Legal Realism considered how judges made decisions, and it recognized bias in the process. Frank taught that the judge could never become entirely free from prejudice, but that he or she could become more free by recognizing bias. The social sciences and psychology were important in legal realism. But beneath this dynamic view of the law lay a fundamental assumption: that the judge indeed intended to follow the law. That is perhaps a correct assumption for contemporary jurisprudence at the federal level, but it is less the rule for trial judges at the state level. State trial judges are generally voted upon for retention or election in the communities where they live. These judges have developed a strong tie to the social network of their communities. Such ties are much stronger, as a general rule, than is the sense of duty under the law.
Appeal to the Practical
Moreover, most judges are drawn from the ranks of practicing lawyers. As is true in many, perhaps most, professions, there is a great gap between theory and practice, and a great antagonism between theoreticians (law professors) and practitioners (lawyers). As a result, at the state level, at least, most judges take pride in eschewing theory, and in touting their skills for the practical. This can be seen even in national judicial education, where it is often said that a literal application of the law can yield an unjust result. But this practicality possesses no objective standards, and it has no universal application. Rather, it is described as a six sense, something acquired but not taught.
The vast majority of trial cases involve simple factual issues. Most of the legal issues are settled. How can the factual issues be resolved by a notion of practicality? Although common sense may help to determine the credibility of witnesses, it can lend nothing to determine the content of the facts: either there is evidence to support the propositions of fact, or there is not. Further, how can practicality have anything to do with determining what is the law? It cannot. The law is positive – that is its very nature. When the law is applied to make an adjudication, practicality does not enter the picture. If there is any ambiguity in the law as it is applied to the facts, that ambiguity must be resolved, not by the judge’s individual notion of practicality, but by recognized rules of construction. In “penumbral cases” where the judge must look beyond the black letter of the law to determine its meaning, the spaces should not be filled by the judge’s private notion of ought, but by the legislative intent as revealed objectively by the record of legislative history.
This appeal to the judge’s sense of the practical is an appeal, not to a universal standard which is necessary to a true sense of justice, but to the judge’s individual perceptions and standards of justice, consonant with those of the community. That this individualized or localized standard of justice is in fact what is appealed to is demonstrated in several ways.
Most frequently this appeal to the practical outside the law is expressed in areas of criminal law. For example, judges are heard to comment that they don’t think it is fair for a police officer to “lay in waiting” for an offender, such as the officer who positions his patrol car near a tavern to watch for drunk driving. Such judges tend to think that it strikes at the notion of fair play, as though criminal activity is something an officer should stumble upon, and which the offender should have an opportunity to escape. Other judges are heard to say, “We don’t enforce that law” or “I think it is a bad law and I won’t apply it.” One judge was discussing the Elks tradition of gambling, a tradition that violates the law in Nebraska. He said that in central Nebraska these clubs could not survive without gambling. It was obvious to him that where gambling laws conflict with local custom and a sense of economic need within the community, the law should not apply. In matters of criminal prosecution for failure to pay child support, judges frequently refuse to impose a penalty, or even to make a conviction, for the reason that the enforcing parent has a civil remedy for enforcement of the support order. That fact is irrelevant, and the judge that does so evades judicial responsibility.
This “practical” versus “theoretical” mentality is seen in the abandonment of legal concepts for nebulous ones that serve private interests, particularly the judge’s self-interest of keeping the most lawyers and community members satisfied. A favorite creation of this “practicality” is borrowed from criminal law and adapted in the notion of “quasi-criminal.” In a juvenile case a child who was alleged to be sexually abused by the father seeking an adjudication that the child was in a situation injurious to health, welfare or morals. The lawyers for the mother and the father of the child sought a deposition of the child although the child would not be called to testify at adjudication hearing. The juvenile judge was a former prosecutor and he knew the difference, but in response to the lawyers’ argument that they had the right to confront the child, the judge said, “Well, it is quasi-criminal.”
Juvenile court is not a criminal proceeding, and its findings are not binding upon the defendant in criminal court. The rights of the parent in juvenile court are different from those of a defendant in criminal court. Nowhere is there a legally recognized concept of “quasi-criminal” in which criminal rights adhere. Either it is a criminal proceeding, or it is not. The right against self-incrimination may follow a party into a non-criminal proceeding, but criminal consequences do not follow a party out of such a proceeding. Therefore criminal rights do not apply to parties in a non-criminal proceeding, except the right against self-incrimination. The only purpose of this fuzzy concept born of “practical” thinking is to give the party more rights than those to which the party is entitled in order to keep the party happy: to give everybody something.
Likewise, this “practical” approach is seen in the criminal trial where prosecutors are held strictly to the rules of evidence and ethical standards of practice, but where defense attorneys are not only allowed broad latitude, but are allowed to pursue irrelevant issues on the basis that such is “all the defense they have.” Defenses are either legally recognized or they are not. If they are recognized then the facts offered in support of such defenses are in fact relevant and should be admitted; but if the defense is not recognized, the offer of such facts should be denied as irrelevant. Not only the defendant, but also the prosecution, the State, is entitled to a fair trial.
