JUDGE EDITH H. JONES Tells Harvard Law School: "American Legal System Is Corrupt Beyond Recognition"

Judge Edith H. Jones of the U.S. Court of Appeals for the Fifth Circuit talks to members of Harvard Law School's Fed-eralist Society. Jones said that the question of what is mor-ally right is routinely sacrificed to what is politically expedient.

The American legal system has been corrupted almost beyond recognition, Judge Edith Jones of the U.S. Court of Appeals for the Fifth Circuit, told the Federalist Society of Harvard Law School on February 28.

She said that the question of what is morally right is routinely sacrificed to what is politically expedient. The change has come because legal philosophy has descended to nihilism. "The integrity of law, its religious roots, its transcendent quality are disappearing. I saw the movie 'Chicago' with Richard Gere the other day. That's the way the public thinks about lawyers," she told the students.

"The first 100 years of American lawyers were trained on Blackstone, who wrote that: 'The law of nature . dictated by God himself . is binding . in all counties and at all times; no human laws are of any validity if contrary to this; and such of them as are valid derive all force and all their authority . from this original.' The Framers created a government of limited power with this understanding of the rule of law - that it was dependent on transcendent religious obligation," said Jones.

She said that the business about all of the Founding Fathers being deists is "just wrong," or "way overblown." She says they believed in "faith and reason," and this did not lead to intolerance. "This is not a prescription for intolerance or narrow sectarianism," she continued, "for unalienable rights were given by God to all our fellow citizens. Having lost sight of the moral and religious foundations of the rule of law, we are vulnerable to the destruction of our freedom, our equality before the law and our self-respect. It is my fervent hope that this new century will experience a revival of the original understanding of the rule of law and its roots.

"The answer is a recovery of moral principle, the sine qua non of an orderly society. Post 9/11, many events have been clarified. It is hard to remain a moral relativist when your own people are being killed."

According to the judge, the first contemporary threat to the rule of law comes from within the legal system itself.

Alexis de Tocqueville, author of Democracy in America and one of the first writers to observe the United States from the outside looking-in, "described lawyers as a natural aristocracy in America," Jones told the students. "The intellectual basis of their profession and the study of law based on venerable precedents bred in them habits of order and a taste for formalities and predictability." As Tocqueville saw it, "These qualities enabled attorneys to stand apart from the passions of the majority.

Lawyers were respected by the citizens and able to guide them and moderate the public's whims. Lawyers were essential to tempering the potential tyranny of the majority. "Some lawyers may still perceive our profession in this flattering light, but to judge from polls and the tenor of lawyer jokes, I doubt the public shares Tocqueville's view anymore, and it is hard for us to do so.

"The legal aristocracy have shed their professional independence for the temptations and materialism associated with becoming businessmen. Because law has become a self-avowed business, pressure mounts to give clients the advice they want to hear, to pander to the clients' goal through deft manipulation of the law. While the business mentality produces certain benefits, like occasional competition to charge clients lower fees, other adverse effects include advertising and shameless self-promotion. The legal system has also been wounded by lawyers who themselves no longer respect the rule of law,"

The judge quoted Kenneth Starr as saying, "It is decidedly unchristian to win at any cost," and added that most lawyers agree with him. However, "An increasingly visible and vocal number apparently believe that the strategic use of anger and incivility will achieve their aims. Others seem uninhibited about making misstatements to the court or their opponents or destroying or falsifying evidence," she claimed. "When lawyers cannot be trusted to observe the fair processes essential to maintaining the rule of law, how can we expect the public to respect the process?"

Another pernicious development within the legal system is the misuse of lawsuits, according to her. "We see lawsuits wielded as weapons of revenge," she says. "Lawsuits are brought that ultimately line the pockets of lawyers rather than their clients. . The lawsuit is not the best way to achieve social justice, and to think it is, is a seriously flawed hypothesis. There are better ways to achieve social goals than by going into court."

Jones said that employment litigation is a particularly fertile field for this kind of abuse. "Seldom are employment discrimination suits in our court supported by direct evidence of race or sex-based animosity. Instead, the courts are asked to revisit petty interoffice disputes and to infer invidious motives from trivial comments or work-performance criticism. Recrimination, second-guessing and suspicion plague the workplace when tenuous discrimination suits are filed . creating an atmosphere in which many corporate defendants are forced into costly settlements because they simply cannot afford to vindicate their positions. "While the historical purpose of the common law was to compensate for individual injuries, this new litigation instead purports to achieve redistributive social justice.

