University Place

The Rule of Law and the Law in Action

– I’m Emily Auerbach, and welcome to today’s lecture which is part of Eloquence and Eminence: Emeritus Faculty Lectures. It’s a series I started 24 years ago as a way of showcasing retired UW faculty known for their scholarly expertise and their teaching excellence. This series is sponsored by the Division of Continuing Studies, the Institute on Aging, the Anonymous Committee, Wisconsin Public Television, and WMUU 102.9 radio. Stewart Macaulay is the Malcolm Pitman Sharp Hilldale and Theodore Brazeau professor emeritus of law from the UW-Madison, and what all those names mean is a very honored and distinguished professor. Professor Macaulay received his law degree from Stanford in 1955, and joined the UW-Madison faculty two years later. A law school event at Stanford noted that he pioneered the study of business practices and the work of lawyers related to the questions of contract law. And Yale’s Grant Gilmore called him, “the Lord High Executioner of the contract is dead movement.” [laughter]

Professor Macaulay has published numerous papers and books, including, “Images of Law in Everyday Life: The lessons of school, entertainment, and spectator sports,” and “Contracts: Law in Action.” He has won many honors, including a 2004 Outstanding Scholar award from the Fellows of the American Bar Foundation. Please join me in welcoming Professor Stewart Macaulay for a talk today titled, “The Rule of Law and the Law in Action.” [applause]

– I invite you to join me in thinking about the American legal system, but given where I come from, I wanna think about the law in action part of the American legal system. If you just want to take a look at the rule of law and a lot of writing, it looks like a high school book about the American legal system. We have a separation of powers. We have federalism. We have a right of jury trial, et cetera, et cetera, et cetera. Well yeah, that’s good, and I don’t want to say anything negative about that. It’s just that there’s a lot more going on, and it’s that more that’s going on that we wanna turn to and look at it.

I’m not trashing the system, let me push hard on that. I was married to a lawyer who did some wonderful work for about 17 years, sadly died of breast cancer, and good people are involved trying to make life better. The problem for a lawyer tends to be, as she found out, by the time you get the problem, your choices are really making something that’s terrible really bad. Those are the options. Unfortunately, the dean of the law school does not give you a magic wand. This is one of the sad failures of our whole legal education. It would be nice to paste the pages back on the calendar before you met the bad guy, and we haven’t got much of a way of doing that. Rule of law has gone from a concern of a few scholars and a couple of international organizations that tried to use it to push third-world countries into shaping up their legal system into one of those phrases that you really don’t want to search online because you’ll just get an overload of hits. It’s just everywhere in the last, oh what, six months or so. Donald Trump does not abide by the rule of law. No, it was Barack Obama who didn’t deal with the rule of law. I’m hoping to avoid most of that because that really boils back down to who do you like.

And that’s a fun conversation too, but that’s for another time when we get into this sort of thing. There are certain parts of it though that I will, things that are going on that I will take a look at. Now, first thing we gotta do is take a look at this idea of the rule of law. And just to avoid having to say the situation, this is something I’ve never studied or spent much time on. Fortunately I’ve got a lot of good friends at the University of Wisconsin law faculty who’ve written fine articles about it and it’s not bad to know who to steal from. That’s one of the important things to learn in scholarship, I think. Kathryn Hendley says the phrase has become a trendy political slogan around the world, and its contents is what you like. And you can pour things in and take them out depending on what you want. And all right. She also makes the point that no country fully realizes 100% the ideals of the rule of law, and that things change.

Countries go up and down. John Ohnesorge surveyed the literature and he notes that a lot of people who aren’t lawyers have a sort of yes no. Does this country have the rule of law? Click. Check yes, check no. And that’s not how it is. What happens is it’s an aspiration. It’s a goal. It’s something that we push towards, and we can always be better. Bill Whitford is an interesting one to look at this way. He has a wonderful article about the rule of law, and I’m gonna draw on it a little bit. But he shows you there’s a rule of law. He is now the lead plaintiff in a case before the Supreme Court of the United States on gerrymandering in the state of Wisconsin. So I guess if you can go from Madison, Wisconsin onward to the Seventh Circuit then onward to the Supreme Court of the United States, you’re playing with the rule of law, and that’s nice.

