The Nonsense Factory: Book Review

The Nonsense Factory, by Bruce Cannon Gibney, will end up being one of the most important books of the decade -- any decade -- although it will be many years before that is apparent. But when we finally do a complete overhaul of our justice systems some time in the mid-2030's, we'll look back on Gibney's book as the spark that started the fire, that changed everything.

The book reminds me of the work done by NORML (National Organization for the Reform of Marijuana Laws), which in the 1970's began the lonely task of educating the public that cannabis should not be illegal. Back in the 1990's, the NORML advertisements seemed so out of the mainstream. But now a couple decades later marijuana is legal in many states and mainstream presidential candidates argue for complete legalization and the expungement of past marijuana convictions (at least Bernie Sanders does).

And so in a couple decades what is currently and unthinkable thought will isntead be common knowledge -- that what we proudly call America's Justice System is in fact a Nonsense Factory, and that the strange an unfamiliar civil justice systems found in Europe are working better overall.

That realization will be the crucial first step to implementing major structural reforms here in the US, and Gibney's book, in turn, is the first step toward that realization.

Gibney's call for change begins with a BoJack Horseman quote up front: "You can't keep doing shitting things, and then feel bad about yourself like that makes it okay! You need to be better!" Gibney proves that we are doing shitting things and that we need to be better.

In the preface, Gibney makes the threat to Americans more explicit:

"A major thesis of this book is that as law becomes less lawlike, the essential goods we expect from the legal system -- order, justice, legitimacy -- will be in ever shorter supply. A minority of Americans already suffer these legal deficits, severely. But general legal decay consigns all of us to injustices large and small..."

Nobody who follows the ChromaDex litigation on this blog will be surprised to learn that our civil justice system is completely broken. The surprise is that that our lived horrible experience is not only the norm, but it is replicated in all different parts of the system.

In other words, the civil court system is terrible, but it's just as bad in the legislature, just as bad in the law schools, just as bad in arbitration, just as bad in the criminal justice system, just as bad in prisons, judges, police, regulatory agencies, -- anywhere you look, it's just as bad.

Gibney acknowledges the strangeness of this idea in his introduction.

"As I spent time with legal specialists in different areas...I noticed that everyone seemed to believe their specialty area was a mess, yet few attorneys asked if the rest of the system was similarly afflicted. They simply assumed that the legal system as a whole was reasonably healthy..."

But the legal system as a whole is not reasonably healthy. Instead, as Gibney explains,

"The whole of law is poisoned, with tangible and serious consequences, and requires a comprehensive overhaul...The rot is spreading from the top. The institutions that make the rules cannot be bothered to abide by them. Congress can't even follow its own rules for making rules: to pass legislation of any importance, Congress resorts to emergency procedures that sidestep committees, open debate, and normal voting. Yet...the real work of legislating is offloaded to bureaucracies, which take their own shortcuts to hustle product out the door. The net effect is that rules can be created in enormous volume, but not always well, nor in compliance with the authorizing law or the Constitution..."

Gibney blames the legal community for refusing to acknowledge the problems, study what's going on, and alert the public -- a public that vaguely senses something amiss, but can't easily comprehend the reality of what has happened:

"Opinion polls suggest that most Americans already disdain law, but whenever we vote, call 911, sign a contract hire a lawyer, pray that the courts provide us deliverance, or do any of the million other things in which law plays a role, we reveal our residual faith in the system. Regrettably, that faith is increasingly misplaced...The law CAN'T fulfill is promises -- not reliably, not in its present state..."

Many readers will find it cathartic to, for example, (1) discover how unreasonable and unfair it is to charge every citizen with knowing what the law is, when there is in fact no way to know the law, or (2) realize that legislators really do not even read the laws they enact, or (3) to really look at the outrage that is civil forfeiture.

But the power of the book is not in its identification of specific glaring errors, but in showing how all the pieces fail to work together, and how each of those failures magnifies the effects of the others. So while in theory plea bargaining may be an efficient way to generate just outcomes, if that plea bargaining occurs in an environment of (1) unbridled prosecutorial discretion; (2) sovereign immunity; (3) scarce judicial resources; (4) inadequate assistance of counsel; (5) punitive cash bail, and (6) draconian sentencing laws, there is no good reason to believe that plea bargains are efficient, fair, just, or anything besides grinding people up, even innocent people.

Gibney does the research to explain how things got this way. The book is extensively footnoted, and it is filled with stories, like how the fiasco of the federal sentencing guidelines happened, and how the fiasco of the federal crime bill happened, how the fiasco of prison overcrowding happened. Gibney writes wryly,

"The whole tough-on-crime experiment was a fiasco. To succeed, the experiment needed a grounding in social realities...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 lights it on fire..."

I wish I had written this book.

It's such an important book, and it's so well-written, and funny, too, in a sad kind of way.

Gibney graduated from UCLA Law School ten years after I did, so I had a decade head start in writing this book, but he beat me to it anyway. On the other hand, he had some advantages I did not (his roommate at Stanford co-founded PayPal, and Gibney got very wealthy very fast). But Gibney is using his powers for good.

I think reviewers are not completely understanding the book. It is sometimes called a "polemic" and Gibney is called an "insurrectionist." The Washington Post says the book is "not exactly groundbreaking" because anyone "deeply emerged in the legal system" will already know about some of these problems.

That's all bullshit.

The power of the book is precisely that it brings together a broad set of critiques that NO ONE is fully familiar with, and makes them understandable even to people who are not deeply emerged in the legal system. Your doctor is not delivering a "polemic," nor is she acting as an insurrectionist, when she describes how the cancer has spread throughout your body; it's a medical diagnosis, and one based on facts.

It must hurt the political establishment to hear that their legal system is an unjust farce. Or, as Gibney describes it, "For all its other problems, law has, by definition, served its elites well, making it harder for them to see (or care) whether law is working for everyone else. Indeed, some traditions hold that the efficacy and morality of laws are not proper subjects for legal study...Furthermore, many eminent legal commentators, whatever, their doctrinal perspectives, must maintain polite relationships with the legal system...Having extracted myself from the vocation of law, I'm largely immune to these considerations..."

But book reviewers for the corporate media are not immune to these considerations, so the Washington Post will call The Nonsense Factory old news, and the New York Times won't say anything at all and just hope it goes away. But independent legal commenters, like me, or like the blog Lawyers, Guns, and Money, will tell the truth about the book.

The truth is that you should read it. Every citizen should know. And practicing lawyers in particular should read it, because they are just as trapped in this system as anyone, and they will be best positioned to advocate for reforms at the proper time.

So get a copy, and read it. You'll be a better citizen. Then share it with a friend. And make sure your lawyer friends, in particular, know about it. This is medicine for the legal system. Let the public consciousness marinate in this truth about our legal system every day for about 10-20 years, and then we'll cook something new.