Later On

A blog written for those whose interests more or less match mine.

How our current Supreme Court views “justice”

with 84 comments

I think their view of justice can best be summarized as “Might makes right.” Ed Brayton reports:

In an appalling 5-4 ruling, the U.S. Supreme Court confirmed and even strengthened prosecutorial immunity, extending it from personal immunity to a stronger form of agency immunity as well. The case is Connick v Thompson, where Connick is the former Orleans Parish District Attorney Harry Connick, Sr. (yes, father of the crooner) and Thompson is John Thompson, a man falsely convicted of murder because Connick’s office hid a report that ultimately exonerated him.

The prosecutors admit to that, by the way. There is no controversy over whether they violated the law and their ethical obligations and railroaded an innocent man, who was only weeks away from being executed for that crime he did not commit when the report that proved his innocence was discovered and used to overturn his conviction. The prosecutors admit withholding the evidence.

Thompson then filed suit against the DA’s office, showing that Connick had failed to provide training for his prosecutors on the illegalities of withholding evidence. A jury found the office liable for that negligence and awarded Thompson $14 million in damages for the 14 years of his life spent behind bars and facing the death penalty. The appeals court affirmed that verdict. And the Supreme Court has now overturned it. The reason?

A district attorney’s office may not be held liable under §1983 for failure to train its prosecutors based on a single Brady violation.

It was only one guy!

Plaintiffs seeking to impose §1983 liability on local governments must prove that their injury was caused by “action pursuant to official municipal policy,” which includes the decisions of a government’s lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law. A local government’s decision not to train certain employees about their legal duty to avoid violating citizens’ rights may rise to the level of an official government policy for §1983 purposes, but the failure to train must amount to “deliberate indifference to the rights of persons with whom the [untrained employees] come into contact.” Deliberate indifference in this context requires proof that city policymakers disregarded the “known or obvious consequence” that a particular omission in their training program would cause city employees to violate citizens’ constitutional rights.

Okay, so it has to be an official policy. And it can only be an official policy if they knew that the obvious consequence of their actions would be to violate the rights of citizens. So is the argument here that the prosecutors didn’t know that withholding evidence of Thompson’s innocence would violate his rights? The whole point of doing so was to lock him up and eventually put him to death, for crying out loud.

The 5-4 ruling was predictable — Thomas, Scalia, Roberts, Alito and Kennedy in the majority, the court’s four liberals in dissent. You can read the full ruling here.

Remember when Clarence Thomas, during his confirmation hearings, talked about those buses full of convicts that he saw go by his office in DC and how, because of his background as a poor young black man, he would show more compassion to their situation because, but for the grace of God, there went he? Neither does he.

His message to John Thompson: Sure, the government ruined your life and violated your rights. Tough. You’ll get nothing. And like it.

Written by LeisureGuy

31 March 2011 at 12:44 pm

Posted in Government, Law

84 Responses

Subscribe to comments with RSS.

  1. I agree with the Leisure Guy. There was a pattern of malfeasance in the New Orleans DA Office and this could have been halted by the Robert’s Court but wasn’t. Instead the conservatives chose to ignore the pattern and impose their own style of justice which is a throw back to medieval times.

    Professor Weatherwick

    31 March 2011 at 1:57 pm

  2. New Orleans must have been a total cesspit. Take a look at this story.

    LeisureGuy

    31 March 2011 at 3:24 pm

  3. The justice system eventually works but it takes time. The abuse within the DA’s Office should also be reviewed by the Justice Department.

    Professor Weatherwick

    1 April 2011 at 5:42 am

  4. I’m stunned by your comment. So an innocent man who is imprisoned for 30 years and then finally released is comforted by the notion that “the justice system eventually works but it takes time”? How about the man put to death in Texas who pretty clearly was innocent? Is the justice system “working” because now we know he’s innocent?

    I think you too easily and quickly and (if I may say) thoughtlessly dismiss the enormous human cost in suffering and lives ruined from the corruption, incompetence, and dishonesty in our justice system.

    LeisureGuy

    1 April 2011 at 6:31 am

  5. We’re practical folks here. Thank goodness for the Justice Department to pursue this type of filth at all. In some countries, the truth never comes to light. In the USA, at least we try to ferret out the rot.

    Professor Weatherwick

    1 April 2011 at 6:35 am

  6. Some try to ferret out the rot, others fight to keep it, much as in other countries. The US certainly has less corruption in its justice system than, say, Russia and various Latin and South American countries. But in terms of how the US justice system works: keep in mind that the US imprisons a higher proportion of its citizens than any country on earth. The US is the “prison nation.” Do some Googling on the issue. Here’s an article in the Economist that is relevant.

    Another datapoint: the number of innocent people shot to death by SWAT teams doing no-knock raids in the middle of the night.

