1.34 Love and Order

(The following essay was first published as an opinion editorial in the Montgomery Advertiser on December 29, 1996, while I was still an active Circuit Judge.  On the same editorial page was an Edwin Yoder editorial that decried conspiracy theories, and an editorial questioning the ongoing viability of Social Security.  My title would have been, as here, Love and Order, but the newspaper titled it Ten Commandments Have Their Place in the Law, back in those Roy Moore days.)

A few years ago we heard a great deal about law and order.  Law and order was the battle cry of politics.  That battle cry has dwindled some in recent years, but has been replaced by the voice of a politically powerful religious right. 

The advent of the religious right probably evidences a hunger for matters spit=ritual and a recognition of the necessary relationship between what we truly believe and what we do in the realm of government, law, morals and ethics.  The religious right has moved into the vacuum created when the forces of political correctness attempted to push religion from the public square and make it a matter of purely individual belief.

I would like to propose an alternative to the law and order concept.  I would like to propose love and order.  I realize that love and order are seldom connected in the same sentence.

However, in a strange sort of way, love and order very likely combine to produce the very results that the law and order people wanted.  When love is truly advanced and practiced in a group, ordiliness necessarily results.  Normative force emerges.

If one loves his or her neighbor, one is likely to abide by the ancient concept of justice: to each his due.  If one truly loves his or her neighbor, one is likely to abide by the Golden Rule: Do unto others as you would have them do unto you.  If one truly loves his or her neighbors, one is likely to practice the habits of beatitude advanced in the New Testament and abide by the rules set forth in the Ten Commandments.

To violate the Ten Commandments—recognized standards of morality—seldom evidences love.

In a mysterious and paradoxical way, love demands moral conduct.  It is this demand for moral conduct that gives both morality and law their ultimate authority.  There is no other way.

This paradox of the attractive force of love is deeply embedded in the nature of our individual and social being.  We readily understand that while the demands of a tyrannical father who does not love his children are likely to produce persons with criminal tendencies, fatherly discipline combined with love produces conscience and good behavior.

You can’t have discipline without love. Without love, the discipline will never by implanted into the human heard.  It will never be written on the door posts and foreheads as commanded in the Old Testament.  Discipline without love will not work.

The love that I am talking about is not soft, easy love.  It is hard love.  It is love that cares enough to impose expectations and experience disappointment for failures.

Someone may be curious as to how a system that is based on love can impose punishment.  In the process of balancing the needs of the entire citizenry, punishment is necessary.

Obviously, lack of punishment shows little regard for victims.  If we love the victims, who have don no wrong, obviously there must be compensation for the wrong done to them.  But even while imposing punishment, we cannot cease to care about the wrongdoer. 

The way to Christian perfection is not merely obedience to the law.  The Bibl proclaims that Christ came that we might have life and have it more abundantly.  A healthy person could probably lie in bed all day doing nothing and not offend the Ten Commandments.

Nevertheless, that person would not be serving the purpose for which he or she came into the world.

I believe that what I am describing here is the true meaning of the enigmatic verse of the New Testament in which Christ says that he did not come to destroy the law, but to fulfill it.

If law is to be meaningful, the meaning is to be found in the positive benefits to life—not int its negative prohibitions.  There is no conflict between love and law.

Only the attractive force of love can energize the principles of law.  Only when one recognizes that the Ten Commandments are simply the structure that surround a house built of love can one begin to comprehend the true nature and proper role of authority.

The same is true of all law.  We, as a group must care about others before law can gather motive power for any just system of governance.  Incidentally, I believe that this article displays truths that are part of the wisdom of our culture.  But they would be almost impossible to explain without resort ot our religious heritage.

Even if I had made no reference to religion, the religious heritage would be present in the thoughts expressed.

1.01 Family Meltdown

Family is the primal unit of society.  Men and women have obviously always met and produced offspringSuccessful marriages conserved energy and allowed the marriage partners to pursue other activities that are necessary for human advancement.  Maslow identified sex as a basic need.  It is packed with motive force.  Freud called the driving force that pushes humans into action libidinal energy.  Although libidinal energy is often associated with sex, it can be redirected for other creative effort.  When marriage works, the sex needs of both partners are met, without spending energy searching for a mate.  Energy savings resulting from successful marriages frees energy to promote other creative activities. 

Tribes and clans developed marriage customs and rules to handle the problem of orderly mate selection.  It is difficult to imagine families independent of communities.  Every culture has customs and rules about marriage, although the customs and rules vary considerably.  Religion plays a role in the mating process. Despite notable examples of Old Testament polygamy, Christianity strongly endorsed monogamous marriage.  The Judeo-Christian heritage played a large role in the development of our beliefs about family.  During the Middle Ages, the Catholic Church, rather than nation state legal systems, actually controlled marriage and divorce. Strong beliefs about family held the system in place. 

Modern nation states emerged at the end of the Middle Ages, and wrested control of marriage and divorce from the church.  England’s Henry VIII split the Church of England from the Catholic Church in 1534, just 17 years after Martin Luther kicked off the Protestant Reformation in Germany with his 95 Theses in 1517.  Henry wanted a divorce.  And in due course of time, as the power of nation states evolved and increased, divorces came to be controlled by the State.  States assigned the responsibility for divorces to Courts.  However, states continued to recognize the importance of family, and placed tough restrictions on divorce. 

The idea of falling in love, getting married, and living happily ever afterwards has a rich heritage.  In our culture, romantic love attracts potential marriage partners to each other.  Other cultures have successfully handled mate selection differently.  In our agrarian economy of yesteryear, after “falling in love” and getting married, the couple became an economic unit that operated the farm, or a business in a small town, surrounded by a community and churches that reinforced the requirements of monogamous marriages.  The resulting family—father, mother and children—became an economic unit.  The Strong emotional dependencies within the family played an important part of the development of children. 

The romantic love attraction, and expansion of an agrarian economy worked well in the early development of the United States.  Arduous farm labor was the best way to put food on the table, and the need for superior male physical strength in frontier farm conditions supported and helped maintain traditional beliefs about roles of the sexes.  Male physical strength remained important during the industrial revolution.  Men were good at “working on the railroad, all the live long day.”  Public education that sprang up during the industrial revolution did not damage the family system.  Most of the population remained on the farm well into the Twentieth Century.  But subsistence living on the farm could not support a continually expanding population, and all of that was about to change.

The Great Depression proved that subsistence farming could not feed the growing national population.  Then World War II and the need for ships, airplanes, bombs, guns, ammunition and supplies transformed the economy.  We developed systems of mass production and distribution for all of life’s essentials.  We, as an entire society, learned to function corporately.  We learned to use the factory method and specialization to more effectively produce necessary goods to meet all our needs.  Major cultural evolution occurred.

Women left homes and farms for factories and offices.  After the War, technology supplanted the industrial revolution.  Brains became more important than brawn.  Information became the prime commodity.  Women could deal with technology just as effectively as men.  They stayed in the offices and factories after the war.  Men and women spent less time with their spouses than with other members of the opposite sex, to whom they were not married.  Romantic love that had worked well in the agrarian economy was disastrous in the offices and factories required by the military/industrial complex.  The powerful attraction of romantic love was indiscriminate.  At an even more basic biological level, traditional sexual mores were less effective in controlling the sex drive itself in the new cultural conditions. Movement from job to job in different places in a mobile economy isolated family units and individuals from extended family and intimate communities.  Sexual attractiveness became the primary tool for sales and advertising, and diverted large amounts of energy from other creative effort. 

Because of these significant cultural changes, traditional marriage broke down.  The legal system and traditional laws could not stem the tide of change. Although Alabama disbarred lawyers for “quickie divorces” in the late nineteen fifties, the State legislated “no fault” divorce in 1969.  The law no longer attempted to preserve marriages.  Marriage was merely an agreement between two individuals, and if they decided to dissolve it, the process was made easy by no-fault divorce laws.

The changes in law did not cause the breakdown.  Changes were inevitable.  But courts, governmental agencies, and the legal profession were ill-prepared for change, and have not handled it well, as we will explore in other essays.

1.02 The Humpty Dumpty Problem

In the essay on Family Meltdown, I described the meltdown of family that resulted from our nation’s movement from an agrarian, small town economy to a technological economy.  Men and women have more contact with members of the opposite sex who are not their spouses than with their spouses.  The Nineteen Sixties marked the pivotal change.  The judicial system was ill-prepared for the change.  The adversarial legal system was not designed to solve the problems of the disintegration of marriage and family. 

Nursery Rhymes teach us a lot.  “Humpty Dumpty sat on a wall, and had a great fall.  All the Kings horses and men” could not fix the problem.  The “king’s horses and men could not put Humpty Dumpty together again.”  Judges and governmental bureaucracy—the “king’s horses and king’s men”–can’t repair emotional and structural problems inherent in the breakdown of marriage and family.  Of course, assigning domestic relations disputes to the courts seemed natural enough at the time.  As pointed out in the family meltdown essay, the state had taken control of the regulation of marriage centuries earlier, and courts were handling the divorces that occurred when governmental policy still required a sufficient legal reason for divorce.  In that system, marriage was more than a simple contract between two parties.  The State—society itself—was like a third party to the marriage.  I had a vested interest in the outcome.  But, after the adoption of no-fault divorce the assignment of marital disputes in which marriage itself was not a protected relationship to an adversarial system was not a good governmental policy.  

For starters, in order for a lawyer to make money, there had to be a divorce.  Lawyers were paid nothing for maintaining a marriage.  So lawyers had no motive to save the marriage. But there are other, even more pernicious effects of the assignment. Adversarial trials can be devastating to the continuing relationship of the parties.  The adversarial legal system actually requires lawyers to provide “zealous representation” for their client.  Lawyers were forbidden by the ethics of the profession to advise both parties to a divorce.  “Zealous representation” involved digging every possible skeleton out of the closet and throwing as much dirt at the other side as possible.  The parents were and still are urged to “fight for their rights.”  (Imagine this as a requirement of legal ethics!) The kids who were emotionally attached to and dependent on both parents.  Children were caught in the middle.  Often kids were pulled into the battle, with both parents trying to “use” them as witnesses, and urging them to take sides. 

The system that had previously sought to preserve marriages became extremely insensitive to that relationship overnight.  In the “no fault” system, there was no legal issue as to whether a divorce was “justified” or “in the best interest” of the family.  The issues were about who would get the kids, who would get the property, and how much spousal and/or child support would be paid.  A financial obligation was a poor substitute for the emotional support of the non-custodial parent.

As pointed out in the family meltdown essay, the breakdown of the institution of marriage was brought about by changes in the culture, not by changes in the law.  And judges and the court system was ill-prepared to handle the onslaught of cases.  The changes opened Pandora’s Box.  I spent about 40% of my time for 18 years as a judge in a rural Alabama circuit court dealing with domestic relation cases.  No amount of wisdom can bring happiness in these cases.  To do an adequate job, hundreds of hours would be required for every case, and judges simply cannot do that.  Myriad problems engulfed the system.  Humpty Dumpty lies irreparably shattered.

The problem I am describing does not reflect adversely on the character of lawyers and judges.  Most of them are extremely sensitive to the issues, but are caught in the system.  We assigned the most sensitive and important relations that exist in our society to an adversarial system that was not designed to deal with itLawyers are ethically committed by the adversarial system to “zealously” represent their clients.  In other words, unless they fight with maximum hostility for husband or wife that they represent, even though kids are caught in the middle, they may be criticized for being “ineffective”. 

Describing the problem is easy; solving it is not.  Someone said, “To survey the Aegean Stables is not to clean them.”  In Greek mythology, the Aegean Stables was where the horses that pulled the sun across the sky by day slept at night.  One of Hercules tasks was to clean the Aegean Stables.  He solved the problem by running a river through the stables.

To understand that there are problems with the system is not to provide solutions.  But perhaps recognition of problems is the first step toward solving them.  Many lawyers and judges today recognize the problems, but are caught in the system.  Mediation holds some promise, but often is too expensive, and fraught with the same faults and economic burden as the adversarial system.  Collaborative divorce, in which lawyers representing the parties attempt to work peaceful solutions, without the bitter rancor of the traditional adversarial system also holds some promise.

We have a long way to go.  The system that has ruled in Alabama since 1969 has damaged the role of family in the moral formation of children.  We will explore that topic in the next essay.

1.03 Marriage Meltdown and Moral Formation

Twentieth century psychology correctly identified the sources of moral formation. Sigmund Freud, Erik Erikson, Jean Piaget, Lawrence Kohlberg and others showed that moral formation occurs in stages of development.  Internalization of the commands and images of the parents plays a strong and vital role in moral formation. Traditional family was the first template for moral formation. Earlier in history, conscience was believed to be an inherent part of human nature—something humans are born with.  There is probably some genetic predisposition for development of conscience, because the capacity would support survival, but there is also a very strong social/cultural component to moral formation. Basically, conscience is instilled by the surrounding culture. Parents usually start the process, and continue to be a central role. Moral formation includes both a cognitive (learning) component and emotional component. The learning component is important: if and individual knows that it is wrong to do a particular thing, he or she is much less likely to do it. In fact, Russian psychologist Lev Vygotsky realized that individuals internalize all that they know from the surrounding culture. The internalization begins with parents. But the emotions that are involved include not only shame and embarrassment because of wrong-doing, but also includes the development of an internal monitor that Freud called the “superego” that demands correct behavior. According to Freud, the superego resulted from the internalization of the commands and the image of the parents. The superego is the conscience.

In the essay on Family Meltdown, I describe the breakdown of traditional family and marriage when the culture shifted from an agrarian to an urban, industrial/technologically based economy. In western civilization, romantic attraction played an important role in pairing couples off, and then, according to the fairy tales, they lived “happily ever after.”  However, romantic attraction didn’t work as well in the industrial, technological economy.  Romantic attraction—to be frank, the attraction of sex—in offices and factories, between males and females who were not married to each other produced inevitable results. Laws changed in the 1960’s, shifting to no-fault divorce. Change in law was the result, not the cause, of the breakdown of marriage. Courts were ill-prepared to deal with the onslaught of emotion-laden divorces, child custody matters, child support matters. The adversarial system for dispute resolution is the hallmark of the court system, but it definitely was not the best place to resolve the highly emotional issues arising from breakdown of the most fundamental unit of civilization.  And that gets us to the point of the present essay: because the family was largely responsible for moral formation, the effect of the breakdown of family had significant impact on our society.  The legal system that has evolved for the resolution of emotionally charged domestic disputes leaves much to be desired.  The potential results are far reaching.

Often we hear theories about the cause of crime. Searching for a “cause of crime” is the wrong approach. There is no “cause” for crime, although many social and personal factors may create an environment in which it is more likely to occur.  There is a cause for moral, law-abiding behavior. The cause for proper conduct is sound moral formation—the adequate development of conscience.  Sound moral formation has been imperiled by breakdown of family, and the resulting destruction of the traditional template for moral formation.  Moral formation traditionally depended on the child’s strong, healthy relationship with both parents. Our method of dispute resolution does little to improve the prospect.  A few hours of a judge’s time, with attorneys doing battle to zealously represent clients in an adversarial setting, with economic factors being the pre-eminent concern, is not a good way to make decisions that will drastically affect the entire future for children, mothers and fathers.

