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Lecture and discussion led by Jon Roland on the legislative agenda for constitutionalists, with an explanation of some of the more important problems facing us and what kinds of reforms are needed to solve them.
Jon Roland
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0:01
good evening 815 this is the january fifteenth 2009 edition of our seminar
0:13
series austin competition beat up thank you for being here this evening the
0:21
announcement agenda for this meeting you know is the legislative program and
0:29
after getting into it further I pretty well concluded that this is going to need more than one meeting to do justice
0:38
to or even to try to give you a overview so I'm going to give you the first part
0:46
of an overview this will be number one we're not sure yet hominid it's going to
0:52
go into but probably going to further into several I'd like to get into enough
0:57
detail so that you can get a handle on some of the things you're going to need
1:04
to do to play your part in pursuing this legislative agenda now I've decided not
1:14
to put the powerpoint on the wall tonight I'll put it online instead it
1:21
doesn't add that much to the present age and it doesn't appear that well on the video and but it will be available for
1:30
you if you want to use it for your own clothes and in that connection I want to
1:37
encourage you to think about doing this kind of talking yourself is not supposed
1:42
to just be a series of lectures by John Rowland my ultimate hope is to train all
1:49
you guys to succeed getting to get out there and deliver the message to the
1:54
world you know I'm not going to be around forever especially some of you younger
2:01
guys need to learn how to do this kind of thing yourselves and that connection
2:08
I want you to think about practicing this doing your own talking on some
2:14
subject of your choice we can tape it as weather record it as we're doing with my
2:20
talks you may or may not want me to put it up online but we put it up
2:28
temporarily it's just that a hidden location so you can view it yourself and critique yourself because very few
2:36
things are more effective at training you how to be a good public speaker thing being able to see yourself
2:43
speaking and that way learn to improve your technique we may have the internet
2:50
but public speaking is still critical tool in achieving necessary political
2:57
reform and because for starting of course with one-on-one encounters with
3:05
individuals and expanding into these videos that I'm producing it will
3:10
hopefully be viewed by a lot of people and by the way don't forget what I do
3:17
post these things online to tell your friends about them to try to spread the
3:24
word different lists and forums and so forth to try to encourage a wider
3:29
viewership because I'm going to try to cover the subject fairly thoroughly and
3:37
this provides a useful tool in addition to my writings and other writings of
3:43
others and the other things that people are doing to build a body of thought and
3:50
discussion that can eventually achieve the results of your desire
3:56
what I thought I do is to bounce back and forth between federal and state is
4:04
also a local dimension to this there are local rules for example to rule the
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court city council rules whatever was compared on this at some point but at
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this point we're primarily focused on the US Congress and the state
4:22
legislature and the reason why it makes some sense the bounce back and forth
4:27
although it might scoff some confusion is that our similarities between the two
4:35
levels of government and what I'm going to focus on this evenings lecture our
4:44
judicial reforms because many of the other reforms depend on them and cannot
4:51
be effectively made without making traditional reforms now some of you know
4:58
I recently attended the natural convention of the Federalist Society
5:03
which is a Association of conservative
5:08
libertarian lawyer mainly that we have others kind of scholars historians economist and so forth and it gives me
5:18
an opportunity every year when I tend to get a sense of where the legal
5:25
fraternity at least one segment of it it's generally more politically active segment is going and it's interesting
5:35
it's been different seeing to watch it develop over the years but one can also
5:42
come to perceive sometimes suddenly the problems that we have in order to
5:49
achieve the reforms we see I was probably most clearly shown by this talk
5:57
by Justin coolio which I recorded and which is
6:03
linked to the website Constitution org
6:08
in which a question was asked of him by
6:14
what criteria do you decide to overturn
6:20
president in order to well be able to fly Bret meaning although not so stated
6:29
was to conform the Constitution it's an ongoing issue especially in that circle
6:36
of lawyers how much precedent should
6:42
roll president should play in the waste federal courts make decisions there is a
6:49
widespread understanding of the problem that when precedents start deviating
6:55
from the Constitution as originally understood and judges make decisions
7:01
based on precedent rather than on the Constitution that eventually you have the line of presidents drifting away
7:08
from the Constitution and never getting back to it I discussed this in a paper
7:15
on my website onstar decisis in which I
7:24
characterized it as a fundamental conflict with constitutional law because
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what you have are two different logical systems the Constitution can be viewed
7:38
as a system of logical propositions which are supposed to be logically
7:45
consistent with one another they don't necessarily cover all issues but none of
7:54
them are supposed to be in conflict with one another and or with the legal practices of
8:03
government officials subject to their its rule and of course we do indeed have
8:11
practices policies and practices in this call will appeal that are in conflict
8:17
with the Constitution as originally understood and unless we can find some
8:22
way to bring their decision-making back to constitutional compliance we're going
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to have an increasingly increasing strain between the two bodies of logic
8:38
as it were which I like to explain by
8:43
reference back to George Orwell's 1984 in winston smith insisting that two plus
8:50
two make four and o'brien say no Winston you're not saying we're trying to get
8:58
you saying here don't use don't you see
9:03
that two plus two make five the family wisdom and you know under threat of having us face chewed off by rats say oh
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no all right all right all right two plus two make five no Winston you still
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don't have it sometimes to make to play 65 sometimes it makes three some time to
9:25
something else it's whatever the party said it means from one moment to the
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next the point is that the logic of
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power and the logic of law are in two
9:41
entirely different systems and president is the logic of power
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and if we allow judges to rely only on precedent then we have a fundamental
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problem and one that is going to lead eventually to I think civil conflict now
10:07
where does it all this lead to us well in his talk Justice Scalia said that he
10:14
would consider overturning precedents in a few extreme cases but he wasn't going
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to go back and review all the bad decisions made by the Supreme Court and he seems to think there are a lot of
10:27
them so he's not disagreeing with us that there are wrong decisions I've been
10:34
made about Supreme Court or that the courts are following them but he's
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saying that I'm not going to do that because quote I'm not enough now what
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he's saying there is that not just that I'm don't want to be thoughtful nut but
10:54
one would have to be a nut to try to review all these past decisions and overturn all these presidents so right
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off the bat he's admitting that no I'm not here to comply with my oath to uphold the Constitution I'm here to keep
11:13
myself out of trouble with all these guys that are going to criticize me if I
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step out of line but you know become not in the middle of the herd but a on the
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edge of it or maybe outside the nerd he talked about catching heat catching hell
11:32
from critics well which critics I don't
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think he wasn't talking about the general public or the kind of people who populate our various forums that
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criticize judicial decision-making he's mainly talking about his peers power
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peers at the higher levels of government society academia and so forth so people at that
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level did not really care what the public things yeah we might cast a vote
12:08
but if we're not going to vote on these issues than it doesn't matter and for
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the most part people don't and what we've seen also from the courts I sent
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out a email message in which I essentially is essentially a little
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selected list of footnotes for a court case in which the court essentially said
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that these are all the reasons reasons why we're not going to challenge the
12:44
constitutionality of this side or the other and if you read between the lines
12:50
what they're really saying is that look we don't want to take the heat for
12:56
deciding these constitutional issues between if we if we take kids if we'll
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decide it on the constable seized on some grounds for deciding it that as