    LeisureGuy

    1 April 2011 at 6:45 am

  7. In my view, we have too many laws on the books which can result in prison terms. The higher incarceration rates in the USA reflect the fact that we imprison people for minor drug offenses. I fully believe that the Justice Department should aggresively pursue all miscarriages of justice whether by police, prosecutors or judges. Also, people who have been imprisoned incorrectly should be better able to seek and get appropriate compensation for themselves and their families.

    Professor Weatherwick

    1 April 2011 at 6:55 am

  8. It seems to me that a thorough and sweeping set of reforms, as advocated by Grover Norquist, is our best hope. Nibbling around the margins won’t do it. And the system is pretty badly corrupt. Example: Scooter Libby’s pardon, in the face of all evidence and a court decision, because (ostensibly) the possible sentence for his offense was “too severe”, but then Bush and his Justice Department did NOTHING to bring the sentence guidelines into line—because in fact Libby was pardoned simply so he wouldn’t talk.

    LeisureGuy

    1 April 2011 at 7:32 am

  9. What we need are a bunch of unemployed lawyers forming a public interest group to pursue these types of miscarriages of justice. If they get a conviction, they should receive compensation from the guilty parties.

    Professor Weatherwick

    1 April 2011 at 7:37 am

  10. We have several such groups—e.g., the Innocence Project—but that approach is piecemeal and does not really deal with the core of the problem. Moreover, the guilty parties are now firmly protected by this recent Supreme Court decision in those instances in which the guilty are corrupt members of the Justice System.

    LeisureGuy

    1 April 2011 at 7:48 am

  11. Somehow we have to incentivize unemployed lawyers to pursue injustice in the system. I suspect that a general overhaul of the justice system will not happen; all we can hope for is some celebrated cases where guilty police, prosecutors or jugdges are caught.

    Professor Weatherwick

    1 April 2011 at 8:17 am

  12. The Professor seems to be keying in on a temporary spike in unemployed lawyers due to the current economic downturn. I fear using that as a solution to the corruption of our justice system is not a long-term solution. Though it may have value as a stop-gap measure to address gross injustice in our justice system right now. I believe Leisure guy is correct that we need far reaching reforms. Though we must be mindful of the cost to ordinary citizens through increased taxes to pay for these reforms. Can these reforms work and actually reduce the costs of our justice system? maybe. That is the avenue I believe we need to pursue. As to the recent supreme court decision, it seems clear that the Justices in the majority engaged in a narrow statutory interpretation of Section 1983 liability for a DA’s office who had flagrant violations of ethical obligations as members of the legal profession. I am shocked that the Justice’s could not find a more nuanced approach to this issue to remedy the extreme injustice exacted upon this innocent individual. In my humble opinion, the $14 million dollar award from the trial court jury was not adequate recompense for the harm this individual faced, and now, as a result of this weakly supported supreme court decision which reverses the solid logic of the trial and appellate courts, this individual gets nothing. A gross miscarriage of justice carried out under the guise of narrow statutory construction which completely ignores the extreme and overarching injustice in this particular case.

    robsweatherblog

    2 April 2011 at 7:05 am

  13. As a practical observer of life, I would suggest that the spike in unemployed lawyers is not temporary but a system wide reality. We have to do something with these highly trained professionals; what better than to channel their talents into a watchdog role over the abuses in the criminal justice system.

    The nature of ROBSWEATHERBLOG suggests that he /she has more than a passing knowledge of the Law. This may be the reason for what appears to be a biased analysis of the problem and practical suggestions for correction.

    Professor Weatherwick

    2 April 2011 at 7:13 am

  14. I saw no bias whatsoever in the comment to which you refer. If you can point it out, I’d be pleased. If you cannot, then I fear that “bias” is a result of your own worldview.

    We may indeed have a surplus of lawyers, but as the comment points out, this is a temporary spike and you can be sure that these lawyers are seeking alternate employment. Though they could serve as watchdogs, that does require the creation of new bodies and new regulations, I would think.

    In any event, occupational surpluses fade with time: people stop going into the field, for one thing.

    LeisureGuy

    2 April 2011 at 7:20 am

  15. You may be correct professor, this downturn may be a new system-side reality. Notwithstanding that fact, do we not still need the sorts of reforms which Leisure guy is calling for in addition to practical solutions like the one you rightly suggested? I would suggest that we need both.

    robsweatherblog

    2 April 2011 at 7:22 am

  16. There is an old adage: “…it’s better to do something now than to do nothing later…”.

    Professor Weatherwick

    2 April 2011 at 7:24 am

  17. I’m unfamiliar with that adage, but it doesn’t have much content—it seems to be along the lines of “It’s better to eat a ham sandwich than to have a sharp stick stuck in your eye.” While both statements are true, both are excruciatingly obvious.