When moral formation declines, it is predictable that there will be an increase in crime. The rate of incarceration remained constant in the United States from 1924 to 1964, but began to mushroom in the late 1960’s—the same time that traditional marriages began to breakdown at a rapid rate.  It would be a mistake, however, to jump to the conclusion that the breakdown of family was the initial cause of the increase in incarceration. Just because two things happen one after another does not mean that the first causes the second.  Reasons for the increase in the rate of incarceration included the increased use of drugs, the criminalization of conduct that might not have been criminal previously, and numerous other factors coming out of the tumultuous 60’s. But the breakdown of moral formation is likely to cause increasingly poor behavior, and to escalate the rate of incarceration, in a vicious, degenerating downward spiral. What goes on in domestic relations court interacts with what goes on in criminal court.

Thoughtful people are beginning to understand that there is a systemic problem in the way we have dealt with domestic relations litigation.  But we have a long way to go.  In the next essay in this series, I will deal with a huge problem in the economics of divorce: Child Support.

1.04 Child Support and Spousal Support

Family is the basic economic unit of our culture. Other essays in this series have examined the breakdown of family and problems related to the problem of trying to resolve family disputes in an adversarial judicial system. Problems related to child and spousal support epitomize the unanticipated difficulties of the transition to no-fault divorce managed by an adversarial judicial system. The traditional family was the ultimate consumer. Food, clothing, housing, transportation, and all of the basic requirements for life are a part of the family budget. The purchase of those necessities has been the bedrock on the entire economic system. 

Difficulty with the management of money is a major cause of marital breakdown.  In the traditional family before the meltdown in the second half of the Twentieth Century, law discouraged divorce.  Economic forces within the family itself created pressure to make the family budget work. The policy of government and law did not encourage either parent to make decisions based on selfish economic interests. But then marriage became just another contract, and suddenly, the non-fungible, incommensurable moral duties and the affective role of parents, that included love, nurture, participation in moral formation, education and other responsibilities that do not lend themselves to monetary evaluation, were assigned monetary value.

In the present day adversarial legal market for divorce, either party can readily obtain an evaluation of economic prospects for child support and spousal support. While spousal support is evaluated on somewhat equitable principals including the age, condition, station in life, length of the marriage, contributions to the marital estate and the like, child support is simply based on the prospective income of the two spouses.  The system assigns a monetary value to things that really can’t be bought or sold.

The excellent intentions of lawmakers in requiring every parent to be responsible for the economic needs of their children are admirable, but when a system is created that causes an economic motivation for divorce to be thrust into the core of every marriage with children, the unintended results are scary. The conversion of the responsibility of parenting to a monetary sum inserts a conflict of economic interest into every marriage that involves children.  The appearance of an economic advantage is not limited to those marriages that would likely have ended in divorce anyway. The monetary child support obligation applies not just to the irresponsible parent-it applies to every parent.  It can provide part of the motivation for divorce.

The non-custodial parent is forced to pay child support.  But the custodial parent is not really accountable for the disposition of the child support that he or she receives.  Nothing assures that it will be used for the benefit of the children.  In a society in which drugs are problematic, and are not the only unhealthy possibility for the unattached custodial parent, the lack of accountability is a real problem.

But the temptation to legally require accountability from the custodial parent is not a viable answer to the problem. An already overburdened court system could not meaningfully take responsibility for managing the financial affairs of every family that undergoes a divorce, and impose and enforce some type of fiduciary responsibility, like that of a guardian, on the custodial parent. In the traditional family when the law protected the marriage itself, and divorce was more difficult, the wife and husband exacted some accountability of each other.  To solve the accountability problem, we must again harness some of the energy that naturally brought the parents together in a bonded relationship and caused them to bond with the children in the first place.  Without forcing incompatible couples to endure each other, we must discourage the animosity generated in our present adversarial system.  We must create a system that encourages parents to work together for the best interest of the children.  The support of extended family, community and church is needed.  A new morality for grandparents needs to evolve, that is not shaped by the culture of adversarial divorce.

A widespread practice of pre-litigation mediation offers promise, for these and other problems related to the adversarial system of divorce.  Without involving lawyers and the adversarial system of the courts, a mediator could meet with both parties and help to reach a successful voluntary solution.  Then the parties could seek disinterested advice, and one of them could file for an uncontested divorce.

1.05 Counterintuitive Thoughts on Criminal Justice

The tremendous increase in the rate of incarceration that has occurred over the past forty years or so strongly indicates more crimes are happening. There are many insightful explanations for the increase, but none exclude the possibility that more crimes are occurring.  This is the first in a series of essays in which I explore some of the implications. In an earlier essay, I suggested that there is no “cause” for crime. There is a cause for proper behavior. The cause for proper behavior is adequate moral formation.  I also pointed out that the traditional family that was the traditional beginning point of moral formation, and that the breakdown of family cannot help but have impact on moral formation and ultimately on criminal activity.  All of this background information points to an additional counterintuitive point: the solution to crime will not necessarily result from the expansion of law enforcement agencies or spending more money for law enforcement.

And while the escalation of crime may be associated with family breakdown, the answer to crime does not lie in an attempt to rejuvenate the traditional family by forcing parents to live together unwillingly.  In my career as a judge, I believe that I saw instances in which moral formation happening in reverse. The actions of an abusive father and an immoral mother seemed to result in children whose conscience was plugged in backwards.  They could not feel good about themselves unless they were doing something bad!  Ironically, some good scholars actually contend that such childhood circumstances should be considered in mitigation of the sometimes terrible acts that individuals produced in such environments do.

In addition to family, the peer group is very important in moral formation.  After infancy, children develop and mature in relationships with people other than immediate family members. As children grow older, their peer group plays a larger and larger role in their moral formation. Inevitably, this means that community and the peer group are extremely important in determining whether individuals will engage in criminal activity. Like poor parenting, a bad peer group can certainly result in something less than desirable moral development.  Who the kids hang out with makes a difference.

The place where most individuals encounter the peer group is in school and the educational system. That is often where children meet other children with whom they will develop relationships.  I met my wife-to-be in the first grade. And the schools themselves clearly have an important role to play in moral formation. The learning process plays an important role in moral formation. The prisons are filled with individuals who have performed less than adequately in school. Often illiteracy is a problem and clearly there is a positive correlation between lack of linguistic skills and criminal behavior. But schools cannot completely provide the values, and emotional attachment to values that need to be instilled by family, church and community in general.  Moreover, interactions with other students—the peer group—is just as instrumental in moral formation as interaction with teachers.

The important point in this discussion is that family, church and community must build moral citizens.  That is ultimately the only answer to crime.  Only by reinforcing the values that were traditionally instilled by caring parents, and by surrounding developing children with a community that cares, and that will instill positive values, can we hope to overcome criminal behaviors. Church and religious groups have a strong role to play in this process. It is a role that religion has played in the past, and religious organizations need to become very intentional about the matter. In a sense, the increased rate of incarceration represents as much failure on the part of the church and religious organizations as on the part of law enforcement courts. It is not enough for the church and community to condemn evil, and commend the work of law enforcement.  The traditional role of the Judeo-Christian heritage has been the advancement of positive good, and creation of strong citizens.  The condemnation of evil does not solve the problem and bring the solution.

The basic premise of this essay is that we must find positive ways of dealing with all of the individuals in our society. A caring community that supports families, churches and schools is the ultimate answer to the problem of crime. That support must be imbedded in the structures of the community, and must be intentional.  Strong, honest law enforcement is very important, but it is not the answer to the increase in criminal activity, and greatly increased rate of incarceration. No amount of emphasis on law enforcement and incarceration will provide a meaningful solution to the problem of crime.  We actually must “accentuate the positive” if we are to “eliminate the negative.”  We’ll develop further ideas imbedded in this initial essay in this series of essays.

1.06 Accounting for Crime

This essay is the second in the series dealing with counterintuitive thoughts about how we deal with crime. In the first essay in the series I suggested that the solution to the problem of crime will not result from stronger law enforcement, but from stronger moral formation. Correct moral formation occurs as a result of interaction with the family, the peer group, churches, schools and the entire community.  Peer groups play a particularly important role.  And now there is TV and social media.  A comedian may have captured the thought when he said “We’ve got to come up with a better class of criminals”.

In the present essay, I turn to the measurement of success in our efforts to deal with crime. What kind of statistics would show success in decreasing the amount of criminal activity?  The measurement of the success of criminal law would have to reflect the crimes that are not committed rather than the crimes that are committed. Criminal law is accomplishing its goals when there are no murders, rapes, robberies, deaths, and other crimes. But it is difficult to make a list of undesired events that didn’t happen!  It is much easier to talk about and “measure” the success in solving the crimes that do happen than it is to document the fact that they are not happening. It is much easier for those persons in charge of law enforcement to talk and take pride in the cases that are solved than to boast of cases that do not happen.  A reported “decrease in the crime rate” is a comparison of the number of crimes that are actually reported during one time period to those reported in another time period.  And there is always the statistical problem of crimes that don’t get reported, simply because it is not worth the effort to make the report.

If I am not mistaken, the Law Enforcement Planning Agency, back in the 1970’s, was a program instigated by the federal government. In some instances, it actually made funding available based on the number of cases prosecuted. Certainly, law enforcement needs appropriate funding. Nevertheless, funding that is based on the number of prosecutions is more likely to lead to a higher rate of incarceration than to a reduced rate of crime. What we need is a program promoting real success- an increase in crimes that do not happen!

The rate of crime and the rate of incarceration are not necessarily drawing on the same statistics.  Length of sentence, the likelihood of a crime resulting in incarceration, the criminalization of activities that had not previously been declared crimes, the political pressure on law enforcement, legislatures, and judges to be tough all add to the rate of incarceration.  It is not at all clear that the result of any of these factors is an actual decrease in crime.  For an excellent discussion of those factors, see James Farmer, Jr.’s book, Locking up Our Own. Those factors that affect the rate of incarceration do not address the primary cause of crime: inadequate moral development of the individuals involved.

I remember an instance in my courtroom in which a representative from the Center for Disease Control presented testimony. Off the record, I asked whether the Center for Disease Control has a computerized statistics database for measuring health of the nation rather than reporting the number of diseases that occur. Although the answer was not entirely clear, it is clear that CDC sees health, not disease, as its goal. Although it is important to measure the number of diseases that are occurring and to keep statistics, it is also important to have some method of measuring health as opposed to disease. That is the same statistical challenge that exists for criminal behavior. Moral conduct, rather than crime, must be the goal in dealing with the illness of society.

The approach advocated in this essay is consistent with the mainline Christian tradition. The mainline Christian tradition is the promotion of good as opposed to destruction of evil. Ancient Mid-Eastern religions believed that the cosmos is involved in an eternal conflict between good and evil—light and darkness. In the Christian tradition, the focus is always on the light.  Darkness is simply the absence of light. All of this is a complex, abstract way of saying that the destruction of evil does not produce good. In a word, the Christian message is obey the law of love and do whatever you want to do.  If you are truly Christian, “Whatever you want to do” will seldom be a crime.

Complex social issues bear on the tremendous increase in the rate of incarceration over the past forty years.  We will explore some of those issues in future essays that describe “human economics” and the problem of race and incarceration.

1.07 Crime: Human Economics

In the two preceding essays I suggested that the principle cause of crime is inadequate moral formation, and that spending money on law enforcement and penitentiaries does not solve the basic problem. In this essay I explore social dynamics that underscore these two points. Let’s start by saying that crime in general is not the product of brilliant minds. A great contest between extremely intelligent criminals and equally intelligent law enforcement officers makes good movies and TV, but we are not filling the prisons with a lot of smart people. Statistically, the court system processes people who are below average in intelligence and below average in skills.  Basically, our penitentiaries warehouse ignorance.  Let’s examine why that is the case.

In our social system everyone is required to make some contribution to the welfare of society in order to make a place for themselves. “Whoever does not work, neither shall he eat”. That ancient principle expresses both economic and social truth. After Adam Smith invented modern economics we began to assign value to commodities. The Industrial Revolution started the process of making every individual a unit of production in society.  Then came the age of technology where even greater mental skills were required in order to be a productive member of society. Education became a necessity. Graduation became the rite of passage to the world of useful adults. Salaries reward skills and knowledge. It was inevitable that human beings would be assigned an economic value. A certain percentage of human beings do not have as much “economic value” in an industrial, technological culture as others. They are “worth less” but too often that translates “worthless.” Many of these unfortunate individuals wind up in the penitentiary. And the penitentiary is not likely to cause them to “be all they can be.”

The simplistic solution “We should teach them to read” is not a satisfactory answer. Not everyone has the same talents. The thing that makes a person a highly productive unit in society is the fact that he or she possesses the ability to acquire the necessary skills. The same thing that makes them unable to read is the thing that causes them not to have great economic value.  If a person lacks ability, then the outlook is not real bright. The inability to read and lack of economic productivity result from the same underlying cause. Encouraging everyone to learn to read and to attain as much education as possible is a wonderful idea, but falls short of solving the problem for individuals who are “worth less”.

While the assignment will be quite difficult, society needs to recognize that God did not make any trash. We need to recognize that every person has worth, and we need to search for ways to help every person to achieve that worth. We need to find their strong points. We need a legal system that allows everyone to achieve his or her most beneficial station in life. That was the thought expressed by Dr. King in his Letter From the Birmingham City Jail.  We need group functions that promote individual achievement for those who are “worth less”. The task will not be easy. In the scheme of Lev Vygotsky the great Russian Psychologist, we need to find their zone of proximal development and help them to achieve their potential  The solution does not include sending ignorance to the penitentiary, but neither does it include rewarding the commission of crime by giving the person who committed crime greater educational and training opportunities than is provided to the general population.

Perhaps the answer lies in a system that identifies persons who are likely candidates for criminal activity before they commit crime, and provides special opportunities for them, not as a reward for committing crime, but that provides opportunities before crime happens. We have to intercept the problem before the crime occurs. My friends in the teaching profession tell me that it is probably not difficult to identify the likely candidates. At the same time, the difficulty will be identifying those candidates without stigmatizing them. Finding a totally positive approach is the challenge.

Ultimately, the laws of economics—supply and demand—operate on what human society believes to be important.  If we think that money is the ultimate good, then the laws of economics will govern and be based on the demand for money.  If we truly believe that every human being has intrinsic worth, the laws of economics will govern our lives together based on human worth being our most important value.

Reworking our value system is a task for churches and religious organizations.  “I was in prison and you visited me…”  But let’s not wait until the visit has to be in prison.  “Even as you have done it unto one of the least of these….”

1.08 The Problem With Penitentiaries

In other essays in this group, I discuss the breakdown of the family and the impact of family breakdown on moral formation. I suggested that inadequate moral formation is the root cause of crime.  I suggested the possibility that the breakdown of the family has damaged its role in moral formation and that has contributed to the escalating rate of crime and incarceration. I have also discussed the important role that the peer group plays in moral formation and the fact that usually the “peer group” is found in schools, churches, families, and other community organizations. Those organizations help to build good citizens, but not all peer groups are helpful. I have pointed out that an economy that assigns economic value to individuals based on skills place a low value on individuals with poor skills. These individuals will ultimately be deemed “worthless”.  According to one study, in the prison population, the average full range IQ is 92, (low average) with linguistic skills being even lower. So, in this essay, I will discuss the role of penitentiaries as a solution to crime, and the prospects are not good.

