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.