The actual result of such fuzzy thinking is not at all practical in the long view, and it certainly is unfair to the State. If the prosecution violates the rules of practice the consequence at worst is a new trial. But if the defense obtains an acquittal unfairly, there is no second trial. For the defendant an acquittal unfairly won is won forever under the concept of double jeopardy. All the more reason that the same standards established by law must be applied to defendants as they are applied to the prosecution.
There are limited areas in which practical considerations are in order, and those are the areas of sentencing, dispositional orders, and judgments. For example, in the matter of speeding, the judge does not have the option to declare “not guilty” one who is shown to have been speeding, even by one mile per hour if the measuring device is shown to be accurate to determine that speed. That it is impractical for an officer to issue a ticket for such a speed, or even that the officer issued the ticket spitefully, is of no consequence to the trier of fact in determining if the law was violated. That is not to say that such picayune matters must be ignored, but the application of law to the facts for the adjudication of the fact alleged is not the time. For the judge to ignore the law and the facts on the basis of practicality is aggrandizement by the judge of legislative and executive functions in violation of the fundamental principle of separation of powers. The judge is sworn to uphold the law, its black letter and its expressed purposes and policies: the law as it is and not as the judges thinks it ought to be.
However, once the adjudication of fact has been made, consistent with the standards of proof established by law, the judge generally has broad discretion in fashioning a sentence or a judgement within the parameters set by law. That is the time for practical considerations. For example, the judge might find guilt but assess no penalty, or grant probation under lenient terms to minimize the impact upon the defendant. The judge can even address openly the officer’s excercise of his discretion or demonstrate the impracticality of its exercise by the decision rendered.
The real power of the judiciary to shape society to norms established by the law resides in the sentence or dispositional order. The law recognizes a broad range of functions in sentencing which permit the judge to consider the past, the present, and the possibilities for the future, both for the individual and for society. As to the individual offender, the sentence may be designed to punish (just deserts or retributive theory), to deter future law violations, to rehabilitate, or any combination of these. As concerns society, the sentence may serve social catharsis by assuaging social outrage at the injustice of the act, by deterring future law violations within society, or by protecting society by incarceration of the offender who is likely to recidivate. Given adequate knowledge, skill and resources, the power of sentencing to bring about positive social and individual change can be profound.
But, judges are loathe to exercise this power concertedly and consistently. Several factors contribute to this reluctance. First, judges have no training, as a rule, in the behavioral sciences, psychology, or the social sciences. To the degree that judges may be aware of such scientific knowledge, they are frequently suspicious of the theoretical offering, which by their ignorance they label “non-practical.” Moreover, and perhaps most important, where the judge is usually drawn from the community, lives in the community, and is incorporated into the social fabric of the community, he or she typically is reluctant to treat seriously law violations by one who is also a member of that community. The exception is the social outcast who seriously disrupts the life and integrity of the community, to which the society reacts in outrage. Finally, this private, practical approach to adjudication and sentencing is fed by a general notion that crime is part of every community, and that nothing a judge does will much affect it. There arises from this latter assumption a perfunctory tokenism in sentencing. Moreover lawyers and defendants just want the sentence, no discussion, no explanation, no exhortation: “Just let me get on with my life, [as I choose it to be].”
For these reasons, judges fail to recognize the potential of the sentence for changed behavior, they are suspicious of the studies that suggest such potential exists, and they are fearful of the effects that serious application of such knowledge would have within the social fabric of the community. Further, the sheer numbers of cases and high recidivism, to a large degree a reflection of an ineffective sentencing practice, lends to a defeatist attitude and perfunctory sentencing. So the judge opts out of any serious consideration of the possibilities for the future when sentencing or making a dispositional order.
In civil law, this call of judges to the “practical” is a call to maintain local practice and values against the universal standards and values of the law. It is a call to self-interest of the players within the system rather than to justice as defined by the law. Lawyers in Central Nebraska used to say of a District Judge, now deceased, “He might not follow the law, but he does what is just.” I practiced then in commercial law, and my clients made business decisions on the basis of the provisions of that law. Not to follow the law for a private notion of justice was unjust to my client who relied upon it, however just it might have seemed to the judge or the opposing party. This same statement is applied anew to other judges throughout the state, and included in that pronouncement is the praise of a local sense of practicality which is not found within the law. It is praised by those who have vested interests in the community remaining as it is.
How does the judge get away with this refusal to follow the clear law and to be praised in the process? The primary technique is to avoid rationalizing the result: don’t give a reason; give only the result. The very irrationality of the process lends to its power through a sense of mystery. There are no errors to attack, only a sense of wonder at how the result could attach. The second technique is to play Solomon and split the difference between the parties. Third is to make the parties reach an agreement by announcing that the relief requested by either cannot or will not be granted, and a court decision would cost both parties. Fourth is to protect the local attorney, or local party, against the outsider. The last is in hard cases, to maintain the status quo – it was good this far, and influential people who rely upon the system can’t get too upset if one maintains it.