The modern prison system originated in Philadelphia in the early 1800’s. The idea behind penitentiaries had a somewhat theological basis. The idea was that individuals are born with a conscience and that if, after committing a crime the individual is given time to think about his or her inappropriate behavior, he or she will become penitent. Hence the word penitentiary.  The thought ran, we will isolate them from society and give them time to think about their criminal activities. Given time to think about it, they will repent. The idea of penitentiaries that would rehabilitate criminals quickly spread and became an established part of our criminal justice system. Those ideas are not consistent with what we know about human development and moral formation.  Even though the underlying theory was doomed to failure, penitentiaries were accepted as a way to remove the criminals from the street and to make the world a safer place to live. From the vantage point of the non-criminal population, it seemed like a good idea.  Out of sight, out of mind.

There are significant problems with this approach. First, the approach ignores the real basis of moral formation. Morals are instilled by family and peer groups. What are we doing when we take all of the bad guys and put them at the same location? Who is the “peer group”? What are the chances that the original theory of penitence will work in that environment? Instead of an institution in which individuals become penitent, we are creating a graduate school for inappropriate moral formation. Just as the abusive father and immoral mother install the conscience backwards, the penitentiary peer group will move individual development in the wrong direction!  At the end of the sentence, we send these individuals, who were probably economically handicapped to begin with, and with the stigma of penitentiary even more economically handicapped, back to the street.

The cost of penitentiaries is spiraling upward. The rate of incarceration in the United States remained constant from 1924 to 1964, but, over the past 50 years the rate has greatly escalated. The cost is very high. I suspect that the cost of maintaining our prisons is greater than the cost the State of Alabama pays for all its efforts in higher education. The spiraling costs and overcrowding creates pressure for early release, and the rate of recidivism is high.

The problem with incarceration of large numbers of people in penitentiaries is that although it is a very expensive burden for tax payers, it is not an effective solution to the problem of crime. Solutions to these problems is not at all easy or obvious. Intuitively, it is clear there has got to be a better solution to the problem of criminal conduct other than assembling all of the criminals at a mega-prison. The Alabama Department of Corrections is a law unto itself, and is the way its officers and employees make a living.  They are skillful at playing the State off against the Federal Courts and overcrowding, and prospering economically as a result. The system lobbies to perpetuate itself.  The problem is the system and the solution must be a system founded on proper moral formation. We need intervention at a many earlier stages in the moral development of the individuals who are likely candidates, or likely to become candidates for incarceration. Although the traditional family has broken down, we need to be very vigilant in attending to the moral formation needs of the very young. We need to find training programs so that those persons who are not talented in the ways of traditional education can nevertheless, find meaningful activity in which they make a meaningful contribution to society. They need to be appreciated. Incarceration in a central penitentiary needs to be a last resort.  Needless to say there are hardened criminals who need to be locked up for long periods of time.  But for others, we need to find better local, non-centralized penitentiary solutions.  Local communities need to take a stronger interest in dealing with the problem. To make probation more successful, during my tenure as judge, I worked hard to promote a concept of probation sponsorship. I describe the probation sponsorship program in more depth in another essay in this group. But the next essay deals with the disproportionate rate of incarceration of the black race.

 

 

 

 

 

 

 

1.09 Race and Incarceration

In other essays, I discuss the alarming increase in the rate of incarceration. Bryan Stevenson and James Farmer, Jr. have written excellent books dealing, among other things, with that critical issue.  I have suggested that the increase in the rate of incarceration signifies that criminal law is not working very well: it would be working well if there were fewer crimes. Ironically, the criminal justice system, particularly law enforcement officers and prosecutors, seems to take pride in the number of cases processed, and the number of convictions.  But law is working well when people obey the law.

Now we turn to an alarming demographic fact about incarceration in these United States.  The rate of incarceration of members of the black race is greatly disproportionate to the percentage of members of the black race in the total population. This fact is often cited by civil rights advocates to show that the legal system is discriminatory, prejudiced, unjust and unfair to black people. Occasionally that contention is countered with the suggestion that it simply shows that blacks commit more crimes than others. It is not the purpose of this article to pit those two contentions against each other. Both statements may be true. This is not to suggest that profiling doesn’t exist or that race cannot produce prejudicial reactions in law enforcement.  The simple explanation is that 400 years of slavery and segregation for African Americans did not instill into the sub-culture a natural tendency to turn to the law, derived from European culture and history, for the solution to its problems. Slavery and segregation caused the evolution of a unique cultural system for African in America, particularly in the South, that differs from the historically dominant culture. Often people in the black culture best protect their interest and their population by distancing themselves as far from legal system as possible. The advantages of distance created black solidarity that came to be firmly established in the mores of the culture. It was the best way to survive. The black cultural system has its way of dealing with conflict, and it not centered in the Euro-American legal system. A cultural system 400 years in the making did not disappear overnight. It is embedded in family, church, and community relations.  Self-help and tolerance are important internal factors in the system. 

Other factors contributing to the rate of incarceration that I discuss in other essays also affect members of the black race in the same way that they affect anyone else.   Lack of education and skills improves the possibility of incarceration.  Those factors contribute to the rate of incarceration of black individuals in the same way that they contribute to the incarceration of others. In fact, these factors probably have a disproportionate impact on the black population.  Given the fact that the criminal justice system is not working extremely well to begin with in bringing about desired behavior, there is not a great deal of inducement to the black community to alter its cultural defenses against the criminal justice system.   But the “self-help” remedies lead to incarceration.

Our legal system has attempted to deal with the cultural problems that arise from conflicts between cultures by applying individual rights and remedies. Cultural differences are social differences.  A cultural system is a social system.  Individual remedies will never resolve problems arising from differences that arise from cultural differences in social systems. A broader, systemic solution is needed. 

In our other essays, I suggest early intervention.  Making certain that every young person, regardless of race, has the opportunity to develop social instincts and moral insight that is necessary in order to have the opportunity to do well in the modern world is essential. That is the beginning point for solving the problem. Family values need to be emphasized. Families are the beginning point for moral formation.  Schools need to continue to do everything that they can to foster moral development, but that task is difficult where cultural differences are involved.  Churches need to become much more aggressively involved. Community building organizations need to work for community solidarity, to erase the cultural disadvantages arising from cultural differences, while at the same time recognizing and promoting all of the advantages of a pluralistic society.  Communities need to intercept problems long before they result in criminal activity. We need to develop community spirit that includes everyone.  The Criminal Justice System needs to become effective as a system that produces non-criminal behavior. Incarceration in a central system should be used, as I have suggested, only as a last resort. In a another essay, I provide a brief description of a concept that I call “Probation Sponsorship.” That is a program that I attempted to implement at a Circuit Court Judge in Alabama’s Fifth Judicial Circuit.

 

1.10 Probation Sponsorship

Four hundred years of slavery and segregation created a cultural system in our black communities. That system did not disappear just because the Civil Rights Movement adjusted the legal system in an attempt to treat all persons equally. The cultural system that had evolved appears to still has notable influence in many ways.  A “self-help” system for enforcing cultural norms is a factor in the higher rate of incarceration of blacks in the criminal justice system.

Programs can be implemented to help alleviate the problems arising from cultural differences. During my tenure as a circuit judge, I created a program that I called “Probation Sponsorship.”  The idea of Probation is to give persons who find themselves caught up in the criminal justice system an opportunity to display a willingness to correct their behavior instead of going to the penitentiary. Traditional probation does not seem to be very effective, and needs to be supported by efforts that provide the natural forces of moral formation. That was the purpose of my Probation Sponsorship Program.

In other essays I discuss the role of the peer group in moral formation. The idea of Probation Sponsorship is to have the person who might otherwise go to the penitentiary recruit reputable friends from his or her own community and have them work with that individual to assure good behavior. The probationer enlists a peer group to assist him or her successfully complete a period of probation.  That peer group is quite different from the “peers” in the central penitentiary. There should not be a wide cultural divide between the probation sponsors and the probationer. Churches can take an active role in providing probation sponsors. The probationers are much more likely to feel compelled to adhere to the standards expected by the sponsors. Sponsors should help make certain the probationer attends court when necessary, meets with the probation officer when necessary, seeks employment, takes advantage of educational opportunities, pays the required court costs, and avoids “friends” and places that are likely to get the probationer in trouble. All of those things are standard requirements of probation. The court should supervise the probation sponsorship and actually have the probationer and his sponsors appear periodically to make progress reports. Likewise, the probation officer should carry out the traditional functions of a probation officer.  If drugs are a part of the problem, the sponsors should make certain that the probationer adheres to the requirements of whatever treatment program is required by the court or needed by the individual. In some courts, officers known as “court referral officers” provide helpful services especially in dealing with drug addiction.

Although Probation Sponsorship provides an opportunity to solve some of the problems arising from cultural differences, it is not specifically a race-based program. It should be available to all prospective probationers. Solutions to cultural problems that are based on race, and require continued racial identification cannot ultimately solve the problems of cultural differences. But Probation Sponsorship provides a way for the local community and its organizations to take charge of its own problems. Central penitentiaries with revolving doors—especially with regard to non-violent crimes—are not a solution at all. They are graduate schools in criminal conduct. What I mean is that penitentiaries surround the person convicted of crime with a peer group that is not at all likely to instill the appropriate values that are required in order to bring about the required changes in the individual’s life.

To fully grasp the significance of the suggestions in this column requires an understanding of the function of law that differs from popular political perceptions.  Law is not what a court does, as suggested by Oliver Wendell Holmes, Jr.  Law establishes the parameters for acceptable human behavior, and courts become involved only after law, in that sense, has been violated.  Courts provide remedies for violations.  The rules for decision are not the rules for conduct in society.  In another essay, I suggest that the purpose of criminal law is to produce correct behavior, and that success cannot be measured by the number of people that are convicted of crimes and sent to the penitentiary. Probation Sponsorship offers a glimmer of hope for producing desirable, law-abiding, behavior.

One of the inevitable problems with all programs and with the criminal justice system itself is cost. While theorically the probation sponsors serve as sponsors simply as friends of the probationer, nevertheless, the court costs, court referral fees, probation fees, and other costs that are now imposed by the criminal justice system probably cause the system to produce exactly the opposite result needed.          

 

 

 

 

 

 

 

 

 

 

 

 

1.11 Economic Development in the Black Belt

In several essays, I discuss problems with the criminal justice system and incarceration. Our exploration of problems concerning the corrections system suggested that 400 years of slavery and segregation created a Black cultural system that understandably put distance between itself and the legal system. We pointed out that a self-help system evolved and that street justice in a self-help cultural system may be one of the causes for disproportionate incarceration of black citizens and suggested that a program called “Probation Sponsorship” might help bridge the cultural divide. The division between the black culture and the legal system also has important implications for economic development in predominantly black areas, such as Alabama’s Black Belt. These implications have not been carefully considered and it is time that we take a look.

First we should underscore the fact that slavery and segregation created a strong cultural barrier between the black population and the white culture and its legal system. The separation was actually reinforced by laws and the legal system itself.  Inevitably a separate black cultural system that was not closely aligned with the legal system evolved. The black cultural system has its own customs and ways of dealing with life. Cultural differences are reflected in church life, family life, musical taste, art, language and in numerous other ways. The removal of the legal barriers by the Civil Rights movement did not erase the cultural differences. Although it is important to recognize and preserve many beautiful aspects of black culture, it is also important that the cultural system itself not the stumbling block, preventing of full participation by Blacks in the mainstream of society, including the economic system.

The events of the 1960’s did not erase a way of life that had evolved over 400 years. The Black culture has been understandably slow to turn to the mainstream of law for the solution to problems. The different cultural attitudes toward law are not limited to the criminal law. Remedies that have been adopted to create equal rights took the form of creation of individual rights and little, if any, attention has given to the cultural aspects of the problem. Any factors related to the culture that would have adversely affected progress by Blacks before the Civil Rights movement may still be in place.  The Black cultural system simply continued to evolve under the influence of changes wrought by the Civil Rights Movement.

Any textbook for any introductory course to economics will clearly indicate that a prerequisite for an economy to function and create wealth is a legal system. That is because the legal system must recognize and enforce property rights. And the legal system must recognize and enforce contractual obligations. It is important to distinguish between the function of the judiciary, and the actual function of law in society. The difference in legal results between predominately black counties and predominately white counties is quite obvious, but differences in the actual function of law in society are much more difficult to assess. The high verdicts in civil cases in Macon, Bullock, Lowndes and other Black Belt counties as opposed to low verdicts Elmore and Lee counties, is obvious. In fact that is part of the problem. Statistically, the “run-away” verdicts that transformed the Alabama legal system and brought an extreme right wing reaction in the entire state occurred mainly in the areas of predominantly black populations. But that is just a part of the problem. These results and the more subtle differences in the role of law in everyday activities tend to perpetuate the cultural distance between the black subculture and the mainstream.

Blaise Pascal, a French philosopher in the early ages of enlightenment, pointed out that it is a strange justice that changes with the crossing of a river. The different expectations that exist based on whether an automobile accident happens in Macon County or in Lee or Elmore County cannot be justified. That is not to say that the extremely conservative position taken by juries in the predominantly white counties is ideal.  Unfortunately the difference, and the attitudes that reinforce the difference, are strongly charged with emotions and feeling. Verdicts everywhere should be fair.

The point is that the function of law, both in the actions of courts and in the behavior of society, significantly impacts economic development. The attitude toward law that currently predominates in Alabama’s Black Belt counties adversely impacts on economic development in those counties. This essay is written in the belief that honest, open discussions of cultural differences can help to alleviate the obstacles to progress created by those differences. The open discussion is an important step toward economic progress for everyone. The historical distance between the Black culture in law and the legal system is one of the differences that needs discussion. 

In several essays, I discuss problems with the criminal justice system and incarceration. Our exploration of problems concerning the corrections system suggested that 400 years of slavery and segregation created a Black cultural system that understandably put distance between itself and the legal system. We pointed out that a self-help system evolved and that street justice in a self-help cultural system may be one of the causes for disproportionate incarceration of black citizens and suggested that a program called “Probation Sponsorship” might help bridge the cultural divide. The division between the black culture and the legal system also has important implications for economic development in predominantly black areas, such as Alabama’s Black Belt. These implications have not been carefully considered and it is time that we take a look.           

 

1.12 The “Melting Pot” Doesn’t Work

In several essays on this website, I deal with issues of law and race from a different and unique point of view. In the background of all of the articles is consideration of differing cultural systems. I note repeatedly that the 400 years of slavery and segregation that existed in the United States produced a unique black culture. One aspect of that culture has been the strained relationship between the black culture and the legal system.

The legal system obviously originated in Europe-not Africa. African-Americans are not Africans, they are Americans. African-American culture is a unique product that has been developing for over 400 years. The cultural difference is not embedded in genes that originated in Africa: it is a product of cultural evolution.

