Grimmelmann and Kozinski on “Law”

I recently came across two old and unrelated writings about law, both of which are worth reading, especially for people with strong opinions but no formal training.

The first is this piece, entitled Seven Ways in Which Code Equals Law (And One in Which It Does Not), by recently-appointed New York Law School professor James Grimmelmann and EFF Legal Director Cindy Cohn. Several observations are particularly appropriate for the slashdot crowd (and, to a lesser extent, certain members of the Debian community and others who grew up on a diet of BASIC, Pascal, and then C and later perl). I especially like this bit about “hacking the law”:

Some people, seeing this connection, and remembering the values of good code, try to improve the legal system by treating it as a computer. People come to me with ideas for hacking the law. “The government says that cryptography is a weapon,” they say, “but the Bill of Rights says we have the right to bear arms. So that means we have a Constitutional right to use cryptography.”

But the legal system isn’t a computer. If you can’t convince a judge that what you’re proposing is consistent with the values underlying a law, your argument will go nowhere. People go to jail every year because they think they’ve found a way to hack the Sixteenth Amendment. “The income tax is illegal,” they say, or, “The income tax is voluntary, see, it says so right here,” and then they get convicted of tax evasion and sent to jail. We did convince several judges about the Constitutional dimension of cryptography, but the claim started from the values of the First Amendment, not a mechanical reading of its words.

It’s a category mistake to treat the legal system as just another architecture with its own specialized language. Code and law are different ways of regulating; they have different textures. All of those people who are required to make the legal system work leave their mark on its outcomes: they make a certain amount of drift and discretion almost inevitable. Code doesn’t have such a limit: it can make perfectly hard-nosed bright-line rules and hold everyone in the world to them. Code is capable of a kind of regulatory clarity and intensity that law can only state, never really achieve.

I don’t entirely agree with the other article, entitled What I Ate For Breakfast and Other Mysteries of Judicial Decision Making by outspoken Ninth Circuit Judge Alex Kozinski (unofficial site maintained by Aaron Swartz, wikipedia entry). For example, I think critical legal studies has resulted in some interesting insights, some of which actually have practical applciation. Still, Judge Kozinski makes an important point about the numerous factors that act as a check on discretion in judicial decisionmaking:

It is popular in some circles to suppose that judicial decision making can be explained largely by frivolous factors, perhaps for example the relationship between what judges eat and what they decide. Answering questions about such relationships is quite simple – it is like being asked to write a scholarly essay on the snakes of Ireland: There are none.

But as far back as I can remember in law school, the notion was advanced with some vigor that judicial decision making is a farce. Under this theory, what judges do is glance at a case and decide who should win – and they do this on the basis of their digestion (or how they slept the night before or some other variety of personal factors). If the judge has a good breakfast and a good night’s sleep, he might feel lenient and jolly, and sympathize with the downtrodden. If he had indigestion or a bad night’s sleep, he might be a grouch and take it out on the litigants. Of course, even judges can’t make both sides lose; I know, I’ve tried. So a grouchy mood, the theory went, is likely to cause the judge to take it out on the litigant he least identifies with, usually the guy who got run over by the railroad or is being foreclosed on by the bank. This theory immodestly called itself Legal Realism.

Just to prove that even the silliest idea can be pursued to its illogical conclusion, Legal Realism spawned Critical Legal Studies. As I understand this so-called theory, the notion is that because legal rules don’t mean much anyway, and judges can reach any result they wish by invoking the right incantation, they should engraft their own political philosophy onto the decision-making process and use their power to change the way our society works. So, if you accept that what a judge has for breakfast affects his decisions that day, judges should be encouraged to have a consistent diet so their decisions will consistently favor one set of litigants over the other.

I am here to tell you that this is all horse manure. And, like all horse manure, it contains little seeds of truth from which tiny birds can take intellectual nourishment. The little truths are these: Under our law judges do in fact have considerable discretion in certain of their decisions: making findings of fact, interpreting language in the Constitution, statutes and regulations; determining whether officials of the executive branch have abused their discretion; and, fashioning remedies for violations of the law, including fairly sweeping powers to grant injunctive relief. The larger reality, however, is that judges exercise their powers subject to very significant constraints. They simply can’t do anything they well please.

Finally, I will link, but not embed, this video of the Anna Nicole Smith court order, for an entirely different perspective on the legal process. You almost don’t really want to have to see this stuff.