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 An independent federal judiciary...
 Investiture of the honorable Stephen...
 How Holland & Knight may be practicing...
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Speeches by Chesterfield - Vol. XIX, 268-282. 1986-1987
CITATION PAGE IMAGE ZOOMABLE
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Permanent Link: http://ufdc.ufl.edu/AA00006013/00001
Finding Guide: A Guide to the Chesterfield Smith Papers
 Material Information
Title: Speeches by Chesterfield - Vol. XIX, 268-282. 1986-1987
Series Title: Speeches, 1956-2003
Physical Description: Unknown
Language: English
Creator: Smith, Chesterfield H., 1917-2003
Publication Date: 1986-1987
Physical Location:
Box: 134
Folder: Speeches by Chesterfield - Vol. XIX, 268-273. 1986-1987
 Record Information
Source Institution: University of Florida
Rights Management: All rights reserved by the source institution and holding location.
Resource Identifier: sobekcm - AA00006013_00001
System ID: AA00006013:00001

Table of Contents
    Table of Contents
        Table of Contents 1
        Table of Contents 2
        Table of Contents 3
    Random current thoughts of a trial lawyer about liberty and justice for all
        Page 268-i
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    "Why lawyers alliance for Nuclear Arms Control, Inc."
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    The role of an independent judiciary in a democratic society
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    How law firms (and especially Holland & Knight) will be practicing in year 2000 before senior lawyer's division of American Bar Association
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    How law firms (and especially Holland & Knight) will be practicing in year 2000 before Homecoming breakfast, University of Miami
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    An independent federal judiciary and civil liberties and individual freedoms
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    Investiture of the honorable Stephen H. Grimes, Justice of the Supreme court of Florida
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    How Holland & Knight may be practicing law in the year 2000 before Lakeland Bar Association
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    An independent federal judiciary and civil liberties and freedoms
        Page 276-i
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    1987 graduating class St. Thomas University School of Law, Miami, Florida
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    An independent federal judiciary - constitutional amendments - and their combined impact on governmental stability and individual protection
        Page 278-i
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    An independent federal judiciary - constitutional amendments - and their combined impact on governmental stability and individual protection before Stetson College of Law
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    An independent federal judiciary - constitutional amendments - and their combined impact on the protection of individual rights in the United States of America
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    Material adapted from remarks made at the forum on the Constitution at Manatee Community College
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    An independent federal judiciary - constitutional amendments - and their combined impact on the protection of individual rights in the United States of America before Florida Southern College
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        csmith_vol_19thm
Full Text








VOLUME XIX

#268 RANDOM CURRENT THOUGHTS OF A TRIAL
LAWYER ABOUT LIBERTY AND JUSTICE
FOR ALL
(A longer version of article for
The Miami Herald printed on Sunday,
April 27, 1986). On ATMS.


#269 STATEMENT OF CHESTERFIELD SMITH
BEFORE: PRESS CONFERENCE HELD BY
THE LAWYERS ALLIANCE FOR
NUCLEAR ARMS CONTROL
SUBJECT: "Why Lawyers Alliance for
Nuclear Arms Control, Inc.
DATE: Monday, July 21, 1986


#270 THE ROLE OF AN INDEPENDENT JUDICIARY
IN A DEMOCRATIC SOCIETY
BEFORE: INDIANA CIVIL LIBERTIES UNION
Indianapolis, Indiana
DATE: SATURDAY, NOVEMBER 1, 1986


#271 HOW LAW FIRMS (AND SPECIFICALLY HOLLAND
& KNIGHT) WILL BE PRACTICING IN THE
YEAR 2000
BEFORE: SENIOR LAWYERS DIVISION OF
AMERICAN BAR ASSOCIATION
Tampa, Florida
DATE: FRIDAY, NOVEMBER 14, 1986


#272 HOW LAW FIRMS (AND SPECIFICALLY HOLLAND
& KNIGHT) WILL BE PRACTICING IN THE
YEAR 2000
BEFORE: HOMECOMING BREAKFAST, UNIVERSITY
OF MIAMI, MIAMI, FLORIDA
DATE: SATURDAY, NOVEMBER 15, 1986




#273 AN INDEPENDENT FEDERAL JUDICIARY AND
CIVIL LIBERTIES AND INDIVIDUAL FREEDOMS
BEFORE: ORANGE COUNTY BAR ASSOCIATION
Orlando, Florida
DATE: Thursday, January 15, 1987













VOLUME XIX


#274 INVESTITURE OF THE HONORABLE
STEPHEN H. GRIMES, JUSTICE OF THE
SUPREME COURT OF FLORIDA
DATE: FRIDAY, JANUARY 30, 1987



#275 HOW HOLLAND & KNIGHT MAY BE
PRACTICING LAW IN THE YEAR 2000
BEFORE: LAKELAND BAR ASSOCIATION
(CS sick, delivered by
Bill Henry)
DATE: WEDNESDAY, APRIL 1, 1987


#276 AN INDEPENDENT FEDERAL JUDICIARY
AND CIVIL LIBERTIES AND FREEDOMS
BEFORE: DADE COUNTY BAR ASSOCIATION
DATE: FRIDAY, MAY 1, 1987


#277 1987 GRADUATING CLASS
ST. THOMAS UNIVERSITY SCHOOL OF LAW
MIAMI, FLORIDA
DATE: SUNDAY, MAY 24, 1987


#278 AN INDEPENDENT FEDERAL JUDICIARY -
CONSTITUTIONAL AMENDMENTS AND
THEIR COMBINED IMPACT ON
GOVERNMENTAL STABILITY AND
INDIVIDUAL PROTECTION
BEFORE: DEMOCRATIC PARTY OF
LAKE COUNTY
DATE: MONDAY, JULY 27, 1987


#279 AN INDEPENDENT FEDERAL JUDICIARY -
TIME CONSUMING CONSTITUTIONAL
AMENDMENTS AND THEIR COMBINED IMPACT
ON THE PROTECTION OF INDIVIDUAL
RIGHTS IN THE UNITED STATES OF
AMERICA
BEFORE: STETSON COLLEGE OF LAW
INNS OF COURT
DATE: THURSDAY, OCTOBER 1, 1987













VOLUME XIX


#280


AN INDEPENDENT FEDERAL JUDICIARY -
TIME CONSUMING CONSTITUTIONAL
AMENDMENTS AND THEIR COMBINED
IMPACT ON THE PROTECTION OF
INDIVIDUAL RIGHTS IN THE UNITED
STATES OF AMERICA
BEFORE: PEMBROKE PINES/BROWARD COMMUNITY
COLLEGE CONSTITUTIONAL
BICENTENNIAL COMMITTEE
DATE: WEDNESDAY, OCTOBER 7, 1987


MATERIAL ADAPTED FROM REMARKS MADE
AT THE FORUM ON THE CONSTITUTION AT
MANATEE COMMUNITY COLLEGE, VENICE,
FLORIDA ON OCTOBER 28, 1987, ENTITLED
"AN INDEPENDENT FEDERAL JUDICIARY,
DIFFICULT CONSTITUTIONAL AMENDMENT, AND
THEIR COMBINED IMPACT ON INDIVIDUAL
RIGHTS"



AN INDEPENDENT FEDERAL JUDICIARY -
TIME CONSUMING CONSTITUTIONAL
AMENDMENTS. AND THEIR COMBINED
IMPACT ON THE PROTECTION OF
INDIVIDUAL RIGHTS IN THE UNITED STATES
OF AMERICA
BEFORE: FLORIDA SOUTHERN COLLEGE
DATE: WEDNESDAY, NOVEMBER 11, 1987


#281


#282








SPEECHES OF CHESTERFIELD SMITH


SPEECH NUMBER 268


VOLUME XIX




-1h


Dated: May 1, 1986



RANDOM CURRENT THOUGHTS OF A TRIAL
LAWYER ABOUT LIBERTY AND JUSTICE FOR ALL


Throughout history, Americans have believed that liberty,

justice, and fairness through law can be guaranteed to all

people. Indeed, faith in the rule of law has developed since the

end of the great depression to such a point that Americans en

masse have placed less and less reliance upon standards of value

above the law, a direction which has proven to be devastating for

society. Encouragingly, many thoughtful people today are becom-

ing increasingly dubious that there ever can be a final resolu-

tion of day-to-day problems through law alone, and thus to yearn

for a differing quality of societal rules.

Properly to analyze those doubts and that desire, the impor-

tance of two prime traditional values must be recognized

simultaneously, values which may seem incompatible: First -

freedom from over-control by others, the individual privacy to do

one's own thing whatever that is, alone or in small autonomous

units, and second order which can come only from large-scale

unity and coordination, the societal orderliness which alone per-

mits efficiencies and prevents anarchy. The duality of those two

human values always must be accommodated when existing proscrip-

tions are modified in an attempt to re-order public and private

purposes. Even so, those who fix human value standards find it

most difficult when doing so to reconcile properly the disparate

aims of individual privacy and societal orderliness.








The original question between too much and too little in law-

making is to discriminate, to get things sorted out. For every

law there is a certain appropriate scale. Individual privacy

begets little law and small legal solutions, and societal or-

derliness begets big law and massive legal solutions. Yet, in

reality those two competing values are not incompatible and any

re-ordered legal priorities must adjust them.

Since World War II, the American people often have been ex-

posed to public fussing, feuding and acrimony. When the American

Constitution was written, it assumed standards of harmonious

behavior by its citizens, based upon historically accepted

tenents. The founders believed that a nation predicated upon the

insights of great philosophers and pundits could succeed, leading

to our then unique system in which a check and balance division

of the theretofore absolute powers of the single law-giver for

the first time put governmental institutions into healthy

confrontation.

It never was contemplated then that laws would cover all

situations, solve all problems or resolve all disputes. The

founders assumed that there would be general respect, although

not always agreement, by the majority of the people for the bene-

fit of each societal division. It has not always worked out that

way and the ever-increasing public tendency from majority and

minority viewpoints is to mistrust, to dispute and disrupt.

A reaffirmation of an old-fashioned understanding whereby all

elements of our community treat each other with courtesy and

respect, at least more than now, is obviously desirable. The es-

sence of any such understanding has to be a measure of voluntary


-2-








restraint, an unspoken understanding that each portion of our

people will apply their full understanding to the needs and

rights of others. One majority position or doctrine must not

dominate. A situation where one entity attempts to dominate does

more than encourage unseemly conflict, it demands it.

After almost two hundred years of national experience each

fragment of our nation should now understand the indubitable con-

tribution of multiple others to societal orderliness and individ-

ual privacy, and each should work to insure that continued con-

tribution by those others. No establishment, private or public,

is qualified to serve as the prime keeper of the conscience of

all humankind. Understanding of the role of others is the only

productive route to the harmonization of individual privacy and

societal orderliness which is the key to an effective and con-

gruous relationship.

Americans now routinely ask the law (and thus our government)

to determine right from wrong, the ethical from the unethical,

and the moral from the immoral, an activity which has proven out

to be personally self-debilitating because it innately absolves

individuals from all conduct beyond that required by law. A lau-

dable desire for ever-greater societal orderliness has driven the

nation to more and bigger laws. Individual privacy, freedom of

enterprise, freedom of life style, the right to engage in such

activities in differing yet individual choices, has accordingly

suffered.

During my own lifetime, this ever-enhancing reliance on the

law has led to a shift in the responsibility for developing the

mores of this nation's social structure. Purposeful goals of


-3-








personal attitude and rectitude beyond the minimum set by law

receive little current popular support. To accept the law as a

floor forgives individuals for all behavior which is not pro-

hibited by law, and as a necessary corollary permits them to use

those minimum legal standards to advance their own purposes.

Why has America at this stage seemingly shifted emphasis from

that which is right to that which is legal? Has the development

of a strong legal profession in this country, unparalleled

throughout history in numbers, independence, affluence and

influence, contributed to this lamentable trend. It does appear

that being right from a legal point of view means to many lawyers

that nothing more is required. I surmise that few tell their

corporate clients that meeting minimum legal requirements might

still not make one entirely right, and then urge self-restraint

or counsel repudiation by the client of the right so to act.

Individual legal victories vindicating that which meets minimum

legal demands, but not necessarily that which is right in the

context of the larger society, whether won in the courtroom or in

the legislature, can sometimes be ultimately as disastrous to a

lawyer's clients as winning a battle but losing the war is to a

dictator.

What are the choices for mitigating this trend? Is law in

its present overwhelming dimensions to be curtailed? Shall we

simply decide that henceforth only moralistic standards will be

utilized to achieve the better life? Of course not neither are

acceptable solutions. The only effective response is for indiv-

idual Americans to take steps to demonstrate that they themselves

are capable of individual self-discipline which is consistent


-4-








with the realities of both the desired privacy of the individual

and the societal orderliness which is essential to the public

interest.

Of course there are larger risks in a legalistic approach

than the inconvenient and vexing imposition of further governmen-

tal restrictions on individual privacy. The law cannot and

should not provide a response to all social or economic problems.

Surely lawyers best know that the law more often lags than leads.

Implemented through the political system, the proper role of law

is to articulate pre-established norms of a society. The absence

of an objective moral order inevitably will lead to a legalistic

system in which each person always seeks to use that system in a

way to secure the most personal advantage.

It is unrealistic to ignore the fact that to date individual

performance under existing law can be improved, and I do not ig-

nore it. Not all Americans currently are discharging properly

their acknowledged responsibilities. Additional efforts to ob-

tain individual adherence to the rule of law clearly is

warranted. But an enhanced legalistic approach even if accepted

does not assure the permanent solution which can be obtained only

if people respond substantively.

Regrettably, the question most asked today is: Is it legal?

