- The Washington Times - Saturday, April 8, 2006

THE LAW IN SHAMBLES

By Thomas Geoghegan

Prickly Paradigm Press, $10, 142 pages

REVIEWED BY JOHN GREENYA

Sometimes it takes a little book to make you think about the big picture. And if that little book is the product of a big mind, then you stand a good chance of learning something. “The Law in Shambles” is that kind of book. Published by the aptly-named Prickly Paradigm Press, and distributed by the University of Chicago Press, it’s the fourth Purposely Provocative book by Thomas Geoghegan, a Chicago labor lawyer, essayist, and socio-legal commentator who, it seems, writes as much to vent his spleen as anything else.

It must be a pretty big spleen, because in his first book, “Whose Side Are You On?: Trying to Be for Labor When It’s Flat on its Back,” he explained why his heart will always be on the union side of the line, and then he wrote “In America’s Court,” a searing look at the nation’s criminal justice system.

Mr. Geoghegan is also the author of another extended essay, “The Secret Lives of Citizens: Pursuing the Promise of American Life,” which Robert B. Reich, in a New York Times review, called “a sly and ultimately sad book.”

This book is pretty sad too, but less sly, because Mr. Geoghegan, who by now has spent three decades as a labor lawyer, is pretty worked up about the current state of the American legal system. His politics are, unapologetically, of the liberal variety, but he wears them so proudly on his sleeve (though perhaps “on his shoulder,” as in “chip,” would be more accurate), that it’s clear he wants the reader to challenge him, the better to engage the debate.

Tossing out ideas like an agent provocateur of the intellect, Mr. Geoghegan dares you to disagree with him. The result, despite the fact that many of the problems he raises may well be intractable (hence the sadness), is great mental stimulation.

One of the first of the many provocative ideas he tosses out is, he says, a direct result of unions having lost so much power. Mr. Geoghegan writes, “Few workers — under nine percent in the private sector — operate under any kind of labor contract. The rest work under a rule of law known as ‘employment at will.’ That means you can be fired for any reason. Or no reason. Or a bad reason: like the color of your tie. At any time. With no warning. No severance pay. Nothing.”

He adds that when he taught a seminar on American labor law to a group of young Europeans in Berlin, he had to explain employment at will: “For European kids it was too hard to take in. Get fired for any reason? At all? The arbitrary-ness, the unfairness of it, was shocking. It was new to them.”

The result of this sea change is that in today’s America, fired workers now sue under a different legal theory. “I hardly need tell an American what is a ‘tort.’ But in case you are from Greenland, I better define it. In the law, it is a wrongful act — not for breach of contract or breach of trust, but an injury, for which (usually) you ask for some relief in damages. A tort is money for pain. It’s a howl from the roof of a building. It’s a claim for a broken arm, or maybe the invasion of privacy. The point is, when we strip so many people of a contract, some of them are going to fire back in tort.” And one of the biggest differences is that when you sue under tort rather than contract, you get the right of discovery, that most dreaded of modern weapons.

According to Mr. Geoghegan, “It’s hard to exaggerate how big a change this is: everyone in the case has to strip themselves in a sense, take off their clothes, far more now than was the case when I started out in law school. Look at what Paula Jones’ lawyers did to Bill Clinton — and he was a sitting President.” And the problem is, ” … that this tort-type legal system, which replaces contract, is a system that feeds on unpredictability and rage. A white-hot, subjective tort-based system with the threat of ‘discovery’ replaces a cooler, more rational, contract-based one which was modest, and cheap, and kept us from peering, destructively, into one another’s hearts.”

Subsequent chapters deal with what Mr. Geoghegan calls “the flight from trust law”; the disappearance of administrative law (“The Rise of the Whistleblower and Trial Lawyer”); the end of equity as a basis for relief of disputes; and the loss of our faith in the jury system and in judges. The author believes that the result of all these losses is that our judicial philosophy has become a sometime thing, as well as an arbitrary, ad hoc way of trying to solve problems.

“Our judicial philosophy?,” Mr. Geoghegan writes, ” That’s kind of a puzzle. What do lawyers on the left believe? We are a little disoriented ourselves. After all, the Constitution is a blank. It smiles and keeps its secrets about matters which a modern constitution covers. We supplicants come and beg it to say something to us about health or education. Speak! But this Dead White Male thing lies there lifeless. Why can’t it speak?

“Because we cannot amend it to decide anything, we end up experiencing the rule of law as arbitrary. Think of Rove v. Wade. The right has a point in saying that Roe is not legitimate. Let us put aside that in the Constitution there is no right to abortion. There is no right to privacy either — from which Roe v. Wade could be derived, maybe. It would seem Roe is illegitimate. We have tried to settle the issue without any legal norm, or at least one in the Constitution. The people on the right are correct to be outraged.”

“The Law is a Shambles” is replete with passages like that, passages that make you want to pull a reference book down from the shelf to see for yourself if the author is right and you yourself (god forbid) are wrong. That’s one of the main reasons why this book is so much fun to read (and Mr. Geoghegan, for all his seriousness, is a funny writer, to boot). One of the others is that unlike so many writers on both sides of the political spectrum these days, he is not mean-spirited.

You may not agree with all Tom Geoghegan’s opinions — no, make that will not agree — but I suspect you’ll enjoy the mental arm-wrestling. This is the kind of book that you find yourself going back to, over and over.

Here’s his nutshell description of our basic problem: “From 1968 to 2004, for the longest time ever in American history, neither party was in control … if we ever went from contract to tort, it was in our Constitution at this time. From check-and-balance we went to punch-and-smash-mouth. Legislative and Executive tried to one-up the other, and each branch became less accountable to the people. In the end, the Court itself became less accountable, too.” The author believes that if we are to climb out of our present shambles we must return to a true majority rule because that would engender a true rule of law.

Thomas Geoghegan ends yet another provocative book with the plea: “Maybe there is nothing else I can accomplish, for my country or for myself, but to repeat over and over: the law. The law, the law, the law, the law — more and more, we must think about and talk about and argue about the law. If we do so, we may act better than the people we really are.”

John Greenya is a Washington writer.

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