The people's voice of reason
The people's voice of reason
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This will be my final article for the Alabama Gazette. As I compose it, my mind goes back to the hot August day 3 years ago when I first visited with Loretta Grant to propose this series of articles. I had grown up in Macon County, chosen law as a profession and watched tumultuous changes that had been wrought by law. I had deliberately chosen to stay close to a primary site of those changes. I had served as a circuit judge for 18 years. It had been a great learning experience. I felt burdened...
Public education was and is the great American dream. Nevertheless, since the 1950s, we have seen a broad-based movement toward the privatization of education. It is against this background that I tell my story. Stephen Covey who wrote The 7 Habits of Highly Effective People suggested that one of those habits is “keeping the main thing the main thing.” For public education, excellent, effective education is the main thing. I was born in rural Macon County and attended Shorter High School, a pub...
First, let’s focus on ignorance; then we can develop its relationship to evil. Ignorance certainly includes lack of knowledge, but ignorance is not merely absence of knowledge. Ignorance has a positive existence in human consciousness. It is incorrect beliefs more often than the mere absence of correct beliefs. The incorrect beliefs are strongly and passionately held and adamantly defended. Ignorance doesn’t just stand on a street corner and rant and rave; it talks on I-Phones, and moves in ema...
The cost of access to the legal system presents difficult, perplexing questions. The legal system is the last resort for dispute resolution. But access to the legal system costs money. Lawyers engage in the practice of law to make a living. They cannot provide their services free. The cost of a judiciary has caused the legislature to impose substantial charges in the form of various court costs. If the dispute involved involves only a small economic value, the cost of the legal solution may be...
Lawyer advertising turns most people off. That includes many members of the legal profession itself. Ads that include boxing gloves, horses, tigers and big trucks may be mildly amusing the first time you see them, but add little to the image of the legal profession and nothing to the dignity of law. Those of us who still regard law as a gift of God that allows humans to live peaceably together have difficulty seeing how the commercial advertising of legal services as a commodity can be...
It seems like every time I answer the phone these days it is a new opinion poll. The pollsters have even gotten into cell phones. I probably receive at least twelve or fifteen such calls each week. The calls are intrusive and excessive. The benefits arising from the overburden of surveys is highly questionable. The problems facing government these days are highly complex, to say the least. Most of us have our hands full simply dealing with the problems that confront us in daily life. So what is...
In September and October, I wrote articles describing the dangers that are inherent in corporate America’s ability to impose arbitration on the consuming public. I pointed out that the power of dispute resolution is vested in the courts and that when dispute resolution is privatized, the public is deprived of its right to know. On December 14, 2015, the United States Supreme Court decided the case of DIRECTV v. Imburgia, which deals with arbitration. DIRECTV had entered into a contract with all...
Faith is what we really and truly believe. It performs some remarkable functions that do not depend on its ties to religion. All of us believe that we exist in a physical environment on the face of the earth and that by observation we can come to understand that environment. We take for granted that the objects that surround us have names and that there are words that we can use to identify and describe them. Because we live in a social environment in with others who share those same words and...
I am currently teaching a course about faith in my church. I make the rather obvious point that faith is what we really believe. I’m afraid that sometimes we don’t really believe what we say we believe. We always act consistently with our faith. Jesus said, “Ye shall know them by their fruit.” But if our actions always reflect what we believe, then why don’t we always do what we know is the right thing to do? Plato thought if a person knows what is right, he or she will act consisten...
This column will focus on the privatization of dispute resolution in arbitration. Congress enacted The Federal Arbitration Act that required arbitration in all matters involving interstate commerce where there was an arbitration agreement many years ago. In the 1980's the United States Supreme Court upheld that legislation. Since that time there has been extensive privatization of a very large amount dispute resolution. With rare exception Court proceedings are public proceedings, but arbitratio...
Arbitration amounts to privatization of dispute resolution. Many of the States, including Alabama, had a stated policy specifically excluding the possibility of contracting away the right to go to court before federal legislation preempted state law. In 1925, Congress enacted the Federal Arbitration Act to require dispute resolution through arbitration if the parties to a contract agree to binding arbitration for dispute resolution. In the 1980s, the Supreme Court upheld that legislation and...
The concept of natural law was the prevailing philosophy of law throughout the formative period of modern nation states. The idea was that law occurs naturally. Nature, of course, includes human nature and the nature of human society. In general the created order of nature provides some solutions to problems that are better than others. Under natural law theory, the task of courts and legislative bodies is to find that law and declare it. At about the time the United States came into existence,...
