“Better is a little with righteousness Than great revenues with injustice.” — Proverbs 16:8
Law American Style Consider the legal quicksand entrapping the following three men (1): In 2009, H. Beatty Chadwick, a lawyer himself, in jail for nearly 14 years; Manuel Osete, a businessman, in jail for 3 years; Martin Armstrong, an investment-manager, in jail for 6 years. What legal commonalities bind these three prisoners? None ever had been convicted of a crime. None tried for a crime. None even charged with a crime. Yet, all were imprisoned indefinitely as the consequence of pronouncements by judges who remanded them to jail for “civil contempt”.
America On Fire Lawyer-judges incarcerating Americans for 14 years without a crime having been committed should give one pause for reflection. Is there any wonder that America is a nation on fire . . . on fire with anger? An increasing number of productive, taxpaying American citizens view themselves as insidiously having been subjugated by power-hungry politicians, petty bureaucrats, and avaricious lawyers who continue to undermine the Constitution and to destroy American Tradition for their own self-aggrandizement. Some of these citizens are not just feeling angry (emotion). Some are speaking stridently and publicly (verbal behavior). More importantly, some are taking action (instrumental behavior) . . . fortunately, non-violent, in the main. Witness the Tea Party and its supporters.
Two Simple Equations To understand the position of lawyers amidst this political, economic, and social conflagration, it is helpful, if not necessary, to place the issue into a scientifically-oriented framework. Doing so involves two, simple equations.
The first is a basic law of behavioral science, the Law of Effect . . . B = f(x) under c.(2) It states that behavior is a function of its consequences in a given context. Want more of a behavior? Reward it. Want less? Don’t reward it. The controlling variables are context and consequences. [For a detailed description, see Chapter 7 in the novel, Inescapable Consequences (www.inescapableconsequences.com).]
The second is a method to resolve problems in living . . . both societal and personal. [(-4) + (4)] = 0. Minus four (i.e., Context, Antecedents, Behaviors, Consequences) plus four (i.e., Problem, Goal, Plan, Measurement) equals zero.
Minus four refers to applying the four steps of describing the situation in question . . . the negative. Plus four refers to applying the four steps of resolving the problem therein . . . the positive. The sum equals zero . . . no problem, at all. We can apply these, two equations to the American legal system.
B = f(x) under c Lawyers shoulder a professional responsibility to their clientele . . . a responsibility that many critics claim most honor in the breach. A fundamental question is, Should those administrating the law . . . lawyers . . . be creating it? Whereas it may have been advantageous for lawyers to have participated in creating the country by providing a more precise framework for a new federal government, has it become disadvantageous for contemporary lawyers to maintain the position held by their predecessors? Are they now abusing the privilege of their profession?
From a scientific point of view, American law currently represents poor contingency-management. As judges and legislators, lawyers create the context in which they themselves operate as well as the consequences governing their own operations therein.
The context of American law reflects human behavior. Behavioral science from the biobehavioral orientation describes the natural laws governing that behavior. By employing natural law in order to manage contingencies properly, we Americans can reform our legal system. How? It’s as simple as the ABC’s.
Minus Four: Context and the ABC’s CONTEXT: Lawyers dominate American society. Tens of millions of frivolous lawsuits await judicature. Thousands of arbitrary, whimsical, capricious, and contradictory judicial decisions await further pronouncements by unelected judges. American law has deteriorated to the point where predatory lawyers now file lawsuits in the United States against foreign nationals for acts committed on foreign soil against other foreign nationals . . . events having nothing to do with the United States, its citizens, or its legal system.(3) This kind of egregious behavior represents “lawyerism”. It is destructive to America.
The term, lawyerism, refers to the domination of a nation by its legal class. That domination allows lawyers to create and promote a self-serving system of positive self-reinforcement. Does America remain a nation of laws, or has it been deformed into a nation of lawyerism . . . for lawyers and by lawyers? A strong case can be made that the answer is the latter.
On the societal level, lawyerism condemns the rest of a nation to live under a system both unfair and unjust. Unfair because it creates a privileged, social class . . . a legal aristocracy that legislates and administrates laws and rulings favorable to itself at the expense of everyone else. Unjust because it flagrantly disregards the stated obligation of lawyers to protect their clients . . . not to defraud them. Worse, it allows little redress to those whom it abuses.
On the individual level, lawyerism promotes outright fraud. The scientific guidelines of specificity, objectivity, and accountability largely are missing, especially the last . . . accountability. American law denies financial accountability. Clients have no means of assessing the true time and real effort devoted to their cases by those “learned, legal professionals” whom they pay. Worse, contingencies generally operate against lawyers working efficiently and effectively . . . the less the time (i.e., “billable hours”), the lower the fees.(4)
Are there, nevertheless, some ethical lawyers? Yes. Some of them also are competent. A relative few, even outstanding. As a group, however, ethical lawyers seem to be the minority. That observation reflects the context and consequences that we Americans allowed the legal profession to create. B = f(x) under c. The behavior of lawyers is governed by the same natural law that determines the behavior of the rest of us. As it is asked in the Lord’s Prayer, lead us not into temptation.
