Reforming the law

[Arrian]

Che

Simplicity =! clarity. Often it's the other way 'round.

-Arrian

[Solomwi]

Originally posted by Felch


That's fair. I think we need some sort of referee to moderate the trial, but that person should not be on some pedestal wearing robes and being called "Your honor." There's absolutely no reason why we should be forced to treat a government official like they're our noble lord. I don't have to call a firefighter "Your honor," and they're a good deal more useful to society than some corrupt judge.

There are plenty of reasons the formalities of court are a good idea, but none of them ring true when you're just been hit for a $500 fine. Just remember what the qualifications for referee would be: well-versed in rules of procedure and evidence, and available to start immediately.

The penalties described by legislatures are out of control. Most laws are so broadly defined and severely punished that the courts are forced to be "merciful" rather than fair. Why? So that you're forced to humiliate yourself before a judge, lest they throw the book at you.

Look at speed limits. Nobody obeys them. Most cops won't pull you over unless you're going at least ten above. So it's less of a limit than a suggestion. And that gives cops who want to be dicks the power to harass just about anybody.

Let me get this straight. Courts are forced to be merciful because the legislature does such a bad job outlining sentences, yet sentencing rules should be in the legislature's control (what I took your OP to mean; surely you weren't suggesting that increases in particular cases should be determined by the legislature) and the court is merciful just so the judge can get his jollies watching you humiliate yourself? Surely you see the contradictions here. Your complaint about speed limits goes to law enforcement, not the legal system. Donegeal might give you a better answer, but I don't see why a different system for prosecuting speeders would necessarily lead to more uniform enforcement of speed limits.

Speed limits are about as simple a code as you can get. "Don't go over X speed, or you are subject to Y fine." Yet, in keeping with Che's comment, reality intrudes and keeps the practice from being as simple as "Take Y dollars from everyone who exceeds X speed." Whether the cops can stop and harass you, by the way, remains in your hands. Just don't speed.

I've never been in a civil case, so I'll withdraw criticism of the specifics until I know more. I do think that there are obvious abuses that exist (e.g. McDonalds' hot coffee case), but juries seem to be part of the problem there too, rather than a solution.

In any event, reform is pretty clearly needed, and opposed most strenuously by the trial lawyers who profit the most from the current system.

Careful. It was tort reform that allowed California burglars who injured themselves breaking into a house to sue the homeowner and, for that matter, that allowed Stella Liebeck to recover from McDonald's at all. As for that case, it's not an obvious abuse. It's just easily boiled into an outrageous soundbite once you leave some pertinent details (like the fact that she suffered third-degree burns and tried to settle for $20,000). There are plenty of abuses in the system, but the question is whether the system minimizes abuses compared to the next best possible system, not whether it is completely free from them.

Like Seeker said, the common law system is the product of the cream rising to the top over several hundred years. Inefficient rules, or those made on the whim of a judge, are weeded out and the system does a pretty good job of developing and sustaining itself. But, again, I understand that all of that sounds pretty hollow when the sting of that $500 vanishing into thin air is still fresh.

[Felch]

Originally posted by Seeker
If you think you've hit on some miraculously simple and rational system you're one heck of a guy, i.e. better than a thousand years of the greatest statesmen, jurists, and legislators that our civilization has produced.

Ain't sayin it's impossible...but....

I don't think I've got all the answers, but I do see something absolutely terrible about a legal system that sends plenty of poor people to death row, only to be exonerated by DNA evidence, while OJ Simpson got away with a double murder.

I don't think every point I made is necessarily valid, but I do think that an 800+ year old legal system needs to be changed for a more modern era. Nothing wrong with wanting to change things, is there?

[Solomwi]

Originally posted by Felch

I don't think every point I made is necessarily valid, but I do think that an 800+ year old legal system needs to be changed for a more modern era. Nothing wrong with wanting to change things, is there?

That happens constantly, and has been for the last 800 years or so.

[Felch]

Originally posted by Solomwi
There are plenty of reasons the formalities of court are a good idea, but none of them ring true when you're just been hit for a $500 fine. Just remember what the qualifications for referee would be: well-versed in rules of procedure and evidence, and available to start immediately.

