THE LAW IN SHAMBLES

Vol. 16 No. 6 (June, 2006) pp.470-474

THE LAW IN SHAMBLES, by Thomas Geoghegan. Chicago: Prickly Paradigm Press, 2005. 142pp. Paper $10.00. ISBN: 0-9728196-9-X.

Reviewed by David K. Ryden, Political Science Department, Hope College. Email: ryden [at] hope.edu.

THE LAW IN SHAMBLES is labor lawyer Tom Geoghegan’s contribution to a series of pamphlets published by Prickly Paradigm Press, which is marketed and distributed by the University of Chicago Press. Prickly Press declares itself committed to the publication of “sometimes outrageous” pamphlets in which authors are “unbound” and given “free rein . . . [to write] unconstrained and creative texts.” Tom Geoghegan has certainly met that standard with THE LAW IN SHAMBLES, which is a decidedly mixed blessing. Righteously indignant throughout, Geoghegan has produced a lively and thought provoking polemic on the state of modern law and politics in America. Unfortunately, the text also is largely “unconstrained” by evidence to validate claims put forth or the serious application of nuanced reasoning that might explore arguments to their full conclusion. We are left with a wildly uneven book that, while it is often edifying, is ultimately disappointing.

Geoghegan paints a dire picture of the state of the law, and of the political and legal systems from which it emanates. The overarching premise is that the law has fundamentally changed over the past three decades or so, but without the consent of people who live their everyday lives under that law (p.5). Geoghegan portrays a rule of law divorced from true democracy, as people’s exit from civic life has had a deeply negative, corroding effect on the law. As a result, “[t]he law is less stable, less predictable. And as it becomes less stable and less predictable, people tune out” even more (pp.8-9).

How did this become so? Geoghegan identifies three primary developments, what he terms “Big Facts.” The first of those, coming unsurprisingly from a labor lawyer, is the collapse of the labor movement, and with it an attendant loss of contractually assured job security and other positive social and economic rights (access to a pension, health insurance, and more). The second Big Fact is the drop in voting and the broader withdrawal from civic life (p.12). Big Fact Number Three is the burgeoning prison incarceration rate that has overwhelmed our criminal justice system. The sum of these big facts is what Geoghegan terms “The Unfairness of It All” – the sense that “[m]ost of us get less and less, even as the country as a whole gets more and more” (p.14). Dramatically expanding inequality leads many (most?) citizens to see a deep disconnect between efforts and rewards. They respond by checking out of a legal and political system that strikes them as arbitrary and capricious – in short, illegitimate. But this only leaves us with a rule of law even more detached from the people, thus more arbitrary, capricious, and irrational.

In the chapters that follow, Geoghegan offers a wide ranging if not always neatly connected argument for why “the law in shambles” is not mere perception, [*471] but is fact. The pages are peppered both with fresh and intriguing insights that I had not considered AND assertions that do not hold up under closer scrutiny (or at least need a much fuller explication than they are given here). In the first category, I would include the author’s bemoaning of the shift from a contract-based work environment to one policed exclusively by tort law. In contrast to the golden age of the labor movement and the wide spread security provided through collective bargaining agreements, Geoghegan describes a modern era in which work rights are enforced only through expensive, contentious, and rage-driven civil rights litigation. The result is an unsettled and randomly enforced body of employment law in place of the cooler, more rational contract-based legal system. Geoghegan is similarly enlightening in describing how the erosion of trust law has undermined people’s sense that the law provided them with some kind of economic safety net in their lives. He sifts his file caseload for modern-day horror stories to illustrate the withering of notions of fiduciary obligation in the provision and operation of pensions, health insurance, and other benefits necessary for a basic sense of security and wellbeing. It is easy to see how the increasingly elusive nature of such benefits for working class laborers has undermined their sense of trust or reliance on the legal and political system.

