Law in Contemporary Society

Some Bad Men Just Are

-- By JacksonAlberts - 06 Apr 2013

An imaginative writer can contemplate scenarios as far removed from his own existence as human experiences can differ. Quite often, though, even a creative telling of a NASA mission would fall flat before an audience of fighter pilots. As such, it might be nigh impossible for a first year law student to present an original legal idea about the consequences of big data on the practice of law to an experienced computer scientist, law professor, and practitioner. Rather, I shall demonstrate my current take on whatever minor ideas I had several months ago through an example from my summer position.

I am working for the Helsinki Foundation of Warsaw. Though I had signed up to work on the Polish prosecution of Zbignew Siemiatkowski for cooperating with the CIA in establishing secret prisons, that project stalled out due to political pressure. Now, I am working on a variety of other issues, and am not ungrateful for the expansion of scope. Amongst other projects, I have been asked to do research for a professor’s expert opinion on Azerbaijan’s 2009 Constitutional Referendum to abolish any term limits that might constrict President Aliyev from ruling for life. In examining that assignment, perhaps a word can be said about what data interpretation might mean for the future of practicing lawyers.

The goal is simple: prove that Aliyev is violating some sort of principle of international law by eliminating term limits and establishing a dictatorship. But as I began digging, I found myself caught between Justice Stewart’s obscene aphorism and Justice Holmes’ idiot Vermont judge. Of course Azerbaijan suffers a repressive dictatorship; there are dozens of news reports, NGO findings, and pieces of restrictive legislation that paint a very blatant picture. But on the other hand, nowhere in the ECHR, the UDHR, Azerbaijan’s Constitution, or any other relevant treaty or statute does it say that a people cannot change the term limits of their executive if they follow the proper procedure (USAID monitored the referendum, but somehow a 29 question ballot came out with every initiative passing with +/- .5% of 88.5%, except for the two concerning term limits, which got about 92% support).

If statutory authority cannot be found, the lawyer next turns to precedent. Most presidential democracies have term limits, but plenty of countries ruled by a “president” do not; to use term limits to define democracy as evidence that Azerbaijan is not one is self-referential. The professor I am researching for suggested I examine functional presidential democracies, “such as the United States and Israel.” The best example I have found of a functionally democratic presidential system is France, and that is only semi-presidential. As it turns out, there has been a rash of overturning term limits in the past two decades, including Belarus, Venezuela, and Tunisia. The evidence as a whole supports the professor’s point that term limits are integral to a presidential democracy. But beyond a comparison of Belarus and Colombia (which found overturning term limits unconstitutional), what analogue to good case law exists? Of course I could go with the equivalent of a string-cite and list the countries without term limits and those with, and it might make my point. I do not think that the best evidence imaginable.

The University of Illinois’ Comparative Constitutions Project promised me something closer to what I was looking for. They have been attempting to compile every constitutional event since 1789 using over 650 data points. The work is exhaustive: many constitutions need to be translated, and the questionnaires are filled out by hand. Seven years on, the CCP is only nearly finished. The database is extremely difficult to use, but did yield one relevant data point for my work. 59% of current constitutions contain term limits. Still, that is hardly a great statistic. A little better evidence that the 41% are not democracies could be found by cross-referencing that internal data point with others, such as whether those constitutions contain guarantees of a right to a fair trial, or even whether the death sentence is constitutionally prohibited. Even better results could be had by use of “hard external” data points, such as whether a country has a national holiday devoted to a living person. By layering on “soft external” data, such as the country’s corruption perception index, I imagine I could reach a statistic I could damnably lie with, in service of the truth.

What is considered the golden age of the Supreme Court was dominated by two very different personalities: Justice Holmes and Justice Brandeis, who nevertheless maintained a historic friendship. The former, as demonstrated in “The Path of the Law,” believed that law could be boiled down to a very simple set of principles. “The reports of a given jurisdiction in the course of a generation take up pretty much the whole body of the law, and restate it from the present point of view.” The latter pioneered the “Brandeis Brief,” two pages of legal argument and ninety-eight of real-world analysis.

I suggest that the time is ripe and the tools are present to combine the two perspectives. The common law, the wording and outcome of decisions, are in fact part of the real world, and stand to be analyzed. They are not the beginning nor end of reality, but certainly the penultimate point for a lawyer’s work, just beyond the facts at hand. This will by no means eliminate lawyers, merely provide them with a tool. It may even make the playing field a little more even between pro-se litigants and corporate lawyers. When no statute exists on butter churns, and the Supreme Court has yet to mention them, a fool might dismiss the case, an average jurist might go with his gut, and Justice Holmes would examine the spirit of the law as a whole. The average jurist would suffer much less dyspepsia with less random precedent cited than a cohesive analysis of his peers.

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r4 - 14 Jan 2015 - 22:23:38 - IanSullivan
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