The Price of Perfect Justice

...It is an unpleasant tradeoff...

...Yet to treat this nonsense as beneath discussion is only to allow it to continue to flourish...

...And, second, when they rewrite laws this way, the courts act as legislatures, a role that they are poorly equipped to perform...

...instead, the courts' information usually comes from two partisans—each armed with an axe to grind—who appear before the Great American Series The great service of Mr...

...But without suitable incentives, LDC's will in the long run be unable to stimulate the local production of which they are capable...

...Justice Fleming persuasively argues that the attempt to achieve perfect legal procedure has seriously impaired the capacity of the legal system to achieve the basic goals for which it was created: namely, "to settle disputes promptly and peacefully, to restrain the strong, to protect the weak, and to conform the conduct of all to settled rules of law...

...Those readers accustomed to viewing critics of judicial activism primarily as yahoos whose malignant and narrow pursuits have been thwarted by the courts will be confounded by this book...

...34 The Alternative: An American Spectator October 197...

...court making frequently outrageous and exaggerated claims on behalf of their causes...

...The paramount theory that Fleming addresses is the idea of perfectibility" the concept that with the expenditure of sufficient time, patience, energy, and money it is possible eventually to achieve perfect justice in all legal process...

...By pinpointing the quest for unattainable perfection as the motivating spirit of modern judicial activity, Fleming links contemporary legal theory to the dominant utopian strain of modern thought, for which prudence and moderation are outmoded concepts, and the best idea is the most recent...

...In the meantime, let us pray for rain...

...By pursuing the will-o'-the-wisp of perfection, Fleming contends, the courts have neglected the key elements demanded of effective procedure: "the resolution of controversies within a reasonable time, at a reasonable cost, with reasonable uniformity...

...With reserve stocks low and acreage limited in the major grain-exporting nations, and with informed opinion overly optimistic about food supplies, the world was wholly unprepared when, in 1972, because of some unfortunate weather coincidences, world food production declined by 3 %—the first decline in twenty years—while demand kept rising...

...For Justice Fleming is a stern legal scholar and craftsman dismayed by other judges' substitution of slogans for reasoning and personal predilection for the dictates of text and precedent...

...And as the courts, in striving to achieve perfect justice, have been ready to apply increasingly rigorous standards of legal procedure, this strategy has become a powerful weapon to shape policy and effect change in society: construction of new power plants can be indefinitely delayed, issuance of licenses The Price of Perfect Justice by Macklin Fleming Basic Books $10.95 postponed, construction of highways halted, and military service avoided...

...Why these doom-and-gloom predictions have persisted or recurred is another good question...

...He did not regard himself as a national entertainer...

...that legislatures are better equipped, better informed, possess greater sensitivity, and exercise a broader vision in making new law than do the courts...

...Disaster and doom have been thriving industries for centuries, with religious, political, and environmental subsidiaries—and this long before Hollywood began making movies that allow them to share in the profits of doom...

...When the value of that kind of wisdom is recognized, Warren G. Harding will have the credit which is his due...

...Often, a court is shown only a small part of a general problem and solemnly assured that the part comprises the whole...

...Predictions are always risky, especially with food supply, but I predict that with occasional setbacks, some luck, and a lot of hard work, people all over the world will continue to eat more and better...

...Fleming documents numerous instances of the pursuit of perfect procedure by the courts: five months spent in the selection of a jury, the same murder charge tried five different times, prosecutions pending a decade or more, and the same issue of search and seizure being reviewed over and over again, as many as 26 times...

...There are points on which a reviewer could disagree with Professor Johnson—his use of "society" where this anthropo morphic metaphor confuses crucial as pects of the actual decision-making proc ess, his willingness to see the govern ment tinkering in some areas where th( prospects seem dim ("incomes policies,' for example), and his refusal to conside the longer-ruh effects of certain short-rui "humanitarian" policies...

...He was not a noisy President...

...And fearing overproduction, governments and farmers in the United States, Canada, and Australia—which together account for 90% of world grain exports—took steps to restrict grain acreage, lest "excess stocks" accumulate...