In another essay, I point out the possible adverse impact of the black cultural heritage on the possibilities for economic development. Law is a pre-requisite for economics, and full participation in and support for the legal system is a pre-requisite to economic development. But historically, the best interest of the black culture was not served by willing participation in and support of the legal system. Therefore, there is, and has always been, a distance between the legal system and the Black culture. In our Black belt counties that distancing from law may be a built-in cultural impediment to economic development because of continued lack of confidence in law. The legal system is not the primary way conflicts are solved in Black culture.

Differences in culture and cultural institutions came to the forefront of the Civil Rights Movement. The legal system, in many instances, particularly in the South, actually supported segregation, and provided separate institutions. Segregation was an obvious barrier to full participation of blacks in the good-life of the culture of America. In Brown v. Topeka, the Supreme Court of the United States recognized that separate is not equal. The application of a concept of equality to various social aspects of complex of human cultural systems is very problematic. Equality is not nearly as exact or easy to identify as it might sound when applied to matters social. The Brown decision recognized that separate is not equal. It would have done well to recognize, however, that separate is still separate. I remember extremely well 7th grade Civics at Shorter High School, a segregated 12 year school in the 1950’s. We were introduced to the idea that America is the “great Melting Pot”. What that was supposed to mean is that people from Europe and all parts of the world coming into America were blended into the complex American culture. The Statue of Liberty was the iconic image. But that was not the point of entry for slaves. While the “melting pot” that had worked reasonably well for certain Europeans, it did not work universally. Nevertheless, that was a part of the mentality of that era. Another part of the mentality of the era was that proper education can solve everything. Those questionable beliefs were deeply embedded in the answers to the problems of segregation presented in the Civil Rights movement and Voting Rights Act.

The difference between desegregation (i.e. elimination of racial legal barriers) to integration (i.e. assimilation of the culture) is a subtle difference. I learned that difference from the late Professor Frank Toland of Tuskegee University, while working with him on the Foundations in Pluralism project that I discuss elsewhere on this website. The primary objective of the Civil Rights movement, according to Toland, should have been desegregation: elimination of the segregated bathrooms, segregated water fountains, segregated eating establishments, etc.  Integration is a much more complicated matter, on which opinions in the black culture itself are much more divided, as evidenced but the works of Marcus Garvey, Malcolm X, Countee Cullen, and many others.

1.13 A Proposal for Fairer Juries

Several of the essays on this website are devoted to concerns about the impact of cultural differences on the effectiveness of law. Those essays recognize that the legal system as it existed, particularly in the South, was a factor in our creating different cultural systems based on race. Unfortunately, the legal system itself discouraged, or did not even allow, black participation. The exclusion of blacks from the legal system and mistreatment of blacks by the system resulted in lack of support for the legal system in the black culture. The legal system itself necessitated totally different cultural and institutional structures and reinforced the cultural differences. The segregated institutions included schools, businesses, churches and other community organizations. We point out in other essays that because a working legal system is a prerequisite for economics, the cultural differences can have an adverse impact on economic development.

Desegregation did not eliminate the cultural differences. The remedies provided by the Voting Rights Act created a quilt pattern of segregation in which predominantly black counties came to be governed by the cultural system that evolved because of slavery and segregation. There was continuity of the cultural institutions that existed during segregation in those counties, and large scale elimination of influence of the white culture. This development did not usher the black population into the good life of America. Nowhere is the impact greater than in the court system itself. The differences that exist between predominantly black counties in Alabama and predominantly white counties with the regard to the prospects of jury verdicts in trials are extremely significant.

Forum shopping—choosing the county in which to file litigation-

has become a way of life with the legal profession. A docket call in rural Macon County almost looks like a meeting of Alabama Bar Association. Litigation that can be filed in Macon, Bullock, and Lowndes counties has a far greater prospect of success for the plaintiff than if filed in Lee, Elmore, or Autauga counties. These significant differences are very difficult to justify in a country that prides itself on providing equal justice for all. To again paraphrase the French enlightenment philosopher Pascal, it is a strange justice that changes with the crossing of a river (or traveling a few miles on the interstate).

As a practical matter, modern means of transportation and communication probably would justify redrawing county lines and eliminating a large number of counties. That action could promote efficiency and save a lot of money. It would likely be politically impossible to revamp the configuration of counties, but that drastic step might not be necessary to solve the problem described here. It would be relatively simple to make much larger districts from which jury panels are chosen. Once the legal framework has been established, a computer program would do the rest. Modern transportation and communication could make the task easy. The State could be divided into ten or fifteen judicial districts and jury panels could be drawn from the entire district. District lines could be drawn to create proportional racial make-up. Jury panels, convened in the present court houses from such districts would provide a much more uniform jury for every case—whether civil of criminal. That solution would be much more effective than the present system of evaluating every jury based on the Batson Case which requires race neutral reasons for jury strikes.

Revamping the system of jury selection for uniform results in jury trials is important, in and of itself. It would help assure equal justice for all. However, the secondary effects would likely be even more important. As previously mentioned the adverse economic impact of lack of uniformity in application of the law is significant. Law is a prerequisite of economics. By taking steps to assure a more uniformity in the black/white ratio on juries throughout the state could contribute materially to economic development in the state. It could help promote economic development in every county.

1.14 Law, Economics and the Economics of Law Practice

Everyone probably knows that law and economics are closely tied. Both law and economics are social systems that arise within cultures. Every member of society is affected by participates in both systems. It might be more accurate to say that both law and economics are sub-systems within the total framework of culture. Both, like religion, are faith dependent.  They are not produced by science and technology, but exist because the people believe in them and support them.

The two systems – law and economics – are supported by differing motivational forces, and to that extent, are distinguishable, and exist independently of each other as cultural systems.  Human motivation is complex. Adam Smith assigned “enlightened self-interest” as the motivational basis for his atomistic theory of economics. Somewhat similarly, Thomas Hobbes believed that “self-preservation” is the first law of nature. Needless to say, the motivational forces that support both economics and law are far more complex than either Smith or Hobbes suggested, but their suggestion helps one to understand the role of the elemental motivational forces that energize the systems.  Ultimately, both systems are energized by collective motivational forces—the interaction of individual motivational forces.  An oversimplified explanation of how the motives that support the two systems differ, is that individual need for security motivates law, while individual need for beneficial material exchanges motivates economics.

Regardless of the similarities or differences of the underlying motivational forces, the organization of these systems evolved quite independently. Economics, beginning with the kind of reasoning that Adam Smith expressed in The Wealth of Nations arises in the marketplace. In western society we strongly believe that a free market economy is the most efficient means of satisfying the greatest good for the greatest number – a concept that Jeremy Bentham and other Utilitarians helped popularize. Law, on the contrary, has its institutional home in the governmental system—not in the free market.  Human motive force is a pre-requisite for the effectiveness of law, as I asserted in my 1994 book, Conscience and Command, but the enforcement of law in the modern world is vested in governmental entities. For law to be really effective, government must try to capture the normative force that arises in society to energize law. Morality, of course, is not a governmental function, but the same normative motive force that energizes law arises in society and is the motivational basis for morality, independent of government.

In other essays, I allude to the connections between law and economics. In the series of articles dealing with family law, I described the effects of the introduction conflicting of economic motive forces into the family. As important as child support and spousal support are, their impact in the legal system introduces conflicting economic motivation that can lead to the destruction of the important emotional aspects of family. The economic conflict creates tensions that are not good for children. Economics forces are also a strong factor in criminal justice. Economically, the people who most often become involved in crime are those who do not have strong talents that enable them to provide an economic contribution to society for which they are compensated.

In the series of essays that examine race and culture, I pointed out that four hundred years of slavery and segregation did not inspire a black culture to strongly endorse the existing legal system. I pointed out that the absence of a strong working system of law, economic development is difficult, and these difficulties plague Alabama’s Black Belt counties. Economic development depends on law: the ability to enforce property rights and contracts.

The interplay between law and economics and the impact of the economics of law practice on the legal systems are fertile areas for discussion. In the current series of essays found I will discuss how the economics of law practice tend to shape the legal system itself and the problems with which it can deal. I will discuss the economic motives of corporate America and its relationship to defense firms, who are normally paid on hourly rate, as well as the economics of law practice for Plaintiff’s attorneys who are usually paid on a contingency fee basis. Because both Plaintiffs and defendants are operating in the same system, these economic forces interact with profound effect on the civil justice system.  The system matches plaintiff’s lawyers who are compensated on a contingency basis against defense lawyers computed an hourly rate basis.  Economics also has a profound effect on the criminal justice system, but this series of essays deals mainly with civil justice.

I discuss the pervasive presence and influence of liability insurance. It is time for the people who operate the legal system to examine the fact that insurance spreads the risk of loss that is involved in litigation and that we are not dealing with insurance in the legal system with sound policy. For instance, automobile liability insurance is required by law, and everyone—jurors included—knows that, but the law still fails to take that knowledge into account. I discuss the implications of all of these economic issues for the legal system in this series of essays. The economics of law practice, ironically, renders the legal system less efficient for conflict resolution, often actually creating conflict.

 

 

 

 

 

 

 

 

 

1.15 The Conundrum of Law Practice in Conflict Resolution

In essay 1.14 that introduced the current series dealing with law, economics and the economics of law practice. Several subsequent essays in this series and deal with the economics of law practice. But to understand some of the problems associated with the economics of law practice it is first necessary I explain and readers understand certain dynamics about the nature of law.

In 1913, an East European legal philosopher named Eugen Ehrlich, in his book Fundamental Principles of the Sociology of Law, made the important point that there are two kinds of law. First there is what he called the rules of conduct. Rules of conduct actually regulate the daily activities of everyone in society in the ordinary course of their affairs. They blend imperceptibly with morality, customs, and other normative forces. It is very important that everyone follow the rules of conduct, that they keep their promises, that they avoid harming others, and do their duty. In order for the world to survive and move forward, everyone must actually do more than is required by duty and engage in meaningful activities. Everyone must follow the rules in order for society to function. Courts and government are and always should be in the background, not the forefront, of these rules. Rules of conduct have much of their origin in morality and customs, which arise naturally in society.

Secondly, there are the rules of decision. These are the rules with which courts and lawyers are concerned when it becomes necessary to resolve conflicts. Conflicts are often couched in terms of some violation of the rules of conduct. The law as used in the context of conflict resolution could be either a statute that has been enacted by a legislative body or precedents previously declared by a court.  If the rules used to resolve a conflict have not been clearly articulated in statute or in a previously decided case, sometimes courts must look to the more nebulous rules of conduct and actually articulate the principle upon which the conflict is to be resolved. This is the basis for case law.

Unfortunately, in the United States, law schools and legal philosophers during the past 150 years have over-emphasized the importance of the rules of decision and underestimated the importance of the rules of conduct.  The Eugen Ehrlich book had little impact if any in the development of legal philosophy in the United States.  After the Civil War, in support of the industrial revolution, courts and the legal profession were much more aggressive about the role of the rules of decision. The result of this emphasis on the rules of decisions over the rules of conduct was the highly questionable conclusion that courts “make” law. Oliver Wendell Holmes, Jr., a Harvard professor and eventually Chief Justice of the United States Supreme Court stridently declared, “Law is what a court does.” Needless to say, he did not distinguish rules of conduct from rules of decision. Even more perniciously, he went so far as to declare that law determines what a bad man can get away with, which totally ignores the role of rules of conduct.  Based on this faulty reasoning, during the past 100 years, courts have often assumed that it is their function to make law.

What does all of this have to do with the economics of law practice? Lawyers make money by dealing with the rules of decision—not the rules of conduct. Theoretically the legal system exists to resolve conflicts. Unfortunately, the economic motives of the legal profession do not necessarily promote the most efficient resolution of conflicts. The system is nurtured by conflict and prospers from it.  An old joke in the legal profession is “Do me a favor; sue my client.”  In the introductory essay, I pointed out that plaintiff’s lawyers are usually paid on a contingent fee basis. Defense lawyers are usually paid on an hourly rate basis. It requires little thought to see how such a system actually leads to more conflict rather than conflict resolution.

In the next essay in this series we will deal with the transition of law from being primarily a profession to being primarily operation of a business.  Unfortunately, the more effective the business of law practice becomes, the more ineffective it is in achieving the optimal conflict resolution for the benefit of all of society. The successful operation of the legal business creates a need for conflict in order to satisfy the economic needs of the legal business. Hence the atrocious, unprofessional legal ads on TV and billboards.

When law—the rules of conduct—actually work; they prevent conflict. But the absence of conflict does not support the business of law practice.

1.16 A Law and Economics Primer

In the previous essay in this series, I pointed out that the economics of law practice can actually impede the ability of the legal system to efficiently resolve disputes. In other essays in this series, I discuss in depth the economic motivations of both defense lawyers and plaintiff lawyers that contribute to the problem. Before launching into those specifics, however, I need to provide a broad general understanding of the relationship of economics and law in the resolution of disputes. The relationship between law and economics extends far beyond the economics of law practice, but for now I am only discussing the impact the the economics or law practice on dispute resolution through litigation.

Almost all cases that arise in our legal system can be analyzed as an economic problem. Regardless of whether the underlying problem is a tort (such an automobile accident or a fight), or a contract (such as the building of a house, the sale of a car, or a myriad of other transactions), the plaintiff has some type of a claim against the defendant.  In most instances the ultimate resolution is the payment of money. This means that the plaintiff has a claim, or an asset which he or she is asserting, that the defendant has an obligation to pay or to buy. The question then becomes how much is to be paid. The legal system provides answers to that question. Ultimately if the parties are not able to reach an agreement themselves, courts assign a value to the plaintiffs claim and requires the defendant to pay that amount. It is not necessary at this point that we discuss in any detail the matter of payment by one side of the other side’s attorney’s fees, which is sometimes required by contract or by statute. But we are deeply concerned with the amount of attorney’s fees and other costs that are involved in resolutions of the disputes.

The service provided by courts and attorneys is conflict resolution. The legal system provides a way for a plaintiff to present his or her claim. Lawyers on both sides participate in the effort to settle the matter, using their skill at predicting possible outcomes, and helping the client evaluate risks. But if the matter is not settled out of court then the legal system itself—judges and juries—provide an ultimate answer and bring  a final conclusion to the controversy.  Finality is a very important element of the legal process of dispute resolution.

In every economic transaction there are transaction costs. A sale of real estate might involve costs for title insurance, title examination, a real estate commission, etc. These are transactions costs that must be paid.  They are costs beyond the payment for the real estate and what the seller receives. The same is true of the purchase of an automobile. There are transaction costs for almost every economic transaction. Transaction costs are an important element of economics.

The cost of attorneys and court costs are transaction costs, when the resolution of legal controversies by courtsis analyzed as an economic problem. The problem that we are suggesting in this series of essays is that the transaction costs for dispute resolution through the legal system have become unreasonably expensive. The economic value assigned to the transaction costs itself might very well equal or exceed the economic value either side of the underlying problem that is being solved. Transaction costs include not only attorney’s fees, but also the court costs, the cost of witnesses, the cost of depositions, judges, court reporters, and the like. Transaction costs are the main factor that renders the legal system inefficient as a method of conflict resolution.  This makes finality—regardless of the actual results of litigation—the driving force in the system: disputes must be resolved! Finality winds up being the principle benefit offered by the system. 

