“Don’t Blame Me: I Was Incentivized.”

ENTRE NOUS

BY CLAUDE DUCLOUX

The opinions expressed in the Entre Nous column are those of the author and do not necessarily represent the views of the Austin Bar Association membership or the Austin Bar Association board of directors.

One of the joys of being a skillful class clown all through my early school years was having the approval of my classmates at my Catholic school, “Our Lady of Perpetual Bruising.” Now, clearly, my classmates used me as a tool to achieve their ends, whether that be to shock Sister Mary Lawrence with impeccable replications of (ahem) bathroom sounds, or spoton impressions of Sister Theresa attempting to teach “new math” in a voice so screechy it hurt dogs’ ears: “Oh my goodness, they say to solve this problem in something called ‘base 7.’ Can someone help me out?”

I was “incentivized” by their laughter, thus blind to the disruptive effects of my creative interruptions on actual learning. Rest assured; the approval of my classmates did not reduce the punishments I often received. And that’s as it should be.

Likewise, when a mafia boss complains about a non-compliant individual and suggests broadly that “he poses a problem,” a capo takes that message to a soldier and ‘incentivizes’ him to solve the problem. Still, saying “I was incentivized to take him out,” is not an effective defense or mitigation to the commission of the crime. Think about it: The boss knows he’s ultimately breaking the law, but creates a wall between himself and a clear violation of law.

Okay, so you see where I’m going. As Paul Kahn, a professor of law and humanities at Yale points out, when governments incentivize people with money, rewards, status, or gain to perform acts which are illegal for the government itself to perform, you are witnessing a declining society. Throughout modern history, demagogues achieved their ends by avoiding responsibility for undemocratic conduct by enlisting others to perform such acts for them. As we watch our world deteriorate, we see this work done around the globe by non-governmental militias, and, here at home, by groups like the Jan. 6 insurrectionists who were incentivized to take the law into their own hands to subvert the U.S. Constitutional process at the behest of those seeking to retain power. My fear is that we are witnessing the unraveling of fundamental democratic principles and trust in government in our beloved Texas and other states, through the messaging and enactment of these same legislative devices.

As lawyers, we should take pause. We are the defenders and guardians of the Rule of Law: Our solemn oath is to uphold the Constitution. We should be extremely uncomfortable when we see laws designed to circumvent the Constitution or to incentivize others to intimidate or interfere with the exercise of fundamental democratic rights. Even if your personal politics are simpatico to the ends, the means are dreadful and dangerous. If this trick works, we are in deep trouble.

Think about our legal training: As law students we had the dual concepts of “standing” and “nexus” pounded into our heads. “Standing” is a requirement of Article III of the U.S. Constitution. We learned that courts use “standing” to ask, “Does this party have a ‘dog in this fight?’” Standing limits participation in lawsuits and asks whether the person(s) bringing a lawsuit, or defending one, has enough cause to “stand” before the court and advocate, since not anyone can go to court for any reason. Empowering unrelated and unknown parties with whom you have had no interaction whatsoever to sue to recover a statutory penalty is breathtaking, especially when the person is being sued for actions the U.S. Supreme Court has held to be lawful.

I’m referring, of course, to Senate Bill 8. The insidious purpose of this statute is twofold. First, it’s designed to outsource enforcement of the law to private citizens inside or outside Texas who have no connection with the actions of the doctors or patients.

These enforcers, who are unelected and unaccountable to voters, like militias, are incentivized to frighten and intimidate people with threats of lawsuits and financial ruin. Ask yourself, where are the “checks and balances” in this private-enforcement system?

We must ask: Should our laws be so one-sided that they create fear and intimidation without recourse?

A second legal concept which occupied our studies was “nexus.” When applied to governmental action, “nexus” examines the need and degree of governmental restriction against the right being restricted. In a law school con-law exam, defending the “need” for the severe Texas voting laws would earn the law student a failing grade. There is no supportable evidence to invoke these restrictions on the right to vote. It is simply about intimidation.

If these laws can hurdle these combined limitations of “standing” and “nexus,” we join the many failed governments, past and present, who circumvent law by thuggery, militias, and private action.

To the point, we must ask: Should our laws be so one-sided that they create fear and intimidation without recourse? We know our latest voting laws will allow anyone to “supervise” polling stations: to freely roam inside the polling place looking over shoulders, stressing out voters and volunteers alike (and, in some cases, armed—if local governments allow it). Hmm? Wonder why? These new laws do not protect your right to vote. They protect and incentivize intimidation and fear, specifically to interfere with your right to vote without any penalty for such interference. None. Tell me, why aren’t intimidators who interfere with voters guilty of a felony under this law? Because their right to intimidate is a purpose of the law, and they are incentivized by that absence of penalty.

We are pledged to live in a system of rules under the Constitution. We are driven to support the general welfare and secure the blessings of liberty and freedom. As a profession, I know we have different opinions, beliefs, and our own prejudices, but we need to take a hard look in the mirror and ask if outsourcing our culture to thuggery should be supported by the legal profession. I hope that answer is clear. Please be incentivized yourself to make your voice heard.

-Keep the faith. AL