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The most disturbing trend in American Jurisprudence

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Posted: 07/01/2014 4:07 PM

The most disturbing trend in American Jurisprudence 


Since we have a bunch of lawyers here (and non-lawyers with an interest in law), I thought I would put the question up to the group which came up in my Quora feed:

http://www.quora.com/What-do-a...n-jurisprudence

What do attorneys in the USA find to be the most disturbing trend in American jurisprudence?

What trend (or trends) in the American legal system do US-based attorneys find to be the most disturbing or troubling? Why do you find it to be disturbing?


The top answer, at the moment, is "I find a trend towards the supremacy of contracts to be quite troubling."  

Specifically, last night some of my colleagues asked me what was the most evil contracts that lawyers ever wrote. I told them there were lawyers who plied their trade in times of war and genocide, made prisoners give up their rights under pain of death. There are lawyers who tried to justify torture, bigotry or oppression. That is clearly wrong. But in terms of lasting damage, the worst thing contract lawyers can do is use their skills to manipulate the system to disempower parties to contracts so that they are not really contracts.

Interesting take.  I would be curious whether people agreed or disagreed with the respondent's take, and whether they found other disturbing trends in American Jurisprudence (I know that the power of the judiciary to "make law" will probably come up.)

BC
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Posted: 07/01/2014 5:26 PM

Re: The most disturbing trend in American Jurisprudence 


Welcome back.  Weird post, though.

Clearly the problem with American Jurisprudence is the willingness of lawyers to cast away their duties as officers of the court.  I've posted this before, and it is extremely troubling to (maybe only) me, but I've been asked many times as an expert witness to perjure myself.  This is the normal course of events.  

The best example of the problem is Hillary Clinton laughing about getting off a child rapist.  Shame. Shame.
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Posted: 07/01/2014 5:59 PM

Re: The most disturbing trend in American Jurisprudence 




Increasing inaccessibility for the common man.
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Posted: 07/01/2014 6:20 PM

Re: The most disturbing trend in American Jurisprudence 



DevilMayCare2 wrote:

Increasing inaccessibility for the common man.
Yep.

Not so bad for you and I, probably.  We can sorta slide into the elite when we need to.  We don't like to pay $40,000 in legal fees over some minor matter, but we can probably pay for it one way or another, and we'll kick butt.

I'll never forget some minor dispute that I had (in San Mateo County) where I tried to settle it without a lawyer.  After a long time, I gave up and hired a prominent lawyer.  Case resolved, ASAP, but not before the judge french kissed my lawyer and scolded me for trying to handle it without representation.
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Posted: 07/01/2014 6:24 PM

Re: The most disturbing trend in American Jurisprudence 


Too many of them go into politics.  It sounds like a flippant answer BC but I'm not kidding.
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Posted: 07/01/2014 7:20 PM

Re: The most disturbing trend in American Jurisprudence 


Too many lawyers by a factor of at least 500% (!), and far too poorly trained.

My mother used to tell me, "Elwood, in this world, you must be oh, so smart or oh, so nice."  For years I was smart.  I recommend nice.  You may quote me. - Elwood P. Dowd

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Posted: 07/01/2014 7:25 PM

Re: The most disturbing trend in American Jurisprudence 




Um, do you have any stats on lawyers per capita, e.g., in California from say 1980 to


the present?  As for "poor training", the market typically takes care of that, doesn't it?

This is especially so for a trial lawyer.   You either win or starve.  

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Posted: 07/01/2014 9:48 PM

Re: The most disturbing trend in American Jurisprudence 




The other thing that rankles is what appears to me to be a cowardice or a
taciturn nature of the law schools, and the Law School Deans in response to the
erosion of rights and remedies since passage of the Gramm-Leach-Bliley Act which repealed some provisions of the Glass-Steagall Act under B. Clinton, and post September 11, 2001, the Patriot Act, the NDAA and the ACA.  Law review articles don't cut it.  IMO they should have been front and center educating and arousing the public opinion against such erosions, and standing up for civil rights and against the monumental institutional multi-national frauds.

Last edited 07/02/2014 11:31 AM by DevilMayCare2

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Posted: 07/02/2014 8:52 AM

Since You Asked 


and since pretty much all I do is write contracts, I completely disagree with the quotes above.  But I don't practice consumer related law and residential mortgage law, which the quote seems to me to slant toward.  That is a lousy sentence, yeesh. 

And by the way, I believe in the power of the contract and I think that contracts may be manipulated by some, but lawyers only write the types of contracts their clients want. Its the client's goals that are to be met with the contract and this is as old a problem as the Magna Carta.  And I think folks today have more consumer protections than at any time in history and its not even close.

