Learn a bit about our next Supreme Court Judge - Tenth Circuit Judge Neil Gorsuch -
Learn a bit about our next Supreme Court Justice - Tenth Circuit Judge Neil Gorsuch -
President Donald Trump nominates Tenth Circuit Judge Neil Gorsuch to the Supreme Court of The United States of America
On September 11, 2001, at the age of 45 and at the height of her professional and personal life, Barbara K. Olson was murdered in the terrorist attacks against the United States as a passenger on the hijacked American Airlines flight that was flown into the Pentagon.
The Federalist Society established this annual lecture in Barbara's memory because of her enormous contributions as an active member, supporter, and volunteer leader. Solicitor General Theodore B. Olson delivered the first lecture in November 2001. The lecture series continued in following years with other notable individuals.
In 2013, the Honorable Neil M. Gorsuch of the United States Court of Appeals for the Tenth Circuit delivered the lecture. He was introduced by Mr. Eugene B. Meyer, President of the Federalist Society.
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I want to welcome you all
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13th annual Barbara
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memorial lecture I am eugene meyer
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President of the Federal society and
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this memorial lecture series started as
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many of you know with Ted Olson
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inaugural lecture which reminded us of
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what it means to be an American and how
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are legal tradition is part of our
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identity as Americans both dead and
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Barbara understood this disconnection
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between our tradition our identity we
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want the lecture series to remind
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lawyers of it so that they foster legal
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principles that advanced individual
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freedom personal responsibility and the
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rule of law tends inaugural lecture was
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followed by ken starr Robert Bork
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Justice Scalia judge Randolph Vice
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President Cheney and chief justice
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roberts and judges he gets Jones Douglas
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Ginsburg and Dennis Jacob's former
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attorney General Michael Mukasey and
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entrepreneur Peter teal that brings us
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to today's lecture is my honor to
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introduce for today's lecture the
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Honorable Neil gorgeous is a judge for
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the US Court of Appeals on the tenth
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circuit where he served since 1986
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before his clerkship a force judgeship
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rather he clerked
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all the way clerkship applications or
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and things are going these days you have
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no idea what the order is gonna fit
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I actually think they're going to send
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out the clerkship applications or with
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with the emits with the additions to law
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school the way way it's going but anyone
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on before his clerkship he clerked for
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justices wieden kennedy and on the court
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of appeals for judges and tell he was a
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partner Kelly cuber and principal deputy
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associate attorney general in addition
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to his judge ship is also currently an
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adjunct law professor at the University
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of Colorado where he he taught what he
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taught yesterday accident yesterday
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evening and I'd say beyond his paper
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resume judge course which is widely
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viewed as one of the best legal minds of
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his generation
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additionally even as young age he has
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met heard many of his clerks who have
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gone on too many prestigious legal jobs
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including clerkship for the US supreme
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court without further ado it is my honor
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to introduce to you judge neil questions
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actually Jean with the judicial salaries
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being what they are and clerkship
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bonuses what they become I've been more
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than tempted to throw in another
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application justice candidate see where
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it goes
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I'm not sure I want to be a law partner
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again but I wouldn't mind being putting
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those little room and told right briefs
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all day for the price that they're
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getting paid
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Eric thank you for that very kind
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introduction
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it's an honor to be with you in a
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special pleasure to be part of a lecture
