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The Rule of Lawyers
Let me start by telling you a story. Mr. @MattBalzer and I, we make board games. One of these games we call the Presidential Rumble. You play as one of history’s greatest presidents in the midst of a knock-down drag-out election against each other, marshaling characters from the past and laying claim to the symbols of liberty. You get some pretty great things going on; in one game Martin Luther King Jr. named Frank Sinatra to the Supreme Court. In another, Joe McCarthy declared Tecumseh to be a communist. You’ll frequently see the FBI confiscate the Constitution as evidence or the EPA declare the Statue of Liberty to be polluting and destroy it.
I’ve printed up several prototypes too. There’s a company out of Madison, WI called The Game Crafter that specializes in this sort of thing. They’ve got a pretty good racket; there are a lot more people who want to make board games then there are people who will make a living that way. The Game Crafter will professionally print and assemble single copies of a game, so you can get your idea produced even if your only customer is your mother. Really I’ve had excellent experiences with them, excepting one thing.
The last time I tried printing up a copy of my game they flat out refused because my game was referencing real people I may have been legally infringing on their personality rights. Up until that point I hadn’t heard of such a thing, but five minutes on the internet brings up the Wisconsin statue (they and I operate out of WI, so Wisconsin law should be good enough for the both of us.) The law prohibits:
The use, for advertising purposes or for purposes of trade, of the name, portrait or picture of any living person, without having first obtained the written consent of the person or, if the person is a minor, of his or her parent or guardian.
Okay, I don’t have John Hancock’s John Hancock stating that I can use him in my game. On the other hand, the guy’s been dead for a couple hundred years. Shouldn’t the law only apply to living persons like the black-and-white text says? Simply for game design I had already decided I didn’t want living people represented in the game. I don’t want real life political arguments to spill over into the entertainment. Trying to negotiate, I offered to abide by California’s (always an innovator in the field of kookiness) life + 70 standard, but no dice. I couldn’t even get them to agree that George Washington could be a character in a game.
The problem I’m having here isn’t the question of whether or not I was doing something illegal. The problem I have is not knowing. I can read the plain text of the law and say that what I was doing was legal. That doesn’t matter. Anything close to the edge of what the law allows also allows a lawyer to swoop in and sue you. Assuming they don’t win you’re still out a tremendous amount of time, money, and aggravation to fight it off. It’s a high stakes game of chicken, and the winning strategy is to preemptively concede the field.
If the law says it’s one thing, but then, in reality, is something beyond that, then what exactly is the real law? Imagine a courtroom with a mafia don on trial; he’s bought the judge, the jury, the whole works. Is that justice? Obviously not. It’s got all the trappings of justice though; the court, the officials, the jury, they’re all the people who are supposed to decide matters of justice. Let’s take it one step further. Let’s say that on one side of a court case you’ve got a stumble-mouthed idiot, and on the other side you’ve got an insider who knows all the tricks, every jot and tittle that might get him an advantage. Is that justice?
The court seems to think it isn’t. That line in the Miranda rights about having a right to an attorney. But what if that didn’t just apply to a courtroom? What if you lived in a society of lawyers, with lawyers staffing all the legislatures, writing laws that other lawyers will argue the meaning of in front of courts judged by lawyers? What if the law-as-written is also hedged in by a horribly complex Talmud of precedent, which can only be expounded by experts? What if every action you take or fail to take is governed by these arcane minutiae, such that anyone at all with sufficient malice could assault you through the courts, and the only defense you’d have against them is your own team of lawyers?
What if none of that is a hypothetical. Take a moment and reckon about that Supreme Court case. It’s a full-employment scheme for lawyers enacted by a court reviewing the decisions of other courts, and it has all the force of a Constitutional Amendment because of a previous decision by another Supreme Court. Say what you will about the rightness of the decision, there’s nothing in there that even smells like a check or a balance.
The phrase “The Rule of Law” sets itself up in opposition to “The Rule of Men”. But we don’t have the Rule of Law. We have the Rule of Lawyers, who rule us not with the Divine Right claimed by a King, but by being better at manipulating the system they set up.
Published in Law
The question at issue wasn’t the copyright, it was the right of personality. So, for example, if I were to make and market a Scott Walker statuette complete with his Throne of Skulls then I’d be outside the law, even if I’d sculpted the thing myself, from my own memories of seeing him sitting on his throne. (There are exceptions made for news reporting and such, none of which are relevant to my particular case.)
Please enlighten me. As the bloke who set that sucker in order I’d like to correct any mistake, and I’m just not seeing it.
Not a lawyer, but I have to disagree. A drawing is not a photo. It can never be an exact duplicate of the original image. It belongs to the artist and not the owner of the original image.
Here’s a hint – it should be “Your”.
