[PRISONACT] FEDERAL JUDGE SAYS AMERICAN LEGAL SYSTEM IS CORRUPT
Brenda Pitts Bennett
Folks,
I thought it would be good timing to send this out again? Hope you
agree?
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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.
Judge Edith H. Jones of the U.S. Court of Appeals for the Fifth
Circuit talks to members of Harvard Law School's Fed-eralist Society.
Jones said that the question of what is mor-ally right is routinely
sacrificed to what is politically expedient.
"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?"
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.
http://www.massnews.com/2003_Editions/3_March/030703_mn_american_legal_system_corrupt.shtml
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LUKE 11:52 "Woe unto you, lawyers!"
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