The Nation's Pulse
Rusthoven, Peter J.
THE NATION'S PULSE by PeterJ. Rusttboven A Plague of Litigation Criticism of the courts, while hardly standard or daily fare, is far from uncommon in our avenues of public discourse. The...
...Over that same period exports have increased in value from a paltry $1.3 million to an impressive $4.7 billion...
...But the parallels should not be drawn too closely...
...As an example, consider the Federal securities laws, a somewhat esoteric topic to which I devoted some attention while on the_ staff of a legal journal...
...defense outposts, American bases can be found right in the heart of the nation's capital, Seoul...
...By contrast, the only colonialism the South Koreans have suffered has been Japanese...
...Almost every lawyer has tales to tell of the nonsense that finds its way into the courthouse as these agencies attempt the slow completion of their appointed rounds...
...Many of these suits, of course, are of dubious merit, a development not confined to the securities field...
...Over a quarter of a century after the bloody Korean War, the United States still maintains a garrison there of over 40,000 battle-ready troops...
...The antitrust laws have today become a kind of second chance at financial recover, for failed entrepreneurs and assorted other disappointed competitors--who discover that through~the magic of the Sherman Act and the courtroom, their business woes can frequently be laid to the door of some rival whose major sins are often mere size and success...
...An emphasis on heavy industries, such as technologically advanced steel mills, shipyards, and petrochemical plants, combined with numerous light industries, such as electronic components and textiles, has enabled South Korea to raise its annual per capita income from $81 in 1962 to over $500 in 1975...
...and a mutual defense pact, which binds the United States to assist South Korea in fighting external aggression, remains in full effect...
...Indeed, court congestion has even received official recognition and certification as a "problem" by assorted worthies on Capitol Hill, although their contributions to a possible solution show little promise to date...
...The various measures designed to turn students fresh from law school into "poor people's" lawyers on the government payroll are the most obvious example, but many others abound...
...Reacting strongly to apparent excesses of the Park Chung Hee government during several crackdowns against dissidents, a number of American journalists and professors have called for a complete pullout from South Korea, while in Congress it has been suggested that the United States should reduce its aid or its number of troops...
...strategic defense perimeter...
...North Vietnamese pretensions of "liberating" the South therefore contained at least a modicum of credibility for many Vietnamese, as General Ky recently noted...
...These suggestions are invariably accompanied by analogies between Korea and Vietnam, as when columnist Clayton Fritchey asked whether the public wants to "risk another 500,000 casualties and another $150 billion in trying to salvage still another military government...
...The National Labor Relations Act, in the name of fostering fair and free collective bargaining, has become a vehicle for turning any number of ordinary firings or simple refusals to hire into eventual subjects of judicial review...
...Fourth, in attempting to defend South Vietnam, the United States received only pro forma support--if that--from its allies (one notable exception being South Korea...
...What I have in mind here has been best expressed by William J. Bennett, Assistant Director of the National Humanities Peter J. Rusthoven is an Indianapolis attorney...
...much of the responsibility must be borne by the overburdened courts themselves...
...There are more of them today than ever before...
...Under constant fire from revolutionary terrorist tactics, the people of South Vietnam were never able to achieve a cohesive national identity...
...But I would greatly prefer to be less sure that there will always be work for lawyers, and to be more confident that Congress, the courts, and my fellow citizens recognize that law provides feeble answers at best to our deepest concerns...
...The recent discovery of what appears to be commercially exploitable oil may significantly lessen South Korea's dependence on imported oil...
...The recent murder of two American servicemen in the Korean Demilitarized Zone has focused public attention on the American presence in South Korea...
...Second, as a nation emerging from a semi-feudal past, South Vietnam contained a wide variety of unassimilated racial, cultural, and religious groups...
...The Alternative: An American Spectator December 1976 17 Center, in a soon-to-be-published article on "The Constitution and the Moral Order" for the Hastings Constitutional Law Quarterly...
...South Korea experienced the brutalities of Communist rule first-hand during the Korean War, so not even the harshest critics of the Park government accept the North Korean claim of being "liberators" of the South...
...South Koreans have a clear sense of national unity, which has been reinforced by the experience of the North Korean invasion, and by the continuing threat of a new one...
...In fact, the one "liberation" that South Koreans remember is the American ouster of the Japanese in 1945...
...What is most unfortunate about this is not simply that our courts are overcrowded, nor that this overcrowding makes justice more difficult to obtain for those who in fact deserve it...
...it is interesting to note that, unlike many other U.S...
...Tunney's banalities should not be simply ignored, however, for they reflect an attitude which is in large part responsible for the exceedingly slow turning of the wheels of justice...
...Certainly courts and judges themselves, from the Supreme Court and Chief Justice Burger on down, have noted the problem of ever increasing caseloads and pondered how the judiciary should respond...
...Reflecting a threedecade-old bipartisan consensus, both the Nixon and Ford foreign policies have included South Korea within the U.S...
...Practicing attorneys have become acutely aware of overcrowding in the courts through almost daily experience with the protracted nature of modern litigation, and both the American Bar Association and its state counterparts have devoted no little attention to various studies and proposals on how to alleviate the crunch...