I admit I'd probably not care if I hadn't been hammered by the fine. It's natural for people to behave selfishly. But I don't like the idea of the formality, or the absolute power that judges hold over their court rooms. It's contrary to the way that the rest of society works, and I haven't been convinced that there is a benefit.

Let me get this straight. Courts are forced to be merciful because the legislature does such a bad job outlining sentences, yet sentencing rules should be in the legislature's control (what I took your OP to mean; surely you weren't suggesting that increases in particular cases should be determined by the legislature) and the court is merciful just so the judge can get his jollies watching you humiliate yourself? Surely you see the contradictions here.

Well, that is a contradiction yes, and you are right that I don't want the legislature involved in individual cases. I think of this more as a long term issue, one where the current system needs reform, and people need to get thinking. If you're content with how things are run, I respect that. I am not content.

Your complaint about speed limits goes to law enforcement, not the legal system. Donegeal might give you a better answer, but I don't see why a different system for prosecuting speeders would necessarily lead to more uniform enforcement of speed limits.

Speed limits are about as simple a code as you can get. "Don't go over X speed, or you are subject to Y fine." Yet, in keeping with Che's comment, reality intrudes and keeps the practice from being as simple as "Take Y dollars from everyone who exceeds X speed." Whether the cops can stop and harass you, by the way, remains in your hands. Just don't speed.

Speed limits are an example of the problem. They're set unrealistically low, to the point where only flagrant violation is punished. Laws should be appropriate for all situations, not some ad hoc system. In other words, when you commit a crime, there shouldn't be any wiggle room.

I would, if I had my way, raise speed limits, and then strictly enforce those new limits. The law must be realistic, and it must be fair, and it must be the same for everybody. That's the essence of my idea here.

Careful. It was tort reform that allowed California burglars who injured themselves breaking into a house to sue the homeowner and, for that matter, that allowed Stella Liebeck to recover from McDonald's at all. As for that case, it's not an obvious abuse. It's just easily boiled into an outrageous soundbite once you leave some pertinent details (like the fact that she suffered third-degree burns and tried to settle for $20,000). There are plenty of abuses in the system, but the question is whether the system minimizes abuses compared to the next best possible system, not whether it is completely free from them.

I agree that bad reform is worse than no reform. That doesn't mean we should be content with the way things are. It means that we need to put more effort and energy in making a better system - one that actually works.

Like Seeker said, the common law system is the product of the cream rising to the top over several hundred years. Inefficient rules, or those made on the whim of a judge, are weeded out and the system does a pretty good job of developing and sustaining itself. But, again, I understand that all of that sounds pretty hollow when the sting of that $500 vanishing into thin air is still fresh.

Pretty good is fine. But I still hope for better. My ideas may be bad, and they're almost certainly insane, but the mainstream of today would have been crazy back in Henry II's time.

[Felch]

Originally posted by Solomwi
That happens constantly, and has been for the last 800 years or so.

I know. Unfortunately it happens at a glacial pace, and I'm not a patient man.

[Lorizael]

You clearly don't have much experience playing action card based games, Felch.

[Solomwi]

The system we have actually works, precisely because when something truly is out of whack, the system is able to adapt to correct it. It's not instant, but it happens all the time. I'm content with the system not because things are run as well as possible today, but because we have a system that can adapt to today's problems. People (a lot of them lawyers) are constantly thinking about what reform needs to be brought to the system.

Speed limits are unrealistic on what basis? If you mean they're unrealistic in that the police don't have enough manpower to ticket everyone who speeds, I'd have to agree, but setting speed limits based on police manpower doesn't strike me as a particularly good idea, for what should be obvious reasons. If they need to be applicable to every situation, does that mean we set the speed limit at whatever speed we'd allow a man to rush his dying wife to the hospital? If it has to be the same for everybody, do we have to ticket police when they speed to a crime scene or chase a speeding criminal? Higher speed limits won't make things more fair or equal, just faster. Everybody, obvious exceptions aside, runs the same risk of getting a ticket when they speed, and is subject to the same penalty within a given jurisdiction. Where this isn't the case, e.g., racial discrimination by police, we already have mechanisms in the system to deal with it. In other words, the essence of your idea is already built into the system. To the extent that we fail to uphold it now, why wouldn't we fail to uphold it under another system?

