INTRODUCTION

Through over two hundred years of committed effort, our federal court system has become a model for justice throughout the world.… Foreign jurists—especially those from emerging democracies who best understand the debilitating effects of injustice—uniformly admire… United States courts. They want to know the secret of our success.

Chief Justice John Roberts (2013)¹

It’s not only possible, but likely, that all three branches of government are controlled by criminals. At a minimum, it cannot be proved otherwise, for the simple reason that no one truly knows what the criminal laws of the United States contain. The U.S. Department of Justice, charged with enforcing federal criminal law, can’t even count the number of criminal provisions. The DOJ attempted a census in 1982, but after two years of intensive research, it could only say that “approximately 3,000 federal crimes” existed.² The difficulty was that America lacked (and lacks) a unified federal criminal code; Congress blithely sprinkles criminal provisions across the vast plain of law, a practice so unhelpful that DOJ’s counting project was undertaken “for the express purpose of exposing [its] idiocy.”³ What DOJ did not appreciate is that idiots are immune to charges of idiocy, and Congress continues to play Johnny Appleseed, sowing crimes in unknowable quantity, in unknowable locations. Of course, laws that cannot be counted or found also cannot be understood or obeyed. The legal system declares that our problem—which it surely is, though it shouldn’t be.

Today, the number of federal statutory crimes has grown from 3,000 to something well over 4,400, though the exact total is uncertain.⁴ What can be stated confidently is that there are far more than 4,400 ways to incur criminal sanction. By 2013, federal bureaucracies had emplaced some 300,000 provisions with criminal implications.⁵ To those unsettling and formidable totals must be added the various criminal laws and regulations of the fifty states and their bureaucracies, and the ordinances of the nation’s 19,508 “incorporated places.”⁶ Of these millions of prohibitions and demands, many are trivial (Massachusetts can fine you $100 for starting the national anthem, but failing to sing it to conclusion), others verge on nonsense (Alaska’s prohibition on being drunk in a bar, which police actually enforce), and some openly conflict (federal prohibitions on marijuana against state legalizations of the drug).⁷ But rules are rules, no matter how inane or contradictory, no matter how fragmented or incontinently produced. What exists, we must obey; ignorance of the law is rarely an excuse. Because obedience is impossible, we all become criminals. Surely there is something deeply repellent about a legal system that condemns everyone, even if only technically, and even without consequences.

Voluminous as the criminal laws are, they constitute only a subset of the much larger corpus of law, though how much larger a corpus is destined to remain mysterious. In 2013, after endless inquiries by citizens, an exasperated researcher at the Library of Congress declared that counting the number of federal laws in force was “nearly impossible,” and declined to go further.⁸ (The research division’s motto is in custodia legis, so these self-styled “legal custodians” seem to have lost track of their foster children—which seems illegal, but how are they to know?) One could plausibly argue that the unknowable superfluity of laws violates Constitutional guarantees of due process. That argument would be laughed out of court and most scholars would view it as embarrassingly unsophisticated, which speaks less about the merits of the due process argument than the mentalities prevailing in law’s higher ranks, whose members accept lunacy as the cost of doing business. Law’s elite (a word I use with no pejorative connotations) will happily critique any one error produced by the system, but rarely the system itself.

Yet, the system deserves a critique, because the stakes are so high. Law holds our lives and fortunes hostage. It reserves to itself the right to kill, draft, imprison, and tax us; affirm or void our marriages; regulate what we eat and drink; control how we work; and limit what we can say. Through “civil forfeiture,” law can seize our property without charging us with a crime first (or, indeed, ever), a procedure law enforcement has used to line its own pockets and by which government relieved Americans of more property in 2014 than burglars did.⁹ Against these powers and their abuse, citizens have limited recourse. The law grants its servants wide immunity from victims’ suits to recover compensation. A cop can shoot you without financial liability, even if you’ve committed no crime and pose no danger, and even if the cop’s conduct was otherwise unlawful, so long as it wasn’t so grossly unlawful that no “reasonable” officer would have sanctioned it. (Law’s definition of a “reasonable” officer is wildly unreasonable, but that’s for later.) Thus, we the people, the notional source of legal power, are in practice the subjects of a discretionary and overbearing monarch named Law.

