Last week, Germany’s chief prosecutor—Generalbundesanwalt Harald Lange—got himself fired. It’s a big enough deal to occupy the front pages and, in coming months and years, armies of administrative lawyers and scholars. The precise facts and circumstances are a bit murky, and the story is still unfolding. Enough is known, though, to invite some rule-of-law thoughts and a few cautious transatlantic comparisons and contrasts.
The English invented the rule of law. To this day they’re better at it than the rest of the world, including many English-speaking peoples who have borrowed this stuff.
Like many financial agencies across the globe, U.K. authorities have ended up with big chunks of money in settlements with misbehaving banks. The so-called Libor settlement alone netted the Chancellor of the Exchequer the equivalent of a billion bucks. What to do? As the Wall Street Journal reports, the British government decided to give the money away, to a group that’s re-enacting the Battle of Agincourt and to other worthy causes:
When surveying the vast wreckage of the 2008 financial crisis, many classical liberals worry that the most profound damage done was to the rule of law in America. Though it is difficult to pin down the concept with great precision, the core of the rule of law is simple: we have a government of laws, not men. Our officials must follow rules that have been publicly and clearly set forth in advance rather than acting on their own caprice, and they are not welcome to simply make up rules as they go along and declare their conduct lawful in retrospect. Without adherence to this precept, government’s actions can have no basis for legitimacy.
If we closely scrutinize what the Treasury Department, Federal Reserve, and other agencies of the federal government did in response to the recent financial crisis, there is no avoiding that they made a mockery of the rule of law. Indeed, as Lawrence H. White puts it, “The approach of Federal Reserve and Treasury officials during this crisis, unfortunately, has been to consider every possible remedy but applying the rule of law.”
I’ve only flipped through the opinions in Perez v. Mortgage Bankers Association and Department of Transportation v. Association of American Railroads. But I’ve read enough to see that they merit close study—very close study.
Earlier this week the Supreme Court heard oral argument in Mach Mining LLC v. Equal Employment Opportunity Commission (transcript and briefs). It’s a fairly big deal for employers, and another small window in the administration’s quaint views of administrative law.
The case concerns the EEOC’s enforcement practices. After the agency files a notice against an employer, conducts its investigation, and finds “reasonable cause” to proceed, it “shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” 42 U.S.C. 20002-5(b). What happens if they don’t do that prior to filing suit, or do a snow job on the employer? Nothing, says EEOC. The provision is unreviewable.
The great social scientist Stephen Pinker has observed a long-term secular decline in violence, despite the relentless media attention given to killings at home and abroad. Domestically, our state and local governments can drive down the number of murders and assaults even more, if they will take further advantage of technology and strengthen the adherence to the rule of law. We need to continue to innovate but also protect our greatest legal inheritance.
Technology has already contributed significantly to the decline in violence in our cities. CompStat, a management system for police developed in New York City, deploys police officers at the optimal places and times to cut down on crime. This largely computerized service is now used by police departments around the country. And it will improve with ever better data and algorithms.
Surveillance cameras in public spaces not only help solve crimes but also help deter them because people know they are being watched.
Empowered by the elections of 2014, Republicans face the question common to all who have had revolutionary changes imposed on them: Are we to accept what was done to us so as not to further revolutionize our environment, hoping our restraint will lead our adversaries to restrain themselves whenever they return to power?
Senator Harry Reid (D-Nev.), who, as Minority Leader pioneered the filibuster of appellate judicial nominees—vide, Miguel Estrada—and then as Majority Leader abolished the rule that allows it, had this to say in the wake of the midterms: “This is not get-even time.” Just as understandably, Senator Orrin Hatch (R-Utah) argues for teaching “these blunder-heads that they made a big mistake” by giving them “a taste of their own medicine.”
Dahlia Lithwick has recently complained that the Supreme Court is made up of elites. Hers is not the usual complaint of conservatives that the justices are writing their elite values into the Constitution rather than following the law. It is rather that the justices evince selective empathy—only for elites. According to Lithwick, we need justices who will decide in favor of non-elites on empathetic grounds.
If justices were to follow Lithwick’s advice, the rule of law would disappear. Particularly in disputes that rise to the level of the Court, both parties may deserve empathy. For example, Lithwick praises Sonia Sotomayor’s defense of preferences in Schuette v. Coalition to Defend Affirmative Action. And surely minorities striving for success who may gain admission to elite colleges because of such programs deserve our empathy. But why don’t those who are denied a place because of their race deserve our empathy as well? Feeling provides no plausible rule of decision.
In fact, because empathy tends to focus on the seen rather than the unseen, à la Bastiat, it can profoundly mislead us.
My wife tells me that I have bees in my bonnet, generally in serial fashion rather than all at once, and the one at the moment is the attack on the rule of law known as parole.
A few posts ago I introduced “citizen suits”—brought by private parties, usually advocacy organizations, in a capacity of “private attorneys general” against the government to make it do something—as an example of the derangement of our administrative and constitutional law. Here’s a bit more on the real-world aspects of the phenomenon, and a few more thoughts:
A ton of these cases are “deadline” suits. Environmental and, increasingly, many other statutes contain countless provisions saying that the administrator or agency “shall” regulate this, that, or the other thing by date “x.” More often than not, the agency misses the deadline, and the Association of Irritated Residents (an actual group) or some such outfit strolls into court and demands compliance. Agencies rarely fight these cases.