A FEDERAL JUDGES VIEW OF THE AMERICAN LEGAL SYSTEM

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A FEDERAL JUDGES VIEW OF THE AMERICAN LEGAL SYSTEM

Postby Dazeemay » Mon May 08, 2006 1:59 pm

http://www.massnews.com/2003_Editions/3 ... rupt.shtml

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.


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This is not legal advice;hopefully wisdom

To put it in simple terms…when the authorities ARE the perpetrators and the perpetrators ARE the authorities, there is no earthly justice or recourse, at the end of the day (unless the American people wake up).

Therefore, those who have achieved the highest levels of power seek to ‘enjoy’ the most grievous and extreme injustices. For many of those in the highest circles of power, the greatest statement of power is to perpetrate the greatest possible injustice…the savage, brutal traumatization and abuse of an innocent child.
http://themurkynews.blogspot.com/ MattTwoFour

"Ultimately, the law is only as good as the judge" --- D.X. Yue, 2005, in "law, reason and judicial fraud"
http://www.parentalrightsandjustice.com/index.cgi?ctype=Page;site_id=1;objid=45;curloc=Site:1

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