Want Justice? Junk Judges!
It's time to rethink how our justice system works.
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by Dr. Richard W. Morris, J.D., Ph.D.
Editor's Note:
Scragged has been concerned about injustices in our justice system for a long time. Recently, an experienced expert submitted a series of ideas for reform.
While we do not necessarily agree with all the specifics of these ideas, there is no doubt that changes to our system are urgently needed. Our hope is that his observations and musings may help all of us to think through the problems more clearly, understand the underlying issues more fully, and be better informed come elections.
Recently a lawsuit between a landfill operator and an Arizona city,1 concerning yard waste contaminating the trash, resulted in ten years of litigation and likely over $7 million in attorneys’ fees and costs — with the city ultimately “winning” $280,000.
Not long ago, a man who had been drinking ferried away a broken dryer from an apartment house building in broad daylight, believing he had permission. He is now serving ten years in prison for “burglary.”
Courts today mean high costs, long delays, and outcomes nobody thinks make sense. Lawyers cannot give their clients anything close to accurate predictions about the expenses or results of litigation, whether for the plaintiff or defendant. It is the sport of kings and people know the judicial system is broken. But nobody has proposed real court system reforms that address the real problems.
Early on, America placed judges outside of the executive and legislative branches. The idea was they would be independent of political and financial pressures. It has not worked. The fact judges do not follow the law is a continuing problem. Indeed, the judiciary has morphed into unchecked power.
Lord Acton’s timeless edict describes today’s judicial system: Power tends to corrupt and absolute power corrupts absolutely.2 Those in power universally seek to increase the scope of their authority while reminding the little people how powerless they are against the system. The problem isn’t the occasional “bad” judge, but rather a system causing even “good” judges to make bad decisions.
There is a better way.
The current system spawned the problems of litigants feeling victimized by the courts, wrongful criminal convictions, professional allegiances that favor outcomes, cognitive dissonance trumping truth,3 arrogant judges not treating counsel, litigants or witnesses with courtesy, the appointment of honest but incompetent judges, congested calendars with associated delays, judges4 suing the state to keep their comfy pensions, a strained budget — and, of course, outright judicial corruption. The legal system fails not only the litigants but society at large.
The system is too cumbersome and expensive for the average person, especially when there is little expectation of fairness.
Like it or not, judges are political, whether appointed or elected. Far too many judges went to law school, got hired by some government agency (or large law firm whose clientele involved governments), and moved to the bench. To get appointed, they had to curry favor with the right people. If elected, they had to mount a publicity campaign in the judicial district to gain name recognition. The way to become a judge has nothing to do with competent and fair judging.
Four concrete reforms can improve the system a lot.
First, similar to the legislative and executive branches, we need term limits. Reform must first ensure that judging is not a permanent or career job. That eliminates costly pensions and perks while making the job more about public service and judges in touch with the community.
Second, create procedures so that each side selects one judicial officer (the judge), and those two judges select a presiding judge. In multi-party cases and other unusual situations, we can adjust this process, but the result is a three-judge panel.
Third, establish the basic qualification to serve as judge: any licensed lawyer in practice for, say, ten years, so the individuals have enough real-world experience.
Fourth, the judges would be paid by the state for criminal cases, and by the parties in civil cases. Private mediation and arbitration cases already use this method. The judges set their fees at the time of employment, and the fees might well be negotiable.
Because the judges would be selected by the parties, even in criminal cases, the lawyers would learn which judges were knowledgeable in the appropriate field of law, diligent, fair, polite and reasonably priced for the case. Even citizens could learn who the best judges were; think Yelp or Better Business Bureau ratings and eBay reviews.
These reforms would not require any changes in the criminal or civil laws or procedures. They would retain the influence of precedents on decisions, thus tending to assure predictability and equal treatment under the Rule of Law. In sum, the significant advantages are:
- A system that is cheaper to operate;
- Better court availability because there would be essentially one court for each case, not many cases crammed into one court, thereby allowing the judges to more deeply consider the law and the facts in the individual case;
- More civility among participants, with judges treating participants with greater respect because the participants would be paying the judges, and the judges could well find themselves as counsel or a party in the future with these same participants who are the judges; and
- Judges would know the real world because they work in it and are not cloistered in a protected environment.
Endnotes:
1. Reported in the Arizona Republic, February 12, 2020, page ZA07, “Surprise - Northwest Valley Republic."
2. Lord Acton. BrainyQuote.com, Xplore Inc, 2012.
http://www.brainyquote.com/quotes/quotes/l/lordacton109401.html?gclid=CNrwt9fOsrACFegbQgod1VynTA, accessed June 3, 2012.
3. Tavris, Carol, and Aronson, Elliot. Mistakes were made (but not by me)—Why We Justify Foolish Beliefs, Bad Decisions, and Hurtful Acts. New York: Harcourt (Harvest Book), 2007. ISBN 978-0-15-603390-9. See Chapter 5.
4. Retired judges Ken Fields, Jefferson Lankford, Philip Hall, and Jon Thompson, represented by retired judge Colin Campbell, as reported in the Arizona Republic, March 8, 2012, front page “Valley & State” section.
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What does Chinese history have to teach America that Joe Biden doesn't know?
