IX. Attorney Thomas N. Todd on National Standards for Judicial Critiques -
X. Congress Should Strengthen America’s Judiciary By Enacting Judicial Whistleblower Protection -
2 Comments »
RSS feed for comments on this post. TrackBack URI
IX. Attorney Thomas N. Todd on National Standards for Judicial Critiques -
X. Congress Should Strengthen America’s Judiciary By Enacting Judicial Whistleblower Protection -
RSS feed for comments on this post. TrackBack URI
As to Part IX of the Report, the Todd video is well worth watching as it offers insight into problems of attorneys who take on unpopular cases, engage in zealous advocacy, or responsibly criticize elements of the judiciary or legal system putting their law licenses in jeopardy.
Professor Todd noted difficulties encoutered by minority and other attorneys bringing civil rights cases in the 1940s through 1960s. Although meritorious cases that should have been won were sometimes lost, at least the law licenses of their advocates were not lost. One wonders what would have happened if disciplinary commissions had their present powers, had courts used contempt powers and sanctions beyond their original fuction of maintaining order in court, and if expansion of the law and zealous advocacy not been seen as sometimes essential.
Were that then the case, one might wonder when Shelley v. Kraemer (1948) and Brown v. School Board (1954)would have been decided.
If an attorney with no case pending makes a responsible critical statement about the judiciary or legal system and faces legal discipline when some layman saying the same thing would face no adverse consequences, one wonders why freedom of speech and equal protection do not extend closer to their constitutional limits and whether surrender of First Amendment rights is a condition precedent to receiving a license to practice law.
Those victims of injustice with compelling cases sometimes challenging the system might reflect that every attorney who receives retaliatory discipline is one less attorney who might have taken their case.
These and other considerations as well as inconsistent results [Todd refers to maybe 50 different First Amendment standards] reached in similar cases in disciplinary matters, makes a compelling argument for Professor Todd’s proposal that Congress enact a uniform national First Amendment standard to deal with such matters. Well put.
Andrew
Comment by Andrew D. Jackson — June 18, 2009 @ 4:11 am
As to Part X, I do think that strong and meaningful whistleblower ((WBer)) protection for attorney and judicial critics and WBers is much needed. Some reports dealing with disciplinary matters that upon reading seem “result oriented”or totally ad hoc rather than based on facts and law, anecdotal evidence ((sometimes used by historians)), and the Breyer Report noting attorneys and judges fear retaliation for making misconduct complaints indicate a clear and compelling need.
And by meaningful WBer protection I don’t mean what we too often see in WBer cases where, not without justification, critics claim that WBer protection is more illusory than real. For starters, the statute would have to specify a right to jury trial, that the statute is to be applied liberally, no irrebuttable or nearly irrebuttable presumption of government good faith, and that the level of proof is weight of evidence ((rather than “beyond dispute”, “irrefraggable proof” and the like)). Perhaps there should be more, but I can’t think of it right now.
Andrew
Comment by Andrew D. Jackson — June 25, 2009 @ 3:28 am