Don’t rationalize the result
Law application is a rational process. To rationalize when one refuses to follow the law is to reveal the digression from universal standards to private standards. On the other hand, a decision without a reason, implies, nonetheless, a reason. But the fact that logical application of the law to the facts does not yield the same result mystifies the decision which lends a higher and more pernicious power to the self-aggrandizement that commands flattery and praise of lawyers and the community in the place of rational discourse.
I noted that flattery upon my appointment to the bench. I suddenly could not tell a joke that was not funny, and I held the rapt attention of every audience of attorneys in chambers. Why? Out of respect? No. Respect is honest. I received the same rapt attention after two thirds of the lawyers responding to the lawyer survey of judges anonymously declared that I should not be retained. Rather, I believe the flattery is born of a deeply ingrained belief among lawyers that flattery has more to do with the outcome of a case than the rational application of the law to the facts. And when a judge refuses to rationalize a decision, that judge lends to the aura of mysticism which invites irrational flattery.
Further, judges are taught at national colleges another reason not to rationalize their decisions: “Don’t give an appellate court a reason to reverse your decision.” Hogwash! A decision is not the property of the judge to keep. The judge ought to apply law to facts and rationalize that process. If the reasoning indicates a fault in that process, the reviewing court should have the benefit of that reasoning to aid it to correct the injustice. The reasoning need not be extensive, nor unnecessarily invite argument, but it should be clear and it should succinctly demonstrate the rationality and the justice of the result.
The Solomon Technique
Concerning the second part of the practical approach to civil justice, it concerns the Solomon technique of splitting the difference. The technique is considered to be a wise practice, but its proponents fail to recognize that the wisdom of its original use was not in the actual division of the outcome, but in its testing of the credibility of the witnesses before the judge, Solomon, to preserve integrity and justice in the outcome. The woman who was willing to split the baby lost it. The baby was saved and given to the woman who would rather see the baby live and lose it than die and have a part. Justice conveniently divided is no more justice than is a divided baby a baby.
As a practical matter, on first blush, it would appear that the practice of splitting the difference between the parties would lend itself to dissatisfaction of more parties to the detriment of the judge’s security within his or her community. If one examines the practice more carefully, however, one can see that if there is a clear winner in a suit, one party will be pleased with the decision, and the other party will be unhappy. That leaves half of the litigants dissatisfied with the judge’s performance. If the judge splits the difference, there is an initial dissatisfaction of all the parties. But the matter does not end there. Rather, with time develops a mental shift. Having gotten something out of the litigation, each of the parties can further take solace in the fact that the other party was prevented from getting all that party wanted. With a little benefit and a little retribution, a party moves toward acceptance of the decision, an acceptance which has nothing to do with rational application of the law to the facts, but rather with selfishness and vengeance. When the decision is not rationalized, the result is clothed in mystery, and accepted as “wise.”
In a local case the district judge held that a debtor agreed with the secured party that the lien on livestock would follow the livestock into the hands of a third party dairy corporation, the purchaser, which was not party to that agreement. The judge found that the debtor’s agreement was sufficient to carry the lien over against the dairy, notwithstanding the passing of the statute of limitations for enforcement of the lien. The debtor’s independent agreement bound the purchaser who did not agree to it nor even know of it. After trial each of the major parties to the litigation concerning the livestock got something, although only one had a valid security interest in the livestock. The judge recognized the bank’s general security interest to have followed through the sale to the third party, but the judge limited the amount to the extent of the unpaid balance of the original loan made on the livestock; he gave nothing additional to the debtor, but the debtor was benefitted by reduction of his loans at the bank; another party was found to have no security interest in the livestock, but was given the balance in the checking account of the dairy corporation, representing part of the proceeds of the sale of livestock; the balance of the proceeds of the sale of the livestock in the major account went to the only party to have a valid security interest, the supplier of the feed.
Protecting Local Interests
In a juvenile case in a small county the children were adjudicated under a petition alleging sexual abuse. Six months later, at the time of review, the offending father sought visitation. The juvenile judge, seeing a new round of litigation at the expense of the county, dismissed the case. The guardian ad litem appealed the dismissal, and the District Judge, before he had a bill of exceptions (transcript of the proceeding to review for error), noted the cost of the case to each taxpayer in his county and dismissed the appeal. When the guardian ad litem appealed that ruling, the judge recognized his error, and set aside his order dismissing the appeal. Upon receipt of the bill of exceptions and further hearing, the district judge again noted the expense to his county, and again dismissed the appeal, leaving the children without protection. Upon appeal to the Supreme Court, that Court reversed and remanded the case for further proceedings in the juvenile court, noting that children are not “flotsam and jetsam” to be cast upon the water to save a foundering ship. The actions of the juvenile judge and the district judge were baldly self-protective and outside the provisions of the law. No attempt was made to rationalize the decisions, and none could have been satisfactory had the attempt been made.