...According to Fleming, the quest for perfect justice and legal procedure has dominated legal thought for the past twenty years, and has spawned an ever increasing scope and pace of judicial action: courts are no longer concerned simply with the adjudication of private controversies and the interpretation of traditional legal rights, but also with the resolution of almost all public issues which can be brought to life as legal causes because of alleged shortcomings in legal procedure...

...Lester Brown, who these past few years has been one of our leading pessimists, was at that time a great herald of the Green Revolution...

...Professor Johnson brings out the point that many environmental complaints are made "from an extremely egocentric view of society"—objections to others having life-styles different from one'sown (they want more bowling alleys while we want more trees) or laments for the loss of differential gains, such as wooded seclusion in national forests to which others had little access before the rise of more general affluence...

...There is nothing new or astounding about either of Fleming's contentions...

...There are usually good short-run arguments against letting farmers raise their prices in LDC's: namely, thousands of the poorest citizens would no longer be able to afford a bare subsistence...

...In short, Fleming concludes that "Judicial legislation is all wrong because it is ineffectual...

...Probably not...

...But these aro surface blemishes on a basically ver: good and valuable book...

...Although Justice Fleming offers the reader a great deal of keen, and often witty, criticism of the errancies of contemporary judicial action, he suggests little to improve the situation...

...He refused to break the spell of public thoughtfulness by calling a special session of Congress...

...The trick the en...

...World resources are not so limited that the rich must kick the poor out of the lifeboat...

...Lacking access to accurate and unbiased information, provided with a limited staff and almost no money, the courts frequently pronounce general laws based upon narrow and distorted perceptions of the issues...

...The ironic thing about the recent shortages is that they took everyone by surprise and that they confounded the expert wisdom...

...Recognizing the oligarchic and trendsetting nature of the Supreme Court's role, Fleming's recommendations are almost entirely limited to the suggestion that tenure for members of that body be limited to 16 years...

...Fleming is skeptical, for two reasons...

...The quest for perfect procedure has had its greatest impact on criminal law, where the modern doctrine has almost completely displaced the concept of effective procedure...

...Although Justice Fleming's suggestions would have had the meritorious consequence of removing justices such as McReynolds and Douglas, would also have sacrificed the services of justices such as John Marshall and Frankfurter...

...and it is this impact which is Justice Fleming's major concern...

...Apparently Fleming believes that the bad justices so outnumber the good, that he is willing to make such sacrifices...

...Book Review/Terry O'Rourke Overloading the Scales of Justice • • Justice Macklin Fleming of the California Court of Appeal has written perhaps the most perceptive and acute criticism of judicial activism yet to appear in print...

...In addition, every legal or factual argument of any possible relevance must be considered in depth, exhaustively and repetitively, in order to eliminate the possibility of error from theproceeding...

...There may be something in the human psyche that creates a demand for disaster—or at least for predictions of disaster...

...Therefore, a fifteen years' supply of petroleum does not mean that we are going to have no more petroleum in sixteen years: There was only a fifteen years' supply of petroleum thirty years ago, and there will probably be only a fifteen years' supply of petroleum a hundred years from now...

...For resources with high discovery costs, such as petroleum, the number of years' supply known to exist is a function of the number of years' supply it pays to explore for, given the price of the product, the cost of the exploration, and the rate of return on a similar investment somewhere else in the economy...

...Is there a long-term food crisis...

...Judges often enact their own personal predilections into law, under the guise of applying the requirements of due process or equal protection to a particular case...

...The concept, Fleming argues, has given judges a theoretical mandate to boldly rewrite laws of every description—from criminal procedure to rights of inheritance, to regulation of personal conduct, to parole revocation, to abortion...

...Harding was to give the nation a quiet period of thought...

...Under standards of perfect legal procedure, the parties must be free to present their contentions to the fullest extent to a jury "which must have never heard of the cause, the parties, the witnesses, and the issues, and must be wholly free from opinions or preconceptions about any proposition of law or fact likely to arise in the trial...

...According to Fleming, the major reason for the poor quality of most judicial solutions to legislativeproblems is that the "courts are extraordinarily inept instruments for political brokerage...

...Experience has shown...

