Law Profession v. Rule of Law
The New York Times just ran this articlethat echoed something I have thought about for a long time. It's entitled With the Bench Cozied Up to the Bar, the Lawyers Can’t Lose. What the writer, Adam Liptak, and I realize is that all professions have a vested interest in protecting their special prerogatives and immunities. It certainly makes sense that only those with expert peer certification should be allowed to do heart surgery. Yet the legal profession has managed to maintain a monopoly that was reasonable early in our history, when law books were in limited supply, well into todays world where every statute, code and precedent could be available at a key stroke.
I was reminded of the power of the law profession in the final episode of CNN's series "God's Warriors" that showed the newly minted graduates of Jerry Falwel's Liberty Law School. The dean of the school was proudly proclaiming how they will be "God's Pit Bulls" to go out to use the courts to bring Christianity into every area of public life. I couldn't help but to shudder.
As a blog dedicated to election of Democrats to public office, this diary challenges one of our bedrock allies. The favorite candidate of this site is John Edwards whose career was as a litigator in the medical malpractice arena. We depend on contributions of litigators for a large part of our campaign contributions, and as such we are naturally reluctant to focus on the social costs of the status quo in the legal profession. Many party leaders would rather argue that "the system works fine." I hope you bear with me as I express my position.
One of the worst costs of our present professional legal status is passivity of those who could transform our political culture. Many of us have had occasion to be thrust into situations where we become expert on a given area of law. We all become "jail-house lawyers" when our wellbeing is at stake.
I happened to become an expert on the arcane Legislative Ethics law of the State of New York when I was a candidate for the nomination for state assembly in 1993. It is a strange financial disclosure law, blatantly unconstitutional according to a chaired professor of political science who took an interest in the case, since unlike every other state the disclosure is not made available to the public, but only to party leaders.
Yet because I failed to follow procedure, I was not able to change it. They simply excused my fine if I agreed not to appeal.
One of the most disturbing phrases in public life is when someone offers a political opinion that is prefaced with, "I'm not a lawyer," indicating that someone with such credentials has the final word on the subject. Anyone who writes a serious diary here does research that validates his/her points. If the subject is law, the Criminal and Civil codes of most states are now on line, along with every Supreme Court opinion. In my disclosure case I had access to Columbia University Law Library, where my argument was developed, that may have prevailed if appealed. This type of research facility could be made available on line.
The body of laws of this country is not the exclusive province of lawyers; they are the rules of every American. We should have absolute access to every detail and every procedure to enforce these rules. Would such a movement of openness lead to chaos, to more suits and less well prepared arguments when the issues do get adjudicated? Or once the ability to create procedures that rake in vast income is no longer a professional monopoly,will a more rational system will be devised.
From the Times article:
Other professions look for elegant solutions. It is the rare engineer, software designer or plumber who chooses an elaborate fix when a simple one will do. The legal system, by contrast, insists on years of discovery, motion practice, hearings, trials and appeals that culminate in obscure rulings providing no guidance to the next litigant.
But what could be worse than what we have now. To access our court system entails an exorbitant entrance fee, based on the hourly rate of the lawyer. On the civil side, this gives a disproportionate advantage to those with the deepest pockets, who can run up the cost beyond the ability of the poorer party to risk. On the criminal side it means that those without resources are the most vulnerable. Just compare O.J. Simpson, who most feel was guilty, to a thousand unknowns who are incarcerated for life based on shaky forensics that will never be challenged.
The pathologies of the existing professional structure has wide and varied tendrils. When much is at stake competent lawyers command salaries so high that it is becoming impossible to recruit people to the federal courts where the salaries are a fraction of those in the private sector.
And on another level, as more social policy is shaped by legal professionals, the lawyer-judge nexus, the public feels more helpless, and more angry. I would argue this has fed the Republican resurgence over the last several decades. They never got to vote on the Supreme Court Justices so the specific disagreements with the decisions are potentiated by feelings of powerlessness
From the article:
"Public interest cases afford a judge more sway over public policy, enhance the judicial role, make judges more conspicuous and keep the law clerks happy."
There are costs here, too, he said, including "the displacement of legislative and executive power" and "the subordination of other disciplines and professions."
Yet, at the conclusion of a big public-policy case, the bar and bench rejoice. "We smugly congratulate ourselves," Judge Jacobs said, "on expanding what we are pleased to call the rule of law."
As Democrats, this should be a discussion we should embrace, rather than relegate it to another partisan talking point. As a start, the next Supreme Court Judge should be a scholar, perhaps with a background in history, sociology or Political Science, rather than a member of the legal profession. No law requires that a Supreme Court Justice be a lawyer.
We need to go beyond what Dennis G. Jacobs, the chief judge of the federal appeals court in New York said in a candid speech last year when he admitted:
that he and his colleagues had "a serious and secret bias." Perhaps unthinkingly but quite consistently, he said, judges can be counted on to rule in favor of anything that protects and empowers lawyers.
It is obscene that the recent FISA law that gave new power to the Attorney General to expedite executions was described in the media as a "little noticed section." We as citizens did not see it as our duty to read all of the hundreds of pages of the law, since they were simply "legalese," something that lawyers will take care of.
The law, the entire body of state and federal codes, statute and regulations is ours. We must take responsibility for it, and have access to every aspect, from design, amendment final version to implementation. I value the law greatly and admire and respect those who follow the ideals of the profession. But once again, from the article:
Benjamin H. Barton, a law professor at the University of Tennessee, examined some of the same issues in an article to be published next year in The Alabama Law Review titled "Do Judges Systematically Favor the Interests of the Legal Profession?"
That question mark notwithstanding, there is little doubt about where Professor Barton comes out.
He noted, for instance, that the legal profession is the only one that is completely self-regulated. "As a general rule," Professor Barton wrote, "foxes make poor custodians of henhouses."
Citizen access to law is expanding, and should be increasingly so. The FISA bill could have been divided up among the readership here, and then we could have been a part of the process of examining every word, and talking about its consequences.
The internet can be more than a discussion venue, focusing on the defects of our government and officials. It can become the technological infrastructure that marshals the intellectual energy of vast numbers of concerned and educated people. The law is not something exclusively for lawyers; it is ours-- to create, to perfect and to live by.