Force An Agreement By Refusing to Grant Legitimate Relief
If the judge can make the parties make an agreement, they cannot blame the judge for the result. Having made the agreement, they will overlook the fact that the judge unfairly forced an agreement in a matter that the parties wanted to try to the court. For example, in a probate case an heir had earlier objected to the inventory, and at the time set for hearing the personal representatives reached a settlement agreement with the heir by which they agreed to deliver to the heir certain livestock in satisfaction of her inheritance. The court did not want to make a record of the settlement. The personal representatives refused to perform their agreement, and the heir sought specific performance (order that the personal representatives perform their agreement). The judge called in the attorneys before hearing, inquired what was the problem, and then announced that he would not order specific performance. He said that if the parties could not come to agreement he would replace the personal representatives with a bank, whose fees would be charged to the shares of all the heirs. We ended up reaching the same agreement, and this time the judge permitted us to make a record of the settlement. The judge gave a speech on how the parties would be much happier for having made the agreement. But when I asked the judge to order the personal representatives to perform the settlement agreement, he refused. If they did not perform the second time we could come back and ask for the order then, he said. What the judge was doing was to refuse to do that which was his duty to do: to determine and support the rights of the parties.
Don’t Rock the Boat
In a garnishment case the plaintiff had a judgment against the debtor for $15,000 on an unpaid loan by plaintiff to the debtor. In garnishment proceedings, the debtor admitted that he gave the full $15,000 to the garnishee, his wife, and that the garnishee had never paid the debtor back. The debtor owned nothing; his wife owned all. They had been before the judge several times, and the judge noted that fact. The law provides that if the garnishee has property of the debtor, or owes money to the debtor, she owes it to the plaintiff. The judge ruled against the plaintiff, however, holding that there was no evidence that the garnishee had any specific amount belonging to the debtor.
Never make a ruling that adversely reflects upon the services of an attorney, even if malpractice has caused the client to lose.
In a contract case, we served discovery upon the defendant, asking that the defendant admit the essential elements of the Petition. The attorney for the defendant did not respond within the thirty days allowed by law. The law provides that when a party that is served with requests for admission and that party does not respond or object within thirty days, the requests are admitted as a matter of law. We filed a motion for summary judgment, and, in addition to the failure to the deemed admissions for failure to respond, we notified the defendant of our affidavit asserting the facts alleged in the Petition. Summary judgment is a legally recognized means of settling a dispute early when there is no legitimate dispute of facts and the law is clear that the moving party is entitled to judgment under those undisputed facts. Once a moving party offers at hearing an affidavit to show a set of facts, the opposing party has the burden to offer an affidavit disputing those facts, or the facts must be accepted as true and undisputed. The law further requires that each party give the other notice of such affidavits prior to hearing, so the other party can be prepared to rebut any facts asserted.
In a discussion I had with the opposing attorney, I notified him of his error, and that the remedy under the law to avoid the deemed admissions was to request court permission to withdraw the admissions. He did not do that prior to hearing. At the hearing they offered no affidavit to rebut our own, but he verbally requested, for the first time, to withdraw his deemed admissions. Under the law, that was not a rebuttal of the facts asserted, and ours should have been accepted as undisputed facts, entitling us to summary judgment. The judge refused to give us summary judgment and gave the defendant permission to withdraw the deemed admissions and to submit responses.
The defendant then did respond, but we felt that the responses given nonetheless made sufficient admissions to entitle us under those asserted facts to summary judgment. So we filed another motion and we served notice of still another affidavit setting out the facts of our petition which entitled us to summary judgment. This time the attorney failed to appear at the hearing. Our affidavit was again undisputed. But again we were denied summary judgment. Each time, all the attorney for the defendant had to do to avoid summary judgment and get a trial was to give us notice prior to hearing of an affidavit of the defendant asserting relevant facts contrary to our own affidavit, but in neither case did he do that. In neither case would the judge apply the law and give us the summary judgment. We had to proceed to trial, we won at trial, and it has been twice appealed and continued for an additional two years.
Motivations For Refusing to Follow the Law
What can be the motivation for refusing to follow the clear law? It may appear to some cynical, but in the face of such refusal, I submit that it relates to the judge’s desire for security and comfort. Maintaining the status quo is most secure to those who have acquired interests under the prevailing system.
I have come to the conclusion that the majority of state judges have a system of prioritization which they apply to judicial decisions:
i) What impact will this decision have upon me, personally?
ii) What impact will this decision have upon the community upon which I rely for my security, social life, and comfort?
3. Don’t decide something you can make the parties decide among themselves by announcing that neither will get what that party wants.
4. If neither of the first two apply, and if a settlement cannot be forced, protect local interests.
5. In hard cases, don’t rock the boat.
6. And, never make a decision which reflects poorly on an attorney’s performance, even if it is malpractice and causes his or her client to lose.
In the juvenile example, the juvenile judge saw that the case was expensive and would not go away. For him, the decision he was required to make would effect him personally if he decided to continue the case. The expense to the community had an influence upon the result. For the district judge reviewing the dismissal, the second issue applied: he unabashedly announced the expense of the case to each taxpayer in the community, including himself, and then dismissed the appeal, the first time without a record to review for error, and the second time with such a record.
