California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - FEBRUARY 2000
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California Bar Journal

The State Bar of California


REGULARS

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Front Page - February 2000
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News Briefs
Appeal court denies bar's petition to reverse Brosterhous
Fee bill introduced
Bar fee arb program gears up
David Bryson, Loren Miller recipient, dies at 58
Board to name one to Judicial Council
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You Need to Know
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Opinion
From the President - For our system to work, we need to be involved
Let's let public lawyers take a seat at the table
The illusion of a cosmetic fix
Letters to the Editor
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MCLE Self-Study
The Supreme Court and the ADA
Self-Assessment Test
MCLE Calendar of Events
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Appointments
Access commission seeks members for 2 positions
Apply to serve on a bar committee
Bar seeks applicants for ABA delegates
Judge evaluation positions open
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Discipline
Ethics Byte - 'Rampant' conflicts in a new economy
Attorney suspected of soliciting murder of bar prosecutor
Attorney Discipline
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Legal Tech - If the hype is right, ASPs are H-O-T
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Public Comment

OPINION

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The illusion of a cosmetic fix
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By STEPHEN W. REED
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In her January opinion article, “For most Americans, our system is a failure,” Esther Lardent raised the tantalizing notion that the American judicial system might be fundamentally reformed. It is certainly beyond debate that the judicial system has become, in her words, “the point of last resort for a wide range of painful and complex personal disputes.” In merely pointing out that indisputable fact, Ms. Lardent could launch a valuable re-examination of the systemic features that have brought about that state of affairs. Her unstated assumption is that, as a matter of public policy, courts should not fill that role. While I agree with that assumption, it warrants examination and thorough debate — something that seems unlikely to occur any time soon.

One of the facts of life, which militates against any comprehensive re-evaluation of the American legal system, is the philosophical foundation on which the American legal system rests. For at least 100 years, American lawyers have been trained in legal positivism. First-year law students are advised within a week of arriving at school that they are not there to learn about right and wrong or even fairness, but about reasonable expectations. That beginning principle is subtly refined with an equitable gloss that proposes that there is no wrong without a remedy. But that very formulation of the debate begs the question: What is a wrong?

Stephen W. ReedMs. Lardent asks whether the best course of action might not be to change the focus of American law away from due process to outcomes — seeking a decision which is “fairer and better.” But to ask the question is to answer it. Who will judge what is fairer and better and by what standards? Whose standard of fairness will govern? In our post-modern world that rejects any absolute truth, where is the moral compass that will point to the true North? In the past, general consensus formed a center around which law and freedom could rotate. That center of cultural character and affirmation of truth was vital to the preservation of our society of law and freedom. But in our world, the center is gone — there is no real consensus. Pollsters report that two-thirds of Americans do not believe in moral absolutes or in absolute truth. That poses the dilemma: If there are no absolutes, no Pole Star, how does one reach decisions that are “fairer and better.”

 In the absence of a meaningful cultural consensus about right and wrong, law and individual freedoms compete to fill the vacuum left by the collapsed center. David Wells in Living our Virtue captured the problem: “The result is that fires of license are stoked constantly by our growing moral relativism and by our individualism, but at the same time they have to be constantly doused lest they engulf our society. We therefore have to resort to law and governmental regulation to contain what we have unleashed. What was once an open space between law and freedom, one governed by character and truth, is now deserted, so law must now do what character has abandoned.”

When Ms. Lardent argues that many lawyers want to exchange the gladiator role for that of problem-solver, she undoubtedly is focusing accurately on the desires of many in the legal profession. But imagining that we can abandon, or even refocus on the adversarial system in favor a new model without a concomitant rethinking of the underlying philosophical underpinnings of the entire system offers an illusory hope which will ultimately disappoint.

Ms. Lardent has opened the discussion. The next phase should be a serious and principled discussion of how to redevelop cultural consensus around fundamental issues of right and wrong — oughtness, if you will.

Stephen W. Reed is partner in Reed & Brown LLP of Pasadena.