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THIRTY-THREE

The President's January 12 address on legal reform, before the American Bar Association special conference.

Thank you, ladies and gentlemen, members of the bar, for having me here. I appreciate the opportunity to talk to you. I want to point out though that what I say here is said not only to you but to the rest of the nation. Many other Americans will be as interested as you are, because my subject is legal reform, and it affects them as much as it does you, if less directly. Others won't be much interested in what I say, but almost all of them will be very interested in the results.

I'm going to open with a story; I believe that's how guest speakers usually start. I have a friend, an attorney, who used to belong to the same wrestling club as I did, when we were still willing to subject our bodies to that kind of stress. One day while we were warming up, someone said to him, "Jack, does it bother you to hear what some people say about the legal profession?"

And Jack said, "Like what?"

"Well, like what a bunch of crooks lawyers are supposed to be."

"No," said Jack, "it doesn't bother me that they say things like that. What bothers me is, there's so much truth in it."

Incidentally, I called Jack Mestrovic and got his approval to tell you that story.

Now, I didn't come here to insult lawyers. I opened with that story simply to illustrate a common view: that the profession of law, including the judiciary, is riddled with dishonest—sometimes criminally dishonest—people. And that there is some substance to that public attitude.

An attitude which is only a part of the widespread public distrust of our justice system.

So tonight I'm going to talk about legal reform, a new package of law which will go into effect very soon.

Before I talk about this legal reform package, I'll describe very briefly how it was developed. As you know, I'm an engineer, not a lawyer. But with my customary immodesty, I approached legal reform by roughing out a program myself, based on how things looked to me. I did this my very first two weeks in office, because without reform of the legal system, I could see little hope for the future of democracy in this country.

From my opening anecdote, one might get the notion that I ascribe the problems of the legal system to dishonest lawyers. Dishonest lawyers are an element in the situation, and so are the opportunities to exercise greed within that system. But the major faults lie in basic assumptions and procedures so taken for granted that many Americans assume they are unchangeable, perhaps chiseled into stone on Mt. Sinai, or programmed into the universe, or at least written into our Constitution.

Which of course they are not.

Perhaps the most basic of these working assumptions seems to have grown out of royal word-splitting. The king, let's say, wanted to get rid of Someone. Legally. So he said the law really meant such-and-such, and that Mister Someone was in violation of that law. Off with his head! So it seemed very desirable, in the interests of justice, to be extremely explicit in legal language. To leave a minimum of opportunity for interpretation. And what interpretation was necessary would be done by someone who was not the king and who was not controlled by the king. Or the president, if that's what you have as head of government.

It would be done by independent judges. Which seems to make sense.

Most of this is not written into the Constitution, however, let alone having been given by God to Moses. The Constitution stays pretty much out of the subject, except to assure certain rights, such as jury trials, and to establish the Supreme Court. It leaves judges free of presidential control.

How well has this worked, here in these United States? The answer is the state of justice and the state of the public defense in this country: It's kind of worked, but it labors harder and harder, costs more and more, and runs slower and slower. And all too often it doesn't get where it's supposed to go. If a truck ran like that, we'd overhaul it or trade it in.

And frankly, ladies and gentlemen, in today's crowded technological world, if we can't get the legal system to work better than it has been, then everything else we might do toward restoring the social, political, and economic health of our country will be wasted. The land of the free and the home of the brave will continue to become, more and more, the land of the frustrated and the home of the rebellious.

Did you get that? You need to. We all need to.

You might ask what made me think I was qualified to draft a program of legal reform. First of all, I'm an engineer, a designer of systems, and a solver of problems. And like most citizens in this country, I have opinions on law. A citizen doesn't need to be a lawyer to look around and see how well or how poorly our legal system is working.

What is our legal system supposed to do? Make us a buck? Give us a game? Basically the legal system—the laws themselves, the enforcement agencies, and the system of courts and judges—has the purposes of defense and justice. Of defending the individual and society from harmful acts, and providing justice to individuals and groups.

