“It’s Worse Than People Are Prepared To Believe.” A discussion with Bruce Gibney about his upcoming book The Nonsense Factory: The Making And Breaking Of The American Legal System
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By nearly any metric, the litigator-turned-venture-capitalist Bruce Gibney counts as one of the clear-cut winners to emerge from the terrifying corporate-tech duopoly of the past three decades. An early investor in PayPal, Gibney’s knack for betting on the right horse subsequently led his Founders Fund group to take forward-looking interests in Spotify, Lyft, AirBnB and other juggernauts of the new economy. Many people with this track record would become thoroughly disengaged with the travails of rank-and-file Americans, or at a minimum complacently accept their exalted status in a rarefied strata. Gibney, who has more than a little punk rock to him, has done the opposite.
In 2017, Gibney threw down the generational gauntlet with the uproariously funny but rigorously argued and researched broadside A Generation Of Sociopaths: How The Baby Boomer Generation Betrayed America. In that book, Gibney meticulously walks the reader through the misdeeds of a segment of Americans born into historic prosperity and the ways in which their limitless appetite for personal indulgence helped bring us to our miserable current political moment. The tone could be lacerating, but the exercise itself was intellectually invaluable: re-framing the dysfunction in our politics as less a consequence of partisan factionalism and more as a grand agreement between privileged Boomers across the political divide to enrich their present rather than vouchsafing the future.
It was a big swing, but if anything his new book, The Nonsense Factory: The Making And Breaking of the American Legal System, is even more ambitious. A diligent, carefully considered overview of the law and its many facets, The Nonsense Factory begins from the premise that contemporary corporate, civil and criminal law are all currently in a state of perilous inefficacy, and then proceeds to demonstrate the problem may well be even worse than that sounds.
Gibney is an insurrectionist with a heavy mind but a light heart. He can be acid on the page — appropriately so, given the malfeasance of his targets – but in person he is warm, friendly and self-effacing. Gibney’s new work is certain to be as polarizing in some quarters as his previous one was — that is in many ways the point — but his overarching intellectual project is a deeply admirable, and indeed, a patriotic one. He’s willing to take a little heat to get some new ideas out there, and he’s willing to make a few enemies in the process. By applying his deeply agile mind to the seemingly intractable obstacles of our democracy, he implicitly and crucially demonstrates the belief that real solutions exist. With his The Nonsense Factory set to be released by Hachette later this month, we spoke to him about his diagnosis of and remedies for the law.
Q: Your new book is an extraordinarily comprehensive critique of nearly every segment of our current legal system, from criminal, civil and corporate law to the Congress. Since you are a trained attorney, I’m wondering at what point the observation occurred to you that things were as broken as you perceive them and when it seemed like it’d make a good book?
BG: I became convinced that law was intolerably dysfunctional as soon as I became a client myself, which is an experience that most lawyers don’t really get. As a client, you want straight answers to basic questions. What permits do I need to get for this remodel? When does this form have to be submitted to the SEC? Is this part-timer an employee or an independent contractor? These are simple questions and the legal system should provide clear answers. It doesn’t. From a lawyer’s perspective, this isn’t very frustrating — it’s literally not the lawyer’s problem. But from the client’s perspective — which is really the citizen’s perspective — this is totally unacceptable. So I wanted to know why law couldn’t answer any question worth asking. And I thought the results might be interesting to anyone who felt like throwing their phone across the room after talking to their lawyer, or dealing with a Social Security administrator, or looking up a building code, or figuring out a tax deduction. Which, I think, is most everyone.
I had hoped that law’s problems were localized, but it turns out that the entire system is a mess. The legal system just doesn’t understand itself: lawyers don’t understand their clients, judges don’t understand legislators, regulators don’t understand the industries they regulate, and so on. The predictable result is that law doesn’t function very well, and to really appreciate the scope of the problem requires looking at the entire system and studying how the various parts interact.
