The Decline and Fall of the American Legal System


The Decline and Fall of the American Legal System

By Dwight Owen Schweitzer

June 30, 2010

Many years ago, as a young lawyer full of idealism in the belief that one person can make a difference, I loved the law and saw it as the quintessential instrument of that process. I still recall a professor of mine who lectured my entering class at Vanderbilt Law School, telling us ‘the law is the grease on the wheels of civilization’. If so, civilization is in trouble because the state of our legal system is in trouble and it is a process that has gone on for a long time.

 In the late 1970’s the Connecticut Bar Association conducted their annual poll of members of the Connecticut Bar, asking them to rate the judges they had appeared before at least 6 times in the preceding two years on such qualities as judicial competence, demeanor, intellectual integrity and the appearance of bias. For the first time (and as it turned out the only time) they published the results. The reaction of the Judiciary prompted me to write an editorial in the Hartford Courant, the newspaper of record in the State of Connecticut. The thoughts I expressed then I think are worth repeating now, viewed in the context of the current perception of both lawyers and judges from both inside and outside of the profession.

        Judging the Judges: A Needed Move

                       By Dwight Owen Schweitzer January 27, 1977

It is a significant milestone that the results of the Connecticut Bar Association survey of our judiciary should at last be made public. It is after all the public who are served well or ill by how justice is administered, and only through public awareness will there be accountability and constructive change. The veiled secrecy in which the Judicial Branch has heretofore been swathed has done little to promote competence, diligence and intellectual integrity.

As a practical matter judges have been virtually unaccountable for a broad range of abuses, mostly of a technical nature which are known only to lawyers. Judges however, exert tremendous influence over the lawyers who must appear before them because a part of what a lawyer does requires the cooperation of the judiciary. That cooperation, if not forthcoming, can cost a lawyer and eventually his client, substantial amounts of time and money as a consequence. Openly criticizing a judge can be devastating to a lawyers career and his ability to represent his clients in matters coming before the courts.

Unfortunately the quality of our judiciary varies widely. In most jobs there are influences exerted to curb excesses; the boss, the customers, the clients—that broad class of people who have to be pleased with one’s work. This principle does not apply to judges. The Judiciary committee of our legislature has never removed or refused to reappoint a judge, though many have been known to be incompetent. The committee holds it’s hearings in secret and requires witnesses to submit their testimony in writing and in advance. Common sense dictates that no lawyer would appear to testify under those circumstances yet, by and large, only lawyers know which judges abuse the power and trust vested in the office they hold.

The problem is further complicated by the fact that the system for selection of judges rates political connection and service above capability and merit. Cronyism is rampant in the judicial selection process where people of influence exert tremendous power in proffering the names of judicial nominees. As a consequence good judges (and there are many) are as often as much an accident of the system as are their incompetent counterparts.

An independent judiciary, crucial to the development of our legal institutions, should never mean independence from criticism, especially from the only body that has the requisite expertise to criticize. The proliferation of law has resulted in more and more people coming into contact with our legal system, and especially the courts to resolve their differences. There must be viable checks and balances to the power exercised by the judiciary. Without this survey realistically none exists.

Judge Saden’s reported suggestion that the lawyers identify themselves curiously illustrates my point. Why does he want to know? If I had to sigh my name to that evaluation it certainly would not have colored my thinking but it would undoubtedly curbed my candor (unless of course I had simultaneously decided to go to medical school). Equally absurd is the suggestion that judges rate lawyers. The majority of a lawyers work does not cause the lawyer to come in contact with judges, whereas lawyers participate totally in what judges do and how they exercise their power.

Furthermore, to dismiss the results of that survey as coming from a group of soreheads or poor losers is just nonsense. The survey required a lawyer to have appeared before each judge he rated at least six times within the preceding two years. It is highly unlikely that any lawyer ‘lost’ all six encounters especially as much of court decision making includes compromise.

This is not to say that the survey results were completely accurate and it is doubtful that any lawyer would agree with all of its conclusions. It is necessary, however, to the development of the institutions of a democratic society that there be no sacred cows, and no source of power hidden from public awareness and scrutiny.


 Since that time, lawyers are allowed to advertise, Judges are often elected and not appointed and other superficial changes have altered the appearance of our legal system without any real systemic change and certainly not for the better, lawyers are held in less esteem than used car salesmen and the quality of the judiciary has deteriorated in varying degrees from one end of the country to the other.

Most lawyers who have practiced more than 10 years would rather be doing something else and the public’s perception of justice is that it is more a commodity to be bought and sold or a luxury for the rich who can afford lawyers when most cannot, and not a basic right of being a citizen of the United States.

