Wednesday, September 01, 2010

Getting laws that work means getting laws that can be understood -- even by non-lawyers

There was a professor at Chicago-Kent College of Law, back in the late 70s and early 80s, who was one of the superstars of the Illinois bar review course. No -- not Professor Conviser, who merely ran the company -- but Professor Spak.

Professor Spak had a distinctive viewpoint when it came to legislation: All new legislation, he said, means more work for lawyers.

If so, between Obamacare and Dodd-Frank alone, we should end the Great Recession by the prosperous employment of an army of new lawyers.

But the pendulum has swung too far.

The local NBC affiliate had a story on the late news yesterday about a Carpentersville family hounded by a zombie debt collector.

Also known as scavenger or junk debt collectors, these bottom-feeders buy debt that others could not collect. Let's say you fail to pay Mr. Visa this month. Mr. Visa will unleash his battalion of debt collectors on you -- but, for some reason, you still fail to pay. The matter will be referred to "collection" -- someone outside -- who will try and collect the debt charging a fee of up to 50% of the amount collected. If these efforts fail, suit may be filed.

But people move. Sometimes, when people owe a lot of money, they move quickly, under cover of darkness. Process servers can't find them. The suit languishes and is ultimately withdrawn.

The collector can still make money off these uncollected accounts, though, if it sells to someone lower on the food chain. The entity that buys the debt pays pennies on the dollar because these debts have already proved resistant to collection. But the new collector can seek 100% of the original amount owed (and all the interest and late fees and other junk larded on initially). So the new collector only has to 'hit' on a few of these debts to make the investment pay off. If it gets a default judgment against some debtor, it can garnish wages and levy property and do all sorts of things that really can squeeze blood from a turnip. Legally. And the residuals -- the ones that couldn't be found, now twice filtered, are sold again, now for pennies of what the second buyer paid. And the process can be repeated indefinitely -- at least until the statute of limitation on the debt expires.

That can be a long time. In Illinois, suits on a written contract can be filed up to 10 years after breach.

Thus -- zombie debt.

The family in the linked story didn't owe any money. Someone put the wife's maiden name together with someone else's address (someone with a similar name, probably) and thought it might get somewhere. Someone added 2 and 2 and got 17.

The story mentions how the family had to change its phone number to get away from the harassing collection calls. Only at the very end does it mention that consumers have weapons with which to fight back. The story mentioned only the Fair Debt Collection Practices Act, 15 U.S.C.A. §1692 et seq. But there may be state law remedies as well. And remedies under both state and federal law may provide for penalties and attorney's fees -- requiring fees to be paid to the lawyer for the successful prosecution of a claim against the creditor -- fees that must be paid by the creditor.

Don't ask me to explain all the remedies, though. I saw the story last night on TV and remembered some research I'd done recently and I pulled my notes this morning -- and could not make heads or tails of them. I don't regularly engage in consumer law issues.

And that, finally, brings me back to where I wanted to take this morning's essay.

When the law is so complicated that a lawyer has to spend huge amounts of time to figure it out -- unless he or she practices in that area on a regular basis -- something is wrong with the law.

In my 30 year career, I've watched that statute books bloat and swell. I'm not talking annotations here; I'm merely talking about the text of one state's laws. The slim volume of statutes that our forebears chucked into the covered wagons along with the King James Bible is a distant memory. Now the big federal statutes -- Obamacare, for example -- are five or ten or 15 times as big as those ancient lawbooks. For each individual statute.

Look: Moses started out with ten laws (15 if you subscribe to the Mel Brooks version). That was perhaps too few. Too general.

But we need to simplify our legal codes. We need to prune relentlessly. We can't expect people to respect -- and follow -- laws they can't read and couldn't find in a warehouse of volumes.

And you can't expect a society of laws to endure for long if the laws are neither accepted nor understood.

1 comment:

Dave said...

You made me feel better - I spent twenty minutes this morning reading a statute to finally understand it, I think.