A lot of legal discourse is unhelpfully narrow; it’s sort of like looking at a losing baseball team and saying “they’re losing because they don’t score enough runs; let’s only hire .400 hitters and not worry about the rest.” That could work well for one inning, but not a game or a season. You have to look at how the entire game is played, and how the players work together. That’s why I thought it would be useful to provide an overview of the legal system in one book. I’m sure some professors are going to go bananas about this, but if you can’t explain the general dynamics of the legal system in one volume, you also can’t reasonably expect citizens to like or obey all the rules that law imposes on them. I do try to keep it light where I can. Most legal books read like a cross between a dishwasher manual and an Inquisition torture pamphlet, which puts people off — and being a cynic, I suspect that’s partly strategic. Abusive systems like to bore people into obedience.
Q: In the instance of criminal proceedings, you discuss the relative unreliability of certain kinds of eyewitness testimony and forensic evidence, which came as a cold shock to this regular Law & Order viewer. Can you describe the shortfalls in those consistently employed prosecutorial methods and the ways in which they disproportionately impact individuals of lesser means?
BG: Let’s start with witness testimony. If you step back for a moment, it’s odd that we give much credence to eyewitnesses at all. First, human memory is pretty terrible. There’s a giant scientific literature on this, but we also know it from our personal experience. What is “Find my iPhone” but testimony to the frailty of human memory? If we lose a $700 gadget five seconds after we put it down, is it reasonable to believe that we’re any better at remembering details of some event that happened five hours or five years after the fact? Not really. But the law refuses to take the frailties of eyewitness memory seriously. In fact, some courts ban experts from testifying about witness reliability on the grounds that jurors understand the issues as a matter of common sense, even though the research is pretty conclusive that people don’t.
Witnesses not only forget things, they often have incentives to lie — that’s why many of them are in court, after all. Faced with conflicting testimony, jurors have to decide who to believe. This is a credibility game that favors the state. A defendant has much stronger and more obvious interest in a case than the average police officer — that doesn’t mean the defendant is lying, only that it’s easier to be skeptical. Defendants also tend to be less articulate, less educated, less socially prestigious, and less familiar with the legal system than their opponents, so they don’t get as much benefit of the doubt.
The bigger surprise is forensic evidence, which is supposed to be iron-clad science. It’s not.
With the exception of DNA tests, most forensic evidence is pretty unreliable. Bullet lead, bite marks, hair samples, and so on, are questionable and now at least partially discredited. And even when forensic evidence is semi-reliable, it’s prone to misinterpretation. There’s no way to prove that fingerprints are unique, for example; all you can say is whether one print looks a lot like another. There’s also no such thing as a DNA “match” using current technology — all you can prove is that DNA doesn’t match. That’s why genetic evidence is so important in overturning convictions, most of which were secured using eyewitness testimony.
Courts don’t have a great way to filter this evidentiary junk pile, so litigation often depends on who has the most stuff validated by people with the fanciest pedigrees — in other words, government and the rich have a huge advantage over citizens and the poor. A federal prosecutor has lab techs, investigators, experts, and a healthy budget. A defendant might have the fractional attention of a public defender, and if he hasn’t made bail, he might not even have physical access to his own evidence. Another thing: the expert witnesses who present technical evidence aren’t independent; they don’t follow evidence wherever it leads. Attorneys hire experts and know what the testimony will be, in part because they often write or edit the “expert’s” report themselves. It’s not the case that some professor just happens to agree with Monsanto and feels the need to set the record straight. The professor’s testimony might be honest, but it’s not science — it’s advocacy.
Q: A topic you speak to at length is access to the law relative to economic means. The rates for high-end law firms are prohibitively onerous, while prosecutors and DA’s can bring to bear exponentially greater resources than your average public defender. What are your recommendations for addressing this inequity and do you believe it is achievable?
BG: For criminal law, the solution is straightforward: increase funding for public defense. Arguably, the Constitutional right to counsel requires nothing less. It wouldn’t even be that expensive. At the federal level, it would take $3-5 billion to achieve reasonable financial parity between prosecution and defense — for context, that’s about 60 hours of Medicare spending. It’s doable.