Like all monarchs, law employs swarms of courtiers to assure us of our master’s benevolence. John Roberts declares American courts to be models of justice; police departments promise us their courtesy, professionalism, and respect; the Pledge of Allegiance speaks of the liberty and justice guaranteed to us by our republic of laws. When confronted with evidence that these ideals have been violated, law’s PR team processes through the spin cycle: first, deny the wrong (“an unfortunate accident”), then blame the victim (a “bad hombre”), and finally, and only in the most extraordinary cases, concede the wrong while denying its importance (“one bad cop”). The formula can be applied as necessary to the corrupt Congressman, hapless bureaucrat, or abusive warden. Even Roberts’s model federal judiciary now finds itself with explaining to do; in 2017, media reported that Alex Kozinski, one of the nation’s most esteemed federal judges, was a serial sexual harasser. (No great surprise, given that he was investigated in 2008 for hosting an open pornography server, a matter promptly whitewashed and filed away.) So Kozinski, the erstwhile upholder of laws, seems to have broken quite a few himself, though he still found the time to mentor our newest Justice, Brett Kavanaugh. Kozinski is hardly alone. Just as local litigators knew that a sleazeball stalked the Ninth Circuit long before the media identified him, so, too, insiders know that abusers, tyrants, and crooks inhabit their own provinces of the legal system. Insiders just don’t know if their experiences hold universally.

Nevertheless, if there really aren’t too many bad apples, and most of those are promptly fished out of the barrel, then perhaps the legal system deserves our patience as it self-corrects. Brutal cops will be disciplined, corrupt Congressmen will be shamed into resignation or voted out of office, erring judges will be unseated, presidents will face legal sanction, and so forth. These comeuppances happen all the time, and are touted as proof that the system works, but that can only be true up to a point. If Volkswagen discovers a defect and issues a prompt and voluntary recall, it’s fair to infer that VW has a stern commitment to quality. If VW issues dozens of recalls and only after media exposés (which is essentially what happened with VW’s emissions scandals), the more plausible interpretation is that there’s something rotten in Wolfsburg. Every complex system makes mistakes, but only gravely flawed systems make mistakes in volume—and law does make mistakes in volume.

In earlier pages, I contended that an important reason for the frequency and seriousness of legal failures is that law’s constituent parts do not understand each other very well. (Nor, as we’ll see, do they understand the public they serve.) I do not argue that all parts of the legal system need to agree; indeed, the Constitutional system of checks and balances presupposes that they often will not and should not. Rather, my argument is that when various parts of the legal system interact, they need to comprehend the workings of their partners. That comprehension often goes missing. For example, when Congress passes ambiguous or otherwise defective laws, judges must be able to decipher the purpose of those laws to apply them properly. To perform their interpretive feats, judges use a set of elaborate canons that they believe allow them to inhabit the minds of Congressional drafters. But empirical research shows that many legislative drafters are unaware of judicial canons, and those drafters who do know about the canons either disregard them or reject many of them outright. Accordingly, judges sometimes reach erroneous results because they have used the wrong tools. The law is filled with these sorts of misunderstandings, and as legal product passes from one department to another, defects compound.

To assess the scope of law’s dysfunctions, this book takes a general tour of the American legal system (which I’ll sometimes call “law,” as context allows). To keep things to a single volume, this book breaks with several traditions. In legal academia, it’s customary to survey all the monuments of existing scholarship, no matter how ancient or boring. That’s about as gratifying as visiting the Met and allotting equal time to van Gogh’s paintings and a tray of Dutch doorknobs. Close detail will be provided when it matters, but I’ll leave the microscope on the shelf whenever possible, and this is for the best. (I once wrote an academic article parsing the word “scienter,” which roughly means “wrongful intent.” That took forty pages; holding to those standards, a book analyzing the Constitution would consume at least 300,000 pages, while a treatment of the Affordable Care Act’s regulations would demand several hundred million.) Rather than going through the tiresome motions required of Respectable Contributions to Legal Discourse, this book reviews the general dynamics of the American legal system and its most consequential successes and failures.