Obviously our system could have been far worse. It's been good enough that people have been willing to ride with it. But more and more it's been struggling. Good people within the legal system keep bailing, but it keeps settling in the water despite their earnest efforts. My job is to keep it from foundering, and democracy with it. And that's what I've undertaken to do.

So I looked at what seemed to be right and wrong with it, and what common sense suggested could be done about it, and then I wrote it up. Next I worked it over a couple of times and then showed it separately to three attorneys. After swearing each of them to secrecy. Each of them is prominent and experienced, and none of them knew I'd shown it to the other two. I pointed out to each of them that what I'd given him was a trial draft, a playing with ideas. And that what I wanted particularly was their opinion on whether it could be made constitutional. And workable. And what parts served justice and what parts didn't. I asked him to read it while I sat there with him—or her in one case. To read the whole thing before commenting.

So they read it while I waited. Then they commented and I taped what they said.

I should also mention that all three of those attorneys were people whom I knew to be more or less critical of the legal establishment. Their positions and experience, on the other hand, were considerably different one from the other. And I'd heard that one of them was a frequent reader of science fiction, so I hoped that she, at least, could take a rather free-wheeling viewpoint.

I suppose this is a good time to tell you who those three attorneys are. You all know their names: Judge Curtis Liederman, Professor Ellen MacLieth, and Senator Bob Lawes.

After we'd discussed the rough draft, I worked it over again a couple of times, making substantial changes, and called all three of them in for a joint conference. After we'd read it over together, I told them I wanted each of them to draft his own version of it—to give me a workable system that included what I considered basic principles. And to do that without consulting one another.

Their results were very similar. Then we all got together and spent a day talking them over, after which the three of them drafted a final form which we edited together.

So that's how the package came to be. The next question is, what's in it? What does it say?

I'll get to that. But first I need to talk about the problems, starting with laws and the police. What kind of system is it that requires an officer to enforce laws that shouldn't be? Laws that don't make sense, or are harmful? Or unenforceable? We require too much of a police officer when we ask him to use double-think—when we ask him or her to justify, to himself or herself, police actions that are not justifiable. Or when we throw his or her careful work into the trash through some judicial stupidity.

I've heard it said that the only thing wrong with law enforcement is that it's in the hands of humans. Actually it was Arnold Mansford who said that, to several million of us on television a year or so ago. Arnold, what would you suggest? Robots? If robots were available that were sophisticated enough, advanced enough, and we turned to them for our police services, it would be—a disaster. No one should be enforcing the law who can't exercise subjective human judgement. As someone involved in research and development on robots, I assure you that humans are infinitely preferable to robots and computers for dealing justly with anything as complex, variable, and subtle as human behavior and human society. For dealing with anything so unamenable to accurate mathematical expression.

Yet in training police officers, and in managing police forces, too often the model striven for seems to be the robot. As if the ideal policeman should operate as an organic robot. This, along with unreasonable demands, and the inequity, unenforceability, and arbitrary stupidity of so many laws, especially as they stand interpreted, tends to warp too many officers toward emotional dullness—toward the non-human, insensitive condition of the robot or computer. What is needed in law enforcement is intelligent, fair-minded officers well informed in the principles of justice and well trained in the functions of police. Men and women trained and permitted to be tolerant but tough, understanding but responsible. And the system of laws should be one they can feel honorable, if not always comfortable, about enforcing.

As for the courts, all too often they have frustrated the citizen looking for justice, or looking for guidance in behaving reasonably and within the law. Too often the courts have frustrated intelligent efforts to improve conditions, and all too often they have also frustrated the police. Despite the efforts of many good men and women in the legal profession, American courts are too often a failure and sometimes a disgrace.

Incidentally, I am not saying that the police should have the right to do whatever they wish. The purpose of law is not the convenience of law officers, and necessary restrictions will remain. Actually, most of the laws constraining police behavior will remain, but some laws will change, and the courts will change. We cannot reasonably expect the legal system to be perfect, but it must be adequate. And as it stands, it falls too far short of providing reasonable defense and justice. In the guise of justice, the system has sometimes led to injustice, very often delayed justice, and all too often no justice. Ask many of the people who've been there. Too often it has undermined both order on the one hand and reasonable liberty on the other.

