Features > November 14, 2005 > Web Only

Why The Law Is In Shambles

An interview with Chicago labor lawyer, Tom Geoghegan

By Christopher Hayes

Tom Geoghegan

In an age characterized by a surfeit of punditry and a dearth of insight, Tom Geoghegan is a rare gem. A labor lawyer, essayist and author of three books, Geoghegan has opened the door onto a universe of social, legal and political problems that routinely escape the notice of the cable-news talking heads and big-city editorial pages.

Reading his work, one realizes that while the chattering classes have been arguing over how much to water the lawn, the entire house is burning to the ground. In his first three books, Which Side Are You On?, a memoir of his time as a labor lawyer during the Reagan years, The Secret Lives of Citizens, a meditation on the decline of civic involvement, and In America’s Court, a first-person odyssey through the dysfunctional criminal justice system, Geoghegan writes about the law with passion, intelligence and a tragicomic sense of humor. His latest work is The Law In Shambles, a pamphlet from Prickly Paradigm Press. In just over 100 pages, Geoghegan offers a bracing critique of the current state of American jurisprudence. He sat down with In These Times in his Chicago law office to discuss tort law, wounded citizens and the future of social democracy.

So, why is the law in shambles?

With the increase of inequality, people in this country experience the world as more and more arbitrary and they don’t see a connection anymore between their effort and reward. Because of this, we are not going to be able to sustain the legal culture and the respect for law that we used to have. People see themselves not as citizens, but as victims, so there’s less civic trust, more people dropping out of the system. And all of this has an enormously negative impact on a country that thinks of itself as a majoritarian democracy.

Another way to say this would be: predictability is the essence of the law, but more and more my clients see the world as meaningless and arbitrary and they expect the law to be that way too.

It hasn’t always been that way?

Thirty years ago people went to unions and they had their rights protected outside of the courtroom in grievances and arbitrations. The collapse of labor unions is attributed to globalization and there’s a great deal of truth in that, but it was as much for legal and institutional reasons as it was for economic reasons. There are countries, like Germany, that are more exposed to globalization than we are, yet have gone in exactly the opposite direction. People’s rights are more predictable in Germany now than they were 20 years ago because they’ve got more works councils. Their institutional and legal systems drove them in a different direction than ours has.

These changes we’ve seen in our legal doctrine, particularly the decline of unions, have severely undermined people’s ability to have the trust they need to participate in the political process. They’re too wounded to be citizens. This has an auto-catalytic effect because the more people drop out because they can’t be citizens, the harder it is for the rest of us to do it. So we end up on these talk shows screaming at each other because we’re broken as a people. We’re half a body politic.

There’s a line in the Symposium, where Aristophanes says, “What is the tragedy of the human condition? We’re in two sexes instead of one.” The tragedy of the American condition is that we’re two nations, one of which is still trying to participate in the political process, holding on to these old civic values, and the rest, not quite the majority, but soon to become the majority, saying, “We’re not capable of doing what you do.” That’s what the book is about.

As you describe it, the way this rending of the civic fabric plays out in the legal field is that now everything is tort. What does tort mean?

Tort law characterizes the citizen as a victim—the injured party has had some random thing happen beyond his control and goes to court looking for remedy. When I was in law school, tort law was mostly about the car wreck at North and Clark Street. The classic trial practice example is: “The car was driving on North Avenue and it runs on to Clark Avenue, etc.” I thought, “Who cares about this? I didn’t go to law school for this.” I just thought tort law was for goof-balls.

I was much more interested in contract law because it has such an elegant structure. The way most people used to experience the law was contract. Contract law protected our expectations to be treated equally, fairly, rationally, justly. Our job tenure depended upon our performance in some way or another that was predictable. Contract collapsed as the way working people experience the law because we don’t have collective bargaining. Then there was also trust law, which you experienced when you got your job and had a pension. But trust law has also collapsed. Now, you’re out of pension plans; there are no trustees to take care of you, or if there are, they screw you. The charitable institutions now prey on you. The student loan companies and hospitals chase people into court to collect debts.

So with the withdrawal of unions and to some extent the withdrawal of government in regulating the workplace and people’s working lives, everyone feels more like a target. And you react to being a target by suing under civil rights laws that are really [designed to address] tortious wrongs. They’re a kind of attenuated versions of hate crimes that have been inflicted upon “You The Employee,” whether it’s age, race or sex discrimination.

When you had a union contract, this would have been treated informally outside of the courts by arbitrators under a system of objective criteria—”were you a good employee or were you a bad employee?” But now, you’ve got to put your grievence into a different mold, the civil rights tort, where you are trying to prove that instead of “you’re not meeting objective criteria,” somebody is out to inflict egregious injury on you for no reason except some subjective motive.

And the rules of discovery allow you to rifle through people’s files to prove that the boss was “after you” for some deep, dark, evil, malicious motive. That makes the system nuttier and nuttier. It encourages expression of rage. And it forces the legal system to litigate the issue of rage, rather than performance.

In the book, you seem to show the same despair with the courts as the tort-reformers and “strict constructionists” of the right. What do you make of the conservative argument that activist judges have hijacked democracy from voters?

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• Reader Comments

  Boy, talk about a timely article. Our new mayor is urging us to vote for Home Rule. Here is a portion of my letter to him dated 11-12-05.