13:10
narrow as possible and we'll never decide a constitutional issue if we can fight it on decided on some non
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constitutional issue so we're going to leave all these constitutional issues unresolved the reason why we're going to
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do that is they don't sit didn't say there but they some judges have set up on other occasions we want you the
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public to fight it out in the political branches we want you to get your
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legislators your Congressman your president people like that to make the
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reforms you see if you do that will support you if and when you do that you
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know we're not necessarily wedded to some etiology here but we're not
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prepared to these other two branches I mean the executive branch has the guns and the
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legislative branch has the money now what do we have we don't have money we
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don't have guns you know push comes to shove you know if they're going to take
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the iris is going to tell you're going to audit you if you don't decide these cases the way we want you to you know
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well some of us might resist that but a lot of my cow our colleagues are not so
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we need the support of the people in order to do what you want us to do and
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we're not getting it and unless and until we're getting it we're not going to help so that lays the burden on us
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which is why I'm speaking here tonight about legislative agenda both state the
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US and state okay well it's easy to say
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all right so we need to get on our
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congressman we need to get on our state legislators to adopt this or that or another but piece of legislation but
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what well attempts have been made to legislate Congress's try to legislate
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judicial rules of procedure only to have the courts say no no no we're not going
15:34
to do that if we try to make us do that whether it's declared unconstitutional
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this is this is our bailiwick we're going to do things our way and of course
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at that point you say well look if Congress can't legislate rules of procedure then what is it that you're
15:57
expecting us to do to take the heat off of you so that your word you're not
16:03
deciding these cases the wrong way from our viewpoint well
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as it turns out there are legislative reforms that speak to rule the
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legislative procedure that could be made but they went has to take a somewhat
16:23
indirect approach to it and I'm going to be getting into that so we're going to
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be look at several categories here of reform first appointment of judges
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assignment of judges to cases grand juries trial juries qualification of
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lawyers judicial rules which I just discussed briefly and forms a pleading
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and
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what is it going to take to try to deep politicize by the way you may notice on
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the hearings today for Eric Holder members of the Senate missin pronouncing
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the word politicized elitism of Apple it
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is a shin of the politicization a little
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English grammar police there okay during
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the Federalist Society convention all these judges were ranting and raving about in judicial independence at all
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session devoted to judicial independence but then the subject came up about his
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bill proposal used grand jury is to remove judicial immunity official
18:03
immunity from judges so that they can be sued or prosecuted or whatever and they
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were all guessed it and they cite as the reason for that it would destroy their
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judicial independence of course from the viewpoint of the reformers who said no
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wait a minute we don't mind if you're independent of the executive branch or look up
18:30
legislative France we don't want is for you to be independent of the constitution of course what they all
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they see is prosecutors members of the
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executive branch using grand juries against people as far as they're
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concerned any reform of that kind would be used by the executive branch to
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control them and they might be right this is the criticism I've made of of
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Dale proposal on numerous occasions that you don't want to make a proposal like
19:08
that unless you to make sure that it can't be captured by the very people that you're sup trying to use it against
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grand juries have been largely captured by prosecutors and very instructive to
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understand how that came about we'll be getting into what we might be able to do
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about that but one of the problems with
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the politicization of judges is n we arise from the fact we motion don't
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really think about it these terms appointing judges to particular positions on a particular court
19:51
starting with US Supreme Court when we appointed judges to place on this e for
19:59
AP Supreme Court for why does nothing in the Constitution that says that we can't
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just appoint federal judges and assign them at random to any of the courts from
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one day to the next even the Supreme Court there have to be a Supreme Court
20:18
but there doesn't have to be a fixed composition of it you can have an entire
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pool of federal judges and on any given day from one day to the next nine of
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them picked at random and this serve on the Supreme Court we almost do that now
20:35
at the lower levels there's a lot of reassignment at judge's coordinate court
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to court when this country is founded a lot of the judges wrote circuit it's
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where the word Circuit comes from they still kept traveling around from court to court to court the cost of paying
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judges is not so great that we could not appoint ten or a hundred times as many
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judges as we've got and that wouldn't be the course that any given judge would
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only handle a few cases it would only be a part-time job for him yeah we could
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pay them but most of the time we could never do other kinds of work we could
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have a research right teach perform
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clerk EP duties or represent indigent defendants pro bono that might help
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bring them to earth as it were and help them understand the problem that
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ordinary people feel feel feel in out of the real world if they were required to
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research write and teach they've learned their subject matter better a lot of judgment really don't know a
21:56
lot but well and if they were charged with filling in all the holes and
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judicial writing that they could find anywhere in the literature okay you guys
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go out and look find all the subjects for Law Review articles that nobody's ever written about before filling the
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gaps research the history of this or that or the other so it would make them
22:25
better judges and of course he would be politicize the course a large degree
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because you wouldn't be able to control who was going to decide cases you could
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have a general influence over who goes into the pool but the result wouldn't be
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a largely determined by random draw of
22:52
course that also means i would recommend that all have judicial panels be
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composed of at least three judgments so you never really have the case hanging
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on some one judge who might be a doofus
23:13
however it would be argued well if you have if you're randomly moving judges around what about their clerks and the