    We (in the opinions of some us) need substantive and systemic reforms. Hiring out-of-work lawyers would be at best a stopgap, and the energy put into setting that operation in motion would be better used to work toward systemic reform.

    LeisureGuy

    2 April 2011 at 7:29 am

  18. Although a truism, the professor’s adage does inform the issues. Action now is more desirable than inaction later. Though we may disagree on an academnic level as to the type or degree of action required, we seem to agree that action is needed now.

    robsweatherblog

    2 April 2011 at 7:42 am

  19. I have brought forth three specific suggestions to correct the problems in the criminal justice system:
    -decrease the number of laws which can result in incarceration;
    -create Penal Colonies for Federal / State lifers to reduce the cost to taxpayers to maintain these individuals; and,
    -incentivize unemployed lawyers to patrol the system.
    I think we should rally around these actions as short term practical initiatives rather than continue to “contemplate our navels”.

    Professor Weatherwick

    2 April 2011 at 7:51 am

  20. That’s true, but to say action now is better than inaction later—well, yes, but that wasn’t what we were talking about: indigent lawyers put to work now vs. broad systemic reform later was the issue, and as you suggest, the best course is probably to do both.

    The choice wasn’t, as it were, between a sandwich now and nothing later, it was between a sandwich now and a banquet later—and, as we seem to be agreeing, better to have both: a sandwich now and a banquet later. The only thing to watch out for is not spoiling the banquet by eating the sandwich: i.e., the danger is that minimal immediate reforms could drain the energy from really fixing the system.

    LeisureGuy

    2 April 2011 at 7:54 am

  21. I thought the sandwich was some sort of appetizer to the banquet, but wasn’t a true aspect of the banquet necessarily. The question becomes, does eating the sandwich now really spoil the later banquet? Quite to the contrary, could eating the sandwich now actually provide fuel to pursue the banquet more fully later? It could be that the Professors immediate strategies would fuel the later systemic remedies. Then again, if the sandwich proves rancid, it very well could ruin the banquet. Its the balance of near-term and long-term solutions (sandwich and banquet according to Leisureguy) which need to be carefully weighed.

    robsweatherblog

    2 April 2011 at 8:03 am

  22. Abstracting the culinary aspects of the discussion to the serious issues associated with the criminal justice system is a bate and switch strategy at best.

    Professor Weatherwick

    2 April 2011 at 8:08 am

  23. You bring up a good point, which I think strengthens the Professor’s suggestions and should be incorporated into the package:

    -decrease the number of laws which can result in incarceration;
    -create Penal Colonies for Federal / State lifers to reduce the cost to taxpayers to maintain these individuals; and,
    -incentivize unemployed lawyers to patrol the system.

    AND

    -publicize the results: web site, statistics, news stories, and the like. Goal is to build support and momentum toward systemic change as well as learning from the effort exactly which systemic changes would have the greatest impact.

    Now I’m much more interested in the Professor’s proposal. The problem with immediate, small-bore efforts is that they can ameliorate the problem just enough so that it is possible to ignore the problem once more. I wrote a number of computer programs with names like “Stopgap” and “QuickFix” that ended up being used for years.

    If we can structure the immediate interventions so that they are investigative as well as ameliorative, with the goal being not only to correct and forestall the worst abuses, but also to issue a report and recommendations for comprehensive reform: that would be incredibly valuable. Knowledge informed by experience is hard to deny (though it’s certainly possible: cf. climate-change deniers).

    LeisureGuy

    2 April 2011 at 8:11 am

  24. I do like metaphor and find that it can help a lot with understanding, especially if one explores where the metaphor works and where it fails: that can open up new insights.

    “Bate” s/b “bait”.

    LeisureGuy

    2 April 2011 at 8:15 am

  25. By golly, I think you have come up with the optimal solution. As a mantra, I suggest that we adopt the old adage referred to earlier.

    Professor Weatherwick

    2 April 2011 at 8:18 am

  26. As an academic note, the word “bate” was purposely chosen to refer to “lessening”.

    Professor Weatherwick

    2 April 2011 at 8:23 am

  27. This 4-prong approach concisely and cogently summarizes the shared points of views we seem to have on this issue. This could very well be the optimal approach to immediate criminal justice reforms with an eye toward more comprehensive, long-term reforms. The approach seems to appropriately incorporate outcome driven, mutually supportive short and long term approaches with cost, efficiency and transparency factors taken into account.

    robsweatherblog

    2 April 2011 at 8:23 am

  28. This is what is being lost with the “take-no-prisoners” strategy of the GOP and Tea Party: they refuse to engage on the issues and use exchanges and communications merely as vehicles for invective, with no thought of actually trying to solve the problems. I believe that they in fact do not want to solve the problems, because the problems and crises is the source of their power.

