Please, no more rules

The legal profession is laughable.  We have endless procedural rules that come in numerous forms, including statutes, supreme court rules, appellate court decisions, local court rules, and scheduling orders, to name a few.  The problem is that judges ignore these rules as fast as they (and the other lawmakers) can dream them up.  For example, you think you have the right to call witnesses at your preliminary hearing just because the statute specifically says you can?  Think again.  You think that evidence against you will be suppressed because your rights were violated?  Unlikely.  You think the prosecutor has to turn over discoverable materials within sixty days of your demand just because the scheduling order commands it?  Not even close.  And how about the most basic thing of all: you think you have the right to testify in your own defense at trial?  Only if the judge is in the mood to hear from you.  No other profession could possibly survive if its professionals were to behave the way judges do.  But where does this judicial disdain for the rule of law come from?

I’ve often said that judges learned to ignore the law when they were in law school.  In law school, students actually learn some rules (although it’s really hit or miss, as most law profs don’t like to waste time on the rules they don’t find interesting).  However, students are also taught that there is never a right answer to any legal question.  It’s all about the argument, they’re told, even when the rule of law is crystal clear.  And in law school classes, all opinions are treated as equally valid, and no one is ever told that that they are wrong.  And there’s the problem: when law students grow up to be judges, they still believe that the law is whatever they want it to be.  The result is that judges ignore rules—and logic, reason, and even the English language—in order to reach the outcome they want.  

And now, there is some evidence to support my theory that judicial disdain for the rule of law originates in law school.  Today’s lesson comes courtesy of the law journals, which are legal publications run by second- and third-year law students.  These journals publish articles written by law professors and, to a lesser extent, lawyers who have a literary bent.  A few years ago, the students at the “top” law reviews—including the Harvard Law Review and the Yale Law Journal—claimed to be tired of the redundant, professorial legal babble in most of the articles that they received for publication.  So to deal with this, they got together and came up with a set of rules to govern authors’ submissions.  The rules, essentially, are that the journals strongly prefer to publish articles under 50 pages, and will not, “except in extraordinary circumstances,” publish articles over 60 pages. 

I remember reading these rules when I first started publishing in law reviews, and they made perfect sense.  Having been on law review in law school, I was no fan of professorial babble either.  And as a writer, I tend to be clear and concise—at least by law review standards.  But, it turns out, these law school students were really judges in the making.  After conducting a nationwide survey to determine the most desirable length of law review articles, and then, no doubt, spending a lot of time thinking about, talking about, drafting, reviewing, and revising the new rules, they behaved just like judges: they ignored their own rules.

More specifically, a professor recently got the idea to check on the length of the last 19 articles published in the Harvard Law Review and the Yale Law Journal.  The result: not a single article that was published satisfied the page-limit rules!  Instead, all 19 of the last 19 articles published were well over the page limit.  (So much for the “extraordinary circumstances” exception.)  A couple of articles even topped 100 pages—more than double the page limit!  On average, Yale’s articles were 77 pages and Harvard’s were 80 pages.

This type of rule breaking now calls into question everything else that the law journals advertise.  For example, when I submit my article for publication, am I really getting a “blind review”—as Harvard, Yale, and other journals promise—so that I have a shot at being published based on the quality of my work, instead of where I (don’t) teach or how many names I (don’t) drop in my author’s footnote?  I doubt it.

But in any case, the point is this: whether you are a judge or merely a judge-in-training law review editor, please stop making rules.  You know you are not going to follow them, so stop deluding yourself into thinking that you will.  People will respect you more if you simply admit up front that you are going to do whatever you feel like doing.  And if you need a stronger incentive, know this: every time you make a rule that you later ignore, people are mocking you.