November 7, 2006
More on the Courts II Posted by John Steele Gordon at 12:45 PM EST Mr. Smoler writes, “Contingency fees, in combination with punitive damages, give lawyers incentives to take on poor clients, and that keep the courts open to people who could not otherwise seek redress.”
Indeed it does, but only if the defendant has deep pockets worth going after. The little guy who happens to have been wronged by a little guy is still out of luck, while the little guy with a case against a big guy, even if it’s a very weak case, has a chance of being recompensed out of all proportion to his injuries. That is exactly the definition of jackpot justice. If you’re going to get run over, make sure the car that does it is a brand new Mercedes, not a 1987 Chevy.
He writes, “But I do not object to encouraging civil litigation—civil litigation is how people are supposed to achieve justice—if there are effective deterrents to frivolous litigation.”
In all countries but this one, litigation is regarded as a last resort, not a first one. There are other far less expensive ways to achieve justice, such as arbitration, and they, not litigation, should be encouraged. Litigation first suits the interests of lawyers and no one else.
He writes, “Mr. Gordon claims that this is because judges are in the pockets of trial lawyers.” I did not so claim. I merely said that the nexus between tort lawyers and judges was deep and abiding and this made them predisposed to see things from the lawyers’ point of view. Many state judges are former partners in law firms and many will be partners again when their term on the bench is up. The relationship is far too cozy to be healthy for society as a whole. I’m not much of an admirer of the French justice system, but in that system lawyers go to law school and judges go to judge school. They are separate professions. That might not be a bad idea.
He writes, “The lawyers I know concede that these punishments for frivolous litigation are too rarely employed . . .” Perhaps part of the problem is that the judges get to decide what is frivolous almost entirely on their own. If there were statutory definitions it would help. Of course, frivolous litigation might be like pornography in Potter Stewart’s famous line that he can’t define it, but he knows it when he sees it.
Part of the problem here is that the law is a self-governing profession that has done far too little governing of self in recent decades. I, too, know any number of lawyers who deplore the excesses of the tort bar, and yet the American Bar Association and state bar associations do absolutely nothing about it. In the 1950s it was discovered that tiny amounts of fluoride in drinking water had a dramatic affect in reducing tooth decay. The American Dental Association launched a major campaign to have drinking water fluoridated where it was not already by nature. This was, obviously, directly contrary to the economic interests of dentists, who make a living filling cavities. Can anyone imagine the ABA acting in a similar manner? I can’t. Instead the ABA issues cant about the sacred nature of the law blah blah blah, all translating into: Maintain the status quo. It reminds me of Richard Whitney, president of the New York Stock Exchange in the early 1930s (and a resident of Sing-Sing in the late 1930s) proclaiming the stock exchange a “perfect institution” in need of no reform whatever. Yeah, right.
Mr. Smoler writes, “In terms of Mr. Gordon’s belief that only trial lawyers make campaign contributions to judges, thus judges rule badly, and that as a result we should stop electing judges, I am doubtful. Industries annoyed by trial judges can fund their opponents at reelection time and have recently done so. Should we not elect judges because foreigners disdain that vulgar populist practice?”
Again, I only said there was a pressure, induced by self-interest, to rule badly, not that there is overt corruption. As for electing judges, first it, again, fails the good-ideas-spread test. No other country in the world elects judges. Second, candidates for bureaucratic and judicial positions have nothing to campaign on. “I will apply the law fairly” is the campaign platform of all judicial candidates. In New York State we elect town clerks and receivers of taxes. What on earth for? They should report to elected officials, who are responsible for their conduct, and be part of the civil service.
I don’t vote for judges for another reason: I don’t know who they are. When I voted this morning at 7:30, I did not recognize a single name among the assorted judges on the ballot. I received not one piece of literature from any of them. In New York City, where, I presume, Mr. Smoler votes, being nominated by the Democratic Party is tantamount to election, and the Democratic candidates are chosen by the remnants of the old Democratic machine in a process that is rife with corruption and that produces barely qualified judges who know exactly to whom they owe their position on the bench. Many of them have been spectacularly corrupt, especially in surrogate’s court, where the patronage to be handed out to lawyers is rich pickings indeed.
It would be far better to have the mayor nominate judges and the city council confirm them. That would bring the light of day to a process that now takes places entirely behind closed doors. The election of judges is not democracy, it is pseudo-democracy.
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