Excellent options offered that introduce far superior incentives into a broken system.
Richard, May I assume that this would also be for the Federal courts also? Thanks, Bassboat
Good ideas here. And the author is right: the judges very often do not follow the law, they go with their gut. Or maybe their prejudices. I'm holding in my hand this very moment an example of a judicial decision that is just the judge's feeling about the case, showing no indication of considering one side's view, adopting only the opposing side's view.
Having a system where both sides get to select a decision-maker on a panel of three would go a long way toward better decisions and more trust of the system.
Nice thoughts but I know it's not going to happen. We have a legal system and we have a court system. What we do NOT have is a justice system. Current entrenchment will not allow a justice system.
Sounds too good to be true. Therefore you know it can only remain a pipe dream.
If the fees paid to the panel of judges were negotiated at the beginning of the trial, and only paid at the end, there would also be an incentive for the court to ensure a speedy trial, for the same reason that any piecework is done expeditiously. The judges, like all other people, need money, and the sooner the trial is finished, the sooner they get their money. Better yet, the faster courts render a judgement, the more money judges can make. Unlike the situation in which piecework by an artisan is purchased by a customer, however, in which the customer can only hope that the artisan (a person with expertise that he does not have) will do good work for the money, each side in a legal dispute (including criminal cases) is also paying for professional representation, so neither side is unarmed.
Might we also hope that these professionals would be paid in the same way that the judges were, rather than being paid by the hour? In my experience, when a person earns a living by being paid by the hour, he eventually becomes a clockwatcher. This can happen for a variety of reasons, but happens most often because of disillusionment caused by repeated clashes with an entrenched bureaucracy. The last place one wants a clockwatcher who will be paid the same regardless of outcome - and whose fees increase with the passing of time - is the lawyer who represents one in court. Of course, lawyers often charge fees contingent upon victory, but even in such cases, there are still legal fees which the lawyer charges, often for work done by paralegals but charged as lawyers fees (at a much higher hourly rate).
To continue the pipe dream, it might be a good idea to allow paralegals to practice independently of lawyers. Many legal tasks are routine, and in such cases, all it takes is somebody who knows how to navigate the system. Like a building contractor who encounters a problem while doing a renovation and recruits the services of an engineer or an architect to solve it, a paralegal would know when to recruit the services of a lawyer when he ran into problems.
Unfortunately, as noted by others here, none of this is likely to come to pass. Back in the 1980s (IIRC), the bar associations began to allow lawyers to advertise their services; shortly thereafter, the cost of some fairly-standard lawsuits, such as divorce, declined precipitously. This demonstrated not only that competition can lower costs to customers, but also that lawyers, regardless of one's opinion of the profession, are as human as anybody else, and are subject to the same incentives. Thus, when Adam Smith said that "People of the same trade seldom meet together, even for ... diversion, but the conversation ends in a conspiracy against the public ... or to raise prices," he was also referring to lawyers. Since lawyers are our rulers, they are loathe to cede control to we of the stupid stinking masses, so this will all remain a pipe dream ... at least, until the next civil war.
While I appreciate the author’s interest in reforming a very upset system, and I agree that most of the aspects set forth in the article are sound, there are some elements that still trouble me.
First, this can quickly become a full-employment prospect for lawyers, and I stand in opposition to any public service that places more lawyers in a position of authority over the citizenry. Being a judge does not require a law education any more than being a pro baseball player requires a degree in Baseball Studies. Any civic-minded, solid, logical soul is well capable of being a fine judge, so the requirement that one be a lawyer just doesn’t set right with me.
Remember that a lawyer’s stock-in-trade is getting one to not believe what he saw with his own two good eyes, to not believe what he heard with his own two good ears, and to deny what he knows good and well to be the truth.
Secondly, there should be a rather simple and straightforward process for removal of any judge that does not follow established law, and this involve more than just fellow judges. It should be a panel of citizens that make up the review board - and this review board should be a non-compensated position.
Thirdly, anyone serving in any of these roles should freely allow their finances to be examined -frequently- there are many influential organizations and wealthy persons who are more than willing to “purchase” the “right” decision - and there are more than enough persons willing to accept those incentives - I will submit that this is why today many people take public jobs. How else can one parlay a $50,000/yr job into a million-dollar lifestyle? Actually, this should apply to all public officials - just look at the Clintons for proof of this concept - or Richard Burr.
Fourthly, all of the ancillary public personnel that operate within the legal system, clerks, bailiffs, and other minions, should also be limited to serve for only a certain, short time. Like the judges, there should be no pension system, no organized labor unions, guilds, or other rent-seeking entities involved. This latter element has been the bane of public service and has adulterated the civil society nearly beyond recovery. Private corporations are disassembling defined-benefit pensions, realizing that in the world we find ourselves now that these perqs are simply unsustainable. Couple that with the fact that public service has no competition, no accountability (unless you get crosswise with the wrong person), and draws its revenue from, as they see it, the infinite resource called taxing the productive, and you see why we’re in the mess we find ourselves.
However, let me say in support of the gentleman’s article that conceptually it’s on the right track; there are just some adjustments needed, I believe, to make it truly something that will do what we need it to do.