Scratch the surface of the attorneys' self-serving press releases, however, and one finds how enormously profitable social redistribution is for those lawyers who call themselves 'agents of change.'"Jones wonders, "What social goal is achieved by transferring millions of dollars to the lawyers, while their clients obtain coupons or token rebates."

The judge quoted George Washington who asked in his Farewell Address, "Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths in courts of justice?" Similarly, asked Jones, how can a system founded on law survive if the administrators of the law daily display their contempt for it?

"Lawyers' private morality has definite public consequences," she said. "Their misbehavior feeds on itself, encouraging disrespect and debasement of the rule of law as the public become encouraged to press their own advantage in a system they perceive as manipulatable." The second threat to the rule of law comes from government, which is encumbered with agencies that have made the law so complicated that it is difficult to decipher and often contradicts itself.

"Agencies have an inherent tendency to expand their mandate," says Jones. "At the same time, their decision-making often becomes parochial and short-sighted. They may be captured by the entities that are ostensibly being regulated, or they may pursue agency self-interest at the expense of the public welfare. Citizens left at the mercy of selective and unpredictable agency action have little recourse."

Jones recommends three books by Philip Howard: The Death of Common Sense, The Collapse of the Common Good and The Lost Art of Drawing the Line, which further delineate this problem. The third and most comprehensive threat to the rule of law arises from contemporary legal philosophy.

"Throughout my professional life, American legal education has been ruled by theories like positivism, the residue of legal realism, critical legal studies, post-modernism and other philosophical fashions," said Jones. "Each of these theories has a lot to say about the 'is' of law, but none of them addresses the 'ought,' the moral foundation or direction of law." Jones quoted Roger C. Cramton, a law professor at Cornell University, who wrote in the 1970s that "the ordinary religion of the law school classroom" is "a moral relativism tending toward nihilism, a pragmatism tending toward an amoral instrumentalism, a realism tending toward cynicism, an individualism tending toward atomism, and a faith in reason and democratic processes tending toward mere credulity and idolatry."

The judge said ruefully, "There has been no Great Awakening in the law school classroom since those words were written." She maintained that now it is even worse because faith and democratic processes are breaking down."The problem with legal philosophy today is that it reflects all too well the broader post-Enlightenment problem of philosophy," Jones said. She quoted Ernest Fortin, who wrote in Crisis magazine: "The whole of modern thought . has been a series of heroic attempts to reconstruct a world of human meaning and value on the basis of our purely mechanistic understanding of the universe."

Jones said that all of these threats to the rule of law have a common thread running through them, and she quoted Professor Harold Berman to identify it: "The traditional Western beliefs in the structural integrity of law, its ongoingness, its religious roots, its transcendent qualities, are disappearing not only from the minds of law teachers and law students but also from the consciousness of the vast majority of citizens, the people as a whole; and more than that, they are disappearing from the law itself. The law itself is becoming more fragmented, more subjective, geared more to expediency and less to morality. . The historical soil of the Western legal tradition is being washed away . and the tradition itself is threatened with collapse."

Judge Jones concluded with another thought from George Washington: "Of all the dispositions and habits which lead to prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism who should labor to subvert these great pillars of human happiness - these firmest props of the duties of men and citizens."

Upon taking questions from students, Judge Jones recommended Michael Novak's book, On Two Wings: Humble Faith and Common Sense. "Natural law is not a prescriptive way to solve problems," Jones said. "It is a way to look at life starting with the Ten Commandments."

Natural law provides "a framework for government that permits human freedom," Jones said. "If you take that away, what are you left with? Bodily senses? The will of the majority? The communist view? What is it - 'from each according to his ability, to each according to his need?' I don't even remember it, thank the Lord," she said to the amusement of the students. "I am an unabashed patriot - I think the United States is the healthiest society in the world at this point in time," Jones said, although she did concede that there were other ways to accommodate the rule of law, such as constitutional monarchy.

"Our legal system is way out of kilter," she said. "The tort litigating system is wreaking havoc. Look at any trials that have been conducted on TV. These lawyers are willing to say anything."

Judge Edith Jones has been mentioned as a potential nominee to the Supreme Court in the Bush administration, but does not relish the idea. "Have you looked at what people have to go through who are nominated for federal appointments? They have to answer questions like, 'Did you pay your nanny taxes?' 'Is your yard man illegal?' "In those circumstances, who is going to go out to be a federal judge?"

Judge Edith H. Jones has a B.A. from Cornell University and a J.D. from the University of Texas School of Law. She was appointed to the Fifth Circuit by President Ronald Reagan in 1985. Her office is in the U.S. Courthouse in Houston.