He makes the point that where the hard part comes is, you say, well, the king is not above the law, but is within the law or under the law or subject to the law. The idea goes back to when the nobles were fighting for the king with power over taxation, ’cause you run off and fight wars and things like that. It’s quite an old idea. One of the great problems is saying, well, the king, the president, the chancellor, whatever you call the head of state, is under the rule of law is emergencies. There we want him to have discretion. There is an ad that’s on television, and it’s one of those things that you can get in so many ways these days, a woman wanting to be a United States senator from Florida, and she points out that on 9/11 2001, when the airplanes were taking off and crashed into the Twin Towers and into the Pentagon, there was still another airplane up there that was heading towards Washington, DC and nobody knew just exactly what it was going to do.

But hijackers had taken the plane over. She was a fighter pilot at that point. She was parked at the end of a runway with an armed airplane waiting to go and shoot down a United Airlines jet with about 120 people on it. Well, the question, of course it was George Bush who had to decide whether she went and did that. Now that’s what discretion in an emergency comes up with. I think you would be hard pressed to write a law giving the president power to deal with things like that. That would be much more than what I always called the Spike Lee principle of jurisprudence, do the right thing, baby. I mean, that’s about all you can say, isn’t it? So many variables, and again, there’s no good decision. Which of the terrible decisions, consequences, do you want? Fortunately the president didn’t have to decide it. She didn’t have to go up and do it.

The passengers tried to take the plane over, and it crashed in Pennsylvania. “Fortunately,” I say. I don’t really mean that. Again, it was a no-win kinda situation. Well, that’s one of the problems when we start saying well, if they have any discretion, it’s bad. No, discretion is one of those things that pops up. Well, all right, there also must be meaningful access to justice. People ought to be able to say wait a minute, no, or wait a minute, do something. And it has to be meaningful, if you’re testing the rule of law. There must be an agency that has enough independence of the other agencies of government that it can say no. This is the idea of a rule of law. Now some other might add a few things to the Whitford version, which I’ve just been talking about. For example, one might be that’s in a lot of writing, asking whether everything is for sale.

That is, the legal officials actually carry out what they’re supposed to do, or is it the highest bidder? Are we taking bribes? Is that the kind of situation that we have? And if you want the rule of law, no we’re not taking bribes, and this sort of thing. We could also ask if these decisions, these court-like agencies, whatever we call them, come out, if they make the decision, and then what happens? Is it an empty piece of paper that everybody can ignore? Or is there a way of making it matter? This is what we, look. Now… this isn’t my world, rule of law, those kinds of things. I talked with business people, I talked with lawyers, and I had to teach a contracts course. And it kept striking me that it ought to be about modern problems, and it ought to have something to do with what my students would likely fuss with when they got out of law school. This turned out to be something that offended people.

I was the Lord High Executioner of the contract is dead movement, and my wife never forgave Grant Gilmore. She thought that was an outrageous thing to say. Well, all right, I fell into this business of teaching law and society stuff, and as you tend to, you always wanna have your own teaching materials. And Lawrence Friedman, a great legal historian, and I put together teaching materials on law and society, and as a result of all of this, I was asked to give a lecture in the mid-1980s at SUNY Buffalo, and as part of it, I tried to come up with what has all this law and society research taught us? Can we generalize? Can we pull it together? Because there was a study of this little thing and a study of this little thing, and it all should add up to something. Well I came up with seven propositions.

And I’ll drag three of them out here because we can’t go on and on. People do, but I don’t. I’ll try. Three of them, one, and they’re obvious. I like propositions summing up scholarship that turns out to be obvious and common sense. The ploy, of course, is to make it be exciting because the world really is shaped like a parallelogram. Then you’ve really found something. Okay, law is not free. Boy, there’s a surprise. Two, people are not puppets on the end of string. They cope with law. Three, law is one of many normative and sanction systems, and it’s not neatly harmonized with all the others. Or as one anthropologist who I like, put it, “Law and society, like most of life, is very messy.” Okay, law’s not free. Resources are limited. Somebody has to make some choices. A simple example brings it home. Think of the Internal Revenue Service. I suppose, potentially, almost every one of us should be audited. Every American citizen who has income, I mean, you have to have income, you have to pay taxes I guess, but every American citizen who has income should be audited.

