A Lawyer Who Gets It

When it comes to lawyers, my feelings can be summed up by the Shakespeare quote "let's kill all the lawyers."

Or, if you prefer something a little more contemporary, there's this line from P.J. O'Rouke:

During the mid-1980s dairy farmers decided there was too much cheap milk at the supermarket. So the government bought and slaughtered 1.6 million cows. How come the government never does anything like this with lawyers?

However, I recently ran across this article written by a lawyer who seems to understand the consequences of 200+ years of governments passing unneeded and unnecessary laws, quite often at the urging of special interest groups.

On the opening day of law school, I always counsel my first-year students never to support a law they are not willing to kill to enforce. Usually they greet this advice with something between skepticism and puzzlement, until I remind them that the police go armed to enforce the will of the state, and if you resist, they might kill you.

I wish this caution were only theoretical. It isn’t. Whatever your view on the refusal of a New York City grand jury to indict the police officer whose chokehold apparently led to the death of Eric Garner, it’s useful to remember the crime that Garner is alleged to have committed: He was selling individual cigarettes, or loosies, in violation of New York law.

… Libertarians argue that we have far too many laws, and the Garner case offers evidence that they’re right. I often tell my students that there will never be a perfect technology of law enforcement, and therefore it is unavoidable that there will be situations where police err on the side of too much violence rather than too little. Better training won’t lead to perfection. But fewer laws would mean fewer opportunities for official violence to get out of hand.

… Every new law requires enforcement; every act of enforcement includes the possibility of violence. There are many painful lessons to be drawn from the Garner tragedy, but one of them, sadly, is the same as the advice I give my students on the first day of classes: Don’t ever fight to make something illegal unless you’re willing to risk the lives of your fellow citizens to get your way.

Bravo! The man recognizes that every law on the books is at some point enforced at the point of a gun. I would argue that the vast majority of laws do not come close to meeting that standard of lethality. Eric Garner was basically killed so that the state of New York could continue to collect exorbitant taxes on tobacco (a tax of $5.85 per pack of cigarettes).

Taking that to the next step:

...federal law alone includes more than 3,000 crimes

...an astonishing 300,000 or more federal regulations may be enforceable through criminal punishment in the discretion of an administrative agency. Nobody knows the number for sure.

Husak cites estimates that more than 70 percent of American adults have committed a crime that could lead to imprisonment. He quotes the legal scholar William Stuntz to the effect that we are moving toward “a world in which the law on the books makes everyone a felon.” Does this seem too dramatic? Husak points to studies suggesting that more than half of young people download music illegally from the Internet. That’s been a federal crime for almost 20 years. These kids, in theory, could all go to prison.

Here's my proposal - for every new law that is passed, at least one, and preferably two, existing laws must be repealed. Implement that and over time we'll get back to a manageable number of laws that deal with truly significant issues.

But I ain't holding my breath...