This convention, this audience, probably contains a greater number of articulate speakers than the British House of Commons — more experienced and successful masters of courtroom technique than all the American law schools put together; more passionate, shrewd, technically qualified "spokesmen for the underdog" than the Republican or Democratic political conventions.
For such a gathering, I submit that the number one question should be: how can such an array of talent fulfill its highest potential?
For many of us in our law school days, fulfillment of our talents as lawyers meant getting to the top of our profession: our names in the firm name; our election as president of the bar association; appointment to the judiciary; a law professorship; a substantial income. Many here tonight have achieved those objectives, and those who have not, soon will.
But, as we have accomplished the professional goals we set for ourselves twenty or thirty years ago, I think many of us are puzzled, about the fact that more and more of the best young law school graduates are not seeking employment in our firms, or if they do consider working for us, they make demands we never considered relevant to professional development. These young men and women seem to be motivated by ideas and seeking opportunities which were not available or even considered when we left law school. The generation gap in the law is as evident as everywhere else.
These young people I suggest are trying to tell us something. I think they are saying that they are not satisfied with the ways we view the law and the legal system. They are not saying what we did — and do — is wrong. They are questioning what we don't do. They are not accepting the law as it is, but rather attempting to define, and work for, the law as it should be.
The best of them are attempting to ferret out and confront injustice. They want to use and expand the law as they have received it, so that injustice heretofore unreached by our laws can, in fact, be touched and ameliorated by competent and compassionate extension of the law.
In 1961, poverty in America was unknown and undiscovered by the overwhelming majority of Americans. Neither Truman, Eisenhower, nor Kennedy ever campaigned on a platform to eradicate poverty.
In post-World War II America, omnipresent prosperity was so obvious and exciting and satisfying that no one ever thought about poverty. Yet, poverty did exist. We discovered it as a problem only in 1963 under Kennedy, and have fought it under Johnson and Nixon. Today poverty law is taught in our law schools and commerce clearing house publishes a poverty law reporter.
Tonight I would like to suggest that exactly as we became aware poverty and its injustices, we need to expand even further our whole concept of justice, our sensitivity to injustice. And, if we do so, I believe, we shall find the best of our young law school graduates — including our own sons and daughters — flocking back to work with dad — with admiration, not just for him, but for the legal system and the society which produced him. This is true because our sons and daughters have come to realize that justice — or more accurately, injustice — is the single most direct and important cause of our nation's problems today.
Injustice is more unbearable than hunger, injustice causes more dope addiction than the greed of the producers and pushers of heroin because injustice creates the customers — those who have lost hope in everything. Injustice sows the seeds of rebellion. Governments can remain in power in the face of plague, famine or war, but none has been able to survive revolutions based on demands for human dignity and justice. Injustice — rather than hunger — created and nurtured both the French and American revolutions. Even today, the undercurrents which are precipitating violent changes are movements by men seeking to achieve justice, not to eradicate hunger. Fear, frustration, anger and anxiety motivate men far more than a loaf of bread.
Costa Gavras, the famous motion picture director, recently said:
"Of all injustice, official injustice is the greatest of all violence, because that's where violence begins. Violence is not the policeman who beats you, or the soldier who kills you. they're only the visible agents. It is injustice which is behind the club or the gun. Revolutionary violence is too often judged by the image it gives, never by its roots. Where does this violence come from? Always from injustice. and the worst is, injustice in the name of justice..."
Costa Gavras has touched the nerve center — the pressure point. By focusing on injustice, he has revealed the deepest source of our anguish as a nation. His insight explains the alienation of young people; the antagonism against the war; the fervor of those who struggle for civil rights; the terrifying acceptance of drugs; the deserters from Yale and Harvard now in Canada or Sweden; the senseless bombings by the Weathermen; and the need for a "new consciousness ," as Charles Reich calls it, or for a new, deeper, more sensitive "moral consciousness”, as religious people call it – a heightened awareness of sin, of evil, of the devil, of the struggle against wickedness within ourselves and in high places, of "injustice in the name of justice."
Visualized in these ways, injustice, rather than lack of food or health or housing or education, becomes the number one problem of our nation and of our times.
To attack this problem, I suggest that we need to extend our basic awareness of justice and injustice into institutions where courts and lawyers rarely wander. To the public schools where children are often subjected to abusive and arbitrary treatment in the name of discipline; to hospitals and mental institutions where patients are neglected or experimented upon or deprived of benefits; to governmental bureaucracies where people who blow "ethical whistles”, as Ralph Nader says, are subjected to subtle or not—so—subtle retaliation; to unions where jobs are denied because of race or sex; to corporations which exert as many controls on our lives as any governmental power, but stand outside the sphere of public accountability. We must begin to find ways to establish justice within the confines of those closed systems — those institutions which encompass much of our daily lives as students employees, or citizens — and we must see that injustice is eradicated in these privileged sanctuaries.
