Dean's Address

In John Locke's Second Treatise of Government, which served as the source of political philosophy for our own Declaration of Independence and Constitution, the fundamental enlightened concept of separation of the powers of government appeared for the first time in political thought. Locke spoke of "balancing the power of government by placing several parts of it in different hands" (Section 107). The concept of the tripartite system of checks and balances is a permanent fixture in American political thought and experience. Separation of powers is the lynchpin of our system. It lies at the very base of our liberty.

With this in mind it is important to view the jury system not as a device of our judicial process, but rather as an institution in our political system. The oft‑quoted De Tocqueville, preeminent observer of American society, noted,

"It would be a very narrow view to look upon the jury as a mere judicial institution; for however great its influence may be upon the decisions of the courts, it is still greater on the destinies of society at large. The jury is above all a political institution, and it must be regarded in this light in order to be duly appreciated." (I A. De Tocqueville, Democracy in America 282.)

The view of the jury system as an institution rooted in the ideals of separation of powers was espoused by John Adams who noted that the jury system introduced into the government "a mixture of popular power" and as a result "the subject was guarded in the execution of the laws" so that "no Man could be condemned of Life, Limb, Property or Reputation without the concurrence of the voice of the people." (Charles F. Adams, Ed. The Works of John Adams, Vol. 111, 48 1.) The jury system provides a check, arising directly from the will of the people, on the power of the bench to make law. The law making function of the judicial branch occupies a significant position in our political scheme. This quasi‑legislative role of our judicial system is a major reason why the jury trial must be maintained in its present form. As one commentator noted, the American judiciary has assumed a "different institutional role than the one taken by their English brethren. In our tripartite system of government, the power of judicial review is inextricably linked with the concept of an independent judiciary and its attendant risk of autocratic behavior." (Higgenbotham, "Continuing the Dialogue: Civil juries and the Allocation of judicial Power," 56 Tex. L. Rev. 52 (1977).) The practice of judicial review established in Marbury v. Madison inevitably resulted in a politically conscious judiciary. This unique role of the American judiciary requires an infusion of the will of the people in the form of the democratizing influence of the jury. The jury, extracted from the community, acts as a check against the autocratic tendencies of the judiciary.

As Professor Cox has noted, "the power of the great constitutional decisions rests upon the accuracy of the Court's perception of this kind of common will and the Court's ability, by expressing its perception, ultimately to command a consensus." (A.Cox, The Role of the Supreme Court in American Government 118 (1970).) Indeed the jury acts as an institutional check on a politically conscious judiciary by providing the judicial process with an expression of community values as they relate to the issues of each case.

Just as the jury system must be viewed as a political institution arising from the fundamental concept of separation of powers and checks and balances, so must one view the independent bar. The independent bar, a representative of the people apart and distinct from the bench, provides a check upon the judiciary in a manner similar to that of the jury.

Historically, there is evidence that a movement away from the use of a jury system accompanied a loss of the American bar's independence. Thus one historian notes:

"One of the leading measures of growing alliance between the bench and bar on one hand and commercial interests on the other is the swiftness with which the power of the jury was curtailed after 1790." (The Transformation of American Law 1780‑1860, Morton J. Horwitz (1977).)

As the bar became more closely tied with commercial interests and the bench, the power of the jury was curtailed in three respects: (1) more "special cases" for judges, (2) new trials were granted where verdicts were against the evidence and (3) jurors became exclusively triers of fact. justice Story noted "to my surprise ... the opinion is rather popular among merchants. They declare that in mercantile cases, they are not fond of juries" Id. This points to the subtle interrelationship between the jury system and the independent bar. just as the bar in 1790 became more dependent and allied with big business and government. The jury, made up of the common interests the bench and mercantile interests, the bar in the past two decades has become allied with ‑the private citizens, the consumers ‑becomes a threat to the interests allied with the bar. Further, as the bar and bench become more closely allied, the jury is viewed as an illogical, irrational intrusion into the "law" practiced by an elite legal community. Thus, just as in 1790, so today, cries to curtail the use of the jury system are heard from the bench.

But to pay heed to those cries is to ignore the delicate tripartite balance inherent in the judicial system. The jury and the independent bar both serve to act as checks upon the judges. The check provided by the jury arises from the common will of the people reflecting all of the good and bad that comprise that will. The check provided by the bar is a professional one, arising from the years of training, practice and education in the law. Remove the jury and the democratizing influence is gone. Remove the independence of the bar and the check disappears a's the bar and bench become a single entity. The demise of either of these institutions destroys the internal balance of the judicial system and thus promotes the risk of unchecked autocratic behavior on the part of a judiciary which, while performing its function to make law, is divorced and isolated from the will of the people. But the jury system and the independent bar, while on the one hand serving as a check on the judiciary, on the other hand are the roots of its independence.

Because all our courts enjoy the unique power to make law, it makes our law flexible. It makes it comport to the needs of the people. And who brings the needs of the people to the attention of the courts? The trial lawyer. This is quicker, more direct, simpler, yes, and less expensive than the legislative alternative.

