And Injustice for All: Our Legal System
Editor's Column from LCV Spring 2004

And Injustice for All: Our Legal System

Because human nature has the dual capacity for both infinite good and infinite evil, human institutions, such as laws and the courts, were of necessity created to navigate and govern the darker side of ourselves. No one ever had to tell a rabbit or a deer not to blaspheme or kill. Indeed, Mark Twain, in his late and less-humorous-than-cynical novel The Mysterious Stranger, bemusedly noted through the character Satan that contrary to the conventional description of atrocities as “inhuman” they are in fact precisely “human,” as no animal wages war or murders as does our own species.

Thus one can easily extrapolate the state of human society at the time of Moses’ ascent into the mountains for guidance and wisdom and most importantly … law. There would have been scant reason for the two clay tablets, nor would an entire system of western Judeo-Christian religions have evolved from them if human behavior was not crying out for governance, and not temporal authority either, but a divine one: to bridle rampant blasphemy, murder, theft, adultery, and even a lack of respect for one’s parents.

In their revolutionary wisdom, the founders of the American republic, suspicious of power and grounded in a firm sense of the limits of human character, structured a tripartite system of governance grounded in checks and balances so no one branch of government might dominate. And though not formally a branch of government, a free press was also envisioned as being an essential element of the new democracy in keeping the citizenry well informed so that they might periodically rein in, reform, or throw out those in positions of power who abused it.

Rule of Law
The recent Louisiana Bar Association annual conference on the Rule of Law was propelled of necessity into a consideration of why the legal profession and the judiciary are held in such low public repute, and the question may be simply answered. Without a system of rigorous self-examination and governance, without holding its own members to scrutiny and a high level of expectation for respectable behavior that enhances, not detracts, from respect for the law, the consequent public disfavor is predictable. Structurally, both the profession itself and the courts suffer from both a lack of formal governance and oversight of its processes and practitioners, but further, the failure in a democracy of the Fourth Estate, the press, to cast a vigilant eye on the patterns and behavior of the courts virtually guarantees that human nature, unchecked and ungoverned and with no system of disincentives for unprofessional conduct, will descend into misbehavior.

Only when actual criminal behavior, invariably long-standing and extensive, surfaces is any attention whatever directed at the judiciary; in the case of the Civil District Courts, virtually none at all. As a result there are few places in American society where one can have a lower expectation of receiving justice than in the courts themselves.

And Injustice for All
As I have recently discovered from my own first exposure to this system, only the very poor and the very wealthy have any capacity for legal representation. For the rest of us, justice is simply unaffordable. A simple property dispute typically drags on for years and costs tens if not hundreds of thousands of dollars. From all accounts, many judges frequently disregard the laws and apply capricious and contradictory standards, condemning plaintiffs or defendants to be subject to still more onerous fees to appeal their decisions to a higher level in the hope—often vain—of receiving some measure of justice. For the mass of citizens, especially middle-class, this means there is in effect no justice whatever. Yet the courts and the legal profession idly stand by and the public, deprived of the necessary insight and knowledge that should be provided by the press, suffers as a consequence.

Then too, all the work of hundreds of self-governing and professional attorneys is set at naught by the behavior of just a handful of colleagues—generally well-known to their peers, indeed whose very names evoke snorts of derision—whose failure to be bound by simple decency, respectfulness, and fairness, let alone the law itself, casts down the entire edifice of the law and the legal profession as a whole.

The failure of the courts and the legal profession to police themselves and set and enforce high standards of professional conduct is not unique to Louisiana, though from all reports we are regarded nationally—Orleans Parish in particular—as one of the very worst venues for the fair and swift administration of the law. The failure exists even at the highest levels: Justice Antonin Scalia seeing no conflict with his duck-hunting with a party to an appeal to the Supreme Court, or Chief Justice John Roberts holding stock in a major pharmaceutical firm being heard before his bench. With such a low bar being set by the Bar, this is clearly a system that cries out for radical and immediate scrutiny, oversight, and reform.

—Michael Sartisky, Editor-In-Chief