- Not: Is it right? To permit pre-emptive law alone thus to es-

tablish the entire moral criteria of human beings can only result

in a total atrophy of societal responsibility, and perhaps it

almost has. As events throughout the world show, a legalistic

society which ignores all values other than law is a society in

which ultimately both societal orderliness and individual privacy


-5-








wither away and disappear. Indeed, history has repeatedly demon-

strated that no state can long survive if its people assume that

conduct not forbidden by law is acceptable conduct. Law should

set minimum standards, but not the loftier goals. It can be the

bottom, but it must not be the ceiling.

If the present legal structure does not provide the philoso-

phy needed, where can it be found? The answer lies beyond the

law. A sense of responsibility, of values transcending those ar-

ticulated by the law, should be applied to decision making.

Lawyers and their clients always must consider the essential role

of ethics and morality. Lawyers should aspire for higher stan-

dards than the minimum from those they counsel. The true rule of

law envisions internal checks as a necessary complement to exter-

nal restrictions. Only the combination of an internalized value

system and external constraints can assure that individuals and

their created institutions act responsibly and that the oppos-

ing two values, individual privacy and societal orderliness, are

accommodated and harmonized. The dominant question for

tomorrow's lawyers and their clients, must be: Is it right?

Not: Is it legal?



Chesterfield Smith

Lawyer, Holland & Knight








SPEECHES OF CHESTERFIELD SMITH


SPEECH NUMBER 269


VOLUME XIX



















STATEMENT OF:


CHESTERFIELD SMITH
LAWYER
MIAMI, FLORIDA


BEFORE:


PRESS CONFERENCE HELD BY THE
LAWYERS ALLIANCE FOR
NUCLEAR ARMS CONTROL


DATE:


MONDAY, JULY 21, 1986
1:00 P.M.


SUBJECT:


WHY LAWYERS ALLIANCE FOR
NUCLEAR ARMS CONTROL, INC.








It long has been my opinion, personally and professionally,


that lawyers collectively, through bar associations as well as


individually, have a responsibility to society, greater in degree


than most citizens, to contribute to the well-functioning of our


governmental process. That obligation requires attorneys to


utilize their specialized legal skills as counselors, advocates


and negotiators to improve the lot of society in general.


Lawyers owe that responsibility to society in exchange for the


semi-monopoly right given to them by law, an act which in itself


chills development of such skills in others.


One good way in which lawyers can fulfill this obligation to


use those specialized talents to better society is through effort


and concern for nuclear arms control. It is now appropriate that


bar associations and individual lawyers no longer remain qui-


escent on nuclear destruction. Lawyers must support the strate-


gic arms reduction talks as proposed by the government of the


United States. But lawyers can do much more than passively react


to government proposals. Indubitably, lawyers' efforts had a








positive impact in bringing the Vietnam War to an end -- and they


can help in nuclear arms control.


Lawyers have long been mesmerized by the intractability of


this immense problem. Yet at the same time, this nuclear threat


poses special perils to the preservation of our social -- ethical


-- and legal fabric -- and even survival as a body politic under


the Constitution.


Specifically, lawyers can help:


1. separate fact from fiction;


2. distinguish the relevant from the irrelevant;


3. negotiate peaceful resolutions of conflicting
ideas.


As a prime guardian of American society's code of conduct,


there is to lawyers no challenge more demanding, no opportunity


more significant, than to bend their collective efforts to that


task. Lawyers' abilities at negotiation, conflict resolution,


logical analysis, and persuasion will be invaluable to the


effort.








For example, a simple statement at this time that the first


use of nuclear weapons in war is illegal could be a measured


first step to achieving the goal through law. It is a step which


could be taken without delay. Even if the Soviets or other gov-


ernments are initially unwilling to take that beginning step (and


there are hopeful signs) -- lawyers in America still must try to


do something themselves. If enough lawyers in enough countries


express their feelings on the issue -- governments in time may


finally become convinced that the existing status quo simply can-


not be allowed to continue. There are limitations to what the


world will tolerate. At some point -- all governments will


listen to the opinion of lawyers if it is strong and vigorous


enough.


The very nature of a free society causes it to advance in its


standards what is deemed reasonable and right. War, particularly


nuclear war, cannot longer be deemed reasonable and right. Not


for the United States. Not for the Soviet Union. Not for all


people. International law should promptly proscribe use of nu-


-3-








clear weapons. Once that is done, there will be realistic hope


that their manufacture and deployment will in time through the


law's normal evolution also be outlawed.


In essence, the legal argument is that nuclear weaponry


places a duty upon those who wield both formal authority and ef-


fective control to ensure that multilateral action is taken to


stop production of and to destroy existing nuclear arsenals, that


government policymakers have a clear and present legal duty to


initiate and carry through negotiations with other nuclear powers


to make nuclear war illegal under international law.


Surely those who drafted the American Constitution did not


intend that government officers have the power on their own


discretion to make life itself extinct. They wrote a document


designed to endure for all ages to come and consequently to be


adapted to the various crises of human affairs. The


Constitution's purpose is set forth in the Preamble:


"To form a more perfect union, establish
justice, ensure domestic tranquility, provide
for the common defense, promote the general
welfare, and secure the blessings of liberty
to ourselves and our posterity."








Nuclear weapons, and the delicate existing balance of terror,


jeopardize each of those goals -- and nuclear war would eradicate


them. Of course, the Constitutional Preamble has never been


given substantive content; but perhaps the time has come to do so


- in the courts and in all other forums where laws are shaped or


made. At least the effort should be made.


Admittedly, the present nuclear balanced deterrence is unsa-


tisfactory except by contrast with the alternative. But the nu-


clear weapons that create the threat of total destruction cannot


be uninvented. It is a dangerous and possibly fatal illusion for


lawyers to believe that further arms racing can be in the in-


terest of any country, including our own. That way lies only


confrontation and the danger of Armageddon. Lawyers should do


their part to help through law avert that tragedy. That, my


friends, is my answer to "why lawyers", and my explanation of why


there is the "Lawyers' Alliance for Nuclear Arms Control, Inc."








SPEECHES OF CHESTERFIELD SMITH


SPEECH NUMBER 270


VOLUME XIX








REMARKS OF:


BEFORE:


CHESTERFIELD SMITH


LAWYER


HOLLAND & KNIGHT


MIAMI, FLORIDA








INDIANA CIVIL LIBERTIES UNION





THE ROLE OF AN INDEPENDENT JUDICIARY


IN A DEMOCRATIC SOCIETY





HYATT REGENCY HOTEL


INDIANAPOLIS, INDIANA





SATURDAY, NOVEMBER 1, 1986


6:30 P.M.


TITLE:


PLACE:


DATE:


TWENTY-FIVE MINUTES


LENGTH:








AMERICANS LONG HAVE REALIZED THAT AN ABSOLUTELY


INDEPENDENT FEDERAL JUDICIARY IS ESSENTIAL TO THE PRESERVATION OF


BOTH OUR REPUBLICAN FORM OF GOVERNMENT AND OUR CHERISHED


INDIVIDUAL RIGHTS. THAT JUDICIAL INDEPENDENCE IS IN A


SIGNIFICANT WAY BUTTRESSED ON THE CONTINUED DEVOTION OF OUR


PEOPLE TO EACH CONCEPT. UNDER OUR CONSTITUTIONAL SYSTEM THE


SIMPLE TRUTH IS THAT THE FUNDAMENTAL CHECK TO FEDERAL


GOVERNMENTAL POWER AND ITS POTENTIAL ABUSE HAS BEEN IS -


AND WILL BE THE FEDERAL COURTS. THE INDEPENDENCE OF THE FEDERAL


JUDICIARY FROM INTERVENTION BY OTHER GOVERNMENTAL BRANCHES IS


THUS A BASIC TENENT OF UNITED STATES DEMOCRACY. INDEED TIMES


MARKED BY POLITICAL DISSENT AND TIMES OF GOVERNMENT REPRESSION


ARE THE TURBULENT PERIODS WHEN AN INDEPENDENT FEDERAL JUDICIARY


CONSTRUING THE BILL OF RIGHTS HISTORICALLY HAS PROVEN A PRIME


CHECK ON POTENTIAL GOVERNMENTAL MISCONDUCT.


WHERE A JUDICIARY IS NOT STRUCTURALLY AND IN FACT -


INDEPENDENT FROM OTHER BRANCHES OF GOVERNMENT OR WHERE ITS


INDEPENDENCE IS NOT FORMALLY RESPECTED BY THE CITIZENRY OR


-2-








WHERE LITIGANTS BEFORE IT ARE INTIMIDATED OR PERSECUTED FOR


MERELY ATTEMPTING TO SECURE THEIR RIGHTS AND FREEDOMS THERE ARE


NO EFFECTIVE DEFENSES IN THAT JUDICIAL SYSTEM AGAINST OR


REMEDIES FOR INDIVIDUAL PROTECTION FROM GOVERNMENTAL


VIOLATIONS.


THE CONSTITUTION PROVIDES THAT FEDERAL JUDGES HOLD THEIR


OFFICES DURING GOOD BEHAVIOUR AND RECEIVE A COMPENSATION WHICH


CANNOT BE DIMINISHED DURING THEIR JUDICIAL SERVICE. UNLIKE


ELECTED OFFICIALS INDEPENDENT FEDERAL JUDGES THUS FACE NO


PERIODIC ACCOUNTING TO A CONSTITUENCY AT THE POLLS. LIFE TENURE


AND INCOME PROTECTION FOR THE JUDGES OF THOSE COURTS ENCOURAGES


RESISTANCE TO POPULAR MOODS OF THE MOMENT NOT PROPERLY EXPRESSED


IN LAW AND PROMOTES THE FIDELITY OF FEDERAL JUDGES TO THE


ENDURING VALUES EMBODIED IN OUR CONSTITUTION.


NOT SURPRISINGLY THE VERY EFFECTIVENESS OF COURTS IN


PROTECTING UNPOPULAR MINORITIES HAS OFTEN PROVOKED MAJORITY


RESENTMENT RESULTING IN PERIODIC ATTEMPTS TO CURB SO-CALLED


"GOVERNMENT BY JUDGES". THE CURRENT ASSAULTS BY THE POLITICAL








RIGHT ON FEDERAL JUDGES AND CONTINUED CONSTITUTIONAL OVERSIGHT


OF CONGRESSIONAL AND EXECUTIVE ACTS BY FEDERAL JUDGES ARE IN


FACT MERELY A CYCLICAL RECURRENCE OF POPULIST FRUSTRATION WITH


THE PREDICTABLE RESULTS OF THE AMERICAN CONSTITUTIONAL SYSTEM.


COURTS SOMETIMES ARE WRONG AND THE COURSE OF LATER EVENTS


DEMONSTRATES THAT ONE OR MORE PRIOR DECISIONS SHOULD BE MODIFIED


OR OVERRULED. SO IT IS PROPER THAT EXECUTIVE AND CONGRESSIONAL


OFFICIALS LIKE ALL OF US CAN AND SHOULD FREELY CRITICIZE


THE COURTS CAN AND SHOULD URGE THE COURTS TO OVERRULE OR REFINE


PRIOR CONSTITUTIONAL DECISIONS AS THEY AND WE HAVE OFTEN


DONE. THAT CRITICISM OF VIGOROUS JUDICIAL PROTECTION OF


INDIVIDUAL RIGHTS AND RESPONSIBILITIES MUST BE CONSTRUCTIVE IN


TENOR AND TONE BUT IT USUALLY IS NOT. INDEED THAT CRITICISM


HAS MOST OFTEN BEEN ONLY A BLATANT ATTEMPT BY POLITICIANS -


LIBERAL AND CONSERVATIVE TO SHIFT THE POWER TO DEFINE THOSE


RIGHTS FROM INSULATED JUDGES TO MEMBERS OF CONGRESS AND OTHER


OFFICIALS WHO ARE SUBJECT TO POLITICAL PRESSURES.








FEDERAL JUDGES DO GET INVOLVED IN DECREEING DRASTIC


REMEDIES AGAINST THE GOVERNMENT IN TOUGH AREAS. GENERALLY THE


FEDERAL JUDGE BEGINS BY ONLY HOLDING WHAT THE GOVERNMENT CANNOT


DO THE FEDERAL JUDGE DOES NOT POINT OUT WHAT GOVERNMENT CAN DO.


SOMETIMES THAT IS ENOUGH. BUT MORE OFTEN THE GOVERNMENT THEN


DOES NOTHING AND THE ONLY JUDICIAL ALTERNATIVE THEN IS FOR A


COURT DECREED RESOLUTION. UNDER SUCH CIRCUMSTANCES THE ANSWER


TO SUCH JUDICIAL ACTIVISM MOST CERTAINLY IS NOT TO CLOSE THE DOOR


TO THE FEDERAL COURTHOUSE. IT IS TO MAKE THOSE OTHER FEDERAL


GOVERNMENTAL INSTITUTIONS DO RIGHT AND DO RIGHT


CONSTITUTIONALLY WITHOUT UNDUE SYMPATHY TO POPULAR DESIRE.


WHILE THE PROHIBITION OF UNCONSTITUTIONAL BEHAVIOR BY A


FEDERAL COURT STILL IS REASONABLY CLEAR-CUT THE CONSTRUCTION OF


POLITICALLY FEASIBLE REMEDIES IS NOT. THE DE FACTO SEGREGATION


OF PUBLIC SCHOOLS EASILY CAN BE DECLARED A VIOLATION BUT WHAT


IS TO BE DONE ABOUT IT? THE SOLUTIONS HAVE NOT PROVED TO BE AS


STRAIGHTFORWARD AS THOSE FOR DE JURE SEGREGATION.








