American Legal System Is Corrupt Beyond Recognition,

Judge Tells Harvard Law School

By Geraldine Hawkins

March 7, 2003

The American legal system has been corrupted almost beyond recognition, Judge Edith Jones of
the U.S. Court of Appeals for the Fifth Circuit, told the Federalist Society of Harvard Law
School on February 28.

She said that the question of what is morally right is routinely sacrificed to what is politically
expedient. The change has come because legal philosophy has descended to nihilism.

"The integrity of law, its religious roots, its transcendent quality are disappearing. I saw the
movie 'Chicago' with Richard Gere the other day. That's the way the public thinks about
lawyers," she told the students.

"The first 100 years of American lawyers were trained on Blackstone, who wrote that: 'The law
of nature … dictated by God himself … is binding … in all counties and at all times; no human
laws are of any validity if contrary to this; and such of them as are valid derive all force and all
their authority … from this original.' The Framers created a government of limited power with
this understanding of the rule of law - that it was dependent on transcendent religious
obligation," said Jones.

She said that the business about all of the Founding Fathers being deists is "just wrong," or
"way overblown." She says they believed in "faith and reason," and this did not lead to
intolerance.

"This is not a prescription for intolerance or narrow sectarianism," she continued, "for
unalienable rights were given by God to all our fellow citizens. Having lost sight of the moral
and religious foundations of the rule of law, we are vulnerable to the destruction of our
freedom, our equality before the law and our self-respect. It is my fervent hope that this new
century will experience a revival of the original understanding of the rule of law and its roots.
"The answer is a recovery of moral principle, the sine qua non of an orderly society. Post 9/11,
many events have been clarified. It is hard to remain a moral relativist when your own people
are being killed."

According to the judge, the first contemporary threat to the rule of law comes from within the
legal system itself.
 
Alexis de Tocqueville, author of Democracy in America and one of the first writers to observe
the United States from the outside looking-in, "described lawyers as a natural aristocracy in
America," Jones told the students. "The intellectual basis of their profession and the study of
law based on venerable precedents bred in them habits of order and a taste for formalities and
predictability." As Tocqueville saw it, "These qualities enabled attorneys to stand apart from
the passions of the majority. Lawyers were respected by the citizens and able to guide them and
moderate the public's whims. Lawyers were essential to tempering the potential tyranny of the
majority.

"Some lawyers may still perceive our profession in this flattering light, but to judge from polls
and the tenor of lawyer jokes, I doubt the public shares Tocqueville's view anymore, and it is
hard for us to do so.

"The legal aristocracy have shed their professional independence for the temptations and
materialism associated with becoming businessmen. Because law has become a self-avowed
business, pressure mounts to give clients the advice they want to hear, to pander to the clients'
goal through deft manipulation of the law. … While the business mentality produces certain
benefits, like occasional competition to charge clients lower fees, other adverse effects include
advertising and shameless self-promotion. The legal system has also been wounded by lawyers
who themselves no longer respect the rule of law,"

The judge quoted Kenneth Starr as saying, "It is decidedly unchristian to win at any cost," and
added that most lawyers agree with him.

However, "An increasingly visible and vocal number apparently believe that the strategic use of
anger and incivility will achieve their aims. Others seem uninhibited about making
misstatements to the court or their opponents or destroying or falsifying evidence," she claimed.
"When lawyers cannot be trusted to observe the fair processes essential to maintaining the rule
of law, how can we expect the public to respect the process?"

Lawsuits Do Not Bring 'Social Justice'

Another pernicious development within the legal system is the misuse of lawsuits, according to
her.

"We see lawsuits wielded as weapons of revenge," she says. "Lawsuits are brought that
ultimately line the pockets of lawyers rather than their clients. … The lawsuit is not the best
way to achieve social justice, and to think it is, is a seriously flawed hypothesis. There are better
ways to achieve social goals than by going into court."

Jones said that employment litigation is a particularly fertile field for this kind of abuse.
"Seldom are employment discrimination suits in our court supported by direct evidence of race
or sex-based animosity. Instead, the courts are asked to revisit petty interoffice disputes and to
infer invidious motives from trivial comments or work-performance criticism. Recrimination,
second-guessing and suspicion plague the workplace when tenuous discrimination suits are
filed … creating an atmosphere in which many corporate defendants are forced into costly
settlements because they simply cannot afford to vindicate their positions.

"While the historical purpose of the common law was to compensate for individual injuries, this
new litigation instead purports to achieve redistributive social justice. Scratch the surface of the
attorneys' self-serving press releases, however, and one finds how enormously profitable social
redistribution is for those lawyers who call themselves 'agents of change.'"

Jones wonders, "What social goal is achieved by transferring millions of dollars to the lawyers,
while their clients obtain coupons or token rebates."

The judge quoted George Washington who asked in his Farewell Address, "Where is the
security for property, for reputation, for life, if the sense of religious obligation desert the oaths
… in courts of justice?"

Similarly, asked Jones, how can a system founded on law survive if the administrators of the
law daily display their contempt for it?

"Lawyers' private morality has definite public consequences," she said. "Their misbehavior
feeds on itself, encouraging disrespect and debasement of the rule of law as the public become
encouraged to press their own advantage in a system they perceive as manipulatable."

