Re: Hello from Russia

Andrei Medvedev wrote:
"Ken Smith" <forget@xxxxxx> wrote in message news:43F764E9.9040607@xxxxxxxxx
EvilOppressorOfConservatives wrote:


Discussion of comparative law is rare and generally discouraged by
the locals, and American courts tend to harbor a distressing disdain for
the strictures of international law. Ironically, the average Russian
might have more enforceable human rights than we do here.

As an (average) Russian I am little bit surprised by your words. The mere
fact that American courts do not recognize AFAIK international court's
jurisdiction does not mean itself that you have said above.

No, it doesn't. What I speak of requires more elaboration.

You may believe
me as to Russian who used to read your court's decisions and our's.

That is true and not just simple words hat adjudication and, especially,
enforcement processes are HUGE problems in Russia.

As it has been explained to me -- and please correct me if I have been misinformed -- the Russian language has a wonderful word to explain this apparent contradiction: "vranyo." In substance, I am told that it means "you know that you are lying, I know that you are lying, and you know that I know that you are lying, but we both smile and nod in agreement."
American law has become a Potemkin village, where a vast gulf separates official pronouncements from reality. Allow me to illustrate this point by a reference to your history:

Article 125 of the old Soviet Union’s 1936 Constitution guaranteed
Soviet citizens the freedom of speech and of the press. But the
Stalinist law courts never enforced those rights, and if you ever
dared to speak freely on public issues of the day, thereby angering
your betters in the government, you would be branded as ‘mentally
unstable’ and eventually, sentenced to either a gulag or mental
institution in one of Andrei Vyshinsky’s infamous “show trials.”
Stalin’s judges were knowing accomplices to this judicial travesty,
never failing to find the ‘facts’ Vyshinsky needed to hear.

From that example, we can derive a universal rule: The only rights you can have are the ones you have the courage to assert and the courts, the character to enforce. While majorities can raise armies, elect leaders, and appoint judges, individuals have no recourse other than the courts, and if they will not enforce your rights at need, they become liberties, to be taken away by your betters in the government for any reason or no reason at all. In easily the most famous passage in American law, Chief Justice Marshall explains:

The very essence of civil liberty certainly consists in the right
of every individual to claim the protection of the laws, whenever
he receives an injury. One of the first duties of government is
to afford that protection. . . .

Marbury v. Madison, 5 U.S. at 163.

It is that essential right which separates a government of laws from a government of men.

Now, let's turn to structural considerations. The sublime beauty of a traditional common law system is that it keeps judges independent of the control of politicians, which in turn, frees them to remain faithful to the law. In turn, the concept of binding precedent is designed to keep judges from becoming petty tyrants. As I explained it in an argument to our Supreme Court:

As arbitrary discretion is the mortal enemy of the rule of law, a
judge’s fidelity to precedent is essential to the preservation of
our personal liberties. Alexander Hamilton wrote, “[to] avoid an
arbitrary discretion in the courts, it is indispensable that [judges]
should be bound by strict rules and precedents, which serve to define
and point out their duty in every particular case before them.
Blackstone noted that a judge’s duty to follow precedent was derived
from the nature of the judicial power itself: a judge is “sworn to
determine, not according to his own judgments, but according to the
known laws.” 1 William Blackstone, Commentaries *69 (1765). A
century earlier, Lord Coke observed, “[i]t is the function of a judge
not to make, but to declare the law, according to the golden mete-wand
of the law and not by the crooked cord of discretion.” 1 E. Coke,
Institutes of the Laws of England 51 (1642). As in all but the most
exotic cases, the law already has been established, the judge is
envisioned as little more than an administrator, playing what
Professor Llewellyn called “the game of matching cases.” Karl N.
Llewellyn, The Bramble Bush 49 (1960).

The virtue to society of stare decisis goes far beyond the temporal
assurance that individual litigants were treated fairly. The rule
of law thus expressed furnishes “a clear guide for the conduct of
individuals, to enable them to plan their affairs with assurance
against untoward surprise,” streamlines adjudication by obviating
the need to constantly relitigate recurring issues, and bolsters
public faith in the judiciary as “a source of impersonal and rea-
soned judgments.” Moragne v. States Marine Lines, 398 U.S. 375, 403
(1970). Significant uncertainty in the application of the law
impairs everyone’s liberties, for when “one must guess what conduct
or utterances may lose him his position, one necessarily will ‘steer
far wider of the unlawful zone,’” Speiser v. Randall, 357 U.S. 513,
526 (1958), as “the value of a sword of Damocles is that it hangs --
not that it drops.” Arnett v. Kennedy, 416 U.S. 134, 231 (1974)
(Marshall, J., dissenting). Or, as Justice O’Connor put it, “Liberty
finds no refuge in a jurisprudence of doubt.” Planned Parenthood of
S.E. Pa. v. Casey, 505 U.S. 833, 844 (1992). As such, it is not
without cause that Justice Story observed:

A more alarming doctrine could not be promulgated by any American
court, than that it was at liberty to disregard all former rules
and decisions, and to decide for itself [what the law is], without
reference to the settled course of antecedent principles.

Anastasoff, 223 F.3d at 904 (citation omitted).

The danger occurs when judges decide that they don't have to follow the law any more. As two of our Justices recently wrote in dissenting opinions:

As a preliminary matter, I take issue with the Court’s failure to
reprove, or even to acknowledge, the Missouri Supreme Court’s
unabashed refusal to follow our controlling decision in Stanford.
… Quite apart from the merits of the constitutional question, this
was clear error.

To add insult to injury, the Court affirms the Missouri Supreme Court
without even admonishing that court for its flagrant disregard of our
precedent in Stanford. Until today, we have always held that “it is
this Court’s prerogative alone to overrule one of its precedents.”

