Monday, December 6, 2010

So It Begins...

Today, at 8 a.m., I will receive my first exam in Civil Procedure.  I will have 9.5 hours to complete an exam which has far-reaching implications for my future. It is the only grade I will receive for this entire semester.  Nothing else counts.  In life, we face pressure situations all the time, and we are defined by how we react.  I find that I am calm, yet eager.  There is a part of me that would just as soon take the exam now.  

I've done the preparation, completed my tabs for my casebook and my Federal Rules of Civil Procedure.  I've dug into U.S.C. Title 28 §§ 1331 and 1332. I understand the Erie Doctrine's implications through the years, beginning with the original case and continuing through Guaranty Trust, Hanna, and Byrd.  

The biggest challenge will be obscuring my identity by resisting the temptation to put forth anything that reflects my deep convictions on matters relating to procedure and how it affects outcome.  I will not be able to argue for a liberal pleading standard to prevail.  Conley, Bell Atlantic, opinions do not matter in the law.  Ultimately, my biggest takeaway from this semester's studies is that we invest great amounts of trust in the opinions of a select few judges, right or wrong.  It is opinion and fiat rather than the letter of the law which guides the course of our society, and due to this, we have no real law whatsoever.  We have shifting sands of interpretation which evolve over time gradually.  

Conservatives and liberals alike are guilty, equally complicit in an arrangement whereby they pull and tear at the law to arrive at the predetermined result.  They appeal to the law for legitimacy, but the result is all that they are concerned with.  The law is simply an accessory, a cloth to throw over human ambition and avarice in order to dress up our most base instincts so that we may be victorious in our viewpoints.  What victory is this?  The victory of being right, for now.  

There is an illusion that conservatives and liberals appeal to in their contentions with each other.  On the liberal side, there is the notion that constitutions and statutes evolve of their own volition, and that words which meant one thing yesterday mean something entirely different today.  In truth, words mean whatever the intellectually disingenuous among us want them to mean.  We have a process by which to correct the ills and errors of our past by amending or subtracting the letter of the law, but few among us want to follow a process when immediate gratification through subjective judicial interpretation is possible.  We hold the law up as a lofty matter when it suits us.  On the conservative side, there is an obsession with literalism, an insistence that the words of a statute must be divorced from all else and segregated in order to ascertain their true meaning.  Context doesn't count when it might clarify the meaning of a statute in a way that conflicts with our desires.  We call it originalism, or textualism, or whatever other fancy label we might impart to it, but at the end of the day, we are out to impose a result on the law that enables us to avoid having to hew to process. Ends justify means for both extremes.  

When I applied to law school, I wrote in my admission letter that I was out to combat a vicious pragmatism which I believed had infected the law.  This pragmatism had led to a U.S. Attorney arguing for the President to hold the power to order an infant's sexual mutilation as a means of compelling his suspect parents to divulge information.  I found this barbaric, even absurd.  The problem with seeking a result in the law by abdicating legitimate process and enabling subjective and disingenuous interpretations of ideological convenience is that the barbaric and the absurd become palatable.  

To the extent that we have become a disordered society, it is because we seek results outside of process. We ride over processes like amendments and repeals with a bulldozer, all in the name of getting our way.  It does not matter that the procedural side of the law is the very means of legitimizing the substantive side of the law; we simply want to get the result without performing the due diligence that procedure represents.  Even though it splits our nation, divides our culture, and threatens the union of our country, we seek the result above all else.  

Take a look at our current mortgage crisis: had procedures and protocols been followed, had mortgage processors and lenders merely paid attention to the very procedural safeguards that already existed, none of what we are currently undergoing would have happened.  There were laws against fraud which clearly covered the behavior which led to our nation's economic demise.  There were internal procedures at banks which prohibited issuing loans to individuals who had no incomes, no jobs, and no assets.  Procedure is vitally important to outcome.  When procedure is abandoned in the name of an expedient result, you get what we have: chaos.  Today, banks can't legally foreclose on properties because they can't demonstrate their legitimate provenance.  Why? They didn't follow their own procedure in preserving a paper record which would prove their ownership of the asset in dispute.  And what are banks doing?  Why, they're compounding the problem by foreclosing on properties they have no legal claim to, and in some cases, they've foreclosed on properties that they don't even own.  

It's only the result that matters.  However, in forsaking process to arrive at a result, banks have heaped up further liability for their shareholders and the nation at large.  This myopic, short-sighted emphasis on immediate results is truly indicative of everything that is wrong with our culture, our legal system, and our judiciary.  Process exists as a safeguard against radical change, precisely because radical change carries with it the threat of unforeseen consequences. Revolutions have a curious habit of eating their revolutionaries.  

Today, the proponents of deregulation are staring at an abyss of their own making, and the world is teetering on the brink of acknowledging the obvious: we are insolvent as a global community.  Our money is nothing more than an illusory commitment by governments whose word no longer means anything to force individuals and entities to surrender commodities with real value for paper and ink without any value. What good is the word of any government after the course of the past forty years?  They all say that procedures were in place to prevent these sorts of crashes from occurring, but when you just ignore the procedures to get to a result, what efficacy does procedure have to prevent anything?  

The United States would have us all believe that the monetary supply can be doubled and even tripled, and inflation is not going to be a problem. It's absurd.  The proponents of laissez-faire economics would have us leave them alone on the one hand, and intervene with a bailout of money guaranteed by a government's worthless word on the other hand, just so they can balance their ridiculous balance sheets in order to pass muster with investors.  How is this nothing more than a total illusion?  

Ladies and gentlemen, I give you the present that doesn't work, and a future where more of the same is guaranteed.  It will be dressed up in the law, cloaked in appeals to order, and somehow, over and over again, it will produce anything but a lawful or ordered result.  The world's leaders will promise that more law and more procedure will somehow stave off a recurrence, but the fact of the matter is that when the law is not accompanied by restraint on the part of governments willing to acknowledge that process binds their power and authority, along with adherence on the part of private parties who recognize that the substance of the law will be applied to them in a severe manner if they deviate from the precepts thereof, the law is no longer an agent of justice or equality.  It can no longer give rise to ordered expectations.  The law is nothing more than a disguise to cover the same repetitive wickedness of elites and dilettantes who regard the law as a useful tool to cover their workings in the appearance of legitimacy and equity.  

As a student of the law, I have come to the conclusion that a real and legitimate restoration of law is required to save humanity.  We cannot afford to entertain further foolishness, and at the heart of the restoration of law and order must be an acknowledgment that process matters.  Far from preventing justice, process enables us to arrive at a meritorious justice, one which we must debate and consider with thoughtful dialogues. There is nothing so wrong in this world, and nothing so responsible for our current shoddy state, than the expeditious justice which dominates our current reality.  It is quick.  It isn't much else, but it is quick.  Process would enable us to consider outcomes, to have a thoughtful debate over those outcomes and potentially unforeseen consequences, before we simply went on and implemented a solution whose outcome wasn't thought through in the slightest.  

You have lived through a time in which ends justified means. Are you happy with the result?  Does it thrill you to entertain the notion that your country is saddled with staggering debt and liability?  Are you proud of where we led the entire world?  It is time to acknowledge that ends do not always justify means, and that sometimes the intent of a particular method diverges sharply from the actual result.  It is time for a renewed emphasis on thinking before action.  In other words, process.  




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