A proposal from my Cato Institute colleague Clark Neily: small claims courts for low-level police misconduct. Ilya Somin praises it as among the few constitutional law ideas “that are simultaneously good, original, and potentially useful in the real world.” [Volokh Conspiracy] More: Howard Wasserman (similar ideas), Scott Greenfield and some other thoughts on small claims.
More, this time from Michigan, on how guardianship in the wrong hands can turn into a “completely legal, utterly grotesque system for undermining the rights of the elderly,” cutting out kids and legitimate heirs. Last fall the New Yorker ran a chilling investigative piece by Rachel Aviv exposing guardianship abuses in Nevada. [Gretchen Rachel Hammond, Tablet; coverage last October of the Rachel Aziz piece]
“That weekend, she called her parents several times. She also called two hospitals to see if they had been in an accident. She called their landlord, too, and he agreed to visit the house. He reported that there were no signs of them. She told her husband, ‘I think someone kidnapped my parents.'”
Of all the scams and outrages in the legal system that I’ve written about, few get me as angry as does guardianship abuse. Rachel Aviv’s New Yorker report from Nevada shines a light into some dark places of elder law and of the human heart. Earlier here and here (2009 Brooklyn), here (Connecticut), here (North Carolina), here, etc. (Bronx).
Last night, before a convention center filled with his followers in San Diego, presidential candidate Donald Trump chose to launch a lengthy diatribe against the local federal judge hearing the case against his Trump University. Trump said Judge Gonzalo Curiel, of the Southern District of California, should recuse himself, but cited no reasons for why other than that he had been appointed by Obama and had repeatedly ruled against Trump’s lawyers.
In his rambling remarks, Trump also referred to Judge Curiel as “Mexican”: the jurist, previously the chief federal prosecutor for drug cases in southern California, was born in Indiana. Stoking by repetition, as his crowd of thousands booed, Trump called the federal judge “a hater of Donald Trump, a hater. He’s a hater,” and said he should be placed under investigation by the court system. I wonder whether anyone will be shocked if the judge requests personal protection for himself and his family as the trial proceeds.
Obama’s 2010 State of the Union remarks railing at the Justices of the Supreme Court in their presence regarding Citizens United were bad. This is far worse: the case is still in progress, Trump is a party, and the attack is on a single judge who will now find his task of ensuring a fair trial complicated. Trump, who speaks regularly around the country, chose to unleash the diatribe in the locality where the judge and others who will participate in the case, such as jurors, work and live. [More: David Post]
Law professor Josh Blackman, active in the Federalist Society, writes as follows:
His jaw-dropping comments reflect an utter ignorance about what judges do, and amounts to a dangerous attacks on the fairness of our court system. Whatever negligible good will he built up by nominating a list of solid potential nominees to the Supreme Court was squandered with this scurrilous attack. Those who defended his selection process should immediately rebuke him for these baseless insults….
I am speechless. Absolutely, and totally speechless. I was highly critical of President Obama’s attacks on the Court. I cringe to think what will happen when the Supreme Court rules against [Trump].
This might be a good time to catch up, if you haven’t, on the legal saga of Trump University, which I’ve been following for more than a year (when I first looked into it as part of my research into the work of New York Attorney General Eric Schneiderman). Some coverage: Jillian Kay Melchior/NRO last July, Emma Brown/Washington Post last September, Ian Tuttle/NRO in February, Roger Parloff/Fortune, Joe Mullin and Jonathan Kaminsky/ArsTechnica. In the San Diego proceedings, one law firm ranged against Trump is Robbins Geller, descendant of convicted class-actioneer Bill Lerach’s Lerach Coughlin, and the subject of some less than flattering coverage in these columns over the years.
Consider, finally, Gingrich’s much-discussed desire to weaken the federal courts. The view that the courts have much more power than they used to have, and that this change is mostly unfortunate, is a respectable one. The view that Congress and the president should respond on occasion by limiting the courts’ jurisdiction, as Gingrich wants, ought to be respectable, too.