CAN A FEDERAL JUDGE WHO CONCLUDES IN A PARTICULAR CASE


THAT FUNDAMENTALISTS HAVE A CONSTITUTIONAL RIGHT TO PUBLIC SCHOOL


TEXTBOOKS THAT DON'T OFFEND THEIR RELIGIOUS BELIEFS DEVISE A


REMEDY CONSTITUTIONALLY FAIR TO ALL OTHERS? I PERSONALLY DOUBT


THAT THE WISEST JUDGE CAN REMEDY SECULAR HUMANISM IF IT IS


FOUND TO EXIST IN PUBLIC SCHOOLS FOR THOSE FUNDAMENTALISTS


WITHOUT INFRINGING ON THE RELIGIOUS FREEDOM OF OTHERS. OR TAKE


THE CASE OF RACIAL OR GENDER DISCRIMINATION IN EMPLOYMENT! EVEN


IF COURTS DETERMINE WHAT CONSTITUTES PROOF OF SUCH CONSTITUTIONAL


VIOLATIONS HOW DO THEY REMEDY THE PROBLEM WITHOUT HARMING THOSE


WHO DO NOT SUFFER THAT DISCRIMINATION? QUESTIONS LIKE THOSE OF


COURSE GIVE RISE TO OUR AWAKENING RECOGNITION THAT IN THE


EXTENSION OF CIVIL LIBERTIES ONE PERSON'S GAIN IS USUALLY ANOTHER


PERSON'S LOSS. FOR IN RELIGION EMPLOYMENT OR SCHOOLING IN


MOST OTHER CONSTITUTIONALLY CONTESTED AREAS ONE PERSON'S FAIR


REMEDY SEEMS VERY MUCH LIKE ANOTHER PERSON'S UNFAIR DEPRIVATION.


IF THERE ARE INFINITE NUMBERS OF FACTORY JOBS OR PLACES IN


MEDICAL SCHOOL THEN AFFIRMATIVE ACTION WORKS NO HARM IN THE








LONG RUN. BUT IN THE CONTEXT OF LIMITED SOCIAL RESOURCES -


AFFIRMATIVE ACTION IS UNDERSTANDABLY THREATENING TO ESTABLISHED


SOCIAL GROUPS. THESE FACTORS EMPHASIZE THE DIFFICULTY OF


CREATING SOCIALLY AND POLITICALLY ACCEPTABLE REMEDIAL TECHNIQUES.


INDEED THERE IS JUST SO FAR THAT FEDERAL COURTS CAN GO IN


CONSTITUTIONALIZING EQUALITY. "OPTING IN" OR "OPTING OUT" DOES


JUST SO MUCH GOOD SOME STILL ARE CONSTITUTIONALLY TREATED


DIFFERENTLY FROM OTHERS.


TAKEN AS A WHOLE RECENT POLITICAL ATTACKS ON JUDICIAL


DECISIONS WHILE VERY ANNOYING TO THOSE WHO CHERISH JUDICIAL


INDEPENDENCE HAVE NOT FARED WELL WITH THE GENERAL POPULACE.


ATTEMPTS TO SECURE CONGRESSIONAL MODIFICATION OF FEDERAL COURT


DECISIONS AFFECTING INDIVIDUAL LIBERTIES HAVE BEEN UNSUCCESSFUL.


ATTEMPTS TO LIMIT SUBJECT-MATTER FEDERAL JURISDICTION HAVE BEEN


UNSUCCESSFUL. ATTEMPTS TO LIMIT A FEDERAL JUDGE'S REMEDIAL


POWERS HAVE BEEN UNSUCCESSFUL. ATTEMPTS TO ABOLISH LEGAL


SERVICES PROGRAMS FOR THE POOR AND TO CUT OFF THE SHIFTING OF


ATTORNEYS' FEES IN CONSTITUTIONAL RIGHTS CASES HAVE THUS FAR


-7-








- BEEN UNSUCCESSFUL. ATTEMPTS TO ROLL BACK THE RULES ON


"STANDING" HAVE BEEN UNSUCCESSFUL. OPPONENTS OF THE FEDERAL


JUDICIAL SYSTEM HAVE SIMPLY NOT SUCCEEDED IN MAKING MUCH OF A


DENT IN THAT SYSTEM AND TO ME THAT AUGURS WELL FOR THE VITALITY


OF BOTH THE REPUBLIC AND THE INDIVIDUAL RIGHTS OF ITS CITIZENS.


HAPPILY SUPREME COURT DECISIONS STILL ARE "THE LAW OF THE


LAND".


CONTINUED VITALITY OF THE FEDERAL JUDICIAL SYSTEM -


HOWEVER CANNOT BE TAKEN FOR GRANTED. THERE IS NO DOUBT THAT


MASSIVE ATTEMPTS TO SHIFT THE POWER TO ARTICULATE AND ENFORCE


INDIVIDUAL RIGHTS FROM INSULATED AND THEREFORE INDEPENDENT -


FEDERAL JUDGES TO OFFICIALS MORE SUBJECT TO PRESSURE BY THE


POLITICALLY POWERFUL WILL CONTINUE. WITNESS THE CALCULATED


ASSAULT PRESENTLY UNDERWAY BY THE ATTORNEY-GENERAL OF THE UNITED


STATES ON THE ROLE OF FEDERAL JUDGES AS THE BALANCE WHEEL IN THE


AMERICAN SYSTEM.


WHEN THAT ASSAULT AND THE INEVITABLE OTHERS COME -


AS THEY HAVE AND WILL THEY TOO WILL BE MET BECAUSE MOST


-8-








AMERICANS NOW UNDEVIATINGLY ACCEPT THAT FEDERAL JUDICIAL


OVERSIGHT OF EXECUTIVE AND CONGRESSIONAL ACTION IS BY NOW A


FUNDAMENTAL ASPECT OF OUR CONSTITUTIONAL STRUCTURE. TO ARGUE


THAT ONE OWES NO RESPECT TO A COURT DECISION UNLESS THAT PERSON


WAS ACTUALLY A LITIGANT IN THE CASE IS SIMPLY TO INVITE NATIONAL


ANARCHY.


OF COURSE A FEDERAL JUDGE HAS NO SPECIFIC AUTHORITY TO


OVERRULE DECISIONS OF THE PRESIDENT THE CONGRESS OR LOCAL


OFFICIALS ABOUT THE MEANING OF THE CONSTITUTION. FEDERAL


JUDICIAL POWER TO DEFINE AND PROTECT INDIVIDUAL RIGHTS FLOWS -


INSTEAD FROM THE TASK OF RESOLVING DISPUTES BETWEEN CONTESTING


PARTIES A POWER IMPOSED ON THOSE JUDGES BY CONGRESS. IN


CARRYING OUT THAT ASSIGNMENT A FEDERAL JUDGE IS FORCED TO


SELECT THE GOVERNING RULE OF LAW FROM AMONG A NUMBER OF POSSIBLE


SOURCES INVARIABLY URGED UPON THAT JUDGE BY THE CONTESTING


PARTIES. SINCE LITIGANTS WILL OFTEN POINT TO DIFFERENT SOURCES -


A FEDERAL JUDGE MUST USE A RANKING SYSTEM TO DECIDE WHICH LAW


TAKES PRECEDENCE. THE RANKING RULES ARE SIMPLE AND ARE


-9-








DICTATED BY ELEMENTARY POLITICAL THEORY: JUDGE-MADE COMMON LAW


RULES MUST GIVE WAY TO VALID ADMINISTRATIVE REGULATIONS WHICH


IN TURN ARE OUTWEIGHED BY STATUTES WHICH MAY THEMSELVES BE


OVERRIDDEN BY THE CONSTITUTION. IT IS IN THE INEVITABLE PROCESS


OF DECIDING WHETHER THE RULE OF LAW ASSERTED BY ONE CONTESTING


PARTY OFTEN THE GOVERNMENT INVOKING A STATUTE OR AN


ADMINISTRATIVE REGULATION CONFLICTS WITH A HIGHER-RANKING RULE


OF LAW ASSERTED BY ANOTHER CONTESTING PARTY OFTEN AN AGGRIEVED


INDIVIDUAL INVOKING THE CONSTITUTION THAT FEDERAL JUDGES MAP


THE PRECISE SCOPE OF INDIVIDUAL RIGHTS IN OUR SCHEME OF


GOVERNMENT. THE ARTICULATION OF AN INDIVIDUAL RIGHT BY A FEDERAL


JUDGE IS AN ALMOST INCIDENTAL BY-PRODUCT OF THAT FEDERAL JUDGE'S


PRIMARY JOB OF RESOLVING ACTUAL DISPUTES BETWEEN A PERSON AND HIS


OR HER GOVERNMENT OR BETWEEN A PERSON AND HER OR HIS NEIGHBOR -


ALL OF WHICH DISPUTES WERE BY CONGRESSIONAL ACT REFERRED FOR


RESOLUTION TO THAT JUDGE.


SINCE FEDERAL JUDICIAL REVIEW OF CONGRESSIONAL OR


EXECUTIVE ACTION IN PART DEPENDS UPON JUDICIAL CHOICE AND


-10-








DISCRETION IT IS IMPORTANT THAT ITS SUPPORTERS NOT ATTEMPT TO


DEFEND IT ON OTHER INDEFENSIBLE GROUNDS. MOST FEDERAL JUDGES


COUCH THEIR DECISIONS AS THOUGH THEY ANNOUNCE THE ONLY CORRECT


RESULT YET ANY THINKING PERSON KNOWS THAT ALWAYS THERE ARE


CHOICES. UNDERSTANDABLY SUPPORTERS OF FEDERAL JUDICIAL REVIEW


OF GOVERNMENTAL ACTS OFTEN ARGUE THAT THE JUDGES MERELY DISCOVER


THE LAW THAT THEY DON'T MAKE IT. SUCH A DEFENSE IS HOWEVER -


UNPERSUASIVE ILLOGICAL AND UNTRUE. OF COURSE FEDERAL JUDGES


MAKE LAW IN CONSTITUTIONAL CASES AND EVERYONE KNOWS IT.


FEDERAL JUDGES DO DEFINE AND ENFORCE INDIVIDUAL RIGHTS AND


RESPONSIBILITIES NOT BECAUSE NO REAL CHOICES ARE NECESSARY -


BUT PRECISELY BECAUSE HARD CHOICES CANNOT BE AVOIDED AND THOSE


CHOICES SHOULD NOT AND CANNOT BE ENTRUSTED TO POLITICALLY


VULNERABLE OFFICIALS WHO MOST OFTEN SIMPLY REFUSE TO MAKE THEM.


IN THE MAIN THE FEDERAL COURTS HAVE PERFORMED WELL.


OUR BLINDFOLDED FIGURE HOLDING THE SCALES OF JUSTICE HAS BEEN


WORLDWIDE BOTH A SYMBOL AND A REALITY. THE FEDERAL COURTS HAVE


ACHIEVED SUCCESS WHERE THE OTHER FEDERAL INSTITUTIONS HAVE NOT -


-11-








SUCCESS AS SEEN BY THE NEGLECTED AND IGNORED AND THE POOR AND


THE WEAK AS BEING A MEANINGFUL VEHICLE FOR ACHIEVING DESIRABLE


SOCIAL CHANGE AS PROTECTING FREEDOM.


THAT VERY SUCCESS HAS CREATED A LARGE PROBLEM: AS


RELIANCE UPON THE FEDERAL COURTS HAS INCREASED THERE HAS BEEN A


CONCOMMITANT DECREASE IN THE INSTITUTIONAL PUBLIC SUPPORT OF THE


OTHER BRANCHES OF THE FEDERAL GOVERNMENT. A POLICY DECISION THAT


IS NOT DIRECTED BY A STRONG NATIONAL CITIZENS CONSENSUS IS MOST


OFTEN DEFAULTED BY THE ENTIRE NATIONAL GOVERNMENT EXCEPT THE


FEDERAL COURTS AND RESPONSIBLE FEDERAL JUDGES ALONE MUST ACT IF


INDIVIDUAL RIGHTS ARE TO BE GOVERNMENTALLY ENHANCED AND


PRESERVED.


SINCE INDIVIDUAL RIGHTS ARE RARELY SELF-DEFINING AND ARE


NEVER SELF-ENFORCING ANY POLITICAL SYSTEM WHICH INTENDS TO


RECOGNIZE THOSE RIGHTS ALWAYS MUST MAKE A FUNDAMENTAL CHOICE


ABOUT WHO IS TO DEFINE AND ENFORCE THEM. MANY SOCIETIES HAVE


CHOSEN TO GIVE POLITICALLY SENSITIVE LEGISLATORS OR


ADMINISTRATORS THE LAST WORD IN DECIDING THEIR SCOPE. AMERICA -


-12-








ON THE OTHER HAND WISELY HAS CHOSEN TO GIVE PRECISE MEANING TO


THE CONCEPT OF INDIVIDUAL RIGHTS BY USING INSULATED FEDERAL


JUDGES TO CONSTRUE A PURPOSEFULLY AMBIGUOUS AND EVOLVING DOCUMENT


CALLED A CONSTITUTION.


USING INSULATED JUDGES INSTEAD OF MEMBERS OF CONGRESS TO


DEFINE AND ENFORCE INDIVIDUAL RIGHTS HAS ONE IMPORTANT PRACTICAL


ADVANTAGE AND ONE OBVIOUS THEORETICAL DRAWBACK. ON THE PLUS SIDE


WHEN THE ISSUE IS WHETHER AN INDIVIDUAL POSSESSES A RIGHT TO DO


AS HE OR SHE WISHES REGARDLESS OF THE DESIRES OF THOSE THEN


RUNNING THE GOVERNMENT IT DOESN'T MAKE MUCH FUNCTIONAL SENSE TO


ALLOW THOSE OFFICIALS TO DECIDE THE QUESTION. CLOSE CASES UNDER


SUCH AN ARRANGEMENT IN OTHER COUNTRIES ARE ALMOST ALWAYS RESOLVED


AGAINST THE INDIVIDUAL AND IN FAVOR OF THE POLITICALLY


POWERFUL. ALLOWING FEDERAL JUDGES WHO ARE RELATIVELY INSULATED


FROM PUBLIC OPINION TO DEFINE THE SCOPE OF INDIVIDUAL RIGHTS IS


THUS FAR MORE LIKELY TO RESULT IN THE SUSTAINED AND VIGOROUS


ENUNCIATION OF SUCH RIGHTS THAN A SYSTEM WHICH RELEGATES THE TASK


TO THOSE SELECTED BY THE POLITICALLY POWERFUL.