I hope that the evidence adduced persuades you of my thesis which, to recapitulate, is that the various cogs in the legal machinery often do not mesh, leading to miscarriages of justice. For non-lawyers, this may not seem terribly ambitious. Yet, it points a gun directly at the heart of law. Law claims—indeed, must claim—that its parts work in harmonious comprehension. If judges don’t understand how Congress works, they will misinterpret legislation. If Congress, which has delegated enormous power to executive branch bureaucracies, doesn’t understand how those bureaucracies work or how much power has been given away, legislators may find their intentions disregarded, or even thwarted. And, of course, for legal actors to understand each other, they must possess a degree of self-awareness. But like the mad, forlorn Lear, they have but slenderly known themselves. Congress, for example, rarely reads or understands the legislation it passes, which is how the Senate managed to accidentally and dramatically raise some corporate taxes in its version of the Tax Cuts and Jobs Act of 2017.¹⁰ The goal is to simply produce rules quickly and in volume, taming any monsters by means of exception. Worse still, law’s departments, each overwhelmed by managing its own Island of Dr. Moreau, hardly realize that their beasts have escaped to breed with other creatures in a larger archipelago of deformity.

The chapters that follow examine the different parties that make, interpret, and enforce law. However, description is not enough—law doesn’t simply exist; it should be effective and legitimate. Accordingly, the first chapters address what laws can do, how they can be made well, and where their limits lie. These matters are not properly addressed in American law schools, an omission that reverberates throughout the legal system for the obvious reason that law school graduates fill many critical positions in the system. Lacking a firm notion of the sane and the good, lawyers can only make undereducated guesses, using hunches informed by legal customs. These customs are more habits than heuristics, but to the extent law thinks, these are its default modes of cogitation.

Customs of the Natives

Four mental tics dominate legal thinking: slavish deference to authority, a belief in the normalcy of American law, an obsession with the past, and an unshakable belief in the power of rules. These beliefs are often deeply unhelpful and can defeat law’s social purposes, but they do allow us to reliably predict how law will confront many problems.

Servility. Law inverts normal business mores: the customer (you) might be wrong, but the boss (officialdom) is always right. Given law’s famously quarrelsome nature, servility may seem an unlikely attribute, but once a higher power clicks its heels together, lesser legal beings rapidly fall into line—assuming they understand their orders. Servility is the helpmeet of hierarchy and authoritarianism, traits that suffuse law, which is problem enough. But servility is also anti-thought, and radically constrains legal discussion: this is how ancient injustices pervade the law without provoking many systemic critiques.

To illustrate by extremes, all lawyers are trained from professional birth to view the Supreme Court with awe. The Court has accomplished some amazing things and has included some jurists of real genius. However, in the past century alone, the Court has let stand laws and orders requiring segregation, ethnic internment camps, the execution of minors (until 2005), the suppression of free speech (about the Constitution, incredibly), the involuntary sterilization of “imbeciles,” the immunization of police brutality, and the diversion of public lawsuits into private fora.¹¹ The last three are still on the books, supplemented by blemishes including the Court’s summary resolution of the 2000 presidential election on intellectually flimsy and nakedly partisan grounds.¹² This would seem to counsel some skepticism about the Court. Yet, while lawyers vehemently debate the merits of today’s decisions, they mostly avoid questioning the Court as an institution.

Let me provide an example by making an observation I haven’t seen get much play elsewhere. The Court is supposed to provide a bulwark against executive tyranny. But a majority of the present Court helped create an over-powerful executive by articulating doctrines of presidential maximalism before they became Justices—and indeed, we can speculate that those accommodations were why Justices Alito, Gorsuch, Kagan, Kavanaugh, and Roberts landed on presidential short lists. If this matter is raised, it’s always presented in personal terms—Nominee A being too cozy with White House B—rather than as the institutional issue it is. When the straightest path to a Court nomination is to undermine the judiciary’s role as a check or balance, the Court has a structural problem. And what holds for the Court holds for most of law. Following orders is almost always safe; questioning orders (however much questioning is deserved), is dangerous. Law expects the same when interacting with the public: we are to do as we’re told, full stop.

