Legal Rights without Economic Access are Worthless

"You can have all the rights in the world, but if you can't enforce them, they're not worth very much." -- Justice Ruth Bader Ginsburg 

Too many people confuse written laws with actual implementation.  If a law is passed saying that men and women must be paid equally, it does not mean men and women will be paid equally.  The person who believes he or she is being paid unequally has to find a lawyer; convince the lawyer to take his or her case; pay the fees to the lawyer and the courthouse; and then wait months or years to get a result, which will--in a best case scenario--most likely be some money minus fees and expenses.  If you're interested in meaningful, lasting change, you should see obvious problems with such a system.

First, if law school tuition is 35,000 USD to 55,000 USD a year, and law graduates have 100,000 USD in student loans, how likely is it that the lawyer can or will help front the costs to the person who believes s/he is suffering illegal discrimination?  Litigation costs even before trial can easily run around 8,000 USD, depending on the number of depositions and motions filed.  In almost all civil cases, the losing party pays the costs of the prevailing party, which may sometimes require payment of the other side's attorneys' fees.  What about nonprofit legal aid centers?  They usually rely on volunteer lawyers, and you're dependent on whether they choose to take your case--which depends a lot on their funding, staffing levels, and random assignment to a particular employee or volunteer of varying skill level. Lesson: at the end of the day, the law needs money to work and even with money, may do little to actually fix underlying problems.

Second, how does the lawyer know whether the plaintiff's belief is objective or subjective? In most cases, the potential plaintiff will not arrive with printouts of everyone else's salaries or benefits, and the lawyer must initially evaluate the plaintiff at his or her word.  Even if the plaintiff is correct, where will the costs and fees come from to file a complaint and get the necessary documents and evidence if the plaintiff has been terminated or does not have enough savings? If the lawyer fronts the costs out of his or her own pocket and realizes the plaintiff is wrong, should the lawyer be able to sue the client for the costs, knowing that doing so will increase the chances of receiving a malpractice or state bar complaint? Lesson: at the end of the day, the law needs money to work and even with money, may do little to actually increase substantive rights.

Third, how does the new lawyer know which judge will be assigned to the case, and whether the judge is inclined to be more open minded or close minded?  Cases are randomly assigned to judges when filed.  The judge may not know the new lawyer, and the new lawyer may be against a lawyer well-known to the court.  Even if the plaintiff is correct, what if the judge doesn't believe the type of evidence presented is sufficient to warrant a jury trial? Lesson: the law is often dependent on randomness.

More examples to ponder:

1.  Many states have the death penalty on the books.  In 2016, however, only 5 states actually executed criminals.  Within those 5 states, 20 people were put to death.  The death penalty in America is now basically a taxpayer-funded lawyer, investigator, and prison guard employment act than a deterrent. The cost to house a death row inmate in California is $90,000 more per year than for other inmates, with much of the cost arising from state legal requirements relating to government-funded lawyers. Lesson: the lawyers always get paid, regardless of results. [Update on June 20, 2017: California has not actually executed anyone since 2006.]

2.  After Brown vs. Board of Education (1954) outlawed segregation, many cities and states passed laws trying to evade the impact of the case. To challenge such laws required more lawyers and more lawsuits.  Now, it appears we're back to square one: a 2016 report released by the non-partisan Government Accountability Office "shows that the number of schools segregated along racial and financial lines more than doubled over a 13-year period ending in the 2013-14 school year." Lesson: the teachers, administrators, and lawyers always get paid, regardless of results.

3.  Abortion is legal in America.  In 2011, 94% of abortion procedures, including both surgical and medication, took place in clinics. As of 2015, there were 517 surgical abortion clinics and 213 medication abortion clinics in the entire country, and some states had no clinics.  The cost of an abortion is about 500 to 600 USD.  You are a teenager who has an unplanned pregnancy and want an abortion.  You do not have 500 to 600 USD.  You can apply for indigent healthcare programs, but your ability to get coverage depends on the random assignment of at least one person to assist you.  Lesson: the law, even when it's funded in your favor, makes you dependent on random government or nonprofit employees.

The overall lesson is not to scrap our legal system, but to realize if given a choice, voters should think of taxes as a way to create a certain society.  For example, would you rather your taxes create a society with predictability and higher welfare payments in the event of a job loss, or one where terminated employees experience more randomness with a larger potential payoff? 

