Musings of a Philadelphia Physician who has served the community for six decades

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Government Organization
Government Organization

Shaping the Constitution in Philadelphia
After Independence, the weakness of the Federal government dismayed a band of ardent patriots, so under Washington's leadership a stronger Constitution was written. Almost immediately, comrades discovered they had wanted the same thing for different reasons, so during the formative period they struggled to reshape future directions . Moving the Capitol from Philadelphia to the Potomac proved curiously central to all this.

Federalism Slowly Conquers the States
Thirteen sovereign colonies voluntarily combined their power for the common good. But for two hundred years, the new federal government kept taking more power for itself.

Legal Philadelphia (1)

Thinking About Thought
There's a yawning gap between concepts of the mind, and concepts of brain function.

Unwritten Constitutional Modification
It is so difficult to amend the Constitution, we mostly don't do it. Our system is to have the Supreme Court make a dozen small adjustments every year, continuously fine-tuning the principles. Occasionally they have invented new principles, which is probably not wise.

..Constitution and Court
Forget all those lawyer jokes you hear. The American legal profession can rightly be proud of the Federal Court System, an achievement of the whole profession. America may be legalistic and overlawyered, but that reflects the rule of law dominated by lawyers. Curiously, the leader of this creation, John Marshall, was not so much a legal theoretician as a relentless Federalist lawyer, determined to reshape the legal profession to be worthy of power.

Regulation Precision: Not Entirely a Good Idea

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Without proof of special damages or reference to extrinsic circumstances {bottom quote}
"Per Se"

Lawyers have a word for it, as people do for most things they handle frequently. Ordinary citizens are mostly baffled by the term "per se violation", and even more put off by "rule of reason". If the reader is a lawyer, these terms are clear enough but the average person requires some explanation. It's supplied next, before proceeding to the point, which is that per se is a mixed blessing.

When the Constitution was adopted in 1787, we had no laws, but we had courts and crimes. To some extent, the problem was addressed by adopting English Common Law as a default. Until Congress got around to writing statutes on the subject, common law would have to do. Roughly speaking, the amount of statutory law written by Congress began to occupy as much shelf space as common law during the Civil War. Since that time, the volumes of statutory law have come to exceed the volumes of common law by a great deal. But the result has one over-riding principle: the entire legal code of the nation was examined in detail and re-written as a uniquely American product.

In a sense, to state the principles of law was just the first step. Statutory law generally stated what was forbidden or punishable in a general way, defined it, and left it to judge and jury to determine if the facts of a case fit the meaning of the statute. When such generalities prevailed, decisions were based on the "totality of the circumstances", using the "rule of reason". This approach left a great deal to the discretion of the judge, and created the opportunity for "loopholes" . Judges in a huge modern nation are not uniformly of the same level of education or skill, and cultural differences cause variation in what they would generally accept as reasonableness. So, appeals are made possible to courts of appeal; if courts of appeal differ on the same point, the matter is resolved by the Supreme Court. Legislatures and Congress are then free to clarify the issue, but unless they do, rulings of the appeals system have the force of law. Not everyone was happy with the outcomes of this rough-and-ready system of approximated justice.
law books

Their reaction took two forms: regulations, and "per se" laws. Through regulations, the executive branch acquired the ability to interpret Congress's statute, and implement it in specific ways and circumstances. The result of a staggering proliferation ( a hundred thousand pages a year) of regulations with the force of law, originating in the executive branch, is the growing feeling that legislation is slipping away from the legislative branch in a manner not intended by the Constitution. To this, Congress responds with laws of far greater specificity, per se laws. For example, instead of passing a law prohibiting monopoly, Congress might specify the allowable percentage of customers a company might have within a specific market area. Per se laws and per se regulations greatly reduce the latitude a local judge has to examine the totality of circumstances, using the rule of reason. As one loophole after another gets closed, the number of pages of codified law is vastly increased. The typical state legislature now deals with about ten thousand bills a year, and the U.S. Congress deals with twenty-five thousand. Although the resulting law may be clearer when you do locate it, the nation has a much harder time finding what the law says. By attempting to create more stability and certainty about the laws, this process -- even making allowances for computer searching -- has greatly increased public uncertainty about what the law does say and what it intends, because it is impossible to carry around a general idea of what the law says. Elements in a system confused by a vast history of specific decisions by Congress are less to be pitied however, than the plight of Congress itself wallowing in an endless prospect of newly proposed legislation.

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which prohibits "every contract, combination or conspiracy, in restraint of trade {bottom quote}
Rule of Reason

Much is to be lamented in the present situation. It's hard to say whether we strive for micromanagement because we have lost trust in judges, or whether we trust them less because we have less need to trust. To the extent that judges represent the collective will of society, an increasing hunger for diversity of opinion leads to less trust in the system, and a desire to narrow judge's power of discretion. The increasing volume of litigation is wasteful of resources but here again, it is hard to know whether increasing the lawyer supply provokes legislation, or whether we just train more lawyers to cope with it. It is somewhat idle to tabulate the proportion of legislation which breaks new ground, and how much converts rules of reason into lists of per se violations and requirements. But a very substantial proportion of this legislative blizzard is of the per se nature, closing little loopholes, specifying endless contingencies. If the Law were a computer, massive micro-programming would steadily improve the performance; in this case, it seems to be breaking it down. The most disheartening feature of the present legal trajectory is that it does not appear to be reaching for equilibrium; breakdown seems to be its only end-point. Neither the regulatory process nor the legislative one contains an adequate mechanism for reducing the number of laws, one which can address the growth of them. Repeated waves of "Reform" have made little impact, consolidations of the code periodically plod along step by step, while the supply of per se laws keeps rollin' along. The nation almost seems to have decided just to wait until something breaks.


I'm ipmrseesd! You've managed the almost impossible.
Posted by: Flip   |   Apr 22, 2011 2:17 PM

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