"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.

Tuesday, October 3, 2017

On judicial thinking - in Russia and in the U.S.

Recently, Russia has started to shift towards the U.S. in the way it is shaping its judicial system and access to justice, not in a good way, and definitely under the influence from this blessed country.

The shift was towards two things:

At this time, people in Russia have a choice who to select to represent them in court (with the exception of criminal court, which is a shame).  They can select, if they so choose, any person and have them represent them in court through a general Power of Attorney.

But, apparently, not for long.

The lawyer lobby has pushed for monopoly and, lo and behold, a bill is pending, authored by the Russian Federal Bar Association - of course, supposedly for the benefit of consumers, even though consumers did not ask for it, and their access to legal services will be restricted, while prices will go up as a result of the introduced requirement for a "mild monopoly" - that court representatives must have formal legal education.

But, Russian lawyer lobby was pushing for this legislation for a long time, so it is not a surprise.  

And, while pushing it, it hypocritically refers to the U.S. experience, claiming that the regulation of the legal profession

(in violation of antitrust laws, see e.g. judicial decisions were

through "bench bar associations" is handled supposedly in a "comfortable, sincere and open manner, without accusations of corruption".  I bet, there are no accusation of corruption among licensed attorneys against judges, their own regulators - for a single reason that has nothing to do with "comfort, sincerity or openness" - it is fear, fear that the judiciary will surely and quickly exterminate the critics' right to earn a living.

But, the suggestion that the foxes are absolutely the best guardians of the chicken coop (access to justice) and of one another to ensure that the chickens are safe, is a long-entrenched concept in American occupational licensing in general, and in American attorney licensing in particular.

What came as a complete surprise to me is another piece of Russian pending legislative bill - which echoed with what is going on in our courts: elimination of the so-called "motivational" part of court decisions.

At this time, Russian judges MUST issue two-part court decisions: one part is the so-called "decisional" part (what is it that the court requires to be done), and the other part is "motivational" - the court provides legal basis/authorities, analysis and basis for the court decision.

In America, as a contrast, while people have a due process right to be adequately explained the reasoning why a court would take away their children, liberty, property, or life, it often happens that courts do not provide any explanations at all.

They issue one or two-word decisions like:



Motion denied.

Certiorari denied.

And that's it.

No explanation, no motivation, no legal grounds, no reasoning.

So, that's what is about to be introduced in Russia, too.

And, in connection with introduction of this peculiar assault on transparency and fairness of judicial decisions, it was interesting to see the proposed justification for such a feat.

It is explained to the Russian public that it takes just too long for a judge to put together and write the motivational part for any particular court decision - 5 days on average per court decision.

So, it will save the court system considerable time, the reasoning goes, to just cut out that time and allow the judge to issue decisions without the motivational part - just a judgment, and no explanation is needed.

But, that raises peculiar questions about the specific though process in Russia, as well as in the U.S. where such though process is practiced.

A reasonable reader of this proposal may ask - whoa, wait a minute, aren't we putting a cart before the horse here?

Shouldn't a judge FIRST do some legal research, analysis and reasoning, and only THEN arrive at the decision.

And, if that is the write order of the judicial thinking, why is it so difficult to put all these precedents and results of analysis you just did to arrive at your decision on paper as a motivational decision? Why would it take so much time.

Yet, if what is cut is not writing the motivational decision, but the reasoning, legal research and analysis that comes with it and is supposed to lead to the "decisional" part, doesn't it then mean that judges arrive at decisions without ANY thinking, without ANY reliance on legal research or analysis.

And, won't allowing the "one-word" "decisional" judicial orders, made without any explanation, encourage judges not to think, not to do any research and analysis, but to jump to conclusions and rule arbitrarily, because nobody can demand them to explain why the h*ll they made a decision as stupid and unlawful (or corrupt) as the one they made without a motivational part?

Of course, it was claimed that parties to litigation in Russian courts will still be able to ask for the motivational part of judicial decisions, after the resolution of the case, but, that is a lame excuse for the legislation allowing the court to FIRST, by default, to arrive at a decision, without any explanation - in ALL cases, BY DEFAULT, and only then, IF asked by the parties, to try and invent a motivational part fitting the decision that was likely made without any legal analysis, just to do things quickly (or for a bribe).

The sad part in all of this is that, while in Russia this bill is only being pushed through, in the U.S., the supposed beacon of democracy, making judicial decisions without a motivational part, without any explanation as to reasoning or legal grounds, has long become a rule rather than exception.

So, the rule of judicial thinking in both Russia and the U.S.A. will soon be the same - first decide and never think, reason or provide honest legal analysis or grounds.

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