Why The Law Is In Shambles

In an age characterized by a surfeit of punditry and a dearth of insight, Tom Geoghegan is a rare gem. A labor lawyer, essayist and author of three books, Geoghegan has opened the door onto a universe of social, legal and political problems that routinely escape the notice of the cable-news talking heads and big-city editorial pages.

Reading his work, one realizes that while the chattering classes have been arguing over how much to water the lawn, the entire house is burning to the ground. In his first three books, Which Side Are You On?, a memoir of his time as a labor lawyer during the Reagan years, The Secret Lives of Citizens, a meditation on the decline of civic involvement, and In America’s Court, a first-person odyssey through the dysfunctional criminal justice system, Geoghegan writes about the law with passion, intelligence and a tragicomic sense of humor. His latest work is The Law In Shambles, a pamphlet from Prickly Paradigm Press. In just over 100 pages, Geoghegan offers a bracing critique of the current state of American jurisprudence. He sat down with In These Times in his Chicago law office to discuss tort law, wounded citizens and the future of social democracy.

So, why is the law in shambles?

With the increase of inequality, people in this country experience the world as more and more arbitrary and they don’t see a connection anymore between their effort and reward. Because of this, we are not going to be able to sustain the legal culture and the respect for law that we used to have. People see themselves not as citizens, but as victims, so there’s less civic trust, more people dropping out of the system. And all of this has an enormously negative impact on a country that thinks of itself as a majoritarian democracy.

Another way to say this would be: predictability is the essence of the law, but more and more my clients see the world as meaningless and arbitrary and they expect the law to be that way too.

It hasn’t always been that way?

Thirty years ago people went to unions and they had their rights protected outside of the courtroom in grievances and arbitrations. The collapse of labor unions is attributed to globalization and there’s a great deal of truth in that, but it was as much for legal and institutional reasons as it was for economic reasons. There are countries, like Germany, that are more exposed to globalization than we are, yet have gone in exactly the opposite direction. People’s rights are more predictable in Germany now than they were 20 years ago because they’ve got more works councils. Their institutional and legal systems drove them in a different direction than ours has.

These changes we’ve seen in our legal doctrine, particularly the decline of unions, have severely undermined people’s ability to have the trust they need to participate in the political process. They’re too wounded to be citizens. This has an auto-catalytic effect because the more people drop out because they can’t be citizens, the harder it is for the rest of us to do it. So we end up on these talk shows screaming at each other because we’re broken as a people. We’re half a body politic.

There’s a line in the Symposium, where Aristophanes says, ​“What is the tragedy of the human condition? We’re in two sexes instead of one.” The tragedy of the American condition is that we’re two nations, one of which is still trying to participate in the political process, holding on to these old civic values, and the rest, not quite the majority, but soon to become the majority, saying, ​“We’re not capable of doing what you do.” That’s what the book is about.

As you describe it, the way this rending of the civic fabric plays out in the legal field is that now everything is tort. What does tort mean?

Tort law characterizes the citizen as a victim — the injured party has had some random thing happen beyond his control and goes to court looking for remedy. When I was in law school, tort law was mostly about the car wreck at North and Clark Street. The classic trial practice example is: ​“The car was driving on North Avenue and it runs on to Clark Avenue, etc.” I thought, ​“Who cares about this? I didn’t go to law school for this.” I just thought tort law was for goof-balls.

I was much more interested in contract law because it has such an elegant structure. The way most people used to experience the law was contract. Contract law protected our expectations to be treated equally, fairly, rationally, justly. Our job tenure depended upon our performance in some way or another that was predictable. Contract collapsed as the way working people experience the law because we don’t have collective bargaining. Then there was also trust law, which you experienced when you got your job and had a pension. But trust law has also collapsed. Now, you’re out of pension plans; there are no trustees to take care of you, or if there are, they screw you. The charitable institutions now prey on you. The student loan companies and hospitals chase people into court to collect debts.

So with the withdrawal of unions and to some extent the withdrawal of government in regulating the workplace and people’s working lives, everyone feels more like a target. And you react to being a target by suing under civil rights laws that are really [designed to address] tortious wrongs. They’re a kind of attenuated versions of hate crimes that have been inflicted upon ​“You The Employee,” whether it’s age, race or sex discrimination.

When you had a union contract, this would have been treated informally outside of the courts by arbitrators under a system of objective criteria — ​“were you a good employee or were you a bad employee?” But now, you’ve got to put your grievence into a different mold, the civil rights tort, where you are trying to prove that instead of ​“you’re not meeting objective criteria,” somebody is out to inflict egregious injury on you for no reason except some subjective motive.

And the rules of discovery allow you to rifle through people’s files to prove that the boss was ​“after you” for some deep, dark, evil, malicious motive. That makes the system nuttier and nuttier. It encourages expression of rage. And it forces the legal system to litigate the issue of rage, rather than performance.

