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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