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magistrate's and all these supporting people they would elevate their power they were left in place you would wind
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up the judge shows up you know to court one day is an okay is my first tour case
23:34
in this court not new here and can you guys show me around sure judge here with
23:41
all these cases here is yours and here's the way you need to decide it okay well you have the
23:50
obvious problem with that similar problem with the Congress with proposals for term limits if you limit the terms
23:58
of congressman it means the staffers become too powerful because they go
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there there there for 20 30 years or more they develop relationships with
24:08
other staffers with members of the executive branch with lobbyists with various other people and they become a
24:17
power on dredging cells with an incident of their own a new congressman has
24:22
usually confronted with having to hire staffers who aren't really working for
24:28
him they're working for their tribe and
24:33
that's a problem so we would have to do the same kind of random reassignment of
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staffers of flirts of other people like that as well as of judges and of course
24:48
in today's world of easy transportation easy communication there's no reason why
24:54
we couldn't do this wouldn't necessarily cost that much the main cause of the
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course is going to be much the same and it doesn't matter if we have you know 10
25:10
or under times with many judges that much but I think the results of nostalgia Tory because they could teach
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new generation of their lawyers they could do the research writing do the
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clerking you know somebody has to be flirty mental you judge or representing
25:29
it dependence well we now employ legal aid
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society is our legal aid departments depending on who pays for them and they
25:43
might just well be someone who's better qualified so I would say that it on the
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whole this would represent a real reform that would go a long way towards solving
25:55
a lot of the problems we have now more
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the supreme court
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at a convention of the Federalist Society in 2005 that I attended the
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keynote speaker was our senator john cornyn and as is my habit I'm when
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there's more microphones at which people can ask questions I am almost invariably
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one of the first of microphone make it a point to sit near the microphone and
26:41
trip anybody you try to get there before I do so I this question of Senator
26:48
Cornyn senator Cornyn now the United States Supreme Court can only take about
26:54
80 of the eight of eight thousand cases that are submitted to it each year that
27:00
would seem to be a bottleneck what do you think about the proposal to increase
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the size of the Supreme Court of 227 eyes at them obviously 28 today like the
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Ninth Circuit have cases initially decided by randomly selected panel 23
27:19
that appeal to randomly selected pals of 9 and from their appeal to on bike
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tunnel the 27 and for my revised proposal is with one extra one serving
27:32
as an administrator that would change
27:38
the whole dynamics of the Supreme Court for one thing the any presidential value
27:47
of a decision by the first three wouldn't be that strong that they would
27:53
always be subject to being reviewed by another randomly select panel of 94 by all 27 and by the time if
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it ever got to the 27 on by their be considerable amount of weight and discussion and to date and so forth to
28:10
to support that so of course the the
28:16
audience him it was initially sort of shocked and then they broke into
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laughter and applause course this was a time when the Republican was in office
28:27
and make me beat court packing except of
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course when combined with my other proposals we wouldn't exactly be court backing if we also increase the number
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of judges generally and if they weren't necessarily assignment Supreme Court now
28:49
another one of my reform ideas brought Robinson here and I mentioned again
28:55
leader is to require a unanimous vote a multi judge panel to sustain a power of
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government against the claim by the individual challenging that power but
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nothing in the constitution of the law that says that a multi judge panel has to decide by majority vote five to four
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well that's one way to do it but that's just their practice their policy and
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practice and that should be contrasted with the rule for juries that requires
29:31
them the view animus to sustain a criminal charge against an individual now why should a
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panel of judges decide by you unanimous by majority vote when the jury has to
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decide unanimously well I don't think they should I think it was a single
29:51
judge things that the individual has a an arguable flame of the government
29:59
doesn't have some authority then it ought to be decided in favor that individual even if its twenty even if
30:07
its twenty six to one as if he can convince one judge out of all those
30:14
other judges that the government doesn't have the power the that in my view is
30:20
sufficient doubt that the government has the power and in cases of doubt the
30:27
decision should always be made against the official anyway that's something to
30:35
contemplate there now let's get on to grant very reforms
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first of all the members should be selected at random a lot of people think
30:47
they are they're not least how to stay low our own local judge here but bear
30:56
wants to do that it's select grand jurors the way that trial jurors are
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selected in other words from the voter lists there might be some screening done
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obviously they have to serve for a long period of time so you're here you're going to try and get people who are
31:17
willing to do it but right now the way it's done is a season it's the cronies
31:23
of the judges and some had to the prosecutors and the results are
31:30
predictable the grand jury also often becomes just a rubber stamp for the
31:37
prosecutors and believe it or not as a matter of law the prosecutor is not
31:46
supposed to impede access to the grand jury by ordinary citizens does very
31:53
recently intervene on their behalf of one citizen so he could take a complaint to the grand jury which is how the whole
32:01
thing got started but it shouldn't have to depend on a judge intervening that
32:08
way and well the prosecutor's office said somebody in it said well unit we
32:16
let people have direct access to the grand jury they just be all these frivolous cases well that's what grand
32:23
jury before their they're there to screen out the frivolous charges you know if they if
32:31
too many people are filing frivolous complaints that may be something that grand jury itself months to investigate
32:38
maybe there's a problem with official policies and practices that are not
32:45
perhaps accurately represented by the complaints but there may be some kind of
32:50
pathological situation that requires further and further investigation it may
32:56
also be an educational problem maybe people aren't being educated properly as to what their rights and
33:03
responsibilities are if that's that's the case then that be itself becomes the
33:10
proper subject for the grand jury to issue a report on you might say well you know public schools you need to be
33:18
teaching people what the law is on this or that or the other and what it's not
33:23
and what people your duties are and what they're not and what the duties of officials are and what they're not and
33:29
when they're out of line and of course in the public school they're going to say whoa we don't know how to do that
33:39
grand jury can say okay we'll come in and teach your students so there are
33:46
lots of possibilities now how would you
33:53
actually remove the impediments to citizens access in grand jury what were
34:00
of course first of all you require that the contact information for the grand
34:05
jury be published publicly so anybody knows how to contact them and the
34:13
contact should be made directly the grand jury could press hire a staff or
34:20
somebody to handle the mail or whatever it comes in but it should not be the
34:25
prosecutor being the gatekeeper the
34:30
prosecutor's office the DA is not a neutral party they are a party at
34:38
entrance so they should not be playing a gatekeeper role it can be made a crime
34:47
or cause of action to impede access of the grand jury as well as where we get
34:55
bounced back between the federal and state because that right now there is a
35:01
federal crime making it for a state
35:06
official to deny a right to this is a person if it's a little bit vague and of
35:16
course intended to interpret that narrowly and the way to deal with the
35:23
problem of this kind is simply to be more specific to say among the way is
35:30
that an official can deny the right to someone under this clause is by denying
35:39
access to the grand jury you know ten years ten thousand dollars fine or allow
35:46
we're going to take care of it pretty quickly or to create a cause of action
35:53
and not the first one would come under 18 USC 242 that's in the criminal
36:04
the second would come under 42 USC 1981