[Blaupanzer]

Or we could go back to trial by combat. You fight the court-appointed agent hand-to-hand. If you live, you are innocent. If you lose, you die. Simple, straight-forward, and a bit more expensive than $500 for one of the protagonists. In Texas, this process was called a gunfight, with a Ranger on one end, and the accused on the other. I like our court system better than that. Also most states do permit you to ask for a jury trial, if you think it will help. Of course, you pay "court costs" if you lose, these costs being an unusually large and unappealable dollar amount.

[Felch]

Originally posted by Solomwi
Speed limits are unrealistic on what basis?

On the basis that they are widely ignored. If they were realistic, most people would obey them.

If they need to be applicable to every situation, does that mean we set the speed limit at whatever speed we'd allow a man to rush his dying wife to the hospital?

That's a decent point as far as my "punish all violators" bit goes. I'd say that the law should be written to allow certain moving violations during emergencies. There's no reason lawmakers can't formulate laws that work.

If it has to be the same for everybody, do we have to ticket police when they speed to a crime scene or chase a speeding criminal?

Obviously this is just a straw man. My argument isn't to prevent emergency responders from doing their jobs. It's to bring the laws into accord with the way life actually works.

Higher speed limits won't make things more fair or equal, just faster. Everybody, obvious exceptions aside, runs the same risk of getting a ticket when they speed, and is subject to the same penalty within a given jurisdiction.

I don't know about how things are where you are, but around here, if the sign says 55 mph, the vast majority of people are going at least 60 mph. They do that because the posted speed limit is a polite fiction, one that is almost never enforced.

To the extent that we fail to uphold it now, why wouldn't we fail to uphold it under another system?

This is legitimate. If that 55 mph sign I mentioned were changed to 65, people would probably wind up going 70.

I think the problem is in our idea of what government exists to do, and how it should act. I think government should base its laws on the opinions and actions of the people. If the people flagrantly violate a law, abolish the law. You seem to view government as a top down mechanism for controlling large groups of people. I admit that my anarchist tendencies may not be ideal in the modern world, but I think they're a necessary counter-balance to the nanny state.

[Felch]

Originally posted by Blaupanzer
Or we could go back to trial by combat. You fight the court-appointed agent hand-to-hand. If you live, you are innocent. If you lose, you die. Simple, straight-forward, and a bit more expensive than $500 for one of the protagonists. In Texas, this process was called a gunfight, with a Ranger on one end, and the accused on the other.

I seek to abandon medieval barbarism, not renew it. But thanks for contributing.

I like our court system better than that. Also most states do permit you to ask for a jury trial, if you think it will help. Of course, you pay "court costs" if you lose, these costs being an unusually large and unappealable dollar amount.

This is true. But just because it is true doesn't make it sufficient. Judges still decide many cases, and their decisions are often inconsistent. It's human nature, and it's an inequality that we should try to avoid in our legal system.

[Felch]

You guys seem to enjoy nitpicking details about this and that. That's fine, ideas are improved through criticism. But to those who think the current system is fine, I have this question.

Why should the poor being treated worse than the rich by our legal system? The rich can afford well connected lawyers, while the poor are stuck with a PD who may or may not know how to pronounce their client's name, or recognize him on the street.

If you think that we don't treat people differently, please pm me the contact info for your drug dealer.

[Blaupanzer]

You actually wish to correct the basic maxim that the rich are treated differently, no matter the form of government? If you had a ghost of a chance at actually bringing that about, you'd be dead by sunset. The laws are applied in a somewhat haphazard way, but every effort to improve that entails making the relevant law somewhat more complex. Eventually, this accretion of little fixes adds up to a system that requires full-time professionals to interpret. The fact that these same folks (lawyers) make the law as well as interpret it brings us to where we are today.

I raised "trial by combat" only as a way to demonstrate a simple legal system. No, I do not think the current legal system is always either just nor fair, but I am at a loss as to another basic system that is not based on superstition (Sharia law) or on irrelevent factors (trial by combat or trial by fire or dunking, et al).

