Restrained Judicial Activism

Posted on Categories Constitutional Interpretation, Judges & Judicial Process1 Comment on Restrained Judicial Activism

In contemporary legal discussion, “judicial activism” is roundly condemned.  This behavior refers generally to any instance in which a court’s opinion is the product of the court following its personal policy preferences instead of the commands of the law.

The favored behavior is “judicial restraint,” which is usually defined by the values of “originalism” (deference to the original intent of the lawgivers), “textualism” (respect for the language of laws), “self-restraint” (respect for precedent) , and “separation of powers” (deference to the prerogatives of democratically elected legislative bodies and/or the States).

The foundations of “judicial restraint” are originalism and textualism.  “Self-restraint” and “separation of powers” are secondary values. Precedent and legislative enactments are binding and commendable only when they are consistent with the original intent and text of higher law, which is not always the case. 

The words of any law (statute or a decision) are the best evidence of its meaning because it is presumed that the law’s Framers picked those words to efficiently describe what they intended the law to require or prohibit.  (For the sake of convenience I use “Framers” to refer to courts rendering a decision or legislative bodies drafting a statute.)  “Textualism” demands respect for the clear meaning of these words.  Unless there is some unavoidable flaw or ambiguity in the drafting which makes the intent of the Framers incomplete, incoherent, or ambiguous, courts should treat laws as meaning what they say they mean.

Textualism has its limitations.  Continue reading “Restrained Judicial Activism”

In America You Can’t Buy Justice. But You Can Rent It.

Posted on Categories Legal Education, Legal Ethics, Legal Practice, Marquette Law School7 Comments on In America You Can’t Buy Justice. But You Can Rent It.

In our final Law Governing Lawyers class, we had an extended discussion of proposed ABA rules strongly encouraging—if not requiring—minimumpro bono work by members of the bar (or law school students). What prompted this was our reading on the unmet need for legal services.  Among the indigent, those seeking immigration or asylum, and the mentally ill, legal services are virtually unobtainable. 

This is especially true for civil actions; at least in criminal actions an attorney can be appointed for an indigent client.  Civil representation for disadvantaged clients, in contrast, is often unaffordable.  When they can afford it, the lawyer is usually one whose entire client base is barely able to afford any fee.  Such attorneys mean well but be struggling with humongous case loads and limited resources.  My basic legal processes are infeasible for them, especially a thorough investigation or discovery.  While trying to help so many in need, they may be unable to provide any client with truly competent or adequate representation. 

Legal clinics (such as our own venerable Marquette Volunteer Legal Clinic) try to fill the gap, but often such clinics can only offer advice and direction.  They cannot or do not provide representation.

Against this backdrop, the ABA House of Delegates has considered and rejected changes to Model Rule 6.1 that would require lawyers to provide at least 50 hours of pro bono work per year, with a relatively cheap hourly buy-out.  There are of course, always mechanistic complaints: how would compliance be recorded? how would the requirement be enforced? what would the penalty be?  These can be worked out.

The real problem seems to be other complaints that are more philosophical.  What can a lawyer accomplish in 50 hours per year?  Would forced-labor representation be substandard?  Shouldn’t lawyers be able to avoid practicing in skill-areas they don’t want to practice in?  And why are we picking on lawyers?  Do doctors or plumbers have to do pro bono work? Continue reading “In America You Can’t Buy Justice. But You Can Rent It.”

Bad Law Makes Tragic Cases: Is Rule 1.6 Unethical?

Posted on Categories Legal Ethics, Marquette Law School, Uncategorized, Wisconsin Law & Legal System2 Comments on Bad Law Makes Tragic Cases: Is Rule 1.6 Unethical?

I am just finishing up Law Governing Lawyers with Prof. Schneider.  I did wonder before the class first met why the course was not called something like “Legal Ethics”; after all, even our text is entitled “Ethical Problems in the Practice of Law” by Lerman and Schrag.

It didn’t take long to discover that the law governing lawyers, while usually ethical, occasionally requires behaviors that cannot possibly be squared with any ethical system.

The one that stands out most is Rule 1.6 in the Model Rules of Professional Responsibility.  In Wisconsin, this Rule is codified as SCR 20:1.6 Confidentiality.

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in pars. (b) and (c).

[paragraphs (b) and (c) omitted.]

The rationale behind the Rule is that effective representation depends on the client’s candid communication with his or her attorney, which depends on trusting the attorney to keep the client’s confidences.  Everyone has a right to fair treatment by the law ensured by effective representation.  I get that, and at first glance, there is no apparent ethical dilemma.  If clients tell their attorneys about ongoing or impending criminal acts, paragraphs (b) and (c) require or allow reporting.

But deeper reflection in class drew out a serious ethical dilemma from tragic cases in which lawyers are given information about past crimes, which does not fit the given exceptions and withholding of which is difficult to justify.  The most tragic cases are child killers whose victims have not been found.  When the killers tell their attorneys where the bodies are, can the attorneys be compelled tell the families or the police?  From several cases, the answer is ‘No’. Continue reading “Bad Law Makes Tragic Cases: Is Rule 1.6 Unethical?”

Thoughts on the Iowa Supreme Court’s Marriage Decision

Posted on Categories Human Rights, Political Processes & Rhetoric, Popular Culture & Law, Uncategorized25 Comments on Thoughts on the Iowa Supreme Court’s Marriage Decision

First, let me thank Prof. Slavin for inviting me to contribute to the blog.  I shall try not to be dull, and in that effort, I begin my blogging stint with a controversial topic, the Iowa Supreme Court’s recent decision striking down the state’s ban on same-sex marriage.

My take on same-sex marriage begins with my personal experiences with same-sex couples, and homosexuals in general.  If the law treats them like second-class citizens, and my experience shows me that this is just not right, then I look to the law to make sense of why this treatment must be so.  And I cannot find the justification.

The first time I met someone I knew to be gay was in the Navy.  I met many during my service.  On our boat, the presence of gay sailors was open and notorious, and no one cared.  They did their jobs and stood their watches; nothing else mattered.  It was the same on shore.   Continue reading “Thoughts on the Iowa Supreme Court’s Marriage Decision”