-13-








ON THE MINUS SIDE EVEN FEDERAL JUDGES APPOINTED FOR


LIFE ARE NOT WITHOUT A DEMOCRATIC IMPRIMATUR. THEY ARE GENERALLY


DRAWN FROM THE POLITICAL WORLD THEY ARE APPOINTED BY THE


POLITICALLY-ELECTED PRESIDENT AND THEY MUST BE CONFIRMED BY THE


POLITICALLY-ELECTED SENATE. MOST PRESIDENTS HAVE SOUGHT


PROMINENT EXPERIENCED LAWYERS FOR JUDICIAL APPOINTMENT EITHER


THROUGH THEIR OWN SEARCH PROCESS OR THROUGH SENATORIAL PROPOSALS.


CANDIDATES TRADITIONALLY HAVE BEEN EVALUATED ONLY FOR LEGAL


COMPETENCE INTEGRITY SCHOLARSHIP AND JUDICIAL TEMPERAMENT -


NOT FOR PREDETERMINED PARTISANSHIP. POLITICAL AFFILIATION


PROPERLY HAS PROVIDED A SOURCE OF RECOGNITION NOT A COLORATION


TEST FOR PHILOSOPHICAL ORTHODOXY. OVER TIME THIS PATTERN HAS


CREATED AGAIN AND AGAIN A FEDERAL JUDICIARY RICH IN DIVERSITY


AND EXPERIENCE.


BUT THE VERY REAL POSSIBILITY OF POLITICAL INTERVENTION


STILL EXISTS. PRESIDENT REAGAN HAS HAD OR WILL HAVE THE


PRIVILEGE OF APPOINTING FULLY HALF OF THE NATION'S FEDERAL


JUDGES. THE AMERICAN PEOPLE HAVE A RIGHT TO INSIST THAT IN


-14-








MAKING THOSE APPOINTMENTS HE TOO STRIVE FOR CANDIDATES OF THE


HIGHEST QUALITY EVEN THOUGH SOME OF HIS PRESIDENTIAL


PREDECESSORS HAVE DEVIATED FROM THAT STANDARD. THE JUSTICE


DEPARTMENT THEORETICALLY SHOULD OFFER THE PRESIDENT ONLY PEOPLE


WHO HAVE THE BREADTH OF MIND AND THE DIVERSITY OF EXPERIENCE TO


EQUIP THEM TO ADMINISTER JUSTICE IN THIS EVER MORE COMPLEX WORLD


- REFLECTIVE AND SCHOLARLY WOMEN OR MEN WHO HONOR AND CHERISH OUR


WAY OF LIFE BUT OFTIMES THE DEPARTMENT APPEARS STRONGLY TO


EMPHASIZE OTHER CRITERIA. INDEED PRESIDENT REAGAN APPEARS TO


ACCEPT FROM HIS ADVISORS ONLY CANDIDATES WHO FIT THE MOST RIGID


AND STAGNANT STEROTYPE OF "CONSERVATISM". CREDO APPEARS TO BE


MORE IMPORTANT TO HIM THAN TALENT EXPERIENCE AND INTELLECTUAL


CAPACITY. IF SO THAT IS WRONG JUST AS IT WAS WRONG FOR PRIOR


PRESIDENTS TO SEEK OUT THOSE DEVOTED ONLY TO "LIBERALISM". IF


SUCH PRACTICES EXIST AND REMAIN UNCHECKED FOR A SUBSTANTIAL


PERIOD THE INTELLECTUAL INTEGRITY DIVERSITY AND


INDEPENDENCE SO VITAL TO THE FEDERAL JUDICIARY IN FUTURE YEARS


UNDOUBTEDLY WILL BE CHILLED AND DIMINISHED.


-15-








QUITE OBVIOUSLY THE BUSINESS OF THE FEDERAL COURTS


SHOULD BE GREATLY EXPANDED TO PROTECT AND EXTEND BOTH ECONOMIC


AND CIVIL RIGHTS. FOR NEARLY TWO HUNDRED YEARS OF THIS NATION'S


HISTORY FEW BLACKS HISPANICS OR ASIAN-AMERICANS TO NAME


ONLY A FEW OF THE VICTIMS OF OPPRESSION WOULD HAVE THOUGHT OF


TAKING THEIR CLAIMS TO FEDERAL COURT. THEY KNEW THEY WOULD


RECEIVE NO HEARING THERE.. BUT TODAY THE EXPECTATIONS OF THE


DISADVANTAGED AS WELL AS THE SENSITIVITY OF OUR SOCIETY TO


THEIR PLIGHT HAS BEEN HEIGHTENED. EVERYONE THINKS OF THE


FEDERAL COURTS AS PROTECTOR. BUT IN MANY COUNTRIES JUDGES ARE


NO MORE THAN INSTRUMENTS OF THOSE WHO HOLD POLITICAL POWER. IN


AMERICA OUR PEOPLE EXPECT COURTS TO BE A CHECK ON THAT POWER -


AND THEY TRADITIONALLY HAVE BEEN. TO CHANGE NOW SIMPLY WOULD


TURN OUR FEDERAL COURTS INTO PEOPLES COURTS COURTS OF POPULAR


WILL COURTS WHO ADMITTEDLY FOLLOW ELECTION RETURNS COURTS WHO


RESPOND FREELY TO TRANSITORY MAJORITIES ALL OF WHICH WOULD BE


AN ANATHEMA TO HISTORICAL AMERICAN CULTURE.


-16-








THE FEDERAL JUDICIARY TO ACHIEVE MAXIMUM PUBLIC


ENDORSEMENT MUST BE EVER MORE DIVERSE IN ETHNIC ORIGIN AND


POLITICAL VIEWS SO AFFIRMATIVE ACTION PROGRAMS IN JUDICIAL


APPOINTMENTS ARE INDEED REQUIRED FROM THE PRESIDENT NOW TO MAKE


THE FEDERAL JUDICIARY MORE REPRESENTATIVE OF THE POPULATION.


WOMEN TOO MUST PLAY AN IMPORTANT ROLE DEMANDING AND RECEIVING


EQUAL REPRESENTATION.


ADMITTEDLY THE VERY EFFECTIVENESS OF AN INSULATED


FEDERAL JUDGE AS A ONE-PERSON GENERATOR OF INDIVIDUAL RIGHTS IS


IN TENSION WITH OUR DEEPLY FELT RESPECT FOR DEMOCRATIC DECISION


MAKING AND OUR NATIONAL COMMITMENT TO MAJORITY RULE. A GREAT


DEAL OF THAT TENSION COULD BE RELIEVED BY THE RECOGNITION BY MOST


AMERICANS THAT SOME OF WHAT PASSES FOR MAJORITY RULE AT ANY ONE


TIME IN ANY DEMOCRACY IS IN FACT ONE TRANSIENT MINORITY OR


ANOTHER WHICH HAS MANAGED TO ATTAIN TEMPORARY POLITICAL


ASCENDANCY. TODAY NEVER MATCHES TOMORROW IN THE ATTAINMENT OF


INDIVIDUAL LIBERTY AND FREEDOM AND IT WILL NOT. ALLOWING


FEDERAL JUDGES TO CHECK SUCH A POWERFUL TRANSIENT MINORITY IN THE


-17-








NAME OF AN EXISTING CONSENSUS CONCERNING INDIVIDUAL RIGHTS IS


THUS HARDLY A SERIOUS LONG-RANGE CHALLENGE TO DEMOCRATIC


POLITICAL THEORY. INDEED IT IS THE KIND OF EXCEPTION THAT


GIVES LASTING VALIDITY TO MAJORITY RULE. THERE SHOULD BE NO


POPULAR POSITION NO PERMANENT MAJORITY WILL IN CONSTITUTIONAL


OVERSIGHT BY INDEPENDENT FEDERAL JUDGES. AMERICANS SHOULD NEVER


CONDONE A "LITMUS TEST" ON JUDICIAL CANDIDATES BY APPOINTING


AUTHORITIES IN THE SENSE THAT THOSE CANDIDATES FOR SELECTION HAVE


TO BE ON ONE SIDE OR THE OTHER OF PARTICULAR CONSTITUTIONAL


ISSUES. THE CONSTITUTION ASSURES FEDERAL JUDGES THAT THEY ARE


ABOVE THE POLITICAL FRAY AND WAY ABOVE REMOTE AND FREE FROM


A TEMPORARY MAJORITY. FEDERAL JUDGES CAN NEVER BE RESPONSIVE TO


A PARTICULAR QUADRENNIAL ELECTION TO A SO-CALLED POLITICAL


MANDATE AS IS NOW OFTEN CLAIMED TO EXIST IN CHOSEN AREAS.


PRESIDENTIAL ELECTIONS ARE NOT REFERENDUMS ON THE ADMINISTRATION


OF FEDERAL JUSTICE NOR IN MY OPINION DO THEY LICENSE ANY


PRESIDENT OR SENATE TO RESHAPE THE CONSTITUTIONAL JUSTICE


SYSTEM BY CREATING A MONOLITHIC FEDERAL JUDICIARY.


-18-








IN ANY EVENT WHATEVER THE PRESENT POLITICAL


DIFFICULTIES FEDERAL JUDICIAL INTERPRETATION OF THE


CONSTITUTION HAS IN THE PAST THIRTY YEARS FUNCTIONED AS A


POWERFUL GENERATOR OF INDIVIDUAL RIGHTS. REVIEW OF CONGRESSIONAL


AND EXECUTIVE ACTIONS AGAINST CONSTITUTIONAL MINIMUMS IN FEDERAL


COURTS BY INDEPENDENT AND POLITICALLY INSULATED JUDGES IN THOSE


YEARS HAS RESULTED IN THE SUSTAINED ARTICULATION AND ENFORCEMENT


OF MANY THERETOFORE UNACCEPTED INDIVIDUAL RIGHTS AND


RESPONSIBILITIES THE RECOGNITION OF WHICH WOULD HAVE BEEN


INCONCEIVABLE HAD THE FEDERAL COURTS LEFT THE TASK TO THE THEN


POLITICAL MAJORITY.


SO TO ME AN INDEPENDENT IMPARTIAL FEDERAL


JUDICIARY CLEARLY IS AND REMAINS THE BULWARK AND GREATEST


HOPE OF CONTINUED FREEDOM FOR THOSE TEMPORARILY OR PERMANENTLY


OUT OF GOVERNMENTAL POWER. SO IT IS SO IT HAS BEEN AND SO IT


WILL BE OR AMERICA WILL NOT BE THE AMERICA WE HAVE KNOWN.




(THE END)


-19-








REMARKS OF:


BEFORE:


CHESTERFIELD SMITH


LAWYER


HOLLAND & KNIGHT


MIAMI, FLORIDA








INDIANA CIVIL LIBERTIES UNION





THE ROLE OF AN INDEPENDENT JUDICIARY


IN A DEMOCRATIC SOCIETY





HYATT REGENCY HOTEL


INDIANAPOLIS, INDIANA





SATURDAY, NOVEMBER 1, 1986


6:30 P.M.


TITLE:


PLACE:


DATE:


TWENTY-FIVE MINUTES


LENGTH:








AMERICANS LONG HAVE REALIZED THAT AN ABSOLUTELY


INDEPENDENT FEDERAL JUDICIARY IS ESSENTIAL TO THE PRESERVATION OF


BOTH OUR REPUBLICAN FORM OF GOVERNMENT AND OUR CHERISHED


INDIVIDUAL RIGHTS. THAT JUDICIAL INDEPENDENCE IS IN A


SIGNIFICANT WAY BUTTRESSED ON THE CONTINUED DEVOTION OF OUR


PEOPLE TO EACH CONCEPT. UNDER OUR CONSTITUTIONAL SYSTEM THE


SIMPLE TRUTH IS THAT THE FUNDAMENTAL CHECK TO FEDERAL


GOVERNMENTAL POWER AND ITS POTENTIAL ABUSE HAS BEEN IS -


AND WILL BE THE FEDERAL COURTS. THE INDEPENDENCE OF THE FEDERAL


JUDICIARY FROM INTERVENTION BY OTHER GOVERNMENTAL BRANCHES IS


THUS A BASIC TENENT OF UNITED STATES DEMOCRACY. INDEED TIMES


MARKED BY POLITICAL DISSENT AND TIMES OF GOVERNMENT REPRESSION


ARE THE TURBULENT PERIODS WHEN AN INDEPENDENT FEDERAL JUDICIARY


CONSTRUING THE BILL OF RIGHTS HISTORICALLY HAS PROVEN A PRIME


CHECK ON POTENTIAL GOVERNMENTAL MISCONDUCT.


WHERE A JUDICIARY IS NOT STRUCTURALLY AND IN FACT -


INDEPENDENT FROM OTHER BRANCHES OF GOVERNMENT OR WHERE ITS


INDEPENDENCE IS NOT FORMALLY RESPECTED BY THE CITIZENRY OR








WHERE LITIGANTS BEFORE IT ARE INTIMIDATED OR PERSECUTED FOR


MERELY ATTEMPTING TO SECURE THEIR RIGHTS AND FREEDOMS THERE ARE


NO EFFECTIVE DEFENSES IN THAT JUDICIAL SYSTEM AGAINST OR


REMEDIES FOR INDIVIDUAL PROTECTION FROM GOVERNMENTAL


VIOLATIONS.