Well that’s not gonna work. All of our taxes would go to pay auditors. It just isn’t a workable kind of thing. You have to have a strategy. Where are you going to act? Who are you going to look at? And that opens the door, of course, for discretion, and it also opens the door for people to influence the choice where some folks get audited and other folks don’t. I mean, that’s the problem when you start saying we’ll apply the law some places and not others. Who says? How do we decide? There’s the discretion problem. There’s a study of a Detroit police, and I’m sure it’s ancient history now. What do we do with prostitution? You know, it’s tough streetwalkers, this kind of a thing. Well, essentially what we do is not in the wrong place became the idea. If a streetwalker should not be out in front of luxury hotels, the fancy restaurants, places like that, if she was out there and plying her trade there, the police would pick her up on what was then called a disorderly person’s investigation.

They’d keep her overnight, she’d lose a night’s wages, and they’d say don’t go back there. And, you know, it worked… in certain areas. But notice what that says. It’s okay every place else. Well, there’s a choice that’s being made. Where are the police in Madison? Well, do they drive past your house every hour? Every half hour? Once a year? What is the situation? And we have an isthmus, of course, between all the lakes, so a police car up in the northeast side is not gonna help you very much in the far west side. There is a whole business of having to come up with a strategy. It’s where you are and so on. But there’s your discretion comes roaring in on that. Okay, not so exciting perhaps.

Yes, there’s discretion. It has to be exercised. If it’s too far out of whack, the political process will intervene, all right. Then we turn to the more modern problem. Individual police officers have discretion in their dealings with members of the public. They can handcuff, hold people while they investigate, and even shoot members of the public under certain circumstances. True. And that’s some discretion that bothers people today. Me too. Frank Remington, distinguished Wisconsin law professor, used to say if you wanted to understand the criminal law, you should read the statutes and those kinds of things. But you should also ride in a squad car on a hot summer night in a big city. That was a lesson. And indeed he arranged ride-alongs for some law students. Scariest thing in the world they were ever put through. Much nicer to read law books. They don’t bite. Well all right. Police need discretion to cope with emergency situations where they, other members of the public both are at risk.

There are standards and statutes, departmental regulations. Police typically receive training in what they can and can’t do. And sometimes they’re killed. Sometimes they’re wounded, seriously injured when they’re confronting people who are often armed, dangerous, and high on drugs. Have to do this. And we have to recognize that most police most of the time behave in a professional manner and are not infrequently heroic. All right, I’ve said all that. The however is obvious. Increasingly, we’ve seen videos of just very questionable behavior. And some videos, there’s no question, outrageous behavior. The story begins with Rodney King in 1991. He was a black taxi driver who didn’t stop when Los Angeles police tried to pull him over. Four white police officers managed to stop him, and they beat the daylights out of him after they had him restrained. A person who lived nearby was out on his balcony with a motion picture camera and filmed the whole thing and gave it to station KTLA-TV.

And it then, as we say now, went viral all around the world. This was shown. To make it even better, many Los Angeles police got on their police radios and did their own commentary on the film, with every bit of racist language you could ask for. Okay, here we’ve got this kind of an event. The officers were tried in a state case, acquitted by the jury. There was a federal case brought. Two of them got a conviction. People were not all that satisfied with it. King won a large damages award. He became famous because of his comment that asked why couldn’t we all get along. You may remember that one. Well, many people today carry the kind of phone where you can film motion pictures and so on. And guess what they film? White police beating or shooting blacks.

There are a lot of those films, and they come roaring out at us. One of the problems that we have looking at all of this is are the films misleading? They cut in sort of at the middle of the show or the middle of the action, obviously. You have to see something happening so that you’ll film it. Well that means you’ve missed the opening move. There’s the problem with the films. Now sometimes there’s no problem. I don’t mean to say every film. At first, no prosecutions, then prosecutions. Juries won’t convict. We’ve had a case with a judge without a jury. He said burden of proof wasn’t carried. You remember we’ve got this criminal burden of proof beyond a reasonable doubt. All right. There’s great debate. Black lives matter. Several black professional football players have made themselves famous.

