The law isn't the last word

Those of us unlucky enough to have attended law school inevitably had a classmate or two who browsed through casebooks and came across legal tricks that allowed them to wreak undreamed-of havoc on unsuspecting merchants, neighbors and the world at large. For those wayward classmates, the law was a new and dangerous toy they could use to call the tunes to which other folks dance. It was as if they'd woken up Christmas morning, unwrapped their presents, and discovered a lockpick set and wiretapping gear -- and carte blanche to put the stuff to use. Whether or not those legal tricks ought to be used was somehow beside the point.

It seems that many lawyers never get over the ain't-that-cool revelation about the power of their field of knowledge. Think, for example, of Richard McLean and Edith Stevens, a retired judge and attorney in Boulder, Colorado, who used the relatively obscure legal doctrine of "adverse possession" to go to court and swipe a third of Susie and Don Kirlin's neighboring parcel.

Unsurprisingly, the land-grab triggered a groundswell of support for the Kirlins and outrage toward the well-connected couple who manipulated the law to their advantage.

In one of the offending couple's few statements on the case, Edith Stevens responded to the Kirlins' loud complaints about the outcome of the case by saying, "They lost the case, and they are disgruntled litigants."

Supporters of McLean and Stevens are few and far between, but they seem invariably to be drawn from the legal profession. In a letter to the Boulder Daily Camera, Conrad Lattes, who clerked for McLean, wrote:

All that I know about the merits of the adverse possession claim filed against the Kirlins is that McLean and Stevens successfully proved the elements of their claim. Unless you were present for the trial and heard all of the evidence, you cannot know any more. If you don't like the adverse possession law, which is the law in all 50 states and is derived from English common law, seek a legislative change, but don't make personal attacks upon people who assert their legal rights, especially when you only know a portion of the facts.

Like those law-school students with their exciting, new legal knowledge, Stevens and Lattes are missing an important point about the role that law plays in any properly functioning society.

A legal system can not be constituted as an eternal game of "gotcha" played by those with mastery of the law upon those lacking such knowledge. No matter how comfortable lawyers, judges and their friends are with the existing state of affairs, there's nothing inevitable about the survival of the current legal system if it comes to be seen as producing outcomes that offend the consciences of most people, and if the law is perceived as a weapon with which the well-connected can prey upon the unprepared.

Fundamentally, legal systems are a matter of compromise. At the heart of the birth of every legal system is a situation like, oh, this one:

Mr. Thomas: Hey, Mr. Smith! Where are you going with that baseball bat?

Mr. Smith: Didn't you hear? Mr. Jones ripped me off in a business deal. I'm going to break his legs and sell his stuff to get my money back.

Mr. Thomas: Hmmm. That seems like a clumsy way to resolve a dispute -- and one fraught with potential for future conflict. How about I get together with Ms. Brown and Ms. Walker and we hear you both give your sides of the story. If you convince us that Jones owes you money, we'll make sure he pays you.

Mr. Smith: Well ... I guess that does sound better than looking over my shoulder for Jones's sons to come after me. If you can make that work, I'll go along with it.

Oh, all right. Maybe that does conflate several centuries of gradual evolution into a neat package. But you get the picture. To hold people's respect, the legal system has to maintain a reputation for producing results better, on average, than people can get through their own resources. It has to resolve disputes equitably, preserve property, protect rights and do it all without enraging the people it supposedly serves. If the system loses public respect, the baseball bats come out.

Or, maybe, something evolves to take it's place. It's happened before.

In the Middle Ages, when the legal systems maintained by various local warlords consisted largely of dunking suspected witches and poking accused tax cheats with red-hot irons, Europe's growing ranks of merchants decided that the tools at hand were inadequate for resolving commercial disputes. So they ignored the official courts and created their own.

The resulting Lex Mercatoria evolved from the ground up, extended beyond national borders and derived its authority from wide, popular support. It was successful enough that fragments still exist today.

Of course, that doesn't mean that McLean, Stevens and company are likely to trigger the creation of an alternative legal system. Not yet, anyway. But it does mean that, when their use of the law outrages public opinion, the problem lies not in popular understanding of the law, but in the law itself. If the law seems unjust to the public, it fails in its primary mission.

McLean and Stevens complain of the vitriol heaped on them, and that they've received threats in the mail. If nothing can convince them that they've done wrong, no matter how legal their actions, then perhaps the evidence that people are turning to extra-legal means of retribution against the couple will convince them that, perhaps, their actions are undermining the legal system they so gleefully exploit.

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(And don't forget your ration of Wicked Thoughts for today)