[Felch]

Originally posted by Blaupanzer
You actually wish to correct the basic maxim that the rich are treated differently, no matter the form of government? If you had a ghost of a chance at actually bringing that about, you'd be dead by sunset. The laws are applied in a somewhat haphazard way, but every effort to improve that entails making the relevant law somewhat more complex. Eventually, this accretion of little fixes adds up to a system that requires full-time professionals to interpret. The fact that these same folks (lawyers) make the law as well as interpret it brings us to where we are today.

I raised "trial by combat" only as a way to demonstrate a simple legal system. No, I do not think the current legal system is always either just nor fair, but I am at a loss as to another basic system that is not based on superstition (Sharia law) or on irrelevent factors (trial by combat or trial by fire or dunking, et al).

Okay, but we're smart people here, and most are sufficiently narcissistic to believe that we know better than everybody else.

So I guess I'm challenging y'all to come up with something better than innocent men on Death Row, while people like OJ walk away from double murders.

[Solomwi]

Originally posted by Felch


On the basis that they are widely ignored. If they were realistic, most people would obey them.

They're exceeded, not ignored. They regulate behavior, even if exceeded, as you point out below. That's both the effect and a major purpose of speed limits. Of course, I've seen unrealistic speed limits where the overriding purpose is to generate revenue, but those typically get strictly enforced, and that's a different thing altogether.

That's a decent point as far as my "punish all violators" bit goes. I'd say that the law should be written to allow certain moving violations during emergencies. There's no reason lawmakers can't formulate laws that work.

Obviously this is just a straw man. My argument isn't to prevent emergency responders from doing their jobs. It's to bring the laws into accord with the way life actually works.

No, it's not a straw man. It's an example, along with the man going to the hospital, of what inevitably happens when you try to establish cut and dried, "simple" laws. Extraordinary circumstances crop up. You make a justified exception for those circumstances. You eventually wind up right back in the nest of complex law that you were originally trying to escape.

I don't know about how things are where you are, but around here, if the sign says 55 mph, the vast majority of people are going at least 60 mph. They do that because the posted speed limit is a polite fiction, one that is almost never enforced.

They're the same way here, but while most people may be going 60, very few are going 85. See the first point about regulating behavior.

This is legitimate. If that 55 mph sign I mentioned were changed to 65, people would probably wind up going 70.

Exactly, which is why speed limits are not unrealistic. The problem, such as there is one, isn't that the limit is too low. It's that the expected cost of speeding within a certain range of the limit is too low. That cost is more or less the same for everybody in a particular situation, though, so it's a fair law.

I think the problem is in our idea of what government exists to do, and how it should act. I think government should base its laws on the opinions and actions of the people. If the people flagrantly violate a law, abolish the law. You seem to view government as a top down mechanism for controlling large groups of people. I admit that my anarchist tendencies may not be ideal in the modern world, but I think they're a necessary counter-balance to the nanny state.

You couldn't be farther from the truth on my view of government's role. There's some merit to what you say about the basis of laws, at least as regards the actions of the people. Inefficient laws that contravene the market are bad laws and will be broken (see illegal immigration and drugs). Laws based on the opinions of the people are all over the map. Some are good, while others (see again, illegal immigration and drugs) are inefficient and counterproductive, and some (see segregation, slavery) are downright evil. I'd prefer a sturdier basis, like the protection of my rights to life, liberty and property, for my laws than popular opinion. The regulation of public roads and general police power of the states, though, are established facts of life that aren't going away, regardless of my philosophy. And to be completely consistent, if I expect not to be burdened by the state on a public road, I should not expect the state to provide that road and grant me the privilege of driving on it in the first place.

On your next post, why would someone with a bottom-up view of the role of government object to the rich being free to buy, with their own resources, the highest quality counsel they can? Sure, we treat people differently. We tell the poor we'll give them an attorney at no cost to them. We tell the rich they're on their own. We tell those in between that we'll provide an attorney, but charge them if we find out they had the means to pay for one themselves. Would you rather the poor be denied counsel altogether?