Tuesday, March 4, 2008

Adams on Cardozo and the history of the American Law Institute

The American Law Institute: Justice Cardozo's Ministry of Justice? is a new article by Kristen Adams, Stetson University College of Law. It appeared in the Southern Illinois University Law Journal (2007). Here's the abstract:
This paper explores an influential reform agenda - the notion of a Ministry of Justice - advanced by Justice Benjamin Nathan Cardozo, one of the American Law Institute's founding members. The article in which Justice Cardozo introduced the concept of a Ministry of Justice was published in the Harvard Law Review the very month that the exploratory committee was formed that ultimately recommended the formation of the American Law Institute, and two years before the Institute itself was founded. This article explores the extent, if any, to which the reform agenda that Justice Cardozo propounded in this famous article was fulfilled by the founding of the Institute.

1 comment:

Supremacy Claus said...

Cardozo was influenced by Llewellyn, a proponent of the German Free Law Movement. They objected to the tyranny of the writing. Another famous adherent to the Free Law Movement was the Nazi Judiciary. They objected to the inconvenience of procedural safeguards of the writing in German law.

This article explains Cardozo's role in the founding of the ALI. It misses its most obvious feature, an unlawful end run around Article I Section 1, and its state equivalents by a left wing, socialist ideologue.

Cardozo furthered it on the bench. He likely found that case by case abuse to be too slow and inefficient. He sought a more systematic method to dictate to the entire judiciary of the nation.

1) The ALI represents an unlawful alternative to the legislative process. Its recommendations violate that Article I Section 1 power whenever cited by any judge. If an appellate decision can ever be void for illegality, all those citing it should be voided.

2) The ALI misleads by calling their products, Restatements. They are legislative proposals. The ALI are just liars about it.

3) Most ALI proposals have Cardozo's bias to enable and explode lawyer make work and rent seeking. They are highly biased in favor of hyper-proceduralism, and any client that generates work for plaintiff attorneys, defense attorneys, and judges. Any proposal that decreases rent is rare, and a form of charity crumb tossed toward the public to divert its gaze from the main goal of the ALI. The other goals of the judges cited in the article are masking ideology, and lies too.

The ALI serves one legitimate purpose. It names the lawyer hierarchy. Convenient for any courageous Executive deciding to prosecute this group of insurrectionists against the Constitution, including its horrible ex officio members.