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The Lawyer-Judge Bias in the American Legal System
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If you cannot understand why so many legal decisions seem to lack basic common sense, you will get and read this book.
If you wonder why there are so many lawyer jokes, and why people like to quote from 2 Henry VI, get and read this book, because the privileged place of lawyers in America is laughing matter, and Barton shows whence it arises and how unfair and damaging it is.
So get and read this book, the sooner the better, and then start advocating for change.
One thing I'd like Barton to address: if lawyers are officers of the court, as courts have so often said, then how can lawyers be legislators without violating the separation of powers?
Oh, yes, at the risk of keeping other readers waiting, and without wishing to detract from Mr. Barton's very able treatment of one weakness in the American judicial system, I must suggest that reform of the American system of justice can be effective only if this specific problem (as well as other specific weaknesses) are addressed in the broader context of systemic reform. Lawyer Theodore Kubicek has accomplished this kind of critique in his
brilliant (and far more affordable) ADVERSARIAL JUSTICE: AMERICA'S COURT SYSTEM ON TRIAL (New York: Algora Publishing, 2006).
Several chapters discuss cases in the areas of constitutional criminal procedure and civil constitutional law as examples of this process. For example, the famous "Miranda" decision put emphasis more on having a lawyer present than on protecting the right to silence, while doing nothing to ensure the quality of legal representation criminal defendants received. While this argument surely overstates the case, it does raise the important issue of whether clients (paying or otherwise) have adequate means to guarantee the quality of the legal services they receive.
Two chapters are devoted to lawyer regulation, and I think these are particularly valuable discussions for the non-lawyer. Why are lawyers the only profession that is self-regulating, since the courts and professional bar associations, and not legislatures, exercise authority over practitioners? More importantly, can the courts adequately supervise practitioners given their close working relationships with lawyers? How effective are lawyer disciplinary mechanisms? This is all good material in this section and fills in a lot of gaps in the public's knowledge of how the legal profession evolved and is regulated.
Other chapters raise important issues. Can dissatisfied clients utilize legal malpractice to secure relief against their lawyers? Why are lawyers able to invoke the attorney-client privilege to cloak their discussions with clients? Why should lawyers be the ones primarily involved in drafting new rules of evidence and procedure? Why are lawyers largely exempted from the coverage of debt-collection and consumer protection statutes? Once again, while one may not agree with how far the author carries his argument, these chapters are quite effective in educating the reader as to these issues.
I found two of the final chapters to be particularly effective. One dissects the Enron disaster so clearly I finally got a good understanding of what it was all about. Why, asks the author, did the lawyers largely emerge with their hides intact while the accountants got decimated? However, the most outstanding chapter discusses whether the law has become too complex and why. This is a key issue not often discussed. The author's proposed solutions (principally lay judges and a professional European style judiciary staffed with individuals who never were lawyers though legally trained) I think could have been more fully developed, but there is enough here to generate some serious thought on the issue of reform.
All told, a very stimulating introduction to this important issue, with sufficient detail to capture the interest of the legal professional, but carefully written to be completely understandable to the general reader. The book runs some 300 pages, but does lack an index and bibliography though the footnotes are abundant. Hopefully, it will stimulate some good thinking on a number of these important issues.