...In short, under 'the reigning standards of perfect procedure the guilt or innocence of the accused has become almost irrelevant because the emphasis in criminal proceedings has shifted to the determination of the correctness of the procedure used in the prosecution...

...Henry Ford in the Dearborn Independent, August 18, 1923, on the occasion of the death of Warren Harding...

...Nonetheless, in an age when the courts are creating, determining, and applying policy, choosing among alternative theories of equality, and weighing benefits for and burdens upon particular groups, Justice Fleming's analysis of the shortcomings of judicial legislation deserves serious consideration...

...Long-term problems persist, as always, and prices are still climbing, though Johnson predicts that after a few years real grain prices will return to their long-term pattern of decline...

...It is certainly true—and important—to say, as Johnson does, that history has shown a "consistent falsification of the prophecies of successive schools of doom predictors," but perhaps also we need to know why they have been so wrong so often...

...In this he showed one of the qualities of a great executive—When there was nothing to do, he did nothing...

...He did not feel called to do great acts but to prevent small wrong acts from being accomplished...

...Courts have limited access to information and pressures essential to the solution of general problems...

...Acre-age is now replanted, stocks are slowly being replenished, and according to Science and Johnson, the difficulties of the last few years are not a prelude to coming disaster, but a temporary aberration caused by some accidents in the weather and by a lack of foresight...

...in 1968 he hailed our "new agricultural era...

...Perhaps Fleming should not be faulted for this omission, for if his analysis of the roots of judicial activism is correct, there is scant hope for improvement...

...Firmly convinced that absolute power is corrupting, Fleming argues that a limited tenure will to some degree limit the proclivities of justices to decide cases on the basis of personal predilection...

...He did not divert the public mind from its own thoughts to his thoughts...

...vironmentalists use is to attack, not the other groups who want to live differently but the intermediaries who represent those other groups' demands—i.e., "de velopers," "commercial interests," anc others who lack the aura of sanctity sur rounding the Sierra Club...

...Perfect procedure is unable to convict the guilty promptly or to acquit the innocent in a manner that retains public confidence in The Alternative: An American Spectator October 1975 33 its accuracy, and Fleming concludes that "the deterrent effect of swift and certain punishment is lost, the feeling of just retribution disappears, and belief in the efficacy of the system of justice declines...

...HARRY J OHNSON) (continued from page 27) have been completely misleading to talk about the impending exhaustion of all "viable" sources of coal just because the surface coal could last only a few years...

...And it is in this sense that America's enormous generosity in food aid ($25 billion since World War II) has been counterproductive, for recipient governments have had no incentive to develop local incentives for agriculture...

...He had a horror of what he called "undeveloped idealism," by which he meant fine words that were never realized in fine actions...

...America can be very helpful, not by curtailing her own consumption but by continuing generous technical assistance—improving grains and grain markets in the developing countries...

...Justice Fleming believes that the idea of judicial perfectibility has carried with it the related concept that "judges are the chosen instruments for the achievement of perfectibility by means of the constitutional doctrines of due process and equal protection...

...In its 1969 report on the State of Food and Agriculture, the FAO declared that the food problems of the future would be how to dispose of surpluses rather than how to alleviate shortages...

...As a result, partisans of particular causes, unable to convince a majority of voters or legislators of the verity of their positions, routinely seek to invoke the power of the courts by accusations of imperfect procedure, thereby hoping to direct the course of subsequentevents by imposing impossible procedural demands...

...Since the heyday of ecoonomic due process, many students of the courts have similarly warned of judicial usurpation of the legislative role, even though informed opinion is frequently willing today to overlook the manner of a judicial determination and the indignities inflicted upon the separation of powers, when it approves of the outcome...

...And if the trail does not meet all of these requirements, then the cause must be tried again...

...Johnson does not go into this in the detail he might, probably because—as in the case of income distribution—the shrill voices are saying such utter nonsense...

...For by the late sixties, as the introduction of high-yield wheat achieved spectacular successes in the Punjab, thepessimism of the middle sixties had given way to an unbridled optimism about food...

...Incidentally, American food giveaways were as much a function of our domestic farm price support system as of our humanitarian and tactical policies...

...the target is no longer the accused's own conduct, but the legal machinery used against him...