To address legal costs generally requires more comprehensive reform. Legal rates have been rising faster than inflation for decades, because unlike almost every other part of the economy, law isn’t getting more productive. It takes just as long to write a brief or review a contract as it did thirty years ago. And because higher education—which is the main “input” cost for law firms — has been getting rapidly more expensive, those thirty hours are pricier, too. The normal solution would be to invest a ton of money in R&D, but no law firm can afford to fund Silicon Valley-style innovation out of its own pocket. The normal solution is to raise outside capital—that’s how Google, Apple, and so on got built — but legal ethics don’t allow for that. As a result, law doesn’t innovate. It just gets more expensive.
Another problem is law’s one-size-fits-none model. Legal problems come in all shapes and sizes: you don’t need a J.D. to handle a real-estate closing or a misdemeanor bail hearing. Other countries understand this and have different tiers of legal services, at different prices. We don’t, though we should.
Q: In the past decades, mass incarceration of frequently non-violent offenders has increasingly become the national status quo even as crime rates continue to fall. I’m wondering who you hold most responsible for this dehumanizing piece of public policy, and more importantly, what measures are feasible for creating reform?
BG: Everyone was responsible — there was a broad social consensus in the 1980s and 90s to get really tough on crime — but the legal system bungled things. Legislators were the biggest offenders, because they never thought the issues through. While crime was increasing through the 1980s, legislatures never asked why, or whether there were non-penal correctives that might work better, or if crime might recede on its own, which it did. Those were crucial errors.
Legislatures also didn’t fully understand how their laws would be used. Some lawmakers probably suspected that prosecutors might use the raft of new criminal laws to coerce plea bargains, but I don’t think anyone entirely understood that 95-97% of cases would now be plea bargained. Trial courts actually conduct fewer trials now than they did fifty years ago, despite a huge increase in population and criminal prosecutions. Then again, legislators didn’t even check with prison bureaus to see if the system could even contain all these new convicts. They couldn’t, which is why you had court-ordered mass releases in places like California. Presumably, that’s not what the three-strikes crowd had in mind.
There was other bungling, notably mandatory minimums and the U.S. Sentencing Guidelines. These policies were supposed to reduce racial sentencing disparities, while sending a stiff deterrent message. That didn’t happen. And it turns out that the Sentencing Guidelines were not only a policy debacle, they were partly unconstitutional — a pretty remarkable result, given that the Guidelines were prepared under the auspices of Stephen Breyer, who now sits on the Supreme Court. And, as we now know from academic studies, when crime started declining in the 1990s, it was for reasons unrelated to this whole tough-on-crime routine. New York was already getting safer before Giuliani was in charge; the states were getting safer before their three-strikes experiments; America was getting safer before Clinton signed the Antiterrorism and Effective Death Penalty Act.
Reform is partly a policy choice, which means voter preferences need to change. At least among younger people, that process is underway. But no matter what the policy, we’ll still have disasters if law doesn’t find a way to understand itself and the consequences of its actions. For example, the Court has articulated an incredibly complex jurisprudence about when searches, seizures, and use of force are proper. That’s worse than useless. If beat cops can’t understand the law, they can’t obey it. The Court partly understands this, and excuses misconduct if the governing law is too murky for cops to understand, which effectively immunizes brutality. Predictably, we have brutality. Until law gets its act together, it will keep producing these unintended tragedies.
Q: You’ve painted a portrait of local police forces that are in many instances under-trained and over-armed. In some cases, the basic qualifications for being hired as a police officer are troublingly underwhelming. What remedies would you propose for creating a law enforcement apparatus better equipped to serve the needs of their citizenry?
BG: The first step is to properly define the police mission. Police aren’t, and can’t be, social services. Unfortunately, the de-funding of mental health programs, the criminalization of behavioral problems like drug abuse, the failure to address homelessness, and so on, force cops to do work that they’re not trained for. You can bang a nail into a board with a screwdriver, but the results won’t be pretty. We should allow cops to refocus on core criminal issues.