36:10
285 which deals with civil cases civil
36:16
jurisdiction and the way that one can open the courts to civil action on these
36:25
issues is to be specific about what it is that if done by an official somebody
36:34
could sue them for it and of course one of the things that could be specified is
36:39
you know impeding access to the grand jury so if these things are properly
36:47
worded they can open the system to intervention by citizens and thereby
36:54
enabling us to begin to move the ball in the direction of constitutional
37:01
compliance generally now one of the
37:06
things that serve that grand juries are not now asked to explicitly decide
37:15
although they do actually decided implicitly it's whether their court has
37:21
jurisdiction over the case now how you say well most grand jurors don't know
37:27
how to decide to relationally leave that to the judge well the judge is necessarily always going to decide
37:34
properly this is particularly a problem
37:39
one of my peeves is where is let me step
37:45
back a second it is part of current procedure that a
37:51
state case can be removed to federal court by just filing it in federal court
37:57
and say removal to federal court and then the federal court has it until it
38:06
decides whether to keep it it can remand it back to state court or can dismiss it
38:13
but it does take time and money and you
38:19
have to answer the argument of the person removing it to federal court why
38:27
is the federal court does not properly have jurisdiction over it and the
38:33
problem arises with that is the federal judge deciding whether or not the
38:38
federal court has jurisdiction over a steak tips for at least the case that
38:45
started in the state now there are certainly many many cases that are
38:51
properly removed to federal court but one that is regularly removed to federal
38:56
court and that I have a problem with is when a criminal offenses committed is
39:02
made by in a federal agent he's charged
39:07
under state law murder or whatever it's removed a federal court and then
39:13
dismissed because he was on duty they
39:18
have already has a visual immunity well the problem is that being on duty is not
39:26
the criteria for whether or not an additional has jurisdiction what campus
39:31
it's poopy is he carrying out the law it's the law not getting a paycheck that
39:39
gets you immunity if you really are
39:44
enforcing the law they make some sense to confer official immunity if at all if
39:54
all you're doing is being on the job and you violate the law that that should not
40:02
be then you shouldn't your immunity's at seas but judge that haven't been
40:08
following that concept and by the ancient for the ancient principal
40:14
announced by me juries were invented because judges can't be trusted so the
40:24
obvious solution is to have a jury grand jury in this case decide on a case of
40:30
removal in other words if there is a conflict of jurisdictions between two
40:37
different courts as you can't grand jury should be convenient to decide which in
40:44
any court has jurisdiction to take it out of the hands of a judgment who is
40:50
and party in interest and let the a randomly selected panel of people decide
40:56
I think we're work that we get better decisions that way
41:02
okay the bill of indictment should be
41:09
considered not just as authorization for
41:14
the property the DA the digital public prosecutor to proceed to conduct a
41:21
prosecution it should be an appointment of the complainant whoever it is to be
41:30
the prosecutor now he wants to let the public prosecutor do it fine he wants to
41:37
do it himself that's okay too now if he's going to do it himself and he wants
41:44
to get the assistance of a puffy prosecutor or maybe he wants to give assistance of others and in any case he
41:51
should be in the driver's seat because there is a fundamental problem with
42:01
people taking cases of official misconduct to grand juries only to
42:09
realize that only the public prosecutor is allowed to prosecute them and of
42:14
course the complaint may be against the prosecutor himself or his buddies in his office or members of law enforcement
42:21
agencies that he works with every day or of course the judge even the judge who
42:27
supervises the grand jury okay we do not want these people to be above the law
42:34
and because they happen again above the law they have been misbehaving that's
42:42
what happens when people aren't adequately supervise if you don't supervise your servant servants they
42:48
become your master so we need to change the system so that
42:56
ordinary citizens can intervene at many points in order to achieve that needed
43:04
reform and a slightly different subject that's not part of my program that I'll
43:10
mentioning here the subject has come up in recent weeks what do you do about
43:17
something like the meltdown a lot of
43:22
people who are attacking libertarians says you know this was a failure of the
43:27
market failure of capitalism no it's not
43:34
but the market market economics only really applies to the interactions among
43:42
organizations or individuals it does not
43:47
describe the behavior within organizations or individuals all right
43:56
there it would be a real stretch to apply market economics to describe the
44:02
operations internal operations of your body all right everyone of yourself is
44:10
not negotiating contracts from one day to the next two prizes there's no
44:15
pricing mechanism involved in the way the cells of your body decide how and when they're
44:20
two things so there are many phenomena
44:27
in this world that are not governed by the principles of marketing anomic and
44:34
in the economic field these are mainly big organizations and milton friedman
44:41
once said in a TV interview which i wish i had a copy of i'm in favor of free
44:48
markets but a lot of large organizations he was in in defense second if that
44:54
saying that all right what is the problem with large organizations Alan
45:00
Greenspan said that he was shocked and surprised and alarmed that large
45:08
organizations with that's not to wear to use but that's what he meant we're not being disciplined by the market and
45:16
course the answer is that when you have large organizations up making decisions
45:22
according to their own internal dynamics they are nothing that's not necessarily
45:29
constrained by the marketplace especially when they get too large too well-connected are all are too many play
45:36
the same strategy when that happens they're beginning to emerge as a single
45:42
large organization maybe not legally or formally but they are acquiring the
45:50
characteristics of a monopoly so you have is monopolistic behavior
45:58
and part of the problem with the dynamic internal dynamics of large organizations which are typically organized in a
46:05
hierarchical fashion is that conflicts of interest developed between typically
46:11
between middle management upper management and the lower staff people
46:16
and the particular problem is in the middle management area because these
46:23
guys are on the way up they hope to rise within the organization and they will
46:30
often engage in practices that advance their careers that are inimical to the
46:37
best interests of the owners cullman owners of the organization and we can
46:44
see that dramatically in the meltdown situation the owners were in effect
46:53
taking the view well as long as the profits are coming in you know we don't
46:58
care what malevolent management is doing well show that to the investors of
47:04
Barney Madoff he showed them a parent
47:10
profits so then they didn't question his business practices in fact he was a kind
47:17
of middle management between the investors and the investments and there
47:27
is with the results we see as one
47:32
poor investor put it well how prepared to risk but I wasn't prepared for fraud
47:40
but there's a fine line between risk and fraud particularly when the incentive
47:48
structure is such that the people involved win either way even if their
47:55
investors lose and you cannot count on
48:01
people to always do their job the way they say they are you doing it you have
48:06
to supervise them in some detail so how does that relate to grand jury as well
48:12
like a lot of libertarians I'm suspicious of government intervention a
48:18
bureaucrat going around and applying some statute or regulation you know to
48:25
the operations of the company generally accomplishes very little except to raise
48:30
the cost of that company the company might even welcomed it because it can suppress competition from smaller
48:36
competitors most of the regulations that we've got on the books now arose from
48:43
that reason it started about 1886 with the Interstate Commerce Act which was
48:51
mainly directed at the railroads and would be very successfully enabled the
48:57
railroads the big ones accepted it even supported it because it enabled them to
49:03
stop out the little railroads and the coach lines and the trucks people like
49:09
that but were there lot or weren't any trucks then but you know later on that
49:16
became the local competitors so what if n is
49:24
alternative is there nothing that can or should be done deal with a problem that
49:30
I've been discussing you know because when I or when organizations become too
49:37
large too well-connected or play the same strategy they become the cross the
49:45
line into becoming matters of public concern all right you might be you might
49:52
own a factory and you're believing a stream are putting pollutants in the air
49:59
as well as my land my factory I should be allowed to do what I want to hear we
50:05
said wait a minute and their externalities here you're imposing external costs on your neighbors it's
50:12
okay to let it let them sue me well the problem is that no one of them is being
50:18
injured enough to make it worthwhile for him to hire a lawyer and they could all
50:24
get together in hire a lawyer class-action suit but that's of course very expensive you may recall the movie
50:31
with John Travolta civil action where a bunch of citizens trying to do that you
50:37
know based on trilla on a real case and eventually they won but the lawyer went
50:44
broke now it is that I recommend the
50:52
movie because it provides a classic exposition of a problem that citizens
50:58
have in dealing with certain kinds of threats and what I propose as a solution
51:06
is to use grand juries to investigate these situations not to apply any particular