(Ab)normalcy. The second cultural tic is American law’s belief in its own normalcy, which is so deeply held as to be invisible. But American law is not normal. For one, it’s unusually expensive, and not unrelatedly, it facilitates much weirder lawsuits (only in America would an administrative law judge sue a local dry cleaner, claiming damages of $67 million for a lost pair of pants).¹³ American law also stands out because it employs the common law, a system used only by Britain and its imperial stepchildren.¹⁴ Most of the world draws upon the civil law tradition, in which American standards such as judge-made law, precedent, and adversarial trial play limited roles, or none at all.¹⁵ American law is unimaginable without the judge-precedent-trial trinity, and while that trinity makes a certain amount of internal sense, that doesn’t mean the system of which it is a part is normal or necessarily good. Even John Roberts, a sophisticated jurist, fell into the normalcy trap. When John Roberts said that federal courts were “uniformly” a “model… throughout the world,” he made a statement that wobbled between the merely poetic and empirically untrue. (It was also false on its face.^*) America’s common-law courts can’t be a model to civil-law courts, any more than pilots can learn to fly by watching cowboys ride horses.

The assumption of normalcy makes it difficult to raise basic questions about American law, or to see problems that are readily visible to outsiders. For example, precedent is an established feature of American law, and most lawyers accept its value without demurral (even if they often try to evade its consequences, which speaks volumes). After one judge jumps off a bridge, precedent requires that every future judge take a leap, all else being equal. Other nations believe precedent helps perpetuate old mistakes, especially when, as in American law, the operating assumption is that the more ancient the precedent, the better. Even the proper name for following precedent, stare decisis, betrays this principle of helpless antiquarianism. Aside from being unintelligible to the public, it’s also wildly perverse to render a common-law principle in Latin, the language of Rome, birthplace of the civil law system. Such is the price of historical fetishism.

Historical obsessions. On the subject of history, law is trapped in a passionate, unhealthy relationship with it. Constantly looking to a past that’s remote, and whose details law occasionally and catastrophically mangles, consigns us to unhealthy regress. To interpret laws written yesterday, judges look back to the Constitution. When that document is unclear, many judges (especially “originalist” jurists) examine the practices of the Framers, which were themselves informed by legal doctrines in eighteenth-century England, which in turn derived from historical clutter accumulating since the thirteenth century. Certainly, history can provide apt lessons. When we face the same problems as the Framers, James Madison can be illuminating about the Constitution he (co-)wrote. In 1791, America had a Congress and priests, and Madison’s thoughts about mixing the two remain relevant. (As it happens, Madison believed that having chaplains in Congress was an unconstitutional blending.¹⁶) By contrast, in 1791, America had a Second Amendment, but not gangland Glocks, so the Framers’ adamancy about the right to bear arms is less revealing (if that adamancy existed, which it arguably did not). But law is a grave-robber with eclectic tastes: it plucked one trinket from the corpse while ignoring the other.

The greatest temple to erratic historiography is the Supreme Court building located at the deeply unsubtle address of 1 First Street, Washington, D.C., center of the legal universe. Leaving aside the potent symbolism of John Roberts sealing the Court’s front door in 2010, which requires no decoding, what are we to make of the Court’s interior? The main chamber is adorned with a bizarre sculptural history of law that would stump Lara Croft, Indiana Jones, and Robert Langdon (he of The Da Vinci Code).¹⁷ Almost none of the figures depicted are relevant to, or express values even vaguely consonant with, American law: the pharaoh Menes (irrelevant, obviously), Draco (so harsh that his name lives on in “draconian”), Augustus (swept away republican government), Justinian (laid foundations for modern civil law), Mohammed (elaborated sharia, which incidentally forbids his depiction), King John (had the Pope nullify Magna Carta), and Napoleon (abolished common law as a ludicrous anachronism). Sure, it’s just decoration, but it’s decoration of the family home. Why is it there? More pertinently, what does it mean? The answer to the second question is simple: law should use the past seriously or not at all, and any judicial opinion drawing on history should be treated with (as judges would say) “heightened scrutiny.” Thus, our narrative will delve into the historical details to present counter-narratives when appropriate.

Blind faith in rules. For law, there is no problem that cannot be solved by a rule—preferably, many rules. Unfortunately, it’s very difficult to craft even one clear, self-contained rule. Consider the old legal chestnut, the municipal sign reading “no vehicles allowed in park.” Does that apply to bicycles, motorized wheelchairs, and ambulances, or only to private cars? Or does it allow a private car in the public green, so long as the gearshift isn’t in “park”? It’s difficult to say on semantic grounds. Yet, parks are not overrun by wayward vehicles, because common sense and basic decency give the rule life; we understand what the municipal prohibition means to convey and even if we don’t, we err on the side of caution. What makes rules work, in other words, are norms—standards of community behavior. Modern law needs both rules and norms, but if given the choice, law prefers rules (making them, that is; not necessarily following them).

