Questions for the Candidates

Judicature, November/December 2007 | Go to article overview

Questions for the Candidates


Starting with the presidential primaries, we encourage AJS members, the media, and the candidates themselves to discuss and debate matters concerning the administration of justice that we believe should be central to our national political discourse: access to justice, federalism, judicial selection, sentencing policy, and the Department of Justice.

In past election years, the American Judicature Society has sought to elicit, and then to publish, the views of those nominated for the presidency on issues relating to the administration of justice that the candidates considered important. In this election season, we believe that it would be better to seek more candidates' views, to seek them earlier, and to focus on specific issues that we believe are important. By proceeding earlier than in the past, our hope is to make discussion of these issues part of the primary process. By focusing on specific areas and suggesting specific questions, we hope to minimize the risk of candidate responses that are mere platitudes. By proceeding in this forum rather than, as in the past, through letters to the candidates, our hope is to encourage AJS members, the media, and the candidates themselves to discuss and debate matters concerning the administration of justice that we believe should be central to our national political discourse.

Access to justice: Litigation and its alternatives

One of the most serious issues facing Americans today concerns access to justice. Over the past 70 years our society has relied on litigation for the compensation of injury and the enforcement of legal norms to an extent unique in the world. That reliance and the social and political preferences it reflects have retarded the development (or adequate funding) of alternative compensation and enforcement mechanisms of the sort that other advanced democracies have tended to prefer. Today, however, many in our society believe that litigation has become too expensive for the average person, and that courts, particularly the federal courts, exist principally to resolve the disputes of corporations and the wealthy. Effectively denied access to court, many have also come to believe that they are without any remedy at all.

Litigation is unquestionably becoming more and more costly. This is due in part to what the average American sees as the exorbitant fees charged by lawyers. Yet, it is also due to a legal system that, both procedurally and substantively, has become enormously complex, in large part because it has been shaped for the extraordinary, rather than the ordinary, in litigation. As a result, those with ordinary disputes frequently find themselves lost in a baffling maze of complex procedural rules, many of which are difficult even for lawyers (and impossible for prose litigants) to comprehend, and expensive for all to navigate.

Americans should hear from those who aspire to be president (1) how they propose to open the courthouse door to average individuals, and (2) particularly when litigation is not affordable or not appropriate, what alternatives they believe can best compensate for injury and deter harmful activity.

Federalism

These questions raise a broader set of issues that also deserve attention. Civil and criminal lawmaking power are often shared or divided between the state and federal governments along lines that are blurred and unprincipled. Jurisdiction, legislative and judicial, tends to be allocated not on the basis of which legal system is best equipped or which matters have significant impact on national as opposed to local concerns. Rather, federal jurisdiction is asserted because of short-term political considerations, sometimes on an exclusive basis.

For example, the same drug transaction or a crime involving the use of a gun can invoke both federal and state jurisdiction. The criminal penalty for the federal crime is often much harsher than the state sanction. In many cases there seems to be no good reason for the enactment of such duplicative criminal statutes; elected politicians simply find it impossible to oppose the enactment of any criminal statute. …

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