With varying degrees of success, Geoghegan vents on a number of other topics as evincing a rule of law in shambles. One is what he calls the deregulation of public space – that is, the end of far reaching equitable/injunctive relief by judges to achieve broad scale social changes in hospitals, prisons, parks, schools, and other institutions. Another is the purported disappearance of administrative law – Geoghegan claims that we are in something of a post-regulatory age, where administrative law has been neutered through a combination of deregulation and federal budgetary deficits that gut government’s capacity to do the necessary regulatory oversight. While it is difficult to disagree with his characterization of the government failing in its duty to conduct effective regulatory supervision, I would suggest that it was always a false hope that the state could ever oversee effectively the vast body of regulatory law that exists for virtually every field and agency. The author himself admits that it would take “a mandarin to learn” modern regulatory law; yet he wonders without irony why that law goes unenforced.

Geoghegan renders a searing indictment of the jury system. Wondering whether citizens are equipped to serve as effective jurors, he answers his own question in the negative, concluding that people are simply too stupid and poorly read to do the job. He is no less kind to the judiciary, who are every bit as arbitrary and unpredictable as juries in meting out justice. He initially suggests that the primary culprit is the absence of a unified legal culture; without a true majority party to control the mechanisms for putting judges and justices on the bench, we have a schizophrenic judiciary. The chapter fails to develop this theme, instead quickly morphing into a screed against all judges [*472] conservative. It is mostly a visceral attack on the Federalist Society or any judge failing to model herself after William Douglass or Thurgood Marshall. Geoghegan’s next target is the Constitution itself; he suggests that it is rendered illegitimate by how impossibly difficult it is to update or amend it. He invokes John Rawls, arguing that it is up to the courts to redistribute according to Rawls’ vision of Justice as Fairness (p.103). I find that basic Rawlsian notion problematic enough as philosophical principle; as a standard for constitutional jurisprudence, I would suggest its ambiguity renders it hopelessly inappropos.

Geoghegan ends the book with an explicit attack on the political system itself, in which he hits his polemic stride. He ultimately blames the law in shambles on what he terms the rule of the Fourth Republic. Since the ‘70s, our political system has been one of divided government, producing a breakdown in rule by consensus and the disappearance of “majority rule.” The result is dysfunction in each arm of popular government. The Senate is the burial ground for all progressive and right minded legislation, thanks to the filibuster and the very idea of equal representation in each state. In the House, it is the competition-killing practice of gerrymandering. In the Oval office, presidencies in an era of divided government are sure to be brought down, or at least neutralized, by an opposition party more interested in scandal and investigation than working with the President to get things accomplished. The result is a government of inaction that nevertheless is wholly immune from accountability.

After such a stinging critique, the suggested solutions are anti-climactic; Geoghegan urges resort to the process of litigation to achieve a return to real democracy; that is, sue for (1) an end to partisan gerrymandering, (2) the end of the filibuster, (3) electoral college reform, (4) eliminating all voter registration requirements, (5) a requirement that all states vote by mail, and (6) requiring the extensive teaching of civics in all high schools. This closing section feels perfunctory, lacking the passion of convictions that drives the earlier chapters. By the end, Geoghegan seems to have run out of energy to pursue solutions that have a constitutional foundation, or, for that matter, a modestly realistic chance of succeeding.

There are some exasperating aspects to the book. One is simply the tone. The Prickly Press model in this instance has produced a book stylistically more akin to a blog than a conventional publication. It is breezy, irreverent, and sardonic, and Geoghegan is an effective provocateur. Many are likely to find the writing style humorous and entertaining; it became increasingly grating to me as the book progressed. It is generously sprinkled with gratuitous shots at conservatives and others insufficiently endowed with a “progressive” sense of enlightenment. I found the frequent references to “assholes in Red states,” “nutty Federalist Society members,” and the like, off-putting. Unfortunately, such “unrestrained” writing may make it too easy for some otherwise fair-minded [*473] readers to dismiss ideas that are deserving of serious consideration.

More troubling is the complete absence of facts or evidence underlying the author’s various assertions. The essay clearly is intended as a Thomas-Paine like pamphlet, a provocative polemic unburdened by the usual morass of deadening footnotes and citations. But even as I tried to put aside my social scientist’s hat, I was unable to completely jettison my expectation that the central claims have some degree of support and be treated with some modest small dose of nuance and seriousness. The author’s tendency to toss about claims without attribution or support occasionally produces embarrassing factual errors. In support of Big Fact Number Two – declining voter turnout – Goeghehan put the turnout in the 2004 presidential election at 57%. According to the U.S. Census Bureau, 64% of all American citizens over the age of 18 cast a ballot in that election, a not insignificant difference of 7 percentage points (enough to plausibly argue that maybe folks aren’t tuning out all that much).

