Russell Hebets June 2, 2020

Wisconsin SC Ends COVID Order

Wisconsin’s Supreme Court not long ago annulled the state’s stay-at-home order, saying that the emergency powers governor Tony Evers had invoked to issue the order were meant for brief effect, not to last indefinitely. That ruling is interesting in its own right, but it also points to a quality of the law in general that lawyers tend to avoid thinking about, maybe because it disorients them and gives them the creeps, and that non-lawyers may not have had a reason to think about at all: a great deal of the law comes down to semantics. 

The Meaning of It All

When a Colorado police officer charges you with, say, crowding or threatening a bicyclist (C.R.S. § 42-4-1008.5, for those of you with your statute books handy), he or she enforces the following rule: “The driver of a motor vehicle shall not, in a careless and imprudent manner, drive the vehicle unnecessarily close to, toward, or near a bicyclist.” Notice anything? There are no objective measurements required here. There is no mathematical exactitude. You are liable to go from an upstanding member of society to a bicyclist-threatening creature of the shadows on no firmer basis than some police officer’s interpretation of the words careless, imprudent, unnecessarily, close, and near. And let’s say that you, indignant at the flimsiness, at the caprice of it all, decide to take the case to trial. Congratulations! You’ve just traded the caprice of one police officer for the caprice of six jurors. Suppose that, before the trial, the relevance of a piece of evidence crucial to the defense you’re preparing comes into question; if found irrelevant, the evidence must be excluded from your arguments at trial. Boom!  Your case now hinges on a judge’s opinion whether that item is “connected in some manner with either the perpetrator, the victim, or the crime.” What does that even mean!? Isn’t everything connected to everything else “in some manner”? Remember that game where you have six moves or fewer to connect a person picked at random with the actor Kevin Bacon? Hang on, the room is spinning. We need to sit down. 

What That Means for Us

Here’s the thing: the law is a human, and therefore imperfect, artifice down to its smallest parts. It is made and maintained by humans and conveyed using human symbols that are themselves incapable of capturing a thing’s essence exactly or of transferring meaning exactly from one instance to the next. No matter how authoritative a law seems, no matter how many objective measurements it does require (and many laws do), it exists because at some point one of your fellow short-sighted, possibly deranged or magnesium-deficient human animals, or more likely a bunch of them, said “I feel like we should [insert law].” But the alternative to having laws is not having them, and that approach seems not to have garnered rave reviews in the times that we’ve tried it. And so we return to the conclusion you are no doubt sick of reading on this blog: whether we’re debating the smallest traffic infraction or our response to a global  pandemic, we should go slow, be mindful, and remember that everything is open to interpretation.