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series dedicated to the memory Barbara
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Olson and the causes that she held dear
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the rule of law limited government and
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human liberty and it's not a little dot
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little bit daunting to be added the list
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of folks you've mentioned who given this
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talk before
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let me begin by asking whether any of
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you have ever suffered through a case
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that sounds like this one in the course
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of time this suit has become so
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complicated that no man alive knows what
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it means a long procession of judges has
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come in and going out the Legion of
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bills and the suit had become
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transformed into mere Bills of mortality
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but still it drags its very length
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before the court parentally hopeless
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how familiar to set
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could it be a line lifted maybe from a
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speaker at a recent electronic discovery
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conference from a brief for sanctions
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your latest case maybe from a recent
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judicial performance complaint
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well of course the line comes from
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Dickens Bleak House published 1853 it
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still resonates today though because the
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laws promise of deliberation and due
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process sometimes ironically invites the
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in justices of delay and ear resolution
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like any human Enterprise the laws
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crooked timber occasionally produces the
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opposite of the intended effect we turn
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to the law earnestly to promote a worthy
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idea and wind up with a host of
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unwelcome side effects that do more harm
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than good
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in fact when you think about it the
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whole business is something an irony we
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depend upon the rule of law to guarantee
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freedom but we have to give up freedom
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to live under the laws rules and around
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about way that leads me to the topic I'd
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like to discuss with you tonight laws
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irony Dickens had a keen eye for it but
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even he was only reworking familiar
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themes Hamlet rude the laws delay girder
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left the practice of law and discussed
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after witnessing thousands of aging
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cases waiting vainly for resolution in
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the courts of his time
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demosthenes made similar complaints
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2,000 years ago and truth is I fully
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expect lawyers and judges to carry on
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similar conversations about the laws
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ironies 2,000 years from now but just
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because some unwelcome ironies maybe as
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endemic to law as they are to life
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Dickens would remind us that's hardly
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reason to let them go unremarked and
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then addressed so it is I'd like to
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begin by discussing a few of the laws
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ironies that I imagine he would consider
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worthy of attention by us in our own
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time consider first hour version of the
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Bleak House irony
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yes i'm referring to civil discovery
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the adoption of the modern rules of
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civil procedure in 1938 marked the start
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of a self-proclaimed experiment with
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expansive pretrial discovery something
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previously unknown to the federal courts
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more than 70 years later we still call
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those rules the new and the modern rules
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of civil procedure that's a pretty odd
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thing when you think about it maybe the
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only thing that really sounds newer
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modern after 70 years is keith richards
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of The Rolling Stones some might say
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looks like he's done some experimenting
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to in any event or 1938 forefathers
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expressly rested their modern discovery
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experiment on the assumption that with
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ready access to an opponent's