The second threat to the rule of law comes from government, which is encumbered with
agencies that have made the law so complicated that it is difficult to decipher and often
contradicts itself.

"Agencies have an inherent tendency to expand their mandate," says Jones. "At the same time,
their decision-making often becomes parochial and short-sighted. They may be captured by the
entities that are ostensibly being regulated, or they may pursue agency self-interest at the
expense of the public welfare. Citizens left at the mercy of selective and unpredictable agency
action have little recourse."

Jones recommends three books by Philip Howard: The Death of Common Sense, The Collapse
of the Common Good and The Lost Art of Drawing the Line, which further delineate this
problem.

The third and most comprehensive threat to the rule of law arises from contemporary legal
philosophy.

"Throughout my professional life, American legal education has been ruled by theories like
positivism, the residue of legal realism, critical legal studies, post-modernism and other
philosophical fashions," said Jones. "Each of these theories has a lot to say about the 'is' of law,
but none of them addresses the 'ought,' the moral foundation or direction of law."
Jones quoted Roger C. Cramton, a law professor at Cornell University, who wrote in the 1970s
that "the ordinary religion of the law school classroom" is "a moral relativism tending toward
nihilism, a pragmatism tending toward an amoral instrumentalism, a realism tending toward
cynicism, an individualism tending toward atomism, and a faith in reason and democratic
processes tending toward mere credulity and idolatry."

No 'Great Awakening' In Law School Classrooms

The judge said ruefully, "There has been no Great Awakening in the law school classroom
since those words were written." She maintained that now it is even worse because faith and
democratic processes are breaking down.

"The problem with legal philosophy today is that it reflects all too well the broader
post-Enlightenment problem of philosophy," Jones said. She quoted Ernest Fortin, who wrote in
Crisis magazine: "The whole of modern thought … has been a series of heroic attempts to
reconstruct a world of human meaning and value on the basis of … our purely mechanistic
understanding of the universe."

Jones said that all of these threats to the rule of law have a common thread running through
them, and she quoted Professor Harold Berman to identify it: "The traditional Western beliefs
in the structural integrity of law, its ongoingness, its religious roots, its transcendent qualities,
are disappearing not only from the minds of law teachers and law students but also from the
consciousness of the vast majority of citizens, the people as a whole; and more than that, they
are disappearing from the law itself. The law itself is becoming more fragmented, more
subjective, geared more to expediency and less to morality. … The historical soil of the
Western legal tradition is being washed away … and the tradition itself is threatened with
collapse."

Judge Jones concluded with another thought from George Washington: "Of all the dispositions
and habits which lead to prosperity, religion and morality are indispensable supports. In vain
would that man claim the tribute of patriotism who should labor to subvert these great pillars of
human happiness - these firmest props of the duties of men and citizens."

Upon taking questions from students, Judge Jones recommended Michael Novak's book, On

Two Wings: Humble Faith and Common Sense.

"Natural law is not a prescriptive way to solve problems," Jones said. "It is a way to look at life
starting with the Ten Commandments."

Natural law provides "a framework for government that permits human freedom," Jones said.
"If you take that away, what are you left with? Bodily senses? The will of the majority? The
communist view? What is it - 'from each according to his ability, to each according to his need?'
I don't even remember it, thank the Lord," she said to the amusement of the students.
"I am an unabashed patriot - I think the United States is the healthiest society in the world at
this point in time," Jones said, although she did concede that there were other ways to
accommodate the rule of law, such as constitutional monarchy.

"Our legal system is way out of kilter," she said. "The tort litigating system is wreaking havoc.
Look at any trials that have been conducted on TV. These lawyers are willing to say anything."

Potential Nominee to Supreme Court

Judge Edith Jones has been mentioned as a potential nominee to the Supreme Court in the Bush
administration, but does not relish the idea.

"Have you looked at what people have to go through who are nominated for federal
appointments? They have to answer questions like, 'Did you pay your nanny taxes?' 'Is your
yard man illegal?'

"In those circumstances, who is going to go out to be a federal judge? People who have
accomplished nothing. In other words, federal employees."

Judge Edith H. Jones has a B.A. from Cornell University and a J.D. from the University of
Texas School of Law. She was appointed to the Fifth Circuit by President Ronald Reagan in
1985. Her office is in the U.S. Courthouse in Houston.

The Federalist Society was founded in 1982 when a group of law students from Harvard,
Stanford, the University of Chicago and Yale organized a symposium on federalism at Yale
Law School. These students were unhappy with the academic climate on their campuses for
some of the reasons outlined by Judge Jones. The Federalist Society was created to be a forum
for a wider range of legal viewpoints than they were hearing in the course of their studies.
From the four schools mentioned above, the Society has grown to include over 150 law school
chapters. The Harvard chapter, with over 250 members, is one of the nation's largest and most
active. They seek to contribute to civilized dialogue at the Law School by providing a
libertarian and conservative voice on campus and by sponsoring speeches and debates on a
wide range of legal and policy issues.

The Federalist Society consists of libertarians and conservatives interested in the current state
of the legal profession. It is founded on three principles: 1) the state exists to preserve freedom,
2) the separation of governmental powers is central to our Constitution and 3) it is emphatically
the province and duty of the judiciary to state what the law is, not what it should be.