But where can we start to attack such a massive problem? I would suggest that we begin with our system of legal education, for that is where our greatest potential for the most dramatic change lies — the creation of a body of lawyers committed to confronting injustice. The medical profession early in its development saw the need for practical teaching methods through the clinical method of instruction. Not only do medical schools serve the students — they reach out to the surrounding community. No longer can our law schools ignore the problems of poverty, racism and the environment in which they are sometimes physically immersed. Like all other institutions they must undertake to fulfill what should be their manifest destiny which for law schools should be to serve their community delivering justice.
The entire criminal justice system also is in need of a thorough review and evaluation. Like our education system, we tinker with criminal justice without having tested the ideas with which we are dealing. People blithely speak of preventive detention, no-knock searches and other controversial proposals without studying their impact on society or the individual. Our jails and prisons are little more than breeding grounds for crime. The entire parole system is antiquated, arbitrary and unfair.
There are other areas which remain virtually untouched and untested because we have no mechanism or resource devoted to the reform of the law and legal institutions.
And this is understandable. Not acceptable, but understandable. Our system for the delivery of justice remains almost the same today in the fact of a rapidly expanding nation, both in size and in technology, as the system 100 years ago. We are the only industry that fails to develop new marketing devices and systems. We spend less time and money than any other group in this country on research. The R&D budget for the Department of Justice is $9 million annually; the R&D budget this year for the Department of Defense is almost nine billion dollars. To improve justice for our own people we spend one-tenth of one percent of the amount we spend to improve our capacity to kill our enemies!
In fiscal year 1971, the U.S. government spent $143 million for the federal judiciary, $61.4 million in legal services for the poor, and $1.1 billion in law enforcement and justice combined. By contrast, we spent $14.9 billion on the providing and financing of medical services, development of health resources, and prevention and control of health problems.
Question: why is health so much more important than justice? Our federal government concerns itself with man's education, his health, his house, his job, how he is able to move from place to place, and, now, his total environment. But we do not concern ourselves in any comparable degree, with his legal rights , his dignity, and his liberty. The government does not confront injustice — and, often, sadly, may be its perpetrator.
Our judicial system is in a state of disrepair. Not only do we need a linear expansion — more judges, more prosecutors better administration — but we also need a new look at the development of alternative mechanisms for problem-solving.
Our judicial system is in a state of repair. Not only do we need a linear expansion — more judges, more prosecutors, better administration – but we also need a new look at the development of alternative mechanisms for problem-solving. Was the establishment of health mentioned in the constitution? Justice was.
The courts are too remote, overworked, and are not structurally organized to seek out and solve problems in our schools, prisons or other institution. In short, to insure equal justice under law.
Yet, when the Chief Justice of the United States speaks to the largest gathering of lawyers in this country, he speaks of the "state of the judiciary," not the "state of justice." The Department of Justice — whose batting average under Mr. Mitchell could not even help our beloved Washington Senators — has become a Department of Prosecution, if not Persecution. And the first lawyer-president we have had in a generation has not exactly seized the moral leadership of he nation with his Supreme Court nominations or by his conduct in the Calley Care or by his stand on justice for our school children and in the vital field of housing.
The OEO legal services program was an attempt to enfranchise the poor — through the legal system — in a program designed to be accountable to the clients it served. It was, and is, a unique program. its achievements are remarkable and worthy of praise. It is a shining example of the best of this country — idealism, a willingness to challenge and be challenged example of inner strength manifested by change within the system. No nation in this world would have dared to authorize and pay lawyers to challenge governmental policies. Yet this nation does just that.
But "legal services" has created new contradictions and controversies. With every success, opponents have been created. The program has engendered powerful opposition — so powerful that the program has been in jeopardy for nearly eighteen months.
The creation of a National Legal Services Corporation, currently under discussion in the congress, would insulate the legal program from these debilitating pressures and I am delighted that this organization has given it endorsement to this corporation.
But this is only a beginning. The strengthening of our system of justice requires a grander vision than the piecemeal efforts we have currently underway to achieve truly significant, permanent and profound change. I believe we must create a National Institute of Justice, devoted to the improvement of our entire legal system; the coordination of legal research and long-range planning; the reform of our criminal and corrections institutions, and dedicated to the eradication of injustice in America.