Individualism in the legal profession, like other walks of life, thrives on legends and myths. The profession cherishes certain images. One of these images is the image of the rugged individual. Rugged Individualism is an important part of the American tradition. Pioneers were rugged individuals. The legal profession, an adversaria profession, fits right into this picture. Up until the Civil War the primary method of legal education was apprenticeship. Would-be lawyers “read” the law in the off...
For several months this column has focused on various causes of ineffectiveness of the legal system. Most recently we dealt with the extreme ineffectiveness and waste of time that is involved with grand juries in the State of Alabama. Before that we had focused on ineffectiveness that results from the economics of law practice. This column will continue the focus on reasons for ineffectiveness in the legal system. The judicial system itself has certain built in problems. Trial court judges are...
Sometime after William the Conqueror successfully invaded England in 1066, the new line of kings decided they needed help rounding up local criminals to prosecute. Accordingly, they organized groups of local citizens who could keep up with what was going on in the local area to report crimes to the king and his court whenever they visited town. The result was the origin of grand juries. The process evolved so that prosecutors began to utilize the grand jury to bring about indictments....
In recent columns I have concentrated on the economics of law practice. We have discussed the economic motives of plaintiff lawyers, the economic motives of defense lawyers, and the fact that the combination may impact adversely on the ability of the legal system to efficiently resolve disputes. This column will focus on liability insurance and will complete the current discussion of the economics of law practice. Liability insurance companies exist because of litigation, and have a major...
Last month we explored the economic motives of defense attorneys. This month we will discuss the economic motives of plaintiffs’ attorneys. Both defense attorneys and plaintiffs’ attorneys must operate their offices as a business, if they are to be successful. They are both motivated to earn a living practicing law. There the similarity ends. Defense lawyers serve corporate America and liability insurance companies, in large measure. They must practice law in a way that is pleasing to corporate...
This column continues the discussion of the economics of law practice. It is the fourth in a series. First, we described the strong ties between law and economics. We pointed out that because the practice of law is a business, the economic motivation of the lawyers handling the litigation can actually make the legal system less efficient for conflict resolution. Quick resolution of legal disputes does not promote the economic interest of the law business. Defense lawyers who charge hourly rates...
In last month’s column we pointed out that the economics of law practice can actually impede the ability of the legal system to efficiently resolve disputes. In future columns we will discuss in depth the economic motivations of both defense lawyers and plaintiff lawyers that contribute to the problem. Before launching into those specifics, however, we need to have a broad general understanding of the relationship of economics and law in the resolution of disputes. The relationship between law a...
In our preceding article we introduced the current series dealing with law, economics and the economics of law practice. Several upcoming articles will deal with the economics of law practice. In order to understand some of the problems associated with the economics of law practice it will be necessary to explain and understand certain dynamics about the nature of law. In 1913, an East European legal philosopher named Eugen Ehrlich, in his book Fundamental Principles of the Sociology of Law,...
Everyone is probably aware of the strong ties that exist between law and economics. Both law and economics are social systems. Every member of society necessarily participates in both systems. It might be more accurate to say that both law and economics are sub-systems within the total framework of society. The two systems - law and economics – are supported by differing motivational forces, and to some extent, exist independently of each other as systems. Human motivation is always complex. A...
Several of my recent columns have been devoted to concerns about the impact of cultural differences on law. Those columns have recognized that the legal system, as it existed, particularly in the South, was a factor in our creating different cultural systems based on race. Unfortunately, the legal system itself discouraged black participation. The exclusion of blacks from the system and mistreatment of blacks by the system resulted in lack of support for the legal system in the black culture....
In the last several articles I have dealt with issues of law and race from a different and unique view point. In the background of all of the articles is consideration of cultural systems. I have noted that the 400 years of slavery and segregation that existed in the United States produced a unique black culture. One aspect of that culture has been the strained relationship between the black culture and the legal system. The legal system obviously originated in Europe-not Africa....
In the past several columns we have discussed problems with the criminal justice system and incarceration. Our exploration of problems concerning the corrections system concluded with a discussion of the fact that 400 years of slavery and segregation created a cultural system that understandably put distance between itself and the legal system. We pointed out that a self-help system evolved and that street justice in a self-help cultural system may be one of the causes for disproportionate...
In last month’s column we discussed how cultural differences impact the criminal justice system. Four hundred years of slavery and segregation created a cultural system in our black communities. That system did not disappear just because the legal system was finally corrected to treat all persons equally. The cultural system that evolved appears to still have notable influence in many areas. As we pointed out, its “self-help” enforcement system is a factor in the higher rate of incar...