In Florida, if a litigant wants an official transcript made of anything argued before a judge, other than a trial, they have to bring their own stenographer at their own expense, which offers the judiciary the ability to be as arbitrary and dismissive of the law as they wish with no record of what was before them. Often cases are dismissed without opinion to explain the legal basis for the decision and the Circuit Court of Appeals almost universally affirms that dismissal also without opinion giving the unsuccessful litigant no further right of appeal and no reason to understand why the door to the courthouse was closed in their face.

I think it is fair to suggest that the cohesiveness of our society is breaking down exponentially, that the gulf between the haves and the have not’s is widening, that the respect for law is equally disregarded by the enforcers of the law as it is by those who break it, and when taken as a whole, it is a process that, if left to continue will be cause for the wheels of civilization to  ultimately come grinding to a halt.


The ‘China Syndrome’ and The G 20

The ‘China Syndrome’ and The G 20

By Dwight Owen Schweitzer June 26th 2010

I suppose it all started with the Marshall Plan to save capitalism in Western Europe at the end of WW II. Since nothing breeds success like success, from that not altogether modest beginning, the use of capitalism as an element of our foreign policy, has been a, if not the, cornerstone of US foreign policy. We withheld it from South Africa to bring an end to apartheid, embargoed Cuba with less success but all in all it has been the zeitgeist of how we deal with friends and foes who we want to help or punish but don’t want to go to war with while still getting a message to.

When the Cultural Revolution in China proved an abysmal failure in invigorating the Chinese economy wiser heads began to prevail there, and in the post Maoist era, economic growth was viewed in more international terms by the Tiananmen Square leadership who saw no relationship between economic systems and political ones. They realized early on however, that they needed admission into the family of trading nations who had been given by each other what is known as ‘most favored nation’ trading status, a concept that means simply that any trade barriers a country has cannot be made worse when it comes to you. In order for China to expand its ability to trade with the rest of the developed world, they needed entrée into what is now known as the G-20, who are presently meeting in Toronto to manage the ever evolving crises that effect world trade and finance, and all of whom enjoy that coveted position of having most favored nation status with each other.

When we go back to those thrilling days of yesteryear when China an international menace, isolated and insulated, it took Richard Nixon, a sufficiently credentialed anti-communist, to begin the trend that has made China the economic super power it is today. While there are those who sigh with some level of relief that they are looking and acting more and more, like us, what is missed in the gloss of the warm and fuzzy relationship we seem to share for the most part, is that China and the United States are in a state of war. It is not a shooting war it is an economic war, and but for a few of the more backward spots in the world where real war is waged as we think wars ‘ought to be waged’ this is a very different kind of war. It is a 21st century kind of war, a war over wealth and wealth is power in a world where GNP is the mark of status and the goal to be improved by those in power.

By that standard, China lamenting that its’ economic growth will fall to just under 8% as a result of the world economic crisis is the political equivalent of laughing all the way to the bank. The United States by comparison, and comparisons are much more complex than is implied here, is happy to see a modest 2.9% growth in GNP in the last quarter. More importantly, China is the largest creditor of the United States, a situation that is going to get worse long before it gets better if it ever does.

How they were able to carry this out in such a relatively short time, one might ask, and here the answer really is simple, so simple that the degree of stupidity that allowed it has to be called into question. Remember that the Chinese wanted ‘in’ to that select group of nations that had most favored nation status with each other for the most logical of reasons, foreign trade meant hard currency when the Yuan was not worth the paper in was printed on in foreign exchange little more than a generation ago. Here is where we get back to the marriage of foreign policy and international monetary policy and the overriding idea that fostering the growth of capitalism is the mid-wife of democracy. To give the devil it’s due, no one thought that a central government could run a capitalist based economy with any degree of success and so they were willing to take the chance that by promoting capitalism in China they would not only come to look like us, they would come to be like us.

The policy makers in China however, knew better, they would just invite us in to ‘capitalize’ their economy while making sure that no foreign company allowed ‘in’ was controlled by the foreign interests that brought it. OK, that was not too hard to take, given that a billion potential consumers were worth some sacrifices, and after all we wanted to help them become just like us as quickly as we could because we knew that the old methods there resulted in things like the massacre at Tiananmen Square, and those sort of things are less likely to happen when we have trade sanctions as an added weapon to keep them in line.

But there was just one more problem to solve; they needed to buy lots of stuff to get their new economic engine started, not to mention up and running and we wanted to be sure this introduction into the world economic trading fraternity was a success and they had only one modest request. In order for their currency to be respected in the markets they needed to get to, it would be really helpful if they could peg its’ value to the dollar. Well, if they were buying more than they were selling that was just fine and who thought that would change anytime soon. However if they were selling more than they were buying…..but who ever thought that would happen and if so, trade deficits come and go. China was a poor country at the time, third world by most standards, with a billion mouths to feed, not much of an infrastructure, and so we let loose a unique economic engine upon an unsuspecting world, a regulated capitalistic economy.