In other essays in this series, I analyze the economics of law practice, both from the standpoint of economic motives of the plaintiff lawyers and the economic motives of defense lawyers and insurance companies.  I suggest that these economic motives, in and of themselves, inflate the transaction costs that are involved in the resolution of disputes presented to the legal system for resolution.

It should be noted in passing that there are many significant problems that the legal system simply cannot address, because lawyers are a necessary part of the process, and there are no funds to satisfy the economic requirements of attorneys. For instance, a faulty refrigerator can be a significant problem for a consumer. But a dispute over a faulty refrigerator can be a very difficult problem for the legal system to effectively resolve. A bad auto repair job can also be a significant problem for a poor individual (or even a well-to-do individual). But again, those types of problems are very difficult for the legal system to address because the economics of resolution in the legal system do not justify the engagement of competent legal services. There is a huge number of such disputes. In some instances, court costs themselves—even in “small claims court where lawyers are not necessarily involved—make court dispute resolution prohibitively expensive.  But even for the disputes that the system is economically able to address, the economics of law practice adversely affects the efficiency of the system.

1.17 Economic Motives of Defense Attorneys

This essay is the fourth in a series dealing with the economics of law practice.  In earlier essays in the series, I described the strong relationship between law and economics. I pointed out that because the practice of law is a business, the economic motivation of the lawyers handling the litigation can actually make the legal system less efficient for conflict resolution. Now I am dealing specifically with the economic motives of defense lawyers. Quick resolution of legal disputes does not promote the economic interest of the law business. Defense lawyers who charge hourly rates clearly profit from continuation of the conflict. The lengthy period of case preparation justifies a higher percentage fee for plaintiff’s attorneys.  To set the stage for further examination of the economic motivation of lawyers, I explained that dispute resolution can be analyzed as an economic transaction.  Plaintiffs have an economic claim against defendants.  Dispute resolution (including litigation) is a transaction in which the defendant is forced to “buy” the plaintiff’s claim.  Often there is a negotiated settlement.

 The present discussion will examine in more detail the economic motive of defense lawyers. The Civil War decided that the United States would be involved in the Industrial Revolution rather than continuing as an agrarian economy. The case method of legal education evolved at Harvard University in the 1870’s and quickly spread throughout the nation. Before that, would-be lawyers usually “read the law.”  Legal education was not primarily a law school function before the Civil War. But from that time forward, law school has been the primary source of legal education.  Large firms that worked for the emerging corporate America evolved very quickly. With the advent of automobiles and the attendant litigation, defense work was often assigned by corporations and liability insurance companies to the emerging corporate law firms.

Then in the 1960s, public interest in law firms began to emerge.  They dealt with matters of public interest such a civil rights and indigent defense.  And attorneys who represented plaintiffs also became as highly organized as defense firms, claiming the name “trial lawyers,” even though both defense lawyers and plaintiff’s lawyers participate in trials.  By the 1960s, it was no longer fashionable for attorneys to “work both sides of the street.”  Attorneys were either defense attorneys or plaintiff’s attorneys, with few exceptions. The mythology of the individual advocate, and rugged individualism continues to reassert itself in the Atticus Finch type mythology; but not many lawyers practice all parts of the legal profession in an individualist style.

By the 1960s, defense firms had generally adopted hourly rate billing. By then, liability insurance companies had become significantly involved in the economics of dispute resolution.  Liability insurance companies were behind the scenes calling the shots for the defense side of cases.  Under those circumstances, defense lawyers have little economic motivation to simply assess the facts about a particular case and recommend quick settlement. The justification articulated by defense firms and liability insurers for refusal to settle is often the necessity for “investigation.”  They engage in discovery; i.e. interrogatories, requests for production and admissions, and depositions in order to “evaluate the case.”  But discovery is very expensive for the parties who are trying to get their disputes resolved. If an insurer or defense firm were to simply settle the case immediately after the case is presented, the defense firm would not have the opportunity to bill all of the hours that are involved in the discovery process.

In motor vehicle accident cases, liability insurance is a major factor.  Often the limits of liability are $25,000.  The insurance company is in the background calling the shots. It has little to lose because there is such a relatively low limit on its liability. So the case undergoes expensive discovery. Companies are often able to settle the cases for far less than is actually justified simply because the company has nothing to lose by refusing to pay until the case finally “reaches the courthouse steps” for trial.

The delays caused by the economic motives of insurance companies and defense firms in turn causes plaintiff’s attorneys to charge higher contingent fees to cover their own time investment. The total cost of dispute resolution is disproportionately high in comparison to the amount that is actually required to settle the case. Economists call the costs that are involved “transaction costs.”  The transaction costs for the people involved in legal disputes are inordinately high, and threaten the effectiveness of the legal system.

Perhaps this description of the motives of defense lawyers and liability insurance companies seems unfair, but in the next essay in this series, I will examine the economic motives of plaintiff lawyers with an equally sharp critique.  The economics of law practice involving the economic motives of both plaintiff attorneys and defense attorneys present significant problems for the efficiency of the legal system in dispute resolution. 

1.18 Economic Motives of Plaintiffs’ Lawyers

In the preceding essay in this series, I examined the economic motives of defense attorneys.  In this essay, I discuss the economic motives of plaintiffs’ attorneys.  Both defense attorneys and plaintiffs’ attorneys must operate their offices as a business, if they are to be successful.  They are both motivated to earn a living practicing law.  There the similarity ends.  Defense lawyers serve corporate America and liability insurance companies, in large measure.  They must practice law in a way that is pleasing to corporate America and insurance companies if they are to succeed.

On the contrary, Plaintiffs’ lawyers must attract the attention and approval of members of the general public who have a legal claim.  Hence, the obnoxious advertising.  Big bucks.  Tigers.  Prize fighters.  Cowboys.  Fighting for you!  Before the 1960s, Bar Associations generally did not permit that kind of advertising.  First the United States Supreme Court decided that fee schedules set by the Virginia Bar Association amounted to price-fixing, in violation of anti-trust laws.  Then it decided that restrictions on advertising were a restraint on trade.  Finally it concluded that the right of lawyers to advertise was imbedded in and protected by the First Amendment to the Constitution: commercial free speech.  The pretextual invocation of the United States Constitution removed the matter from any degree of control by the courts and legislatures of individual States and of Congress.  When one backs up and looks at the situation, none of that makes good sense, given the nature of law and the role of lawyers.  Law is, among other things, an instrument of government.  Lawyers serve a quasi-governmental function, and are often referred to as “officers of the court.”  They collect and sell information and advice about how to interpret and apply law.  Why shouldn’t such a practice that is dealing in regulation itself, be regulated?  But that should be the topic of a whole book, and is suggested here only to give insight into the economic motives of plaintiffs’ lawyers. 

By the way, defense lawyers don’t advertise much.  You have probably not seen an ad placed by a defense firm. Defense firms don’t have to advertise! Plaintiff’s firms do it for them every law suit drummed up by Plaintiffs has to be defended.  The defense bar was organized and practicing its methods of business recruitment long before lawyer advertising emerged.  In fact, they at least had to give lip service in opposition to the advertising, on behalf of their clientele.  Advertising is a plaintiffs’ lawyer thing.  The basic problem is how to get the members of the general public who have a legitimate legal claim in touch with an attorney capable of adequately presenting it.  Maybe advertising is better than ambulance chasing.  There are no real good solutions.  Corporate America and insurance companies are not running over themselves to pay adequate compensation for legitimate claims.

But the efforts to communicate with the public about the provision of adequate legal representation for claims puts the plaintiffs’ bar in the public eye, and makes them vulnerable politically.  Something for nothing!  Jackpot justice!  Runaway verdicts.  Political parties become involved.  Republicans in Alabama are conservative; Democrats are liberal.  Unfortunately, political motivations in Alabama continue to intertwine with race.  In other essays, I systematically described the effect of racial demographics on the likely outcomes of litigation.  Unfortunately, during the period ending about 2000, when Republicans took over the Alabama Supreme Court, Alabama was referred to as “tort hell,” and there was probably truth in some of the allegations of jackpot justice and runaway verdicts.  Now the pendulum has swung almost completely in the opposite direction, and often it is difficult for badly injured people to get just compensation for their injuries.

A conservative legislature put caps on punitive damages. And the Business Council educated the public.  Jurors in conservative counties became more conservative.  Jurors in liberal counties are not less liberal, but a conservative appellate system holds the lid on the pot.  But unfortunately, corporate America has not become more honest as a result of these conservative measures, and never will.  The caps on that conservatives placed on punitive damages are a small fraction of the annual salary of corporate executives and high ranking insurance company officers, and the justice system provides little incentive for corporate honesty.  Even punitive damages for active wrongdoing are “just part of the cost of doing business.”

Today, plaintiffs’ lawyers have to carefully consider whether they can afford to take on a case.  They must find enough profitable cases to stay afloat.  They must usually await the long delays of litigation, all the while taking the risk of no recovery at all.  So they seek out the cases that can be filed in a favorable venue.  In Alabama, that is often the Blackbelt counties, that are already economically deprived, and the atmosphere of litigation makes it more difficult to attract much needed business development.

I am not suggesting that the economic motives of plaintiffs’ attorneys are somehow purer than those of defense attorneys.  As a judge, I saw firsthand the quest for jackpot justice.  What I am suggesting is that economic motives of lawyers on both sides are real, and have a strong impact on the kinds and magnitude of problems that Courts will have an opportunity to resolve, whether the system will function efficiently, and whether they will produce a just society.

We desperately need a system that will deal with every case efficiently and bring a fair result.  The attorneys on both sides need to realize that they are entrusted with the sacred fabric of the law, that it is their responsibility to guide cases through the system to just results. There should never be jackpot justice, something for nothing results; but at the same time, there must be a legal means to attack the most egregious conduct of illegal corporate practices.  The temples of justice should not be “dens of robbers.”  Lawyers on both sides should be adequately and fairly compensated for accomplishing just results.

I discuss the anomalous role of liability insurance in a separate essay.

 

 

 

 

 

 

 

 

 

 

 

1.19 Liability Insurance

In this series of essays, I have concentrated on the economics of law practice. I have discussed the economic motives of plaintiff lawyers, the economic motives of defense lawyers, and the fact that the combination may impact adversely on the ability of the legal system to efficiently resolve disputes. This essay focuses on liability insurance and will complete the discussion of the economics of law practice. Liability insurance companies exist because of litigation, and their existence and actions have a major impact on the legal system. It is time that the functions of insurance be carefully reconsidered.

Liability insurance has been around for a long time. While the concept existed prior to automobiles being produced on assembly lines, the concept of liability insurance took a major step forward with the advent of the automobile. Liability insurance also extends generally to almost any business activity. In the modern world: it is not considered prudent to operate any type of business without liability insurance. State law generally requires that there be liability insurance in place before an automobile is operated on a public highway. State law also provides that in the event that a tortfeasor in an accident on a public highway does not have liability insurance or if the insurance is inadequate, that the insurance company for the injured party provides uninsured or underinsured motorist coverage.

When the concept of liability insurance was first proposed, there were significant policy arguments as to whether liability insurance is a good idea. It was argued that for an insurance company to assume financial responsibility of tortfeasors could have several undesirable effects. One concern was that the person with insurance might be less inclined to be careful. That concern probably was unfounded. A more worthy concern in the realm of economics is whether the existence of insurance would encourage litigation. It certainly has. The defendant’s insurance makes litigation by the plaintiff and his attorney economically feasible in many cases in which it would not be economically feasible otherwise. Insurance probably lends aid for the disastrous results suffered by plaintiffs in accidents to a greater extent than it assists the defendant who pays the premiums.

The actual function of insurance in the modern legal economy is quite beneficial, even though it encourages litigation that would not otherwise be possible. People can be badly injured in automobile accidents and business transactions. The existence of insurance provides partial or total compensation for the losses that are suffered by the injured parties. Insurance spreads the risk of loss. Can liability insurance compensate the injured party and at the same time also produce normative force that requires the exercise of care by the potential defendants. To some extent, educational programs called “risk control” associated with the costs of insurance has normative force on corporate business practices. 

 

 

 

 

 

 

But spreading the risk of loss and providing adequate compensation to the injured party is the greatest benefit provided by insurance. That economic justification, however, is not well recognized in the operation of the judicial system.  Despite the fact that everybody and his brother knows that it is illegal to operate a vehicle on a public highway without insurance, the mere mention of insurance in the course of a trial justifies an immediate order of mistrial by the judge. The system still assumes that the case deals only with the injuries of the plaintiff and the negligence of the defendant. It assumes that the defendant will stand for the loss. Obviously, that is just false. The maintenance of the fiction that only the plaintiff and defendant are involved in the litigation, and the continued practice of the judicial and legal system of ignoring the mandatory existence of insurance feeds the undesirable effects of the economic motivations of plaintiff lawyers and defense lawyers and the insurance companies themselves.  It ignores the pervasive systemic effect of liability insurance. We have described the inordinate transaction cost that renders the legal system ineffective. If our legislature, courts, and attorneys would take a closer look at the underlying role of insurance and come up with different economic practices for dealing with claims, the system could be improved immeasurably.

The ironic truth is that businesses and car owners must pay for insurance that ultimately is obviously for the benefit of the injured plaintiff who brings a law suit against the person who paid the premium. The focus of insurance remains on defense for its tortfeasor rather than compensation for the injured party. A slightly different conceptualization that recognizes the obligation of the insurance company to the injured plaintiff could dramatically improve the ability of the legal system to adequately resolve disputes more efficiently.

 

 

 

1.20 Abolish Grand Juries

Sometime after William the Conqueror successfully invaded England in 1066, the new line of kings decided they needed help rounding up local criminals to prosecute. Accordingly, they organized groups of local citizens who could keep up with what was going on in the local area to report crimes to the king and whenever his court visited the town. That was how grand juries to started. The process continued to evolve, and prosecutors began to utilize the grand jury to bring about indictments.

After the successful American Revolution, the United States and the newly organized states imported the grand jury idea into the American Justice System.  The antiquated practice that only grand juries can issue indictments for felonies in Alabama and a few other states. Unlike the community watch function of the original grand juries in England, the current system pulls citizens out of their busy lives to sit and basically rubber-stamp the wishes of prosecutors. Law enforcement investigates crimes that have been reported, and the District Attorney presents cases to grand juries. Very seldom does a grand jury take any initiative of its own in the identification and prosecution of crimes. Very seldom do they depart from the recommendations of the District Attorney. Only the prosecuting authorities usually present evidence to a grand jury. There is no “defense attorney” involved. If no indictment is returned, the prosecutors can always report to those who were anxious for there to be a prosecution that “the grand jury failed to return an indictment” even though they know that there was insufficient evidence, and likely recommended that the grand jury “no bill” the case.  And if the indictment is unpopular, the District Attorney blames the indictment on the grand jury.  That is a convenient political tool. 

