December 12, 2018

Archives for August 6, 2015

The Culture of Law (Part 5): Culture by Agreement

rhodesWe’ve seen that culture is a matter of individual brain patterning. But how is culture transmitted from one brain to another, so that all brains in a culture have the same wiring?

It begins with a shared experience of cultural formation, which we’ve looked at. After that, culture is reinforced by agreement. Agreement about what? A state of mind.

Because mental states cannot be transferred physically, they must be transferred by being re-created in the mind of the receiving individual.

[W]hat is transmitted is some state of mind that produces behavior.

[The transmitted state of mind includes] a myriad of… beliefs, values, desires, definitions, attitudes, and emotional states such as fear, regret, or pride.

From an article by Philip G. Chase, former Senior Research Scientist and Consulting Scholar at the University of Pennsylvania, in a collection of scholarly articles entitled Evolution of Mind, Brain, and Culture.

Law students entering law practice observe lawyers thinking and behaving in ways that characterize law culture — that make it recognizable as such to both members and non-members. Through observation and imitation, they become habituated into cultural norms of thinking and acting, forging implicit agreements about law culture which are reinforced through ongoing experience. In time, they become recognizable as lawyers even when they’re not lawyering. It’s a mindset: “once a lawyer, always a lawyer.”

The same is true of other professional cultures. Think of accountants, engineers, physicians. Meet one, and you can just tell.

John R. Searle, Professor of Philosophy, University of California, Berkeley, has made a career of deconstructing about these cultural agreements, beginning with his landmark book The Construction of Social Reality, where he framed his inquiry this way:

This book is about a problem that has puzzled me for a long time: there are portions of the real world, objective facts in the world that are only facts by human agreement. In a sense there are things that exist only because we believe them to exist. I am thinking about things like money, property, governments, and marriage.

If everybody thinks that this sort of thing is money, and they use it as money and treat it as money, then it is money. If nobody ever thinks this sort of thing is money, then it is not money. And what goes for money goes for elections, private property, wars, voting, promises, marriages, buying and selling, political offices, and so on.”

How can there be an objective world of money, property, marriage, governments, elections, football games, cocktail parties and law courts in a world that consists entirely of physical particles in fields of force, and in which some of these particles are organized into systems that are conscious biological beasts, such as ourselves?

Professional culture is not monolithic. In every profession, the cats resist herding. Members of the culture practice some cultural agreements more than others, according to personal preference. We’re not all in the same place on the cultural bell curve. Yet there is undeniably an identifiable mindset that characterizes the culture, and a general consensus about what that mindset is, even if you believe yourself to be an exception. (I have asked workshop participants about this for years, and the list of what characterizes law culture is always the same. You can write it up for yourself, right now, if you like.)

The seeds of cultural change lie in the tension between the general consensus and individual self-perception. More on that coming up.

For a taste of what I mean by cultural norms that make law culture “recognizable as such to both members and non-members,” check out these recent blog posts on “admirable” and “distasteful” lawyer mindsets and behaviors.

A collection of Kevin Rhodes’ Legal Connection blog posts for the past three years is now available in print from Amazon. Also available from Amazon as a Kindle, and as an ebook from Barnes & Noble, iTunes, Smashwords, and Scribd.

Tenth Circuit: Final Decisions of Tenth Circuit and Supreme Court Must Be Respected

The Tenth Circuit Court of Appeals issued its opinion in Ute Indian Tribe of the Uintah and Ouray Reservation v. State of Utah on Tuesday, June 16, 2015.

Nearly 40 years ago, the Ute Tribe in Utah filed suit against the state and several local governments, alleging the governing bodies were unlawfully trying to displace tribal authority on tribal lands. The Tenth Circuit issued a ruling in 1985 (Ute III) agreeing with the tribe and rejecting Utah’s claim that Congressional action had diminished three constituent parts of the Ute tribal land. The U.S. Supreme Court denied certiorari, but instead of following the Tenth Circuit’s mandate, state authorities prosecuted tribal members in state court for conduct occurring within tribal boundaries. One of these cases made it to the U.S. Supreme Court, and the Court agreed with the Utah Supreme Court that the tribal boundaries were diminished. Because of the conflicting rulings, the Tenth Circuit recalled and modified Ute III‘s mandate in a ruling the parties called Ute V.