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information parties to civil disputes
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would achieve fair and cheaper merits
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based resolutions
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how's that working out for you
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does modern discovery practice really
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lead to faster and more efficient
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resolutions based on the merits
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I don't doubt it does in many cases but
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should we be concerned when eighty
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percent of the american college of trial
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lawyers say the discovery costs and
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delays keep injured parties from
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bringing valid claims to court or
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concern when 70-percent also say
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attorneys use discovery cost is a threat
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to force settlements that aren't merits
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based at all
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have we may be gone so far down the road
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of civil discovery that ironically
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enough we begun to undermine the
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purposes that animated our journey the
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first place
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what we have today to be sure is not
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your father's discovery producing
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discovery anymore doesn't mean rolling a
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stack of bankers boxes across the street
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we live in an age when every bit and
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byte of information is stored seemingly
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forever and is always retrievable if
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sometimes only at the cost of a small
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fortune today the world sends 50
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trillion emails a year an average
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employees sends or receives over a
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hundred everyday that doesn't begin to
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count the billions of instant messages
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shooting around the globe
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this isn't a world the writers of the
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discovery rules could have imagined in
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1938 no matter how modern they were no
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surprise then that many people now
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simply opt out of the civil justice
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system altogether private ATR bounds but
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even now the federal government has
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begun avoiding its own court system
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recently for example it opted for
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private ADR to handle claims arising
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from the BP oil spill
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now that may be an understandable
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development given the costs and delays
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inherent in modern civil practice but it
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raises questions to about the
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transparency and independence of the
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decision-making the lack of the
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development of precedent in the future
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role of our courts and civic life for
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society aspiring to live under the rule
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of law does this represent an advanced
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perhaps something else we might even ask
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what part the rise of discoveries played
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in the demise of the trial surely other
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factors are play here given the
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disappearance criminal trials as well
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but we've now trained generations of
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attorneys as discovery artists rather
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than trial lawyers they're skilled in
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the game of imposing invading costs and
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delays their poets of the nasty gram
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able to write interrogatories in iambic
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pentameter get terrified of trial the
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founders thought trials were a bulwark
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of the rule of law as far as Hamilton
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saw the only room for debate was over
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when / weathered retrials were in his
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words either a valuable safeguard the
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liberty with a very palladium
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self-government what is that still
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common ground today no doubt our modern
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discovery experiment is well-intentioned
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get one of its effects has been to
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contribute to the death of an
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institution once thought essential to
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the rule of law
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what about our criminal justice system
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you might ask it surely bears its share
