Lawyers leap to their own defense.

There’s something interesting starting at Volokh. Stephanos Bibas (University of Pennsylvania), is guest-blogging, comparing colonial criminal justice versus what we see in the modern day. He has a new book out: The Machinery of Criminal Justice

Bibas describes Colonial justice as emanating from the fact that in those days people lived mostly in small towns and villages, everyone knew each other, there was a shared morality and social pressures reduced the amount and frequency of law-breaking. It will be interesting to see how this series of essays develops. The responses to it will be even more interesting. Alas they are also predictable.

So far, the reaction has been neutral to hostile. Volokh is a website that tolerates, no I would say encourages, commenters that hate religion and traditional morality. The hosts are – at most – agnostic and have no use for traditional values regarding sexual behavior and relationships.

The hosts are also university law professors and attract comments from many law students and practitioners. With that as background, here is a fair summary of most of the comments:

The assumption that colonials were bigots (and we're so much more enlightened now):

The colonial system sounds like one that could be used to exclude or punish persons who were outsiders or a cultural or economic threat as opposed to a public safety threat, which we today would consider unjust.

The assumption that colonials provided more erratic justice than today:

The danger of focusing on “common sense” and the unfettered airing of each side’s story is that there is a great risk that someone is punished merely for being unpopular, or punished for moral failings that are not actually crimes (i.e., being punished ex post facto), or that findings of guilt and levels of punishments were highly erratic, and so on and so forth.

The ad hominem

Is this a joke? Are you actually attacking due process? Do you also get disgruntled by modern medicine and technology? Are you proposing the Oprah version of criminal justice? Shall we invite pundits to act as judges?

The stupid question

So, how do the Salem witch trials fit into this rosy scenario?

The stupid hypothetical

I saw Stephanos Bibas in the woods commiting [sic] witchcraft to cause my crops to fail and he made an unlawful covenant with the Devil.


I think the touch test should be used to determine his guilt, rather than let him try to plea bargain.

Defense of the status quo (keep the civilians away from the legal machinery)

Like others, the picture of civilian judges scares the crap out of me. Lawyers and judges as gatekeepers keeps an awful lot of bad things from happening.


and as to pleas bargains, i struggle to see how they’re not win-win. society cannot afford to try every case. 26th and california in chicago is already overwhelmed, and that’s with most defendants pleading out. plus, they often get what they want by doing so, too. reduced sentences.

And finally, it’s all about the lawyers (note that in this comment the defendant does not appear)

Both prosecutors and defense attorneys realize that if every case went to trial, the system would collapse. The reality is that 90-95% of all cases end up being negotiated.

However, “plea bargaining” is often used as a pejorative when it shouldn’t be. Both a good prosector [sic] and a good defense attorney should have a sense what a case is worth, in terms of both the level of disposition and the punishment. Both sides are giving something up in return for such a bargain being made.

For the last few years the Left has made it appear that the industry that is most in need of fixing is the health care industry. That is totally false. The system has cost/price problems but at this point it’s the best in the world.

There is an industry that is dysfunctional however, and that is the legal system. The problem is that the people caught up in the gears are ignored. Law professors like Glenn Reynolds are focused on what he calls the Higher Education Bubble. And he has a point that law school costs too much and very many of its graduates can’t get a job when they graduate so they end up as waiters with a six figure debt.

But the biggest problem is not that the law school graduates can’t fund jobs, it’s that the American legal system has stopped being about justice a long time ago. For the criminal bar it’s now about pushing people in one end of a long pipe and processing them without any real regard for truth. For the civil bar it’s most like World War I, where the object is to exhaust the opposition using time and money as principal weapons. The lawyers are the sure winners and the litigants are simply the source of the money to keep the racket going. For the government, law is the way you destroy your political enemies.

Dysfunctional is much too kind a term. Immoral and unjust are more like it.

UPDATE:  Why are there so many lawyer jokes? 

Should Davies be right about what ultimately lies behind the current spate of jokes about American lawyers, perhaps, the time has arrived for the latter to decide what they want to be. Do they want to be part of a profession with its own time-honoured, non-mercenary standards and values or just another business in which anything goes so long as it pays and stays within the letter of the law?

Lest any American lawyers today have difficulty appreciating that distinction, they would do well to reflect on the extract from an address that Davies quotes which was given in 1845 by the chief justice of Pennsylvania John Bannister Gibson. As well as serving as a timely reminder, it provides a fitting note on which to end this review of Davies’ splendid book:

‘It is a popular but gross mistake to suppose that a lawyer owes no fidelity to anyone except his client and that the latter is the keeper of his professional conscience. He is expressly bound by his official oath to behave himself in his office of attorney with all the due fidelity to the court as well as the client and he violates it when he consciously presses for an unjust judgement… The high and honourable office of a counsel would be degraded to that of a mercenary were he compelled to do the bidding of his client against the dictates of his conscience.’ [207]