Roper v. Simmons, 543 U.S. ___ (2005), O’Connor, slip op. at 7, Scalia slip op. at 23 (dissenting opinion, internal citations omitted).

Increasingly, judges don't even bother following precedent any more. They even fabricate facts when it serves their purposes. As Professor Monroe Freedman, one of our nation’s preeminent scholars on judicial ethics, observes:

Frankly, I have had more than enough of judicial opinions that bear
no relationship whatsoever to the cases that have been filed and
argued before the judges. I am talking about judicial opinions that
falsify the facts of the cases that have been argued, judicial opin-
ions that make disingenuous use or omission of material authorities,
judicial opinions that cover up these things with no-publication and
no-citation rules.

Anthony D’Amato, The Ultimate Injustice: When a Court Misstates the Facts, 11 Cardozo L.R. 1313, 1345 (1990), available at http://anthonydamato.law.northwestern.edu/Adobefiles/A90f-ultimate.pdf.

If a judge gets to write the law whenever he damn well feels like it, he is no less a tyrant than Stalin himself. And *that* is the kind of out-of-control judiciary we have in America today.


It is obligatory that Helsinki signatory states not manipulate the
minds of their citizens; that they not step between a man and his
conscience or his God; and that they not prevent his thoughts from
finding expression through peaceful action. We are all painfully
aware, furthermore, that governments which systematically disregard
the rights of their own people are not likely to respect the rights
of other nations and other people." Hearings on Abuse of Psychiatry
in the Soviet Union before the Subcommittee on Human Rights and
International Organizations of the House Committee on Foreign Affairs,
98th Cong., 1st Sess., 106 (1983) (Remarks by Max Kampelman, Chair of
the U.S. Delegation, to the Plenary Session of the Commission on
Security and Cooperation in Europe).

I see your reference as an example of your common law system in action. Your
judges have to be more amenable and sensible because your system of law
makes them think constantly.

What you probably don't realize is that over 80% of American appellate decisions aren't even published. There is little objective evidence to indicate that -- in those cases at least -- judges even bother to think.

When a court bound by the rule of stare decisis publishes an opinion, it doesn’t just declare the law of that case, but declares the law for all time. Accordingly, courts have to take great care in writing them, contemplating the often obscure and unexpected implications of their decisions. At the end of the day, the typical published appellate opinion is a thoughtful and searching examination of the legal issues raised in the dispute.
By stark contrast, the unpublished opinion is an appallingly slipshod affair, with legal issues resolved with all the “surgical precision” of a monkey throwing darts at a dartboard. The leading proponent of unpublished opinions, Ninth Circuit Court of Appeals Judge Alex Kozinski, openly admitted that panels in his circuit may issue 150 rulings per three-day session -- that’s less than ten minutes per decision! Allowing for bathroom and coffee breaks, phone interruptions, banter concerning their golf game, and bookkeeping chores, the typical appeal gets five minutes of their attention. They haven’t read your briefs; they haven’t seen your complaint. And they don’t have a clue as to what the facts or legal issues are in your case. As University of Toledo professor William Richman said to Forbes magazine, “This is judges disobeying the law.” Forbes goes on to report that

Last year [i.e., 1999] federal appeals judges disposed of 79% of the
26, 819 cases they decided by issuing so-called unpublished decisions,
up from 37% in 1977. Over 7% of the unpublished decisions consisted
of a single word. Whether curt or long-winded, an unpublished decision
isn’t precedent. That means judges can be sloppy. They are not
accountable for illogic or inconsistency in the rulings.

Judges insist that they issue unpublished decisions only in simple,
noncontroversial cases, where the answer is clear cut. The statistics
say otherwise. Appeals courts issue unpublished decisions in 24% of
cases where various judges disagree so much that one writes a dissen-
ting opinion, and in 37% of the cases where they’re reversing the
trial court.

Truth be told, appellate judges tend to see their opinions as monuments to themselves, with Judge Kozinski of the Ninth Circuit as one of the more flagrant offenders. Emily Bazelon reports that he is “one of the best stylists on the bench, routinely working through 50 or more drafts. ‘He would often ask, ‘Does it sing?’’” Bear in mind that this is the very same Judge Kozinski who admitted that panels of his Circuit spend roughly ten minutes on appeals not selected for publication, and claims that the crushing appellate workload makes non-publication a necessity.

Now it would seem that if Judge Kozinski only worked through three or four drafts of each case, he could give every appeal the consideration litigants have a right to expect. There can be no justification for a judge writing a Shakespearean sonnet to justify a decision, while willfully ignoring a dozen other appeals brought to his or her atten- tion. This practice visits grave injustice upon those children of a lesser god, unable to curry the judges’ rarefied favor. Judge Murnaghan of the Fourth Circuit admits that

…it is well known that judges may put considerably less effort into
opinions that they do not intend to publish. Because these opinions
will not be binding precedent in any court, a judge may be less
careful about his legal analysis, especially when dealing with a
novel issue of law.

Kozinski forgets that his job is not to produce literary masterpieces as monuments to his ego or as fodder for legal casebooks but rather, to adjudicate disputes. And while the elite few who got his legal Rolls Royces may delight in his craftsmanship, the vast majority saddled with his judicial Yugos have cause to be livid.

That can not be unnoticed by a Russian lawyer
who had read any American court's decision

What you get is our best decisions, which create the illusion of an orderly rule of law. In the real world, our law doesn't look anything like that -- and in many instances, would totally shock the conscience. For instance, do you think a litigant could get a fair hearing in front of a judge who could lose his house if he ruled in that person's favor?

That case actually happened. In America. Recently.

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