I suppose I don’t have to go through all the details of Colin Kaepernick and Eric Wright and all of this. Do we kneel for the national anthem or not? And then we lost all the white police black victims, and now we’re worrying about dishonoring service men or some such thing, or service persons and so on. Police organizations are demanding that police get support. The United States Deputy Sheriff’s Association sent out a fundraising letter. Urgent, with the radical anti-cop movement sweeping the country, horrible ambush cop killings rising at staggering rates, the constant threat of ISIS-inspired terror, your state and local law enforcement officials are literally under attack. They need your help. Well, this doesn’t sound to me like something that’s gonna get solved very easily. There was the idea, oh we can solve this. Let’s put body cameras on all the police. Wouldn’t it be nice if that just, smile, you’re on candid camera. If you’re old, you’ll remember that phrase.

Okay, the police will act differently. Well we’ve just had a big study. They don’t. It doesn’t seem to deter people, partly ’cause they think they’re right in the way they do these things. Law is not free. Law then leads to sending out one or two police to have to try to maintain order to cope with all kinds of things, all of these kinds of things. This then leads us to civil rights violations, and it leads us to a crisis of legitimacy. So, what’s the solution? Ten, twenty years I’d love to have one that works better. Wouldn’t it be nice if a little body camera would’ve just done it? But it won’t, and it’s really something we’re going to have to work out. And I don’t see it as a quick kind of thing. Our criminal law is supposed to offer all accused of a crime a jury trial where guilt is proved beyond a reasonable doubt. Well there are trials.

There are appeals, but the system is set up to minimize the number of them. OJ Simpson and Bill Cosby have money, and they get trials. Oh boy do they get trials, showbiz kinds of things. Most people get a plea bargain. And detectives are trained to interview suspects seeking confessions, and they’re very good at getting them. People wanna tell their story to the sympathetic person. Well, they wind up confessing. But the problem with the thing is, yeah they say they did these things, but there are the things, and then there’s the crime. And maybe they didn’t do all the things needed for the crime, but they still confessed to the crime in the plea bargain process. There’s the problem with the situation. We’ve had innocence projects at various schools, and we have one I’m very proud to be associated with, a terrific kind of thing.

And with DNA, they’re able to find various kinds of mistakes. But the problem is, of course, there are cases where’s there’s no DNA, but the kinds of procedures that they went through were the same procedures that produce this. People are very bad about identifying strangers. You saw him once under great emotion. Can you pick him out now? Well, we’re not that good at it, and mistakes come up with this. Alright, on the civil side, similar kind of thing. In theory, you can go and have a breach of contract suit, sue all kinds of people. Well, Gross and Syverud say the function of trials in our system is not dispute resolution, rather the real function is to deter other trials. Takes forever, and you have to pay your own lawyer, and even when you win, there are lots of ways of sidestepping judgment and doing all of these kinds of things.

Moreover, if you have a long term continuing relationship with a person on the other side, you’re probably gonna lose it as part of the price of the lawsuit. It’s been said we bargain in the shadow of the law, but if you’re dealing with a large organization, essentially they have a price they will pay for certain things, and that’s about what you can get. There are devices to finance lawsuits. It’s around. But it’s hard to claim that we have easy access to justice. Now, it’s a widespread notion, and last night on the airplane I was coming back and talking to someone, and the person said, “Oh, it’s terrible that Americans are so litigious.” That’s just something everybody accepts. Except all the data points the other way, and the number of trials is going down so rapidly we have a whole line of research called the vanishing trial. Well, maybe that’s good. It means the world is a happier place because the things that used to send us to court are all gone.

Wanna bet? Maybe, but I suspect not. And of course there is this whole business that we get divorces and we have kids and there’s support and there’s custody. That’s not one that’s gonna go away, and that’s gonna be a very hard one to deal with. Now we have done better when we’ve had both class action lawyers, state and federal agencies, and they’ve been able to cope with certain kinds of things. Well that’s my next thing. People cope with the law. Let’s talk about the, one of the things that happens is… the people have an attitude that they ought to comply with law. Generally if you ask them questions, you’ll get very high, 78, 80% of people say even if it’s a law you disagree with, you ought to obey it. That’s the appropriate answer. Well, is that what they do? Have you driven from here to Milwaukee? That was one I always liked to try with my class. If you wanna drive from here to Milwaukee on the freeway and you’re going to be absolutely perfectly right there on the speed limit, how many people will pass you? And of course the class being young 20-year-old law students comes up with the answer you would expect: everyone. Isn’t that the notion?

