American Legal System Is Corrupt Beyond Recognition,
UCC StrawMan
http://www.massnews.com/2003_Editions/3_March/030703_mn_american_
legal_system_corrupt.shtml
American Legal System Is Corrupt Beyond Recognition, Judge
Tells Harvard Law School
By Geraldine Hawkins
March 7, 2003
The American legal system has been corrupted almost beyond
recognition, Judge Edith Jones of the U.S. Court of Appeals for
the Fifth Circuit, told the Federalist Society of Harvard Law
School on February 28.
She said that the question of what is morally right is
routinely sacrificed to what is politically expedient. The change
has come because legal philosophy has descended to nihilism.
"The integrity of law, its religious roots, its
transcendent quality are disappearing. I saw the movie 'Chicago'
with Richard Gere the other day. That's the way the public thinks
about lawyers," she told the students.
"The first 100 years of American lawyers were trained on
Blackstone, who wrote that: 'The law of nature . dictated by God
himself . is binding . in all counties and at all times; no human
laws are of any validity if contrary to this; and such of them as
are valid derive all force and all their authority . from this
original.' The Framers created a government of limited power with
this understanding of the rule of law - that it was dependent on
transcendent religious obligation," said Jones.
She said that the business about all of the Founding
Fathers being deists is "just wrong," or "way overblown." She
says they believed in "faith and reason," and this did not lead
to intolerance.
"This is not a prescription for intolerance or narrow
sectarianism," she continued, "for unalienable rights were given
by God to all our fellow citizens. Having lost sight of the moral
and religious foundations of the rule of law, we are vulnerable
to the destruction of our freedom, our equality before the law
and our self-respect. It is my fervent hope that this new century
will experience a revival of the original understanding of the
rule of law and its roots.
"The answer is a recovery of moral principle, the sine qua
non of an orderly society. Post 9/11, many events have been
clarified. It is hard to remain a moral relativist when your own
people are being killed."
According to the judge, the first contemporary threat to
the rule of law comes from within the legal system itself.
Alexis de Tocqueville, author of Democracy in America and
one of the first writers to observe the United States from the
outside looking-in, "described lawyers as a natural aristocracy
in America," Jones told the students. "The intellectual basis of
their profession and the study of law based on venerable
precedents bred in them habits of order and a taste for
formalities and predictability." As Tocqueville saw it, "These
qualities enabled attorneys to stand apart from the passions of
the majority. Lawyers were respected by the citizens and able to
guide them and moderate the public's whims. Lawyers were
essential to tempering the potential tyranny of the majority.
"Some lawyers may still perceive our profession in this
flattering light, but to judge from polls and the tenor of lawyer
jokes, I doubt the public shares Tocqueville's view anymore, and
it is hard for us to do so.
"The legal aristocracy have shed their professional
independence for the temptations and materialism associated with
becoming businessmen. Because law has become a self-avowed
business, pressure mounts to give clients the advice they want to
hear, to pander to the clients' goal through deft manipulation of
the law. . While the business mentality produces certain
benefits, like occasional competition to charge clients lower
fees, other adverse effects include advertising and shameless
self-promotion. The legal system has also been wounded by lawyers
who themselves no longer respect the rule of law,"
The judge quoted Kenneth Starr as saying, "It is decidedly
unchristian to win at any cost," and added that most lawyers
agree with him.
However, "An increasingly visible and vocal number
apparently believe that the strategic use of anger and incivility
will achieve their aims. Others seem uninhibited about making
misstatements to the court or their opponents or destroying or
falsifying evidence," she claimed. "When lawyers cannot be
trusted to observe the fair processes essential to maintaining
the rule of law, how can we expect the public to respect the
process?"
Lawsuits Do Not Bring 'Social Justice'
Another pernicious development within the legal system is
the misuse of lawsuits, according to her.
"We see lawsuits wielded as weapons of revenge," she says.
"Lawsuits are brought that ultimately line the pockets of lawyers
rather than their clients. . The lawsuit is not the best way to
achieve social justice, and to think it is, is a seriously flawed
hypothesis. There are better ways to achieve social goals than by
going into court."
Jones said that employment litigation is a particularly
fertile field for this kind of abuse.
"Seldom are employment discrimination suits in our court
supported by direct evidence of race or sex-based animosity.