How did this happen? It was a matter of cooperation between legislators and citizens who either were shortsighted or had some degree or other of tunnel vision. And by activists and special interest groups. Some operated with avarice, some with the best of intentions, and all too many with intolerance. Too often the battlecry has been "Pass a Law!" Or more exactly, "Pass My Law!—the law that will give me an advantage. Or the one that fits my prejudice." And lawmakers passed these laws by the uncounted thousands.

Many of those laws, considered singly, seem like good ideas. But taken en masse, they grew to be a legal disaster that too often has strangled rights and perverted or denied responsibility.

And the legal profession, acting within the justice system, and in legislatures and the Congress, has failed to keep things from getting worse. The popularity of "Dirty Harry," and of vengeance movies, tells us something about the public attitude toward our legal system.

So I'm making some changes before it's too late. Before the people, in final disgust, turn to real-life Dirty Harrys and to gun law.

The Constitution doesn't allow the federal government a whole lot of authority over state courts. Although it gives us more than some might think, and we're taking advantage of every bit of it. So the reforms I'll talk about deal mainly with federal courts and laws and to some extent with those of the individual states. And I invite the American people to demand that their legislatures pass similar legal reforms.

Some attorneys will applaud these reforms, and some will howl. I invite the American people to consider the howling as a reflection of pain in attorneys' bank accounts. Also, keep in mind that many legislators are lawyers, and that some of them will give all sorts of reasons not to reform state law. Don't let them get away with it.

The adversary system has made of our courts a sort of intellectual football field, with the prosecution and the defense declaring war on one another in order to win, and to hell with justice. So we have changed the ground rules to get away from this. These changes will also reduce the seeming endlessness of some trials, as well as outrageous court costs and legal fees.

Also, while a judge may, as before, find a public person guilty of contempt of court, a citizen or a higher court now may charge a judge with contempt of public.

In the new system, the term "guilt" is not used. The jury will find the accused either at fault or not at fault, based on whether they judge that the person committed the illegal act or didn't commit it. Good intentions, ignorance, insanity, have nothing to do with fault.

However, they may modify culpability. In deciding culpability, the main considerations are fault, how reasonably avoidable the act was, what the person's alternatives were, and what his intentions seem to have been.

And the penalty depends on culpability and on what harm, if any, was done to someone.

The new system also considers that individual freedoms are too precious to be sliced and hacked at by people and groups who feel that people must be protected from themselves. Let me restate that. The legal system is no longer the tool of people who feel compelled to control others—people with a compulsion to protect you from yourself whether you like it or not. The Constitution does not authorize the federal government, or the state governments, to impose that kind of control on citizens.

In this regard, I invite you to consider the ninth amendment to the Constitution, which states: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Three examples should be enough to let you see what I mean by keeping the law out of areas of self-harm. If you are eighteen years old or older and want to ride your motorcycle without a helmet, you have the right to. Or if you are less than eighteen and your parents are willing, you have that right. But as a motorcycle operator, you can require your riders to wear one.

And if you want to drive without fastening your seatbelt, that's your right too. Of course, your insurance company may pay less, by a reasonable amount, if you're hurt or killed when not strapped in, but you have the right to ride that way, with this exception. A driver can insist that his or her riders buckle down.

Also, taking harmful drugs is no longer a crime, but laws controlling the dispensing of harmful substances remain in force. And you will soon see new and forceful government action against the importation of illicit drugs. The Coast Guard is the only branch of government authorized by international law to stop, search, and seize vessels at sea for smuggling. A warrant is not, and has never been, required for this, and reasonable force can be used.

However, the Coast Guard has had far too few ships and planes for the job, so I have temporarily transferred the necessary ships, planes, and personnel from the Navy to the Coast Guard.

Almost no states have laws against suicide or attempted suicide, and such laws are voided by this reform. But there is an indirect prohibition against suicide that applies almost everywhere in America: Suicide is severely punished by insurance companies, which generally refuse to pay "death benefits" in cases of suicide.