Thanks. Immediately and glaringly obvious when it’s pointed out but utterly invisible to me a moment before.
This is a fairly common belief in all kinds of contexts. Lawyers set up the system for the benefit of lawyers. (Full disclosure: I am a lawyer.) Lobbyists set up the system for the benefit of lobbyists. Politicians set up the system for the benefit of politicians. I hear it all the time. It’s generally not true. Usually lawyers and lobbyists set up the system for the benefit of their clients, and politicians set up the system for the benefit of their voters and their donors. Frankly, as others have mentioned, there is plenty enough in our society to keep lawyers busy (and well-paid) without the need for conspiracies.
However, there are exceptions. The most obvious exception, of course, is the bar exam which creates barriers to entry and limits competition. That is indeed set up by lawyers for the benefit of lawyers. But that’s not what I have in mind. I spent my career as an attorney in the Soviet Socialist Republic of California representing employers. Because the Democrat Politburo in California is entirely captured by unions and plaintiffs’ attorneys, they enact whatever those people want. So they have passed a number of laws that say something like this: “Every employer must post, in a conspicuous location, an explanation of the following 18 employee rights. [Blah, blah, blah] Failure to post is punishable by a fine of $50 – per employee per day. There shall be a private right of action to enforce this provision.”
Now, if some employer does not post this information, or does not post it “conspicuously,” or does not “explain” the rights adequately, then an attorney can bring a class action on behalf of all employees at that business. Let’s say there are a hundred of them. So that’s a fine of $5,000 per day. And it can go back as far as the statute of limitations allows, which is often four years. So now we have a fine of $7,300,000. Plus attorney fees, of course.
If you see a statute like that, you can be pretty sure that the people behind it were the plaintiffs lawyers. No one else benefits. But not something like personality rights. That one was probably dreamed up by Hollywood or some such. Yeah, they use lawyers to get it recognized, but the lawyers did it for their clients, not for themselves.
You’re describing the system as it is, you’re not providing any justification why it ought to be that way.
Why is killing someone with a vehicle more heinous than killing them by, I don’t know, wiring their circuitry poorly?
I already said I’d be willing to distinguish murder and manslaughter. Why should I distinguish between manslaughter and vehicular homicide?
Yea, I didn’t understand “the right of personality” as I had never heard of such a thing before. Yikes! If that was my legitimate battle, I’d be waving the white flag.
I’m not arguing conspiracy; it’s the inevitable result of having lawyers working out the rules. Let me put it another way. When I make board games the rules structure tends to incorporate elements of the rules for Magic: the Gathering. I play that game, I know the rules fairly well, and their system has to be fairly robust to withstand the interactions of that many cards. It gives me a framework to tell how, for example, in the Presidential Rumble what happens when someone sets of Mutually Assured Destruction during the resolution of the Potsdam Agreement. All that is fine, as long as I don’t require the schlub playing my game to also know the Magic rules.
Let’s say you’ve got a gang of lawyers deciding the rules (commonly known as a ‘legislature’). They’ll naturally write rules that can be read and understood by lawyers, argued by lawyers, and generally allow lawyers to settle disputes among one another. That’s all well and good as long as you’re dealing with lawyers.
Throw a civilian into the mix. He’s got two options; submit in a dispute because he can’t argue the law as well as the other side, or hire a lawyer to argue for him. He simply can’t interact with the law as it’s written, because it’s written by tradesmen for other tradesmen in that profession.
I’m not concerned with whether the lawyers are honest or corrupt, writing things for their own benefit or for the benefits of their client. I am principally concerned with the question of ‘who rules who’, and I don’t think much of a system where only lawyers have the capability of engaging with the law.
I’m kind of sympathetic. In a way. Sorta. But it is a little bit like complaining that only doctors have the capability of practicing medicine or only mechanics have the capability of fixing a car. Actually, the language of the law these days is far less arcane than it used to be (hardly any Latin anymore), and far, far, far less arcane than the language of medicine. (Where do they come up with those idiotic names for drugs?) But none of these disciplines are truly inaccessible. A person with average intelligence (well, maybe a little bit above average), who is willing to put in the effort, can learn the salient points of the law governing a particular dispute, just as a person with a medical condition can learn about that condition to the point where they know almost as much as their doctor. (And in some cases, more than their doctor.) Also, the internet has made if much easier to find cases and statutes, which used to be buried in law libraries and were accessible only through research tools that required specialized training.
If you have the money it’s probably easier to just hire a lawyer (and if you don’t have the money it’s likely that nobody is bothering to sue you anyway).
Just like I did in the argument with the game company up above? Not knowing that aspect of the law beforehand I was able to use the internet to read up on it, understand the issue, argue my point, and still be completely unable to budge the other side’s position.
