Anschutz talk Sept 1, 2010

They say a country’s prosperity depends on 3 things - sound money,
private property, and the rule of law.
This crowd hardly needs to hear from me about the first two or the
problems we face on those scores
Chat with you briefly tonight about some threats to 3d item on the
list and some nascent threats I see to the rule of law
Don’t mean to offend anyone or sound an undue alarm.
We enjoy one of the great legal systems on earth.
But just as other elements essential to our prosperity are facing
their problems today, the rule of law isn’t immune from its
challenges...
Discuss briefly three such problems with you...

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 1. The discovery process associated with civil litigation in our country
has become way too expensive and takes way too long
Archetype - US v IBM.
Lasted 13 years
66 million pages produced
Some say 2000 depositions taken
All over charge IBM monopolized computer market quaint
No trial ever took place
Just quietly dropped. No public vindication...
Not that long ago, we used to have trials without discovery.
we have discovery without trials

Now

What are consequences of this?
First, it prices many out of court. Can’t afford to bring
meritorious suits.
Second, encourages people to settle nonmeritorious
suits rather than try them. It’s cheaper to settle than
win.
So we have created a sort of tribute system to the
lawsuit entrepreneurs. Like the Barbary Pirates,
easier to pay than fight...
Other problems, too. Lose involvement by juries.
The jury trial is our most democratic institution. Now,
most cases never get there. Reduced involvement of
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 citizens in justice system
And there’s now a lack of transparency. Justice is
dispensed in confidential
settlement, not courtroom
verdict.
Hate to say it, but my brothers and sisters at the bar
benefit from all this. Today, it’s estimated that half of
law firm revenues come from discovery. I wonder if
that understates it.
Many lawyers don’t even know how to try cases
anymore. The courts’ case loads are up, hugely. But
the civil trial is virtually extinct.
We have litigation partners at law firms who have never
tried a case to verdict. But they do know how to fight
over discovery.
So a case I was involved in as a lawyer, called in to help at trial at the
last minute, Ronald Perelman v Morgan Stanley, a multi-billion dollar
fraud case became a trial not on the merits of the fraud, but one over
discovery compliance by MS and its predecessor lawyers.

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 Dickens Bleak House... suit over an inheritance...
Jarndyce and Jarndyce drones on.
This scarecrow of a suit has, in course
of time, become so complicated that no
man alive knows what it means Fair
wards of court have faded into
mothers and grandmothers; a long
procession of [judges] has come in and
gone out; the legion of bills in the suit
have been transformed into mere bills
of mortality  but Jarndyce and
Jarndyce still drags its dreary length
before the court, perennially hopeless.”
Charles Dickens, Bleak House 4-5
(Bantam 2006) (1853).
Reality imitates fiction now perhaps more
than ever

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 2.

Recent efforts to sidestep legal process
As expense and burdens grow, litigants seek to escape the system and create ad hoc
private justice. So private parties increasingly rely on arbitration and mediation.
Can debate wisdom of that between private parties, but I want to focus on what happens
when Govt gets into the act.
Increasingly, we’ve seen efforts by Govt to sidestep normal legal dispute resolution
processes to create its own ad hoc private justice programs.
So, for example, Chrysler, Govt sought to overcome normal Bkptcy processes and
priorities.
And in BP the Govt created a wholly independent judicial system headed by a private
hire-a-judge who feels unconstrained to write and speak publicly about the case
Not to suggest you need to have sympathy for those companies
But it’s a notable new development when Govt sidesteps normal legal processes and
worth keeping an eye on.
Of course not unprecedented.
Lincoln in civil war suspended Habeas over objection from courts that he was
acting unconstitutionally.
But it’s worth asking whether Govtl ad hoc private justice systems are a short term blip or
a portent of long term trend?
Justice is supposed to be blind. Outside our courthouses she is depicted holding scales w
blindfold.
Ours isn’t an ad hoc justice system, one for people we like and another for those we
don’t. Nature of justice shouldn’t depend on popularity of cause.

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 3.

Nomination and confirmation of judges
Understandable political branches want to take a close look at nominees for jobs with life
tenure
Esp when we live in system where judges have last word on constitution,
empowered to strike down legislation – concept foreign even to our English
friends and most other Western countries
At same time, degree and vitriol associated with nom and confim of judges has changed
dramatically in recent years
Supreme court level you see.
partisan votes.

Weeks of debate and speechifying followed by

Not that long ago, qualifications was focus and these things were
much shorter.
BRW 15 mins.
Warren Burger 45 mins.
R Ginsburg in 1993 1 hour
As recently as 1986, Scalia confirmed 97-0.
Lately, he’s questioned whether he could be confirmed by
ANY vote in today’s environment, let alone a unanimous
one.

Tip of iceberg. What you don’t see is larger portion of the
behemoth swimming beneath surface.
In recent years, the vitriol has spread even to appellate
judges like myself (150 nation) and even to trial court
judges (1000).
So, we have 2 unfilled positions for years here in Colo.
Slowing down an already slow process even further.
And justice delayed is justice denied.

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 Now, I don’t mean to offend anyone with these observations, or to
overstate my case
Our legal system still envy of much of world.
Compared to other immediate threats to prosperity, these may not
sound the most urgent
But speaking candidly, nothing is inevitable and we can’t take the rule of
law in our socy for granted.
Can’t assume these problems will take care of themselves.
Already longest lived democracy in history. Other demos to reach
our age lost control, decayed, given in to despotic rule.
Things don’t have to be as they are.
Our Founders knew that.
Seems inevitable today that they should have prevailed.
But at time, they didn’t know that. Fighting most powerful
nation on Earth. If they lost - and lose they might - they
knew for a certainty that they’d be hanged.
BF if we don’t hang together hang separately. Sounds
like a nice turn of phrase now, but it was deadly
serious.
Nothing’s inevitable.
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 It is not inevitable our rule of law will remain intact for future
generations.
It is not inevitable we will hand our children a better country than was
handed to us.
It is not inevitable that we should succeed where history tells us other
democratic experiments have failed.
So I ask you tonight to be vigilant to all threats to our prosperity
including those emergent threats to our rule of law.

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