51:14
set of rules or regulations or statutes but just to poke around and see if these
51:22
large organizations are doing anything that is a threat to the public or to
51:29
their shareholders and if they find something to present it to issue it was
51:38
call a presentment a grand jury report is call a presentment now they wouldn't
51:45
necessarily have to reveal any trades for secrets or anything that would be inimical to the proper interest of the
51:53
organization but if they discover for example that jamil management is well
52:02
favorite issue of mine is refusing to hire anyone with more than 10 years of
52:08
experience because they want compliant workers who aren't going to challenge
52:14
bill management's policies and practices and you grant Georgians there well well
52:21
wait wait a minute you're refusing to hire all the people of who can if they
52:26
were in your organization bring out the fact that you guys are about to drive
52:31
your company into the ground is it it's all right we're sending this report on
52:39
to the shareholders board of directors and it will well let them decide what to do about it well if enough of this we're
52:49
done in my view I think will make a big difference for
52:55
the better he could certainly have avoided this whole meltdown that we are
53:00
seeing there were plenty of people who were aware of the problem but most
53:08
almost all of them were commenting from the outside nobody was on the inside you
53:15
know checking to see what was actually going on you have to have a way of getting people in who are not part of
53:23
the problem and if you have enough grand jury is poking around in enough
53:29
organizations I think you might add some solute or e offense maybe not I'm sure
53:38
there are some downsides to all this we certainly require a lot of tweaking but
53:43
I'm of the few that you know i'm not
53:49
here to lay out a complete detail proposal that would deal with every
53:55
problem I'm just here to get the Rope get it started but I think it would be
54:02
extremely useful if enough people were to write their congressmen say look
54:09
congressman we want you to empower grand juries to investigate these organizations their internal workings
54:17
they do it on an ongoing basis and disclose any problems that they might
54:22
encounter but not people did that we
54:28
might avoid the problem of a depression in which made people may actually be starving to
54:35
death in in the cold so and force
54:42
finally what it's graduate needs to do it would do which I discussed earlier was to decide whether an official has
54:50
acted within his jurisdiction any official the grand jury wouldn't be the
54:57
one deciding what what to stop the official but removing from office that I
55:04
propose should be done by trout or separate operation but they can clear
55:09
the way to her conducting a trial
55:17
now it's got all into trial jurors yes k hon you want the grand juries to be able
55:26
to go into organizations I'm pretty sure we're talking about public organizations
55:31
or public entities because a private business and the right to be immune from
55:40
anybody looking at their business as long as they're not ask an external
55:48
stack chua Lee they don't they claim they write public for stock orders I would see that but you know the what
55:56
about the privacy well right to run your business the way you want well see
56:01
that's the that's why this is an innovation okay because when they become
56:07
large enough powerful enough when their failure can bring down an entire economy
56:13
collapse governments and do all sorts of Italian things now i agree with that day they are no longer just the private
56:21
enterprise there are engaged in practices that are too dangerous to be
56:27
left unsupervised isn't it true that it's virtually impossible for business
56:34
to reach that size without incorporating this young and protection from the state therefore duty to open his goods that
56:40
right yeah now they're so that neither nuisance would bribe money though the legal principles are already in place to
56:47
make it allowable but in principle a
56:54
grand jury can investigate anything now you know it probably comes yeah but I
57:01
don't even have to have probable cause they can invest anything well you don't want that but
57:06
but something has to form the grand jury there's some stimulus that will do that and then they have to be directed at a
57:13
particular question well what maybe they would have to be responding to a complaint right okay so you would still
57:21
depend on maybe having whistleblowers of something like that but it could be a very generalized complaint if you
57:27
complain you know there are too many companies that are too large too
57:33
well-connected and they're all playing the same business strategy and I think they're headed toward disaster now enter
57:44
private individual gaining knowledge through experience an interaction or secondhand from over conversations
57:51
doesn't fit the definition or whistle for if he doesn't work in a company but
57:56
if he sees a pattern that events this a basic sort of complaining she goes through yeah exactly yeah it's a it's
58:08
potentially tricky area and I don't deny that thoughts can be tricky but the
58:14
alternatives are worse or whether regular regulation on the one side I
58:20
think if sarbanes-oxley as my model of how not to do it well I'm not going to
58:27
Freddie and Fannie I mean the oversight was totally absent yeah and
58:35
there was nobody going in there poking around to try to find the problems when
58:42
even looking into the poor business frames but Congress approved that
58:47
because Congress is not equipped to supervise these entities at the level of
58:57
detail that it would require now they can do things like appointing special
59:02
prosecutor special masters administrators support to go in and soup
59:07
and poke around several you know the SEC does that for example but they do it all
59:15
they're always guided by a particular set of statutes and rules which are usually written for the disaster to
59:22
disasters back so you have to have a
59:27
free-form investigative body that is not
59:33
found private particular set of rules but can be looking for all the ways that
59:38
clever middle managers can evade the
59:43
last set of rules and or headed for disaster now this would require not the
59:49
main problem with my idea here is that it record require fairly sophisticated
59:56
grand jurors and there is a problem where you're going to find people like
1:00:01
that and i know i could put together one
1:00:07
two maybe three grand juries of 23 each of people like that but after that i
1:00:13
would be hard pressed to populate them with qualified people because if you
1:00:22
have to know a lot about accounting practices and business modeling and finance and a lot of other things in
1:00:29
order to do this sort of thing effectively well i was thinking about headed to and i'm thinking isn't that
1:00:37
the original intent behind the management part of the office of management and budget they were supposed
1:00:44
to be overseers of the agencies not just to supervise that dispenser budgets as
1:00:49
promised and required but also to see that they were following their business practices and being honest and again
1:00:55
cronyism members in because it's a federal position part of the civil service so maybe part of your innovation
1:01:02
could be pulled that piece of the om-d out of the pageant system and create
1:01:09
that powder of professionals who have an immunity similar to that of federal judges so that they can't be punished
1:01:16
for looking in they can't be stopped and so on well what I would tend to do a
1:01:22
favor would be using a lot of retired people retired experts who whose
1:01:29
pensions are secure you know maybe they can be killed but they've let it be
1:01:35
alive anyway that probably they're guys like mostly old geezers that I know they don't get the show make
1:01:41
sure their kids are I would love to go into the military surplices yeah I could
1:01:50
save them millions well I size that I save the Air Force empathic well I save
1:01:56
the army between two and four million dollars on the in about 10 minutes one
1:02:02
that is what so I know I don't mind taking VA benefits because I i think i
1:02:09
paid for them it all right but yeah well
1:02:16
it is is the first too large to fail wrong I think well the problem is in a
1:02:29
way because some organizations if they fail will call so much misery that in
1:02:39
pink pepper some examples of me well let's say the probably even your
1:02:47
own local bank if it fails and it's not protected by fdic you lose all your
1:02:54
money and therefore your coffee on it not only you lose your money but your
1:03:01
employer goes broke and he actually off all its workers and the next bank because yells m2j go broke and become
1:03:09
the domino effect too big to fail usually means triggering a domino effect
1:03:16
if an organization failed by itself without triggering a bunch of other failures that you know it's one thing
1:03:25
but if they're going to start the dominoes following until they're all laying flat then then you've got a
1:03:32
problem with this is work too well connected comes in a lot of people say what we should not have let Lehman fail
1:03:40
they're too well-connected there are a lot of failures that have resulted from
1:03:47
not bailing out leaving and in fact a lot of them are now being bailed out
1:03:52
with even more money and then would have might have otherwise been necessary so
1:03:58
of course with the I think that they loss probably won't work the problem is
1:04:04
too large and we're doing it doing it too late it might have made some sense
1:04:09
ten years ago what this problem first got started but if you let it go too
1:04:14
long you get to a point where do the dominoes are already falling and you know it's you can't stop at up Domino's
1:04:23
from right but it seems that the larger problem is that the government has set up institutions that have aligned things
1:04:31
in this Domino kind of pattern so that any one piece of it triggers the whole thing and then you have the Federal
1:04:37
Reserve rushing in to the lender of last resort to devalue my incense what I'm allowed
1:04:46
to have we see there have been speculative bubbles even before there were government's the from the problem
1:04:55
can occur even without the participation of government and without a doubt the
1:05:00
