Ran across this little nugget doing legal research on a case.  If only it were completely true:

The argument also assumes, quite wrongly, that lawyers make all the difference in outcomes, as if the merits of a case or the interests of justice didn’t count for much. (In reality it should be the other way around to the degree that it is true at all.) All judges regularly see cases where the better lawyer rightfully lost because he or she should have lost, regardless of skill. (And that is by whatever criteria you choose to measure relative legal skill, e.g., perceptivity, knowledge, organization, or ever plain diligence.) In any sane system of justice, the merits, rather than the skill of lawyers, should control the ultimate disposition.

Chen v. County of Orange, 96 Cal. App. 4th 926, 948 (2002).

It is absolutely true that the merits should control the ultimate disposition, but in my career I’ve seen a lot of improper results due to lawyers’ skills (or lack thereof).


I have some experience with employment law in California, particularly with wage and hour law (overtime requirements, minimum wage, work schedules, etc.).  In California, the system could not be more askew against employers than it is right now. 

In the first place, employers are subject to a myriad of draconian laws that unjustly punish innocent mistakes.  For example, if a retail store or fast food restaurant is especially busy and short-handed and cannot provide a paid ten-minute rest break to a part-time employee (above and beyond bathroom breaks), or provides a five-minute rather than ten-minute break, the employer owes the employee an entire extra hour of wages for the day.  If the employer fails to pay the extra hour of wages, whether because of ignorance of the rule or otherwise, penalties rack up swiftly.  Upon the employee’s departure, if the employer does not pay every dime that is due to the employee (including that extra hour of pay), the employer must pay an entire day’s wages (8 hours worth) for each day until full payment is made, up to 30 days.  So that means the five or ten minute mistake could turn into big money for the employee.  An employee earning minimum wage ($8 per hour in California) on a part-time job could nevertheless gain $1,928 (including $8 for the extra hour of pay) for the five or ten minute error.  Assuming the hypothetical part-time employee worked 20 hours per week, the employee would get the same amount that he earned in the previous 12 weeks combined for one five-minute mistake. 

Something similar recently happened to a friend of mine who owns a small business.  He intended to pay all wages upon an employee’s departure, but made an honest and innocent calculating error.  Rather than advise the business of the error, the former employee went and filed a complaint with the Labor Commissioner some time after his departure.  Upon learning of the error, my friend immediately paid all wages that were due to the employee.  The law with the forementioned 30-day penalty (Labor Code Section 203) states that “willful” failure to pay will be penalized (though ignorance of the law will be no excuse).  It seems to me that an unintentional miscalculation is not “willful,” especially when the employer immediately pays the employee as soon as the error is brought to its attention.  My friend explained everything that had happened to the Deputy Labor Commissioner.  Nevertheless, the Deputy Labor Commissioner held my friend’s feet to the fire, stating that if the employee wanted to pursue the penalties, the employer will have to defend a lawsuit, so it’s best if the employer goes ahead and pays the employee something to go away. 

Note, it wasn’t the small business’ attorney or the employee’s attorney that told him this, it was the California Labor Commissioner, i.e. the government.  The government of California advised a business to pay off an employee even though the employee had a very suspect claim.  Remarkable. 

According to the Labor Commissioner’s website, “The mission of the Division of Labor Standards Enforcement (DLSE) is to vigorously enforce minimum labor standards in order to ensure employees are not required or permitted to work under substandard unlawful conditions, and to protect employers who comply with the law from those who attempt to gain competitive advantage at the expense of their workers by failing to comply with minimum labor standards.”

Notice that there is nothing in there about protecting employers from unscrupulous employees with false claims; only indirectly “protecting” employers from other employers that supposedly cheat their own employees.  It would be putting it kindly to call this “protection” mere lip service.  The Labor Commission really has one mission: to stick it to employers “vigorously.”

Justice should be the pursuit of government.  The government should discourage false claims, not reward them.  What message do we send to businesses and departed employees when this sort of thing happens?  We teach employees that they can make a fast buck off their former employer with dubious claims, and we teach businesses that doing business in California is more risky than anywhere else, at least from an employment law perspective.  I have actually seen a business close its California operations because California law was more difficult than anywhere else in the country.  I presume that company is making a profit elsewhere.

I came across a brilliant synopsis of how the U.S. Supreme Court should decide “hard cases” that involve a party claiming an individual right under the auspices of the Constitution:

I confess that in the end I do not have much confidence in constitutional jurisprudence. One consequence, it seems to me, of requiring of the Court a wisdom about “rights” beyond that of the Framers is that it undermines the habits of citizenship that rely on the confidence of the people in constitutional majorities. I modestly suggest, therefore, a rule of prudence to be applied to constitutional jurisprudence: A Justice should always consider, when deciding “a novel and difficult case,” whether the outcome will increase or diminish the ability of the people to govern themselves by the mechanisms laid down in the Constitution. This very likely would mean subordinating the intractable questions of individual right, insofar as they reflect changing social mores, to the political process. True, the tyranny of the majority is the intrinsic danger in a democracy, but the tyranny of pernicious ideas, tricked out in the language of rights, it seems to me, is far worse than having to abide by the rule of constitutional majorities.

This analysis is an afterthought in a broader book review by Robert Licht concerning Mary Ann Glendon’s book critiquing American jurisprudence on individual rights and arguing in favor of communitarianism (which Licht’s book review does not support).  While this post is not about communitarianism, I find the analysis quoted above to be spot on. 

The Supreme Court’s individual rights jurisprudence has subverted the political system and removed important questions from the will of the people.  (Keep in mind that Supreme Court Justices in the U.S. are unelected and are appointed for life, so they are completely unaccountable to the people.)  In the close cases, the Supreme Court often exploits the ambiguity in the law to declare national policies and invent new “individual rights” under the Constitution that cannot be changed by anyone except the Supreme Court.

If these individual rights do not come explicitly from the text of the Constitution, where do they come from?  God?  Hard to imagine that’s the case, given the types of issues the Court has removed from the political will of the people.

When is the last time you were able to vote on the legality of ordinary abortion?  When is the last time that anyone you elected (on the local, state, or federal level) had a chance to vote on the legality of abortion?  How about prayer in schools?  The Court should tread lightly in these areas, deferring to the political process.  Yes, the political process may yield an unjust democratic decision, but that is much easier to correct than an unjust legal decision made under the Constitution.  To correct that, the people must amend the Constitution, which is no easy task.  This is why losers of elections run to court.

In my criminal law class at law school, we discussed four basic theories of “why we punish”: deterrence (“to keep them from doing it”), incarceration (“to keep those who do it away from us”), rehabilitation (“to help them stop doing it”), and retribution (“because they deserve it”).  Any punishment should fall in line with your basic theory of punishment.

It seems to me that each theory of punishment, when applied and examined, ends up needing such a degree of retribution as justification that retribution may be said to be the primary theory.  Deterrence is probably the most commonly-held theory in America, but if deterrence is our primary motivator, we should chop the hands off of teenage shoplifters; that would deter!  We don’t do that because we don’t think they deserve to have their hands chopped off. That punishment strikes us as cruel and unusual in comparison to the weight of the crime.  I find incarceration equally problematic (we could lock up criminals indefinitely), and rehabilitation is foolish because it doesn’t (can’t?) work.  Ultimately, the other theories lead to obvious injustices unless they have retribution as a foundation, notwithstanding critics that claim the retributive theory is too “vengeful.” 

One of the best explanations of the problems with the deterrence and rehabilitation theories is C.S. Lewis’ essay, The Humanitarian Theory of Punishment.  In the essay, he argues:

Read the rest of this entry »