THE CONSTITUTION PROVIDES THAT FEDERAL JUDGES HOLD THEIR


OFFICES DURING GOOD BEHAVIOUR AND RECEIVE A COMPENSATION WHICH


CANNOT BE DIMINISHED DURING THEIR JUDICIAL SERVICE. UNLIKE


ELECTED OFFICIALS INDEPENDENT FEDERAL JUDGES THUS FACE NO


PERIODIC ACCOUNTING TO A CONSTITUENCY AT THE POLLS. LIFE TENURE


AND INCOME PROTECTION FOR THE JUDGES OF THOSE COURTS ENCOURAGES


RESISTANCE TO POPULAR MOODS OF THE MOMENT NOT PROPERLY EXPRESSED


IN LAW AND PROMOTES THE FIDELITY OF FEDERAL JUDGES TO THE


ENDURING VALUES EMBODIED IN OUR CONSTITUTION.


NOT SURPRISINGLY THE VERY EFFECTIVENESS OF COURTS IN


PROTECTING UNPOPULAR MINORITIES HAS OFTEN PROVOKED MAJORITY


RESENTMENT RESULTING IN PERIODIC ATTEMPTS TO CURB SO-CALLED


"GOVERNMENT BY JUDGES". THE CURRENT ASSAULTS BY THE POLITICAL


-3-








RIGHT ON FEDERAL JUDGES AND CONTINUED CONSTITUTIONAL OVERSIGHT


OF CONGRESSIONAL AND EXECUTIVE ACTS BY FEDERAL JUDGES ARE IN


FACT MERELY A CYCLICAL RECURRENCE OF POPULIST FRUSTRATION WITH


THE PREDICTABLE RESULTS OF THE AMERICAN CONSTITUTIONAL SYSTEM.


COURTS SOMETIMES ARE WRONG AND THE COURSE OF LATER EVENTS


DEMONSTRATES THAT ONE OR MORE PRIOR DECISIONS SHOULD BE MODIFIED


OR OVERRULED. SO IT IS PROPER THAT EXECUTIVE AND CONGRESSIONAL


OFFICIALS LIKE ALL OF US CAN AND SHOULD FREELY CRITICIZE


THE COURTS CAN AND SHOULD URGE THE COURTS TO OVERRULE OR REFINE


PRIOR CONSTITUTIONAL DECISIONS AS THEY AND WE HAVE OFTEN


DONE. THAT CRITICISM OF VIGOROUS JUDICIAL PROTECTION OF


INDIVIDUAL RIGHTS AND RESPONSIBILITIES MUST BE CONSTRUCTIVE IN


TENOR AND TONE BUT IT USUALLY IS NOT. INDEED THAT CRITICISM


HAS MOST OFTEN BEEN ONLY A BLATANT ATTEMPT BY POLITICIANS -


LIBERAL AND CONSERVATIVE TO SHIFT THE POWER TO DEFINE THOSE


RIGHTS FROM INSULATED JUDGES TO MEMBERS OF CONGRESS AND OTHER


OFFICIALS WHO ARE SUBJECT TO POLITICAL PRESSURES.


-4-








FEDERAL JUDGES DO GET INVOLVED IN DECREEING DRASTIC


REMEDIES AGAINST THE GOVERNMENT IN TOUGH AREAS. GENERALLY THE


FEDERAL JUDGE BEGINS BY ONLY HOLDING WHAT THE GOVERNMENT CANNOT


DO THE FEDERAL JUDGE DOES NOT POINT OUT WHAT GOVERNMENT CAN DO.


SOMETIMES THAT IS ENOUGH. BUT MORE OFTEN THE GOVERNMENT THEN


DOES NOTHING AND THE ONLY JUDICIAL ALTERNATIVE THEN IS FOR A


COURT DECREED RESOLUTION. UNDER SUCH CIRCUMSTANCES THE ANSWER


TO SUCH JUDICIAL ACTIVISM MOST CERTAINLY IS NOT TO CLOSE THE DOOR


TO THE FEDERAL COURTHOUSE. IT IS TO MAKE THOSE OTHER FEDERAL


GOVERNMENTAL INSTITUTIONS DO RIGHT AND DO RIGHT


CONSTITUTIONALLY WITHOUT UNDUE SYMPATHY TO POPULAR DESIRE.


WHILE THE PROHIBITION OF UNCONSTITUTIONAL BEHAVIOR BY A


FEDERAL COURT STILL IS REASONABLY CLEAR-CUT THE CONSTRUCTION OF


POLITICALLY FEASIBLE REMEDIES IS NOT. THE DE FACTO SEGREGATION


OF PUBLIC SCHOOLS EASILY CAN BE DECLARED A VIOLATION BUT WHAT


IS TO BE DONE ABOUT IT? THE SOLUTIONS HAVE NOT PROVED TO BE AS


STRAIGHTFORWARD AS THOSE FOR DE JURE SEGREGATION.


-5-








CAN A FEDERAL JUDGE WHO CONCLUDES IN A PARTICULAR CASE


THAT FUNDAMENTALISTS HAVE A CONSTITUTIONAL RIGHT TO PUBLIC SCHOOL


TEXTBOOKS THAT DON'T OFFEND THEIR RELIGIOUS BELIEFS DEVISE A


REMEDY CONSTITUTIONALLY FAIR TO ALL OTHERS? I PERSONALLY DOUBT


THAT THE WISEST JUDGE CAN REMEDY SECULAR HUMANISM IF IT IS


FOUND TO EXIST IN PUBLIC SCHOOLS FOR THOSE FUNDAMENTALISTS


WITHOUT INFRINGING ON THE RELIGIOUS FREEDOM OF OTHERS. OR TAKE


THE CASE OF RACIAL OR GENDER DISCRIMINATION IN EMPLOYMENT! EVEN


IF COURTS DETERMINE WHAT CONSTITUTES PROOF OF SUCH CONSTITUTIONAL


VIOLATIONS HOW DO THEY REMEDY THE PROBLEM WITHOUT HARMING THOSE


WHO DO NOT SUFFER THAT DISCRIMINATION? QUESTIONS LIKE THOSE OF


COURSE GIVE RISE TO OUR AWAKENING RECOGNITION THAT IN THE


EXTENSION OF CIVIL LIBERTIES ONE PERSON'S GAIN IS USUALLY ANOTHER


PERSON'S LOSS. FOR IN RELIGION EMPLOYMENT OR SCHOOLING IN


MOST OTHER CONSTITUTIONALLY CONTESTED AREAS ONE PERSON'S FAIR


REMEDY SEEMS VERY MUCH LIKE ANOTHER PERSON'S UNFAIR DEPRIVATION.


IF THERE ARE INFINITE NUMBERS OF FACTORY JOBS OR PLACES IN


MEDICAL SCHOOL THEN AFFIRMATIVE ACTION WORKS NO HARM IN THE


-6-








LONG RUN. BUT IN THE CONTEXT OF LIMITED SOCIAL RESOURCES -


AFFIRMATIVE ACTION IS UNDERSTANDABLY THREATENING TO ESTABLISHED


SOCIAL GROUPS. THESE FACTORS EMPHASIZE THE DIFFICULTY OF


CREATING SOCIALLY AND POLITICALLY ACCEPTABLE REMEDIAL TECHNIQUES.


INDEED THERE IS JUST SO FAR THAT FEDERAL COURTS CAN GO IN


CONSTITUTIONALIZING EQUALITY. "OPTING IN" OR "OPTING OUT" DOES


JUST SO MUCH GOOD SOME STILL ARE CONSTITUTIONALLY TREATED


DIFFERENTLY FROM OTHERS.


TAKEN AS A WHOLE RECENT POLITICAL ATTACKS ON JUDICIAL


DECISIONS WHILE VERY ANNOYING TO THOSE WHO CHERISH JUDICIAL


INDEPENDENCE HAVE NOT FARED WELL WITH THE GENERAL POPULACE.


ATTEMPTS TO SECURE CONGRESSIONAL MODIFICATION OF FEDERAL COURT


DECISIONS AFFECTING INDIVIDUAL LIBERTIES HAVE BEEN UNSUCCESSFUL.


ATTEMPTS TO LIMIT SUBJECT-MATTER FEDERAL JURISDICTION HAVE BEEN


UNSUCCESSFUL. ATTEMPTS TO LIMIT A FEDERAL JUDGE'S REMEDIAL


POWERS HAVE BEEN UNSUCCESSFUL. ATTEMPTS TO ABOLISH LEGAL


SERVICES PROGRAMS FOR THE POOR AND TO CUT OFF THE SHIFTING OF


ATTORNEYS' FEES IN CONSTITUTIONAL RIGHTS CASES HAVE THUS FAR








- BEEN UNSUCCESSFUL. ATTEMPTS TO ROLL BACK THE RULES ON


"STANDING" HAVE BEEN UNSUCCESSFUL. OPPONENTS OF THE FEDERAL


JUDICIAL SYSTEM HAVE SIMPLY NOT SUCCEEDED IN MAKING MUCH OF A


DENT IN THAT SYSTEM AND TO ME THAT AUGURS WELL FOR THE VITALITY


OF BOTH THE REPUBLIC AND THE INDIVIDUAL RIGHTS OF ITS CITIZENS.


HAPPILY SUPREME COURT DECISIONS STILL ARE "THE LAW OF THE


LAND".


CONTINUED VITALITY OF THE FEDERAL JUDICIAL SYSTEM -


HOWEVER CANNOT BE TAKEN FOR GRANTED. THERE IS NO DOUBT THAT


MASSIVE ATTEMPTS TO SHIFT THE POWER TO ARTICULATE AND ENFORCE


INDIVIDUAL RIGHTS FROM INSULATED AND THEREFORE INDEPENDENT -


FEDERAL JUDGES TO OFFICIALS MORE SUBJECT TO PRESSURE BY THE


POLITICALLY POWERFUL WILL CONTINUE. WITNESS THE CALCULATED


ASSAULT PRESENTLY UNDERWAY BY THE ATTORNEY-GENERAL OF THE UNITED


STATES ON THE ROLE OF FEDERAL JUDGES AS THE BALANCE WHEEL IN THE


AMERICAN SYSTEM.


WHEN THAT ASSAULT AND THE INEVITABLE OTHERS COME -


AS THEY HAVE AND WILL THEY TOO WILL BE MET BECAUSE MOST


-8-








AMERICANS NOW UNDEVIATINGLY ACCEPT THAT FEDERAL JUDICIAL


OVERSIGHT OF EXECUTIVE AND CONGRESSIONAL ACTION IS BY NOW A


FUNDAMENTAL ASPECT OF OUR CONSTITUTIONAL STRUCTURE. TO ARGUE


THAT ONE OWES NO RESPECT TO A COURT DECISION UNLESS THAT PERSON


WAS ACTUALLY A LITIGANT IN THE CASE IS SIMPLY TO INVITE NATIONAL


ANARCHY.


OF COURSE A FEDERAL JUDGE HAS NO SPECIFIC AUTHORITY TO


OVERRULE DECISIONS OF THE PRESIDENT THE CONGRESS OR LOCAL


OFFICIALS ABOUT THE MEANING OF THE CONSTITUTION. FEDERAL


JUDICIAL POWER TO DEFINE AND PROTECT INDIVIDUAL RIGHTS FLOWS -


INSTEAD FROM THE TASK OF RESOLVING DISPUTES BETWEEN CONTESTING


PARTIES A POWER IMPOSED ON THOSE JUDGES BY CONGRESS. IN


CARRYING OUT THAT ASSIGNMENT A FEDERAL JUDGE IS FORCED TO


SELECT THE GOVERNING RULE OF LAW FROM AMONG A NUMBER OF POSSIBLE


SOURCES INVARIABLY URGED UPON THAT JUDGE BY THE CONTESTING


PARTIES. SINCE LITIGANTS WILL OFTEN POINT TO DIFFERENT SOURCES -


A FEDERAL JUDGE MUST USE A RANKING SYSTEM TO DECIDE WHICH LAW


TAKES PRECEDENCE. THE RANKING RULES ARE SIMPLE AND ARE


-9-








DICTATED BY ELEMENTARY POLITICAL THEORY: JUDGE-MADE COMMON LAW


RULES MUST GIVE WAY TO VALID ADMINISTRATIVE REGULATIONS WHICH


IN TURN ARE OUTWEIGHED BY STATUTES WHICH MAY THEMSELVES BE


OVERRIDDEN BY THE CONSTITUTION. IT IS IN THE INEVITABLE PROCESS


OF DECIDING WHETHER THE RULE OF LAW ASSERTED BY ONE CONTESTING


PARTY OFTEN THE GOVERNMENT INVOKING A STATUTE OR AN


ADMINISTRATIVE REGULATION CONFLICTS WITH A HIGHER-RANKING RULE


OF LAW ASSERTED BY ANOTHER CONTESTING PARTY OFTEN AN AGGRIEVED


INDIVIDUAL INVOKING THE CONSTITUTION THAT FEDERAL JUDGES MAP


THE PRECISE SCOPE OF INDIVIDUAL RIGHTS IN OUR SCHEME OF


GOVERNMENT. THE ARTICULATION OF AN INDIVIDUAL RIGHT BY A FEDERAL


JUDGE IS AN ALMOST INCIDENTAL BY-PRODUCT OF THAT FEDERAL JUDGE'S


PRIMARY JOB OF RESOLVING ACTUAL DISPUTES BETWEEN A PERSON AND HIS


OR HER GOVERNMENT OR BETWEEN A PERSON AND HER OR HIS NEIGHBOR -


ALL OF WHICH DISPUTES WERE BY CONGRESSIONAL ACT REFERRED FOR


RESOLUTION TO THAT JUDGE.