Norms, however, cannot be ignored. When rules and norms conflict, citizens can become disgruntled to the point where they ignore the law or deem it illegitimate. Arguably, the entirety of modern law violates two norms central to our conceptions of justice: the norms of fair warning and even application. Many areas of law are so unknowably large that fair warning doesn’t exist—even as a concept. And by granting its own officials special dispensation to ignore rules deemed too complex to follow, law also violates the norm of even application. In the end, the vast system of loopholes must reform itself into legitimacy or face an abrupt and extra-legal revolution, a process that’s called (in no slight coincidence) a “state of exception.”

By Way of Preview

To provide a preliminary sense for how law functions end to end, it’s useful to observe one set of laws moving through the assembly line, a process that roughly tracks the order of the succeeding chapters. As we started with criminal law, we may as well continue the theme. The general purpose of criminal law is to impose order by issuing clear rules within Constitutional boundaries, with suspects apprehended fairly, charges supported by credible evidence, and cases tested in open court by equal adversaries before a jury. If there’s a conviction, the sentence should be determined by a judge who fits punishment to crime, with convicts contained and rehabilitated until they can be safely discharged. This is how it works on TV and in textbooks, and for once, they have it right: this is how criminal law is supposed to work in real life. Sadly, it doesn’t.

In the 1980s, Congress responded to widespread fears about rising crime with a wave of legislation. The project began in 1984, the same year that the DOJ threw up its hands at the already exasperating profusion of criminal law. Rather than study the social factors responsible for rising crime, or ponder why existing laws had failed to stem misbehavior, Congress decided to slap criminal sanctions on anything that caused opinion polls to twitch. The first product was the Comprehensive Crime Control Act of 1984 (CCCA), which debuted stringent new provisions for drug crimes, so that any user not immediately shamed into sobriety by Nancy Reagan’s Just Say No campaign would be treated to a cleansing stint in the federal clink. For maximum effect, the CCCA opened the door to civil forfeitures, by which the illicit gains of the drug trade could be seized. Forfeiture arguably violated existing rules and had obvious potential to be abused, though perhaps Congress was beguiled by images of Detectives Crockett and Tubbs breaking the spine of South Floridian criminality by snapping up coke-funded Ferraris in Miami Vice (which premiered shortly before the CCCA passed).

Congress then passed the Anti-Drug Abuse Act of 1986. That act was cobbled together in the month following the furor over basketball star Len Bias’s death by overdose of crack cocaine, whose distribution or use would now be punished much more severely than cocaine in powder form. The bill had many problems, including a real whopper: Len Bias actually died of a powder cocaine overdose, as was becoming clear before the Act was finalized. Congress had missed its target before it even pulled the trigger. But Congress wanted to take a dramatic stand all the same. So, in addition to harsh penalties for crack, Congress expanded the range of crimes subject to mandatory minimum sentences, a profound rebalancing of a criminal justice system about which Congress knew little and declined to know more. As one of the legislative aides involved later reflected: “We had no hearings. We did not consult with the Bureau of Prisons, or with the federal judiciary, or with DEA, or with the Justice Department.”¹⁸ The Act passed anyway, and the states pursued similar experiments.

In the 1980s, Congress also chartered the U.S. Sentencing Commission, a new bureaucracy charged with writing up the Sentencing Guidelines, in its current form a rigid and barely intelligible monster that collapses into a numbing matrix of forty-three criminal offense levels, six tiers of criminal history “points,” and four sentencing “zones” by which prison terms are calculated.¹⁹ The Guidelines reflected law’s faith in rules (628 pages of them, in the latest version), but worked about as well as boarding planes by five-zone group numbers. Worse, the combination of the Guidelines, mandatory minimums, and the functional abolition of parole vaporized the existing sentencing regime almost overnight, without fully considering the ramifications.

The bureaucratization of criminal sentencing was inevitable. In important ways, bureaucracies are the government. Your medical and retirement benefits are formally established by Congressional acts, but in practice, what you receive and whether you receive it are decided by bureaus. Bureaucracies provide the rules, the enforcers, and in many cases, the courts—fora in which bureaucracies can sue you, using their own judges, interpreting their own rules. Bureaucracies operate beyond public control, which partially explains why they are despised. But most bureaucracies also lie beyond Congressional control; in legislators’ haste to offload responsibility, they deposited most bureaucracies into the executive branch. As a result, bureaus jump to the orders of presidents who often have different priorities than legislators.