Grand juries were abolished in England in 1933, over eighty years ago. Only Alabama and a few other states continue to require an indictment by a grand jury to commence a felony prosecution. Grand juries are a colossal waste of citizen’s time and of tax payer’s money. It is time for the state of Alabama to join with the majority of other states in abolishing grand juries. By abolishing grand juries and having the District Attorney simply takes the responsibility (which is already the case, in fact) of deciding who will be prosecuted and commences the prosecution. Elimination of grand juries would eliminate a lot of inconvenience to a lot of people. Alabama should eliminate the imposition on victims, witnesses and jurors. It would be a simple matter to authorize prosecutors to commence the prosecution on their own initiative. That happens in most states, so there are plenty of examples of appropriate legislation.

One of the many advantages of doing away with grand juries is that it could materially speed up the criminal justice system. There is no reason to wait for a grand jury to convene for a criminal prosecution to be commenced. In many rural Alabama counties, grand juries are convened only twice a year and this means that the commencement of the prosecution is often delayed for months.

Another great advantage is that it would simply process for victims and witnesses.  The current system of criminal justice is an obstacle course for victims and witnesses. First, there is the possibility of a preliminary hearing. The purpose for the preliminary hearing is to determine whether there is sufficient evidence to bind a case over to the grand jury. At least, theoretically, that is the basis for a preliminary hearing. As a practical matter, the usual function of a preliminary hearing is to allow the defendant to explore evidence that the state is offering in support of prosecution. But in any event, the victim and witnesses have to appear if there is a preliminary hearing.  Then there is the grand jury proceeding. Again, the victim and witnesses must appear and give their testimony. And then  they must testify a third time at trial.  To require victims and witnesses to appear in court three different times is just not necessary.  And there is no disadvantage to defendants: the grand jury proceedings are secret proceedings and the defendants don’t necessarily know about them and seldom participate in them.

Law enforcement officers involved in the criminal prosecution, of course, have to come and testify at preliminary hearings, grand jury and trial.. Prosecutorial time and talent is wasted on the non-profitable preliminary requirements.

It is time for Alabama to join with the majority of the other states in the union and do away with the necessity for grand juries for the commencement of felony prosecutions. Surprisingly, with all of the emphasis on the need for a more effective budget and for the many complaints about the ineffectiveness of the criminal justice system, I believe that I am the voice crying in the wilderness in Alabama concerning this waste of time and resources on grand juries.  Preservation of some role for the grand jury in the investigation of the misconduct of public officials and governmental functions might be appropriate.       

 

 

 

 

 

 

 

 

 

1.21 Case Under Submission

Many of the earlier essays in this group of essays focused on various causes of ineffectiveness of the legal system. Most recently I dealt with the extreme ineffectiveness and waste of time that is involved with grand juries in the State of Alabama. In other essays, I focused on ineffectiveness that results from the economics of law practice. This column will continue the focus on ineffectiveness in the legal system. The judicial system itself has certain built in problems.

Trial court judges are overloaded with responsibilities and overworked. Caseloads are large. The effectiveness of a trial judge depends to some extent on the motivation of the particular judge. The ultimate responsibility for decision making rests with the trial court judge in most instances. There is little supervision of the day to day work of a trial court judge.

The appeal system, which will be the subject of a later essay in this series, certainly does not provide supervision. At best, if the trial court judge makes a mistake it can be reversed by an expensive appeal process after the lapse of several months. That does not constitute any real supervision. There is the judicial inquiry commission, if the judge’s conduct steps considerable outside the norm. But in the normal course of events the work of a trial court judge is unsupervised. Ultimate responsibility must rest somewhere, and for our legal system, it rests with the trial judge. “The buck stops” with the trial court judge, in large measure.  For the system to be effective, judges must be totally honest, bright, and have strong work ethic.

There is an ethical provision that requires a judge to report to a bureaucracy any cases or matters that have been under submission for more than six months! Why should any matter ever remain under submission for over six months at any time? Based on my experience as a circuit judge, I know that often a circuit judge deals with dockets involving thirty or forty cases on any given day. If ten matters are taken under submission each working day, that would add up to fifty under submission in a week. That would be two hundred matters in a month. In six months it could be a whopping twelve hundred matters. Of course, some of those matters would have been decided in the meantime. Nevertheless, simple mathematics tells us that, if there is an average delay of just two months in deciding cases, the judge will always be required to remember the details of several hundred different matters. Judges are human, and the human mind just doesn’t work that well.

Effectiveness requires a quicker turnaround. While we are talking about the psychology and mental aspects of retaining mentally sufficient information to make good decisions, we should remember that the largest amount of memory loss occurs on the first night’s sleep after exposure to pending matters. Recall does not improve with the passage of time for a judge any more than it does with anyone else. If notes become cold, the facts are difficult to recover, and who can keep up with several hundred sets of notes?

The hope of lawyers and litigants that the judge is spending a great deal of time meditating on a decision in their case is often without any real basis in fact.  Congestion of the docket brings about delay and delay does not make the decision making process any more effective or efficient. First impressions are often the best impressions and if a judge is reasonably convinced after hearing arguments, then there should be little delay in making the decision. A quick turnaround on the decision making process will improve the effectiveness of decision making in most instances. Needless to say, there are, from time to time, complicated legal issues that require study and careful analysis and the judge needs to identify those cases and spend the required amount of time engaged in the study. However, the matter of routinely taking cases under submission and not making a decision within the most optimal period of time is very detrimental to the effectiveness of the legal system. While some systems of accountability may be helpful, the only real solution will always remain in the integrity and work ethic of the judges themselves.

1.22 Individualism In the Legal Profession

Individualism in the legal profession, like other walks of life, thrives on legends and myths. The profession cherishes certain images. One of these images is the image of the rugged individual.

Rugged Individualism is an important part of the American tradition. Pioneers were rugged individuals. The legal profession, an adversarial profession, cherishes this image, but it is not an accurate image of the profession in modern times.  In the days of pioneers, it probably was a reasonably accurate image of the role of lawyers. Up until the Civil War the primary method of legal education was apprenticeship. Would-be lawyers “read” the law in the office of practitioners. There were no large firms. Law schools were not an important part of the picture.  Individuals were the practitioners. Practitioners such as Daniel Webster, Abraham Lincoln, and Henry Clay certainly fit the definition of rugged individuals. They were powerful orators. They developed strong reputations.  Their trials attracted audiences.

The Civil War, and its aftermath, brought many changes to the legal profession. Regardless of many other cultural causes, the Civil War, in a large sense, was about whether there would be an industrial revolution in the United States. It pitted the Northern industrial economy against the Southern agrarian economy. The central commodity for both was cotton.  Slavery was an adjunct feature of the agrarian economy and became a popular cause. There were strongly held anti-Slavery sentiments, but they did not precipitate the war.  But as the saying goes, “All is fair in love and War.”  It was inevitable that the industrial political forces would take advantage of the strong anti-slavery emotions.  It is a bit ironic that at the same time the union forces were “dealing with the slavery issue,” the were also removing native Americans from their own lands—taking their land by military force.  The underlying roots of the Civil War were strongly embedded in the desire for industrial progress. The question was whether politics would be controlled by an industrial economy or an agrarian economy.

Cotton was the principle commodity at issue.  The industrial revolution in the United States began with the cotton mills of Lowell Massachusetts. Of course, railroads and manufacturing were also important elements of the industrial revolution. The War decided the issue in favor of industrialism.  Shortly after the Civil War ended, in 1871, Harvard Law School launched the case method of study for law schools. Under the leadership of Dean Christopher Columbus Langdell, the case method put a double twist on the idea of precedent in the law. Not only was the previous case a source of law and basis for a decision, the study of earlier cases became the primary method for the study of law. This seemed to show that courts “make” law.

Civil War veteran, Oliver Wendell Holmes, Jr. was one of the Harvard Law School professors. He was also a member of the “Harvard Club,” along with the great American psychologist/philosopher, William James.  Holmes would become an important legal philosopher and Chief Justice of the Supreme Court. No doubt seeking to find a foundation for law base on the strong sentiment for empiricism that was consistent with the pragmatic thoughts of the Harvard Club, he made statements like “Law is what a court does.” This furthered the idea that courts actually make law rather than finding it in the beliefs and practices of the culture. (It is one thing for courts to “make” law in struggling to properly decide a case; it is quite another for courts to use the decisions in a case as an excuse to preempt the work reserved to the legislative branch.) But this was the milieu in which law school came to be the accepted means of legal education.

Corporations controlled industry. Large law firms like the Cravath Firm in New York quickly became the advisors to the developing corporate America. Ownership of property quickly transitioned from individual ownership to corporate ownership with individuals being stockholders who did not manage the wealth. As law firms developed, the “A” students were hired by the leading law firms, who worked as teams of specialists, and became the advisors of business. Rugged individuals were not in charge.

Even in the changed environment, the mythology of individualism in the practice of law continued. After the turn of the 20th Century, there was the famous Scopes Monkey Trial in Tennessee pitting Clarence Darrow against William Jennings Bryan. The famous names helped to perpetuate the myth of the importance of individualism in the practice of law. However, the main business of advising the railroads and burgeoning corporate America rested with the proliferating large law firms. The actual practice of law as it affected the development of America was not in the hands of individual solo lawyers.

Nevertheless, the imagery is still a highly romantic notion that affects the self-perception of the members of the legal profession. The State of Alabama, during the first half of the Twentieth Century was gradually emerging from the agrarian economy and moving toward the industrial economy. That provided the perfect setting for To Kill a Mocking Bird .  In the pleasant glow of that romantic notion of lawyering, the Alabama legal profession in recent years formed the “Atticus Finch” Society. While the bedrock virtues of total honesty, and loyalty to the client, the legal system and the truth remains absolutely necessary for the successful operation of any legal system, reality today does not sustain the Atticus Finch role model in the actual operation of the legal system any more than doctors making house calls provides an adequate image for today’s medical care.

The reality of law today is dominated by and exists in a complex corporate environment. The image of individualism is no longer a valid working model for attorneys. We need to find new images that retain all of the necessary virtues.

1.23 Natural Law and the United States Constitution

The concept of natural law was the prevailing philosophy of law throughout the formative period of modern nation states. The idea was that law is something that occurs naturally. It exists in nature, and is there to be discovered.  Nature, of course, includes human nature and the nature of human society. In general the created order of nature, some solutions to problems are better than others. Under natural law theory, the task of courts and legislative bodies is to find that law and declare it.

At about the time the United States came into existence, a philosophy of law called legal positivism asserted itself. The theory of legal positivism is that law originates purely in human intellectual activity. Humans simply invent law. When the United States Constitution was adopted; the idea was that the Congress (and state legislatures) composed of people who are chosen by democratic processes, would create laws. The Courts would decide cases by applying the law created by the legislative branches of government. The executive branch would carry out enforcement of the law and provide government. All of that was embedded in the United States Constitution with its treasured concept of a separation of powers. Theoretically the branches of government would hold each other in check, preserving liberty to the people.

Early in the history of the United States, the question arose as to which branch-legislative, judicial or executive-would have the power to ultimately declare the meaning of the United States Constitution. In the landmark case of Marbury v. Madison the United States Supreme Court decided that it had the authority to examine federal legislation (obviously produced by Congress) to determine whether that legislation is consistent with the Constitution. This decision was made against the background understanding that the legislative branch makes laws, and courts decide cases.  From that time forward the Supreme Court asserted the right to declare legislation that is inconsistent with the Constitution unconstitutional and unenforceable.

That issue came back to the forefront during the Great Depression when the conservative Supreme Court of the United States declared New Deal legislation unconstitutional. Roosevelt even threatened to stack the Supreme Court with new members in order to allow his legislation to be declared constitutional. Although he did not do that, during his 13 years in office he appointed a much more liberal Supreme Court that made decisions much more consistent with his thinking.

During the second half of the 20th century, a new era arose in constitutional law under the direction of that liberal Supreme Court. Up to that point, the Supreme Court had limited itself to overturning federal legislation and if it were inconsistent with the constitution. However, during the second half of the 20th century the court began to declare positive law based on its interpretation of the Constitution. For instance in the case of Miranda v. Arizona, the Supreme Court spelled out exactly what a police officer had to say to a suspect in a criminal case before interrogating that suspect. The now famous Miranda Warnings were not statutes enacted by Congress, but were requirements declared by the Supreme Court of the United States. Note the huge difference between declaring legislation unconstitutional on the one hand, and declaring positive law based on what the Supreme Court thinks that the constitution means on the other. Many other instances of declaration of positive law occurred.

The Supreme Court of the United States appeared to actually select cases for the express purpose of declaring positive law, a function which most of us thought the Constitution reserved to Congress. That assigns to the Constitution an oracle-like quality. What does the Constitution have to say about abortions or gay marriages? I suspect that the writers of the Constitution would be shocked to find that anybody believes that the Constitution had anything to say about either of those topics or other topics for which the Supreme Court has used the Constitution as a theoretical basis for the declaration of positive law.

One of the problems for the natural law theory was the question as to who declares the natural law. At one point in time, the church assumed that role. When the legal positivist movement began, courts were severely criticized for declaring positive law under the guise of “finding” natural law. By any reasonable standard it would certainly appear that the oracle-like approach to the United States Constitution by the federal courts is subject to that same criticism today. With natural law the courts could look to the entire wisdom of the culture. The legislative branch could change the law to reflect the will of the people. But when the United States Supreme Court makes declarations of positive law in the name of the Constitution, their decisions cannot be reversed by the legislative branch. This is a far cry from Marbury v. Madison and review of legislation to determine if it is constitutional. When Congress was creating law, it made sense for courts to review. But who can review the positive law declared by the court? What happened to the checks and balances insofar as the court system is concerned?  And how is that a just power, derived from the consent of the governed?

1.24 The Dangers of Arbitration

Arbitration is a method of private dispute resolution that usually doesn’t involve courts.  Many of the States, including Alabama, had a stated policy specifically excluding the possibility of contracting away the right to go to court before federal legislation preempted state law and declared policy favoring arbitration.  In 1925, Congress enacted the Federal Arbitration Act to require dispute resolution through arbitration if the parties to a contract agree to binding arbitration for dispute resolution.  In the 1980s, the Supreme Court upheld that legislation and after that, arbitration quickly expanded.  Arbitration has now displaced the role of courts in most matters involving a contract, regardless of the nature of the dispute.  The provisions of that Act are binding on both state and federal courts.  Those who enter into an arbitration agreement must submit to arbitration rather than going to court.  The Federal Arbitration Act applies to all transactions involving interstate commerce and overrides any state law to the contrary. 

While the law seemingly went somewhat unnoticed in Alabama, and perhaps other states, until 20 or 30 years ago, since that time, arbitration has largely superseded the availability of court remedies in connection with any matter involving interstate commerce where anyone has entered into a contract with a corporation.  Purchases of automobiles, disputes about employment, and other instances that pit corporate America against individuals are well within the coverage of the law.