The magnitude of that mistake, while no longer in its infancy, will, at current and projected rates of growth make the Chinese economy the largest in the world in less than 15 years. It is interesting to remember that not so long ago the Chinese questioned whether the dollar should be the standard by which other currencies are measured. No one took them seriously at the time but that trial balloon is the harbinger of the day when it is the Yuan.

In parting, it is worth noting two interesting statistics; the Chinese have more honors students than we have students and in ten years they will be the number one English-speaking country in the world.   ‘…..For the times they are a changin….’

‘Economics 101’ and the Economic Effect of 35 Million Lower Credit Scores ©

By Dwight Owen Schweitzer     June 17th , 2010

In its most basic terms the relative health of the American economy is measured simply by how fast a dollar changes hands; sounds too easy an explanation to be true but it is. It is all about spending and in our economy much of that spending is with money obtained on credit. In fact, in every period of our economic expansion there was a common denominator; spending, especially consumer spending increased while interest rates remained relatively stable and much of that spending was with money obtained on credit. Whether it be for housing or cars or household appliances, the list is as long as the items one can think of but that dollar needed to keep moving. A buys from B who now has the money to buy from C and so it goes. Conversely if A worries about buying from B and doesn’t, B doesn’t have the money to buy from C so C has no incentive to produce more goods to be sure that B can buy what he wants and in virtually all of those cases that money comes from the ability to borrow most if not all of it.

The best lesson of the power of credit (for good or ill) is the housing boom that was initially driven by banks no longer having to hold the mortgages they offered but were able to sell them to investors replenishing their capital enabling them to make another mortgage loan and so on. It is not a perfect system as we have learned to our regret in recent years when the excessive availability of credit drove up prices requiring higher levels of borrowing until, once again, as has happened often in our economic history, the bubble burst and recession teetered on depression. Stated differently money moved slower and, to attract it prices fell and the economy contracted.

The difference between the present recession and past recessions since the great depression of the 1930s is threefold and highly significant. First it is deeper than those in the past, second it affects consumers more directly because the ‘bust’ was in the housing sector, which acted as a stabilizing effect on the vicissitudes in the rest of the economy and thirdly and most importantly, it has had the effect of removing millions of people from being credit worthy. The seriousness of this cannot be over emphasized because an economy based on credit that has suddenly made millions who were credit worthy before this recession not credit worthy now. They cannot buy homes or cars, or home appliances or any of the myriad of things that need a credit score they no longer have. In effect the buying population of the country has declined due to the methods of credit scoring which are a mystery to the most educated of us and which will likely keep them from the pool of borrowers for a considerable time. That is the real cost of this economic downturn, the removal of consumers who, as confidence improves, could come back into the market place and turn things around but can’t due to the credit score they now carry with them.

What is needed is not the ‘credit repair’ scams that are so prevalent or the good faith efforts of agencies both public and private that offer credit counseling. The entire credit scoring system keeps those whose scores have fallen significantly (and tens of millions have) from ever seeing a return in the absence of strict fiscal discipline which the recession has made a goal out of reach as families try to struggle from day-to-day with late credit card payments and defaulted bills.  Ironically, the scores presently  necessary to get credit have actually gone higher as the average credit score of the American borrower has declined. Therefore the smaller the number of credit worthy borrowers, the greater they will have to spend to keep that dollar accelerating through the economy while those who cannot help fuel the economy due to lack of access to credit have the opposite effect of draining consumer confidence thereby prolonging the recession.

Nor is there a self-correcting mechanism in the system; that is to say that no one knows what they have to do to become ‘credit worthy’, how long it will take, what things they need to be aware of, or careful not to do, or to do and so on. The plethora of opportunities to buy your credit score from one program or another to ‘monitor’ it offers little help in showing how to improve it other than paying everything on time all the time, keeping your debt to equity ratios in the right balance whatever that is, and living within your now diminished means for some unknown time. Sounds pretty easy until you get to the reality that few people are able to do that especially when the loss of their credit worthiness is not their fault and the years of score decline generally need years of score increase, a goal that will be out of reach for millions of Americans for the foreseeable future if ever. More significantly, the absence of the availability of credit requires such a major change in lifestyle that once access to credit is lost, few have the incentive, let alone the ability to regain it.

What the government needs to do is to get together with the banks and the credit scoring agencies and begin a nationally sponsored credit repair program with some government guarantees to incentivize lending so the government shares a part of the risk of loss but also provides guidelines for lenders and borrowers alike of how to truly rehabilitate themselves. This approach alone will have the effect of adding people to the roles of the credit worthy, albeit slowly but at least the average borrower who was ravaged by this economy not only knows that there is a light at the end of the tunnel but also how to get there. The program I envision would be a plus and minus menu that would have a 3 or 4 year ‘life’ and show people exactly what they need to do month by month to reinstate themselves into the capitalist system and in the process help grow the nations economy.