In the dairy livestock liquidation case, a bank can have political clout. The bank got the balance of the original livestock loan paid but not the balance to which it would have been entitled as security for all loans had it in fact had a security interest; the debtor got the benefit of the bank’s win by reduction of his loan at the bank; the party getting the balance of the checking account got something for his appearance at trial, and the party with the valid feed lien at least got the balance of the fund which was the majority of the fund, if not all the fund to which he was entitled. This is a bold-faced application of the Solomon technique: everybody gets something, but nobody gets all he asked for. Each of them lives in the community where the judge lives, and each may vote on his retention. The judge managed not to entirely alienate anyone. The case was not worth an appeal. The decision stood and was accepted.
The probate case where the heir sought specific performance is just basic avoidance of judicial responsibility. If the parties are made to reach an agreement, they have only each other to blame for the result. Under this view, the judge should do what he can to make the parties agree so he or she cannot be blamed. In fact the “achievement” of a settlement, although achieved by default of the judge’s duty, may be viewed by others as a demonstration of great wisdom.
The garnishment case is more difficult to understand. However, some additional facts may help explain the result. The debtor had a history of borrowing money from his insurance clients, but not paying it back; and he had a history of being judgment proof. Although there had been some isolated resistance to these injustices, it was just that: isolated. The community as a whole took a “live and let live” attitude, and the debtor continued to do insurance brokering in the agency owned by his wife. Many knew what was happening, but they tolerated it. The community appeared to be accepting of the judge, also. If the status quo were upset with a ruling that the debtor and the garnishee cannot get away with their injustice, then ripples would be felt across the community, and adjustments would have to be made. That adjustment could have negative repercussions to the judge. So it was better for the judge to maintain the status quo, which seemed to be satisfactory to the community, than to give justice to a lone litigant who resisted that injustice. Don’t rock the boat.
Finally, in the case involving summary judgment, the attorney failed to respond to our affidavit, even though the law required that he do so or accept the affidavit as true. In the first case he simply was unprepared. In the second case the attorney did not even appear at hearing. Because of the attorney’s actions or failure to act, the law required that summary judgment issue for my client. In neither case would the judge impose the result required, apparently because to do so would have reflected poorly upon the attorney. This occurred shortly before the bar association did its bi-annual survey of judicial performance, which was this judge’s first. Judgment of the attorney’s malpractice might have invited a bad judgment of the judge’s performance, and job security required that such judgment be avoided.
Loss of Judicial Values
The problem is that the judicial system has lost, or is losing, the values upon which our government was constructed; it has lost, or is losing, its sense of mission. This is not an isolated indictment of the judiciary: the legal system is a mirror image of the society which it “serves.” We have become a feel-good society in which nothing is done which may bring discomfort or pain. Insecurity is uncomfortable, and it can in its extreme form be quite painful. Therefore, security is the prime value with conformity right along beside. To such a society idealism is a weakness born of wishful thinking; reality is what is; and the wise deal with things as they are, to be managed and manipulated for future personal gain. Anything else is delusion.
Shift of Societal Values from Inherited Ideals
This shift from the idealism found in our early history can be seen in our educational system, itself a mirror of parenting philosophies and societal values. The teaching of disciplined practice as a means toward education was discarded in the late sixties. The new math looked for a back door to sneak in math skills without the drilling; likewise grammatical skills and clarity of style yielded to practical, affective expression. “Sesame Street,” while having many positive attributes as a supplement to good education, and as educational fun, unfortunately was taken by parents and subconsciously by students, to be the educational model of the ideal classroom by which children should be entertained into education.
Dr. W. R. Coulson worked within that educational revolution. He helped organize “Affective Education” or “Value Free Education” in 1967 and 1968 through the work of the Western Behavioral Sciences Institute in LaJolla. That group included the great behavioralist, Maslow. The project was funded by Reynolds, the cigarette company, and foundations related to it. From that project developed several “values clarification” programs dealing with drug abuse: Quest, Here’s Looking at You, Helping Youth Decide, Me-ology, Project Charlie, Ombudsman, DECIDE, DARE, and many others.
But in the early 1990’s Dr. Coulson reversed his position:
. . . we owe the nation’s parents an apology, for we alerted industry leaders to the potential for profit that lies in affective education.
Elsewhere he wrote,
Moral absolutes are routed in affective education in favor of a psychotherapeutic imperative called “running the risks of personal growth” and this turns out to be identical with what dealers in dangerous substances and ideologies applaud.
While one may question how absolute Coulson may intend “moral absolutes,” we must at some point begin to establish in our children and in our society a foundation on values which are accepted as firm. The problem with “value free education” was that it attempted to assume no values, and purposefully suspended any judgment on values. But it is by a set of some values that we orient to our world.