Arbitration has become large business.  Arbitrators are paid well for their services.  With corporate America often pitted against consumers and private individuals, the economics of arbitration make the playing field very uneven.  While the results of arbitration are often private and confidential, the corporations of America that engage in the process are likely to know the results. After all, they engage in arbitration far more frequently than the isolated individuals.  Arbitrators who favor corporate America are much more likely to be successful than those who favor the individuals who use arbitration services only one time.   With regard to justice, the same fault exists that caused Judge Frank Johnson to find the work of Alabama justices of the peace who had a financial interest in the outcome of the cases they heard to be unconstitutional. 

The United States Constitution has two clauses of interest in analyzing the soundness of arbitration as public policy.  Article III, Section 1 provides that, “The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”  The article goes on to provide for the financial security of judges so as to make certain that their impartiality is not threatened by the outcome of cases.  In other clauses, the executive power is vested in the President, and legislative power is vested in Congress.  State constitutions generally provide for a similar separation of powers.  Separation of powers is generally considered a fundamental protection of the liberty guaranteed by the United States Constitution.  Access to courts is also a part of that freedom.

The second constitutional provision of interest is found in Article I, Section 10 of the Constitution which provides, “No State shall…pass any…law impairing the obligation of contract….”  At the time the Constitution was written and adopted in 1789, the study of modern economics was a relatively new science.  Adam Smith had published The Wealth of Nations in 1776, the same year that colonies declared their independence in the Declaration of Independence.  Contract rights, the enforcement of contract rights, and property rights are a basic assumption of the economic theories posited by Smith.  The importance of these elements for economic development did not escape the writers of the Constitution.  Economic theory requires adequate provision for enforcement of contracts and property rights.  An arbitration agreement is, in a sense, a contract; but it presents a conundrum.  It is a contract to privatize the very right to enforce the contract in court.  

The Federal Arbitration Act has been upheld as being supported by the Constitutional provision related to freedom of contract and under the commerce clause.  That finding ignores the fact that in passing the Federal Arbitration Act, Congress passed a law that vested arbitrators with the judicial power of federal and state governments and divested the courts of that power.  There is generally no appeal from a finding and award made by an arbitrator.  One is reminded of the Islamic idea of justice in which there is no appeal from the local tribunal.  If an arbitrator makes a mistake of law or fact *** well, ***too bad!  So much for the old adage that everyone is entitled to his or her day in court.

 

 

 

 

 

 

 

 

1.25 Arbitration: The Public’s Right to Know

This essay, like the preceding essay in this series, focuses on the privatization of dispute resolution in arbitration.  Congress enacted The Federal Arbitration Act that required arbitration in all matters involving interstate commerce where there was an arbitration agreement many years ago. In the 1980’s the United States Supreme Court upheld that legislation. Since that time there has been extensive privatization of a very large amount dispute resolution. With rare exception Court proceedings are public proceedings, but arbitration is not public. Juvenile Court proceedings are a recognized exception, but, in most other cases a judge must carefully examine and articulate policies for privatizing dispute resolution. The public has a very legitimate interest in dispute resolution for many policy reasons. For instance, in criminal cases, the defendants are constitutionally entitled to a speedy and public trial.  There is little to be said for resolving disputes in which the public has a very legitimate interest behind closed doors.

            Most legislative bodies have adopted “sunshine laws” so that the business of almost all governmental bodies are open to the public. This recognizes that it is not a good idea for matters of public interest to be debated and decided behind closed doors. It is very important for the public to have access to information regarding the resolution of significant disputes. The resolution of a dispute, when decided by a court, results in a precedent. The reasons for deciding a case a certain way in one instance will provide good reasons for deciding it the same way if similar circumstances arise again. Precedent has been an extremely important element in the preservation of a consistent body of law in the Anglo-American system. Stare decisis assures consistency.Public trials and the reporting of the results enable the general public to formulate a decision making process in order to comply with the law. Christopher Columbus Langdale instituted the case method of Law Study at Harvard University in 1871. That method quickly spread to law schools all across the nation.

Harvard Professor Oliver Wendell Holmes, Jr. who would later become Chief Justice of the United States Supreme Court, stated that “law is what a court does.” If most important commercial disputes continue to be resolved behind closed doors; what will commercial law be fifty years from now? What will employment law be fifty years from now? In arbitration, the results of the dispute resolution are not usually available for public scrutiny. The case method—study of cases—has been the central tool of law school education since 1871.  But law schools cannot examine the process and reasoning by which arbitration decisions are reached. The similarity of the words arbitration and arbitrary is frightening. The decisions of arbitrators are not reported and cannot be systematically collected.  Law Schools cannot instruct students on the  meaning of arbitration results. Lawyers do not have access to the results of arbitration, to analyze for future use in advising clients.

The First Amendment to the United States Constitution has been construed to require public access to this type of critical information. We seldom hear, however, of news media filing First Amendment lawsuits in order to gain access to arbitration proceedings.  The State of Delaware undertook to have its court proceedings involving commercial disputes resolved by Chancery Judges who would conduct proceedings similar to arbitration. They would deny access to the public. The Supreme Court of the United States, that had decided that it was permissible for Corporate America to write contracts requiring the persons with whom they do business to arbitrate their disputes, decided that Delaware could not use such  proceedings. This appears to be totally inconsistent and appears to overlook the policy problems concerning the privatization of commercial disputes in arbitration.

Corporate America—the large corporations—have now constructed elaborate “dispute resolution” procedures to deal with their employees and their customers. Their “dispute resolution procedure” is often more cumbersome than court proceedings. Disputes are resolved behind closed doors. Even if a large corporation grossly mistreats one or more of its employees, that dispute is not likely to gain the public eye and public attention that it deserves. There is no appeal from the results of arbitration. Therefore, in most cases, there are no appellate decisions that are available to the public.

            Arbitration deprives the public of critical information. It conceals from the public important aspects of dispute resolution in matters of extreme importance to the on-going affairs of this nation. It is not just a matter of depriving individuals of their day in court—it is a matter of depriving the public of critical information concerning how disputes are resolved. It represents abdication of responsibility by the Judicial Branch of government.

1.26 Faith About What Is Right

At the time I wrote this essay as an oped for the Alabama Gazette, I was teaching a course about faith in my church.  I make the rather obvious point that faith is what we really believe.  I’m afraid that sometimes we don’t really believe what we say we believe.  We always act consistently with our faith.  Jesus said, “Ye shall know them by their fruit.”  But if our actions always reflect what we believe, then why don’t we always do what we know is the right thing to do?

Plato thought if a person knows what is right, he or she will act consistently with that knowledge.  Plato has a following.  A Twentieth Century expert in moral formation, Lawrence Kohlberg, built his cognitive developmental theoryof moral development on that premise.  At first blush the Plato/Kohlberg position appears to be consistent with my contention that we always act consistently with our faith.  But St. Paul said it well when he said “The good which I would, I do not, but the evil which I would not, that I do.”  Flip Wilson may have explained it all when he said “The devil made me do it.” 

Learning correct principles of moral behavior is very important.  If we don’t know what is right, there is a strong probability that we won’t do what is right.  We need to know what is right.  However, Plato and Kohlberg were wide of the mark with their theory that if we know what is right we will do what is right.  Merely “knowing” is not enough.  Knowing is not complete faith.  Faith involves emotions, as well as cognitive learning.  Faith is what we believe with our whole heart.  The “knowing” has to connect to the emotions to produce right behavior.  If moral training that connects the emotions to knowledge of right doesn’t happen in early childhood, learning that occurs later in life may not cure the problem.  Psychologists Sigmund Freud and Eric Erikson nail it in their psychosocial theory of moral development.  They recognize the role that emotion plays in moral development.  Parents and peer group install the conscience.  We don’t always act consistently with correct moral principles that we “learn,” but we are quite likely to act consistently with those principles if parents and peer group embed them in our emotions. 

Even when we knowingly do things that we shouldn’t do, an understanding of faith provides the explanation.  We always act consistently with what we believe at the moment, even if the belief is simply that we can get away with things that we should not do.  In the fleeting but permanent slice of time that we call “now,” when all action takes place, what we do always reflects what we believe, even if shame and remorse overtake us immediately afterwards. 

A properly installed conscience is more than shame.  It is more than fear of detection.  Whatever it is within us that watches our thoughts and connects to our feelings governs behavior.  It pushes us to achieve the ideal self or ego-ideal posited by Sigmund Freud.  The ego ideal is the good person that we want to be. 

A well-developed sense of duty is and always has been essential for human progress.  It usually brings about proper behavior.  Moral behavior makes the group more efficient.  Moral requirements serve the needs of the group.  Human survival and social evolution depend on individual conformity to the requirements of the group.  A properly functioning moral system promotes human progress.  The belief that we might “get away with it” does not always (or even most often), override moral convictions.  Sound moral development usually produces morally correct behavior without necessity for outside compulsion.  Knowingly doing what is wrong demonstrates inadequate moral formation.  The “internal observer” (Freud’s superego?) watches over our thoughts and feelings looks at the knowledge of what is right and wrong, the possible embarrassment of detection, damage to our ideal image of our self that will result from immoral behavior, and makes a judgment about what to do.

If there is a violation of moral expectations, the group will exert moral force to try to make the individual take responsibility for any damage resulting from inappropriate conduct, The group’s greatest ally is a properly installed conscience. 

[You may check the names mentioned and the terms italicized in this article on the internet for more information.]

1.28 Arbitration and Class Actions

Earlier in this series, there are essays describing the dangers that are inherent in corporate America’s ability to impose arbitration on the consuming public.  I pointed out that the power of dispute resolution is vested in the courts and that when dispute resolution is privatized, the public is deprived of its right to know.  The present essays deals with a new and additional problem with arbitration law as declared by the United States Supreme Court.

On December 14, 2015, the United States Supreme Court decided the case of DIRECTV v. Imburgia, which deals with arbitration.  DIRECTV had entered into a contract with all its customers that contained an arbitration clause.  The arbitration agreement also contained a provision that if the law of the customer’s state outlawed a waiver of the right to bring arbitration on behalf of a class, then the contract of arbitration would be unenforceable.  The Imburgia case arose in California.  A statute in California provided that a waiver of the right to a class action contained in an arbitration agreement was unenforceable.  Based on this statute, California courts held that the arbitration agreement was void.  Seemingly, the California court followed the precise wording of the contract.  However, the United States Supreme Court decided that the California statute which purported to make waiver of the right to a class action unenforceable was itself pre-empted by federal law and was, therefore, unenforceable.  Therefore, the Court reasoned, the arbitration agreement was enforceable.  The result would appear to be that, regardless of how many small claims presenting identical issues against DIRECTV there might be, the California consumers would each have to maintain his or her own separate arbitration proceeding in order to gain relief.  That result, of course, undermines any possibility of meaningful relief, despite the fact that DIRECTV may have been charging thousands of customers small amounts of money inappropriately.

This case is the very type of case that class actions, which are authorized by both federal and state law, were intended to remedy.  The undesirable result does not appear to have been necessary.  The clause in the contract that provided that the arbitration agreement was invalid if waiver of class arbitration were illegal appears to be a meaningful clause.  It too was part of the contract.  The Supreme Court itself admitted that at the time the form contract was created, the parties would have believed the California law barred waivers of class arbitration:  “…when DIRECTV drafted the contract, the parties likely believed that the words “law of your state” included California law that then made class-arbitration waivers unenforceable.”  However, because the United States Supreme Court had decided that arbitration is a matter of national policy, under no circumstances could there be any state in which such a clause would be valid.  Thus, the provision in the contract was rendered completely null.  It is not clear why the United States Supreme Court did not cite the Constitutional provision protecting contracts and say that even though California law has been pre-empted by federal law, the parties contracted to follow it.  For the Supreme Court not to honor that contractual provision violates the provision of the United States Constitution that protects contracts.

The legal issues involved in this matter could be argued either way.  However, when it comes to the underlying policies, it does not appear to this retired country judge that any wise policy supports the result reached by the Court.  Sound law is always based on sound policy.  To say that a large corporation can do whatever it wishes to numerous customers, and the remedy of a class action not be available, either in court or in arbitration, because there is an arbitration agreement, and because consumers have waived that right to a class action, is a very bad decision that simply tramples the rights of ordinary people into oblivion.

To their everlasting credit, three of the Justices—Thomas, Ginsburg, and Sotomayor—recognized the problems with the decision in a scathing dissent:  “It has become routine, in a large part due to this Court’s decisions, for powerful economic enterprises to write into their form contracts with consumers and employees no-class-action arbitration clauses.  ***  These decisions have predictably resulted in the deprivation of consumers’ rights to seek redress for losses, and, turning the coin, they have insulated powerful economic interests from liability for violations of consumer-protection laws.”

It is time for Congress to severely restrict the Federal Arbitration Act and to require the courts to resolve disputes and protect the rights of all the citizens of the United States of America.  If that is not the law, then the Supreme Court needs to remove the words Equal Justice for All from its building.

1.29 Opinion Polls

It seems that every time I answer the phone these days it is a new opinion poll. The pollsters have even gotten into cell phones. I probably receive at least twelve or fifteen such calls each week. The calls are intrusive and excessive. The benefits arising from the overburden of surveys is highly questionable.  This essay was written for the Alabama Gazette in early 2016, and I receive fewer calls from pollsters now.  However, the problems with polls and polling persists.

The problems facing government these days are highly complex, to say the least. Most of us have our hands full simply dealing with the problems that confront us in daily life. So what is the wisdom of politicians seeking opinions from people who, prior to hearing the question, have not given any critical thought to the issue that is raised. Compiling all of the ignorance in the United States is not likely to create wisdom. The solutions to complex problems requires critical thinking.

In many instances the solutions to the problems confronting the United States will require new and imaginative creative thinking. Unfortunately, there is a well-recognized tendency amongst us human beings to reject or attempt to destroy anything that we do not understand. Thus creative solutions to problems are not likely to fare well in public opinion polls. Opinion polls are likely to appeal to the very worst in human nature, invoking prejudice and knee-jerk reactions.

I suspect that a large number of people, among them some of the most intelligent people, find the opinion polls objectionable. These intelligent people probably hang up the phone without responding. If this is the case, then certainly this practice of intelligent people calls into question the statistical validity of the huge number of public opinion polls conducted by telephone. Many of the polls are anything but impartial.  The prejudices of pollsters are likely to be reinforced by the opinionated people who are anxious to respond to the pollster’s questions, while those on the opposite side tend to hang up.

The impression is that many of the polls are actually instigated by political candidates. If the results of the poll are not beneficial to the candidate, what is the likelihood that the results will be published? What is the likelihood that a political candidate paying for a poll during the political season simply to inform himself or herself as to how the public feels, in order to make informed political decisions? But if the results turn out to be favorable what is the likelihood that the candidate will publish the results? What is the likelihood that the publication of such polls will adversely affect the wisdom of public opinion?

All of this is not intended to suggest that the well-considered opinion of the public is unimportant. In another essay I have described the crucial role played by consensus reality that is actually built on public opinion.  The purpose of this essay is to simply suggest that the polls as conducted are not likely to elicit wise public opinion. In order to be valuable, public opinion needs to be well informed public opinion. It does not need to be opinion expressed after hard day’s work during which no thought whatsoever was given to the issues raised by the pollster.