But I digress.  For me, the primary issue access to the law and court overburdening.

our state of grace is gone.

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Posted: 07/02/2014 10:08 AM

Agree One Hundred Percent (100%) with Roscoe 


I turn down a lot of individuals and small businesses who just won't have the money to litigate an issue. It really would be nice to have an expanded small claim system to give the little guy more of a chance in court.
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Posted: 07/02/2014 11:04 AM

Re: The most disturbing trend in American Jurisprudence 


Agree that #1 problem is the ridiculous expense associated with civil litigation.  The access for the common man is disappearing as others in this thread note.  

Suspect BC's quoted passage pertains to the Supreme Court's decisions upholding, for example, class action waivers in consumer contracts.  It is LUDICROUS to think that any of us - especially when clicking on the box entitled "I agree to terms" while trying to access some product on the computer - appreciates what provisions on mandatory arbitration and class action waivers mean.  Moreover, these are all, in essence, contracts of adhesion - so to treat them as if they were negotiated at arms' length is, again, LUDICROUS.  .

But the Supremes just said "they're enforceable," thereby closing the courtroom for thousands of potential complainants.

And this will have ramifications in other areas, too, including stockholder actions (which is more up my alley).  Bylaws that include arbitration provisions, class action waivers, and attorneys' fees clauses . . . why not?  And that, too, will result in many fewer cases seeing a courtroom.

We need less - not more - litigation in this country (especially shareholder actions), but, to use a sophisticated legal phrase:  "C'mon, man!"
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Posted: 07/02/2014 12:48 PM

Teejers You Ignorant Slut 


that is very well said.

our state of grace is gone.

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Posted: 07/02/2014 1:11 PM

Re: The most disturbing trend in American Jurisprudence 


Spot on post, Teejers.

A relative of mine was involved in a mediation over a $400k difference of opinion.  Early on, it was established that his side was the white hat side, so the mediator spent the bulk of the time ultimately convincing the black hat side to arrive at an appropriate settlement amount, which turned out to favor my relative by about $100k (it was a $150k/$250k settlement).

The mediator had some interesting comments.  He said that suing the black hat side was unlikely to succeed (would have been a sympathetic defendant in a civil suit, despite the fact that the fault was ultimately hers.

To the extent that the black hat side had any credibility at all, it was essentially because a former friend/associate of my relative essentially switched sides and lied about the process and their involvement.  Bottom line, conveyed the mediator, that while suing the black hat side was an iffy proposition, suing the former friend/associate for tortious interference of contract would have had much higher chances of success.

The catch?  Financing that suit would have consumed literally all of my relative's funds.  So he let it go.  Had no choice.

Teejers wrote: Agree that #1 problem is the ridiculous expense associated with civil litigation.  The access for the common man is disappearing as others in this thread note.  

"Après moi le déluge" Louis XV
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Posted: 07/02/2014 2:45 PM

Re: The most disturbing trend in American Jurisprudence 



BearDadCardFan wrote: Too many of them go into politics.  It sounds like a flippant answer BC but I'm not kidding.
The percentage of lawyers in Congress has been declining --


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Posted: 07/02/2014 2:50 PM

Re: The most disturbing trend in American Jurisprudence 


Good news, keep up the good work Terry.  biggrin
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Posted: 07/03/2014 7:05 AM

That's too bad 


I'd rather have lawyers discussing and drafting legislation.
"Après moi le déluge" Louis XV
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Posted: 07/03/2014 11:05 AM

Re: The most disturbing trend in American Jurisprudence 


OK, I'll bite.  Access to justice is a big problem, but the unlimited scope of judical review is a more fundamental problem IMHO.

"In the end, we self-perceiving, self-inventing, locked-in mirages are little miracles of self-reference."
--Douglas Hofstadter, '65, author of Goedel Escher Bach

Last edited 07/03/2014 2:31 PM by oline84

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Posted: 07/03/2014 12:28 PM

Beaten to the Punch 


I was going to make the point that complaints about 'ironclad' contracts must be originating from our absurd and absolutely usekess tort bar.

For a generation now, the bar has made a living basically distending 'normal' contractual terms and relatonships into meanings and usages that they were never meant to have. The most obvious example is the claim that a normal homeowner's policy applies to acts of child molestation or some such by a parent or foster parent - suits brought by adult children because the statute doesn't run until then..

While I'm sorry for the incident, the insurance company never planned  or accounted for coverage of such matters in a normal 'slip and fall' policy. The extreme reading is simply a method of recovering funds from a defendant who would otherwise be judgment proof.

My mother used to tell me, "Elwood, in this world, you must be oh, so smart or oh, so nice."  For years I was smart.  I recommend nice.  You may quote me. - Elwood P. Dowd

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