"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Friday, October 16, 2015

What a XIXth century Russian playwright can tell you about the XXIst century American judiciary

There is a drama by a Russian XIXth century playwright Alexander Ostrovsky, called "The Storm", here is a link to an English translation of that drama I found on the Internet.

It is about life and family traditions, good and bad, of Russian XIXth century merchants.

One of the main heroes of the drama is a rich merchant, a father of the family who rules his household with an iron fist.

Here are some excerpts from the drama about him:

When a young attorney walks, all in awe, into a modern American courtroom, he or especially she, is in for a shock, as to how rude and disrespectful judges are, and that other attorneys consider being yelled at rudely by a judge an "occupational hazard" and a "rite of passage".

Judges themselves write about "cranky judges", glorifying their own crankiness - by which "term of art" judges understand and hide outright rudeness, indignity and humiliation they heap up upon parties and litigants appearing in front of them.

Continued Legal Education courses are taught as to how to suit "pet peeves" of various judges.

Legal bloggers list "local rules" of judges that run like those of "grumpy grandparents" and/or "overbearing schoolmarms".

But the best and brightest of the legal profession - the law professors - did the best of all.  A law professor from Texas wrote a law review article where, in top-lofty, sterilized and sanitized language, they "advise" disciplinary authorities hearing complaints against judges to go easy on - guess who? - angry judges.  And guess why?  Not to make them more angry if discipline less than removal is imposed.

A judge can advise a defendant to do the society a favor and go kill himself.  The discipline? A public reprimand.

Discipline against the judge?  I found none reported.

Because, remember, if authorities dare to impose fair discipline upon an already angry judge, that will make them uncomfortable, that will expose them to social media (and we wouldn't want that), and - to crown it all - that discipline will be counterproductive by making the judge even more angry and hostile ( that is the "legal theory" behind the law review), and that increased hostility will hurt the public.

To continue the same logic, we need to cancel all criminal statute and disciplinary rules because such rules will anger defendants, and will be counterproductive.  But no, that kind of leniency is not proposed for everybody, only for judges.

So, in an elaborate law review article, after much research and contemplation in their ivory towers, a law professor, a bright legal mind, repeats nearly word-for-word, the advice given by an illiterate wife of a XIXth century Russian merchant to all members of her household:

"Don't anger him, friends!  Dear boys, don't anger him!"

Please, don't anger the petty tyrants in the courtroom.   Just take those who already displayed their anger off the bench.  In order to prevent "increased hostility" from lesser discipline and protect the public.  In full coordination with legal theory.

Or, in the alternative, make law students read for their legal ethics class - Alexander Ostrovsky, "The Storm".  They will then be fully prepared for the realities of the American courtroom.

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