Unlike most bureaucracies, the Sentencing Commission was unusual in that it was (fictionally) housed in the judiciary and enjoyed the assistance of an eminent scholar, Stephen Breyer.²⁰ Breyer seemed ideal: a former Senate staffer who was then a part-time law professor specializing in bureaucracies and Constitutional law, as well as a full-time appellate judge. Despite this rare combination of talent—if any bureaucracy had the resources to do good work, it was this one—the Sentencing Commission facilitated awful outcomes, and some of its machinery violated the laws in which Breyer was expert. In 2005, by which time Breyer was a Justice, his brethren concluded that the Guidelines as applied sometimes conflicted with the Constitution.²¹

In the meantime, equipped with take-all-prisoners criminal legislation, police rounded up the usual suspects. Because there are so many crimes, policing can descend into arbitrariness, which helps explain how the traffic code devolves into crimes of “driving while black,” just as the baroque tax code allows the phenomenon of being “audited while rich.” No law allows (and some forbid) discrimination on the bases of color or class, but many judges tread lightly around policing. Indeed, conservative judges immunized police from all but the most egregious abuse claims, and allowed cops to gather tainted evidence under doctrines of “reasonable mistake.” Once again, the justification was complexity; police could not be expected to know or follow every rule. Conservative judges also argued that police deserve the benefit of the doubt, with Antonin Scalia noting (in 2006) that gross police misconduct was largely a thing of the past.²² This was either disingenuous or catastrophically underinformed; either way, Scalia’s forgiving attitude helped ensure that misconduct would be a thing of the future.

Once detained, brutally or otherwise, suspects are handed off to prosecutors, who select charges from a menu whose options and prices have been greatly inflated by tough-on-crime initiatives. In theory, prosecutors make their choices apolitically and case-by-case. Judges assume this is true, but that’s not really tenable, given that DOJ has always been politicized and most local prosecutors are elected. Discretion would be less terrifying if prosecutors had to test their cases in court. But the arrival of the Guidelines and mandatory sentencing, rampant overcriminalization, the corruption of the bail system, and the underfunding of public defenders’ offices amplified prosecutors’ coercive powers, and the plea bargain reigns supreme.

The sliver of cases not summarily resolved by means outside judicial control are then sent to trial courts, which barely deserve the name. Most actions, whether civil or criminal, are resolved out of court, determined by the variables of money, law, and evidence, in descending order of importance. Quite simply, law is beyond the financial reach of most Americans. Even at $200 per hour, the least any decent city lawyer can afford to charge ($300–$1,000 per hour is the usual range), the poorest 20 percent of Americans could afford zero days of legal representation and the next 20 percent, about a week. Only the richest 20 percent—really, just the top 5 to 10 percent—can afford to litigate comfortably.²³ Pure financial necessity forces almost all cases to settle, and quickly, though this is not a subject of universal interest among judges.

At least criminal defendants have the option of court, however nominally. For civil matters, including important areas such as consumer protection and employment rights, access to courts may be denied entirely, with claims channeled straight into the privatized system of justice known as arbitration. In fact, the criminal laws of the 1980s played an important role in the diversion of civil litigation, a development no one quite anticipated back in 1984–1986. By the early 1990s, fearing a flood of new criminal cases, conservative Justices began diverting civil cases into arbitration. The flood never materialized, but conservative Justices kept expanding arbitration’s reach, so that essentially every breathing American has now relinquished rights to sue in court. Arbitration clauses are everywhere: in mobile phone contracts, employment agreements, insurance documents, software licenses, and so on. Courts say that these contracts are entered into freely and knowingly (perhaps judges read software agreements every time their devices update) and claim that arbitration affords a speedy and fair forum for resolving disputes arising under such contracts. Of course, undisguised corporate enthusiasm for these agreements, made in unlikely paradises of willing consent such as hospital admissions, suggested that judicial assumptions might be unwarranted. Not only are law’s departments disconnected from each other, they are estranged from life and logic, too.