Despite these final rulings, Utah continued to defy the mandates and prosecute tribal members in state court for actions occurring within tribal boundaries. The tribe filed suit against Utah and several local governments in federal court, seeking a permanent injunction prohibiting the state from prosecuting tribal members in state court for conduct occurring within tribal boundaries and prohibiting the state from relitigating matters settled by Ute III and Ute V. The tribe specifically asked for an injunction to halt the prosecution of one tribal member, Lesa Jenkins, for alleged traffic infractions occurring within tribal lands. The state and Uintah and Duchesne counties counterclaimed, arguing the tribe had infringed upon their sovereignty. Three interlocutory orders were before the Tenth Circuit as a result of the latest litigation: (1) the tribe’s request for a preliminary injunction, (2) the tribe’s assertion of immunity from the government’s counterclaims, and (3) Uintah County’s claim of immunity from the tribe’s suit.

The Tenth Circuit first addressed the tribe’s request for a preliminary injunction. The district court denied the request in one sentence, holding the tribe failed to demonstrate that it would suffer irreparable harm without an injunction. The Tenth Circuit disagreed, stating that it has repeatedly held that an invasion of tribal sovereignty can constitute irreparable injury, and the invasion of sovereignty in the instant case was much greater than that in the previous precedent. The Tenth Circuit suspected the “tortured litigation history” behind the prosecution of Ms. Jenkins was a repeated campaign to undo its previous mandates in Ute III and Ute V. The state brushed off the tribe’s concerns as “speculative,” and Wasatch County argued the tribe could not exercise any authority over any lands in Utah because it was once a separate, independent nation called the “State of Deseret” with its own constitution that didn’t recognize tribal authority. The Tenth Circuit found this argument unavailing. The Tenth Circuit found no doubt that the government’s conduct significantly interfered with tribal self-government sufficient to constitute irreparable injury to the tribe, opining that it seemed to be the government’s purpose. The merits of the case also supported the Tenth Circuit’s conclusion that a preliminary injunction was mandated. The Tenth Circuit found little support in the state’s argument that it would be required to engage in racial profiling to determine whether a driver stopped for a traffic infraction was a member of a tribe, noting the police could simply ask the driver whether the driver is a member of the tribe, and contact tribal authorities instead of writing the ticket. The Tenth Circuit compared the potential harms that could arise with and without the injunction, finding no question that the tribe would suffer more than the state. The Tenth Circuit remanded to the district court with instructions to issue the preliminary injunction against the defendants.

The Tenth Circuit next dismissed the counterclaims against the tribe, finding it had long been settled that Indian tribes are only subject to suit where authorized by Congress and these counterclaims were not authorized. The states and counties argued the tribes waived their immunity in three agreements signed after Ute V, but the Tenth Circuit found no support for this argument, because the agreements had expired and specifically reserved tribal immunity. The Tenth Circuit found the tribe was entitled to dismissal of the counterclaims.

Finally, the Tenth Circuit turned to Uintah County’s argument it was entitled to immunity, finding it foreboding that no other governmental entity joined its claims. Noting that the Supreme Court has repeatedly denied immunity to counties, the Tenth Circuit quickly rejected Uintah County’s assertion that its county attorneys were the main focus of the suit and they were subject to immunity as “arms of the state.” After determining that the attorneys had insufficient connections to qualify as arms of the state, the Tenth Circuit dismissed these arguments.

Issuing a reprimand to the state and counties for disobeying its previous mandates, the Tenth Circuit noted “A system of law that places any value on finality — as any system of law worth its salt must — cannot allow intransigent litigants to challenge settled decisions year after year, decade after decade, until they wear everyone else out. Even — or perhaps especially — when those intransigent litigants turn out to be public officials, for surely those charged with enforcing the law should know this much already.” The district court’s decision denying the tribal request for a preliminary injunction was reversed and the court was directed to issue the injunction. The decision denying tribal immunity was also reversed and the district court was instructed to dismiss the counterclaims against the tribe. The district court’s decision denying immunity to Uintah County was affirmed. The Tenth Circuit warned that sanctions would issue for further litigation about these settled issues.

Colorado Court of Appeals: Announcement Sheet, 8/6/2015

On Thursday, August 6, 2015, the Colorado Court of Appeals issued no published opinion and 20 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Unpublished Opinions, 8/5/2015

On Wednesday, August 5, 2015, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

United States v. Aranda-Diaz

Miner v. Falk

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.