We adapted to World War Two by training up an army nearly from scratch. We built a Navy of globe-spanning capability in short order. We created a new intelligence institution that performed better than its professional replacement. With tools adapted to the need, we prevailed in the most dire threat to Western Civilization since the battle of Thermopylae.
Yet today we can’t hire enough judges to address our crisis of refugees on the border. We can’t find the means in a budget over a trillion dollars in deficit. We will bicker over a wall (which misses nearly half of the problem) before we will fix the distortions in law that show a complete inability to cope with basic game theory, which involves sorting the millions of refugees who have learned what they need to say in order to, get asylum from the ones in true danger.
The claims of Latin American refugees also defy geographic common sense: the flight of a refugee from a crisis explains flight, but it cannot explain flight across so many other safe havens. That flight is also explained by the game theory in the countries through which the refugees pass (or more accurately, are forced ). This, in defiance of international law, which our most extensive legal system (extant ever) also can’t cope with. These failures to adapt to the crisis creates the refugee’s moral hazard, itself a bedrock principle of law.
The numbers involved in the border crisis also reveal how laughable is the notion that we are engaged in some sober and proper legality from the most legal-on-high: applicants are given a brief hearing to evaluate their status. They are then given a court date, often years later, where only ten percent appear. Logistically, it is simply not possible for our system to truly investigate these claims, but the system will allow nothing to challenge its appearance of sacredness, to repair the laws’ actual performance. Like training up paralegals to open the logjam, for example (take it from a paramedic, paras can get a lot done).
The same knot has been tangled in Europe, where “true refugees” are intermixed with people fleeing garden-variety poor-governance (and how far behind on this are we?). Poor governance (like an inability to apply laws that mitigate moral hazard) was never intended to qualify a person as a refugee (then, in the age of Trump, who could have a home?).
Across the Mediterranean refugee/gamers also learned to [create a humanitarian crisis, in order to qualify for humanitarian assistance, which makes more refugees, and more moral hazard by emulation. It was not the application of lofty law that solved Europe’s refugee dilemma. It was solved by Europe bribing Turkey to take them off their hands. Anyone who imagines the Turks will use that money to uphold human rights law, which all the soul-searching has been about from the outset, is naive to historical Islamic innovations in dysfunctional government. How many wars to sort out Islamic political dysfunction are we involved in? I lose track.
None of this is to say some don’t deserve asylum; many do. Or that we don’t need immigration; we do. The system fails the real refugees the most; their lives are at stake. It fails the deserving immigrant as gaming makes mugs of them in their honest appeal.
At the same, near-schizophrenic, time we expect this same system to rake through our consciousnesses for signs of sexism, racism, or homophobia (while knowing it will cost the value of a new car). It took us 5 years, reaching up to the Supreme Court, to decide if a business must be compelled to bake a cake that violated a religious tradition over two thousand years old. Yes, the supremacy of law is a bedrock American principle. But then there is reality, where we can wonder where our system has gone wrong, where the entertainment of a gay cake case, costing millions of dollars, is given legal resources unavailable to our fatal refugee crisis.
The nation that had the open solution space to forge tools for winning World War Two nearly from scratch now fights ineffectually over basic border controls in the time it took for us to win that battle for The West, using a legal system so complex that basic concepts like moral hazard and basic citizenship duel with one another. To be settled by the same system of rarified law dueling.
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“our most extensive legal system (extant ever)”
Maybe much too extensive? Recall that Argentina was perhaps the richest country in the world at the beginning of the last century. To this day BA is considered the Paris of Latin America. Could one reason for its decline be too much law or a much too litigious society?
Many years ago during one of my trips there for the World Bank a former colleague who had been minister four times took me to lunch to put me into the picture. He used his own experience to illustrate what was wrong, something I had already heard from other colleagues but not as vividly.
He told me of how during one of his stints as minister he had pushed his chief legal counsel for an opinion that was taking too long to come. His chief counsel’s reaction was to sue him for interfering with the creative legal thinking process.
So much a for lack of a functioning legal system, at least in some South American countries. But the bigger point is whether too much law is getting in the way of effective government here in the U.S.
I agree completely. I have long beIved our legal system is, or is becoming, at least, too complex and expensive to be functional. I’ve written about it many times.
I’d love to see a piece on how the Argentine legal system became too complex to be functional.
Wasn’t it the excessive legal fights that led Sarah Palin to resign as Alaskan Governor.