    As I read back over our comments, I’m struck by the development. I pretty consistently resisted the Professor’s solution because of my fear (repeatedly expressed in various ways) that small efforts now actually do lead to doing nothing later.

    Thanks to the contribution from robsweatherblog (RWB), I was able to see that what I had unconsciously thought of as a choice between two alternatives was as easily conceived as a two-step program. Once I finally grasped that, then it became obvious that the first step must be aligned with the second—and designed to make the second step easier and stronger.

    Good work by us all.

    LeisureGuy

    2 April 2011 at 8:33 am

  29. I too want to congratulate ROBSWEATHERBLOG for his / her contribution to the forming of a consensus. The question not is what is for lunch ???

    Professor Weatherwick

    2 April 2011 at 8:36 am

  30. The question now is what is for lunch ???

    Professor Weatherwick

    2 April 2011 at 8:37 am

  31. It is a truly sad day when in the state of Pennsylvania the Governor and state legislators are planning to cut education spending by 15%. While not sounding like much it will result in catastrophic cuts in our children’s education. Leading to larger class sizes, (thus less individual attention and instruction), the cutting of music and art programs and the decrease in supplies needed to educate the future of our nation. We are a great nation because everyone has access to public education. Everyone no matter their economic status, their race, their family background is entitled to an education. While that system fails at times it also provides so many with a promising future.

    Instead of investing in our state’s education system we are cutting that money and putting it toward the penal system. Providing more money towards prisons and the care of prisoners.

    It is my belief that underneath the tea parties rhetoric is a much more detailed plan that sadly could ultimately lead to a very dark time for our country.

    So please tell me where is the justice!?

    tmissiontomalawi

    2 April 2011 at 8:46 am

  32. My I direct tmissiomtomalawi to the prior posts on the criminal justice system. In regard to education cuts in Pennsylvania, the Governor has also proposed cutting 50% of the State’s appropriation to State Related and State Owned Universities. This coupled with the proposed cuts to public school districts will ensure that Pennsylvania becomes a third world country.

    Professor Weatherwick

    2 April 2011 at 8:54 am

  33. May I direct…

    Professor Weatherwick

    2 April 2011 at 8:55 am

  34. Sadly these educational issues are not limited to Pennsylvania. New Jersey, along with many other states, are facing similarly dramatic cuts in funding. I would also direct the comment about a linkage to spending on the penal system to the above posts which result in a major development of penal reform approach.

    robsweatherblog

    2 April 2011 at 8:57 am

  35. Clearly we have to reduce the cost of public education at all levels in light of the obvious economic condition of the USA. However, some programs are more valuable than others in the current economic environment. I would suggest we cut out all public college programs and courses which are not focused on doing “real” things such as science, business, engineering, etc.

    Professor Weatherwick

    2 April 2011 at 9:03 am

  36. As a member of the Troika, may I comment that we were able to solve the criminal justice system problems; we should be equally able to solve the educational system problems as well.

    Professor Weatherwick

    2 April 2011 at 9:06 am

  37. A few comments:

    First, cutting education is a grand example of making a decision that obviously is a long-term disaster to achieve a short-term gain.

    Second, I have always considered literature, music, art, writing, and the like to be at least as real as science, business, engineering and the like. Well, maybe not business.

    Third, many of the problems in our current political environment seem to be at least in part due to politicians and public who simply cannot follow a logical argument. Cutting back on education, particularly education in the liberal arts, will exacerbate this problem.

    What is happening is that the government is rapidly being defunded through tax cuts and wars, and the result is that the government is unable to deliver the very services that we have in the past depended upon.

    LeisureGuy

    2 April 2011 at 9:11 am

  38. I agree, in fact, some of the conceptual issues which underpinned our criminal justice analysis may very well apply in the public educational system analysis. However, as a starting point, the tensions in the two arenas differ. The criminal justice analysis dealt with tensions between utilitarian and retributive goals in light of a corrupt and costly system. In the educational area, I suspect the tensions are more between the “haves” and the “have nots.” That gap is sadly only growing with time.

    robsweatherblog

    2 April 2011 at 9:11 am

  39. Cutting money spent to educate our young people is the same sort of brilliant idea as not paying into the pension funds, thus freeing money for current expenses: short-term “fix”, long-term disaster—and quite obviously a long-term disaster. They did it anyway, in part (I imagine) because they knew when the shit hit the fan they’d be long gone.

