Law in Contemporary Society

Law as a Labyrinth for the Indigent

-- By SoYeonKim - 14 Feb 2012

Daedalus' edifice imprisoning the Minotaur was at least a unicursal labyrinth with a single non-branching pathway leading to the center. Theseus only needed a ball of string to find his way back out. The poor are not so fortunate. For them, the law is a multicursal maze designed to be as difficult to navigate as possible.

Law as a Labyrinth

It is near impossible for laymen to access and make sense of vast bodies of statutes, ordinances, and regulations without legal assistance. The adverse social impact of the difficulty of understanding the law is aggravated by the rule of ignorantia juris non excusat. This legal principle may have made sense in the past when almost all laws proscribed conduct malum in se. Even an amoral prohibition like tax laws had a long history of acceptance as being part of a social compact in which benefits by the government were offered for a fee charged to citizens.

What has that to do with anything?

However, an overwhelming array of laws now proscribes conduct malum prohibitum, outlawing morally neutral acts with seemingly weak justification. Moral compass no longer protects the uneducated poor.

This all seems to depend on the idea that large numbers of poor people are either prosecuted for breaking laws they didn't know existed, or are held liable for damages as a result of legal rules they didn't know about. These don't seem to me, as I said last time, the primary or even significant forms of the law's bias against the poor. Some evidence, or even examples, would be helpful.

Defenders of this archaic doctrine say that it is a rule of fairness, preventing people from avoiding the consequences of their crimes by claiming ignorance.

I don't understand why the principle is archaic because it's old. Indeed, there's no complex society anywhere functioning on the basis that the obligation to obey the law always depends on actual knowledge.

To me, it seems more like a rule of economy in which the system punishes those who commit crimes in a structure where precise knowledge of the law is impossible and presumes guilt because the alternative would require the court to make time consuming determinations as to the merits of people’s defenses.

Given the large number of criminal statutes with specific mental state requirements, it's hard to see what this adds. Does it somehow reduce the justice of a conviction for robbery that the defendant intended to commit theft with violence or menacing, but didn't know the number of the penal code section being violated? Or that the defendant knowingly submitted false mortgage application paperwork for an FHA-guaranteed loan, but didn't know that this constituted federal mortgage fraud?

The perpetuation of this rule is condoning violation of the fundamental right to fair trial for sake of modest economy or a distorted sense of fairness.

Whatever the rationale behind this rule, it has disproportionately targeted the poor. The rich are less affected by the difficulty of knowing the law because they are financially capable of hiring lawyers to tell them what is illegal ex ante, and at least diligently represent them ex post. This problem is compounded by the courts’ inability to accommodate the poor. Like in Jarndyce and Jarndyce, procedural mechanisms make trials incomprehensible and interminable; consuming what little wealth the poor have at a much faster rate than they did Jarndyce’s estate. To illustrate, the mean time it takes for a federal court to rule on a Rule 12 motion in a civil trial is 130 days and about a third of civil cases take more than a year to resolve, long enough to consume the savings of someone who makes $7.25 per hour.

I don't understand how we know the rate at which a party's wages are being consumed because a litigation hasn't ended. What's the relationship between the time it takes to finish a lawsuit and the wages of the plaintiff?

The indigent are further prevented from meaningfully defending themselves because the courts are not trained to listen to their way of speaking. The indigent speak in colloquial terms and often evoke emotion and convictions to persuade. The courts, trained in the deductive thinking, are unreceptive to this kind of narrative and find it unpersuasive.

But these questions have to do not with the rule that ignorance isn't an excuse, but with every form of litigation in which laypeople, rich and poor, represent themselves. How does that further the argument you are making?

Madison recognized in Federalist No. 62 that “ [laws] will be of little avail to the people, . . . if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; . . . or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow.” But his insight did not change the system. Despite the efforts of David Dudley Field in simplifying civil procedure and eliminating formalized and verbose pleading requirements, subsequent modifications and additions in the Federal Rules of Civil Procedure and state civil codes largely reversed those efforts.

Really? Notice pleading under FRCP is less simple than pleading under the Field Code? Who told you so?

Lawyers as Ariadne’s String

The legal profession should be Ariadne’s string guiding the indigent through the legal maze. This is so because slaying the Minotaur by abolishing the legal system creates chaos and disorder, and rebuilding the labyrinth by remaking the legal landscape is difficult because the indigent are not meaningful constituencies to politicians who monopolize the power to change. However, the reality is not encouraging. There is a massive shortage of lawyers willing to represent the poor. Public defenders only represent those charged with crimes, who represent only a portion of the indigent in need of legal services. Public interest groups are also selective in choosing their clients as they are issue-focused and represent defendants who will further their social agenda. Private lawyers, a shockingly low proportion of whom meet even the 50-hour recommendation for mandatory pro bono work, never represent the indigent against large corporations, their potential clientele.

Never isn't what I said, and isn't right. You're losing precision.

Finally, the Legal Services Corporation, the largest provider of civil legal aid funding for the poor in the country, is the easiest target for congressional budget cuts. Nonprofit legal advice programs nationwide experienced a $72 million cut in funding from Congress since 2010 and the LSC anticipates 393 staff reductions in 2012. All these mechanisms are underfunded and understaffed, and in this respect, Ariadne’s string is too short to be useful.

This makes it sound as though LSC actually functions. You haven't described the real reasons why it doesn't. (Like the prohibition on bringing class actions, or other forms of litigation that would advance the interests of the poor, as opposed to helping individual poor people.)

The Minotaur

Unlike the myth, here the Minotaur is the product of the labyrinth. A consequence of legal illiteracy is the systematic bias against the indigent manifested through higher rates of arrests and convictions, longer prison sentences, and denial of parol. In civil proceedings, the poor are more likely to be found liable because of their inability to effectively defend themselves. It seems that instead of perpetuating a default rule based on a depressing view of humanity in which people will fabricate excuses to avoid liability, the profession should have a little more faith in the legal system’s ability to determine meaningful factors through discovery and trial. Also, by making statutes more accessible and investing in legal education for the masses, use of the ignorance excuse could be kept to a minimum. A trial is every person’s forum to assert that his case is unique. In a reformed system, people will not be held responsible despite the impossibility of knowing the law, but rather, have a chance to prove that they in fact should be excused.

The problem remains an odd choice of scale of generality. That the legal system reflects the pervasive inequality of the society takes little argument: every legal system reflects inequality as it reflects the other characteristics of the society around it. That we are a highly unequal society, oligarchic rather than democratic in structure, is also evident, though it is rarely acknowledged. So the law is inherently reflective not only of inequality, but of the intentional savagery of that inequality: we are kind to the rich and we are at best just to the poor.

But to say that this is primarily the result of the rule that ignorance is no excuse from legal duties, or that legal inequality can be fixed without change in social structure solely by eliminating this principle, present in democratic as well as oligarchic regimes, seems fanciful. It's almost as though you didn't want to complete the thought: legal bias against the poor is an outcome, not a byproduct that can be altered within the system that creates it. Democracy, that is rule by the poor, would produce a legal system with different biases. If we are not to change the social system, we should not expect the legal system to become in any fundamental respect different.


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r8 - 22 Jan 2013 - 20:10:52 - IanSullivan
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