Richard A.
Posner
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.
No comments:
Post a Comment