Every great case, every opportunity to make a step forward for society, to make law to improve the human condition, originates in the trial court, with the trial lawyer. Our appellate courts have no way to originate these cases. They must wait for the issue to be brought before them in order to enunciate their principles.

The jury as a forum encourages the lawyer to bring his case before them because they are representatives of the people. They mirror society ‑its needs, its moods and its mores. And the lawyer, to properly present his case, must understand the people. He thus becomes acutely attuned to the problems of society and the ideal instrument for bringing the issues of the day to the examination of the judiciary. Legal development always lags behind sociological development. But the gap is narrower in our country than any other. This is because in our country, the little person can find an ear. He can fight city hall. The trial court is a forum where a cause can be brought directly; where a private individual can cut through all the red tape, all the bureaucracy involved in the legislative process; where he can avoid the overwhelming power of the special interests which have such a lobby in all legislatures.

There is no paid lobby in the trial court‑ or the appellate courts. The individual with no great fund of money, no lobby, and no resources other than an independent trial lawyer can bring his cause to hearing with closer to even odds in the trial court. It is the great leveler. The needs of the public are thus brought directly to the judiciary giving them the opportunity to respond directly‑and independently ‑without coercion, control or influence from any source ‑ to shape the law as they feel it should be.

Where was the independent judiciary in Nazi Germany, when millions were decreed to sterilization, imprisonment, and worse; when any judge, independent enough to refuse to issue the barbaric order, would himself be derobed, disbarred and imprisoned?

Where was the independent bar in Nazi Germany, when all Jewish lawyers were disbarred; when any lawyer having the temerity to represent a Jew was disbarred? Where in Nazi Germany, was that hallmark of independence, the great writ, the writ of habeas corpus (which incredibly, has been the most recent target of the Chief Justice)?

Contrast instead the Watergate experience. Agonizing as it was, it represented the triumph of the independent bar, the independent judiciary. Although at first blush lawyers appeared the villains, lawyers and judges were the heroes of Watergate. Lawyers uncovered it. Lawyers prosecuted it. A federal district judge tried it. Appellate courts and the Supreme Court itself made historic decisions. And the true defendant was the President of the United States! The highest officer of the land did not have the power to stop the legal process of the courts, the lawyers, the people.

Archibald Cox was not disbarred. Elliott Richardson was not disbarred. They were fired. But it was Mitchell, Dean, and the other officials of the President's team who were disbarred. And imprisoned.

What greater example could there be of the genius, the beauty of our system? The glory of Watergate was that our country survived the nightmare. The system worked.

The trial lawyer, the jury and the judge interact. The lawyer serves as a buffer between judge and jury, as a gear engaging the jury to the judicial mechanism. The three, judge, jury and lawyer function together to meet the needs of society.

We must keep our pulse on the public. The law does not exist in books. It is not a jurisprudential exercise in abstract logic or semantic gymnastics. It is not an opportunity for courts to compose witty, eloquent, or deathless prose which will survive as examples of literary gems in the history of legal writing. Its purpose and function is instead to do justice, create standards by which the people can live in peace, in dignity, and in freedom. It is a living thing. The law must accommodate itself to the people ‑not the people to the law. The law is the servant of the people ‑ the people are not the servants of the law. Law is made, acts are passed in aid of the preservation of human liberty and human rights.

Alexander Hamilton said of the jury trial:

"For my own part, the more the operation of the institution has fallen under my observation the more reason I have discovered for holding it in high estimation; and it would be altogether superfluous to examine to what extent it deserves to be esteemed useful or essential in a representative republic, or how much more merit it may be entitled to as a defense against the oppressions of an hereditary monarch than as a barrier to the tyranny of popular magistrates in a popular government. Discussions of this kind would be more curious than beneficial, as all are satisfied of the utility of the institution and of its friendly aspect to liberty."

"The strongest argument in its favor (in civil cases) is that it is a security against corruption... and it will be readily perceived that this complicated agency tends to preserve the purity of both institutions (the court and jury)."

In commenting on encroachment upon the jury system, he said:

"It may be added that these encroachments have generally originated with the men who endeavor to persuade the people they are the warmest defenders of popular liberty, but who have rarely suffered constitutional obstacles to arrest them in a favorite career."

We must take great care before we tinker with the delicate machinery of justice.

Let us all re‑examine our system in perspective. Let us emulate the juries; refresh ourselves, renew ourselves. Let us look to our history‑to our founding fathers to our Constitution. Let us not deny our heritage. Let us not permit to slip away through passivity, indolence, or misguided appeals to expedience that which has been so hardly won.

Edmund Burke has said, "the only thing that is necessary for evil to triumph is that good men do nothing."

We must be activists, not passivists, if we are to preserve out institutions.

We must not disarm our foot‑soldiers.

We must not leave the ramparts unmanned.

We must not blind the eyes or still the tongues of our sentinels.

I pray God to preserve to us the "adrenalin‑fueled" trial lawyers.