SINCE FEDERAL JUDICIAL REVIEW OF CONGRESSIONAL OR


EXECUTIVE ACTION IN PART DEPENDS UPON JUDICIAL CHOICE AND


-10-








DISCRETION IT IS IMPORTANT THAT ITS SUPPORTERS NOT ATTEMPT TO


DEFEND IT ON OTHER INDEFENSIBLE GROUNDS. MOST FEDERAL JUDGES


COUCH THEIR DECISIONS AS THOUGH THEY ANNOUNCE THE ONLY CORRECT


RESULT YET ANY THINKING PERSON KNOWS THAT ALWAYS THERE ARE


CHOICES. UNDERSTANDABLY SUPPORTERS OF FEDERAL JUDICIAL REVIEW


OF GOVERNMENTAL ACTS OFTEN ARGUE THAT THE JUDGES MERELY DISCOVER


THE LAW THAT THEY DON'T MAKE IT. SUCH A DEFENSE IS HOWEVER -


UNPERSUASIVE ILLOGICAL AND UNTRUE. OF COURSE FEDERAL JUDGES


MAKE LAW IN CONSTITUTIONAL CASES AND EVERYONE KNOWS IT.


FEDERAL JUDGES DO DEFINE AND ENFORCE INDIVIDUAL RIGHTS AND


RESPONSIBILITIES NOT BECAUSE NO REAL CHOICES ARE NECESSARY -


BUT PRECISELY BECAUSE HARD CHOICES CANNOT BE AVOIDED AND THOSE


CHOICES SHOULD NOT AND CANNOT BE ENTRUSTED TO POLITICALLY


VULNERABLE OFFICIALS WHO MOST OFTEN SIMPLY REFUSE TO MAKE THEM.


IN THE MAIN THE FEDERAL COURTS HAVE PERFORMED WELL.


OUR BLINDFOLDED FIGURE HOLDING THE SCALES OF JUSTICE HAS BEEN


WORLDWIDE BOTH A SYMBOL AND A REALITY. THE FEDERAL COURTS HAVE


ACHIEVED SUCCESS WHERE THE OTHER FEDERAL INSTITUTIONS HAVE NOT -


-11-








SUCCESS AS SEEN BY THE NEGLECTED AND IGNORED AND THE POOR AND


THE WEAK AS BEING A MEANINGFUL VEHICLE FOR ACHIEVING DESIRABLE


SOCIAL CHANGE AS PROTECTING FREEDOM.


THAT VERY SUCCESS HAS CREATED A LARGE PROBLEM: AS


RELIANCE UPON THE FEDERAL COURTS HAS INCREASED THERE HAS BEEN A


CONCOMMITANT DECREASE IN THE INSTITUTIONAL PUBLIC SUPPORT OF THE


OTHER BRANCHES OF THE FEDERAL GOVERNMENT. A POLICY DECISION THAT


IS NOT DIRECTED BY A STRONG NATIONAL CITIZENS CONSENSUS IS MOST


OFTEN DEFAULTED BY THE ENTIRE NATIONAL GOVERNMENT EXCEPT THE


FEDERAL COURTS AND RESPONSIBLE FEDERAL JUDGES ALONE MUST ACT IF


INDIVIDUAL RIGHTS ARE TO BE GOVERNMENTALLY ENHANCED AND


PRESERVED.


SINCE INDIVIDUAL RIGHTS ARE RARELY SELF-DEFINING AND ARE


NEVER SELF-ENFORCING ANY POLITICAL SYSTEM WHICH INTENDS TO


RECOGNIZE THOSE RIGHTS ALWAYS MUST MAKE A FUNDAMENTAL CHOICE


ABOUT WHO IS TO DEFINE AND ENFORCE THEM. MANY SOCIETIES HAVE


CHOSEN TO GIVE POLITICALLY SENSITIVE LEGISLATORS OR


ADMINISTRATORS THE LAST WORD IN DECIDING THEIR SCOPE. AMERICA -


-12-








ON THE OTHER HAND WISELY HAS CHOSEN TO GIVE PRECISE MEANING TO


THE CONCEPT OF INDIVIDUAL RIGHTS BY USING INSULATED FEDERAL


JUDGES TO CONSTRUE A PURPOSEFULLY AMBIGUOUS AND EVOLVING DOCUMENT


CALLED A CONSTITUTION.


USING INSULATED JUDGES INSTEAD OF MEMBERS OF CONGRESS TO


DEFINE AND ENFORCE INDIVIDUAL RIGHTS HAS ONE IMPORTANT PRACTICAL


ADVANTAGE AND ONE OBVIOUS THEORETICAL DRAWBACK. ON THE PLUS SIDE


WHEN THE ISSUE IS WHETHER AN INDIVIDUAL POSSESSES A RIGHT TO DO


AS HE OR SHE WISHES REGARDLESS OF THE DESIRES OF THOSE THEN


RUNNING THE GOVERNMENT IT DOESN'T MAKE MUCH FUNCTIONAL SENSE TO


ALLOW THOSE OFFICIALS TO DECIDE THE QUESTION. CLOSE CASES UNDER


SUCH AN ARRANGEMENT IN OTHER COUNTRIES ARE ALMOST ALWAYS RESOLVED


AGAINST THE INDIVIDUAL AND IN FAVOR OF THE POLITICALLY


POWERFUL. ALLOWING FEDERAL JUDGES WHO ARE RELATIVELY INSULATED


FROM PUBLIC OPINION TO DEFINE THE SCOPE OF INDIVIDUAL RIGHTS IS


THUS FAR MORE LIKELY TO RESULT IN THE SUSTAINED AND VIGOROUS


ENUNCIATION OF SUCH RIGHTS THAN A SYSTEM WHICH RELEGATES THE TASK


TO THOSE SELECTED BY THE POLITICALLY POWERFUL.


-13-








ON THE MINUS SIDE EVEN FEDERAL JUDGES APPOINTED FOR


LIFE ARE NOT WITHOUT A DEMOCRATIC IMPRIMATUR. THEY ARE GENERALLY


DRAWN FROM THE POLITICAL WORLD THEY ARE APPOINTED BY THE


POLITICALLY-ELECTED PRESIDENT AND THEY MUST BE CONFIRMED BY THE


POLITICALLY-ELECTED SENATE. MOST PRESIDENTS HAVE SOUGHT


PROMINENT EXPERIENCED LAWYERS FOR JUDICIAL APPOINTMENT EITHER


THROUGH THEIR OWN SEARCH PROCESS OR THROUGH SENATORIAL PROPOSALS.


CANDIDATES TRADITIONALLY HAVE BEEN EVALUATED ONLY FOR LEGAL


COMPETENCE INTEGRITY SCHOLARSHIP AND JUDICIAL TEMPERAMENT -


NOT FOR PREDETERMINED PARTISANSHIP. POLITICAL AFFILIATION


PROPERLY HAS PROVIDED A SOURCE OF RECOGNITION NOT A COLORATION


TEST FOR PHILOSOPHICAL ORTHODOXY. OVER TIME THIS PATTERN HAS


CREATED AGAIN AND AGAIN A FEDERAL JUDICIARY RICH IN DIVERSITY


AND EXPERIENCE.


BUT THE VERY REAL POSSIBILITY OF POLITICAL INTERVENTION


STILL EXISTS. PRESIDENT REAGAN HAS HAD OR WILL HAVE THE


PRIVILEGE OF APPOINTING FULLY HALF OF THE NATION'S FEDERAL


JUDGES. THE AMERICAN PEOPLE HAVE A RIGHT TO INSIST THAT IN


-14-








MAKING THOSE APPOINTMENTS HE TOO STRIVE FOR CANDIDATES OF THE


HIGHEST QUALITY EVEN THOUGH SOME OF HIS PRESIDENTIAL


PREDECESSORS HAVE DEVIATED FROM THAT STANDARD. THE JUSTICE


DEPARTMENT THEORETICALLY SHOULD OFFER THE PRESIDENT ONLY PEOPLE


WHO HAVE THE BREADTH OF MIND AND THE DIVERSITY OF EXPERIENCE TO


EQUIP THEM TO ADMINISTER JUSTICE IN THIS EVER MORE COMPLEX WORLD


- REFLECTIVE AND SCHOLARLY WOMEN OR MEN WHO HONOR AND CHERISH OUR


WAY OF LIFE BUT OFTIMES THE DEPARTMENT APPEARS STRONGLY TO


EMPHASIZE OTHER CRITERIA. INDEED PRESIDENT REAGAN APPEARS TO


ACCEPT FROM HIS ADVISORS ONLY CANDIDATES WHO FIT THE MOST RIGID


AND STAGNANT STEROTYPE OF "CONSERVATISM". CREDO APPEARS TO BE


MORE IMPORTANT TO HIM THAN TALENT EXPERIENCE AND INTELLECTUAL


CAPACITY. IF SO THAT IS WRONG JUST AS IT WAS WRONG FOR PRIOR


PRESIDENTS TO SEEK OUT THOSE DEVOTED ONLY TO "LIBERALISM". IF


SUCH PRACTICES EXIST AND REMAIN UNCHECKED FOR A SUBSTANTIAL


PERIOD THE INTELLECTUAL INTEGRITY DIVERSITY AND


INDEPENDENCE SO VITAL TO THE FEDERAL JUDICIARY IN FUTURE YEARS


UNDOUBTEDLY WILL BE CHILLED AND DIMINISHED.


-15-








QUITE OBVIOUSLY THE BUSINESS OF THE FEDERAL COURTS


SHOULD BE GREATLY EXPANDED TO PROTECT AND EXTEND BOTH ECONOMIC


AND CIVIL RIGHTS. FOR NEARLY TWO HUNDRED YEARS OF THIS NATION'S


HISTORY FEW BLACKS HISPANICS OR ASIAN-AMERICANS TO NAME


ONLY A FEW OF THE VICTIMS OF OPPRESSION WOULD HAVE THOUGHT OF


TAKING THEIR CLAIMS TO FEDERAL COURT. THEY KNEW THEY WOULD


RECEIVE NO HEARING THERE. BUT TODAY THE EXPECTATIONS OF THE


DISADVANTAGED AS WELL AS THE SENSITIVITY OF OUR SOCIETY TO


THEIR PLIGHT HAS BEEN HEIGHTENED. EVERYONE THINKS OF THE


FEDERAL COURTS AS PROTECTOR. BUT IN MANY COUNTRIES JUDGES ARE


NO MORE THAN INSTRUMENTS OF THOSE WHO HOLD POLITICAL POWER. IN


AMERICA OUR PEOPLE EXPECT COURTS TO BE A CHECK ON THAT POWER -


AND THEY TRADITIONALLY HAVE BEEN. TO CHANGE NOW SIMPLY WOULD


TURN OUR FEDERAL COURTS INTO PEOPLES COURTS COURTS OF POPULAR


WILL COURTS WHO ADMITTEDLY FOLLOW ELECTION RETURNS COURTS WHO


RESPOND FREELY TO TRANSITORY MAJORITIES ALL OF WHICH WOULD BE


AN ANATHEMA TO HISTORICAL AMERICAN CULTURE.


-16-








THE FEDERAL JUDICIARY TO ACHIEVE MAXIMUM PUBLIC


ENDORSEMENT MUST BE EVER MORE DIVERSE IN ETHNIC ORIGIN AND


POLITICAL VIEWS SO AFFIRMATIVE ACTION PROGRAMS IN JUDICIAL


APPOINTMENTS ARE INDEED REQUIRED FROM THE PRESIDENT NOW TO MAKE


THE FEDERAL JUDICIARY MORE REPRESENTATIVE OF THE POPULATION.


WOMEN TOO MUST PLAY AN IMPORTANT ROLE DEMANDING AND RECEIVING


EQUAL REPRESENTATION.


ADMITTEDLY THE VERY EFFECTIVENESS OF AN INSULATED


FEDERAL JUDGE AS A ONE-PERSON GENERATOR OF INDIVIDUAL RIGHTS IS


IN TENSION WITH OUR DEEPLY FELT RESPECT FOR DEMOCRATIC DECISION


MAKING AND OUR NATIONAL COMMITMENT TO MAJORITY RULE. A GREAT


DEAL OF THAT TENSION COULD BE RELIEVED BY THE RECOGNITION BY MOST


AMERICANS THAT SOME OF WHAT PASSES FOR MAJORITY RULE AT ANY ONE


TIME IN ANY DEMOCRACY IS IN FACT ONE TRANSIENT MINORITY OR


ANOTHER WHICH HAS MANAGED TO ATTAIN TEMPORARY POLITICAL


ASCENDANCY. TODAY NEVER MATCHES TOMORROW IN THE ATTAINMENT OF


INDIVIDUAL LIBERTY AND FREEDOM AND IT WILL NOT. ALLOWING


FEDERAL JUDGES TO CHECK SUCH A POWERFUL TRANSIENT MINORITY IN THE


-17-








NAME OF AN EXISTING CONSENSUS CONCERNING INDIVIDUAL RIGHTS IS


THUS HARDLY A SERIOUS LONG-RANGE CHALLENGE TO DEMOCRATIC


POLITICAL THEORY. INDEED IT IS THE KIND OF EXCEPTION THAT


GIVES LASTING VALIDITY TO MAJORITY RULE. THERE SHOULD BE NO


POPULAR POSITION NO PERMANENT MAJORITY WILL IN CONSTITUTIONAL


OVERSIGHT BY INDEPENDENT FEDERAL JUDGES. AMERICANS SHOULD NEVER


CONDONE A "LITMUS TEST" ON JUDICIAL CANDIDATES BY APPOINTING


AUTHORITIES IN THE SENSE THAT THOSE CANDIDATES FOR SELECTION HAVE


TO BE ON ONE SIDE OR THE OTHER OF PARTICULAR CONSTITUTIONAL


ISSUES. THE CONSTITUTION ASSURES FEDERAL JUDGES THAT THEY ARE


ABOVE THE POLITICAL FRAY AND WAY ABOVE REMOTE AND FREE FROM


A TEMPORARY MAJORITY. FEDERAL JUDGES CAN NEVER BE RESPONSIVE TO


A PARTICULAR QUADRENNIAL ELECTION TO A SO-CALLED POLITICAL


MANDATE AS IS NOW OFTEN CLAIMED TO EXIST IN CHOSEN AREAS.