Instead, the courts are asked to revisit petty interoffice
disputes and to infer invidious motives from trivial comments or
work-performance criticism. Recrimination, second-guessing and
suspicion plague the workplace when tenuous discrimination suits
are filed . creating an atmosphere in which many corporate
defendants are forced into costly settlements because they simply
cannot afford to vindicate their positions.
"While the historical purpose of the common law was to
compensate for individual injuries, this new litigation instead
purports to achieve redistributive social justice. Scratch the
surface of the attorneys' self-serving press releases, however,
and one finds how enormously profitable social redistribution is
for those lawyers who call themselves 'agents of change.'"
Jones wonders, "What social goal is achieved by
transferring millions of dollars to the lawyers, while their
clients obtain coupons or token rebates."
The judge quoted George Washington who asked in his
Farewell Address, "Where is the security for property, for
reputation, for life, if the sense of religious obligation desert
the oaths . in courts of justice?"
Similarly, asked Jones, how can a system founded on law
survive if the administrators of the law daily display their
contempt for it?
"Lawyers' private morality has definite public
consequences," she said. "Their misbehavior feeds on itself,
encouraging disrespect and debasement of the rule of law as the
public become encouraged to press their own advantage in a system
they perceive as manipulatable."
The second threat to the rule of law comes from government,
which is encumbered with agencies that have made the law so
complicated that it is difficult to decipher and often
contradicts itself.
"Agencies have an inherent tendency to expand their
mandate," says Jones. "At the same time, their decision-making
often becomes parochial and short-sighted. They may be captured
by the entities that are ostensibly being regulated, or they may
pursue agency self-interest at the expense of the public welfare.
Citizens left at the mercy of selective and unpredictable agency
action have little recourse."
Jones recommends three books by Philip Howard: The Death of
Common Sense, The Collapse of the Common Good and The Lost Art of
Drawing the Line, which further delineate this problem.
The third and most comprehensive threat to the rule of law
arises from contemporary legal philosophy.
"Throughout my professional life, American legal education
has been ruled by theories like positivism, the residue of legal
realism, critical legal studies, post-modernism and other
philosophical fashions," said Jones. "Each of these theories has
a lot to say about the 'is' of law, but none of them addresses
the 'ought,' the moral foundation or direction of law."
Jones quoted Roger C. Cramton, a law professor at Cornell
University, who wrote in the 1970s that "the ordinary religion of
the law school classroom" is "a moral relativism tending toward
nihilism, a pragmatism tending toward an amoral instrumentalism,
a realism tending toward cynicism, an individualism tending
toward atomism, and a faith in reason and democratic processes
tending toward mere credulity and idolatry."
No 'Great Awakening' In Law School Classrooms
The judge said ruefully, "There has been no Great Awakening
in the law school classroom since those words were written." She
maintained that now it is even worse because faith and democratic
processes are breaking down.
"The problem with legal philosophy today is that it
reflects all too well the broader post-Enlightenment problem of
philosophy," Jones said. She quoted Ernest Fortin, who wrote in
Crisis magazine: "The whole of modern thought . has been a series
of heroic attempts to reconstruct a world of human meaning and
value on the basis of . our purely mechanistic understanding of
the universe."
Jones said that all of these threats to the rule of law
have a common thread running through them, and she quoted
Professor Harold Berman to identify it: "The traditional Western
beliefs in the structural integrity of law, its ongoingness, its
religious roots, its transcendent qualities, are disappearing not
only from the minds of law teachers and law students but also
from the consciousness of the vast majority of citizens, the
people as a whole; and more than that, they are disappearing from
the law itself. The law itself is becoming more fragmented, more
subjective, geared more to expediency and less to morality. . The
historical soil of the Western legal tradition is being washed
away . and the tradition itself is threatened with collapse."
Judge Jones concluded with another thought from George
Washington: "Of all the dispositions and habits which lead to
prosperity, religion and morality are indispensable supports. In
vain would that man claim the tribute of patriotism who should
labor to subvert these great pillars of human happiness - these
firmest props of the duties of men and citizens."
Upon taking questions from students, Judge Jones
recommended Michael Novak's book, On Two Wings: Humble Faith and
Common Sense.
"Natural law is not a prescriptive way to solve problems,"
Jones said. "It is a way to look at life starting with the Ten
Commandments."