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of ironies to consider this one without
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question the discipline of writing the
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law down of Cardiff eyeing it advances
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the laws interest in fair notice but
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today we have about 5,000 federal
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criminal statutes on the books
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most of them added in the last few
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decades and the spigot keeps pourin with
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literally hundreds of new statutory
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crimes think every single year
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neither does that begin to count the
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thousands of additional regulatory
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crimes buried in the federal register
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there are so many crimes cowled in the
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numbing fine print of those pages the
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scholars have given up counting and are
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now debating their number when he led
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the Senate Judiciary Committee Joe Biden
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worried that we have assumed a tendency
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to federalize quote everything that
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walks talks and moves maybe we should
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say hoots too because it's now a federal
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crime to misuse the likeness of woodsy
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the owl or is more words give a hoot
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don't pollute businessmen who import
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lobster tails and plastic bags rather
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than cardboard boxes can be brought up
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on charges mattress sellers remove that
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little tag
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yes they're probably federal criminals
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to whether because of Public Choice
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problems or otherwise there appears to
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be a ratchet relentlessly clicking away
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always in the direction of more never
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fewer federal criminal walls some reply
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that the growing number of federal
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crimes isn't out of proportion to our
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population and its growth others suggest
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that the proliferation of federal
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criminal laws can be mitigated by
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allowing the mistake of law defense to
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be more widely asserted but isn't there
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a trouble irony lurking here in any
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event without written laws we lack fair
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notice of the rules we as citizens have
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to obey but with too many written laws
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don't we invite a new kind of fair
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notice problem and what happens to
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individual freedom and equality when the
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criminal law comes to cover so many
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facets of daily life
12:30
the prosecutors can almost choose their
12:32
targets with impunity the sort of
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excesses of executive authority invited
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by too few written laws led to the
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rebellion against King John and the
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ceiling of the Magna Carta one of the
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great advances in the rule of law and
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history bears warning the too many the
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too much and too much an accessible law
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can lead to executive access as well
12:55
Caligula sought to protect his authority
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by publishing the law a hand so small
13:01
and posted so high that no one could
13:04
really be sure what was and wasn't
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forbidden no doubt
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all the better to keep us on our toes
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sorry in federal 62 more seriously
13:19
Madison warned that when laws become
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just a paper blizzard citizens are left
13:22
unable to know what the law isn't to
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conform their conduct to it it's an
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irony of the law that either too much or
13:28
too little can impair Liberty our aim
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here has to be for a golden mean and it
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may be worth asking today if we've
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strayed too far from it
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ok beyond the law itself there are other
13:40
ironies of ironies here emanating from
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our law schools target-rich environment
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you say well let's be kind of the
13:50
professors in the room and just take one
13:51
example in our zeal for high academic
13:54
standards we have developed a dreary
13:57
bill of particulars every law school
13:59
must satisfy the win ABA accreditation
14:02
law schools must employ a full-time
14:04
librarian they're not a part-timer they
14:08
must provide extensive tenure guarantees
14:10
they invite trouble if their student
14:12
faculty ratio reaches 32 one out the
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same ratio found many in public
14:17
procol schools keep in mind too that
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under ABA standards adjunct professors
