as termination of their parental rights. A judgment for money that can never be collected in any case is one thing; taking away a person’s kids is quite another.

If too many people become alienated from the system, the system starts unraveling. More and more, people reconsider using violence on their own behalf. We start slipping back toward the Hobbesian state of nature.

So, aside from altruism, it’s in all of our best interests to make sure as many people as possible believe in the notion of the basic fairness of our legal system. And, as much as people grumble about it, you’ll notice that most folks will give the legal system a whirl rather than take matters into their own hands when they are unable to resolve the matter through some sort of private agreement. We don’t want that to change.

Today, the 7th Circuit has a somewhat significant ruling (PDF) on the Fair Credit Reporting Act. Under the Act, companies aren’t supposed to use credit reporting bureaus to access consumer information unless the consumer initiates the transaction. An exception to this is that companies are allowed to access such information if it is done to make a “firm offer of credit or insurance.” The court analyzes some of the particulars as to what constitutes a “firm offer” – Does the offer have to be valuable to most recipients? (not necessarily); Does a promise of “free” merchandise mean that the offer is not one of credit? (No.); Must the initial flyer contain all of the material terms? (No.); Does the power to alter the deal’s terms make the deal not “firm”? (No); and Is 6-point type “conspicuous”? (No, but at the time in question, it was negligent rather than reckless for the company to use 6-point type; only actual damages and not statutory damages are available to the Plaintiff).

Via The Indiana Law Blog, the death of Judge Richard McIntyre of the Lawrence County Circuit Court appears to have been self-induced carbon monoxide poisoning.

This leads me to wonder how the suicide rate of judges compares to the population at large. We had a judicial suicide here in Tippecanoe County about 5 or 6 years ago. As you might expect, it was a real shame. Judge Heid was a smart, conscientious judge. He didn’t seem to have any overwhelming personal issues confronting him. But, then, I guess suicide is hardly ever rational. It would stand to reason if it is in fact the case that judges are more prone to suicide than average. They have to listen to the most awful situations that transpire in their community. And, to a greater extent than, for example, police or other lawyers who have to deal with these things as well, judges often wind up being socially isolated.

Judges have a tendency to maintain a more aloof demeanor simply because they feel a duty to uphold the dignity of the court and avoid even the appearance of impropriety. Furthermore, their friends before taking the bench are often lawyers. Those same lawyers frequently have to go in front of the judge in a professional capacity and have the judge rule in their favor. This can be detrimental to an easy back-and-forth between friends. Just how much crap are you going to give your buddy if you have to try a million dollar case in front of him next week? Basically, I think judges tend to have their social circle constrict upon taking the bench. Personal relationships remain friendly, but not necessarily close.

So, I figure relative isolation and constant exposure to the evils of the world has to take a toll. Obviously the vast majority of judges find a way to deal with it, but some do not. And, for all I know, I’m talking out of my hat — I don’t really know the situation behind Judge Heid’s suicide and know even less about Judge McIntyre’s. So, you might want to do some independent research before walking up to the nearest judge and giving him or her a hug.

The 7th Circuit Court of Appeals has issued an opinion today with respect to Indiana Right to Life and the Indiana Judicial Canons in which Terre Haute right-to-life attorney, James Bopp figures prominently. The case revolves around Bopp and Right to Life’s attempt to force judicial candidates to take a stand on abortion issues prior to an election. The Judicial Canons prohibit judicial candidates from making statements that commit or appear to commit the candidate with respect to cases, controversies, or issues that are likely to come before the court.

To some extent, judicial candidates are probably hiding behind these canons in an effort to avoid answering abortion questions issued by Bopp & Co. that are framed simplistically in an effort to make a candidate look bad if he or she doesn’t answer in a way that would restrict a woman’s right to control her reproductive faculties. So, they want to get those canons thrown out so that judicial candidates can’t hide. Trouble is, they can’t find any judicial candidates who want to speak out on the issue or answer Right to Life’s questionnaire but feel that they can’t, solely because of the judicial canons.

So, Bopp tried to get clever. He said that Right to Life had standing to sue on First Amendment grounds because they had a “right to listen” that was being frustrated by the judical canons. Let’s pause a moment to savor the irony here. How many times have you heard a woman’s right to choose or the right to privacy ridiculed because it wasn’t specifically set out in Amendments 1-8 or 10-27 of the Constitution? (We’ll just keep quiet about #9 because it says “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This is awfully inconvenient when someone is trying to argue that a right doesn’t exist because it isn’t enumerated in the Constitution.) Perhaps it’s one of those penumbral emanations the Right to Lifers are always railing against.