government help make it worse but even if it hadn't we could still happen
1:05:06
probably would still have the problem so it doesn't really work to say well take
1:05:12
our mouth on the picture completely because we still get back to the problem i discussed earlier that the market only
1:05:20
applies with in between organizations not within them now what the answer that
1:05:27
would have been made at that point in the end of the 19th century would be well just break up all large
1:05:33
organizations below us maybe no preparation can have more than 100
1:05:40
employees say or something like that well what the day is economy that's
1:05:45
probably not really practical there are a lot of departments that are bigger
1:05:51
than that yeah I've worked for some large organizations we're in principle
1:05:56
you could have every department could be a separate company in course they had so many contractors running around that you
1:06:04
kind of thought that that's kind of what you had sometimes but there are problems
1:06:11
with having a swarm of small organizations all contracting from with
1:06:20
from one day to the next and the reality
1:06:26
is and as I've seen in such situations is that they might be separate legal
1:06:33
organizations but because of the way they're all functioning together it's
1:06:39
warm they're really functioning as one large organization anyway yell yeah
1:06:46
there's a name for that in Japan we answered but i'm wondering if a bailout
1:06:54
shouldn't be a company though I meant or receivership target got into trouble ten
1:07:00
years ago and over the course of about five years closed about seventeen percent of the story that order
1:07:06
strongest companies in the country so yeah starting earlier is better because
1:07:12
yeah how it might be too late but worse these companies in they won
1:07:17
they have they have to accept the oversight and they have to be willing to have all that we glimpse cut off because
1:07:24
when you spin off and failing unit way off and become successful because a major corporations sucking blood out of
1:07:29
it they're going for economies of scale and each one of these has to be a profit Center but it doesn't have an HR you it
1:07:37
doesn't have these other support units to take that we spin it off you have to
1:07:44
install that proper stops flowing up and finds its true market value and then
1:07:50
there's another question to whether ninety percent of products will miss country or soldiers because somebody
1:08:01
yeah well market value is based upon what people are willing to exchange for
1:08:08
it not necessarily what it's really worth to them if they were making rational decisions I'm salute one of the
1:08:16
two bailout of regression in one of the innovations in economics which I
1:08:22
recommend people look into further is what sometimes called behavioral economics behavioral economics doesn't
1:08:31
view you cannot meet the behavior as a marketplace as a monetary system they
1:08:39
look upon economic decisions as essentially psychological decisions and
1:08:46
it's relevant for our discussion because what we're really talking about here are
1:08:52
not really rational decision they're emotional decisions and when you
1:08:58
get a lot and up people you know large herd of people making emotional
1:09:04
decisions instead of rational decisions that you do not have classical economic
1:09:11
behavior but you have the behavior of this active current and does occur and
1:09:18
it hurts and their psychology are subject that needs to be studied on its
1:09:25
own terms if we're going to understand our situation we have to study the
1:09:32
market actors as they really behave and not as they should behave if they were
1:09:37
rational the market tends to impose
1:09:42
rationality on the actors in the long midterm the long term even if the actors
1:09:51
are playing short term strategies but there can be an awful lot of distress
1:09:59
along the way the libertarians are fond of talking about the invisible hand from
1:10:09
Adam Smith or spontaneous order however
1:10:18
but they're really talking about from the physicists point of view what they're really talking about his
1:10:24
tendencies were equilibrium most of
1:10:29
these systems were discussing are in disequilibrium they're tending toward
1:10:34
equilibrium that may be a homeostatic in the sense of equilibrium is dynamic but
1:10:42
there's nothing in this picture of the theory that guarantees that at the at
1:10:49
the end of the day you have anybody left alive remember there are economic
1:10:57
behavior in the evolution of species too
1:11:02
and most of them are dead so I mean
1:11:08
ecology is essentially a larger field within economics as a sub deal but you
1:11:17
know there's nothing in ecology or economics that guarantees the survival of any player or even all the players a
1:11:26
desert is equilibrium you know devoid of all human or even mr. the life so we do
1:11:35
need to take a broader theoretical approach to these subjects than just the
1:11:42
one that we get within the libertarian framework and i try to i'm a scientist by training i
1:11:52
tried to deal with reality and to just understand it on its own terms and
1:11:59
sometimes that means we have to put aside at our ideological preferences it
1:12:05
always does it's all right all right to have an idiot adji of looking for the
1:12:13
truth and going where that leads us but you have to be prepared to accept
1:12:19
whatever you find there but enough of
1:12:24
this little diversion let me get that get out of here eventually mmm traveled
1:12:31
very reforms first of all what I have
1:12:37
long recommended is that there be no disclosure of panelist identities to the part of the treated area there's no
1:12:45
reason why the lawyers in the in deciding which jurors to strike should
1:12:53
be able to see them to know their names to look them up on the internet and it generally maybe even conduct a you know
1:13:01
fairly effective new permit quick background investigation of people today
1:13:07
BB if all you know is their name
1:13:13
so what I would recommend in the present situation is that the panelists
1:13:20
prospective jurors it will see the lawyers but lawyers not be able to see
1:13:26
the palace or know anything about them except their numbers they will send them
1:13:33
questions and the jurors send them back in writing but so nobody can tell their
1:13:39
age gender race professional background or anything because right now there's a
1:13:49
jury stacking is becoming a major area of subversion of the judicial process
1:13:59
and with the way the trends are considering are moving in that door on
1:14:04
that subject we're soon going to get to the point where juries are being
1:14:09
selected by the litigants rather than a verdict selected by the jurors
1:14:19
the question should be limited to matters of capacity or bias you can see
1:14:25
the lawyers do you know any of these guys have any of them ever represented you or anybody you know have you you
1:14:34
know are you related to any politicans and so forth then it's my view that
1:14:44
jurors are judicial officers an accountant US Constitution says that all
1:14:51
judicial officers and all levels of government United States must take an oath or affirmation to uphold the
1:14:57
Constitution they are not now being asked to do that but they are being
1:15:03
asked a ticket hope to do is to follow the law is given to the by the judge now
1:15:09
I don't have a problem with that exactly because if the judge tells me something
1:15:15
is the law and it's not i'm not going to follow it for it but of course i'm going to know what the law isn't that what
1:15:21
he's telling me isn't it you know i'll follow the law if he happens to be right if he's right then it's the law of he's
1:15:28
wrong there's not the law but most people are not prepared to do that every
1:15:36
you really want justice in this country you want decision by juries compose the
1:15:42
people like me i'm not going to buy us either for or against you decided but i
1:15:49
may be really really careful to get it right that's what you want
1:15:56
and none of this business of deciding with juries of less than 12 as a reason
1:16:04
for 12 we historically we tried other numbers and you know in the time of
1:16:12
Henry the second and neighbor the first 12 was the magic number so there was a
1:16:19
little bit of a bias toward that number but as it turns out there are excellent
1:16:25
social dynamic reasons why 12 is a good number and a larger smaller number is
1:16:32
not
1:16:39
and all these juries in this in the state level where a decision is made by
1:16:44
a jury of cities or made by you not by majority vote is that a unanimous vote
1:16:50
or unconstitutional and should be so help finally the process the supervision
1:16:58
of the process of choosing the jury should be done by the grand jury you
1:17:05
can't trust judges or sheriff's or people like that to supervise the process their life will say oh well I
1:17:13
did a random selection and well we just happen to get nothing but former cops
1:17:21
and it's just pure retino different well not if they're a fitting there's a
1:17:31
random process I want somebody supervising these selection process but
1:17:37
it's not part of the problem and that means some kind of jury and the natural
1:17:43
choice is a kind of some kind of grand jury
1:17:49
yeah Wood is any illegal than or unconstitutional that when you get into
1:17:56
jury room the lawyers question the potential jurors and throw them out or I
1:18:04
guess they get their allowed to throw out three or something but we get there a certain number of strikes yes strike
1:18:09
something that constitutional or that is constitutional but it's being abused because it's possible to get too much
1:18:17
information about people now that we would used to not be able to get and I
1:18:24
in my opinion they're also able to ask them to me the wrong kinds of questions that should that should be asking yeah
1:18:31
you know like to have you ever heard a fully informed jury Association nor have
1:18:37
you ever heard him during nullification and yeah i saw episode of law and order
1:18:43
which is best if i did really understand it there right that the answer anyway
1:18:48
you're struck yeah well what they're telling to do now and strike anybody
1:18:54
who's educated yes Norman and I don't think that we should be striving
1:18:59
educated from jurors subscribe dummies as a defendant how are you insured that you
1:19:06