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with actual practice experience includes
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me here account only as one-fifth of an
14:28
instructor
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maybe they're onto something after all
14:34
might be worth pausing to ask whether
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commands like these contribute enough to
14:41
learning to justify the barriers to
14:44
entry and the limits on access to
14:46
justice that they impose a legal
14:49
education can cause students today two
14:51
hundred thousand dollars that's on top
14:54
of an equally swollen some for an
14:57
undergraduate degree yet another a VA
14:59
accreditation requirement in England
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students can earn a law degree in three
15:05
years is under graduates or in one year
15:08
of study after college
15:09
all of which must be followed by
15:11
on-the-job training and none of this is
15:14
thought to be a threat to the rule of
15:15
law there one might wonder whether the
15:18
sort of expensive an extensive
15:20
homogeneity we demand is essential to
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the rule of law here
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alright so far I've visited ironies
15:28
where the law aims at one virtue and
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risks a corresponding vice but it seems
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to me that the laws most remarkable
15:36
irony today comes from precisely the
15:39
opposite direction of ice that hints at
15:41
virtues in the rule of law today our
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court our culture positively buzzes with
15:48
cynicism about the law are shared
15:51
profession and project so many see law
15:54
is the work of robe hacks and shiny
15:57
suited shills judges who ruled by
16:00
personal policy preference lawyers who
16:03
seek to razzle-dazzle them on this view
16:07
the only rule of law is a will to power
16:09
baby in a dark moment you've fallen prey
16:13
to doubts along these lines yourself but
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i wonder whether the laws greatest irony
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might just be the hope obscured by the
16:22
cynics shadow
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I wonder whether cynicism about the law
16:26
flourishes so freely only because for
16:29
all its blemishes the rule of law in our
16:31
society is so fundamentally successful
16:34
and sometimes it's hard to see a
16:37
wonderful like David Foster Wallace's
16:39
fish surrounded by water
16:43
yet somehow unable to appreciate its
16:46
existence were like Chesterton's
16:48
man-on-the-street who's asked out of the
16:51
blue
16:51
why he prefers civilization to barbarism
16:53
and who has a hard time stammering out a
16:56
reply because the very multiplicity of
16:58
proof which should make reply easy and
17:01
overwhelming makes it impossible now the
17:05
cynicism surrounding our project our
17:07
profession is easy enough to see when
17:09
Supreme Court justices try to defend
17:11
laws a discipline when they explain
17:13
their jobs interpreting legal texts when
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they evoke and echo the traditional
17:19
federalist 78 conception of a good judge
17:22
their mocked often viciously personally
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leading voices call them deceiving
17:29
warned that behind their a nine-page
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facades lurk cruising partisans even law
17:36
professors hurry to the microphone to
17:38
express complete discussed and accuse
17:40
them of perjury and intellectual
17:42
security actual quotes everyone if this
17:47
bleak picture I've sketched were
17:49
inaccurate one if I believe the judges
17:52
and lawyers regularly acted as shoes and
17:54
hacks and hang up the road i turn my
17:57
license but even accounting for my
18:00
native optimism i just don't think
18:02
that's what a life in the law it's about
18:04
heart i doubt you do either as a working
18:08
lawyer I saw time and again the
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creativity intelligence hard work
18:13
applied to a legal problem can make a
18:16
profound difference in a client's life I
18:19
saw judges injuries that while human and
18:21
imperfect strove to hear earnestly and
18:24
decide and partially I never felt my
18:27
arguments to court for political ones
18:29
the ones based on rules of procedure and
18:31
evidence president standard interpretive
18:34
techniques the prosaic but vital stuff
18:37
of a life in the law as a judge now 47
18:41
whatever years I see colleagues everyday
18:46
striving to enforce the Constitution the
18:48
statutes passed by Congress the
18:50
president's to bind us
18:52
the contracts the parties adopted
18:54
sometimes they do so with quiet
18:56
misgivings about the wisdom of the
18:58
regulation addition sometimes was
19:00
concerned about their complicity in a
19:03
doubtful statute but enforcing the law
19:05
all the same believers that ours is
19:08
essentially adjust legal order now
19:11
that's not to suggest that we lawyers
19:13
and judges bear no blame for ages
19:15
cynicism about the law take our self
19:19
adopted Model Rules of Professional
19:20
Conduct they explained that the duty of
19:24
diligence we lawyers or clients and i
19:26
quote does not require the use of
19:29
offensive tactics or preclude treating
19:35
people with courtesy and respect now
19:40
how's that for professional promise to
19:42
the public
19:43
I view is sort of an ethical commandment
19:46
as I tell my students that is a lawyer
19:48
you should do unto others before they
19:49
can do unto you
19:50
no doubt we have to look hard in the
19:56
mirror when our professions reflected
19:58
image and popular culture is no longer
19:59
Atticus Finch but Saul Goodman of course
20:06
we make our share of mistakes to as my
20:08
now teenage daughters gleefully remind
20:10
me
20:11
donning a robe does not make me any
20:13
smarter but the road does mean something
20:16
and not just that I can hide the coffee
20:18
stains on my shirt
20:20
it serves as a reminder of what's
20:22
expected of us what Burke called the
20:24
cold neutrality of an impartial judge it
20:28
serves to is a reminder of the
20:29
relatively modest station as judges are
20:32
meant to occupy a Democratic Society in
20:35
other places judges wear scarlet and
20:37
Irma here we're told to buy our own
20:40
robes and I can attest the standard
20:43
choir outfit at the local uniform supply
20:45
stores a really good deal
20:47
ours is a judiciary of honest black
20:52
polyester in defending laws of coherent
20:57
discipline now I don't mean to suggest
20:59
that every hard legal question as a
21:01
single right answer the Sun platonic for
21:04
absolute truth exists for every crazy
21:06
naughty statute or oiled regulation if
21:09
only you possess superhuman power to
21:11
discern it i don't know about you but I
21:14
haven't met many judges resemble some
21:15
sort of legal Hercules well maybe my old
21:19
boss fire and light but how many of us
21:22
are going to lead the NFL in Russia
21:24
when a lawyer claims absolute
21:27
metaphysical certainty about the meaning
21:29