Seventy miles an hour means not too much more than that, and how much is too much? That is to be worked out in a case-by-case basis with discretion. See, I’m back there again, one of these things. Well that’s traffic laws and those sorts of things. How ’bout taxes? Oh, we pay our taxes. And of course part of the reason we pay our taxes is, for many of us, it’s all withheld anyway, and how much leverage have you got? Not for everyone and such. But there are articles about nannies and the income tax law. Now this was something I didn’t know about until I started looking into this one, and I find it quite amusing to me, or maybe shocking, I don’t know. You see, you pay the nanny in cash, and she probably is okay to be in the United States, but not okay to work, and you don’t deduct anything, and then she doesn’t declare it as taxable income, and they all lived happily ever after.

And I didn’t realize this problem. And then somebody pointed out to me there was a woman who might have been a Supreme Court justice, and whose husband was a Yale law professor, and he was running something like this. A Yale law professor? Well… that’s the story, and this comes up. Well, all right, as I said, people cope with the law. There are all kinds of drugs that have been outlawed, and of course we never would buy anything like that. Who’s kidding? We have the whole story of prohibition, which is part of American culture, which we’ve made into a story of how wonderful it was to be in Chicago dancing to ragtime music and drinking bootlegged scotch.

This is a story. I have no idea how much truth there is to it, but it is part of our culture. Well, that leads us to the story of marijuana, which is, to me, one of the fascinating kinds of things. It’s illegal, except not in Colorado, and California’s in the transition. And then there are about, what, 10 states or so that if it’s for medical use it’s okay. Well, I’m a little depressed, so I have a medical problem there. This is one of the problems. This shift that’s taking place going from this evil weed into something that’s gonna be, will Amazon sell it? Or will that be their Whole Foods subsidiary that will sell the thing? It’s fascinating. And we’re learning about the fact that there’s a whole industry that exists.

It’s illegal, but that doesn’t say it doesn’t exist. And there have been articles in the New York Times about the transition in California where they start learning about marijuana and how it’s distributed, where it is. And, then we’ve had the great fires that were in the Napa Valley Wine Country which ruined a lot of the wine, but also ruined a lot of the marijuana. And suddenly this stuff becomes available, because it’s in this transition place in California. It isn’t illegal. Now things that were kept hidden are coming forward. A great deal of effort of law enforcement has gone into trying to stamp out marijuana. Hasn’t been 100% successful, obviously. Again, people cope with law, and we have this. They also, coping– We have corporate lawyers who are very good at coping with laws that bother their clients. One of them, as a contracts teacher I was fascinated with it, master supply agreements. And this is like Boeing buys wings and wheels and all kinds of good stuff like that from just this large group of suppliers. Boeing writes the great treaty. To call it a contract is kind of stretching things a little because the choice you have is do you wanna make all the money supplying wings to Boeing? There’s your choice. If you’re gonna do it, you’re gonna do it our way. That’s the master supply agreement.

And they’ve evolved over time into documents that ward off any possible rights of the supplier to hold Boeing in the courts. The problems between Boeing and the suppliers will be handled someplace else, not the courts. That’s what a master supply agreement does. Well that, if you worry about Boeing and John Deere and Harley Davidson and stuff like that, good. Well, I’m glad you have those contacts, and I hope it gives you a nice life and such. But the one that hits most people is the arbitration clause. They’re everywhere. They’ve gone from something, 25 years ago, no one had ever seen one of these things, and now, whatever your phone, you’ve got an arbitration clause on your phone supplier, your Visa or MasterCard. Oh you’ve gotta arbitrate that one. Your employment? Sure, got an arbitration clause there. And just one after another after another that, all of us.

It is perfectly possible to have arbitration schemes that are better than the court’s, perfectly possible. But is that what we’re getting? Part of the problem is, no one knows, because the key thing arbitration gives, the large companies that use these things, is their disputes and problems vanish. Newspaper folks can’t get at them. Nobody knows what happens. Now in the manner of being a law professor, I don’t want to bother you and fool you into thinking that I’m not a law professor. I’ll take one horrible example, an “n of one,” as they sometimes say, and tell you one horrible example and then sort of imply it might be typical, and we leave it at there. Isn’t that the way nonsocial science works? Something of that sort. But this one’s too good to throw away ’cause it’s fun. Gateway Computers, delightfully from what they did in this case, I’m happy they’ve gone away.

