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SOURCES OF IMPETUS FOR LAW

An impetus is a fundamental prerequisite for setting the mechanism of lawmaking in motion. Demands for new laws or changes in existing ones come from a variety of sources. Key sources of impetus for law creation detached scholarly diagnosis, nonacademic writing, protest activities and social movements, public-interest groups, and the mass media.

DETACHED SCHOLARLY DIAGNOSIS

The impetus for law may come from a detached scholarly undertaking. From time to time, academicians may consider a given practice or condition as detrimental in the context of existing values and norms. They may communicate their diagnoses to their colleagues or to the general public through either scholarly or popular forums. In some cases, they may even carry the perceived injustice to the legislature in search of legal redress. An example of how an academic scholar can provide an impetus for law involves an early study by one of your authors, Steven Vago (1968), on wage garnishment, which is a legal process that enables a creditor upon a debtor’s default to seize the debtor’s wages from the employer before the debtor is paid.

This study investigated the impact of wage garnishment on low-income families. The findings indicated that existing wage garnishment laws at that time in Missouri were more counterproductive than functional as a collection device. Employers fired about 20% of the debtors after receiving the first garnishment suit. Such an action was detrimental not only to the debtors, but also to their families, creditors, employers, and society at large.

The negative consequences of garnishment (for example, increased family conflict and increased criminality) led Vago (1968) to propose a simple procedure to provide debtors whose wages were subject to garnishment with legal safeguards so that they could not be fired or forced into bankruptcy. At the same time, he also outlined ways to enable creditors to maintain an effective collection method.

Vago’s data and recommendations provided the basis for House Bill 279, which was introduced in the 75th General Assembly of the State of Missouri. Under the proposed bill, the service of the writ would be made upon the defendant only, and the employer of the defendant would not be involved in the litigation process. Upon entry of the judgment, the court may order the debtor to make payments to the clerk of the court, which would be disbursed in turn by the clerk. In settling the amount of these payments, the court would take into consideration the circumstances of the defendant, including his or her income and other obligations or considerations bearing on the issue. If the debtor fails to obey the order of the court, then, and only then, could the creditor summon the employer as a garnishee. The primary intention of the bill was to prohibit employers from discharging employees upon the receipt of the first garnishment suit, thus saving thousands ofjobs for low-income individuals annually in Missouri.

Today, wage garnishment is regulated nationally (Bryant, 2004). This is the result of the Consumer Credit Protection Act (PL 90-32), passed in 1968. The act protects consumers from being driven into bankruptcy by excessive garnishment of wages by limiting the amount of wages subject to garnishment to 25% of the employee’s weekly disposable income. It also forbids the firing of an employee because of wage garnishment. Despite these protections, garnishment still plays a role in the some 1.6 million personal bankruptcies filed annually (Murray and Daugherty, 2010).

Other university professors have conducted research that provided an impetus for lawmaking. For example, publications by David Caplovitz, such as The Poor Pay More (1963) and Consumers in Trouble: A Study of Debtors in Default (1974), resulted in proposals for much-needed reform of consumer credit laws. And research since the 1970s by feminist scholars on rape and sexual assault and domestic violence led to new awareness of these crimes and led to a series of reforms throughout the United States on how the legal system interacted with victims of these crimes and dealt with their offenders (Belknap, 2015). The list could go on ad infinitum, but it is clear that detached scholarly diagnoses can, indeed, stimulate lawmaking. The source of impetus, however, is not limited to ivory towers. It can have other origins, as the following sections will demonstrate.

 
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