Our current task is to develop a model legal system because the current one, like our nation's financial system, is dysfunctional. We are half-way there with this offering. All six subparts are outlined in an article entitled "A Model Legal System" below. We have discussed subparts #1 and #2 below. This is Subpart #3.

#3. If a dispute cannot be resolved in public dispute-resolution forums then case disposition should be through efficient, objective hearings marked by common sense and evidentiary rules that allows the truth to emerge through predictable, routine application of the law to the facts.

As we work towards A Model Legal System, this is the most difficult subpart of them all. Legal scholar Oliver Wendell Holmes wrestled with this problem for fifty years following his seminal tome, The Common Law in 1881. He put it best. He said the law is only a prediction of the rules that the sovereign power in a society will enforce. Therefore, a lawyer's challenge and primary obligation to the client is make that prediction. A lawyer can only make that prediction if the lawyer knows the rules of the road (ie., legal procedure) and knows what a judge will do given the facts at hand.

Little did you know that it is right here is the problem. Lawyers DO NOT KNOW what a judge will do given the facts at hand. Lawyers do not know for three reasons:

  • Judges are never individually evaluated, so are not accountable to the public nor the Bar.
  • This means that judges have been allowed to run amok. They are allowed to rule out of individual prejudices which precludes lawyers predicting the result for their clients.
  • History has presented our judiciary with a bewildering array of "law" to pick from that nobody, including lawyers, understands. We have statutory (legislative) law, common law, natural law (which U.S. Supreme Court Clarence Thomas follows), constitutional law, equitable law, and so on.

Our laws including rules that apply to evidence and procedure should be thrown out with the bath water and new laws developed that allow truth to emerge through a predictable, understandable process that ordinary citizens can understand and therefore respect.

This is the third subpart of a model legal system. Only three more subparts remain. If our financial systems can be thrown out and begun anew, we can do it with the law. It is every bit as messed up.

Posted on Tuesday, October 21, 2008 at 10:56AM by Registered CommenterLAUREN PAULSON in | Comments1 Comment

Reader Comments (1)

Thank you again for speaking out! The legal system is not just dysfunctional but in fact schizophrenic. Basic laws are written then negated of any real meaning or consequences when the law itself ignores the most basic requirements and any violations in a dispute. Some lawyers, after years of working within this insanity, seem to learn the "double talk" and evasions so rampant and obvious in the system as well. They themselves seem to become so inured to the psychotic state they work in that they no longer recognize it as deranged or wrong. Calls to the State Bar are of no help since they refuse to provide any assistance unless you file an actual complaint when all you are seeking is clarification and explanations. Our legislative leadership in its "infinite wisdom" deliberately ignores the risk to the public when they craft laws they later ignore or void with technicalities elsewhere. The average citizen who finds themselves trapped in the mess has nowhere to turn. There is little hope that right will win out over wrong. They are left bereft of any hope that someone cares enough to try to make meaningful changes. Worst of all in the psychopathic system that exists, the ordinary citizen has no hope of changing it themselves. Only those who've spent years studying it, written or created law or have spent years lobbying or navigating the cesspool can know where to begin, what to do or even hope to be acknowledged by someone who could make changes. Perhaps there is a real disincentive to change as well since a system that was sane, comprehensible and fair would be a system in which attorney services wouldn't be required as often nor would lawmakers have the open pockets access to business and industry they seem to enjoy. How many "insiders" to this breakdown would dare risk offending peers or superiors by admitting to the schizophrenic state that exists let alone advocating or acting for changes?

December 5, 2008 | Unregistered Commenterlegally entangled

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