Ok, irony-appreciation moment over. In fact, the court said, the First Amendment is a right to communicate, which involves speaking and listening. However, before a right to listen can be said to have been violated, one has to have a willing speaker. So, Bopp & Right to Life are back to their problem of not having any judicial candidates willing to claim that they were afraid to speak. (The court details a situation in which Bopp had gone so far as try to enlist a former law clerk who was now a judicial candidate to write the Indiana Commission on Judicial Nominations — the organization that enforces the canons — in an effort to get a response that prohibited a response. The former law clerk appears to have been luke warm to the idea at best, and the attempt to engineer a suitable controversy was unsuccessful.) Ultimately, the 7th Circuit dismissed the case because there is no “case or controversy” at issue. None of the named plaintiffs have standing to sue.

My law firm, Hoffman, Luhman, and Masson, PC is in need of an associate. Currently, we are a small, two-person law firm. The firm and its predecessor firms have been operating in Lafayette, Indiana for the past fifty years. We are a general purpose law firm but in the recent past have not done much if any criminal or family law. At the moment, most of our work comes from representing Tippecanoe County, civil collections, and insurance defense. We also do a reasonable number of wills and estates and handle a variety of other civil matters.

The ideal candidate would either have roots in Lafayette or otherwise be inclined to spend quite a while in the area. Our founder, Fred Hoffman, was a gentleman and a lawyer; collegial but effective, intelligent with a sense of humor and, above all, integrity. The rest of the firm has tried to follow suit. We would like to find a lawyer who fits in with this style of practice.

If interested, please send resumes prior to November 15, 2007 to:

Douglas J. Masson
Hoffman, Luhman & Masson, PC
P.O. Box 99
Lafayette, Indiana 47902

If you know anyone who is interested, please pass this along.

Date: October 8, 2007.

(Via the Indiana Law Blog). Mike Smith, of the Associated Press, has an article entitled Tragedies, single incidents often lead to laws. Smith points to a guy thrown from a mechanical bull turning into regulation on mechanical bull rids; a tornado in Evansville resulting in regulation on installers of manufactured homes; and the case of Michael Vick resulting in lawmakers planning to propose dogfighting legislation.

A “ripped from the headlines” approach to legislating has always annoyed me. Legislation is supposed to be a code of laws that will govern society’s behavior for decades or centuries. Times change, of course, and tragic incidents will, at times, highlight an aspect of society that has changed and which needs regulating. Dog fighting is not one of these new developments. Neither are tornadoes.

Rep. Moses hits the nail on the head with his explanation:

“But sometimes people expect their legislators to do something, and the only thing legislators can do is try to get a law passed. There may be sufficient legislation already, but it’s not unusual for legislators to jump up and want to do more.”

When the only tool you have is a hammer, the whole world looks like nails.

I haven’t been able to track down the origins of the phrase, so I’ll just say that there is an old legal truism that “hard cases make bad law.” The idea is that it’s a bad idea to extrapolate a law of general applicability from one or a few sets of unfortunate circumstances.

According to a story by the Associated Press, bankruptcies in the Southern District of Indiana are up 70% from last year. It’s not as bad as it sounds, however. 2006 filings were artificially low because of the law change in 2005. In 2005, the bankruptcy law became harsher, so folks who would have ordinarily waited until 2006 went ahead and filed before the laws changed in 2005. Still, indications are that bankruptcies are climbing up to their old levels. I don’t think the harsher laws actually did much to reduce bankruptcies. The law was intended to at least get more people into Chapter 13 bankruptcies (where they pay into a plan for 3 to 5 years) rather than into Chapter 7 bankruptcies (where their assets, if any, are divided up, sold off, and distributed.) I’m not sure it’s even doing that.

I think the bankruptcy act has merely increased the bureaucracy of filing bankruptcies and increased the fees charged by bankruptcy attorneys. I would be surprised if the data showed that creditors are getting much if any more of their money back. As a collection attorney, my experience has been that people don’t file bankruptcy in marginal cases. If they can get back from the brink, they usually try to do so. Bankruptcy filers are, by and large, in a hole they’ll never get out of on their own, no matter how diligent they are. They get in that hole for a variety of reasons. Some folks have simply been irresponsible. But, in addition, a lot of people just get buried by medical bills. They didn’t go out and buy a big screen TV. They just got sick.

Reform health care, and I think you’ll see a lot fewer bankruptcies.