I have mused in recent years about why the quality of lawyering today seems less than it should be. Substandard lawyering is so common these days that it is fair to ask the question “why”. Mulling it over and over,a theory developed in my head that the exponential growth of statutes and rules over the years is a big part of the problem.
For example, in the Central District of California, we have extensive local rules. Local Rule 3015-1, the how-to of everything-chapter-13 approaches 8,000 words; nearly twice as long as our Constitution (without amendments). A local good Samaritan created a spreadsheet with short explanations of how each of our five trustees handles 30 to 40 different areas of chapter 13 practice. A chapter 13 MCLE program a couple years ago focusing on the chapter 13 form-plan spent a good 20 minutes discussing whether and when to check box A or box B in one section of the 16-page (mandatory) plan — the answer sometimes depending on which trustee or judge the case is assigned to. The practice has become impossibly complicated resulting in unnecessary litigation, in my humble opinion.
So, the title of Justice Gorsuch’s book1 alone sent me to my Kindle and I started reading. While filled with history, philosophy and statistics, the 215-page book is surprisingly easy to read. Each of the seven chapters has a theme interwoven with a few vignettes about ordinary people caught in the vise of some bureaucratic quagmire leading to a preposterous result. And Justice Gorsuch is fair in his analysis, often noting that the single story is not necessarily rampant in the government; and the bureaucracy enforcing the rule, often a single individual, is usually doing his or her job in good faith. But the ridiculousness of the situations for the ordinary Americans in these stories is painful.
How did we get to this point Justice Gorsuch asks? What,he explains, jumped out at me is that not only are there too many laws and administrative rules, but there are too many laws and rules created by agencies — by individuals not chosen by we the people, and often in the far-away land we call Washington. And the interpretation of the laws comes from in-house agency judges many times without meaningful oversight by independent judges. Even finding the rules is often a task.
Further there are too many crimes. Why is moving the nest of “certain” wild birds a crime? A fine will not deter the conduct? Think of the harm caused to an ordinary American charged with a crime, often not even knowing it was a crime. And is there any realistic chance of the average individual defending himself? Most cases settle given that the would-be crime-doer cannot afford a trial especially when the prosecutor is threatening to increase the charges unless you settle. Of course, a person of means can afford to defend and take on the “system” but is that the way it should be?
I especially enjoyed Justice Gorsuch’s fresh look at lawyers and lawyering in our society. Why do we require lawyers to have approximately seven years of post-high school education: four years in college (probably learning stuff peripheral to lawyering at best) and three or four more years in law school? Why do we require law students to learn the intricacies of criminal procedure and constitutional law when all they want to do is Wills and Trusts? A person of simple means wishing to form a corporation, a one-page form in California, is pushed by our legal system to hire a lawyer who is probably paying off significant student loans. Why shouldn’t we consider dual classes of lawyers as there are in England?
I accept that much of the book may be viewed as problems we all know about and wish we could fix. But Justice Gorsuch discusses a few paths by which we might improve the position we are in. For one, he proposes that we make a better effort to teach Civics to our young people making it more likely that they will “vote, work on community issues; become socially responsible; and feel confident speaking publicly and interacting with elected officials.” For another, he suggests volunteering and supporting groups like the National Constitution Center, iCivics education pioneered by Justice Sandra Day O’Connor, and the Colonial Williamsburg Foundation, “the world’s largest American history museum.”
I believe the complexity of bankruptcy and chapter 13 hurts us all. Somehow the process has become overly litigious. Many pundits have pointed out that it is almost impossible for a pro per debtor to get a chapter 13 plan confirmed. Not surprising when the lay person must fill out 60 plus pages of forms and schedules just to get the case filed. Then the plan is due 14 days later and make sure you check the right box!
Perhaps we can muse together about how to begin to change the course of this massive ship called “adjustment of debts of an individual with regular income.” And perhaps we can think about a world where the average citizen has some real input into the rules governing his daily life and can actually defend himself when accused of wrongdoing. I cannot overstate how much I enjoyed Justice Gorsuch’s book and highly recommend it. Let us know what you think. Feel free to leave your comments in the Comments Section below.