In the book, you seem to show the same despair with the courts as the tort-reformers and ​“strict constructionists” of the right. What do you make of the conservative argument that activist judges have hijacked democracy from voters?

It’s so misguided I don’t even know where to begin. It’s misguided because we don’t have a political democracy. If we had one-person one-vote majoritarian democracy, then maybe I’d be more sympathetic, but we’re not a democracy. The country wasn’t set up as a democracy, and it’s an iron cage we can’t get out of.

All sorts of things can’t get resolved through the political process — for example, race. The only way you can break through that is the courts. It’s also true that if you don’t have majoritarian democracy it becomes less and less majoritarian over time. We never had one-person one-vote in any perfect form to begin with, but over the last 200 years we’ve deviated more and more to something that is just bizarre in two ways.

One is the United States Senate, which, thanks to the filibuster, first prevented the New Deal from getting put into place and then dismantled it. It’s the Senate that caused the Civil War. It’s the Senate that kept Jim Crow in effect. It’s the Senate that has stopped any kind of labor law reform. And that was all because of the Senate’s enormous deviation from one-person one-vote. All the essential problems of the United States come down to the fact that we’re not a democracy, and we’re not a democracy because of the way the Senate is set up and the way the Senate works. You go around and talk to liberals who say ​“Oh, the Senate is so wonderful because it protects my individual rights against so-and-so who is going to spy on me.” It’s like having reached other dysfunctionalities, a truly dysfunctional political culture then turns to these dysfunctional things to say, ​“Oh well, we’ll use these other things to keep it from getting worse.” In fact they are contributing to the problem.

And then there’s the Electoral College, which, because of the deadlock in the country, inadvertently ended up pacifying nine-tenths of the country. Everybody’s dropping out because there’s no point in voting except in three states. It’s so destructive.

So the only way to make the system more democratic is through the courts. And you might say, ​“Well, that’s elitist,” but there’s no other way. When a majority has become pacified and listless and dull, the only way the system is going to change is through [the actions of] some sort of, call it an ​“elite” or a ​“minority” or ​“a group of people getting together and trying to do something.” It sounds odd, but we need the courts to help us restore majority rule.

You suggest in the book that the reason we don’t have majority rule is because of Three Big Facts that are all part of this ​“dropping-out” of the system. Talk a little about those.

The collapse of unions, which creates a sense of rightlessness, is the big fact for me, and even for most people who weren’t in unions. And it wasn’t just wages. It gave people a stake in their working lives. In multiple ways, the collapse of the labor movement has led to withdrawal from civic life even for non-union people.

The second big fact is the withdrawal from civic life. The voting rate in the 19^th century was 80 percent. Then it fluctuated for various reasons, because women got the vote in the ​’20s, but it was high again in the ​’60s. Since then it’s just gone south, even as you’ve had this enormous enfranchisement of minorities. The drop is really astonishing when you think of all the people that got pushed into the political system. This extends not just to voting, but to having opinions and reading the newspapers and everything else. These things all play on each other, one pushes the other.

So you lose social rights — that’s the labor movement. You lose political rights — people drop out of citizenship. You lose all rights – that’s the prison system, which is total rightlessness, and illegal immigrants. So you’ve got a nation of people in prison and illegal immigrants who are in one way or another, under no rule of law, and we become used to treating them arbitrarily with no accountability.

If I had to classify your politics, I’d say you are a social democrat. In a pretty robust sense.

Yeah, social democrat, you’re right.

You spent some time in Germany and had an affinity or admiration for certain structural features of European social democracies.

I like the SPD, I like the Greens and I even like many of the Christian Democrats.

There’s been some interesting writing lately in conservative circles, where some have argued the future of American conservatism is actually to become more like the Christian Democrats. That in order to have a long-term conservative movement with popular appeal, you need to get rid of this obsession with cutting the state. I’ve also read recently that the era of big government being over is over.

On the other hand, there’s this conventional wisdom in elite circles that we are moving toward this neoliberal light at the end of the tunnel. The unions are dinosaurs, we need to scrap ​‘em. All of the machinery of social democracy is going to be consigned to the same dustbin of history that Maoism was consigned to, and that’ll be that. What do you think of the future of social democracy?

I think social democracy is the future, if only for one reason. If you take the existence of the earth as one year, humans showed up 15 seconds to midnight, and our own time has been an nth of that. We’ve already got 6 billion people and we have the greenhouse effect and global warming. I think that if social democracy doesn’t survive as a model for treating each other [well], for regulating economic growth, for not having these huge, horrendous side effects, the planet is not going to survive. So I can predict that either social democracy is the future or we aren’t going to be around to know.