Book Review: Over Ruled, The Human Toll Of Too Much Law: Neil Gorsuch & Janie Nitze

We have in Over Ruled, a book which seeks to bring the age old question about legal systems to the discussion table, how much law is good, too much or too less? Justice Neil Gorsuch, a judge of the U.S. Supreme Court wonders, are the legislatures and executive branch over-regulating the lives of people? While doing so, Justice Gorsuch takes route through an immense amount of information, data to paint a vivid picture which shows both the macro and micro picture. But while doing so, he brings to light the essential story. The story of the citizen, for whom the entire legal system was built to serve. Behind the system, law and court rooms, legislatures and regulatory bodies, lies hidden the common man. It is the unsaid tale of the common American citizen, who is brought to the fore in this book.

The book shares many stories but the one which stands out, is about John and Sandra Yates. John Yates was a small fisherman, dependent on fishing to sustain his family. It turns out that John Yates found himself on the wrong side of law while fishing. Most of us would guess, John Yates must have been in trouble for either fishing some protected species in a protected reserve or doing commercial fishing without a license. Well, John Yates was alleged to have violated the Sarbanes – Oxley Act. (A law enacted in the aftermath of Enron scandal requiring public companies and corporations to provide accurate financial record keeping and reporting). A fisherman in Florida was accused of violating a financial law for underreporting the size of fish he was selling. From the time of raid by federal agents on his boat to the decision by the U.S. Supreme Court, found him being jailed, lost his fishing boat and later, his house. John and Sandra, who were also raising their grandchildren, had to restart their lives amongst the ongoing litigation, by leaving a vocation he had pursued for 28 years. A trial court found John Yates guilty of the Sarbanes Oxley offence. The case travelled up the hierarchy of courts when luckily for them, the U.S. Supreme Court agreed with him, finding him not guilty of violation of Sarbanes – Oxley

Act. Yates was lucky to have the U.S. Supreme Court rule in his favour. The process took 8 years, $ 600,000 in lost wages and is now forced to live a trailer, dependent on social security income, and the odd jobs they manage to get in the meantime.

John Yates isn't alone who has suffered 'irreparable loss and injury' while seeking to prove his innocence. Lakhs of undertrials, scores of pensioners and many others, similarly trudge the litigation path in India. Amongst all of the system's requirements and making sense of law, they are reduced to mere numbers. Their identities become statistics to be quoted by prosecutors to showcase their successes, disposals by courts.

The book time and again refers to the growing complexity and overlapping of the law which may find a law abiding citizen in its cross hairs unknowingly. To underscore the absurdity of the problem, the book refers to a speech of President Obama,

'the interior department is in charge of salmon while they are in fresh water, but the commerce department handles them when they are in saltwater. I hear it gets even more complicated once they're smoked.'

This troubles the author and he wonders aloud whether they have lost the plot in their zeal to commit everything in their lives to the written word. One of the major themes dealt in the book is Federalism, which originally was intended to give local people more power and control over their daily lives. In trying to provide a common framework, the national agencies try to achieve or provide a minimum threshold to tackle the issue. After all, what cannot be defined, cannot be regulated. In this rush to provide uniformity, Gorsuch finds that several people are left out or they are unable to have the problem resolved, either because the regulation has overshot or undershot its goal, since the regulation is happening under the control of an agency or a person, who is far situated and thus unconnected and unaffected by the local sentiments. The local representative is also helpless as he has no role to play in this system enforced by a federal official. This growth of federal power has been in both direct and indirect ways. With increasing budgets, states are also left with no option but to

toe Washington DC's line, a parallel seen here in the GST meeting where more productive states are demanding their proportionate share of the revenue and weaker states toeing the Delhi line.

One aspect of the federalism theme, which also remains pertinent for us, the regulatory dispute mechanism. A few of us will recollect our judiciary's insistence in providing for a judicial member in various tribunals who more often than not is a retired judge, whether it is CAT, TDSAT, Competition Appellate Tribunal, now NCLT. This trend is often criticized in India that it has become a post retirement haven for retired judges. However, experience in the

U.S. shows that most of the regulatory bodies providing for in house dispute resolution mechanism or inter house appellate provisions, shows that these bodies tend to decide cases in favour of the department as their recruitment, pay, allotment of cases, physical infrastructure is all controlled by the parent department itself ranging from Coast Guard to the Securities Commission. This bears good learning for our systems that increasing tribunalization may not be the best answer for it removes people from accessing impartial courts or fair trials regardless of the nature of the legislation.

Ultimately, the book asks, what happens to law, if there is no democratic accountability. It turns out, it becomes distant and convoluted as the Yates case signifies. While, the book gives many real-life examples, highlighting the human side of the cases, it does so in a reflective manner, trying to remain true to its theme. What stands out, is the manner in which the book conveys its message as well as to its intended audience, the common American. He is reminded to participate more actively in affairs of his nation for every space left, is being occupied by more and more unknown governmental power. Decisions which were taken by people, associations, local town bodies are now within the province of the faceless bureaucrat. Laws are meant to provide safety, comfort and responsibility. That responsibility lies with not only with the governing class but also the governed, a lesson which remains real for every democracy.

Views Are Personal.