are being tried by a jury if you can't see well that's where the supervision
1:19:15
where the grand jury would come in the grand jurors should be the one they should be able to see who the jurors are
1:19:20
and make sure that they really are is this really is a jury behind that screen you know that they're both of twelve
1:19:28
randomly selected people otherwise you could just say well there's really a
1:19:33
jury back there but we won't let you see them so therefore you know even sure it
1:19:40
came back with it with guilty and it's really just a clerk they're filling on a farm so yes you have to somebody
1:19:47
supervising that but there's also a problem because I seen this in a federal
1:19:55
criminal case tax income tax gates the
1:20:03
lawyer for the defendant whose friend of mine made a excellent presentation the
1:20:09
jury convicted anyway and I made a few inquiries and get back the word that
1:20:17
several members of the jury were received against that if they didn't
1:20:23
convict they would be audited so the in case like that IRS should not
1:20:32
know where the jurors are but you're not going to get a just decision if the
1:20:42
jurors are afraid of prosecutors or the agencies they represent so you know
1:20:51
there are variety of reasons why this is a good idea Don it wouldn't have been
1:20:56
necessarily hundred years ago but you know now judges are threatened with
1:21:02
audits we have several indications of
1:21:07
that from judicial clerk that their
1:21:13
gullets feel intimidated okay now we get
1:21:19
into an error one of my favorite areas in mixed cases of law and fact which
1:21:25
includes all criminal cases to suspend decisions on issues of law until all
1:21:31
arguments are concluded that means that we call all emotions we can file all the
1:21:40
issues of law that can raised no decisions by the judge until all
1:21:46
arguments are finished and then do not impede the right of either party to make the arguments on the issue of law to the
1:21:53
jury the other the judge can require people to file their emotions in advance
1:22:01
of impending jury but not to make all their arguments before in family insurance because the
1:22:09
jury have to be able to review the decisions of a judge if it's going to
1:22:16
bring back a general verdict of guilty or not guilty it can't very well do that with the end without the information
1:22:23
about what is the issue that law were and how the judge incited them if the
1:22:29
judge could in conscientiously rule the
1:22:34
way that he does because he feels he's bound to do so fiestar decisis by President as well I don't like this i
1:22:42
think it's unconstitutional but the higher court ruled is so I'm bound to decide this way well the jury needs to
1:22:52
be able to look at that decision is as well the judge might appeal he's down by
1:22:58
President to decide it that way but we're not the Constitution says this
1:23:03
that's clearly in conflict with that precedent we're going to go with the Constitution and we took an oath of all
1:23:12
the Constitution and they were required to hand us a copy of it okay and I have
1:23:17
a copy of the Constitution here and I don't see any authority in here anywhere for the statute under which the guy is
1:23:25
charged no authority you know
1:23:30
and maybe there is a chain of reasoning that leads back to a provision of the
1:23:35
Constitution but I didn't hear it nobody made that for argument so I a reasonable
1:23:42
doubt that the case has been true so no
1:23:49
not guilty of course it is important to
1:23:56
realize how we got into the situation is that judges are mainly former
1:24:02
prosecutors so they have a prophet gives defiance the members of the same tribe
1:24:09
they're not really neutral arbiters and that's one of the reason why with juries
1:24:15
are needed that was true even of the you
1:24:21
know back in England in the 17th century 18th century now I would also require
1:24:31
that the jury get copies of the pleadings law books except for 17
1:24:39
subject if there's a motion eliminated where the arguments cannot be made without disclosing the evidence that it
1:24:46
properly excluded but a criminal case no motions eliminate should be granted to
1:24:54
prosecutors believe the defendants they are the only ones who ever can have a proper right to exclude evidence you
1:25:02
should not have a situation like the Davidian trial where essentially the
1:25:07
defense at all this evidence of official misconduct on the part of the federal
1:25:13
agents and the judge wouldn't allow any of it now he not words the article
1:25:20
formerly of the objection was objection your honor irrelevant well it would have
1:25:27
made a difference there was emotion lemon a or just objection irrelevant the point is that
1:25:33
they should not have been excluded from introduced met evidence
1:25:43
okay another thing we need to do we need
1:25:49
to split extend the right of the jury to other kinds of cases that we do now there are whole large categories of
1:25:55
cases for which there is no right to a jury trial originally these arose from
1:26:03
cases in equity courts originally there were two kinds of courts common law and
1:26:08
equity and we have merged them in this country ease as the Constitution was
1:26:16
adopted but we still have a legacy of that ancient in English law okay there
1:26:23
is no presently no right to a jury in a contempt of court there should be no
1:26:32
federal and States on sanctions were the judge the judge says well I got the
1:26:38
frivolous argument I'm you know finding you $50,000 you're not allowed to file
1:26:45
any more cases than in the courts of the state until you pay the fifty thousand and you make the check payable to the
1:26:52
opposing party now first of all if
1:26:58
there's to be a fine is repayable to the Treasury public treasury not to the
1:27:03
opposing party over there used to be an action was called abusive process before
1:27:12
you lost or more before the case was decided and malicious prosecution after
1:27:20
the case was decided if you want is the counterclaims that could be used if the
1:27:26
opposition was too thinking about making frivolous all arguments or such but you had to fleet
1:27:33
it you had to make the case and it would be decided on its merits and what a lot
1:27:40
of judges are now doing is they're bypassing all of that and says you know I'm I'm on their side on this one you're
1:27:50
out of here you pay fifty thousand to them and they have a pedophile anything
1:27:56
but a general denial well in my view that doesn't work on us that conform to
1:28:05
of the letter of the law the law is vague on this on this and other subjects
1:28:12
most of this comes under the heading of judicial policy and practice which is why it could be addressed with with with
1:28:19
legislation but you have to word it properly for example one of the things
1:28:26
you have to do is to say pass a bill that says it shall be a reversible error
1:28:32
for the judge to do something such or to be able to do something such as I that
1:28:39
makes it very very definite that he is going to be overturned on appeal if he
1:28:44
does that or doesn't do that as long as you leave it bay they're going to do
1:28:51
their own thing so one of the reasons why we have this huge body of law that
1:28:59
we do is to deal with abuses of discretion that occurred generally law
1:29:06
starts out kind of a you leave it to the discretion of judges and other officials
1:29:12
to apply it to particular cases it over a period of time to satisfaction where
1:29:20
the way that discretion is exercised leads to more rules more refinements
1:29:25
more detail and eventually you've got the kinds of things that you had with ancient Hebrew law where you
1:29:33
know every little detail was at a rural part of the societies that had similar
1:29:41
problems well we went the way of that problem too if you can't get good wise
1:29:49
people to serve as judges and other officials then you're going to be
1:29:55
overrun with laws and rules and so forth to deal with the ways again they will
1:30:01
otherwise tentative abused their discretion so we have to attack the
1:30:08
problem on several different fronts and sometimes the only way you're going to get decent people in there is to you
1:30:15
know adopt more rules that relieve them with less discretion okay Family Court
1:30:24
and if this is a tough one because they're the family courts are overloaded
1:30:30
as it is with all these divorces and parental abuse occasions and all that
1:30:35
the simple fact is that too many of
1:30:41
these decisions are being made by riding roughshod over due process and you're
1:30:49
not going to get justice unless you can get the jury in the picture probate
1:30:54
court Texas is a famous for for us probate courts an executor going to just
1:31:02
about anything decorating steal the state I see in many cases of that
1:31:08
because there's no supervision by an outside body by the jury
1:31:15
bankruptcy court believe it or not there's less think the state bankruptcy
1:31:21
courts too but federal is the main one that we should think about it and we see
1:31:27
a very cozy relationship between the bankruptcy judge and the pool of guys he
1:31:35
appoints as receivers in the various case of come before him and again there
1:31:43
needs to be jury intervention in that process permanent injunctions well
1:31:50
interestingly enough in Texas there is a right to jury in a permanent injunction
1:31:58
Texas is almost unique in that respect so that's one of the reforms that was
1:32:04
already been made and we can commend our fellow Texans for having done that but
1:32:13
that doesn't mean that I just can't do
1:32:18
it anyway and leave you wondering you know but judge I'm in type of a jury
1:32:23
trial it is ok we'll schedule it a jury trial at 10 years in the meantime this
1:32:30
temporary injunction applies to you temporary restraining order it's
1:32:36
strictly BP so competency hearings you
1:32:44
know the way things stand now if you've got a lunch a lot of money and somebody thinks
1:32:51
that you're not managing it wisely they can just come in as this out you're crazy but will lock you up and take all
1:32:58
your statement we'll do what we what we want with it and I've seen kittens of
1:33:04
that famous way of amusing I you know a
1:33:11
lot of the might of the parties involved might've little odd but they weren't really crazy you know any disablement of
1:33:21
a right right to keep him her arms for example should be decided by jury and