If someone wishes to end his or her own life, that is their prerogative. To live or not to live, within the individual's ability to do so, is his or her most basic right. And it is a right that supercedes the desire of anyone else—anyone else—that the person remain alive. Even that of a spouse or parent or dependent, and certainly an insurance company.

Yet an insurance company also has the right to protect its shareholders and policy holders from someone who, let us say, might pay $100 for a $100,000 life insurance policy and then kill himself, enriching his beneficiaries. To legalize that would be like granting a license to steal.

So beginning this February first, insurance companies may not refuse payment of indemnities for suicides. But they may reduce payments, based on reasonable actuarial formulas, and considering the premiums paid and the coverage. The intention of this is not to punish suicide, but simply to protect the insurance company and its policy holders and share holders from financial damage.

None of this applies to church prohibitions against suicide. A church may withhold its sacraments from a suicide if it wishes—that's a matter of religious freedom.

Incidentally, if any of you are considering killing yourself, keep in mind that suicide is not reversible. You can't change your mind the next day. And the condition you sought to avoid by suicide may not have seemed nearly so terrible the next day. Or it may be remedied next week! It might be better to get counseling from a pastor or a therapist than to take cyanide. But it's your life.

Unfortunately this speech may inspire a brief flurry of suicides. But more than a few of them would be covert suicides anyway, masquerading as accidental deaths. Others would become tomorrow's drug overdose statistics. Or murders.

Now let's consider the interpretation of law.

A legal precedent is the way some judge in the past interpreted how the law applied to some specific case. In the courtroom, judges and attorneys use legal precedent to guide their arguments and decisions. And while legal precedents are sometimes the product of high wisdom and often of common sense, they may also prove to be foolish, certainly in some of their applications.

And laws, as interpreted with the help of legal precedent, were supposed to be followed exactly. "To the letter." So what happened? People, generally lawyers or with the collusion of lawyers, found ways to sneak around the intent of the law by finding chinks and crannies in the language of the law. They found ways of interpreting the law to circumvent the intention of the law.

Sometimes, when a law or its interpretations were destructive, finding a loophole was the only way an intelligent action could be carried out. But all too often it amounted to cheating, to getting an advantage over others, and the broader welfare be damned. And the person or group who could afford a coven of clever lawyers could operate more freely, even much more freely, than others could. Thus wealth gave one an advantage in legal matters.

There are multimillionaire lawyers around who built their fortunes on this kind of thing. Mostly it wasn't illegal, although sometimes it may have been. You can look at it as gaming, but from a justice point of view it's destructive. And the legal profession didn't treat it as an ethics issue; that would have hurt too many of their bank accounts. So even if you've been an honest, ethical lawyer, you still share responsibility for the tar of public disgust, because you did not take effective action to reform your profession and the legal system.

I really regret saying that, because I've become aware of how hard some of you have worked to reform it.

So now we are requiring all courts, not just federal courts, to apply laws as the laws were intended. Where the original intent is not clear from the language of the law, intent will be decided according to the conditions and situations that the law was written to deal with. The intent of the law will always outweigh precedent to the contrary.

Cracks and unintended loopholes will be disregarded. Also, I'm asking the Congress and other legislating bodies to make a clear statement of their intentions in passing any new law, stating those intentions first in terms of broad principles and then of immediate specifics.

The most basic and most important changes in the system will be in the courts. These apply mainly to federal courts, until the people and their legislatures install them in state law. The package you'll be given after this talk describes in what ways this reform affects courts other than federal courts. Now, with that in mind, here are the new ground rules:

The role of the judge is changed considerably. Although the judge has not usually "judged," he or she has weighed too heavily in the courtroom. As a generality, the judge has had more authority than has proved wise for one person to have in court. The judge, like anyone else, has prejudices and blind spots, and today perhaps a snootful of cocaine. In your own studies, you have indicated that cocaine use among judges and attorneys has become a serious problem in justice proceedings.

The judge has been the court executive who guided the proceedings and assessed what the penalty would be. Usually it has been the jury that has judged guilt or innocence, but its decision has had to be within the limits of what the judge says the law really means and how it applies. And at times, judges have rejected a jury's decision of guilt or innocence.