This discussion suggests important issues. First it is clear that opinion polls, as presently conducted, are not a desirable way to deal with the determination of public opinion. One of the underlying problems is that most members of the general public do not have enough information at their disposal to formulate decisions on many of the most important public issues. Or, stated differently, most members of the general public are not inclined to avail themselves of the information that is available on important public issues. Sports events are more entertaining than political debates. Political debates are interesting only when they project the prejudices and engage in the demagogic rhetoric that the public enjoys. Unfortunately, the solutions to our problems are not usually found in the debates that we find entertaining.

This article is, itself, an appeal to public opinion. It is a suggestion that the public should voice its opposition to unsolicited public opinion polls. But at the same time it is a suggestion that the public needs to begin acquiring information necessary to reach informed opinions on public issues. The public needs to find ways and means to express those opinions in a meaningful fashion.  And those do not include arming prejudiced news media with and inside scoop on what the public believes.

The main area in which the public needs to form sound judgment is in the selection of the politicians who will ultimately make the decisions. It is neither possible nor desirable for the general public to participate directly in the decision-making process as to the underlying issues. That is why we have a representative democracy.  It is much more important to select leaders who will make wise decisions, and whose judgment can be trusted, than to nail those leaders down on specific issues.

1.30 Lawyer advertising

Lawyer advertising turns most people off. That includes many members of the legal profession itself. Ads that include boxing gloves, horses, tigers and big trucks may be mildly amusing the first time you see them, but add little to the image of the legal profession and nothing to the dignity of law. Those of us who still regard law as a gift of God that allows humans to live peaceably together have difficulty seeing how the commercial advertising of legal services as a commodity can be justified.

So why doesn’t the State regulate legal advertising?  After all, law is authenticated and ultimately enforced by the state.  That is the “commodity” that attorneys deal with in their practice, so why shouldn’t the practice of law, including advertising, be closely regulated. Is the skill that is required for applying law to divorces, child custody, wills, personal injuries and other litigation just another commodity like a bag of sugar or sack of potatoes? To engage in the legal profession requires rigorous education. Admission to the bar, generally speaking, is regulated by the states.

Until the 1960s, regulation of law practice was almost completely a State function. The states may have exercised questionable judgment when, as in the State of Alabama, the regulation of the profession was largely delegated to the Bar Association itself, which operates generally under the authority of the State Supreme Court.  People in the profession are still regulating themselves.

The 1960s brought changes. Public interest law firms emerged, to facilitate and bring about needed social change. The “Trial Lawyers” Association emerged. A more accurate description would have been “Plaintiffs’ Lawyers,” because that association promotes the interest of the lawyers who bring lawsuits, rather than defending them. Plaintiffs’ lawyers serve a very useful and necessary function, and must be able to bring their services to the attention of prospective clients.

The image of the legal profession has never been good, and seldom been accurate. The pre-Civil War mythology of the rugged individualist lawyer has persisted, Atticus Finch perhaps being a poignant 20th-century example of the mythological role.  However, today’s world, the rugged individual lawyer is insignificant in the United States. The Civil War assured the dominance of industry over the agrarian economy. The Industrial Revolution happened.  Large law firms emerged to serve the needs of the industrial economy. Firms such as a Cravath firm in New York hired the top students graduating from the top law schools to represent corporate America in the Courts and legislative halls. They had open lines of communication with the big business and insurance companies that they represented. Selling their services to corporate America and insurance companies was totally different from sales by other lawyers who had to wait for the client to show up at their door. The pre-60s “legal ethics” served the interest of corporate America and the large law firms very well, but were a major problem for small non-corporate firms who represented plaintiffs.

The changes that occurred in the 60s brought Federal intervention. Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975) was the U.S. Supreme Court decision that began deregulation of lawyer advertising. The United States Supreme Court found that the schedule of minimum charges utilized by the Virginia Bar Association violated the Sherman Antitrust Act, despite the fact that the Bar was acting on authority delegated by the State.   State regulation of the legal profession came into question, despite the clear need for regulation, and the nature of what was being regulated. 

Then, in Bates v. State Bar of Arizona, 433 U.S. 350 (1977), the United States Supreme Court held that lawyer advertising is commercial speech protected by the First Amendment.  The Fourteenth Amendment applies the First Amendment to States.  Because of that decision, the power of States to regulate lawyer advertising is very limited.

Ironically, states do much of what they do through laws and regulations. The court system is a part of State government, and lawyers are described as “officers of the court.” To say that States can’t regulate the practices used by lawyers who are specially licensed to peddle the State’s power doesn’t make good sense. Law, and the ability of states to “promote domestic tranquility,” is adversely affected by advertising that makes law and lawyers look silly. However, returning to the “legal ethics” that sheltered defense firms and their built-in relationship with corporate America and the insurance industry will not solve the problem. Creative regulation that will empower lines of communication between members of legal profession and the people who need their services is desperately needed.  The internet could play a vital role. 

1.31 Problems with Legal Aid

The cost of access to the legal system presents difficult, perplexing questions. The legal system is the last resort for dispute resolution. But access to the legal system costs money. Lawyers engage in the practice of law to make a living. They cannot provide their services free. The cost of a judiciary has caused the legislature to impose substantial charges in the form of various court costs.  If the dispute involved involves only a small economic value, the cost of the legal solution may be prohibitive, so the dispute goes unresolved. For poor people access to the legal system to resolve disputes can be almost impossible.

The 1960s with its hope for a “Great Society” escalated the growth of the welfare state. We are now wrestling with the problems of Medicaid and other serious issues confronting efforts to provide adequate medical care. We believe that everyone should receive appropriate medical attention and care. But providing such care is not simple.  However, the philosophical problems encountered in the effort to provide medical care for the poor are not nearly so perplexing as those involved in attempting to provide legal care at an affordable cost. The fundamental difference between medical care and legal care is that medical care is needed by a single recipient, but in legal issues there are always two sides.

In the criminal arena, Gideon v. Wainwright, decided in 1969, made it clear that before anyone can be incarcerated, other than on a temporary emergency basis, indigent defendants must be provided a lawyer. So State and Federal governments pay the costs of legal defense for indigent defendants. I will save for another essay discussion of the fact that the Gideon case probably called into being a cadre of lawyers and a type of law practice that was never anticipated by the high court when it made that decision.

This article focuses on legal aid in civil matters. That is the area that presents the perplexing policy issues related to legal aid. There is almost no fair way for the legal system as it presently exists to deal with legal disputes that have small economic value. The solution costs more than the problem.  Even if a person is poor, cases with larger economic impact can often be addressed with contingency fees. The contingency fee system often produces a satisfactory result for the poor victim. Even then the transaction cost, i.e. the attorney’s fees on both sides, renders the legal system inefficient in providing the ultimate dispute resolution.  But this essay is not focused on the inadequacies of the contingent fee eligible case.

As mentioned above legal disputes usually have at least two sides. If the alleged victim is poor, and cannot find an attorney who will take the case on a contingency fee basis and public funds are used to subsidize the alleged victim by paying attorney’s fees, there is grave danger that injustice will be done to the defendant, who must pay its own attorney. When corporate America absorbs this type of expense the cost is ultimately passed on to the consuming public, and you and I pay for the defense of such lawsuits.

But the main concern is when the litigation involves poverty on both sides. If public funding is provided for only one side, there is a grave risk of injustice for the other side. If public funding is to be available on either side it should be available on both sides, unless the provider of the legal services has the omnipotent, omniscience power to judge the case in advance. And if funding for both sides happened the hungry legal profession would quickly escalate the number of cases, and make the court system unmanageable.  I do not believe that there is any obvious solution to this problem.

Unfortunately, having the free attorney choose sides in the case (the only choice being the one who seeks the service), is not the only difficulty in legal aid. People who have money try very hard to avoid disputes that wind up in court, so that they can keep their money. This is true whether they would be the plaintiffs or the defendants. But if the person contemplating the proverbial “day in court” does not have any “skin in the game,” the human propensity for conflict has no limits. If there were no cost, State and federal governments could not afford the dispute resolution process.

How should we measure the success of law? On the one hand, the commonly held American view seems to be that the more controversies courts can resolve, the more likely we are to have Justice. But I believe that law meets its highest goal when people obey the law and don’t have to go to court.

1.32 Ignorance: The Mother of Evil

First, let’s focus on ignorance; then we can develop its relationship to evil. Ignorance certainly includes lack of knowledge, but ignorance is not merely absence of knowledge. Ignorance has a positive existence in human consciousness. It consists of incorrect beliefs more often than the mere absence of correct beliefs. The incorrect beliefs are strongly and passionately held and adamantly defended. Ignorance doesn’t just stand on a street corner and rant and rave; it talks on I-Phones, and moves in emails.  It gains access to media, public offices, courtrooms, classrooms and even churches.  It enters into and affects behavior just like any other strongly held belief.

Like other strongly held beliefs, ignorance is often shared by the groups of which an individual is a part. It is what the group believes. It is handed from generation to generation in the bosom of the family.  The fact that the individual is surrounded by others who maintain the incorrect belief makes it extremely difficult to eradicate. It actively resists truth and correction.  The faulty dictum that one opinion is just as good as another supports is a cornerstone of ignorance.  Some opinions obviously are better than others.  Ignorance and incorrect opinion forms the basis for inappropriate behavior.

Against this background it is not at all difficult to see a connecting link between ignorance and evil. The fact that the Bible teaches that we have all sinned shows that none of us are immune from ignorance. This discussion is about the concepts of ignorance and evil.  It is not a pretext for launching into a tirade about some specific activity that may be going on in the world right now, although there is plenty of ignorance and evil that could be discussed.  No particular issue precipitated this essay!

Just a word or two about good and evil.  Anything that promotes the welfare and survival of humanity is good.  Anything that is harmful to humanity and decreases the likelihood of human survival is evil.  Now let’s get theological. The Old Testament concept of sin, or evil, is breaking the law. The law was (and still is) a gift of God. Jesus made it clear that he did not come to destroy the law but to fulfill the law. The abundant life that he advocated does not happen simply because one does not break the law. Breaking the law is not a good thing to do, but following the law does not necessarily make one good. The New Testament concept of evil is “missing the mark.”  It is failure to live life in a way that brings about good.  When one actively pursues an abundant life, and does things that make the world a better place to live, good arises.

The New Testament concepts of good and evil differ dramatically from beliefs that arise out of the Zoroastrian Persian religious milieu and its mythology. In that mythology, the hero Marduk destroys the force of evil, which is epitomized by a giant snake, Tiamat.  The material universe arose from the remains of the evil beast. Thus, in that way of thinking, good arises from the destruction of evil. Those fundamental differences in cultural beliefs may explain a lot about the things that are happening in the world today. But they give rise to pretty serious questions about what to do about evil.

Christians believe that the Crucifixion of Jesus was an evil thing. But Jesus said “Father forgive them, for they know not what they do.” His request was predicated on the fact that the evil actions arose from ignorance.  The Bible says that the wages of Sin are death. So theoretically evil ultimately destroys itself, and that will put it out of business. Evil ultimately doesn’t work out. That seems to be consistent with Darwin’s theory of survival of the fittest. But all of that theology and philosophy doesn’t provide great peace of mind for most of us as we watch a world that seems to be churning with evil. It does not eliminate the strong temptation to aggressively fight evil at every opportunity, and adamantly believe in our cause.

The Christian viewpoint is eminently correct. We cannot save world merely by fighting evil. Of course, when someone like Hitler comes along, we have to resist. But even that does not create good.  A lot of good things were destroyed in World War II.  But in the final analysis, to promote good, we have to show the world a better way.  When we look at the eons involved in the evolution of human consciousness, it becomes clear that we can deal with ignorance and evil only by finding and offering a better way.

1.33 A Story About Schools

Public education was and is the great American dream. Nevertheless, since the 1950s, we have seen a broad-based movement toward the privatization of education. It is against this background that I tell my story. Stephen Covey who wrote The 7 Habits of Highly Effective People suggested that one of those habits is “keeping the main thing the main thing.” For a public education system, excellent, effective education is the main thing.

I was born in rural Macon County and attended Shorter High School, a public school for grades one through twelve. There were fewer than 100 students in all 12 grades. There were 9 members of my 1960 graduating class. I used to say that there were 5 basketball players and four cheerleaders, but that may not be politically correct!

Mrs. Steele Bibb was our principal and was a Huntingdon College graduate. Four members of my graduating class, including Betty Menefee, who would later become my wife, signed up to attend Huntingdon. When I almost backed out because of fear of the tuition (they were charging and almost $1000 a year!), I was recruited by Coach Neal Posey. I suspect that he knew that I could not basketball that well, but also knew my ACT score. Mrs. Bibb knew I liked basketball, and probably “recruited” Neal Posey.  Shorter High School provided excellent education. An amazing percentage of graduates attended college. But soon after my graduation, the case of Lee v. Macon, that desegregated the Alabama Public schools, made Macon County the battleground between the politics of Gov. George Wallace and power of Judge Frank Johnson, neither of whom was an educator.

I had a good academic record at Huntingdon and served as president of the Student Government Association five years after John Ed Matheson, and five years before Jeff sessions. I was easily accepted into the University of Alabama Law School.  I was one of the first Huntingdon graduates to attend law school, although there have been many since then. The foundation that the Shorter school provided passed every test. 

I returned to Montgomery to practice law.  After a couple of years living in Montgomery, I moved back to Macon County in 1970, in the opposite direction from the “white flight” that was generally occurring.  I continued practicing law in Montgomery. The public school system in Macon County was no longer the same.  Our children, Philip and Mike, attended the Montgomery Academy.  In 1982, I was elected Circuit Judge in Alabama’s Fifth Judicial Circuit, which includes Macon County, where I served for 18 years.

My brother Wade had graduated from Shorter High School in 1956. He attended Troy State Teachers College and got a degree in education. He was hired to teach at the newly formed Montgomery Academy, a private school with emphasis on college preparation. Wade taught mathematics. He continued pursuing his education and got a Master’s degree in education at the University of Alabama.

After teaching at the Montgomery Academy for a number of years and serving as an interim headmaster, he was appointed Headmaster at the Montgomery Academy. He was influential in hiring Mrs. Duke and Mrs. Jolly who had taught both of us at Shorter High School. They taught at the Montgomery Academy for several years. 

My son, Philip, graduated from the Montgomery Academy in 1985, in a class of 40 and was included among eight National Merit finalists in that class. A very bright black student from Macon County was also in that class and several others were enrolled at the Academy.  In 1986 we moved to Tallassee and Mike completed his education in the public school.  Philip now practices intellectual property law in Chicago, and Mike practices law with me in Tallassee.  This is my story.

Without question, much social progress was made by the changes in public education that have occurred since 1960. But something very important was lost. Our governments did not keep the main thing the main thing. Everyone would have been better off if they had.

Today is a new day. We must find ways to rehabilitate the dream of excellence in public education. Privatized education can never reach the talented intellects that are mired in poverty and other disadvantages.  Excellent, effective, free public education is still the great equalizer. But the education system (like the army?) must offer the opportunity to everyone to be all that they can be.  “No child held back” is just as important as “no child left behind.”  We can only renew the dream of universal excellent public education by making the main thing the main thing.