    LeisureGuy

    2 April 2011 at 9:13 am

  40. As always, what we need is a short term agenda to attack the problems in the educational system while setting the stage for long term stability and growth. In this very regard, may I offer the following immediate action items:

    -stop fooling around with back door funding of private schools and fully fund public schools;
    -at the college level, adopt the European model of a 3 year Bachelors degree; and,
    -focus public schools on courses and programs in the sciences, business, engineering, etc. which have a higher probability of resulting in a well paying job while liberal arts education could be pursed by private schools.

    Professor Weatherwick

    2 April 2011 at 9:19 am

  41. The “short-term fix, long-term disaster” concept which Leisure guy highlights strikes me as an intrinsic aspect of flawed decision making processes. The BP gulf oil disaster seems to be another example of seeking short term gains while discounting the potential long-term disaster. Often these short term decisions are made with no consideration of the repercussions. Fixing this disconnect, I fear, is tantamount to trying to fix the very basis of real-time human decision making.

    robsweatherblog

    2 April 2011 at 9:21 am

  42. I feel that it is in fact related. Our society is choosing to put our resources into the care and comfort of criminals with plasma tv in the cells while our children, our most valuable members of society. The future of our nation is going to be provided a second rate education. Where are our priorities?
    It is my humble opinion that it is the tea party goal to destroy American public schools. Then education will be for the haves but not those who do not. At that point I suppose the increase in funding to prisons will be worthwhile because they will be in greater need.
    I agree with the professor that we will be heading in the direction of the 3rd world where education is only for those with the money and resources to provide it for the children while the rest continue to live well under the poverty limit.
    All around it is a sad time for our country. I know that I hope during Obama’s term we are able to change the course of the court. Decisions like the one above are inexcusable.

    tmissiontomalawi

    2 April 2011 at 9:22 am

  43. Well said tmissiontomalawi. I am currently munching on the Professor’s latest 3-prong approach. Based on my preliminary analysis, it may be an approach which I can support, with some needed tweaks and additions. This clearly addresses a significant need which tmissiontomalawi correctly highlighted in his timely post.

    robsweatherblog

    2 April 2011 at 9:26 am

  44. I would be interested in knowing tmissiontomalawi’s reaction to my suggestion of establishing Penal Colonies for Federal / State lifers. Incidentally, as one thinks through this option it is amazing that it covers all of the bases. For example, I would have no guards (only an electronic screening system) to keep the inmates on the Penal Colony island and would not provide any food (all food would have to be grown by the inmates).

    Professor Weatherwick

    2 April 2011 at 9:28 am

  45. In my opinion, education in the liberal arts is absolutely essential for those men and women who will become citizens in a democratic republic like the US. The liberal arts are the very skills required by those who are free (thus the use of “liberal”). To say that the wealthy should be educated in the liberal arts but not the rest of us is (in my opinion) a truly serious mistake on par with the decisions by so many states not to fund their pensions.

    LeisureGuy

    2 April 2011 at 9:42 am

  46. Since something has to give in the current economic environment, it is my view that our children should be given job skills now so they can pursue “intellectual” skills later when and if they desire.

    Professor Weatherwick

    2 April 2011 at 9:45 am

  47. It seems the professor is equating education to penal colonies. I am curious to see which side of the tracks Leisure guy comes down on with regard to the professors latest 3-prong approach. I see the potential for liberal arts concepts to be included within the rubric of modern day job skills.

    robsweatherblog

    2 April 2011 at 9:57 am

  48. In my experience, skill in reading analytically and carefully, listening well, asking good questions, providing meaningful answers, writing, reasoning, and the like turn out to be incredibly useful in jobs. Those are indeed job skills.

    Full disclosure: my undergraduate education was totally in the liberal arts (the “great books” program at St. John’s College, Annapolis, MD 1957-61), and I never did get around to studying a job-related course in college—my master’s is in abstract mathematics, but I never worked as a mathematician.

    Yet, somehow, those liberal arts skills made it easy for me to continue to learn and I actually had a reasonably successful career. The job-specific skills I learned on the job from experienced people and/or through specific training along the way (e.g., company-sponsored or vendor-sponsored).

    From my view, the liberal arts are the most essential job skills one could have.

    Why is “intellectual” in quotation marks? Those are indeed skills of the intellect. Is there something I’m not getting?

    LeisureGuy

    2 April 2011 at 9:57 am

  49. In the new era choices have to be made. In my opinion, liberal arts skills (while extremely valuable to society) should only be undertaken by private schools. Public schools should only focus on things they can afford and which facilitate their students getting a job.

    Professor Weatherwick

    2 April 2011 at 10:17 am

  50. In regard to point raised by Leisureguy, “intellectual” should have read “liberal arts”.

    Professor Weatherwick

    2 April 2011 at 10:19 am

  51. I do like the idea of the prisoners growing their own food. I think that is an excellent idea.

    The Supreme Court ruling and the rise of the tea party is a wonderful reminder that we all need to stay active in the political system. There is so much at stake in the lives of so many. As informed citizens we need to do our part to inform others and vote. The best way to have our views heard is to speak in the voting booth.