Our changes will help the jury judge the case with greater justice and speed. The jury now will also decide the penalty, within certain guidelines, and penalties will commonly include restitution and amends. And the jury will have the authority to decide the law—to decide for itself how the law applies, within broad legal guidelines, considering the stated or apparent intent of the people who made the law.

The judge is required to explain and to advise the jury on the law. He may point out precedent. But the jury may ignore his advice and reject precedent. The judge has no authority to order them, nor tell them what they should do, nor try to coerce them, in matters of the law. The jury is free to interpret the law according to the jury's own view of its intent and its application to the case, subject as always to appeal.

And very important, the jury will have the right to insist that the court ask certain questions of the accused; and of the principals in a civil suit; and of witnesses. The procedures for doing this are described in the reform package. The jury can even require that the attorneys and the judge answer the jury's questions, where the jury feels it necessary to clarify what the truth is and what justice requires.

Because we are looking for a maximum of justice. We are no longer treating a courtroom as a gaming place for lawyers.

And we are looking toward justice as justice is viewed by the citizens. On the whole, courts dominated by judges have not done an adequate job, and I believe that citizen jurors will do better.

Incidentally, the jury will have another right. If a jury agrees that a law, or part of a law, is ridiculous, or poorly written, or for any reason is a poor law, they can recommend that it be reviewed for possible cancellation, alteration, or replacement. They must judge the case at hand according to the law as it is, but they can recommend that the law be reviewed, saying why. There will be review panels for that purpose.

The most severe penalty will be imprisonment without liberation until judged by a board of citizens as safe for society. And the safety standards will be more stringent than often has been the case. Let me repeat, that is the most severe penalty.

Earlier I mentioned restitution and amends. There you have one of the principles this new system stresses: personal responsibility. I want to emphasize that. Whether convicted of a misdemeanor or a felony, the person convicted is likely to be assessed restitution, to be paid to the individuals or institutions they have harmed. And they can be required to make appropriate amends to society. If nothing else, their amends will include court costs.

This is not a matter of additional punishment. It is a matter of being responsible for the damage one has done, as judged by a jury of citizens.

Which brings up a related matter. If a crime so attracts publishers or film makers that they want to buy the book rights or film rights from the criminal, the proceeds that normally would go to the criminal as author or coauthor or story source will go first toward restitution to the injured, and if any is left, it will be paid to the court as an amends to society. The agent who handles it can of course receive a reasonable commission, and any writer who assists with the manuscript or script can receive a reasonable fee. But kickbacks will be treated as felonies.

And now about civil law.

This nation has a history of lawsuits and even criminal charges being filed which proved to be clearly unfounded. Sometimes suits have been filed to harass or defame someone. Sometimes they have been made simply for publicity. And frequently they have been filed in hopes of getting an out-of-court settlement from someone who wants to avoid the time, expense, and publicity of a court case. From now on, filing a clearly unfounded case will be a good way for a lawyer to get himself tried on felony charges, fined, disbarred, and possibly imprisoned.

Which brings us to what may be the most disgraceful area in the American legal system: liability claims. Some decades ago, I recall a case where three teenage boys saw a tractor in a farm field in Kansas. The farmer had driven home in his pickup truck to eat lunch. The boys went out into the field, trespassing, started the tractor and drove off with it. One fell off and was run over, suffering severe injuries.

So—His parents sued the farmer!

And the court did what? Did they charge the boys with trespassing? No. With illegally driving the tractor? No. With reckless driving? No. They awarded the injured boy's family half a million dollars. In 1960, that was equivalent to about two million of last year's dollars.

Say that their lawyer got thirty percent. That happens in liability claims. So let's say that after taxes the family itself ended up with what amounted to one million of last year's dollars. Invested through a reputable brokerage firm, that could easily provide an income of $80,000 a year. So here was a kid who broke the law, and as a result his family had an income far far greater than the average family's.

Here was a teenage boy who not only was not held responsible for his own actions, his own foolishness and heedlessness, his own lawbreaking, but who was rewarded for it!