of some chain of ungrammatical
21:31
prepositional phrases tacked onto the
21:34
end of a run-on sentence buried in some
21:37
sprawling statutory subsection I start
21:41
worrying for questions like those my
21:44
only gospel is skepticism I try not to
21:47
make a dog out of it but to admit the
21:50
disagreement does and will always exist
21:53
over hard and find questions of law like
21:55
that doesn't mean our disagreements are
21:57
matters of personal will of politics
21:59
rather than an honest effort of making
22:01
sense of the legal materials at hand the
22:05
very first case i wrote for the tenth
22:06
circuit to reach the united states
22:08
supreme court involved a close question
22:10
statutory construction and the court
22:12
split 54 Justice Breyer wrote to affirm
22:16
he was joined by justices Thomas
22:19
Ginsburg Alito and Sotomayor Chief
22:25
Justice Roberts descended and he was
22:27
joined by Justice Stevens Scalia and
22:29
Kennedy that's a lineup that the public
22:32
doesn't often hear about but it's the
22:34
sort of thing that happens quietly day
22:37
in and day out in courts throughout our
22:38
country as you know but the legal cynic
22:41
overlooks the vast majority of disputes
22:44
coming to our courts are ones in which
22:45
all judges agree on the outcome intense
22:48
focus on a few cases where we disagree
22:50
suffers from a serious selection effect
22:52
problem over ninety percent of the
22:54
decisions issued by my quarter unanimous
22:56
and that's pretty typical of the federal
22:58
appellate courts forty percent of the
23:01
Supreme Court's cases are unanimous to
23:03
even though they face the toughest
23:05
assignments and nine not three judges
23:07
have to vote in every single dispute in
23:10
fact the Supreme Court's rate of descent
23:12
has been largely stable for 70 years
23:15
you don't hear that this despite the
23:18
fact that back in 1945 eight of the nine
23:20
justices have been appointed by a single
23:22
president and today's sitting justices
23:25
were appointed by five different
23:26
presidents even in those few cases where
23:30
we do disagree the cynic also fails to
23:33
appreciate the nature of our
23:34
disagreement we lawyers and judges may
23:37
dispute which two
23:38
was legal analysis are most appropriate
23:39
for ascertaining a statute's meaning we
23:43
may disagree over the order priority we
23:46
should assign two competing tools and
23:48
the consonants with the Constitution we
23:50
may even disagree over the results are
23:52
agreed tools yield in particular cases
23:54
these disagreements sometimes produce
23:56
familiar lineups but sometimes not
23:58
consider for example the debates between
24:01
Justice Scalia and Thomas over the role
24:03
of the rule entity or their
24:05
disagreements about the degree of
24:07
deference to President or some of the
24:09
debates you've heard today between and
24:11
among textless original lists these
24:15
debates are hugely consequential final
24:17
but their disputes of legal judgment not
24:20
disputes about politics or personal will
24:22
in the hardest cases as well many
24:26
constraints narrow the realm of
24:27
admissible dispute closed factual
24:30
records and adversarial process for
24:32
parties not courts usually determined
24:33
issues for decision standards of review
24:36
the command deference to finders of fact
24:38
the rules requiring us appellate George
24:40
judges to operate and collegial panels
24:42
where we listen learn from one another
24:44
the discipline of writing reason giving
24:46
opinions and the possibility of further
24:48
review to be sure these constraints
24:51
sometimes point in different directions
24:53
i'm not advocating a single right answer
24:55
to every problem but that shouldn't
24:57
obscure how those tools those
24:59
constraints often served to limit the
25:02
latitude available to all judges even
25:05
the cynics imagine judge would like
25:06
nothing more than imposes policy
25:08
preferences on everyone else
25:10
and on top of all that what today
25:12
appears to be a hard case tomorrow
25:14
becomes an easy one and accretion to
25:16
precedent as a new constraint on the
25:18
range of legally available options in
25:20
future cases now maybe maybe i do
25:24
exaggerate the cynicism that seems to
25:27
pervade today or maybe the cynicism i
25:29
see is real but endemic to every place
25:31
and every time and it seems something
25:33
fresh
25:34
only because this is our place in our
25:36
time after all lawyers and judges have
25:39
never been much loved Shakespeare wrote
25:42
the history of King Henry the sixth and
25:44
three parts in all those three plays
25:47
there's only a single joke
25:49
Jack cadence followers come to London
25:52
intent on rebellion and they offer their
25:55
first rallying cry let's kill all the
25:58
lawyers as in fact that he pretty much
26:01
did but but maybe just maybe the
26:06
cynicism about the rule of law whatever
26:08
the place whatever the time is its
26:10
greatest irony
26:12
maybe the cynicism is so apparent in our
26:14
society only because the rule of law
26:16
here for all its problems is so
26:19
successful
26:20
after all who can make so much fun of
26:23
the law without being very sure the law
26:25
makes it safe to do so don't our friends
26:30
our neighbors and we ourselves expect
26:33
and demand not just hope for justice
26:35
based on the rule of law our country
26:39
today shoulders an enormous burden the
26:43
most powerful nation on earth the most
26:45
obvious example of people struggling to
26:48
govern itself under the rule of law our
26:51
mistakes and missteps halted by those
26:54
who do not wish as well they're easy
26:57
enough to see even by those who do
26:59
neither should we try to shuffle our
27:01
problems under the rug
27:03
we have far too many to ignore today
27:06
the fact is the law can be a messy human
27:11
business a disappointment to those
27:13
seeking truth and some absolute sense
27:15
expecting more of the diviner oh except
27:18
for those of us wearing the robes and
27:21
it's easy enough to spot examples where
27:23
the laws ironies are truly better but it
27:26
seems to me that we shouldn't well so
27:29
much on the better that we never savor
27:31
the sweet it is after all our shared
27:34
profession to which we devoted our
27:36
professional lives the law that permits
27:38
us to resolve their disputes without
27:40
resort to violence to organize our
27:42
affairs with some measure of confidence
27:44
is through the careful application of
27:47
the laws existing premises were able to
27:49
adapt and generate new solutions to
27:51
changing social coordination problems as
27:53
they emerge and when done well the law
27:56
permits us to achieve all this in a
27:58
deliberative non-discriminatory and
28:00
transparent
28:00
way those are no small things here then
28:05
is the irony I'd like to leave you with
28:07
tonight if sometimes the cynic and all
28:10
of us fails to see our nation successes
28:14
when it comes to the rule of law
28:16
maybe it's because we're like David
28:17
Foster Wallace's fish was oblivious to
28:20
life-giving water in which it swims
28:22
maybe we overlooked our nation's success
28:25
living under the rule of law only
28:28
because for all our faults that success
28:31
is so obvious it's sometimes hard to see
28:34
thank you
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