    To through another idea out there – what about term limits? Our senators and representatives both state and federal make all decisions based on what they think they need to do to be reelected. We need leaders who are interested in doing the best for our country, not the best for their chosen career.

    In disclosing, as one can guess I am a teacher. I believe strongly in the public school system. I believe the man in the case above should be compensated. He was wronged in one of the most possible ways. It is not justifiable.

    tmissiontomalawi

    2 April 2011 at 10:20 am

  52. The key is to mobilize the vast majority of Americans who, by the way, are not conservatives. Actually, the nuttier the conservatives become, the easier it is to mobilize the rest of us.

    Professor Weatherwick

    2 April 2011 at 10:25 am

  53. Actually, I believe that prison farming and prison gardens are fairly common in our current system, though perhaps less so in the private prisons and states with a more vindictive view of what prisons are for.

    I guess it’s pretty clear, but just to finish: I understand that the Professor views the liberal arts as inessential if not frivolous, whereas I view them as the very core and purpose of education. I don’t think we’re going to find a compromise on this one. The Professor seems to view vocational and professional training as the purpose of education, and I view such training as occurring after or alongside education.

    We do not need to discuss this further unless you want. I understand your position—that the liberal arts are relatively unimportant—and I believe I have adequately stated mine.

    LeisureGuy

    2 April 2011 at 10:29 am

  54. This approach has merit. If re-election is a vice for our elected men and women in this Country, let’s do away with the concept completely. This would remove the perservse incentive to adopt policies and positions based soley on the best chance of personal re-election. Focus on the good of the whole rather than the good of the individual (politician in this case).

    robsweatherblog

    2 April 2011 at 10:31 am

  55. To leisureguy: on the contrary, I think the Liberal Arts are just as important as you do. Unfortunately, given the current economic realities, we can not afford to fund them through the public education system. I truly hope that private schools can offer the Liberal Arts until such time that we can afford to offer them through the public school system.

    Professor Weatherwick

    2 April 2011 at 10:34 am

  56. That was the idea behind term limits, but the effect was that lobbyists (who stayed in their jobs term after term and became more and more expert) became (more or less) the legislature: the legislators, who by law are more or less beginners always—those with experience hit the term limit and have to leave (often, ironically, to take a job as a lobbyist to utilize what they’ve learned). And, as beginners, they turn to lobbyists, who do know what’s going on and the proper procedures, etc., for help. So you end up with a power shift from elected representatives to businesses. We’ve certainly seen that in California.

    So we need to recognize that the free and informed election is the best way to impose term limits: those who do a good job, re-elect; those who don’t cut the mustard, vote out.

    The key ingredient is not simply a well-educated (in the liberal arts sense, not in terms of vocational skills) citizenry and a vigorous and active untrammeled press. We certainly lack the latter (with some exceptions) and we are working to end the former.

    LeisureGuy

    2 April 2011 at 10:37 am

  57. Our disagreement is more basic: I believe that we not only can fund the teaching of those liberal arts in public schools, I believe that we MUST. Vocational and professional training is all very well, but it has a sort shelf life (the vocations and professions and their support equipment, processes, and the like all change and evolve quickly). It’s better to educate the young in skills that will last a lifetime. That’s my view, and thus I would push vocational and professional training out of the schools and into the companies and businesses. Give them well educated young men and women, and let the companies train them in their particular business, operations, equipment, and the like. Schools should focus on the essential, not the ephemeral.

    LeisureGuy

    2 April 2011 at 10:41 am

  58. In regard to term limits, my fear is that by not having people in the Legislature with longevity, no one except the staffers will know what is going on and their interests will only reflect their personal biases. We should, therefore, do two things in the short term:
    -minimize the number of Laws that are considered during each legislative session; and,
    -require that Legislators actually read the bills they are voting on and not rely on staff to read them.

    Professor Weatherwick

    2 April 2011 at 10:41 am

  59. Having a legislator spend all his or her time reading lengthy boilerplate, which is the greater part of most bills, albeit important boilerplate, doesn’t make sense to me. It’s like saying that the president of a company must read every communication that goes to people outside the company. The president would be better off making sure s/he has good staff and then let them do their jobs. Good staff know when something should be brought to the attention of the boss.

    The notion that every legislator must read every word of every bill that comes up for consideration does not seem realistic to me.

    LeisureGuy

    2 April 2011 at 10:47 am

  60. To leisureguy: in a perfect world, you’re right. However, we are now in a somewhat imperfect world which requires somewhat imperfect short term solutions.