Natural law provides "a framework for government that
permits human freedom," Jones said. "If you take that away, what
are you left with? Bodily senses? The will of the majority? The
communist view? What is it - 'from each according to his ability,
to each according to his need?' I don't even remember it, thank
the Lord," she said to the amusement of the students.
"I am an unabashed patriot - I think the United States is
the healthiest society in the world at this point in time," Jones
said, although she did concede that there were other ways to
accommodate the rule of law, such as constitutional monarchy.
"Our legal system is way out of kilter," she said. "The
tort litigating system is wreaking havoc. Look at any trials that
have been conducted on TV. These lawyers are willing to say
anything."
Potential Nominee to Supreme Court
Judge Edith Jones has been mentioned as a potential nominee
to the Supreme Court in the Bush administration, but does not
relish the idea.
"Have you looked at what people have to go through who are
nominated for federal appointments? They have to answer questions
like, 'Did you pay your nanny taxes?' 'Is your yard man illegal?'
"In those circumstances, who is going to go out to be a
federal judge? People who have accomplished nothing. In other
words, federal employees."
Judge Edith H. Jones has a B.A. from Cornell University and
a J.D. from the University of Texas School of Law. She was
appointed to the Fifth Circuit by President Ronald Reagan in
1985. Her office is in the U.S. Courthouse in Houston.
The Federalist Society was founded in 1982 when a group of
law students from Harvard, Stanford, the University of Chicago
and Yale organized a symposium on federalism at Yale Law School.
These students were unhappy with the academic climate on their
campuses for some of the reasons outlined by Judge Jones. The
Federalist Society was created to be a forum for a wider range of
legal viewpoints than they were hearing in the course of their
studies.
From the four schools mentioned above, the Society has
grown to include over 150 law school chapters. The Harvard
chapter, with over 250 members, is one of the nation's largest
and most active. They seek to contribute to civilized dialogue at
the Law School by providing a libertarian and conservative voice
on campus and by sponsoring speeches and debates on a wide range
of legal and policy issues.
The Federalist Society consists of libertarians and
conservatives interested in the current state of the legal
profession. It is founded on three principles: 1) the state
exists to preserve freedom, 2) the separation of governmental
powers is central to our Constitution and 3) it is emphatically
the province and duty of the judiciary to state what the law is,
not what it should be.
limbaugh_fart_detector
wrote:
OK...I was with you up to this point, but I'm not about to be lectured
about winning at any cost by Kennerth Starr and on his views of piety.
Kenneth Starr has a track record. Let's quote HItler on love of
fellow man.
I'm not going to go further.
Let me just tell you and Edith Jones, a doctrinaire right winger, that
there are alot of lawyers who take the role of "counselor" very
seriously. I am a lawyer. I like to think that I take the role of
counselor very seriously.
People bring us terrible, life defining problems. We take these on.
Lawyer bashers don't realize this. They've never had someone sit
across the table from them and say "I'm about to lose my house. What
can I do?"
> However, "An increasingly visible and vocal number
>apparently believe that the strategic use of anger and incivility
>will achieve their aims. Others seem uninhibited about making
>misstatements to the court or their opponents or destroying or
>falsifying evidence," she claimed. "When lawyers cannot be
>trusted to observe the fair processes essential to maintaining
>the rule of law, how can we expect the public to respect the
>process?"
I've practiced for 10 years in Baton Rouge, Louisiana and cannot think
of so much as one example of the above. Admittedly in the South,
legal practice is more genteel than in places like New York, so I've
heard.
I once had a San Francisco bank lawyer start off an exchange of
letters with me by gratuitously insulting my client and using inuendo
to accuse me of being a sleaze ball. I stuffed his ass. I think he
was an isolated nut case, though. I can't imagine that he represented
normal San Francisco standards.
>
> Lawsuits Do Not Bring 'Social Justice'
>
> Another pernicious development within the legal system is
>the misuse of lawsuits, according to her.
>
> "We see lawsuits wielded as weapons of revenge," she says.
>"Lawsuits are brought that ultimately line the pockets of lawyers
>rather than their clients. . The lawsuit is not the best way to
>achieve social justice, and to think it is, is a seriously flawed
>hypothesis. There are better ways to achieve social goals than by
>going into court."
