Tuesday, February 2, 2010
Courts On Trial
"It is taken for granted that, for the sake of peace, justice and order, the courts must have a monopoly on judicial power within the boundaries of their jurisdiction. Yet, the ability of today's courts to achieve any any of those values with the monopoly power they possess is subject to serious doubt. Even if justice implies a court system with monopoly power to do justice, the converse is not true. The mere existence of monopoly judicial power does not imply that it will be used justly. ... However, what people want is not merely some reasonable assurance that disputes will be resolved, but that they will be resolved with at least a rough approximation to justice: the correct application of the right principles to the reasonably known facts. ... Why should we think the state, even a democratic state, will resolve disputes justly? ... Like any monopolist, the state will tend to charge more for its services than private arbitrators would. Moreover, since its revenue is guaranteed, and the courts have little incentive to attract or please its 'customers,' government courts have little incentive to incur the costs of producing justice: the intellectual, moral and physical effort required to achieve true justice. ... There is the story of the local judge who, confronted with having to wade through hundreds of pages of summary judgment motion papers, instead lazily told the lawyers, 'There must be an issue of fact in there somewhere. Motion denied.' ... Thus, government courts will tend to expand the rights and powers of the government, while shrinking the rights and powers of the citizenry. ... The [US] government has been growing steadily ever since 1776, with the reliable, continual and unsurprising endorsement of its own courts. ... Thus, government courts, unconcerned about securing or satisfying customers, tend to be more concerned about looking after their own interests and the interests of their allies. They adopt, for example, elaborate and fairly inflexible rules of procedure, most of which seem designed to serve the needs of the court, not the litigants. ... A further point: it is rarely remarked that government courts are subject to the same special interest group dynamic that plagues the other two branches of government. Most citizens want courts that mete out justice. Yet, a small group of people view the courts as a means to increase their wealth, power and prestige. Which group will tend to prevail over the other? ... The notion that appointed judges are apolitical is a fantasy entertained mainly by naive and self-appointed 'court reformers.' ... Lawyers appointed to judgeships usually are more wedded to secretive elite circles. Is that why elites almost unanimously favor appointing judges? ... It is a common belief that federal judges, who are appointed, are less political than state judges who are usually elected. However, every federal district judge in Buffalo stated out as a politically-appointed [US] Attorney or [AUSA]. ... They will tend to favor the interests of the power elite because of a similar outlook, loyalty, gratitude, or a desire for future appointments and other favors from the power brokers for themselves and their families and associates. .. While such judges may fairly adjudicate disputes between ordinary private persons, when such persons litigate against the state, or members of the power elite, they will tensd to discreetly favor the elite. They are usually clever enough to disguise the favoritism. ... We are told that no one should be the judge of his own cause, yet the state, in disputes with its own citizens or subjects, is always the judge of its own cause. ... In sum, the monopoly state provides no assurance that disputes will be resolved justly, merely that they will be resolved", James Ostrowski at Lew Rockwell, 29 December 2009, link:
Jerome Frank, a Second Circuit Court of Appeals judge wrote Courts on Trial, 1949, about this issue, among others. It's a good read. Sandra Day O'Connor is a big proponent of appointing judges. I'm not.