The ubiquity of this particular disclaimer ought to be another indicator that something is wrong with the system.
Well, yeah, pretty much just like that. The next step would be to find the cases interpreting that statute, which should give you an idea whether there is something else floating around (common law, or overly expansive interpretation, or whatever) that would affect the legal issue. But it sounds to me like you are indeed correct in your interpretation. Does that mean the other side will budge? Hey, if you think that being right in an argument means that the other side will give in, I can only assume that you are not married.
Maybe encourage them to look at “twilight struggle.” Lots of references to real people and events, and I believe it’s a relatively popular game.
Reading between the lines I’m thinking they got caught in a lawsuit by someone else’s game, learning about the statute then, and were once bitten twice shy when it came to mine. I’ve got several versions of the game on hand that they printed without issue beforehand.
If you’ve noticed, every drug advertisement contains the admonition: Don’t take this drug if you are allergic to it. Really? They need to say that? I know without even researching it that some idiot jury awarded money to some idiot plaintiff who took a drug, knowing they were allergic, because the drug company didn’t warn them not to do it. As Ron White likes to say, “you can’t fix stupid.”
That sounds like something Wonko the Sane would say.
Just checking in to see how that last applies to this post.
I’m not sure I understand the question.
Hank wrote a post about lawyers; lawyers got involved. Does that mean he’s already lost?
Probably.
I didn’t see it until suspira mentioned it.
This comes back to the example I mentoned earlier.
The written law says “name, portrait or picture of any living person”. As a non-lawyer, that pretty clearly excludes dead people.
But then a lawyer comes along and tell me in a later comment that I can’t rely on the written law, I have to know that common law also applies and apparently in contradiction to the written law means that dead people are also protected.
So how is anon-lawyer supposed to negotiate their way through this without the (paid) services of a lawyer?
Start smaller. First figure out how to acquire a pencil without the (paid) services of a pencil manufacturer. Then you can move up to figuring out how to get something resembling justice without a lawyer. Actually, the pencil is probably more difficult.
I was just about to make a similar point. Our civilization now has a complex division of labor, which creates tremendous prosperity and innovation relative to prior eras in history. Any civilization like that is going to have a complex legal system, regardless of who is writing the laws – lawyers, engineers, doctors, etc…
The variety of legal situations people encounter, the types of contracts people enter, the way they interact with each other is just more complicated than ever. The natural result of this is a complicated legal system. Not saying it couldn’t be improved. As I mentioned above, I’m a big advocate of textualism to keep things as clear as possible, but there’s only so much that can be done.
If an average citizen can’t comprehend the law, how can they be held accountable for it?
As to your pencil example, once I’ve found a pencil, I know I have a pencil.
But in this example of the law, I can find a law that says clearly in black and white, “This applies only for living people”. Then a lawyer comes along and say, “Nope, you don ‘t understand – it covers dead guys too.”
And suddenly my pencil transforms into a box of cheerios. That’s great, but what I need is a [redacted] pencil!
Okay, I’ll try again. In California (where I lived most of my life) they have what is called the “Basic Speed Law.” This law says you may never drive faster than is safe for current conditions. For example, if you are driving 45 mph in a 55 mph speed zone during a dense fog, you could be cited for driving “too fast for conditions.”
So, a cop pulls you over. You point to the posted speed limit sign, which says 55 mph. You say, “But I was only going 45. The sign says 55.” The cop says, “Too bad. Here’s your ticket.”
So, what’s your gripe? Should they not have posted the sign saying 55? Should the sign have had the whole Basic Speed Law written on it? Should they repeal the Basic Speed Law in favor of a simple law that everyone can understand, even if it would result in more deaths? What? Do tell. And how is this the fault of lawyers?
“You maximum hand size…” I assume you mean “your,” but I don’t think I understand the statement that way, either. So maybe this is just the way you kids talk nowadays.
You ever play any games using a standard 52 card deck? Say five-card stud poker, your maximum hand size is five cards. Same here, except that card lets you have a sixth card in your hand.
Only problem is, we are losing our common rights that were determined by thoughtful items like the Magna Carta and the Bill of Rights, due to the fact that often the courts have elevated one precedent or another above such rights.
I think that the premise that the lawyers are writing laws in such a way that only lawyers understand the law has some truth in it, but the fault doesn’t lie with the lawyers. It lies with the society that has become so litigious that laws must always be written with as much specificity as is possible. (Or, as is more often the case these days, the law is written to be as general as possible so that the politicians can’t get blamed for the details, and that said details will be created by the lawyers in the bureaucracy writing the regulations that will have the force of law. But that’s a whole separate problem.) Laws are written for the lowest common denominator (be it low morals or low intelligence) and we’re always finding new lows.