  Friday night I asked you to convince me that Home Rule is a good thing. I also mentioned that I (and I suppose others) feel only at the local level is my voice heard.

  For years I have written letters to our representatives only to receive token responses. This is not necessarily due to their lack of interest, but a fact of life in a day when even the ordinary office worker receives up to one hundred daily contacts by mail, email, fax, phone and personal contact. I wonder if it is even possible to govern at a time when speed and volume of communication seem to continually increase.

  While “special interest groups” are demeaned by the media, it often seems to be the only way to be effective or at least recognized. (I recently heard 47% of the lobbyists for foreign companies and countries are OUR former elected representatives. Most of us have less representation.)

  Posted by whattheheck on Nov 14, 2005 at 8:34 AM

  Dear whattheheck:

  In what city does the mayor encourage home rule--DC?

  Posted by studyholic on Nov 14, 2005 at 10:17 AM

  Hold the cheese - There is no cure for the Spoiled.  If people don’t vote, don’t blame the system, blame the real culprits - everyone who does not vote - shake your finger, throw your purse - get in their face. 

  Now there is a lot of tossing the hot crumpets around here.

  I think if social democracy was really the author’s cure, he’d have a nice link to his book on this Internet and I would be reading it right now instead of making some useless wiseguy remarks.  I believe the web could handle one extra page - he could even Blog it - but, alas, that is no way to get anything accomplished.  But what do I know?  I would publish a book, too, if I were smart enough.. on Social Democracy about uneducated people who don’t vote & getting the educated vote to buy it and read it - hmmm… where is that water trough.. or park.. the dog can’t use the street & keep it on the leash.

  Final remark - and then I must get on with my nonsense elsewhere - “We’ve already got 6 billion people and we have the greenhouse effect and global warming. I think that if social democracy doesn’t survive as a model for treating each other [well], for regulating economic growth, for not having these huge, horrendous side effects, the planet is not going to survive.” Let me see - there is something sandwiched in there - oh, I see, regulating economic growth.  That is such a small topic, such an easy idea to grasp and offer solutions for, I guess I am in the dark - everyone must just read that and think it is like eating a cheese sandwich, why not? 

  However, in my view of systems, regulating economic growth is a tremendous subject.  Huge! And it is all contained in three words… now, I won’t leave without putting my slice of cake on the table to be shoved back into my face when someone else reads this, but… to regulate economic growth, how about this:  the tax code is where all magic happens:  give slight-to-medium tax breaks which make it financially advantageous to be married instead of the penalizing and fix that home mortgage interest deduction - the federal government is subsidizing homeowners & the poorest of us rent.. these real solutions solve of all this jibbly-goosh talk in this interview.  And you got it free.

  All right, I’m out.  Pie me.

  Posted by mattdon on Nov 14, 2005 at 8:15 PM

  Does elitist judicial rule correspond to enlightened despotism?  I hope so.

  Posted by rocco on Nov 15, 2005 at 6:24 AM

  I think we have an even more fundamental problem than what Tom Geoghegan is outlining in “Why the law is a shambles”, but they are close relatives.

  We live with a set of myths — There is: “We are a nation of laws and all are equal in the eyes of the law.” But even more basic: “We have a representative form of government — every vote counts.” BUT, there may be no paper trail.
  
  I look around and see people far worse off than I am (solidly middle class). The 30% in New Orleans who were living below the poverty line are a extreme example.  But we do have something very basic in common. We in the fact do not have political representation.

  We are increasingly becoming a society divided by economic class. The broad middle class, which has been the backbone of the U.S. economy, is slipping down. As it does, those who have been below middle are falling even further. As the author stated they, “...see themselves not as citizens, but as victims, so there’s less civic trust, more people dropping out of the system.”

  As “...one of (those who) is still trying to participate in the political process, holding on to these old civic values...” I am continually disappointed in the choices we have as candidates. There has been so little difference on economic issues that only the (D) or (R) next to the name on TV distinguishes the players.

  Spending is up and we get tax breaks for the wealthy and benefit cuts for the rest.

  The Washington crowd is closely aligned with the interests of the largest business managers. Corporations and politicians say, “Globalization is inevitable and will be good for consumers.” But, The American Jobs Creation Act of 2004 is primarily a way to give business a tax break on foreign earnings. There are no jobs guaranteed in the U.S. (We can retrain.) Corporations and politicians control their own salaries and benefits - by serving on the committees which decide for themselves and each other.

  There is an old joke about the guy who says, “I used to be a liberal, but now I’m much more conservative.” Reply, “Oh, you got mugged.”

  Perhaps a parallel is, I used to be conservative, but now I’m more liberal“ Oh, your pension got stolen.”

  Just as Congress has spent Social Security and Medicare, so have companies spent our pensions. Government “oversight” has consisted of a recently ordered investigation by the SEC into the $31 billion pension deficit at GM.

  Proposed solutions: Cut Soc. Sec & Medicare benefits. Reimburse defunct pensions at about 66%. “Special Guest” status at a sub-minimum wage. (What is less than lowest?)

  How can a union gain clout against a labor pool working at pennies per hour?

  Posted by whattheheck on Nov 15, 2005 at 3:11 PM

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