How Just Is Our Justice System

follows does not purport to be a carefully organized dissertation on this fascinating and complex topic but rather a somewhat quick romp to highlight a few ideas that I hope you find interesting and informative. I write from a perspective of 60 years at Bar with experience as private practitioner, law professor, and for past 30-plus years, as Chief Mediator (now Emeritus) of U.S. Court of Appeals, 2nd Circuit and with insights gained from school of legal realists and general semantics. Let me start with a quotation by Calpurnia, a character in Harper Lee's novel To Kill a Mockingbird: First thing you learn when you're in a lawin' family is that there ain't any definite answers to anything. Some American Perceptions and a View From Abroad Far more than any other country, law, the secular religion of America and lawyers, exerts a pervasive influence in shaping American society and institutions. Yet surprisingly, even highly educated nonlawyers are frequently only dimly aware of how our law works and impact it has on our lives, much less how it compares and contrasts with other systems of law throughout world. It is an overwhelming article of faith of American Bench, Bar, and most Americans that ours is best system of justice in world. To generate healthy skepticism (but not unwarranted cynicism), I pose two somewhat obvious questions to them: What do you mean? and do you know? Is it because our legal professionals have carefully and extensively studied theory and practice of other systems and determined ours is superior? Is it because so many facets of our system have been so widely emulated abroad that we can assume that imitation is sincerest form of flattery? Regrettably, somber reality is that neither of aforementioned is true. Our lawyers and judges are generally woefully uninformed about other systems of law in world than our own. Very few recognize that our adversarial system, known as Common Law, inherited from England when we were a British colony, is practiced today by only a few nations such as United Kingdom, Canada, Australia, and others having historical connections to Great Britain. Although some of our law schools teach courses in Comparative Law, this is usually an elective chosen by few students. With our world becoming a Global Village, hopefully many more will do so. Significantly, Civil Law, which derives from laws of ancient Rome, is by far dominant legal system in most of Europe and many countries in world. It differs markedly from our Common Law, in that Civil Law system periodically reviews its laws and legislatively modifies or updates them. By contrast, law of New World, our Common Law, ironically appears to venerate more its historical customs and traditions, as it relies almost exclusively on precedent of prior decided cases to determine current law. This doctrine of Stare Decisis rests on principle that law by which people are governed should be fixed, definite, and known, and that until changed by authoritative court ruling or legislation, is controlling. While this doctrine in theory seems unassailable, in practice, when too rigidly applied, it can inhibit timely constructive change and innovation in our law as needed. The late Yale law professor Fred Rode11 somewhat cynically likened our law to killy-loo bird, which flies backward and cares mightily about where it has been but cares little for where it is going. Other legal critics have called retrospective orientation of our law a form of ancestor worship. View From Friends and Foreign Allies To understand our own system better, it often helps to see ourselves as others see us, particularly those we regard as kindly disposed to us like our friends and allies from Europe and other civil law countries. For years our overseas friends have been amazed at: * How many lawyers our country has (vastly more per capita than any other country in world). …

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