PRESIDENTIAL ELECTIONS ARE NOT REFERENDUMS ON THE ADMINISTRATION


OF FEDERAL JUSTICE --NOR IN MY OPINION DO THEY LICENSE ANY


PRESIDENT OR SENATE TO RESHAPE THE CONSTITUTIONAL JUSTICE


SYSTEM BY CREATING A MONOLITHIC FEDERAL JUDICIARY.


-18-








IN ANY EVENT WHATEVER THE PRESENT POLITICAL


DIFFICULTIES FEDERAL JUDICIAL INTERPRETATION OF THE


CONSTITUTION HAS IN THE PAST THIRTY YEARS FUNCTIONED AS A


POWERFUL GENERATOR OF INDIVIDUAL RIGHTS. REVIEW OF CONGRESSIONAL


AND EXECUTIVE ACTIONS AGAINST CONSTITUTIONAL MINIMUMS IN FEDERAL


COURTS BY INDEPENDENT AND POLITICALLY INSULATED JUDGES IN THOSE


YEARS HAS RESULTED IN THE SUSTAINED ARTICULATION AND ENFORCEMENT


OF MANY THERETOFORE UNACCEPTED INDIVIDUAL RIGHTS AND


RESPONSIBILITIES THE RECOGNITION OF WHICH WOULD HAVE BEEN


INCONCEIVABLE HAD THE FEDERAL COURTS LEFT THE TASK TO THE THEN


POLITICAL MAJORITY.


SO TO ME AN INDEPENDENT IMPARTIAL FEDERAL


JUDICIARY CLEARLY IS AND REMAINS THE BULWARK AND GREATEST


HOPE OF CONTINUED FREEDOM FOR THOSE TEMPORARILY OR PERMANENTLY


OUT OF GOVERNMENTAL POWER. SO IT IS SO IT HAS BEEN AND SO IT


WILL BE OR AMERICA WILL NOT BE THE AMERICA WE HAVE KNOWN.




(THE END)


-19-








SPEECHES OF CHESTERFIELD SMITH


SPEECH NUMBER 271


VOLUME XIX












ADDRESS OF:


CHESTERFIELD SMITH


LAWYER


HOLLAND & KNIGHT


MIAMI, FLORIDA


BEFORE:


SENIOR LAWYERS DIVISION


AMERICAN BAR ASSOCIATION


ENTITLED:


HOW LAW FIRMS (AND SPECIFICALLY


HOLLAND & KNIGHT) WILL BE


PRACTICING IN THE YEAR 2000


DATE AND TIME:


FRIDAY, NOVEMBER 14, 1986


12:30 P.M.


TWENTY MINUTES


5t- --


DURATION :










VAST CHANGES ARE UNDERWAY IN THE LEGAL BUSINESS. LAW


FIRMS ARE INCREASINGLY USING MODERN MANAGEMENT AND TECHNOLOGICAL


TOOLS. HIGH TECH LEGAL PRODUCTION COMPUTERIZED LEGAL RESEARCH


- AND ELECTRONIC WORD PROCESSING HAVE BECOME A WIDE-SPREAD


REALITY. WITHIN THE ENTIRE LEGAL PROFESSION THE INNOVATIVE


ESTABLISHMENT OF NEW FORMS FOR THE DELIVERY MARKETING AND


PRODUCTION OF LEGAL SERVICES IS THE ORDER OF THE DAY. THE VERY


SOPHISTICATED LEGAL BOUTIQUE THE HIGHLY COMPETENT SMALL


SPECIALTY FIRM THE EVER-BURGEONING HUGE INTERNATIONAL -


NATIONAL AND REGIONAL LAW FIRMS WITH MULTI-OFFICES TIED


CLOSELY TOGETHER IN AN EFFICIENTLY ORGANIZED AND CLOSELY KNIT


ELECTRONICALLY MANAGED FULL SERVICE LAW FIRM PUBLIC INTEREST


LAW FIRMS AND HIGHLY ADVERTISED STORE-FRONT LEGAL CLINICS -


CHAIN STORE STYLE ARE MORE AND MORE TAKING OVER FROM THE


TRADITIONAL LEGAL PRACTITIONER.


THE LEGAL AND PRACTICAL STRUCTURES IN WHICH LAWYERS


PRACTICE HAVE BEEN AND ARE CONTINUOUSLY CHANGING.


PARTNERSHIPS PROFESSIONAL CORPORATIONS AND ASSOCIATIONS JOINT









VENTURES NON-PROFIT CORPORATIONS GROUP-COST SHARERS,


FRANCHISEES IN-HOUSE COUNSEL ARE BURGEONING AT ANY AND ALL


LEVELS. ADVANCES IN TECHNOLOGY THE CRUSHING AVAILABILITY OF


INFORMATION THE UNABATED GROWTH OF URBANIZATION AND THE


ATTENDANT REORDERING OF LIFESTYLES HAVE MADE LAWYERING IN THIS


AGE INCREDIBLY DIFFERENT AND MUCH MORE COMPLEX.


CERTAINLY THE LAST DECADE HAS SEEN LAW FIRMS GROW AND


PROSPER. IN 1969 THERE WERE TWENTY FIRMS IN THE NATION WITH MORE


THAN A HUNDRED LAWYERS IN 1979 THERE WERE OVER A HUNDRED FIRMS


WITH THAT MANY LAWYERS. TODAY THERE ARE OVER THREE HUNDRED AND


FIFTY SUCH LAW FIRMS. THAT GROWTH IN LAW FIRM SIZE HAS BEEN


ACCOMPANIED BY STEADY MOVEMENT INTO ADDITIONAL FIELDS OF PRACTICE


- AND BY THE BRANCHING OF BOTH SMALL AND LARGE FIRMS INTO


MULTIPLE OTHER CITIES INCLUDING SUBURBAN AREAS.


TOTAL SPECIALIZATION IN THE LAW IS HERE. FOR LARGE LAW


FIRMS AND SMALL BOUTIQUE LAW FIRMS IT IS NOT COMING IT HAS


ALREADY ARRIVED. THAT INCREASED SPECIALIZATION IN THE LEGAL


PROFESSION IN MY OPINION TENDS TO BROADEN THE DEMAND FOR LAWYERS.









INSOFAR AS THE BUSINESS INDUSTRIAL AND FINANCIAL COMMUNITY IS


CONCERNED THE DAY OF THE MAGNIFICENT GENERALIST IN THE LAW -


"THE JACK-OF-ALL-TRADES" HAS BECOME A THING OF THE PAST.


LAWYERS REPRESENTING THOSE FAR FLUNG AND DIVERSE ENTERPRISES NOW


OF NECESSITY HAVE TO BE SPECIALLY TRAINED IN SPECIFIC AREAS OF


THE LAW. THAT LEGAL SPECIALIZATION BY INTENSE FAMILIARITY AND


EXCLUSIVE PRACTICE IN LIMITED LEGAL AREAS LOWERS THE FEE


DEMANDS OF LAWYERS ENABLING THEM BETTER TO COMPETE WITH OTHER


DISCIPLINES.


WITH THAT PREDICATE PERHAPS IT IS NOW ACCEPTABLE FOR


ME TO MAKE PREDICTIONS ABOUT THE WAY LAW FIRMS IN GENERAL MIGHT


BE STRUCTURED AROUND THE YEAR 2000. IN MY OPINION THE


CONFUSING DIVERSITY IN FORMS OF PRACTICE THAT NOW EXISTS WILL


CONTINUE AT LEAST IN PART AND EVEN PERHAPS GROW. VERY LARGE


NATIONAL FIRMS WILL COMPETE SIDE BY SIDE WITH VERY LARGE REGIONAL


AND EVEN VERY LARGE LOCAL FIRMS. SPECIALTY FIRMS BOUTIQUE


FIRMS WILL PROSPER BUT IN MY OPINION AT A LESSER LEVEL OF


SUCCESS THAN MOST LAWYERS NOW PREDICT. MIDDLE-SIZED FIRMS WILL









CONTINUE TO BECOME EVER LARGER AND EVERMORE SPECIALIZED. SMALL


GENERAL FIRMS A GROUPING IN WHICH I INCLUDE THE SOLE


PRACTITIONER WILL HAVE INCREASED IN NUMBERS ALMOST GEOMETRIC IN


SCALE BUT THEY WILL TEND TO SERVE ALMOST EXCLUSIVELY


INDIVIDUALS OR SMALL CLOSELY-HELD BUSINESS CLIENTS. IT WILL NOT


BE COST EFFECTIVE FOR THE LARGE OR MEGA-FIRMS TO SERVE SUCH


CLIENTS. HOWEVER I PERSONALLY HAVE LITTLE DOUBT THAT THE


LARGER LAW FIRMS BOTH REGIONAL AND NATIONAL WILL DOMINATE THE


GENERAL BUSINESS AND FINANCIAL PRACTICE OF LAW IN FLORIDA AND


ELSEWHERE. SPLIT-OFFS FROM FIRMS OF ALL SIZES WILL INCREASE A


DIRECTION THAT INEVITABLY WILL RESULT IN EVERMORE SPECIALIZED OR


BOUTIQUE FIRMS. NO LONGER WILL A RECENT LAW SCHOOL GRADUATE JOIN


A FIRM NEVER TO LEAVE SPENDING HIS OR HER ENTIRE PRACTICE


THERE. LATERAL MOVEMENT OF BOTH EXPERIENCED AND BEGINNING


LAWYERS WILL BE THE WAY OF THE DAY. THE HIGHLY COMPETENT LAWYER


WILL ON THE AVERAGE PROBABLY CHANGE HIS LEGAL AFFILIATION FOUR OR


FIVE TIMES DURING HIS OR HER PROFESSIONAL PRACTICE. THE MID-


SIZED FULL SERVICE FIRM OF THE YEAR 2000 WILL HAVE THE MOST










TROUBLE IN KEEPING UP IN COMPETING FOR DESIRABLE CLIENTS IN


MAINTAINING MARKET SHARE. SUCH FIRMS OVERALL WILL BE LESS


PROFITABLE THAN BOTH THE VERY LARGE FIRMS AND THE SPECIALTY


BOUTIQUE LAW FIRMS. THE AVERAGE LARGE FLORIDA LAW FIRM OF ABOUT


ONE HUNDRED LAWYERS TODAY WILL HAVE AROUND THREE HUNDRED LAWYERS


IN FIFTEEN YEARS AND NATIONWIDE THERE WILL BE BETWEEN TWENTY-


FIVE AND FIFTY VERY LARGE MEGA-FIRMS OF MORE THAN ONE THOUSAND


LAWYERS MOST OF WHOM WILL HAVE OFFICES IN FROM FIVE TO TEN


METROPOLITAN STATES.


CLIENTS ALREADY TODAY DEMAND THAT LAWYERS CONDUCT THEIR


PRACTICE ON A MORE BUSINESS-LIKE BASIS SO AS TO BECOME MORE


EFFICIENT AND ECONOMIC THAN IN THE PAST. INSTITUTIONAL LOYALTIES


ARE DIMINISHING. THE DRIVING FORCE BEHIND ALL THESE CHANGES IN


THE QUALITY OF LIFE IN THE LEGAL COMMUNITY IN LAW FIRM


STRUCTURE AND GOVERNANCE IN MARKETING IN RECRUITING IN


COMMUNICATIONS IN FEES AND IN LAWYER COMPENSATION IN LEGAL


AND DOCUMENT PRODUCTION IN LATERAL MOVEMENT OF LAWYERS IS


COMPETITION INTENSE MERIT COMPETITION DOG-EAT-DOG COMPETITION










- NEVER CEASING COMPETITION UNYIELDING COMPETITION -


COMPETITION BETWEEN LAW FIRMS TO GET THE BEST POSSIBLE LAWYERING


DONE IN THE MOST SATISFACTORY AND ECONOMIC WAY FOR CLIENTS AND


FOR SOCIETY AS A WHOLE.


TO BRING SOME OF THE ISSUES RAISED BY THOSE CHANGES INTO


SHARPER FOCUS I AM GOING TO TALK BRIEFLY ABOUT HOLLAND & KNIGHT


- THE LAW FIRM WHERE I PRACTICE HOW IT IS NOW AND DISCUSS


WITH YOU WAYS FORMS AND STRUCTURES WHICH MIGHT HAPPEN TO


IT IN THE FUTURE HOW IT MAY BE IN 15 YEARS. MY COMMENTS MAY


TURN OUT TO BE INACCURATE OR EVEN RIDICULOUS BUT THESE


FANTASY RUMINATIONS ARE MY OWN THEY ARE NOT TO BE ATTRIBUTED TO


THE FIRM THEY ARE GIVEN BY ME AS A FUN WAY TO TRIGGER THOUGHT


AND DISCUSSION ABOUT THE LAW FIRM OF THE FUTURE. IF MY PROPOSALS


WERE PRESENTED TO THE SEVERAL PARTNERS OF HOLLAND & KNIGHT TODAY


- THEY SURELY WOULD NOT TODAY BE ACCEPTED. INDEED THOSE PARTNERS


WOULD BE SHOCKED ALMOST CERTAINLY CONCLUDING THAT I WAS ON A


COCAINE TRIP.