But Gingrich cannot, of course, stop there. He also has to call for Congress to summon judges to explain their decisions, which would be both pointless (they already write opinions), and wrong (congressmen have no constitutional power to hector judges). And he wants to abolish liberal circuit courts and replace them with conservative ones, which is an obvious attempt to ignore the Constitution’s grant of life tenure to judges.
Anyone who proposes that judicial power should be checked arouses the suspicion that what he really wants is freedom from the constraints of the law. Gingrich’s solution to this problem is to confirm the charge instantaneously.
George Will blasts candidate Newt Gingrich’s fevered plans for a constitutional showdown between legislature and judiciary [WaPo]. Roger Pilon has more at Cato here and here. Andrew McCarthy and Ted Frank urge us to consider that Gingrich’s overall challenge to judicial activism may, like the curate’s egg, be good in parts.
The Yale law professor, a longtime advocate of probate-court reform, says the Nutmeg State’s recent legislation falls well short of what’s needed; he’s particularly critical of lawmakers’ decision to let probate judges go on carrying on their own law practices on the side. [Hartford Courant via Estate of Denial]
Overlawyered is a natural read for mediators such as myself. The high cost of litigation. Expensive. Procedurally encrusted and, with electronic discovery, a 21st century e-Bleak House. Endless legal process for those with the funds to foolishly waste on pre-trial dispositive motions; appeals; returns to the trial court; verdicts; motions for new trials and judgments notwithstanding the verdict, further appeals. A process that is brutal on the people and an enjoyable though intense board game to the lawyers who participate. Lawyers for whom winning everything because that’s our job. Win. Not write a brilliant motion. Not make a cogent closing argument. Not buy our witnesses $150,000 in new clothes. All that might be necessary. But without the win, pointless.
Having said that — and having personally experienced the case that went to trial only after it was “old enough to drive” (the Stringfellow Insurance Coverage Litigation) — what I am about to say may surprise Overlawyered’s readers.
The rule of law (and the human resources necessary to keep its machinery running) accounts for a full 57% of the wealth of developed nations like ours.
This statistic comes not from the ABA, some self-serving trial lawyers association (i.e., the Plaintiffs’ bar) or a left-leaning academic at an Ivy League University. No. This comes from the World Bank!
Human capital and the value of civil institutions – as measured by the rule of law – constitute not just a part of the economic well-being of nations, but the largest share of wealth in virtually all countries.
The statistics compiled by the World Bank should surprise you as much as they did me:
Once one takes into account all of the world’s natural resources and produced capital, 80% of the wealth of rich countries and 60% of the wealth of poor countries is of this intangible type. [According to] the World Bank[‘s] economists . . . . the rule of law explains 57 percent of countries’ intangible capital. Education accounts for 36 percent.
We need only return to the first principles we were taught in law school — certainty of contracts, for instance — for the following figure to be less than completely astonishing:
the natural wealth in rich countries like the U.S. is a tiny proportion of their overall wealth—typically 1 percent to 3 percent.
Why? Because we
derive more value from what [we] have. Cropland, pastures and forests are more valuable in rich countries because they can be combined with other capital like machinery and strong property rights to produce more value.
And the role of the rule of law here? Predictability — trust in civic, political and financial institutions (cf. the stock market when it’s working productively) — freedom of contract, the internalization of legal precedent for managing disputes that are never litigated, and many more efficiencies made possible by the mere presence of a working justice system in America.
I write this as we experience an unprecedented Presidential campaign, the result of which is uncertain and, to many people, frightening.
All I can say to those filled with fear of a McCain or of Obama presidency, is to remember this — America’s political institutions and the people who elect representatives to serve them are more powerful than any single man (or woman). Whoever is elected, we retain the power to eject him if he over-reaches. So let’s get past this ENDLESS campaign and laissez le bon temps roulez!