Justice Ginsburg

California Lawyer (November 2011) has an excellent interview with Justice Ruth Ginsburg.  Below is my favorite part: 

Q. I'd like you to talk a little bit about the cases that I've spent my life studying, the key gender cases that began in the 1970s, which you litigated and wrote amici briefs for. The 14th Amendment, which guarantees equal protection under the law, had been settled interpretation for, I think, 104 years. What made you think that you could get the courts to overrule more than a century of precedent?

A: The times. The Court is a reactive institution. It's never in the forefront of social change. When you think of Brown v. Board of Education, it was not only that Thurgood Marshall was a brilliant lawyer. It was the tenor of the times. We had just fought a war against an odious form of racism, and yet our troops through most of World War II were separated by race. Apartheid in America really had to go. Similarly, by 1970 the women's movement was revived, not just in the United States but all over the world. As a great legal scholar once said, the Court should never react to the weather of the day, but inevitably it will react to the climate of the era, and the climate was right for that change.

Perhaps, at least in a peaceful society, all good things come to those who wait?  I've sometimes wondered whether the Supreme Court's decision upholding Muhammad Ali's conscientious objector status would be the same if the case had arrived at the Court a few years earlier. In one article I read--it was from Men's Journal (Nov 2011)--the author wrote that the Supreme Court was set against Ali until a law clerk gave them a copy of Haley's Autobiography of Malcolm X. After reading the book, the Court allegedly had a change of heart. True or not, the anecdote demonstrates that the law, so long as it relies on interpretation by men and women, necessarily intersects with their bias.

In any case, regarding the efficacy of the Constitution against government tyranny--whether slavery, Jim Crow, Japanese internment camps, Abu Ghraib, etc.--I'll leave you with this Lysander Spooner quote: "But whether the Constitution really be one thing, or another, this much is certain--that it has either authorized such a government as we have had, or has been powerless to prevent it." [Updated on 3/25/12]

Bonus: see also "When Mass Murder and Theft of All Human Rights Were 'Legal': The Nazi Judiciary and Judges," by Hon. Richard D. Fybel, California Litigation, Vol. 25, No. 2, 2012, page 15-21.  He discusses Nazi Germany and the judicial branch's politically-convenient prostration before Hitler.

Update on 6/7/14: The Trials of Muhammad Ali (2013) includes an interview with a Supreme Court law clerk who worked on Ali's conscientious objector case. The Supreme Court almost dismissed the case but sent it back for review because a new wiretap issue arose (the government admitted to spying on conversations between MLK and Ali). Then, when the case returned to the Supreme Court after three and a half years, the preliminary vote was against Ali 5 to 3 until Thomas G. Krattenmaker, Justice Harlan's law clerk, argued--many times to Harlan--that the Nation of Islam should be treated the same as Jehovah's Witnesses who believed that only God may compel the followers to war and no one else. After reading the Autobiography of Malcolm X (1965) and Message to the Blackman in America (1965), he convinced Justice Harlan, who switched his vote, making it 4 to 4.  However, a deadlocked 4-4 vote would have put Ali in jail for 5 years and generated no substantive written opinion explaining the Court's rationale.  Then Justice Potter found precedent to rule in a narrow way that applied only to Ali based on denial of due process, which permitted the government to continue with its draft while allowing only Ali to file for C.O. status (rather than every single Nation of Islam member or prospective member). The revised opinion resulted in a unanimous 8 to 0 decision (Justice Thurgood Marshall recused himself because the NAACP Legal Fund was involved). The Court ruled Ali was denied due process because the government argued that he was insincere in his religious beliefs at the Draft Board yet later told the Supreme Court it believed Ali was sincere. And just like that, history was made. Without Krattenmaker, Harlan, and Potter, Ali goes to jail, never reclaims the title, and never raises the torch at the '96 Olympics.

Bonus: Interview with California Supreme Court Justice Stanley Mosk (1998):

LaBerge: [H]ow do you think both you and just the court in general can influence social policy, or vice versa, does social policy influence the decisions?

Mosk: Well, theoretically, we should be governed solely by the law and not by individual concepts of rights and duties.  But inevitably, individual rights do enter into opinions that may be written.  Whether that's good or bad, effective or ineffective, is always debatable. [pp. 84]

Mosk: I have a certain sympathy for individuals in our society.  Our society has grown so large and impersonal that I think we sometimes have the tendency to overlook an individual's rights and obligations. [pp. 85]