Why pending laws should be published
Saturday, September 26th, 2009When I was working in a law office, we were asked on a few occasions to look at pending laws in our area and give our opinions.
One law down
One law was just about four lines long, and was to replace a similar law. The change was to substitute a few words in hopes of clarifying the prior law. My response was to look up some cases where the new wording had been used in just as confusing and ambiguous a way as the original wording. I suggested that this wasn’t going to make the situation any better.
The law was not enacted.
Another law down
The second law was about half a page long, and was concerned with what share of the estate a surviving spouse (widow or widower should receive), assuming either (intestate case) the deceased spouse had left no will or (testate case) the deceased spouse had left a will. In the testate case, the will might omit the spouse or leave only a very small share. For sake of clarity, I will refer to the deceased spouse as male and the survivor as female, because it is too difficult to be politically correct in a lengthy passage.
Obviously, there is a difference between a long marriage where the couple had nothing when they married and everything they have was built up during marriage, and a short marriage where essentially everything was owned by one or the other prior to the marriage (we had a case where they had been married for less than two weeks, so nothing much had accrued during the marriage). There is also a difference where there have been children and so one spouse, usually the wife, had to sacrifice some part of her career in order to care for them, so that if she has to go back to work, she will be worse off than she would have been if she had not borne her husband’s children.
The second law was supposed to come up with some kind of fair rules for the surviving spouse. In the intestate case, we’re trying to come up with what the deceased spouse probably would have wanted if he’d gotten around to making a will before he died. In the testate case, we’re trying to decide what he would have wanted if he’d been a decent human being who hadn’t used his will to try to cheat his poor widow of what she deserved (editorial comment!). The law had a series of steps to decide what the surviving spouse would get, which I won’t get into here because it doesn’t matter.
At any rate, I went through the various permutations, whether there were or were not children, how long the marriage had lasted, how much of the deceased spouse’s estate had been brought into the marriage, and then sent a letter pointing out a common case where the surviving spouse would get more if they’d been married less than five years and had no children, than she would if they’d been married five years or more and also had children to support.
That law was not enacted either.
A third law still standing
The third law was only about three pages long and had to do with giving notice in a guardianship where the ward (person under guardianship) had died. The law was plainly unconstitutional, and I replied with a very lengthy letter (including numerous citations to decisions of the U.S. Supreme Court) pointing out numerous common cases where the law would not only fail to ensure that parties constitutionally entitled to notice would get it, but in fact would affirmatively prohibit the judge from ordering notice to them sua sponte, if he or she happened to know enough about the case to realize they were entitled to notice.
The response was that the sponsor of the law was so powerful that the law would be enacted even though everyone involved knew very well that it would be struck down as unconstitutional as soon as it was challenged (which would be after who-knows-how-many innocents lost their inheritance due to precisely the sort of dishonesty this law made legal).
It was soon after this that I quit the law and got an honest job.
So what?
There is a proposal before the U.S. Congress to nationalize one sixth of the economy (to start with); compel us to purchase a product whether we want it or not, on pain of imprisonment; penalize doctors for ordering treatment, regardless of necessity or effectiveness, based solely on cost; and generally give the federal government the power of life and death over every single person in the United States.
The proposed health care take-over law is over a thousand pages long and is undergoing constant revision.
Look at the three examples above. The longest of the three laws was just a few pages, but all of them were hopelessly defective (especially the longest) and should never have been enacted. In the first two cases, at least, those who proposed them thought they made sense. They did not. Sending them out to an uninvolved but interested third party brought the issues to the forefront.
Does it not seem likely that a thousand page law that no one has read in its entirety is likely to have similar issues, and is even more in need of review than those I’ve described?