Our system of law needs some serious tweaking

Before I start, I’d like to make the reader aware that some research may be required, especially when I cite examples. This is because I’m trying to be succinct as possible with the article. With that out of the way…

According to Merriam-Webster, law is defined as:

(1) : a binding custom or practice of a community : a rule of conduct or action prescribed or formally recognized as binding or enforced by a controlling authority
(2) : the whole body of such customs, practices, or rules

Given the above, law should be a logical system – one where facts are plugged into the various precepts defined by law and a consistent result is returned: the law was either violated or not. A functioning society requires law to be logical. If law were not logical, at a minimum, we have individuals deciding what the actual rules are without prior knowledge by the affected parties. At the maximum, we would have anarchy.

Now to be clear: For the purpose of this article, when I say the law should be logical, I’m referring to the system in general, not individual laws. As I just stated, someone should be able to take the known facts, apply them against the applicable laws (even if arbitrarily created and/or wrong from a philosophical standpoint), and get the same result as any other person given the same facts and laws. It could also be induced that law should be logical if we operate under the premise that the LSAT, more specifically the logic games section, is a valid indicator of a person’s potential to understand the system of law and to work with it (get into law school and potentially become an attorney).

The good news is that our system of law in the United States isn’t totally illogical. The bad news is that it’s not totally logical.

Our system of law needs some serious tweaking.

“What’s broke about our system of law?!?? What would you fix exactly?” you may ask.

Well, a few things.

Judicial Interpretation of Ambiguous Law

Judicial interpretation is that “lovely” little gem that usually arises out of ambiguously defined law. Ambiguous law exists anywhere from local ordinances all the way up to the constitution (for as great as it is, the Constitution does have some ambiguous parts, which has led to bad things). When you have a situation where judicial interpretation is in play, it means the rules weren’t known beforehand. Making rules up during a pickup game of hoops isn’t a big deal. Losing your freedoms because some guy in a robe had to determine the rules ex post facto (case law if done at the appellate level) IS a big deal.

What’s worse is that there is really no way to have ambiguities resolved until you’re involved in litigation. The closest that I know of would be an opinion from an Attorney General, but as far as I know, those aren’t legally binding.

My Fix
So what would I like to see going forward? I would like to see some method of ensuring that before a law is passed, an identical clear answer on legality is able to be parsed by every reasonable (I define reasonable as logical) person given an identical set of facts when applied against the law.

As for what’s out there currently, I’m inclined to believe that interpretations of ambiguous law should be made in favor of the defendant. I also like the idea of a requirement that the statute(s) in question to be updated to provide more clarity, and if not done within a certain timeframe, be made void.

In terms of the Constitution, a slightly modified approach to the above would need to be taken. Requiring modification to be made more clear within a certain time frame wouldn’t be as feasible; which isn’t necessarily a bad thing depending on your political/philosophical views and how you think those changes would turn out. I think that requirement could and should probably be tossed in that case.

As for which way the interpretation should go, I think it should go the way that most benefits the liberties of the individual (this includes corporations as well, as corporations are entities created by individuals).

One example of a good interpretation (that would follow my view) is CADL v. MOC, in which the Michigan Court of Appeals ruled that MCL 123.1102 applies to public entities such as libraries.

“But Jason, what about Kelo? It’s who private entities duking it out!” Ok, Kelo might confuse some of you, as at the surface, it seems like an issue of a corporation (a group of individuals) vs. an individual. However, the case was really about whether the government could take the property of an individual under eminent domain and hand it over to another private entity. In reality, it was a case of an individual vs. the government, and the government won. Bad interpretation of eminent domain.

Case Law

Even if we operate under the premise that judicial interpretation is a legitimate way to operate and the case law written was based on an appropriate determination, there are still problems for most in regular society (who of course are still subject to these laws).

Assuming a clearly written statute, it’s easy to see if an activity is within the bounds of the law or not. I’m not a lawyer. However, I never found it hard to find relevant sections of statute or administrative law codified in the CFRs (although I have my concerns about the legitimacy of federal agencies making law, that’s another topic) and subsequently determine the legality of something assuming that clear language is given. I’m also not the only “regular Joe” that can parse statute. If properly written, statute should be able to be parsed properly by most anyone that can read.

On the other hand, finding potentially applicable case law requires an indexing system like Westlaw, Lexis Nexis, or manually trolling law reports directly. It’s not fun. There’s a reason that quite a few attorneys I know pawn that job off to some poor law clerk making their way through law school. Even then, a particular piece of case law could require its own interpretation as to the applicability of a particular legal matter. Unlike statutes or CFRs, I’m horrendous at researching case law.

My Fix
I think there should be some kind of addendum to affected statutory indices to indicate that case law may apply, and what those cases are. I don’t see why this would too much of an issue given that

  1. The statutes in controversy are most likely going to be mentioned in the opinion.
  2. Topic indexing already happens via the likes of Westlaw or Lexis Nexis.

I don’t see why constitutional interpretations couldn’t be noted in a similar manner.

So for example, in the case of CADL v. MOC, that case could be mentioned as having affecting case law if an individual were to look up MCL 123.1102

Random side note: I like the idea of codifying common law.

Judicial Reinterpretation of Plain Language

Sweet Jesus, this is probably the worst thing I can think of.

I think the best way to describe this one is with an example.

Amendment 2 of the United States Constitution states:

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

It’s pretty clear: The right of the people to keep and bear arms shall not be infringed.

It’s pretty clear. Shall not be infringed. What is any sort of gun control? Infringement.

What is the following excerpt from DC v. Heller:

Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues.

It’s junk. If you want to qualify “shall not be infringed”, do it by amending the Constitution, not by some busted interpretation. It’s not even a firearms rights issue – it’s a simple fact of reading the PLAIN LANGUAGE presented.

My Fix
My fix? Kick these clowns off the bench and make sure they don’t practice law ever again.

Another random side note: People who think that the Constitution is a “living document” and should be interpreted according to “today’s norms” are idiots. I really don’t care if that offends you. If we treat it like a ‘living document’, why should we even have it?

Parting Thoughts

This piece isn’t nearly as complete as it could be. I would consider it more of an outline than anything.

Additionally, much more in depth analysis could be applied to different scenarios. But basically here’s what I’m trying to get across:

  1. Regardless of whether the philosophy of individual laws themselves are proper or improper, they should be codified as unambiguously as possible. The idea is that any reasonable person (one capable of logic) can input the same facts and come out with the same result.
  2. Where there is judicial interpretation resulting in case law being generated, statutory indices should reference that potentially applicable case law exists, and what the case(s) are.
  3. Judicial reinterpretation of plainly worded language IS VERY BAD. Considering the Constitution a ‘living document’ is equally absurd.

I guess one final recommendation is that if a citizen notices ambiguity (before getting strung into a criminal case), there should be some form for them to request a remedy to get the language clarified or struck entirely.

And of course, let me know if there are factual errors.

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