Expert Opinion

When significant amendments to the Federal Rules of Civil Procedure went into effect last December, we celebrated this important achievement but also stressed that how the rules were implemented would be key to seeing a positive impact. The importance of how the amendments are being implemented has not been lost on the bench and bar. In fact, it has been the focus of 2016.

On September 17, 1787, the Framers signed the United States Constitution. The day is observed by some lawyer and judge groups but, unfortunately, largely goes unnoticed by the rest of the population. Our Constitution is masterful, and deserves to be celebrated by all of us.

The United States Constitution will be 229 years old on September 17. The Constitution was the document that charted the course for our country, mirrored in significant part in state constitutions that followed. In one respect, the Constitution is like the rebar embedded in the concrete that supports our houses, buildings, skyscrapers, and bridges. It is unseen, but critical to the strength of the structure. So, too, our Constitution is fused into the heartbeat of our economy, our democracy, and our court system. Without it, we could not do business, pass laws, create rules of interaction with one another, or transfer power peacefully.

A couple of years ago at Aspen, Margaret Marshall, who retired as Chief Justice of the Massachusetts Supreme Judicial Court in 2010, issued a chilling warning about how nations lose the rule of law. Marshall, who spent her early years in apartheid South Africa, said that when the rule of law goes, it does so “astonishingly quickly. The current election cycle brings to mind Marshall’s admonition, and in particular, the allegation that the “game is rigged”  leads again to considering the kind of corruption that campaign donations foster: The Citizens United Problem. The case has become a dog whistle on both sides. Progressive surrogates suggest that if only the case could be reversed, the flow of donations from corporations to political campaigns would cease, and with it corruption of the process. On the other side, conservatives caution that to cease the flow of funds would eviscerate the First Amendment guarantee of free speech. And guess what, both sides use the parade of horribles to—you got it—raise money.

On June 15, 2015, members of the American Bar Association joined with their British counterparts on a water meadow on the banks of the Thames at Runnymede, county of Surrey, England, directly under the flight path of Heathrow Airport. This event culminated the celebration of the anniversary of perhaps the seminal document on the rule of law: Magna Carta. I had the privilege of not only attending the 800th Anniversary of the sealing of Magna Carta, but also of chairing the ABA’s London Programs leading up to the actual anniversary. After two years of planning, the celebration exceeded all expectations, with the Her Majesty the Queen, the Her Royal Highness the Princess Royal, other members of the royal family, the Prime Minister, the Foreign Minister, the Archbishop of Canterbury, and the U.S. Attorney General in attendance.

The Framers of the Constitution knew a few important things about people in general. People want power. They seek to impose their will on others. They make mistakes. And they think they know more than they actually know. The Framers were introspective enough to see that these pervasive human shortcomings would be found in the public officials about to run our new government. The Framers, therefore, took systematic action to alleviate the impact of power-seeking, mistake-making, all-knowing officials who would fill the three branches.

More than two hundred years ago, our Founders created and signed the Constitution of the United States. This codified, written constitution established that ours would be a nation governed by the rule of law. The concepts embodied in the phrase “rule of law” are both simple and complex. Its simplicity derives from the fact that the underlying notion is clear: all persons, regardless of race, ethnicity, gender, religion, sexual orientation, economic or social status, or other group or individual characteristic, are equal in the eyes of the law. The concept, however, also requires that a complex web of laws and governmental actions come together to assure the protection of the rule of law for all.

IAALS made a clarion call for improvements to our courts some ten years ago, and since then has been instrumental in promoting rules changes, including the amended Federal Rules of Civil Procedure, effective December of last year. Those new rules have set sail with a rousing endorsement from Chief Justice John Roberts who, in his year-end report, described the amendments as “a major stride toward a better federal court system.” He also noted that the new Rules can only achieve the goal of a “just, speedy and inexpensive determination of every action and proceeding” (the promise of Rule 1) if “the entire legal community, including the bench, bar and legal academy, step up to the challenge of making real change.” IAALS continues to pursue that change, promoting the rules through educational programs, pilot projects, and a new culture necessary to make the changes successful.

"Courage is rightly esteemed the first of human qualities, because, as has been said, 'it is the quality which guarantees all others.'" —Winston Churchill. I agree with Churchill—who knew a thing or two about courage—that it is the quality that permits us to exercise whatever other virtues we possess. This is true for everyone, but especially for judges. No one can be a great judge, or even a good one, without the courage to do what what the law demands, even in the face of tremendous pressure to do otherwise.

At IAALS’ Fourth Civil Justice Reform Summit, we brought together stakeholders to brainstorm a vision for the courts of tomorrow and steps to get there. Today we release the report from that summit, Creating the Just, Speedy, and Inexpensive Courts of Tomorrow: Ideas for Impact from IAALS’ Fourth Civil Justice Reform Summit.