Mr. Rosenbaum is a lawyer and a professor at Fordham Law School, but his aim here is to burn down his own house. He proposes a sort of talking cure for the legal system. There is, he says, too much emphasis on money in civil cases and on punishment in criminal ones. The system should focus instead, he writes, on the dignity of the participants and on hearing them out. The American justice system, he says, “relies too much on logic and not enough on love.”
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Where lawyers see a set of carefully calibrated neutral principles meant to ensure equal treatment, Mr. Rosenbaum sees a system that robs participants in lawsuits and prosecutions of the opportunity to tell their own messy, contradictory, inconclusive stories. Where lawyers see legal doctrines that prevent the filing of stale claims and the presentation of irrelevant evidence, he sees a conspiracy to silence the truth.
He works, then, from first principles. His suggested reforms are powerfully impractical. But that does not mean he is wrong.
It is certainly true, for instance, that treating people with respect and acknowledging responsibility is both the decent thing to do and a surprisingly effective way to avoid lawsuits.
But the legal system often penalizes and thus discourages doing what is right. The typical automobile insurance policy literally forbids apologizing for an accident. And lawyers, whether paid by the hour or by a percentage of what they recover, have no particular incentive to resolve cases at the outset in exchange for only words.
In contested cases, too, many people want simply to be heard. They often prefer a day in court — “the ventilation of a public grievance,” as Kafka’s Joseph K. says in “The Trial” — to a private settlement. But the legal system cannot accommodate all of those stories, and lawyers and judges sometimes work hard to make sure they are not heard.
Trials are heading toward extinction; most cases end in settlements or plea bargains. Civil settlements, Mr. Rosenbaum writes, “merely serve to silence the story in return for a cashier’s check.”
Plea bargains are even worse. “We tolerate the idea of putting people in jail for crimes for which they were willing to plead guilty but which they did not commit,” he writes. “Truth becomes a hostage to the efficiencies gained from negotiated pleas.”
Mr. Rosenbaum has no patience for attorney-client privilege, statutes of limitations and rules of evidence that limit the evidence a jury can hear. He disdains legal doctrines that fail to impose liability on people who hurt others’ feelings by calling them names or on bystanders who could help but choose not to.
His heart bleeds all over the page. But he captures something in the process, which is, in his words, the public’s “moral revulsion toward the legal system.”
Mr. Rosenbaum takes most of his examples from novels, movies and television, and that is unfortunate. He is an adherent of the “law and literature” movement popular in the elite law schools. This discipline tries to infuse legal education with humanity and soul by letting law students catch up with the Kafka and Dostoyevsky they skipped as undergraduates in favor of Ultimate Frisbee.