Much to our detriment, the legal context leads lawyers into temptation. Societally and individually, it promotes self-serving, inefficient, and corrupt behavior.
More frighteningly, many of the rankest, most odious members of the most despised of all professions seek public office and become the controlling segment among, as Mark Twain characterized them, our native criminal class . . . politicians. Lawyers comprise less than 1% of the American population but 40% of the Congress.
Accordingly, might a prosecutor justifiably file a case against current American law? Mr. Twain likely would answer, “Yes.” The prosecutor’s charge might read along the following lines: “The United States of America is a democratic republic founded upon a constitution and the laws derived therefrom. The American public hereby charges that those who administrate the laws . . . namely, lawyers . . . have usurped control of the system for their own personal benefit to the detriment of their fellow citizens and, by doing so, have ignored that constitution and have enacted laws that have attacked the document that they have sworn an oath to defend.”
Having described the context and levied the charge, the prosecutor could further his case by analyzing how American law functions in terms of the ABC’s . . . Antecedents-Behaviors-Consequences. Firstly, however, he should define his terms.
An antecedent is an event preceding a behavior, an event that becomes the occasion for that behavior to occur. A behavior is an action by a living organism upon its environment. A consequence is an event following a behavior, an event that influences the future strength of that behavior. It is vital for understanding to recognize that antecedents derive their power from consequences. Having defined his terms, he now can ask, How does American law function?
ANTECEDENTS: Societally, human conflicts act as antecedents or prompts for lawyers and their agents to pass a myriad of continually changing laws and regulations amounting to “Lawyers’ Full-Employment Acts”. Individually, human conflicts act as antecedents for lawyers on behalf of clients to file lawsuits . . . many trivial if not totally unfounded. It is in the self-interest of American law to create and exacerbate human conflict not to resolve it. As the saying goes, in a town with one lawyer the lawyer starves; in a town with two, both feast.
BEHAVIORS: On a societal level, elected politicians pass an increasing number of laws and unelected bureaucrats draft an increasing number of regulations. On an individual level, tens of thousands of plaintiffs file tens of thousands of lawsuits against tens of thousands of defendants.
CONSEQUENCES: Social, political, and economic firestorms that destroy a nation. Historically, lawyerism represented a major factor in destroying the Roman empire.(5) Today, the American republic is its victim. With hundreds of thousands of often self-contradictory laws and regulations, it has turned America into a nation of criminals, witting and unwitting. It has pitted individuals against commercial enterprises; commercial enterprises against other commercial enterprises; and individuals against other individuals.
Who wins? Lawyers. For them, the consequence is positive reinforcement . . . profit, power, and position.
Who loses? Society. For the rest of us, the consequence is negative reinforcement destroying the societal and individual good upon which lawyerism feeds.
Part One described the Law of Effect [B = f(x) under c]; Context and the ABC’s; and the first element in the equation [(-4) + (4)] = 0. Part Two describes the second.
Plus Four: Resolving Problems in Living As previously stated, from an historical perspective, a prosecutor justifiably might charge that lawyerism is killing America. Consider the legal cases against asbestos . . . cases riddled with thousands of instances of documented fraud. These cases and others similar have bankrupted some of the largest commercial enterprises in America thanks to greedy, unscrupulous lawyers playing to gullible audiences in receptive judicial theaters of the absurd.(6) American industry now spends more on litigation than on research. Lawyerism has become a primary factor driving American industry offshore with the loss of millions of jobs.
If the charge is true, how do we change American law? The answer . . . and the only valid answer . . . lies in adhering to the scientific guidelines of specificity, objectivity, and accountability. In turn, adhering to these three guidelines requires adopting the following scientific approach: 1) Define the problem. 2) Target a goal. 3) Design a plan then put it into play. 4) Measure the consequences. [For a detailed description, see Chapter 8 in the novel, Inescapable Consequences (www.inescapableconsequences.com).]
PROBLEM: American lawyerism . . . an excess of legalistic behavior in America.
GOALS: To have a legal system that is ethical . . . one that serves the best interests of society. As is government, a legal system is necessary, but both should be limited. Ideally, they regulate behavior for the benefit of society and its citizens not lawyers.
Operationally, plaintiffs seek legal advice in order to attack someone else. Defendants seek legal advice to defend against attack . . . civilly by civilian plaintiffs or criminally by governmental prosecutors. Often, the seeking-behavior occurs under circumstances (stress) eliciting cognitive, emotional, and physiological distress (negative strain). The legal system should provide a socially-responsible, rapid, consistent, just, and fair resolution of disputes . . . civil and criminal. If the system is limited and ethical, society wins. If unlimited and unethical, society loses.
