The American Justice System is Broken — Can we Fix It?

The American Justice system is broken and if we don’t fix it soon it will continue to destroy the lives of people caught in its maw.  Every lawyer and every judge in America should read Mark Steyn’s offering today: The Process is the Punishment. Not many will and not many of those who do will take any of it seriously.

Here is a part:

To reprise my old line: The process is the punishment. That’s particularly true at the federal level, where as a matter of policy they first wipe you out – drain your savings, empty your retirement account, nuke the kids’ college fund …and then dangle a deal in front of you in exchange for you pleading guilty “only” to a process crime, like lying to the lyin’ liars who run the FBI. It is an awesome thing to behold – particularly by comparison with, say, military justice, where the US has been holding 9/11 mastermind Khalid Sheikh Mohammed for almost four times as long as the First World War and still can’t manage to bring him to trial.

In a sane system, he’d have been convicted and hanged in a fortnight. Instead, his lawyers are now arguing he’s been brain damaged by the United States. Who knows? But, given that the US has been nursemaiding him for over fifteen years, it’s not unreasonable to argue that, whatever medical ailments afflict him, they developed during Uncle Sam’s leisurely custody of him.

Thus American justice in the 21st century: It can ruin a no-name Trump campaign volunteer in nothing flat. But it can’t try a guy who murdered three thousand innocents in New York, Washington and Pennsylvania, another two hundred in the Bali nightclub bombing, plus Daniel Pearl in Pakistan …and has confessed to all this and more.

It’s all a joke: civilian, military; federal, state; criminal, civil; family, probate. As my old boss Conrad Black likes to point out, the United States has as many lawyers as the rest of the world combined. One entirely inevitable consequence of that malign distortion in the labor market is that far more aspects of life are litigated, and, when they are, the natural tendency of the system is for everything to take far longer than it would anywhere else. So what counts is not plaintiff or defendant, but which party is in the position to inflict the most pain on the other – whether that’s a lavishly endowed government or a billionaire scumbag reduced to suing his own company to avoid paying a court judgment. Whatever it takes for as long as it takes.

And yet despite this being the most litigious society on earth huge numbers of Americans remain oblivious to the vast amount of human wreckage piled up: Every day on cable news, I hear some Democrat telling the host that, if these former minor Trump aides have nothing to hide, then they have nothing to fear from investigation-without-end: We need to let the law do its job, and let the process play itself out.

There was a time in America where the justice system did not allow anyone to viciously use the legal process to punishment or inflict financial ruin on defendants without plaintiffs first establishing prima facia they have a genuine dispute that deserves to be heard. Instead, the court system today offers all sorts of procedures and schemes to delay a case for years all the while costing defendants a hellacious amount of money in legal fees, not to mention the disruption of their lives. Looking only at the American legal system one would conclude that America has become a mean culture of destruction and ruin, often for political gain.

Judges used to exercise what was called “judicial restraint.” By that doctrine only cases and controversies capable of being resolved by traditional principles of law would be heard in a law court. The judges did not always allow their courtroom to enter the thicket of politics. Now they routinely enter rulings that involve political issues. This usually requires them either to ignore established principles of law or to engage in dubious interpretations of the law in order to reach a desired conclusion. That’s why the rule against courts deciding political issues exists in the first place.

If courts still functioned properly something like Michael Mann’s law suit against Mark Steyn would be decided solely on whether Steyn’s claim that Mann’s so-called “hockey stick graph” was inaccurate and likely the result of Mann’s manipulating his data, was in fact defamatory. The simple fact that Mann’s graph has been wildly criticized as inaccurate and that many sources exist that tend to show his data is wrong and very likely the result of intentional manipulation should be solid proof that Steyn’s 70-word blog post on the matter was simply an addition to ongoing and widespread commentary on Mann’s work.

It could not be defamatory because a substantial body of work has already made a case that Mann’s hockey stick is deeply flawed and perhaps intentionally so. If it is to be held defamatory it should not take 10 years to figure that out. Anyone should be allowed to voice an opinion on a matter of public interest without having to defend a defamation suit for years. This is truly a case where Mann wins by losing because he is able to disrupt Steyn’s life for years and cost Steyn a fortune as well.

It is disgraceful for a court of law to allow itself to be used to punish one’s enemies with delay and expense.

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