Whatever the mission, police recruiting needs to be more rigorous. Police should be at least as well educated as the public they serve, and arguably somewhat more so, given that criminal issues are complicated and police can use deadly force. There’s decent evidence that better-educated, somewhat older recruits are less prone to misconduct — so if we’re concerned about police brutality, we should be concerned about police hiring. Unfortunately, it’s not the priority it should be. Departments often hire recruits without college degrees, and many accept recruits with criminal records, which is obviously bizarre. Nor are departments particularly good at training. Six months is not enough time to learn a profession, especially when the average policing curriculum spends more time on guns and paperwork than on criminal detection and civil rights. If all you’re taught is force and forms, you’ll use force and fill out forms. Cities should also try harder to reverse the trend of cops living outside the communities they police. It’s harder to know the norms, or sympathize with the citizens, of a community that’s not your own.
It’s worth noting that American policing is an outlier in the developed world. Our peers hire more selectively and train more thoroughly. And our peers generally emphasize proportionate policing. Eric Garner was a street peddler, and in Germany, he would have gotten a ticket. No one dies over a ticket. But you can die during a forceful arrest, and that’s what happened to Garner in New York. Most of the world thinks American policing is absurdly militarized and haphazard. Where else would you see a deputized Steven Seagal driving a tank to break up a chicken fight?
Q: Finally, I found it interesting that you trace much of the lawmaking inefficacy to certain fundamental failures of the Constitution. Can you elaborate for our readers the way in which you believe this to be the case?
BG: The Constitution is an amazing document, but it was designed for another era, where the federal government didn’t have that much to do. The population of federal employees in 2019 is substantially larger than the enfranchised population of the United States in 1789, and the country is a lot more complex. It’s no more reasonable to expect the Constitution to function perfectly for 21st century America than to expect a supercomputer to run on MS-DOS.
The biggest problem, I think, is what to do about the federal bureaucracy, which the Constitution didn’t really anticipate. Bureaucracies make, enforce, and interpret laws, mixing powers from all three branches of government which are supposed to be kept separate. As a historical accident, almost all bureaucracies sit in the executive branch, which means that presidents have a lot more control over government than they should. What does the Clean Air Act mean? Whatever the current administration says it means, more or less. This makes policy volatile, which makes law inefficient. It’s also undemocratic — as we all know, it’s possible to lose the popular vote and win the White House. And in some cases, it’s wildly unjust. Bureaucracies can litigate against citizens in their own courts before judges that they employ, which is a mild Constitutional obscenity. This used to be a traditionally right-wing complaint, focused on agencies like the SEC, but these abuses occur in immigration and Social Security hearings, too.
Bureaucracy isn’t high on the usual lists of Constitutional problems. But bureaucracies are 97+% of government, and they write most of the rules we obey, calculate all of the taxes we owe, and determine all the benefits we do or don’t get. They don’t have perfect Constitutional authority to do everything they do, which is why the Supreme Court smacked them down in the 1930s, which led to a Constitutional crisis. Given that conservative Justices are poised to stage a partial repeat in the 2020s, we might face the same problem again. Outside of niche specialists, most people aren’t aware of this problem, but it’s a big one.
The Constitution bears some of the blame. It’s now functionally impossible to amend the Constitution, and we rely on judges to kludge in solutions — as they did with a lot of our civil rights. But there are some things judges just can’t do. They can’t fix the radically disproportionate power of small states, which means there’s nothing they can do about the Senate, the Electoral College, or the mechanisms for amending the Constitution itself. Nor, given the present judiciary, should anyone be excited to see a repeat of the judicial activism that updated the Constitution from 1937 to 1969.
The law is even worse than people are prepared to believe. We need to understand the problem and fix it. Law is the transmission mechanism for social policy, and if we don’t fix law, then the policy proposals that are generating so much excitement — Green New Deal, wealth tax, financial regulation, whatever — none of them will achieve their intended effects.