1:33:27
writs of habeas corpus for onto and so forth judges have proven they are not
1:33:35
willing or able to handle those properly and we need to be able to have juries
1:33:41
decide those cases as well legal
1:33:46
education well first of all it is it
1:33:53
should not just be the American Bar Association that certifies law students
1:33:59
it's ok to have certification in law school but they should be certified by all kinds of investigative bodies
1:34:08
including renderings the legal
1:34:14
profession should be split having one legal profession is really a bad idea
1:34:20
written they have the difference between barristers and elicitors they typically work together
1:34:28
but they are actually play different roles that's a good start but what I
1:34:34
have a cave is splitting the profession into advocacy compliance teaching and
1:34:40
support and the compliance and teaching
1:34:48
tracks would be four judges ordinary trial lawyers would go into advocacy and
1:34:54
support would be for the paralegals it should each have their own professional career tracks now what doesn't prevent
1:35:01
forbid anyone from training in more than one but there should be much more of a
1:35:10
division among the four members of the profession so that you don't get a
1:35:16
chromium chromium as you do now before
1:35:21
my tribe that protects themselves there should be multiple qualifying exams by
1:35:26
multiple examining bodies there's be legal writing requirements there every
1:35:32
lawyer should have to publish a lot of law review article we should repeal all
1:35:38
state bar acts the Texas bar Act it's due to sunset in 2010 and what's renewed
1:35:47
so we got only another year to build up support for allowing it to die and
1:35:56
encouraging people to organize to do that it is current practice to
1:36:03
discriminate against those who a suit from our practice there the litigants
1:36:09
and their lawyers is usually impossible to get a lawyer in a jurisdiction to
1:36:16
take the case for malpractice against another lawyer because as he will
1:36:21
explain he'll never win another case again in that to the courts in Bath County that is one of the first forms of
1:36:31
abuse that I encounter and it's a serious one now California I discovered
1:36:37
it's not so bad it's the status mortis
1:36:43
first socially the counties are much larger and it's easier to sue another
1:36:53
lawyer for malpractice and not have your legal career right but I'm a crime to
1:37:01
discriminate against those who sue my lawyers for malpractice you know make it
1:37:07
a cause of action but is something
1:37:15
and you create a jurisdiction for grand juries to hear complaints against lawyers issue present to ensure
1:37:21
presentments of their findings and even authorized criminal prosecutions lawyers
1:37:27
enjoy a privileged position in society that should be subject to supervision by
1:37:33
grand juries
1:37:40
under judicial rules no deference to legislation or administrators right now
1:37:46
the tendency of judges is to say to presume that any act passed by Congress
1:37:53
is constitutional that's not the way the
1:37:58
Constitution is that both tablet work the burden of proof is always supposed
1:38:04
to be on something being authorized and
1:38:10
you can't prove its authorized the default decision should be that it's not authorized the judges have been trying
1:38:17
to turn it around not just for acts of Congress from Iraq so regulated payments
1:38:23
IRS agents or you know as you see
1:38:28
regulators or whoever well what those guys do is they might gather evidence
1:38:35
they might be credible but they should still be required to prove what their
1:38:40
findings are that shouldn't just be rubber-stamped what court there's been
1:38:46
no binding start decisis it's all right to treat case in previous cases as
1:38:53
persuasive but a minority opinion in the
1:38:58
case could be just as persuasive if not more so than the majority opinion just
1:39:06
because five judges of the Supreme Court agreed and four disagreed doesn't mean
1:39:13
that the four or wrong is a 50 right and anyone should be able to cite the
1:39:20
minority opinion and say or maturity or which our opinion he likes saying you
1:39:27
know I take a position or I agree with the opinion hint that by that judge in
1:39:34
that case and it doesn't shouldn't matter if it's
1:39:39
in the majority of men or minority as you will see in the email that I sent to
1:39:46
the group that long list of all the ways they try to avoid deciding case
1:39:52
constitutional issues this should have required it to have to take it at the
1:39:58
duty to resolve all issues that come before them make a good faith effort do
1:40:05
that now it might only be in dicta in commentary but they should address it
1:40:13
make a good faith effort to try to do so now a lot of all argue what we don't
1:40:19
have time to do that and then which gets back to the original proposal that if
1:40:28
you have many many more more judges being doing judicial duties on a
1:40:34
part-time basis then they can deform devote more time to do it right
1:40:40
including going through every one of the issues raised by any of the parties or
1:40:45
even by intervenors or the mamita's file or whoever and you know let's just make
1:40:52
this a law review article here all the issues you've got to present it I'll
1:40:57
sort them out here and this is my opinion and you may or may not agree with it it's not finding it's only you
1:41:05
know persuasive maybe hopefully but at least I'm addressing it I'm not just
1:41:11
letting it fester and again the unanimous decisions by multi judge panel
1:41:18
to sustain the power of government for which elevated when visual
1:41:28
now under judicial rules further between no requirement of maturity to take an
1:41:34
oath to follow the law is given by the judge you can follow the instructions
1:41:40
concerning procedure but as to whether what the law is well the judge can
1:41:46
convey his opinion of the law if he wants to but it shouldn't be considered
1:41:52
an instruction and if the he should
1:42:00
convey his decisions on questions of law Promotions been made he decided it they
1:42:05
could have a benefit of that decision and the arguments made on both sides of that decision if the jury at the
1:42:13
questions about the law this should be answered by expert witnesses the judge
1:42:18
is not necessarily an expert witness lawyers are not necessarily expert with witnesses let them bring in somebody out
1:42:25
from outside somebody who can really give them a true expert testimony
1:42:30
subject to cross-examination and revoke that still doesn't satisfy them that
1:42:36
they probably should decide against the plaintiff or the prosecutor because
1:42:43
that's there's too much doubt involved at that point and jury should be allowed to call their own witnesses on issues of
1:42:49
law it shouldn't rely on the judge or the other lawyers for the parties decide
1:42:56
who the experts are you know they each of these guys are lining up people to
1:43:03
support his position okay let's try to go out here to the University and see if
1:43:09
we can't find somebody who's who uninvolved and who can give us a mutual
1:43:14
to a point of view of the subject and
1:43:19
finally we get into the forms of pleading we need to revive the risk of
1:43:24
poor anto habeas corpus proceeding doe prohibit oh man Thomas and certiorari he
1:43:31
is of the sixth major prerogative writs
1:43:37
originally when the Constitution was being ratified New York demanded a
1:43:48
series of amendments and they ratified
1:43:54
the Constitution on the understanding that their amendments would be seriously
1:43:59
considered and one of them was that any
1:44:06
citizen should be able to bring the rip they meant the one of these writs in the
1:44:13
name of the people originally they were issued in the name of the crown but now
1:44:20
that the United States was separated from England the people became the
1:44:25
ground that the work so in the name of the people and the problem is with life
1:44:32
of the writ of habeas corpus most judges don't know how to handle a writ of habeas corpus they try to treat it as
1:44:38
though and whereas they emotion the show gods for the burden of proof on the petitioner it's not the way habeas
1:44:46
were we're on tour whatever is supposed to work the rift is the petition is the
1:44:54
rhythm it's the summons after it's filed and served on the respondent its summons
1:45:03
to him to respond to it the warp the order is not the written order is the
1:45:11
decision by the judge whether or not the official has proven his authority but
1:45:19
that's not the rib that's the order and most of us today they don't know that
1:45:24
amazing they don't teach you in law school so we need to teach them and the
1:45:34
point we need to also establish that the relief sought by such risk issues by
1:45:40
default if there's no no hearing is conducted judge just can't file it away and try to forget about it and nothing
1:45:48
happens we also need a river to revive
1:45:54
the right of the murder to murder another one of those means in common law forms for you can challenge the
1:46:02
jurisdiction of the court or the law before you have to plead guilty or not
1:46:07
guilty today in a criminal case one has put having to plead guilty or not guilty to
1:46:14
a charge that may be unconstitutional and to plead not guilty is the kind of
1:46:22
except that its constitutional when in fact you don't believe it is constitutional and it should be possible
1:46:29
to argue that point before you have to enter plea what the courts do now is to
1:46:37
say well we just interrupt a plea of not guilty it will settle it later well that
1:46:45
doesn't really work for several reasons and we need to get back to where the way
1:46:52
things used to work on that point so that concludes my talk for this evening
1:46:57
hope you found it enlightening I haven't
1:47:03
gone into as much detail as I would liken certainty actual bills before the
1:47:09
US Congress and before the state legislature but I would I'm be working on that inhibit during the next month is
1:47:17
exactly that i'll be posting it to upload image files or sending them how
1:47:24
does email to the members of this group have forced on people as well so be on
1:47:30
the lookout for those emails and you may have some ideas of your own that you might want to bring to be rude you could
1:47:40
push them out
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