    Professor Weatherwick

    2 April 2011 at 10:50 am

  61. My previous post to Leisureguy was focused on liberal arts education.

    This post refers to term limits, to wit, by reducing the number of bills which can be considered by the Legislature each term, we will be in a position to ensure that Legislators, in fact, know what they are voting on. Please note that the US Supreme Court has drastically reduced the number of cases it hears each term and in so doing increases the probability but not the certainty) that they get each case right.

    Professor Weatherwick

    2 April 2011 at 10:55 am

  62. Yeah, that’s part of the disagreement: it is my view that I am right in the world in which we live. In my view, going down the path you’ve described (liberal arts for the well-to-do, vocational/professional training for the masses) has already shown that it not only fails to achieve a citizenry with the skills for judicious self-rule (so we get incomprehsibilities like the Tea Part arguments and positions) but will increasingly exacerbate the situation.

    We really do disagree on this one. That’s okay: neither of us has the power to make either outcome happen, though certainly the country seems to be moving in the direction you suggest, with true (liberal arts) education increasingly defunded and dropped. So I certainly hope that you’re right. But as I view things now, you are wrong. In my view.

    LeisureGuy

    2 April 2011 at 10:56 am

  63. What I propose for liberal arts education is a short term measure only. The key is to reinvigorate our economy so my expedient can be eliminated as soon as possible in favor of your preferred approach.

    Professor Weatherwick

    2 April 2011 at 11:00 am

  64. My fear is that your solution will turn out not to be a temporary step but a permanent direction: once the well-to-do have those skills, will they truly work to see that hoi polloi has them as well? History is not encouraging.

    LeisureGuy

    2 April 2011 at 11:02 am

  65. In the truest sense of the term, new legislation should not contain any boilerplate at all. Each bill includes nuances of language and procedure to address a need of society. We must remember that the legislative machinery will not be initiated unless there is a wrong to be remedied or an inefficiency to be corrected. Legislatures do not legislate for mere whimsy. In my understanding, boilerplate, generally, would refer to generic language utilized in legal agreements which has been so well vetted over the years in agreements which have been challenged and upheld in courts of law, that pracitioners of the law feel comfortable relying upon that language, without change, within future agreements. For instance, general indemnification and related insurance clauses, default and termination, or other generalized provisions could be considered boilerplate in a legal agreement. Newly drafted legislation, on the other hand, should not include “boilerplate” as I described above. In fact, there is great nuance and import to draft legislation. On this point, I have to agree with the Professor — legislators should read carefully the bills upon which they vote. While reliance upon staffers can and should be utilized to help frame the issues, the Legislator should be aware of the language within the bill and the import and operation of that language. Much like a judge relies upon his clerk to review the law and provide an analysis, at the end of the day the judge must read the seminal cases and review the pleadings of the parties to reach a decision. The work of the clerk alone cannot suffice (though sadly I fear clerks make many decisions in todays court rooms without close judicial scrutiny). In the same way the work of the legislative staffer cannot suffice for critical votes on legislation. However, limitations on the number of bills proposed in any given legislative session seems unworkable in my opinion.

    robsweatherblog

    2 April 2011 at 11:05 am

  66. My hope is that the public education establishment will press for the immediate return to traditional liberal arts education once the current economic problems abate.

    Professor Weatherwick

    2 April 2011 at 11:08 am

  67. Rhonda Holman writes for the Wichita Eagle:

    It sounds like a fine idea — getting members of Congress to take a pledge to read “every word” of every bill before voting on it. But the Read to Vote “proposal would bring government to a standstill,” the Washington Post editorialized. Reading all 1,427 pages of the Waxman-Markey energy bill would take at least 12 hours. Realize that the House handled 7,441 bills and joint resolutions during the 110th Congress, and you can see the problem, especially if legislators also are expected to go to hearings, meet with constituents, help craft bills and conduct other business. Though big bills should not be rushed to a vote without time for review, the editorial argued, members of Congress need not be “shuttered for half of every workday just to read through ‘every word’ of every bill that might come to a vote. At some point, it’s fine for members of Congress to rely on expert staff members.” To their credit, though, Kansas Republican Reps. Todd Tiahrt, Jerry Moran and Lynn Jenkins are among the 118 members of Congress who’ve taken a separate pledge to read any health care reform legislation before they vote on it.

    There are links in the original, which you can find here.

    Any number of experienced politicos and political reporters have pointed out the unreality of this proposal.

    LeisureGuy

    2 April 2011 at 11:11 am

  68. I agree in general with robsweatherblog that bills / laws should be sans boilerplate. On the other hand, let me suggest that by constraining the number of bills considered each session,Legislators would be better able to focus attention on the particulars of each bill /law. In this regard, it is my understanding that the lack of legislative oversight often results in clarifications being required which are included as riders to other bills/ laws.