I won't tell you what I think, and what most Americans think, of the lawyer. Or the judge. Or the court. Can the legal profession possibly interpret this as justice? One can hardly avoid wondering if the judge received a kickback from the lawyer, who morally smells like a profiteering criminal.

Perhaps more remarkable was the case of the man who swallowed, or half swallowed—an office staple puller! It's not easy to half-swallow a staple puller. It's not easy to imagine a grown man putting one in his mouth! He very nearly choked to death, and surgery was necessary to remove it. Then, with the help of a lawyer who deserved to be put in jail, he—Sued the manufacturer because the staple puller did not have the warning: harmful if swallowed! And more incredible yet, he was awarded $400,000 damages! I don't know what the lawyer's cut was of that award. Twenty percent? Thirty?

A large majority of Americans consider such legal actions outrageous and shameful. Your own public surveys have established that unequivocally. Yet apparently the American Bar Association considers such actions ethical. Right? Because through its membership, it has had the necessary power to end them, and hasn't done it. However you might rationalize this, it seems clear that the fat bank account has outweighed ethical considerations in your organization.

And whose money is given away in these outrageous grants? The insurance company's money? In a way, yes. But really, it was everyone's money who bought insurance, which is most families, because their premiums had to be made high enough to pay for the judicial stupidity, the judicial irresponsibility, the you-help-me-get-mine-and-I'll-help-you-get-yours greed that resulted in such awards. The many many such cases cost everyone who bought insurance a great deal of money. Everyone except the gougers.

And worst of all, it degraded public confidence and helped make the law and the courts contemptible in the eyes of many Americans.

Of course, many liability suits are proper and just. People do injure others, intentionally or through ignorance or carelessness. In such cases the person being sued should be held accountable for their actions, and damages assessed which are just and reasonable. But it is not acceptable that people be rewarded for their own carelessness, their own stupidity, sometimes their own avarice, even their own trespassing, at the expense of the rest of us.

So we are finally starting to get rid of these expensive comedy shows. Damage awards will depend on actual damage, actual liability, and reasonable legal fees. And if cases are brought which are as flagrantly predatory as the examples I mentioned, the case will not only be thrown out; the lawyer will be disbarred and the plaintiffs quite possibly fined.

Only actual damages will be rewarded, not punitive damages. I'll repeat that. Only actual damages will be rewarded, not punitive damages. If punishment is appropriate, then instead of punishing with punitive damages, criminal charges will be filed and punishment carried out that way.

The majority of liability cases fall under state instead of federal law. But this legal reform package has considerably extended what cases can be tried in federal courts. And it makes certain new requirements of state and local courts. As a matter of fact, we have gone to the very limits of constitutionality on this. But the federal government has just so much authority and no more. So if you, both lawyers and citizens, like what I've said here today, then use all the pressure necessary to get similar reforms written into state law. If your local legislator gives you alibis instead of action, then find someone who will give you action and elect him to the legislature.

And I hope you'll write your senators and representatives to Congress, letting them know how you feel about this. I'm sure they'll want to know. Perhaps your newspaper will list their addresses, and those of your state legislators.

Now one last thing. Although a decent system of defense in law, a decent system of justice, is much more important than the self-interest of any establishment, it is conceivable that a few people in the legal profession may try to sabotage this legal reform and make it fail. I would advise against that. The government will cheerfully file criminal charges in such instances. A judge guilty of malfeasance may find himself on a prison farm, experiencing the joys of field labor of the sort he may himself have meted out to other criminals.

And that's all I have to say on this reform. To you members of the bar, I'm sorry if, at times, I've seemed to lump honest attorneys with the dishonest. I've worked closely now with three of you who are deeply interested in correcting these things. And they have referred me to studies made by others of you who have worked long and hard at trying to correct these problems. It's too bad that so many others of you blocked their efforts or at least did not pitch in and help them push.

To the many non-attorneys listening to me on television and radio, to a considerable degree I am putting the federal justice system in your hands, as jurors. I invite you to write and tell me what you think of these changes.

Thank you all for listening to me.

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