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A rant about the law

Studying con law. Just like in law school, it pisses me off.

Take state action, for instance. The only way to know what constitutes state action is to memorize all the relevant decisions and guess about the rest. For instance, we all (assuming the only people who read this blog are lawyers) read Shelley v. Kraemer, the case where the Supreme Court decided that it couldn't enforce a restrictive covenant on private land.

Supreme Court, I don't like racial discrimination either. But this is an entirely private transaction. How can it constitute state action?
We are the government, and if we enforce a racially discriminatory covenant, we'll be acting. See, it makes perfect sense.
Okay. But then, isn't everything converted into state action, because the minute you ask the court to strike down or uphold it, the government is acting?
Hey, ever heard of the "case or controversy" requirement? Get in line.

More than any other subject, con law is all about the whim of nine people. All right, not whim. The carefully considered and researched but frequently inconsistent and undeniably biased, because nobody can be totally objective and ignore their time and place and life experience and ideology, view of nine people.

Even if you leave the Supreme Court out of it, the law is frustratingly hard to pin down. Laypeople get into trouble because they say, "I read the law, and here's what it said." But did you read the annotations, the cases, the regulations? You didn't realize, did you, that "exclusively" actually meant mostly and "company" only included domestic for-profit businesses incorporated under a specific chapter?

Recently I read part of a statute that said something like, "Provisions of this chapter X only apply to other chapters as expressly provided in those chapters." In the other chapter, it said, "The sections of chapter X that apply to this chapter are 1, 5, 12, 15, 18, 23, and 45." Pretty straightforward, right? I didn't find any law interpreting this and so I replied to the partner who asked me that no other sections apply. He asked me to double-check, so I emailed the entire group. Nobody had a definitive answer, but I got three responses back saying, "I've never been sure, would you tell me what you find out?"

I understand that this is why I'm employed, but normal people without special degrees and research tools SHOULD be able to read the law and understand what it means.

Full post as published by Magic Cookie on July 04, 2009 (boomark / email).