19 December 2005

Failure to Communicate

A very disturbing story in the Honolulu Star-Bulletin reflects both considerable distrust for and considerable ignorance about judicial decisionmaking.

A native Hawaiian group decried yesterday that "deeply felt cultural issues" involving 83 artifacts reburied on the Big Island are being decided "in a Western court" that has no understanding of Hawaiian traditions. Pualani Kanahele, a founding member of the group, Hui Malama I Na Kupuna O Hawaii Nei, said the escalating dispute over the artifacts has pitted "Hawaiians against Hawaiians and, sadly, even family against family." At an emotionally charged press conference held yesterday at the Center for Hawaiian Studies at the University of Hawaii, Hui Malama, a group founded in 1988 to repatriate and rebury Hawaiian bones and artifacts from museums and construction sites, presented its side in an ongoing legal dispute in federal court. Charles Maxwell, another member of Hui Malama, said, "Federal law does not give Hawaiians justice. It is difficult for Hawaiians to get justice in their own land." …. Edward Halealoha Ayau of Hui Malama said, "We are in a Western court of law trying to explain to Western-trained judges and lawyers our deeply felt cultural values. We are in an inappropriate forum."

Sally Apgar, "Hawaiian Group Says Court Fails in Dispute" (19 Dec 2005) (fake paragraphing removed for clarity).

I find this disturbing for several reasons. First, and most obvious, it is essentially an admission that Hui Malama (and its lawyer(s)) couldn't write very well—and that such a failure somehow justifies Hui Malama's position. It was the group's obligation, through its counsel, to write well enough (and gather evidence good enough) that the court could "understand[] Hawaiian traditions" and "deeply felt cultural values." If the court really didn't understand them—particularly on appeal, with its third and fourth written and second oral opportunities to communicate, either (1) all four judges were exceptionally stupid, or (2) Hui Malama failed to communicate its position. It's theoretically possible that all four judges were exceptionally stupid, I suppose… except that these weren't. Of course, given my disdain for the quality of writing in the legal profession, it shouldn't surprise anyone that I listed this problem first—or, indeed, that it is a factor in the first place.

Second, it reflects an inappropriate elevation of personal preference over dispute resolution. Logically, the only possible context that might justify the rhetoric quoted in the article depends upon making two counterfactual assumptions:

  • That the only possible interpretation of cultural imperatives is the one preferred by Hui Malama—an assumption invalidated by the substantial opposition of others with (presumably) parallel interests (either six or seven of fourteen "parties"); and
  • That a subgroup's cultural imperative must always overcome any other expressed interest or means of resolving disputes when there is either disagreement on the imperative or conflicting imperatives.

In a very sad way, this sheds a great deal of light upon the Administration's refusal to follow the FISA procedures and obtaining warrants for wiretaps (see yesterday's entry and this background piece). Both "antijudicial" sides—Hui Malama and the Administration—essentially presume that no judge will agree with their positions without considering opposition to them, and therefore that no judge is a legitimate player in resolving disputes over their positions.1 And here I was under the mistaken impression that the rule of law implies that the first step in resolving disputes under law is to allow every disputant the opportunity to present his/her position before a decisionmaker who—although human and therefore fallible—has no direct interest that will be harmed by any decision in the matter.

Cultural preservation is important. Sometimes, it should even be considered more important than other interests; for example, I would be very skeptical of a paleontological expedition seeking dinosaur bones in the middle of a recognized Native American burial ground. The problem is that culture clashes will occur, and somebody has to resolve them. It is the job of those with cultural interests to persuade the decisionmaker(s) that their interests are paramount in a particular context. Sometimes, the decisionmaker(s) will get the result "wrong," or at least reach a suboptimal result. Absent proof of bias, though, that is not justification for discarding the decisionmaking process. Disagreement is not proof of bias. Neither is failure to communicate.2

  1. This seems even more ironic when one considers that wiretap (and other surveillance) requests before the FISA are ex parte—there is no opposition.
  2. Perhaps the Administration fears that it will fail to communicate the need for particular wiretaps to the FISA. That says more about what it might do with the result of such wiretaps that I think I really want to consider. Ever.