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Law Rules

How we resolve our disputes

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Wednesday
Jul272011

Uncertain certainty

In my last post, I noted that predictability was not a hallmark of trial by jury. Long ago, I gave up predicting what a jury would do. Perhaps this is what utilitarian philosopher Jeremy Bentham was thinking when he said “The power of the lawyer is in the uncertainty of the law.” Negotiators for NFL players and owners may also have recognized the risks in predicting the future when they recently settled their contract disputes.

Meanwhile, our nation’s capital seems to be filled with those who are certain that they know what the future holds and what is best for the country. The problem is that at least two groups are so certain, and their proposed policies are mutually exclusive. One side believes we can reduce our deficit (if not balance the budget) strictly by making cuts in expenditures. The other believes that both expenditure cuts and revenue increases are necessary. No one believes that Congress and the President will risk ruining the nation’s credit rating by defaulting on the national debt, but they are playing a dangerous game of chicken. Someone has to blink.

In litigation, many cases settle on the courthouse steps, with a jury in the box, ready to decide the case. These last minute settlements frequently occur because one side finally realizes a flaw in its case or a mistake in assessing the risk of an adverse decision. Settlements made under such circumstances are rarely favorable to the panicked party. Such outcomes are bad enough when they involve private parties involved in civil litigation. They can be catastrophic when the nation’s finances and economy are at stake.

Unfortunately, no independent, impartial mediator appears to be ready and able to save our elected leaders from themselves. The President cannot be mediator-in-chief because he, too, is a politician with a dog in the fight. We can only hope that the impending debt ceiling deadline provides the necessary reality check that brings the warring factions to their senses and produces a solution we can all live with.