The Federalist Society was founded in 1982 when a group of law students from Harvard, Stanford, the University of Chicago and Yale organized a symposium on federalism at Yale Law School. These students were unhappy with the academic climate on their campuses for some of the reasons outlined by Judge Jones. The Federalist Society was created to be a forum for a wider range of legal viewpoints than they were hearing in the course of their studies.

From the four schools mentioned above, the Society has grown to include over 150 law school chapters. The Harvard chapter, with over 250 members, is one of the nation's largest and most active. They seek to contribute to civilized dialogue at the Law School by providing a libertarian and conservative voice on campus and by sponsoring speeches and debates on a wide range of legal and policy issues.

The Federalist Society consists of libertarians and conservatives interested in the current state of the legal profession. It is founded on three principles: 1) the state exists to preserve freedom, 2) the separation of governmental powers is central to our Constitution and 3) it is emphatically the province and duty of the judiciary to state what the law is, not what it should be.

Oh, please, you can't possibly be serious. Do you really think that Judge Jones could go before Congress and say "that was not my opinion because I didn't write it, I just joined in it"???

Judge Jones was on the panel that issued the Burdine opinion. She did not dissent or (as I recall) concur. She is as responsible for the opinion as is Judge Barksdale. It is every bit her opinion, just as the Kelo decision is the opinion of every justice in the majority even those who did not write the opinion.

It will hang her before Congress.

You should try to check your facts before you insult people for no reason.

At least the 5th Circuit had the good sense to disavow this awful opinion.You do agree that the panel decision in Burdine was wrong and was properly rejected by the enbanc court, don't you?

I understand what your saying about the credit problem, but don't see how raising taxes and redistributing wealth and creating entitlement programs helps this.

The problem that was faced in the great depression was a structural problem. Because of the collapse of credit and the impact on the economy, there was a sharp decline in jobs. Because of the sharp decline in jobs, there was a sharp decline in private demand. Because of the drop in private demand there were further declines in jobs.

This is a classic monetary depression that Milton Friedman wrote about so well.

When, because of a collapse of credit, there is no private demand, you cannot stimulate the economy by creating more credit because no one wants it to invest to create jobs (Japan has been going through that problem over the last several years, and it is only the very strong hand of government that has prevented a monetary crisis turning into massive unemployment).

The only way to get money into the hands of private parties to increase demand is to print it and put it in the hands of those who you wish to start spending. That is exactly what the New Deal did. But, because Roosevelt recognized the danger of just handing out money, he created jobs programs and made people do some sort of work to earn their handouts.

The subsequent fate of such programs as the TVA or the Bonneville Power administration, and such losing money because they sell power at below market rates has nothing to do with the New Deal. It has to do with Congress not being able to bite the bullet and make these operations charge market rates (their industrial consumers such as the aluminum and aircraft industries very much enjoy paying lower than fair market value for electricity.)

That you cannot cut a government program once it has been created is the fault of our current politicians, and not the fault of the creators of the program.

I think they blew it when they raised taxes and reacted 'liberally', so to speak, to the GD.

Two things. We were not there, and I don't think you realize how much wealth was concentrated in how few hands at the time. One does not have to be anti-capitalist to recognize that Vanderbilt did not earn all of his money by either the sweat of his own brow or the product of his own invetion. Nor did most of the other "grand" capitalists.

let me ask this. If you believe in the power of unbridled capitalism, do you also believe in the power of individuals to join together to fix the price of their labor? Or do your free market ideas just work one way and not the other?

Since wealth is created, going after inequality is mostly a moot point. The wealthiest countries are the most unequal in dollar amount, but the poorest countries are the most unequal in terms of what the richest adn poorest consume. Example, in North Korea the corrupt and thieving government class live like 'kings' but no better than our middle class, while the poor starve, but our billionaries are more 'unequal' then our middle class. If this makes sense.
More on this:
http://www.neoperspectives.com/foundingoftheunitedstates.htm
http://www.neoperspectives.com/internationalpoverty.htm
(graph on this link)

And I don't believe your characterization of the 'capitalists' is correct. I read a paper the other day on how standard oil lowered prices drastically for nearly all of its consumers, yet in history books today (at least in our public skrewls) is demaguaged as a robber baron entity.

