1.00 The Origin of the Essays

This essay was originally written as thank you to the editors of the Alabama Gazette as a final Article, concluding a series of opinion editorials in that monthly newspaper that was published in Montgomery, Alabama. It adapts easily to an introduction of to the publication of basically the same articles, that are published as essays here on my website.  My mind goes back to the hot August day in 2013 when I first visited with Loretta Grant, editor of the Gazette, to propose a series of articles for the Gazette. I had grown up in Macon County, chosen law as a profession and watched tumultuous changes in that County that had been wrought by law during the Civil Rights era. I had deliberately chosen to stay close to Macon County because it was a primary site of those changes. I had served as a circuit judge in the circuit that included Macon County for 18 years. It had been a great learning experience.  I felt burdened by the weight of that learning experience, and felt compelled to share some of what I had gleaned from it. That was the essence of the series of essays that I was proposing. The visit with Loretta was wonderful. What I had thought might be a 30-minute interview lasted almost all afternoon. Loretta graciously agreed to allow me to express my thoughts in the Gazette.

So, I had the opportunity to express my thoughts and concerns.  I wrote about family breakdown and the threat that it poses to moral formation. I expressed concerns about the fact that our government placed the handling of the dissolution of a family into the adversarial legal system, where attorneys are “ethically” obligated to zealously represent their clients; i. e. fight it out. And the fight is bound to include disputes about spousal and child support issues. Child support guide lines unwittingly assign a dollar value as an alternative to sensitive issues of parental involvement with the children, and adds economic motive to the causes of divorce in the no fault system that has been assigned to courts.  Surely there is a better way! Surely there is a better way!

I moved on to discuss the breakdown of moral formation that could result from family breakdown, and the relationship of the breakdown of moral formation to crime and incarceration. I argued success for the criminal justice system should not be measured by the number of people we lock up in a central penitentiary; that the success should be measured by crimes that are not committed. Then I did an analysis of the kinds of people likely to wind up in the penitentiary, and had to say something about the ineffectiveness of central penitentiaries as the primary way of dealing with people who violate the law. It just doesn’t make sense to put all the bad guys in the same place, in light of what we know about the impact of peer groups on moral formation. And on another note concerning criminal justice, I pointed out that Alabama should eliminate most of the work of grand juries, including the requirement that all felonies require grand jury indictments.

When we talk about penitentiaries, we have to notice that there are a lot more incarcerated Blacks than whites, and we need to understand why. The answer is available. Four hundred years of slavery and segregation forced the formation of a totally separate culture. The law as it existed during those 400 years was not the best way for people in the resulting Black culture to resolve disputes. Anglo-American Law was not beneficial to the black culture during those 400 years. The black culture developed its own way of dealing with problems of conflict. Those cultural mores did not disappear just because the evils of slavery and segregation were finally recognized and dealt with in legislation and court decisions. But the fact that the culture was not closely aligned with the legal system explains much about the ongoing problems of race.  The “self-help” remedies in which black people just handle conflict themselves rather than “calling the law” is part of the explanation for the higher rate of incarceration. Against this background, the legal system needs creative ways to deal with the problem of disproportionate incarceration. As a judge, I tried Probation Sponsorship.

But central penitentiaries are not the only places where the continued influence of a separate culture that came into being without meaningful participation in the prevailing legal system is evident. Law is a prerequisite to economic development. Our black belt counties in Alabama are dominated by the remnants of the black culture. The questionable legacy of the role of law (or lack of a role) in those counties (and elsewhere, of course) poses a major challenge for economic development. The systems of property and contract that are provided by law are essential to economic development. Cultural differences between our Black population and white population are very real.

That is not to say, of course, that the legal system provides perfect solution to problems. Economic analysis provides insight into the systemic difficulties. But to understand the economics, one must understand a little legal philosophy: the difference between rules of law and rules of conduct. And one must understand the resolution of conflicts in the judicial system in economic terminology. Plaintiff’s lawyers thrive on contingent fees while defense lawyers work by the hour. (Later, I added and article about lawyer advertising. Any analysis of the economics of conflict resolution in the legal system must take into account the role of liability insurance. The impact of the economic motives of the legal profession causes the transaction cost of solving problems by utilizing that system to be very high. Such a system cannot meaningfully address the small problems that plague the daily lives of most people.  An effective “legal aid” system is difficult to imagine, given the impact that economics plays in the system.

Perhaps because the court system has become somewhat ineffective in resolving disputes, we resort to alternatives for dispute resolution, but that decision may be questionable for a number of reasons.. When we turn dispute resolution over to arbitration, we privatize law. The public doesn’t know what’s going on. Privatization undermines the role of normative force that makes law effective. Precedent has been an important part of Anglo-American law. With arbitration, there is no precedent. Corporate America can systematically overcharge small sums, and bind consumers to arbitration that disallows class relief, depriving their victims of any effective relief. The people just don’t know what to think! But nevertheless, we are plagued with uninvited opinion polls, as if compiling composite ignorance would create wisdom.

So I wrote an article describing ignorance as the mother of evil, which I can’t summarize and just a line or two. One thing for sure: most people feel the same way that I do about lawyer advertising, to which I devoted an article.

I wrote several articles just to express opinion on interesting topics. If judges don’t decide a case that has been submitted to them within a week or so, don’t assume he or she is thinking about it! I he or she has a full work load and doesn’t decide cases promptly, There is overload. If anyone really thinks that today’s world of law is dominated by individuals, like Atticus Finch, Danial Webster or any other rugged individuals, they need to think again. Ironically, ignorance is not well understood! And I could not resist the opportunity to talk about my alma mater Shorter High School, which figure prominently into this website.

All of this stuff is not just interesting – it’s mind-boggling.  So, I a couple of Articles to philosophy and faith.  There are major questions about just what law is: natural law has been supplanted by legal positivism; An if we know the right thing to do, why don’t we do It? And finally how do we a arrive at any sense of reality?

The essays that appear in this series are, for the most part the Articles that I wrote for the Gazette. I will always be appreciative to Loretta Grant and Alabama Gazette for providing the initial opportunity to express these thoughts. Actually, I had written some similar editorials for the Montgomery Advertiser, years before that, and expressed some of the same thoughts. And I will likely add additional essays on similar topics to this website, as thoughts occur to me.

The numbers included in the titles to these essays reflect the sequence in which the articles appeared in the Gazette—except for this one.  They reflect some organization of the concepts.  There are common threads of thought that run through all these essays, and you can see them if you are attuned to such things.