>
Edith Jones appears to come from Mars on this one. I have not seen so
much as one example of this crap. Maybe in divorce court, and maybe
in successions, with rich family members battling it out. Nowhere
else. Certainly not among business people, for whom I have practiced.
> Jones said that employment litigation is a particularly
>fertile field for this kind of abuse.
>
> "Seldom are employment discrimination suits in our court
>supported by direct evidence of race or sex-based animosity.
>Instead, the courts are asked to revisit petty interoffice
>disputes and to infer invidious motives from trivial comments or
>work-performance criticism. Recrimination, second-guessing and
>suspicion plague the workplace when tenuous discrimination suits
>are filed . creating an atmosphere in which many corporate
>defendants are forced into costly settlements because they simply
>cannot afford to vindicate their positions.
>
I agree with her partially on this.
> "While the historical purpose of the common law was to
>compensate for individual injuries, this new litigation instead
>purports to achieve redistributive social justice. Scratch the
>surface of the attorneys' self-serving press releases, however,
>and one finds how enormously profitable social redistribution is
>for those lawyers who call themselves 'agents of change.'"
Can anyone guess Edith Jones's background. Let's ponder whether her
work was profitable and whether social good was achieved thereby.
>
> Jones wonders, "What social goal is achieved by
>transferring millions of dollars to the lawyers, while their
>clients obtain coupons or token rebates."
Jones reveals herself as a rightwing idealogue here. She likes
companies to screw millions of people out of a nickel here and there,
and she thinks if any of them have a problem, they should pay a lawyer
by the hour to sue for 10 cents.
This woudl be nice windfall for the rich. Screw in volume but at a
low margin and nobody will say anything.
Right wing morality.
>
> The judge quoted George Washington who asked in his
>Farewell Address, "Where is the security for property, for
>reputation, for life, if the sense of religious obligation desert
>the oaths . in courts of justice?"
>
> Similarly, asked Jones, how can a system founded on law
>survive if the administrators of the law daily display their
>contempt for it?
>
> "Lawyers' private morality has definite public
>consequences," she said. "Their misbehavior feeds on itself,
>encouraging disrespect and debasement of the rule of law as the
>public become encouraged to press their own advantage in a system
>they perceive as manipulatable."
I would marvel to hear Edith JOnes's thoughts on the consequences and
prevasive prevalence of judicial malpractice.
>
> The second threat to the rule of law comes from government,
>which is encumbered with agencies that have made the law so
>complicated that it is difficult to decipher and often
>contradicts itself.
>
> "Agencies have an inherent tendency to expand their
>mandate," says Jones. "At the same time, their decision-making
>often becomes parochial and short-sighted. They may be captured
>by the entities that are ostensibly being regulated, or they may
>pursue agency self-interest at the expense of the public welfare.
>Citizens left at the mercy of selective and unpredictable agency
>action have little recourse."
>
Anyone who has heard a judge like Edith JOnes ass kiss the federal
government's discretion has to just laugh at this.
> Jones recommends three books by Philip Howard: The Death of
>Common Sense, The Collapse of the Common Good and The Lost Art of
>Drawing the Line, which further delineate this problem.
>
> The third and most comprehensive threat to the rule of law
>arises from contemporary legal philosophy.
>
> "Throughout my professional life, American legal education
>has been ruled by theories like positivism, the residue of legal
>realism, critical legal studies, post-modernism and other
>philosophical fashions," said Jones. "Each of these theories has
>a lot to say about the 'is' of law, but none of them addresses
>the 'ought,' the moral foundation or direction of law."
>
I went to a nuts and bolts law school. I don't practice ISMS.
Steve Hiner
<Limbaugh Fart Detector> wrote in message
news:3e693143....@news.supernews.com...
You are in that lonely 10% club of good and honest ones, then! Cause the
other
90% I wouldn't piss on, even if they were on fire!
Dana
news:3e692...@binaries.vphos.net...
>
> http://www.massnews.com/2003_Editions/3_March/030703_mn_american_
> legal_system_corrupt.shtml
>
> American Legal System Is Corrupt Beyond Recognition, Judge
> Tells Harvard Law School
You are just now finding this out.
Marcus S. Turner
I'm amused that she was telling to to a bunch of pre-lawyers.