On a more significant point, Geoghegan’s argument hinges on a purportedly widespread “feeling” of economic insecurity and arbitrariness, leading people to question the very legitimacy of the law. Is this so? Intuitively it sounds right. But is there survey or poll data that might indicate how pervasive or deep is this subjective sense of peril among working and middle class folks? Or are Geoghegan’s conclusion drawn from the attitudes of his union members or client list of plaintiffs? If so, they are hardly representative. And even if people perceive a disconnect between their work and what that work brings them, does that really lead them to view the law as illegitimate? Perhaps this is true with respect to Congress, but as to the courts, judges, the Supreme Court? The lack of widespread outrage at BUSH v. GORE would suggest just the opposite. In the end, many of the author’s arguments end up tenuously resting on his moral indignation and his talent for a well-turned phrase, rather than reason and evidence.

Geoghegan’s book has a scattershot quality to it, lacking continuity or coherence across the chapters. At times, it feels as if the author is simply strewing the intellectual field with as many seeds of thought in hopes that some might actually put down roots. While prickly and provocative, the arguments cannot be pulled together into anything close to a cohesive or integrated condemnation of the law. At times, Geoghegan’s stances came perilously close to outright contradiction. So on one hand, he decries the modern turn to tort litigation. “[W]hen the rule of law really is in shambles, [tort is] what people get. When we have no contract, we get tort. And when we have no trust law, we get tort. And when we deregulate, we get tort” (p.50). Yet the remainder of the book reveals him to have wholly accommodated himself to tort law as he embraces litigation at every turn. Without irony, he rages at the Supreme Court of the State of Illinois for unanimously shutting down his litigation against hand gun makers. Many, if not most, of the outrages he documents seem [*474] to have grown out of a lawsuit straight out of his current or past caseload. His solutions for what ails our legal and political system invariably involve litigation as the path to redemption – sue to update the Constitution, sue to get more democracy, sue to get civics education in high schools, and so on. These are odd prescriptions given his earlier denunciation of the litigative process.

Another example – Geoghegan denounces the decline in voting and the withdrawal of Americans from civic life more broadly, and contends that we must find ways to bring citizens back into the political process. This comes on the heels of an earlier chapter in which Geoghegan has utterly eviscerated the jury system, primarily because he views people simply as too stupid to decide cases reasonably and rationally. Given his scathing assessment of the average person in the context of the jury room, it is difficult to see why we would want them much more involved in making political and electoral decisions.

There is much else with which to disagree, vigorously, in Geoghegan’s tract. His unshakeable faith in government as nanny state – able to assure that all our lives will be insulated from any danger, risk, or challenge to individual comfort – is heartwarming but naïve. His idealization of all things European is awkward, in light of recent embarrassments and difficulties across the ocean. He openly prefers Europe’s social democracy, its constitutions, its laws; he goes so far to say that if we simply had the laws and constitution of Europe, we would be exactly like Europe – that is to say, “act[ing] better and more morally” (p.142). Even his claim that we do not have enough democracy in this country is arguable. Some would blame our problems on just the opposite, that we have too much democracy, that it is the hyper-responsiveness of elected officials to their various constituencies that makes it impossible to get things done. I find Geoghegan’s distaste for anything popularly grounded to be troublesome. His loathing of juries, his preference for problem-solving through courts and judges rather than popularly elected institutions, his admiration for bureaucrats and bureaucracies, all undermine his populist rhetoric. It is no small irony that his path to revivifying the legitimacy of the law takes him through courthouses and agency conference rooms but avoids completely Congress and state legislatures. For law to be legitimate, it must at the least be firmly anchored in popular consent, which is hardly best achieved through judicial or bureaucratic fiat.

But in the end, I suspect that Geoghegan would receive my objections gladly as evidence of a successful enterprise. Ultimately, he is interested in this essay more in provoking thought and discussion than in necessarily persuading.

CASE REFERENCE:

BUSH v. GORE, 531 US 98 (2000).

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