Returning to criminal litigation, one of its great surprises is the secondary importance of evidence. What matters most is having the resources to gin up a hefty file of stuff, reliable or otherwise. We supposedly live in a golden age of criminal forensics, but contrary to CSI and its brethren, much forensic evidence is rubbish. Police labs have been mired in scandal for years, most forensic methods are quackery, witnesses are often worse than useless, and even reliable techniques like DNA analysis are prone to misinterpretation. Although there are rules that allow courts to independently filter out garbage forensics and other shoddy evidence, judges rarely do so on their own initiative. The burden of discrediting evidence rests almost entirely with defendants, most of whom cannot afford that undertaking. Perhaps that doesn’t matter overmuch—the law often doesn’t understand what evidence means, though this is a tragedy for an institution supposedly devoted to facts.

With economic and evidentiary factors stacked against them, defendants usually travel a direct line from arrest to arraignment to sentencing. Although one justification for the Sentencing Commission was to reduce racial disparities in punishment, the new tools and discretion granted to police and prosecutors allowed more minorities to be rounded up, and given (often racially motivated) prior convictions, these defendants found themselves shoved into the more hellish parts of the Guidelines matrix. Compounding the debacle, Congress never decided what to do with the human cargo being laded onto the ship of state. One major goal of prison was to rehabilitate criminals, but legal changes in the 1980s withdrew the necessary funds and incentives. Congress also failed to consult with prison authorities to see if the prisoner influx could even be contained. Prisons quickly became overcrowded, some so severely as to violate Constitutional rights, prompting involuntary releases. Indeed, conditions deteriorated so badly that some prisons became crimogenic, making their residents more likely to commit crime upon release.

The whole tough-on-crime experiment was a fiasco. To succeed, the experiment needed a grounding in social realities (by the early 1990s, crime rates were falling for reasons unrelated to the crackdown) and demanded coordination across the many departments required to fulfill a policy affecting tens of millions. The whole process became impossibly complex, with each rule engendering an exception and a new rule, hypocrisy and inefficiency multiplying at bacterial rates. But law, having other lives to ruin, and other ways to ruin them, moved on.

The legal system is often wrongly compared to a Rube Goldberg machine. A Goldberg machine, however complicated, eventually achieves its designed purpose. It may take three hamsters, twelve lightbulbs, and a steam engine to fold a napkin in Goldberg’s universe, but the napkin gets folded. The legal system has a great many more hamsters, lightbulbs, and steam engines, all strung together in an enormous factory of Goldberg machines, yet it can’t fold the napkin, and sometimes sets it on fire.

The heart of law’s complicated assembly is the rule of law, a concept usually rendered as a “government of laws, not of men.” There’s more to rule of law than rule by law, but the essential points are that every part of society must play by the rules, and that law must not descend into the arbitrary whims of legal officials. However, because modern American law is overly complex, enforcement is necessarily selective; because law insulates officials from the consequences of their decisions, law becomes unaccountable; by necessity, modern law can only be rule by men. And because legislators and judges have tolerated—indeed, facilitated—the concentration of so much power in the presidency, it’s not so much the rule of men as the rule of one man. From 2017, that man commenced an open war with the very people who granted his office such incredible power: a spectacular instance of law failing to comprehend itself or the consequences of its work. The incomprehension is mutual, of course, because Trump no more understands the Constitution than a cat fathoms quantum mechanics. Some critics deem Trump an outlier; vindictive, feckless, and incompetent, but this underscores the essential point. An incompetent president cannot summon quasi-despotic powers by himself—he must inherit them. And that inheritance will compound and be passed along, because until law reforms itself, the estate tax on stupidity and despotism stands at zero.

Some of the best legal arguments are not arguments at all, but questions that inspire doubts about the parties and the system. How many police departments need to look like those of Baltimore, Chicago, Oakland, and Detroit before trust in police breaks everywhere? How many courthouse doors can be closed by plea bargains and arbitration before citizens realize that courts are transforming themselves into mere civic adornments? How unaffordable must justice become before “justice for all” curdles into a sadistic joke—when only 20 percent of people can afford a trial, or 10 percent, or 1 percent? Will people continue to respect a system that promises jury trials, reasonable bail, and humane punishment but delivers none of the above? Just how many self-defeating blunders need accumulate before society realizes that law has only a tenuous grasp on its operations? And what happens when the law’s servants declare themselves above the law?

As law students know, the answer is: “It depends.”