Art Carden  

The Majesty of the Law: Rules Aren't Good Just Because They're Rules

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I'm sure most parents know the horror one feels when one's young child decides to give public nudity a whirl. I was a bit surprised and concerned when I read this from Reason: "Kindergartener Pulls Down Pants, Forced to Sign 'Sexual Misconduct' Confession."

According to the news report linked to by Reason, "The school responded in a letter saying it followed proper procedures and protocols." I know it's probably lawyerese at this stage, but that seems to be the standard excuse whenever a school or the TSA or law enforcement officials do something truly heinous: we "followed proper procedures and protocols."

First, a competitive market for legal institutions would likely recognize that when "proper procedures and protocols" result in a patently absurd outcome, they're probably not very good "proper procedures and protocols." Presumably, there would be enough room for a reasonable interpreter to recognize that this isn't something that needs a "sexual misconduct" classification. That school administrators "are not required to have a parent present for the meeting [in which the confession is signed] unless a student specifically asks for his or her parent to be there" is chilling.

Second, this kind of thing erodes the foundations of legitimate law. If law emerges as a way of solving problems and resolving conflicts, then perhaps it deserves a bit of deference (albeit with thorough review). If law (or "proper procedures and protocols") have simply emerged from the minds of zealous officials and lawyers, then a lot more skepticism is warranted.

In any case of alleged wrongdoing, not merely the defendant but the law itself should be on trial. In a situation like this, I think it's clear that unthinking application of "procedures and protocols"--which are certainly not "proper"--led to a mistake.


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COMMENTS (7 to date)
LD Bottorff writes:

This is why I support the concept of the Fully Informed Jury. When a jury looks at a case, they should not only judge whether or not the defendant is guilty of violating the law, but whether or not the law is proper, and whether or not the District Attorney is properly applying the law.

Vic writes:

In the context of an absurd result like the one in the linked situation this sounds like a good idea. But wouldn't there be a lot of practical problems with putting the law on trial in every case?

1) Would the law have to be upheld unanimously? That would obviously be a high barrier (much higher than getting the law passed in the first place). If not, would the jury decide the issues separately?

2) What is the standard the jury would use? Mere disagreement with the law? A belief that the law is unjust? A belief that the law is unconstitutional? Those are all very different standards.

sourcreamus writes:

This is a side effect of living in a diverse and litigious society.
Parents are always convinced that the authorities have it out for their precious darlings and are willing to sue to protect their kids.
Courts are very willing to hear cases that allege one type of student is being treated differently than another. There is no way of knowing whether the next kid accused of the same offense is going to be of a different ethnicity, religion, or race, so the safe thing to do is blindly follow the letter of the law. It is better to do something stupid than to be sued for discrimination and have to fork over a huge settlement.

ThomasH writes:

It's like the typical lemonade stand incident, the exclusion of Congressional staff from ACA subsidies, or subsidies not being being available on federally established exchanges: regulations have to be applied intelligently. Any one or two cases of dumb application can be dismissed as just that. If there is a pattern, then one has to conclude that they need to be administered by different, non-dumb, administrators or that the regulations need to be modified to make them more dumb administration proof.

Stuhlmann writes:

OK, you lawyers out there, one question. Is a kindergartener legally competent to sign a confession or anything else for that matter? If not, then what was the point of the confession? And for you child psychologists, is a kindergartener capable of doing anything of a sexual nature?

Handle writes:

A problem with Fully Informed Juries is that we should use a different standard to judge the appropriateness of a law than to determine findings of fact beyond a reasonable doubt.

For facts and determinations of criminal guilt, requiring unanimity can be justified, though it still poses lone-holdout problems. But more a single lone-holdout should be required for jury nullification. If 12 out of 12 jurors agree the defendant violated the law, 11 out of 12 jurors think a law is great, but 1 thinks the law is bunk and holds out, should he get a heckler's veto on Democracy and hold out and produce a mistrial and probably a dismissal of charges?

That's too much power for a single person. When individuals do this and it's obvious, the judges will sanction or remove them, and that's perfectly appropriate.

drobviousso writes:

"s a kindergartener legally competent to sign a confession or anything else for that matter? If not, then what was the point of the confession?"

Stuhlmann ->

I'm not a laywer, but I have read enough history to know that show trials and forced confessions are about aggregating power in authority, not justice.

Ergo, your question is irrelevant to those doing the forcing.

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