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The risks of an underfunded judiciary

Posted by Marjorie Pritchard  February 7, 2012 03:12 PM

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By Richard P. Campbell

Former Chief Justice Margaret Marshall, reflecting on her early years as a citizen in South Africa, uses a metaphor to explain the importance of the rule of law. “When you are breathing oxygen you don’t notice it, when you cut off the supply you will notice it very quickly.”

For most of us, the American judicial system has been one of the few constants throughout our lives. Courts and the judges who sit in them have been models of stability, equipoise, and scholarship. When political leaders like Arkansas Governor Orval Faubus prohibited African American children from entering Central High School in Little Rock or Mississippi Governor Ross Barnett and the Trustees of the University of Mississippi blocked James Meredith from matriculating, our courts and judges righted those wrongs. If captains of industry, like the CEO’s of WorldCom, Enron, Tyco, and Global Crossing, crossed the boundary of proper business conduct and engaged in criminality, our courts and judges removed them from their corporate suites and provided alternate, supervised housing for them. Revolutionaries, like Raymond Luc Levasseur, could not destroy our system of justice by detonating bombs in our courthouses. Instead, the business of the courts continued without fear. The day-to-day enforcement of criminal and civil laws has always gone forth quietly, surely, and swiftly, promoting great predictability to our lives.

Most of us never step back and ask ourselves what “the rule of law” means. And few of us, if any, ever consider it at risk. But what would happen if the rule of law in this country simply failed?

What would the evil, violent, people in our midst do if there were no courts? Would they take advantage? Would we be safe in our homes and communities? How about the captains of industry? Would they cheat and steal from us? Could we trust our landlords or bankers? Would our children and incomes be secure from estranged spouses?

Let’s call the collective sum of all public and private services related to the reading, interpretation, guidance, application and enforcement of statutory and common law the “law economy.” There are obvious public employee stakeholders in the law economy (judges, prosecutors, court administrators, clerks, and court officers). And, there are equally obvious private employee stakeholders as well (lawyers, law firms, paralegals, investigators, and the like). It is easy, however, to view the law economy myopically and to lose sight of the fact that the public at-large are stakeholders in it too (businesses and consumers, employers and employees, purchasers and sellers, lenders and borrowers).

The foundation of the law economy in the Commonwealth of Massachusetts is full, adequate public financial support for the courts. But the truth of the matter is the public (and our elected officials) do not properly support the courts. As a result, the law economy is crumbling all about us. Courts are closing; judges are retiring early; support staff are laid off or just not replaced.

The most important point for all stakeholders to note as they ponder the decline in the law economy is the erosion in the rule of law and with it the decline in the quality of life in the cCommonwealth. The employee who works hard for two straight weeks expects her employer to deliver a paycheck and make good on promises of health insurance and other benefits. The tenant who pays her rent expects the building heat and electricity to work when she turns on switches.

By underfunding the justice system, we put at risk the way in which we live our lives and with it our hopes and dreams for ourselves and our children and grandchildren.

The Massachusetts Bar Association is undertaking the cause of educating the citizens of the commonwealth on the risks of an underfunded and non-functional judiciary. Through billboards alongside the Expressway, the Massachusetts Turnpike, and other interstate highways, videos posted on YouTube, and public appearances in schools and local communities, the MBA will forewarn the community of the risks at hand. Hopefully, the community will listen.

Richard P. Campbell is president of the Massachusetts Bar Association.


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