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March 19, 2016

Judge Richard Posner takes notable shots at "the legal profession in all three of its major branches"

In the Winter 2016 issue of The Green Bag, US Circuit Judge Richard Posner has this notable new article titled "What Is Obviously Wrong With the Federal Judiciary, Yet Eminently Curable, Part I." Like so much of Judge Posner's work, the piece is a fascinating read, and these introductory passages should whet everyone's appetite for what is here and to follow:

In the present article, however, and its sequel (Part II, to be published in the next issue of this journal), I try to retreat some distance from controversy by confining my discussion to those features of the federal judicial process that are at once demonstrably unsound and readily corrigible without need for federal legislation or radical changes in legal doctrines or practices.  That is not to say that anything I criticize will be changed, however convincing my critique.  For law is wedded to the past as no other profession is.  You don’t hear doctors bragging about thirteenth-century medicine, but you hear lawyers bragging about the thirteenth-century Magna Carta (without even understanding it — they think it guaranteed the ancient liberties of the English, whereas in fact it guaranteed just the rights of barons, and in any event was soon annulled, later restored, and eventually demoted to the purely symbolic).

Another way to characterize the legal profession in all three of its major branches — the academy, the judiciary, and the bar — is that it is complacent, self-satisfied. Chief Justice Roberts in his annual reports likes to describe the American legal system as the envy of the world.  Nonsense.  The system has proved itself ineffectual in dealing with a host of problems, ranging from providing useful (as distinct from abstract theoretical) legal training at bearable cost to curbing crime and meting out rational punishment, providing representation for and protection of the vast number of Americans who are impecunious or commercially unsophisticated (so prey to sharpies), incorporating the insights of the social and natural sciences (with the notable exception of economics, however), curbing incompetent regulatory agencies such as the immigration and social security disability agencies, and limiting the role of partisan politics in the appointment of judges.  The system is also immensely costly (more than $400 billion a year), with its million lawyers, many overpaid, many deficient in training and experience, some of questionable ethics.

I focus on the three principal phases of the federal judicial process: trials, intermediate appeals, and decisions by the Supreme Court.  But much that I’ll be saying is applicable to state judiciaries as well, all of which (so far as I know) have a tripartite structure (trial court, intermediate appellate court, supreme court) similar to that of their federal counterpart.

I may have some comments in a later post about what Judge Posner has to say in this article about the judicary's failings at "curbing crime and meting out rational punishment."

March 19, 2016 at 09:43 AM | Permalink

Comments

Re “Nonsense” or BF²*

* Bovine Fornicating Feces

Kindly, NMIL

Posted by: Docile Jim Brady „ the Nemo Me ♠ Impune Lacessit ♂ in Oregon ‼ | Mar 19, 2016 3:13:40 PM

It just occurred to me after reading this post that Posner is the judicial version of Trump: loudmouthed, arrogant, and usually wrong. Impressive not because of anything interesting, novel, or creative he has to say but simply by the sheer torrid of the ink flood that flows from the font. I give Posner this--he has energy--even if it is only the energy to manage a bevy of ghostwriters, clerks, and other assorted hangers on. I guess it it really is true, it is not what you do with it but the size that counts. I've never seen a picture but I assume his hands are really really YUUUGE.

Posted by: Daniel | Mar 19, 2016 9:59:55 PM

During my years of experience, the system is also immensely costly (more than $400 billion a year), with its million lawyers, many overpaid, many deficient in training and experience, some of questionable ethics is the truest statement ever made.Many community residents do not realize the costs, fraud of their local judiciary system to the people. Where does all those fines disappear to, while the tax payer pays for the public employee and their benefits?

Posted by: LC in Texas | Mar 20, 2016 2:00:00 PM

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