Such an institute is not without precedent. The National Institutes of Health with its component programs, has made enormous strides in improving the delivery of medical services, expanding the scope of basic medical research, and in upgrading the quality of medicine in 20th century America.
So, too, a National Institute of Justice is desperately needed. The judiciary and the present Justice Department are totally absorbed in the settlement of disputes through the existing legal machinery. They are not ready - to be experimenters of new ideas such as judicare or the ombudsman concept. The entire federal judiciary is funded at the same level as it costs the Navy to build half an aircraft carrier. Obviously, if we are to design new adjudicatory systems, such as neighborhood courts, or citizen mediation panels, if we are to experiment with new kinds of law schools and public interest counsel; and if we are to explore the use of para-professionals and new fields of legal research, we need an imaginative, flexible and different kind of institution.
I would see this new agency as having three separate and distinct arms. One would involve itself in the delivery of legal assistance to those unable to afford private counsel – hopefully serving as an umbrella for the new National Legal Services Corporation. In addition to neighborhood legal services efforts, the Institute could establish a people's counsel designed to provide representation for poor persons in federal and state rule-making and other administrative proceedings. Also, responsibility for reform of our criminal justice system such as the new office of law enforcement assistance would be lodged here.
A second responsibility under the umbrella of the Institute could be the problems in legal education and legal manpower. Clinical programs using various practical approaches to instruction would be funded at law schools across the country. For years we have availed ourselves of the effective services of the teaching hospital but have never adopted this exciting concept — the teaching law firm or law school — in our own profession. New curricula, teaching materials, and teaching methods could be designed and tested. So could new kinds of law schools. Why should each law school try to offer a generalized curriculum? Perhaps we should have special schools for patent, scientific or space law; specialized or advanced schools in international law or world government. just as doctors take a residency in so, too, perhaps, lawyers should take a public internship, serving on Indian reservations or in migrant camps or city ghettos.
Then, too, we have not nearly explored the use of para-professionals, legal aides, and investigators. Current caseloads in legal services projects are running up to two thousand cases per year per lawyer!
Minority and disadvantaged students, heretofore only finding meager assistance from the joint OEO/American Bar Association program and from individual law school efforts, could be provided stipends loans, and other resources to undertake the law as a career.
The research arm of the Institute might well be its most important function. This agency could provide resources, both in expertise and grants, to study the problems of law-making bodies in their administration and organization. The research might review and experiment in depth with the concept of an ombudsman in this country — a much misunderstood and misused term. The techniques of arbitration and mediation might be further developed to be utilized in neighborhoods or "closed" institutions in order to provide new grievance mechanisms. We must closely examine the Judicare concept. Basic research needs to be done on criminal conduct and recidivism psychiatry and the law is only one of the new areas which needs intensive research.
Another area badly in need of research is the whole system of bar examinations, differing state standards and reciprocity among states for legal practice. The list is virtually inexhaustible.
The National Institute of Justice could be organized under the judiciary, Congress, or as a private, non-profit governmentally funded corporation. Under any such scheme, it must be independent from partisan political considerations and pressures. Funding could be a joint effort involving the Congress, revenues from filing fees in federal courts, and a sharing of responsibility on individual grants by the bar, law schools, foundations, and the institute.
The institute would be the legal profession's giant step for mankind. It would provide, for the first time in this nation, a launching pad to create the processes and vehicle for, not only confronting injustice, but developing alternatives to produce justice.
The Trial Lawyers of America have a special responsibility for this state of justice in our country. No other group has more intimate contact with our courts and with those who seek justice in our courts. No other organization has your special skills and resources. A special committee created by your officers could make a significant contribution to a study of the feasibility of establishing such an Institute. Such a committee could hold public hearings, take and report to the judiciary and the Congress on these ideas and others advanced by law professors, judges and legal scholars for more imaginatively than I.
Lawyers in America have always been places in a special preferred position – and correspondingly have a special responsibility. We must manifest our awareness of this responsibility by a commitment to change, to ensure that every American has the right and opportunity to fully participate in society. Each human being has a fundamental right to have an influence over the decisions which affect his life.
This commitment to human problems is crucial. No longer can we afford as a nation – or as a world – to allow things to override people, technology to outweigh humanization, or law and order, to breed injustice. Our court must remain open to all the people not only as the administrators of justice but as the nations greatest agents of social change.
It was Albert Camus who said: "I should like to love my country and justice at the same time" … through the dedication of men and women like yourselves, true advocates of the rights of people, I know this ideal will be realized not only for America but through our example for the world.