He is right to criticize the legal system first for avoiding truth and second for valuing efficiency over finding the right outcome. These two things are related, but not very closely. Certainly a legal system that prefers efficiency to the correct outcome is going to on many occasions avoid or miss the truth.
We are equivocating, though, we when talk about truth. I mentioned this in the last post and I want to draw it out more now. There are multiple conceptions of what it means for something to be true. In a basic philosophical sense, truth is a property of propositions such that a proposition is true when it matches reality. The proposition, "The grass is green" is true if the indicated grass is actually green. It is false if it is some other color. This is a very boring definition of truth.
The legal system, particularly juries and judges, are put in the place of verifying whether the grass is green, but instead of walking outside to look at the grass, it prefers to have different people come inside and tell them what color the grass is. The metaphor is a little strained, but it is essentially correct. Judges and Juries can't simply go outside because they are dealing with events that happened in the past. As such, all they have to rely on is witnesses, exhibits, and experts.
But, as I mentioned last time, the court is only able to "know" those things that are brought before it by the lawyers. This is the sort of truth that I am concerned with when it comes to the the law. I don't see the law being concerned with finding out what actually happened in any particular dispute. It is merely concerned with what happened as it is presented to the court.
This isn't the sort of truth that concerns Rosenbaum. As I said last time, he wants the legal system to search for "emotional truth," that is he wants trials to not be about violations of the law, but rather to be about finding the emotional hurt that gives rise to the action. This can be very weird in the book:
Untreated emotional injuries get played out in legal settings all the time. The law becomes the hammer for a wounded person's misplaced rage. Lawyers rename the hurt and the indignity and call it something else--the breach of a contract or the failure to exercise due care--which doesn't at all speak to the underlying grievance. The character of the hurt materializes as a legal injury, even though it began as a spiritual one. But even in this new guise--particularly in this new guise--the griefRosenbaum continues this sort of language throughout the book. The problem is obvious from the first sentence: untreated emotional injuries do get played out in legal settings, but they are not the sole source of legal disputes. But imagining that they are, Rosenbaum spins stories about how contracts are breaches of sacred friendships and commercial litigants want to just tell their hurt to a court. That's fine, except that is not the way it is. Commercial litigants especially come to court in order to get money--to recover the value of their contract. In this way, he tries to force a specific proposition on the world without seeing if it matches. In other words, his theory of what gives rise to lawsuits is not true.
remains. (MoMJ at 49, emphasis in original)
Ultimately, Rosenbaum is right to focus on the lack of truth in the legal system, but he fails by thinking there is a specific truth that needs to be sought out and exposed. What needs to be exposed is the reality of the situation that gave rise to the suit, not the emotional hurt of the litigants.
He gets closer to being right when he talks about efficiency and the distortions it creates. This is the major focus of the six chapter of the book in which he discusses settlements, plea bargains, perjury, and the rules of evidence. I want to talk about each of these at least a little bit, and I'll go in that order.
Rosenbaum is on his strongest ground when it comes to settlements:
In the area of civil law, nothing is more questionably moral than settlements--as conventionally applied and practiced in our legal system. While in some cases they do indeed reflect the best interests and personal wishes of the parties to the action, in most situation they merely serve to silence the story in return for a cashier's check. The reflexive impulse towards settlements has turned courtroom lawyers into backroom negotiators. It has removed face-to-face, direct encounters between the parties. . . . There is enormous moral value in having parties to a legal action sit in a courtroom, surrounded by strangers, and swear to tell the truth to each other, and to the world. . . . (MoMJ at 93-94)I actually agree with that, but those ellipses leave out of a lot. Rosenbaum argues in that paragraph that settlements are immoral because they deprive people of the opportunity to heal themselves by telling their story. That's not why settlements are immoral. They are immoral because they allow tortfeasors or wrong doers to escape public scrutiny. That is the value of having public trials: We get to expose people, companies, the government, to the world and show the wrong that they did. I know that sounds a lot like telling the story, but the difference is that I am not pretending that the telling of the story will work some magical healing on the victim. Rather I do think that public trials force tortfeasors and other wrong doers to accept responsibility and public approbation.