Given free rein, a legal system will take the bit into its mouth and run the societal wagon and itself off a cliff. Harness it through properly managed contingencies, and it will take a society and its members to a better place.
PLANS: No single modification can cleanse American law of its current excesses and deficits. A number of modifications, however, scream for implementation. The current, lawyer-ridden Congress is unlikely to consider even one of them, let alone pass all of them. These changes include the following (For a detailed description, see Chapter 13 in Inescapable Consequences.):
1) Prohibit lawyers from serving in the U.S. Congress. Those who administrate the laws should not create them. 2) In federal cases, implement a system requiring the prominent posting of flat fees per class of service. Some large clients already are moving in that direction.(7) 3) In federal civil cases, require the loser to pay the winner’s reasonable attorneys’ fees and court-costs; thereby, decreasing frivolous lawsuits, especially those based upon “contingent fees”. This policy is already in place in other countries. Hopefully, the fifty states would follow. 4) Place limitations onto federal “class action suits”. Firstly, bring the soliciting of clients under generally accepted, legal standards of practice. Secondly, require every such lawsuit to name every claimant, who must have given explicit, written permission for the lawyer to represent him prior to filing; that permission must state clearly the total amount of compensation demanded, the partial amount that each claimant could expect to receive, and the absolute amount and total percentage to be taken by the lawyers. Thirdly, require all such suits to be filed in the federal court located in the jurisdiction in which the headquarters of the defendant are located in order to stop lawyers from selecting districts favorably disposed toward such lawsuits.
MEASUREMENT: Without measurement, there can be no accountability. Preferably, measurement should be quantitative as well as qualitative. On the one hand, it must be an integral element of any legal system; on the other, protection of clients’ confidentiality and privileged communication between attorney and client must remain paramount.
Should the federal government publicly post wins and losses per class of federal case for each lawyer? No . . . the consequences are counterproductive. Government tried to do that sort of thing with physicians.(8) The consequence? Physicians began accepting only easier cases. Medical behavior came under the control of bureaucrats’ scorecards rather than patients’ welfare. Moreover, attempting to weight results for difficulty is inexact and ineffective.
Maintaining confidentiality and rejecting public scrutiny leave few options. Ironically, the most effective form of accountability may be the legal system itself. Lawyers who violate regulations should face harsh penalties, civilly and criminally. Civilly, triple damages for fee-gouging coupled with possible disbarment, temporary or permanent. Criminally, fines and/or imprisonment for willful misconduct.
Whereas positive control generally is preferable, in this case, negative control may be unavoidable. American lawyers and judges inside the system almost exclusively employ negative control (avoidance, escape, and punishment) against non-lawyers outside the system. Accordingly, using negative control for those under positive control inside the system seems consistent, fair, and just.
Additionally, a non-lawyer-based Congress can establish a commission to monitor legal activity in the federal courts by recommending standards of consistency, justice, and fairness then by measuring the degree to which federal cases meet the standards recommended. The standards can be scientifically-driven, evolving based upon the results of measurement. They neither should be law nor be binding on the system. The commission itself should have no legal authority other than the collection of data; which, like the standards recommended, would be public.
Conclusion Imagine a legal system scientifically-based and scientifically-driven, operating in the interest of the public as individuals and the nation as a society. Imagining, however, is one thing . . . creating, another.
The alternative? A nation on fire consuming itself in flames fueled, in part, by American lawyerism.
1. Jones, A: “No Charge.” The Wall Street Journal, 08 January 2009, page A10.
2. Thorndike, EL: Animal Intelligence: Experimental Studies. New York: Macmillan (1911).
3. See, for example, Finnerty III, JG and Merrigan, J: “Legal Imperialism”. The Wall Street Journal, 28 February 2007, page A15.
4. See, for example, Koppel, N: “Lawyer’s Charge Opens Window on Bill Padding”. The Wall Street Journal, 30 August 2006, page B1.
5. Gibbon, E: The History of the Decline and Fall of the Roman Empire. Initially published in 1776.
6. See, for example, 1) Glater, JD: “Civil Suits over Silica in Texas Become a Criminal Matter in New York”. The New York Times, 18 May 2005, Business Section; 2) Sparshott, J: “America’s Cutting Edge: Innovation Creates Industry, Jobs”. The Washington Times, 01 May 2006, page 12; 3) Sparshott, J: “U.S. Companies Closing Up Shop”. The Washington Times, 17 April 2006, page 1; and 4) Koppel, N: “Arcane Law Brings Conflicts From Overseas To U.S. Courts.” The Wall Street Journal, 27 August 2009, page A11.
7. See, for example, Koppel, N and Jones, A: “‘Billable Hour’ Under Attack”. The Wall Street Journal, 24 August 2009, page A1.
8. See, for example, Kolker, R: “Heartless”. New York Magazine, 24 October 2005, page 42.