The assumption in value free education was that children had the experiential base to supply the values which they were refused by the educational method. Being robbed of any given values, the only ground for decision offered the child were factual scenarios designed to speak to the child’s experiences, from which the child was to draw out his or her own values based upon the child’s projected feelings. The techniques used in the classroom were a sort of pop psychology borrowed from emotional therapy, hence, “therapy-for-normals.” Emphasizing the good feelings masked the lack of content. It lacked the depth of valid emotional therapy.
In 1978 a Stanford University research team headed by Psychologist Richard H. Blum published the results of its research into affective education in Drug Education: Results. Their findings were that those who received “therapy-for-normals” or “affective” drug education were more likely to experiment in drugs than those who did not have the education. Indeed, the method’s proponents justified their reluctance of teaching values by the notion of “running the risks of personal growth.”
Dr. Coulson wrote that his own experience and the research of the Institute confirmed the findings of the Stanford study. He noted that affective education tends to normalize the drug experience. Drug users, known to the student or appearing normal, described experiences of which the student formerly was fearful. The student was made
subjective about himself rather than objective. He becomes the center of his own world of decision – making, no longer an obedient subject of his family’s. He learns that among his options are drugs . . . he learns that he can become whatever he wants or ‘needs’ to be.
Risk-taking for growth is subtly transformed into risk-taking for a thrill. Children and adolescents don’t have the maturity to make the distinction. Learning from experience can and should include the experience of parents, and the accumulated experience of inherited values.
While it may be true that traditional values are not static, but evolve over time with the changes of circumstances and experience, the evolution of such values does not suggest that the value is amorphous, nor does the stability such values provide suggest they are static. Accepted values do represent an accumulation of experience, experience that extends beyond that of the child, and even beyond the parents and teachers of the child. That is why inherited values should not be lightly discarded.
The fact that circumstances do change does not suggest that the accumulated experience contained in traditional values are no longer applicable. Some elements of human experience survive their circumstantial details. The loss of traditional values represents a loss of that accumulated experience, and it has its costs in loss of stability, of vitality, and of connectedness with the past. Nietzsche recognized that a century ago, and he believed it led to nihilism – itself a representation of the value-less nature of contemporary life: loss of accumulated experience and loss of roots.
While traditional values do not have all the specific answers for all life’s evolving circumstances, children certainly do not have all the experience to enable them to make good decisions. While traditional values acquired in society and by the child’s family are not absolute, they do provide a sense of orientation, and a stable place from which to begin, and to which to return for nourishment and rest. As children grow into adolescence, it is their job to press the limits, and it is as much the parents’ job to enforce the outer limits established by developed values, to apply those values, and to temper them in the light of new experience and reason.
But parents are themselves opting out of this struggle for a foolish conformity which is dictated by the writers for television, who themselves take the exceptional, unhealthy circumstances of life and treat them as reflective of normal society. We are told what is normal, and we struggle to conform to it, to fit in, not to stick out. What we do to our children we have already done to ourselves. And what we teach our children reflects our own belief system: “there is no ethics in today’s society; and if you act ethically you will get eaten alive.” Value free education reflects a value-less society.
What values we do have in contemporary society are leading us nowhere beyond the immediate gratification of those who have the power to obtain it. The legal system, reflective of that society, has itself devolved to the level of maintaining the status quo: maintaining the self-interests of those who have the power. It is only in natural law that values can lead beyond isolated self-interest to values rooted in the relatedness of the whole universe. It is only in natural law that right exists for its own purposes and its own end.
In natural law “ought” denotes something more than prescriptive statements regarding an outcome sought in one’s self-interest. “Ought” denotes a state of being, of possibility, which extends beyond the limits of one’s own conditions and interests. “Ought” is relational, it confronts the issue of right relations; it springs from natural law.
The Legal Profession: A Call to Service to the Becoming of Society
What the legal profession has forgotten is that profession exists for service, to bring to fruition the “ought” in society, and to help realize its potentialities. Professions are socially recognized as necessary or desirable in providing service to the larger social unit. When society no longer recognizes the profession as providing a valuable service, it will seek to suppress the activity by actions ranging from mere refusal to purchase what the profession offers to forceful exclusion of the professional activity. This social acceptance or rejection can be seen in history in societies’ various treatment at different times and places of prostitution, witchdoctoring, fortune-telling, and exorcism, to name just a few. Those professions have fallen out of favor as society’s circumstances and beliefs changed.
As society became increasingly complex its needs for rules of organization and conduct increased, and society developed a need for experts in the law and law application: the legal profession. In the early history of civilized society the law was bound up in religion. The lawyers of that time were priests. Only later did the law exist apart from the religious life of the people. Only later yet did the possibility of the separation of natural law and positive law became apparent.
The United States inherited its legal system from Britain, and adapted those values and practices to its new circumstances and needs. Independence was not an isolated mark upon a blank tablet. Rather, it noted a shift of paradigm within the inherited system: a shift from the citizen as subject of the King to equality before the law of all humankind by reason of their being human. That independence statement, as earlier shown, was a declaration of natural law over political authority as it had come to be; it recognized not only humanity’s ability to change the conditions of its existence, but also its political right to assert itself in that direction. Through the adoption of a Constitution, American society took upon itself a supreme law by which to organize the realization of that ideal. In so doing the legal profession as it was inherited was adapted in the service of this new constitutional law and the laws emanating from it.