To be fair, Rosenbaum addresses this quite well. I could give another extended quote, but that wouldn't really serve any purpose. Furthermore, he is right to argue against settlements that involve secrecy and silencing the victim, and especially those settlements that are made without an admission of responsibility. So, I generally agree with Rosenbaum on this point, but have slight disagreements about the value of a public trial.
As for plea bargains, he again goes too far with his argument. Plea bargains are the criminal equivalent of civil settlements. I agree with Rosenbaum that there are certain problems with plea bargains generally, but those problems are largely the same problems with settlements. Specifically, plea bargains are designed to make "justice" efficient and as such plea bargains avoid trials which are useful for discovering what actually happened.
Rosenbaum goes too far with his argument because he imagines in the first place that criminal law is primarily concerned with crimes that result in some injury to a victim. This is manifestly not the case. The criminal justice system is overburdened in part because it is overly concerned with things like possession of marijuana or drunk driving where there is no actual victim to the crime. There is really no problem with a plea bargain in a PoM case. Unless there is a search issue (you know, one of those pesky technicalities), the defendant is going to be convicted. The only question is the sentence they will receive. In those sorts of cases, it is best to figure out a plea and move on with your life.
Thankfully victim crimes are relatively rare in our country. We could spend some more time focusing on them, though.
Ultimately, the remedy for both plea bargains and settlements is not to reform the legal system to allow for complaints about emotional hurts, but rather to increase the number of courts and judges that we have so that more can be exposed through trials. Judges can also limit the amount that litigants can hide in a settlement. A judge could demand that a corporation admit responsibility or refuse to ratify settlements that remain secret or gag the plaintiff.
Rosenbaum is rightly concerned about perjury. I don't have anything to add to his argument really. I just want to mention that in this chapter he is overly concerned with lying before the law and the system's failure to punish perjury, but he later decries specific provisions of law that are designed to reduce perjury. (I'm not finding them right now, but will get back to it.)
Finally, Rosenbaum refuses to acknowledge the utility of the rules of evidence and again goes off the deep end:
[E]vidence rule are frequently invoked to exclude testimony that is deemed "irrelevant," "immaterial," "not credible," "cumulative," or "hearsay." . . . These objections, aside from being rude and insulting, also limit the story and rob it of all the nuance and emotion of the human experience. What kind of legal system says to people testifying under oath, right in front of their faces, as if they are not there hearing the interruption, that their words are "irrelevant," or worse, "not credible"--simply not to be believed." (MoMJ at 108)A pretty good one, I think. Like his complaint against Rule 12(b)(6), this problem with the rules of evidence is self-defeating. In the first place, let me say that I have never heard of a "not credible" objection. Rosenbaum is a professor at Columbia, or he was at the time of writing this book, and thus it is possible this is a local rule, but I doubt it. Credibility, after all, is a quintessential determination of the finder of fact and as such, I seriously doubt any objection on credibility grounds would ever be sustained. Nonetheless, even if we had Rosenbaum's ideal justice system--one in which emotional harms are addressed and not simply physical injuries--then we would still need to restrict witness narratives to relevant information. Supposing someone comes to court to tell a story about a betrayal that lead to a breach of contract, you wouldn't want them to talk about the dog they owned as a child. It would be irrelevant.
Rosenbaum also argues against the rule that prohibits the introduction of character evidence. I personally think that is a rather profoundly moral aspect of our legal system since it is designed to ensure that a person is punished for their acts on this specific occasion and that they won't be punished for those things that they have done in the past. Taken to the extreme position, this rule respects free will by ensuring that prior bad acts don't influence the jury.
Finally, Rosenbaum also makes a rather strong argument about zealous advocacy. Generally, I think he's right in that zealous advocacy requires the attorney to protect the client at the expense of other values. I'll have more to say about this later as it ties in fairly neatly to my critique of the law.