    Professor Weatherwick

    2 April 2011 at 11:14 am

  69. Instead of considering 7,000 bills / laws, perhaps we should limit each legislative session to 70 bills / laws.

    Also, as I understand it, the French Legislature will only pass a bill / law if it is absolutely necessary.

    Professor Weatherwick

    2 April 2011 at 11:17 am

  70. There is an old adage which applies here “…one law is one too many…”.

    Professor Weatherwick

    2 April 2011 at 11:20 am

  71. The French seem to have the right idea. The inclusion of global perspectives on this issue is admirable professor.

    robsweatherblog

    2 April 2011 at 11:21 am

  72. Wei.

    Professor Weatherwick

    2 April 2011 at 11:22 am

  73. Yet anarchy cannot be the solution.

    robsweatherblog

    2 April 2011 at 11:22 am

  74. I see the subsequent “fix-up” legislation as a part of a good process: get some immediate experience with the bill as passed, then quickly fix up problems that come to light—a vivid example is the Federal legislation setting when DST will start and end: the first DST dates made no sense at all, but they fixed it over time.

    When making complex legislation dealing with difficult real-world problems, there is no hope of doing it right the first time out, any more than someone writing a long and complex program is going to produce a bug-free program.

    What is needed is not a process to produce flawless legislation—that will never work—but a process that allows experience to be gained and fixes to be made efficiently in the light of that experience. As Oliver Wendell Holmes, Jr., famously wrote, the life of the law is not logic but experience.

    LeisureGuy

    2 April 2011 at 11:24 am

  75. Limiting number of laws: Result would (I believe) be incredibly long, complex laws: conglomerates of disconnected items lumped into a single law because of the limit on total number of laws.

    LeisureGuy

    2 April 2011 at 11:27 am

  76. In Civil Law Countries, the legislation must be so specific as to preclude alternative interpretations. Unfortunately, the Common Law assumes that Laws will be half baked and will require interpretation by judges.

    Perhaps, our problems with Legislators could be more readily solved by transferring the Federal / State governments from a Common Law system to a Civil Law system (Louisiana is, in fact a Civil Law system as is most of the legal systems in Europe).

    Professor Weatherwick

    2 April 2011 at 11:31 am

  77. Such a change would greatly diminish the stature of the legal profession in this Country as solicitors in civil law countries are not as well regarded as the common law solicitors and barristers of modern USA and England. Given the strong English influence in the original colonies, I see seperation from common law traditions as very unlikely.

    robsweatherblog

    2 April 2011 at 11:36 am

  78. Actually, this change to a Civil Law System would be easier than the change to driving on the right side of the road. There is an old adage “…change is always good as long as the other guy is doing it…”.

    Professor Weatherwick

    2 April 2011 at 11:39 am

  79. Bear in mind that the civil law has its roots in Roman Empire. Its emphasis on codification makes it less maleable for complex society. This primer will help to inform the issues.

    http://www.fjc.gov/public/pdf.nsf/lookup/CivilLaw.pdf/$file/CivilLaw.pdf

    robsweatherblog

    2 April 2011 at 11:39 am

  80. Civil Law has underpinned many of the Countries in Europe.

    Professor Weatherwick

    2 April 2011 at 11:40 am

  81. An interesting thought just occurred to me. The reason the US Constitution only mentions a Supreme Court may be that the founders envisioned a Civil Law System where no other courts would be necessary. Keep in mind that the Constitution was written in an era where all things British were taboo. In fact, in a vote in the new Congress, German lost by one vote from becoming the language of the USA.

    Professor Weatherwick

    2 April 2011 at 11:43 am

  82. The age old adage “forget about the mules, but load the wagon…” seems applicable here. We seem to agree on the changes that are needed, but we don’t care as much about how we get there.

    robsweatherblog

    2 April 2011 at 11:55 am

  83. I suddenly feel the urge to create yet another 3-prong solution. This time we are focused on the problems with Legislators. Specifically, I would:
    -transfer the Fereral and State legal systems from a Common Law System to a Civil Law System;
    -limit the number of bills / laws which can be enacted each legislative session; and,
    -force all Legislators to sign off that they have read any bill / law they vote for.

    Professor Weatherwick

    2 April 2011 at 12:00 pm

  84. There is no question but that these 3 items should be in the “wagon.” In this regard you have hit the issue right on the head Professor. The problem is, with the wagon properly loaded, now we have to loop back and deal with those pesky mules to get these changes moving. Its the difficulty of implementation which hog-ties efforts to change the legislative system.

    robsweatherblog

    2 April 2011 at 12:06 pm


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Follow

Get every new post delivered to your Inbox.

Join 1,275 other followers