The American legal profession is duty-bound to the principles and purposes upon which the law was founded. As the Constitution is the foundation of our legal system, the same principles and purposes upon which it was founded remain valid and applicable today, so long as this form of constitutional government prevails. Insofar as those principles are grounded upon the nature of human existence and its relationship to the world, they do not change with time in their fundamental and general form; only the circumstances of the expression and application of those principles change.
With changes in circumstances, we may develop new priorities and new values. But only to the extent that the individual or society consciously examines its values can it wisely choose a different value than it presently has. That is not to say that lack of conscious examination dooms one to static maintenance of the given. Rather, change is a principle of existence. It will come whether we choose it or not. If we fail to examine our values, we will acquire new values unwittingly, unconsciously, as we are driven in new directions dictated by changes in our circumstances and by unconsciously acquired values.
We may pay lip service to ideals and the values underlying them, but our real values will surface in our actions and purposive planning or lack thereof. If we see that we do not like where we are going, we must stop, reflect, and examine the values which have driven us in that direction, and we must re-evaluate.
We cannot examine the health of a profession without examining the services society expects from the profession and the services the profession actually provides. But if society is dynamic, perhaps that purpose should not be limited to what society has come to expect from the profession. Perhaps that purpose should extend to what a society with a vision of the future has the right to expect of the profession. And, to the degree that American society has lost sight of those founding ideals, does not the legal profession have a duty under the law to help to lead society back to those ideals? Or is the legal profession entitled to take social conditions as a given, to be manipulated to personal interests, in spite of the larger law we have been given and within which we exist?
Our founding fathers had a vision for our country upon which the Constitution was forged. Does this society as inheritors of that system have an obligation of obedience to those inherited structures and their foundation? Does American society have an obligation to the dream, the vision, of those founders of our government? Probably not.
Americans have no duty to return to the values which underlie our system of government. But natural law is judgmental of the violations of its principles; and our system of government is also unforgiving of the violations of its basic tenants which forms its vital structure. One cannot have both the inherited system and violate its tenants without negative consequences. Systems analysis says that if one makes any change in the system, the balance of the system must adjust until there is a correspondence of the parts in mutual purpose and effect. Design and purpose must relate or the system will fail. If our purposes for our system of government do not match the design of the system, we must either bring our purposes into conformity with the design, or change the design to conform to the new purposes.
We, as a society, have the right to change the rules, but as a society we should have the integrity to address what we believe to be deficiencies in our law and to correct them. If we ignore the legal structures and the underlying values we have inherited, we do so to our own detriment.
As lawyers and as persons vested with governmental power, I submit, we have a duty under the law, different from that of any citizen, of obedience to the law and its values. Anything else shortcircuits the legal processes designed to protect the people from tyranny; anything less retreats from the universal command of the law to localized, even personalized, standards which self-aggrandize by their position of authority that which was intended to be universal. To use authority which was intended to serve universal purposes for personal gain and private purposes disrupts the integrity of the system, and the system cannot long maintain itself if that practice continues.
Loss of traditional values upon which society is structured leads to contradiction within the system, to cross-purposes of elements of the system, and ultimately to collapse, unless the system adapts to the new values. Lincoln recognized this truth in his argument in the Great Debates that “A house divided against itself cannot stand.” And we find ourselves in this last decade of the twentieth century in a divided house.
The system of government under which we live was founded upon a natural law principle of the equality of all men, and the possibility of their becoming more than they presently are through natural law. But society, its governmental officials, and its legal profession have lost faith in those principles, have found that they are not expedient to private privilege, and have abandoned them for short-term security and comfort. That house cannot long stand.
But I do not preach doom. There is no reason for panic. When the injustice of our actions becomes too much for a large enough and powerful enough disaffected group to continue to bear, that group will find that there is less cost in resisting the system than it bore being subservient to the system. At that point those in our society who have political power will either choose to correct the injustice that bears down upon the dispossessed, or the dispossessed will rise up and the changes will be forced upon us. The key to such change is the willingness of enough people in the right location to suffer in resisting injustice, whether that suffering is by the losses of war, social unrest, or political challenge. Suffering for ideal purposes offers hope of a new becoming; anything less is destructive and leads to new injustices.
If we ignore the law and its principles, and if we refuse to take responsibility to bring the law into conformity with our principles, the system will disrupt, lose its internal integrity and collapse. For those reasons, a society that is responsible must open its eyes to see where it is going, examine its values, define its intentions for the future, and adapt its system to those ends.
olve intense labor unrest. It guaranteed to workers the right to organize and to bargain collectively. The National Lawyer’s Committee, a group of anti-New Deal corporate lawyers, declared the act unconstitutional. The corporate counsel for Weirton Steel Company, Earl F. Reed, went so far as to declare that once a lawyer advised his client that a statute was unconstitutional, the statute became a nullity, and was not binding upon the client!
