Musings on the Legal System

I haven't contributed much as of yet and for that I apologize. This paragraph or two hopefully will ease people into my later posts where I become nearly intolerable.

The legal system in my mind is broken. It functions, but serves few interests outside those who use it the most, the wealthy (in civil contexts, at least). There are probably thousands of small things that could be done to rectify small points of injustice, but I'm not terribly interested in those reforms. I think that there are systemic issues that must be tackled first, otherwise we'll burn out on the small stuff.

The biggest problem in my mind is money. Those who have it, get better treatment, better lawyers, and better law. The lawmaking side should be reformed to eliminate some of this bias, but that's a topic for another day. Solely within the judicial system we can eliminate some of the worst problems with money. The first of these reforms would be to eliminate private lawyers from courtrooms.

The expense of private litigation lawyers creates a disparity in the quality of argument and the time exerted on legal thought. Pay great lawyers enough and they can conjure up some very well done (although morally reprehensible) arguments for you. This mercenary system should be replaced by public litigators (both criminal and civil) who are assigned cases on first come, first served basis with exceptions. For example, lawyers should be able to turn down cases for lack of merit, provided that the court agrees that there are no meritorious arguments available (although the plaintiff could still proceed pro se). Likewise, lawyers should have the opportunity to decline to take a certain number of these cases for personal reasons. Otherwise, some sort of conflict rule should remain to make sure that lawyers aren't invested personally in the case they receive.

Secondly, as part of the public litigator set up, lawyers' assignments should be rotated from plaintiff to defendant (or prosecutor to defendant in criminal cases). This measure would help to eliminate structural biases in the way clients are represented. No more hardened attorneys who have ceased to see all sides of an issue. I am most familiar with this problem in the criminal setting, but I imagine that civil attorneys that only represent certain industries or advocacy-based groups have similar problems with tunnel-vision.

Other problems I'd like to propose for discussion are the following:
undoing the complexity of the law (and thus making lawyers less necessary);

challenging the individual bias in legal thought by including

communities and other group interests as actionable;

eliminating the adversarial nature of our legal system in favor of other ways of resolving differences;

making all of the judiciary accountable through elections and perhaps
impeachment processes.

Finally, I would like to suggest that criminal law in particular needs attention. As a post mentioned earlier, we have more people in prisons here than any other western industrialized country. Two changes which I will quickly propose and then leave on the table are to eliminate prisons except for the most heinous crimes and the eventual elimination of a distinct criminal system.

Punishment has little use in a utilitarian sense (a philosophy to which I do not ascribe). It neither efficiently prevents future wrongdoing nor deters others from similar conduct. My main concern, however, is with its moral implications. For most actions which we label "crime," I would prefer restoration for the victim (or society if no individual person or persons are harmed), rehabilitation of the criminal, and a program where the criminal would assist in the elimination of similar behaviors. This last point is important. Whether the causes of crime are psychological, environmental (like poverty), or otherwise attributable, those who do not commit them are less likely to understand how to prevent them without input and assistance.

As to the elimination of the criminal system, as such, I see very little reason why a system that is not based on punishment, but on restoration and rehabilitation, would need rules that are distinct from what we term civil law. Perhaps others do, though, and I would love to hear why.