Sunday, June 8, 2008

Law: Supreme Federal Court of Brazil

I took away the suspense by revealing what this was in the title, but take a look at this magnificent building. I'd love to work in a place like that, and I haven't even seen its interior!

Here is a direct link to the Brazilian Supreme Court's website (in Portuguese):

From what I gather from other sources, it appears the Brazilian Supreme Court allows videos in its chambers so the public can view its proceedings. The U.S. Supreme Court, on the other hand, is more private--Justice Souter once remarked, "The day you see a camera come into our courtroom, it's going to roll over my dead body...The judiciary is not a political institution, nor is it part of the entertainment industry."

The populist in me is disgusted with Justice Souter, but he may have a point--if the media took a Justice's statements and questions out of context, it may effectively silence rigorous debate. Still, it is possible to get written transcripts of hearings afterwards, so perhaps the visual aspect of television cameras bothers Justice Souter more than his concern for free speech.

One important note about the law--if judges want to rule a certain way, there is always some way to arrive at the end result based on personal preferences. Here, you can't really tell if Justice Souter just wants to avoid publicity if he says something incorrect, or if he really does believe that his speech would be curtailed. As a government branch, a court's independence should be tempered with transparency, and allowing cameras does not interfere with a judge's freedom of speech--especially when he or she has a secure lifetime appointment. Also, when Justice Souter says that the Court is not a political branch, he is correct--but it is still a government branch, and the Founders of this country demanded transparency in government.

George Mason, a lesser-known Founder, warned us that a "corrupt oppressive Aristocracy" might result after the Constitution was adopted, which expanded government powers. One way to see whether judges are following the right path is to see what our Founders would have thought about a particular course of action. Federalist #81 contradicts Justice Souter, because it shows the Founders were concerned more with state, not federal, courts losing their independence: "State judges, holding their offices during pleasure, or from year to year [not with lifetime appointments like in federal courts], will be too little independent to be relied upon for an inflexible execution of the national laws."

Thus, when Justice Kennedy, a federal Supreme Court judge, says that it is acceptable to have cameras in trial courts--most of which are state courts--rather than the U.S. Supreme Court, he seems to have the opposite view of the Founders. The Founders believed that we should be more concerned with the "lower" courts lacking independence, because state court judges don't have lifetime appointments and might be swayed more by the political climate of their day or media pressure. The simple counter-argument to Justice Souter is that he is a federal judge with a lifetime appointment and is therefore effectively insulated against any criticism or pressure. A thin skin should not impede the public's right to see what goes on in their government--lest we lapse into George Mason's worst nightmare.

Some of Thomas Jefferson's thoughts on the judiciary may also be relevant here:

To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves. --Thomas Jefferson to William C. Jarvis, 1820. ME 15:277

Now, this is especially interesting, because in Federalist 78, Alexander Hamilton states that the judiciary "will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them...The judiciary...has no influence over either the sword or the purse...It may truly be said to have neither FORCE nor WILL but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments." In other words, while Hamilton sees the judiciary as the least powerful of the three branches, Jefferson sees it as the most likely to lapse into corruption because of its unaccountability to the public.

You can see why Jefferson and Hamilton disliked each other. Hamilton's words form a velvet glove against Jefferson's appeal to the slippery slope of judiciary power, but Jefferson's fears were well-founded. Many judges, by allowing frivolous cases to continue after it is obvious that such cases lack damages or merit, unwittingly expand their authority at the expense of private citizens' property rights. In a blow to Jefferson's logic, part of this inability to dismiss frivolous cases--thus costing everyone more tax dollars and the parties more attorneys' fees--is because judges need more power to dismiss cases. But expanding a government official's power is almost never the best course of action, which is why the judiciary and court systems present unique problems.

Above all, the judiciary--which draws its members more from government careerists than small business and the dismal science--lacks the basic understanding that judges and lawyers create nothing tangible and should therefore be more circumspect when it comes to transferring property and wealth in their civil courts. Rather than view the lawyers--both plaintiffs' and defense--who appear before them as net losses on society, lawyers are most often treated with respect despite having meritless cases and unreasonable clients. For example, I recently had a state court judge give a 60 days' extension to two other lawyers to serve a defendant that they'd known about for over a year but recently added to the case. Despite my strenuous objections to the judge (I actually did say, "I strenuously object"), the judge granted the extension. As I predicted, the lawyers did not serve the defendant. The lawyer requesting the extension has been around for decades, and therefore gets instant respect from the judges (to be fair, the lawyer had just entered into the case and was acting on advice of the in-house counsel, who was the one who probably knew the defendant couldn't be served).

Why does any of this matter? It matters because this one example demonstrates that the judge, despite being told that the other side had known about a defendant for over a year and failed to add or serve them, still granted an extension--thereby expanding his jurisdiction, exactly as Jefferson had feared. Also, the additional 60 days delayed getting to trial, and my clients had to pay me more money for other motions that would not have been possible without the extension.

So ultimately, it's not the judiciary that is the sole problem--it's lawyers, who are essentially quasi-governmental agents who create nothing and yet have the power to take property from private citizens by action or inaction. As you can see, this judge was really just deferring to a very experienced lawyer, and in doing so, expanded the court's jurisdiction (in terms of receiving more motions and more legal issues to resolve). But his intent was not to expand the court's jurisdiction--it was to help out a lawyer trying to do her job.

If it's not the judge's fault, then what is the root cause of the problems of expansive jurisdiction and costly delays in litigation? Part of the problem is lawyers asking for unreasonable extensions or making unreasonable demands, which result in more attorneys' fees being paid to them. Lawyers are rewarded for pushing and extending cases rather than resolving them--a backwards incentive if there ever was one. As a result of this perverse scheme, an unreasonable lawyer makes more money than a reasonable lawyer because the earlier a case settles, the less money the lawyer makes. And since there's really no way to restrict lawyers from behaving unreasonably except to expand judicial power to dismiss cases, we go back to the fear Jefferson had--that by expanding power, we invite despots, even ones acting unconsciously so (no despot ever thinks he is a despot).

What's the solution? Pass fewer laws. Each law should have a rigorous cost-benefit analysis to determine whether it will harm small businesses and ultimately the economy by reducing innovation. Unfortunately, those considerations are not usually the starting point for legal analysis. Many laws are passed in response to fear (The Patriot Act) or media-magnified problems (Enron, Worldcom--out of the thousands of companies, two companies made it difficult for every else to do business). So it's not the judiciary that's to blame--it's your Senators and your legislature, who can't seem to get along well enough to look out for all of us, not just their lobbyists. But we're not done yet, mon ami. Do you remember who elects your Senators and Representatives, both state and federal? Perhaps there's a glimmer of recognition there. Yes, you are correct--at the end of the day, it's you and me.

So the next time you vote for a law or Proposition or Measure without reading the actual law to determine how ambiguous it is (the more undefined terms, the more power a judge has) and without considering a cost-benefit analysis, remember John Donne's famous words: "send not to know / For whom the bell tolls, / It tolls for thee."

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