Yes, I agree that a group can band together and fix their price of labor. BUT I think an employer can have every right to fire the lot of them (which they can't do under current labor laws). In fact, it would be a foolish employer who ever let a union take over his/her factory.

http://www.neoperspectives.com/unions.htm

By and large Unions are a scourge on society today and bankrupt company after company.

btw, have you seen this chart:
The only time in America history when there was a net immigration away from the country was during the great depression (I contend due to the socialistic policies of the Roosevelt Admin and the hoover admin):
http://teacher.scholastic.com/activities/immigration/pdfs/singleline.pdf
(this is more FYI, it doesn't really have much bearing on our discussion either way)

A tax cut certainly provides no relief to the 30% who were unemployed.
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Disagree. It puts more money in peoples hands, which is what you said was needed. Even if the tax cuts benefited only the 'rich', these are the people that own small businesses and factories etc.. and so would buy more luxery goods, expand employment and thus grow their businesses, create demand in teh economy, and lower the number of unemployed. It seems better to put the money in the hands of the people then to give it to those doing useless tasks, an action you seem to be defending.

Good morning.
"I am, in fact, very concerned about conservatives who believe that large unaccountable private institutions are somehow less of a threat to individual liberties than are public institutions, this after Enron."

Private institutions, large or small, do not coerce you into interacting with them. Public institutions usually require, under threat of some form of penalty, that we interact with them.

Michael Frazier

Private institutions, large or small, do not coerce you into interacting with them.

Good grief, where do you live - on a mountain top in Idaho?

I suppose my interaction with PEPCO (Potomac Electric Power Compay) is entirely voluntary and any time I choose I can decide to go without electricity. Likewise I can dispense with the services of Verizon. Can I dispense with interacting with the bill collector trying to collect a bill for a service I never purchased?

I suppose the coal miners in West Virginia who protested mining conditions did have the right to pack up and leave and seek employment elsewhere - as soon as they settled their debts with the company store and the company housing authority, etc.

Your let them eat cake attitude is very sweet.

I don't think you have any clue of the magnitude of the monetary crisis that then existed. The problem was not trying to kick in an additional 5% of circulating funds to clear an inventory of few unsold Louis Vuitton handbags or a yacht or two. The problem was to try to make up for an enormous contraction in credit which resulted in the collapse in the market for yachts, houses, etc. I don't have the exact numbers in front of me, but what we would call M3 today contracted by well over 50%, which represented a large multiple on the dollar bills in circulation. The sudden creation of enormous excess inventories of these things meant a several decade backlog to clear the overhang.

Even Milton Friedman will tell you that the consequences of dramatic deflation are, well, dramatic, and the only solution is to print money and hand it out to those who will spend it.

I also think you miss the entire point of the various conservative economic schools, such as Ludwig von Mises. Their prescription is never to have expanded credit as much as has had happened in the first place so that you don't create the bubble that then, inevitably they would tell you, collapsed. They have little to tell you about what to do after a bubble collapse, except perhaps, as you advocate, do nothing.

Likeminded conservatives of the 30's, however, took the prescription to do nothing to their political graves. The voting public would not stand for it.

Also a tax cut on the rich would only very partially make up for the collapse in their own earning capability brought on by the collapse in demand for the prodcuts of their factories because of the high unemployment among the segments of the population that would normally have purchased those goods.

Good evening.
"Good grief, where do you live - on a mountain top in Idaho?"

No, a hillside in northern California.

I've yet to see a legitimate business in the private sector incarcerate anyone for refusing to do business with them.

The company store slavery argument was valid at one time but not in this time, in this century.

You can, in fact choose to do without the power company. There are several alternatives and none of them are forced on the consumer. You can go with some other phone service whenever you decide to without worrying about their agents fining you into penury, taking your property or burning your house.

As to that bill collector, Not much I can say about that. I've been there and fought the long fight to get it straightened out. Things like that happen but they are aberrations and you generally have recourse. That is often not the case in dealings with the government.

Michael Frazier

Your let them eat cake attitude is very sweet.
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? So far we agree on the solution, but disagree on how to achieve the solution. My solution is to lower taxes to solve the credit problem, yours is to spend gov money on earthworks and entitlements.

"Even Milton Friedman will tell you that the consequences of dramatic deflation are, well, dramatic, and the only solution is to print money and hand it out to those who will spend it."

I can't believe Milton Friedman would support gov subsidies to interest groups over tax cuts to all.

"Likeminded conservatives of the 30's, however, took the prescription to do nothing to their political graves. The voting public would not stand for it."

No, as documented, they voted for massive and unprecedented tax hikes.

Your post clearly implied that Judge Jones was the AUTHOR of the Burdine opinion. ("Judge Jones' opinion in Burdine"; The 5th Circuit sitting en banc reversed her").

Please tell me what opinions Judge Jones has written that would cause you to say that "she believes that anything the government does in criminal case is OK, even perjury, false evidence, framing an innocent person" and that "She just doesn't get the 'innocent until proven guilty'or 'due process' thing." I've read every opinion she's written, and I defy you to name one in which she approved of the framing of an innocent person. I think you just don't like her.

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