Another group, The Liberty League, issued press releases concerning the unconstitutionality of the National Labor Relations Act while a test case was pending, although legal ethics proscribed such conduct. They ran radio spots offering free legal defense to anyone whose rights were violated by the act, although it was unethical to solicit legal business or to stir litigation with offers of free advice or assistance.
A formal complaint was filed with the American Bar Association concerning the conduct of the Liberty League lawyers. But the ethical prohibitions were intended to target the solo practitioner, those who might be a threat to Big Business; they were not intended to apply to the representatives of Big Business itself. The alleged violators were not on the fringe of the professional circle, but at its very center. To attack the center would threaten the whole, including those who sat in judgment. Therefore, the ethics committee concluded that although it had doubts about the propriety of the publications concerning pending litigation, the lawyers could not be shown to have clearly violated the canon. It further found that the offer for free legal assistance was in fact not an offer for free legal assistance, nor was it a solicitation of business; rather it was an offer to defend the constitutional rights of the indigent. The double standard was obvious.
Rights Divorced from Responsibility: Toward a Disintegration of Legal and Moral Authority
But there is danger in applying ideal principles to the concrete conditions of existence on a national level. Change demands its price. Through the adjustment someone must lose as another gains. Southern whites were not ready to give up their position of privilege. The Supreme Court’s radically concrete approach to the fundamental principle that “all men are created equal” rocked the nation then, and its reverberations are felt today.
In the following year the Court made application of the principle of equal access by blacks more concrete by requiring a lower court to develop a plan to integrate the public schools “on a racially nondiscriminatory basis with all deliberate speed.”
The other area of change within the law associated with the Warren Court was criminal rights. Again, in an effort to bring practice into conformity with principle, the Supreme Court began to consider what should be the consequence of the violation of even a criminal’s rights. Through a line of cases involving search and seizure, right to counsel, and right against self-incrimination, developed the notion of accountability of the system for any violation of those rights. Through cases such as Mapp v. Ohio, Gideon v. Wainwright, and Miranda v. Arizona, developed what came to be known as the exclusionary rule: the police should not be rewarded for their violation of criminal rights, and therefore illegally obtained evidence of guilt cannot be used by the state to obtain a conviction.
With such a schizophrenic view of the law which divorces public policy and public service from the black letter of the law, legal practice can be no more healthy. And the public has perceived from the abusive practice of some, that the lawyer’s function is to get the criminal off without regard to truth or justice. The public has then laid blame for such abuse at the door of the Supreme Court, the source of the rule, and not at the illegal activity of law enforcement officers, nor at the illegitimate applications of legal principles where the real fault lay. The adversarial system was never intended to be a system in which each side seeks to win at all costs. And while the prosecution has defense lawyers to hold the state accountable to fair process, there is no one to hold the defense bar accountable to the same fair process. Without a balance of individual rights with public interest, the social fabric is rended.
The framers recognized that the health of social relations is dependent upon respect for the rights of each of the members. But the health of a society is also dependent upon the respect by each individual for the rights of others. The law is more than its black letter; it includes the purposes and policies within and behind the law. “Within the bounds of the law” includes the bounds of public interest as well as respect for the rights of the individual client. The lawyer’s duty to client must always be checked by responsibility to the law, as an officer of the legal system.
Aurbach at pages 263, 264 notes what he calls “The Disintegration of Legal Authority:”
Ever since the beginning of the urban industrial era the bar had adopted a series of compromises to reconcile public responsibility with professional self-interest – and to conceal the distance between them. These compromises unraveled once the Cold War thawed and public attention shifted to neglected domestic concerns. The civil rights struggle, followed by the brief war against poverty, exposed standards of professional behavior which preserved the glaring inadequacy of legal services for citizens who were black, poor, or both. For a brief moment, until the war in Vietnam corroded faith in institutional legitimacy, democratic currents swirled through the profession. Then, as confidence waned in the fairness of legal and judicial processes, resulting in the eruption of protest and violence, demands for law and order pervaded professional and political life. Watergate marked the final demolition of credence in legal authority. It revealed that law and order was a mask for illicit repression; that those sworn to uphold the law had conspired to subvert it; that lawyers, including the chief law enforcement officers of the nation, were deeply implicated in lawlessness; that double standards of professional conduct protected the wealthy and powerful while destroying the promise and possibility of equal justice under law.
But Watergate was not the mark of final demolition of credence in legal authority. It was just another wave, one of many, beating upon the shores of respectability and credence, and incessantly eroding them. Lawyers’ roles in junk bond scandals, S & L failures, and ongoing governmental corruption, and continuing to the Clinton prosecution and defense are only further examples. The erosion continues.
The legal scholar of the early Twentieth Century, Karl Llewellyn, noted that “the best talent of the bar will always muster to keep Ins in and to man the barricade against the Outs.” But that is not merely an indictment against lawyers; rather, he noted, lawyers are the “mirror undistorted” of the society they “serve.”