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| Whitman speaks in Montreal. RJ Peltz-Steele CC BY-NC-SA 4.0 |
Whitman gave the plenary keynote at the annual meeting of the American Society of Comparative Law, meeting at the Faculty of Law of McGill University, in Montreal, Canada.
Whitman organized his talk in two principal parts. First, he explained that the ability of the Trump administration's overrunning of the rule of law is not wholly new, but a result of "longstanding" dysfunction.
Namely, the American "variety" of rule of law never embodied the notion familiar in Europe, that law is to be followed rather than circumvented; rather, the American conception of "freedom" fostered law only as a framework to be gamed. The phenomenon can be seen, for example, in the way bankruptcy is tolerated legally and even regarded as social and economic achievement; the way transaction costs are weaponized to convert civil dispute resolution into settlement calculation rather than contest of merit; and the way that criminal charges are reduced to plea bargaining irrespective of guilt or innocence.
Whitman's second referenced his 2017 book, Hitler's American Model: The United States and the Making of Nazi Race Law. Whitman explained in that book how Nazi Germany took from American law not racism per se, but the dangerous notion of a legal framework that formally recognizes equality while legislating based on race, essentially separate but equal. This principle is a logical extension of the same notion that American law provides a framework to be gamed. Despite the brief respite of the civil rights era, Whitman said, race inequality remains plagued by the "curse" of inequality and might always.
America's rule-of-law problem is made worse by the failure of common law to evolve, and a small, selective, general-jurisdiction Supreme Court woefully outdated and outmatched against the challenges facing a modern economy, as demonstrated in comparison with the constitutional court model known elsewhere in the world. The court is simply too slow to respond to crisis, Whitman said, and when it does, it responds with weak rules that simply invite the next level of gaming.
If Trump acts so boldly as to nullify the results of the next presidential election, Whitman posited, then civil war will break out. But the more likely alternative might be no better: America continues to hobble along with dysfunctional rule of law, growing inequality, and an ever worsening length and quality of life for ordinary people on the brink of financial ruin and of death and suffering by curable disease.
Whitman is the author of an article on my shortlist of favorite law review articles ever, The Two Western Cultures of Privacy: Dignity Versus Liberty (2003). The article exemplifies comparative legal research and has been essential to my understanding of personal privacy in the digital age.