Couldn’t have happened to a nicer bunch of folks. But their whole image, they were in South Dakota, and they had cow spots on their boxes, and you’re getting a computer from down-home folks that you can really trust. There was their image. Do you remember Gateways? Okay. They set up an arbitration scheme. They were the ones who got us into all this sort of thing. You couldn’t have discovered the arbitration clause unless you really were a lawyer or somebody seeking it because you didn’t get it until you got the owner’s manual, which came in the box with the computer, and you didn’t get that ’til you’ve paid your money and you’ve bought the computer.

And you of course, always when you buy any product, immediately take out the owner’s manual and read it cover to cover, uh huh. In fact, in the computer world, at least in my family, the more you know about computers, the less likely you are to read a manual, because that shows weakness, you see. You were supposed to be able to do all this without reading the manual. So if you really wanted to hide something, where’s the best place to hide it? On page a million and 72 of the Gateway owner’s manual. That’s where it was. Okay. The clause says that the arbitration would be governed by the rules of an international association based in Paris, France, uh huh. But the rules were just incorporated by reference. I mean the buyer had to find them for herself, okay. But if you did find the rules, what were they? The consumer was to pay a fee of four thousand dollars to start the process. How much does the computer cost? If the consumer won, she would get two thousand back. Whoopee, you’re all heart. If the consumer lost, she got nothing back, and she owed Gateway its lawyers’ fees. I’m not making this up. (laughs)

The arbitration was to be held in Chicago even if the consumer lived in Seattle, San Diego, Miami, or Portland, Maine. Just getting to Chicago and existing there made it a silly thing. This is dispute resolution? Come on now. This is a joke. Paul Carrington, who was a professor of Vanderbilt and one of my friends, wrote an article on why the lawyer who did this should be disbarred. (laughter)

My own view? Right on Paul. But he wasn’t disbarred. He became the folk hero, and he went around to various meetings telling people how they could get arbitration clauses. Well, okay. Now I say again, doesn’t have to be bad. You could set up perfectly good arbitration clauses, but we don’t know if anybody has set them up because the game is to keep it all hidden. We may have wonderful arbitration. We may have horrible arbitration, but since it’s all secret, who knows? All right, law is not the only normative or sanction system in society, or again as my students put it, law is not the only picture show in town. The last one of these. We have all kinds of institutions that take on functions that the law normally takes on when people want to control them or have more of them.

There are trade associations that set up rules for the people in the association because you can’t wait for the legislature to come up with the rules. They supply the kind of mediation arbitration that makes a lot of sense, and that’s where you wanna drag in somebody who really knows the area. In our trade, is this the way to do things? If that’s the question, and we’re talking about people in a trade, then the arbitration makes perfect sense as a way of handling the problem, much better than a jury of 12 people, or six people, because they’re not biased. That means they don’t know anything about this. You want it the other way around. You want the people who really know, and you can do this kind of thing. We have private police all over the place, as those of us who follow things like the shooting in Las Vegas learn.

The casinos and hotels have armies. It’s the best way to put it. Some of them are armed. Some of them are simply there to answer questions, a great big group. One got shot as part of that one, as it handles. There is one thing that happens that I start nudging towards the other side, because remember another kind of organization that exists is called organized crime. Yeah, they have norms. Believe me, they have plenty of norms. They’re famous for it. And boy they have sanctions. And they do compete with lawful activity. But in between, you have lawful groups, large corporations. And we have this new idea of everything is gonna be quantified, and what you’re gonna do is to make sure your employees are really working. As one of my sons pointed out to me, Dilbert has Wally. Wally is the engineer at Dilbert who’s a genius at not doing any work. He’s always evading work.

The idea of quantification is you’re gonna tie things really in and see if Wally is showing up and actually producing, lowering costs, or getting more profit, or increasing sales, whatever Wally is supposed to be doing. Well, all right, this is all very good. Very often, top management takes the position this is something for middle management. Don’t bother me with this. That also makes deniability possible. If you do something that’s not so good, well, I didn’t know about it. Sometimes a great innovation is found. It turns out to be wonderful. Sometimes you get the tale of what, to me, and again judging just from what I read in the newspapers and the kinds of bulletins that come in my email, is a totally corrupt corporation called Wells Fargo. How many wicked things can any corporation do?