...The third difference is that South Vietnam was unable even to achieve its modest economic goal of developing light industry-largely because of the Communists' destructive tactics...
...As a consequence, the number of suits based on the rule have multiplied beyond belief, to the' point that there is scarcely a stock transaction of any magnitude these days which does not yield its quotient of litigation...
...However, there has been a gradual but noticeable erosion of support for the U.S...
...Most people know about busing, and many are roughly familiar with the increasing application of Constitutional "due process" to a wide variety of activities...
...Nor is it even that much of this overcrowding results from specious suits, suits sanctioned by laws utopian in concept and foolish and disruptive in practice...
...Bennett eloquently points out that the litigious tendencies of modern America, and our increasing reliance on law and court to do the work of leading us to a better world, represent an abrupt departure from the vision our Founding Fathers had for the Republic...
...And these are but a few: the Environmental Protection Agency, the Occupational Safety & Health Administration, the Federal Communications Commission, the Federal Power Commission, and many others are also actors in the :ontinuing drama of Congressional efforts to reform America through law and the courts...
...Yet just as the French military was paralyzed in 1940 by its obsession with defending the Maginot Line, so the critics of our Korean commitments make a dangerous mistake by being so obsessed with our failures in Vietnam...
...The rights of criminals, busing, the partial resurrection of the death penalty--court rulings on all these subjects have generated anguished commentary, and sometimes from liberals as well as conservatives...
...Bennett recommends a return to the values expressed in such documents as Tbe Federalist, and his words are well taken in this era when nearly every social ill, real or imagined, seems to find its way to the courthouse door...
...In Vietnam, first of all, the Communists were able to capitalize on a residue of anti-Western feeling engendered by French colonial rule...
...But Congress and its administrative creations are not alone...
...The Founders, he notes, were firm in their belief that the strength of this nation would rest not on its governmental institutions-including its legal institutions--but on the moral virtue of the citizenry...
...The judiciary first determined that the rule implicitly created a right to sue for damages--far surpassing the traditional law of fraud--on the part of anyone who felt he had been injured by its violation, although neither Congress nor the SEC had had this in mind either in passing the basic legislation or in promulgating the role itself...
...In lawyer's parlance, these are "nuisance" or "strike suits"-harassment cases brought largely for their settlement value...
...Bruce Weinrod Is Korea the Next Vietnam...
...There are rumblings of conflict along Korea's demilitarized zone, and Americans are talking about "another Vietnam...
...Second, the official case reports have become sprinkled throughout with statements of varying eloquence and piety about how securities legislation and Rule I0b-5 in particular are to be interpreted "broadly" and "liberally," the better to effect their "remedial purpose...
...Typical in this regard are the remarks of the Honorable John V. Tunney, boy Senator from California, who has opined that the judiciary, rather than protest its workload, should devote itself to making the courts more accessible to "minorities" and the "disadvantaged...
...The Equal Employment Opportunity Commission embroils the Courts in a multitude of other employment controversies, with the focus on alleged racial or sexual discrimination...
...Serious as these problems are, I believe they are at bottom but the discomfitting side effects of another and more disturbing development...
...Of course, this is not an original observation...
...For there are a number of important respects in which South Korea differs critically from South Vietnam...
...With its political stability and absence of terrorism, South Korea has not only developed its infrastructure, but has burst into the ranks of the world's semi-industrialized nations...
...Too little attention, however, has been given to one of the gravest of our legal problems--the fact that our courts are currently swamped with litigants to a degree unparalleled in our history...
...Relatively few nonlawyers, however, are aware that these represent but a portion of the judiciary's expanded view of the scope of its proper concern...
...Among the myriad of provisions and regulations in this field is the Securities & Exchange Commission's "Rule 10b-5," which purports to proscribe virtually all possible fraud in connection with securities transactions...
...Of course, there is a steady source of employment for attorneys in today's litigious trends, and I suppose that in protesting it I am somehow biting the hand that happens to feed me...
...By contrast, the W. Bruce Weinrod has recently visited Sout/, Korea, 18 The Alternative: An American Spectator December 1976...
...they are vividly aware that Europeans and Americans are not the only people with a drive tO dominate...
...Our current trust in law to perform the tasks of moral and spiritual development and responsibility-tasks once assigned to family and church and, yes, to individuals themselves --thus reflects, to use the words of the late and highly respected Judge Learned Hand, "a sign of a community unsure of itself and seeking protection against its own misgivings...
...Quite simply, one of the major reasons our courts are nigh unto bursting is that Congress has passed countless pieces of legislation designed to pack the courthouse with lawyers and litigants...
...Korean policy...
...IV...
...what has happened to this rule in the courts is a tour de force in expansive judicial construction...
...In contrast, South Korea contains a racially homogeneous, culturally unified people, with a high level of education...
...Whatever one may have thought of our Vietnam policy (and I happened to think South Vietnam worthy of our support), such questions are surely in order...
Vol. 10 • December 1976 • No. 3