I ENVISION HOLLAND & KNIGHT IN THE YEAR 2000 STILL TO BE


PRIMARILY A FLORIDA LAW FIRM WITH OFFICES GEOGRAPHICALLY


COVERING THE ENTIRE STATE AND WITH A WASHINGTON LEGAL OUTLET


DESIGNED PRIMARILY TO SERVE FLORIDA CLIENTS WITH FEDERAL LEGAL


PROBLEMS. HOLLAND & KNIGHT IN THE YEAR 2000 WILL HAVE AROUND


1,500 LAWYERS A PROJECTED CONTINUATION OF THE FIFTEEN PER CENT


ANNUAL GROWTH RATE IT HAS BEEN EXPERIENCING. ALL HOLLAND &


KNIGHT LAWYERS WILL BE MEMBERS OF THE FLORIDA BAR AND


APPROXIMATELY 300 OF THOSE WILL BE GRADUATES OF THE UNIVERSITY OF


MIAMI LAW SCHOOL. IT WILL HAVE AS FLORIDA COMPETITORS IN SIZE


AT LEAST THREE OTHER FLORIDA LAW FIRMS PERHAPS ONE OF WHICH


WILL HAVE AS MANY AS 2000 LAWYERS AND HOLLAND & KNIGHT WILL


ALSO COMPETE IN THE LARGER METROPOLITAN AREAS OF FLORIDA WITH AT


LEAST TEN OF THE VERY LARGE REGIONAL NATIONAL OR


INTERNATIONAL MEGA-FIRMS ALL OF WHOM WILL HAVE AT LEAST 200


MEMBERS OF THE FLORIDA BAR PRACTICING IN THE STATE.


FOR HOLLAND & KNIGHT MOST OF THOSE 1500 LAWYERS WILL


BE LOCATED IN ONE BIG CENTRALIZED LOCATION PERHAPS A LOW RENT










AREA BUT A PLACE WITH A HIGHLY DESIRABLE ENVIRONMENT WHERE THE


LIVING IS NICE A CITY LIKE LAKELAND LOCATED IN THE SAND HILLS


- AND ORANGE GROVES AND AROUND THE LAKES A CITY WITH ALL OF


THE AMENITIES BUT ONE WITH A VERY LOW COST OF LIVING AND A


STABLE LABOR FORCE. THE MAJOR RESEARCH AND PRODUCTION FACILITIES


OF THE ENTIRE FIRM WILL BE THERE IN LAKELAND THE MAINFRAME


COMPUTERS WESTLAW LEXIS NEXUS ALL ELECTRONIC LEGAL


RESEARCH FACILITIES A MICROFICHE LIBRARY PARAPROFESSIONALS -


LEGAL TECHNICIANS THE CLOSED FILES ALL WOULD BE HOUSED OR


MAINTAINED IN THAT CENTRAL OFFICE. AN ATTRACTIVE LIFESTYLE FOR


ALL IN THE CENTRAL OFFICE CAUSING LAWYERS AND OTHER


PROFESSIONALS TO WANT TO WORK THERE WOULD BE A PRIME AND


CONTINUING GOAL OF MANAGEMENT. THE HOLLAND & KNIGHT CENTRAL


OFFICE STAFF WOULD EMBRACE AND HOUSE PROFESSIONALS FROM


MULTIPLE DISCIPLINES OTHER THAN THE LAW SUCH AS ENGINEERS -


ECONOMISTS ARCHITECTS SURVEYORS PHYCOLOGISTS MEDICAL


DOCTORS CARTOGRAPHERS STATISTICIANS AGRONOMISTS -


HYDROLOGISTS PHYSICISTS BIOLOGISTS AND ELECTRONIC AND









COMMUNICATION SPECIALISTS. PLEASANT AND HIGH QUALITY SCHOOLS -


DELIGHTFUL HOMES AND AMPLE RECREATIONAL FACILITIES FOR


EVERYONE THERE WOULD BE MADE AVAILABLE AND MAINTAINED BY


HOLLAND & KNIGHT. LAWYERS FROM THAT CENTRAL OFFICE WILL TRAVEL


TO THE VARIOUS LAW OFFICES COURTHOUSES CITY HALLS -


ADMINISTRATIVE HEADQUARTERS GOVERNMENTAL OFFICES LOCATED


THROUGHOUT THE STATE UTILIZING EITHER HELICOPTERS AIRPLANES -


OR AUTOMOBILES TO TRY CASES TO TAKE DEPOSITIONS TO ENGAGE


IN ADVERSARIAL RELATIONSHIPS AT ALL LEVELS TO NEGOTIATE TO


COUNSEL AND TO CLOSE TRANSACTIONS. EVERY KIND OF LEGAL


SPECIALIZATION KNOWN TO THE FIRM WILL BE ORGANIZED IN THAT


CENTRAL OFFICE IN TEAMS GROUPS AND DIVISIONS. PRODUCING


AND WORKING IN A HIGHLY INTEGRATED BUT TOTALLY PLEASANT WORK


ENVIRONMENT.


A FIRM CLIENT WILL NEVER VISIT THAT CENTRAL OFFICE -


CLIENTS WILL NOT BE ALLOWED. BUT THAT CENTRAL OFFICE WILL BE


ELECTRONICALLY CONNECTED WITH THE TEN OR FIFTEEN CLIENT OFFICES


LOCATED THROUGHOUT FLORIDA EACH OF WHICH WILL HAVE TWENTY-FIVE










TO FIFTY LAWYERS. THE LAWYERS IN THOSE CLIENT OFFICES PRIMARILY


WILL BE INVOLVED IN LEGAL WORK FOR EXISTING FIRM CLIENTS AND


ALSO WITH THE TOTAL SOCIAL ECONOMIC AND POLITICAL LIFE OF THE


ENTIRE GEOGRAPHIC REGION WHERE THE PARTICULAR CLIENT OFFICE IS


LOCATED. THEY WILL BE EXPERIENCED AND HIGHLY TRAINED LAWYERS -


ABLE TO ATTRACT LEGAL BUSINESS AND PROFICIENT IN COUNSELING


FIRM CLIENTS IN THE HIGHEST AND BEST TRADITIONS OF THE HONORED


GENERAL PRACTITIONER. AN INSTITUTIONAL FIRM CLIENT WITH


SUBSTANTIAL RECURRING AND MASSIVE LEGAL PROBLEMS WILL HAVE


CONTACTS WITH SEVERAL CLIENT OFFICES THROUGHOUT FLORIDA OR


MAYBE ALL OF THEM. AS A USUAL MATTER THE HOLLAND & KNIGHT


LAWYER STATIONED IN A CLIENT OFFICE WILL ADVISE COUNSEL AND


CONSULT WITH A PARTICULAR CLIENT AND IF THAT CLIENT HAS


SPECIFIC LEGAL DEMANDS THEN HELP MEET THAT CLIENT'S NEEDS BY


UTILIZING AN APPROPRIATE LEGAL SPECIALTY LAWYER GROUP OR TEAM


IN THE CENTRAL OFFICE. FOR EXAMPLE A PARTICULAR DADE COUNTY


CLIENT AND A CLIENT LAWYER LOCATED IN A HOLLAND & KNIGHT


CLIENT'S OFFICE IN MIAMI MAY TALK BY TELECONFERENCE FIRST ABOUT


-10-










THE CLIENT'S PROBLEMS WITH A TRIAL GROUP LOCATED IN THE CENTRAL


OFFICE. WHEN THE LITIGATION TELECONFERENCE IS THROUGH THE


CLIENT AND THE CLIENT LAWYER THEN MAY CLARIFY WITH A


SPECIALIST IN THE CENTRAL OFFICE TAX ASPECTS OF THE CLIENT'S


MATTER. LASTLY THE CLIENT AND THE CLIENT'S LAWYER MAY


CONFER BY TELECONFERENCE WITH A CENTRAL OFFICE SPECIALIST ON THE


SECURITIES AND CORPORATE ASPECTS. ALL OF THAT AND THE


RESULTING LEGAL PRODUCT INCLUDING CONTRACTS PLEADINGS -


BRIEFS OPINIONS OR BUSINESS OR CORPORATE DOCUMENTS WILL BE


PRODUCED BY THE CENTRAL OFFICE AND DELIVERED TO THE CLIENT


SITTING FAR AWAY IN A CLIENT OFFICE. LEGAL PAPERS WILL WHIZ


ELECTRONICALLY BACK AND FORTH INSTANTANEOUSLY BY LASER TECHNOLOGY


FROM THE CENTRAL OFFICE TO THE SEVERAL CLIENT OFFICES LOCATED


THROUGHOUT THE STATE AND WHEN DESIRABLE FROM CLIENT OFFICE TO


CLIENT OFFICE. MAJOR AND CONTINUING CLIENTS WILL HAVE THEIR OWN


IN-HOUSE TELECONFERENCE SCREENS SO THAT THEY CAN CONTACT THOSE


LAWYERS WORKING FOR THEM IN THE HOLLAND & KNIGHT CENTRAL OFFICE


ABOUT THEIR LEGAL PROBLEMS WITHOUT VISITING THE HOLLAND & KNIGHT


-11-










CLIENT'S OFFICE. INDEED ONCE AN ATTORNEY-CLIENT CONNECTION HAS


BEEN ESTABLISHED BY A PARTICULAR CLIENT WITH A PARTICULAR


SPECIALIST IN THE HOLLAND & KNIGHT CENTRAL OFFICE BY


TELECONFERENCE FACILITIES THE CLIENT OFTEN THEREAFTER WILL BY-


PASS THE HOLLAND & KNIGHT CLIENT LAWYER AND GO DIRECTLY TO THE


SPECIALIST IN THE HOLLAND & KNIGHT CENTRAL OFFICE.


THE HOLLAND & KNIGHT CLIENT OFFICES LOCATED IN AT MOST


TEN TO FIFTEEN METROPOLITAN AREAS WOULD HOUSE PRIMARILY SENIOR


LAWYERS OR THOSE ESPECIALLY TRAINED OR QUALIFIED IN COUNSELING -


BUT THERE ALSO WILL BE A SUBSTANTIAL NUMBER OF BEGINNING OR LESS


EXPERIENCED LAWYERS ASSIGNED THERE TOO. IN ADDITION TO THE


PERFORMANCE OF NORMAL CLIENT LEGAL SERVICES ALL LAWYERS IN THE


CLIENT OFFICES WILL BE CONTINUOUSLY INVOLVED IN COMMUNITY SERVICE


- PRO BONO TYPE LAW ACTIVITIES ACTIVITIES OF THE ORGANIZED BAR


- AND PERHAPS ABOVE ALL CLIENT DEVELOPMENT AND MARKETING.


THERE WOULD BE EXTENSIVE LEGAL WORK PERFORMED FOR CLIENTS BY THE


LAWYERS IN THE HOLLAND & KNIGHT CLIENT OFFICES ABOUT THE SAME


AMOUNT AND DONE IN THE SAME WAY THAT LEGAL SERVICES ARE NOW


-12-










PERFORMED IN THE HOLLAND & KNIGHT MIAMI OFFICE EACH CLIENT


OFFICE WOULD BE EQUIPPED WITH SEVERAL LARGE THREE-SIDED


TELECONFERENCE ROOMS TWELVE OR FIFTEEN SMALL CLIENT CONFERENCE


ROOMS ONE SMALL AUDITORIUM CAPABLE OF SEATING TWO TO FOUR


HUNDRED PEOPLE SPECIAL FACILITIES FOR ENTERTAINMENT EXTENSIVE


RESOURCES FOR MARKETING AND MARKETING PRESENTATIONS. IT WOULD


HAVE NO TYPEWRITERS NO LIBRARY BOOKS AND NO FINANCIAL OR


ACCOUNTING FACILITIES. PERHAPS SUCH HOLLAND & KNIGHT OFFICES


WILL AT LEAST INITIALLY BE LOCATED IN MIAMI FORT LAUDERDALE


- WEST PALM BEACH FORT MYERS BRADENTON-SARASOTA TAMPA-ST.


PETERSBURG-CLEARWATER LAKELAND ORLANDO DAYTONA BEACH -


JACKSONVILLE GAINESVILLE TALLAHASSEE PENSACOLA AND THE


DISTRICT OF COLUMBIA.


THE FOREGOING RECITAL OF HOLLAND & KNIGHT'S OPERATION IN


THE YEAR 2000 IS QUITE OBVIOUSLY AN OVER-SIMPLIFICATION. IF IT


IS EVER IMPLEMENTED AND REFINED THERE MANIFESTLY IS BOTH GOOD


AND BAD IN IT. A HOLLAND & KNIGHT CENTRAL OFFICE OF 1000 IN


LAKELAND COULD MEAN THAT A LOT OF LAWYERS WILL BE LEFT IN A DEEP


-13-










PROFESSIONAL HOLE IN THE MINDS OF SOME BECOMING ALMOST LIKE


FACTORY PRODUCTION WORKERS. BUT THOSE LAWYERS IN THE CENTRAL


OFFICE CAN IF THEY WISH ALSO HAVE A LEISURELY LIFE AT THEIR


OWN PACE AND WITH THEIR OWN ECONOMICS AND SOCIAL GOALS COME


TO WORK IF THEY WISH AT 6:00 IN THE MORNING AND WORK THROUGH TO


2:00 P.M. OR AT 6:00 IN THE EVENING AND WORK TO 2:00 A.M. -


HAVING TIME OFF EVERYDAY TO FISH OR PLAY TENNIS OR GOLF OR


DO THEIR OWN THING WHATEVER. THEY CAN WRITE OR FARM OR BE


ENTREPRENEURS. THEY CAN FLY OR SWIM OR READ AND REST. THERE


ARE SUCH LAWYERS IN THE WORLD THOSE WHO WANT TO DO SOMETHING


BESIDE THE 10 HOURS A DAY SEVEN DAYS A WEEK LIFE NOW PURSUED BY


SO MANY LAWYERS.


GOOD THINGS FOR HOLLAND & KNIGHT AND ITS CLIENTS -


COMING OUT OF SUCH AN ARRANGEMENT WILL BE OVERWHELMING. LEGAL


TRAINING AND QUALITY CONTROL WOULD BE A PURIST EXPERIENCE -


BEAUTIFUL. ALL OF THE UNNECESSARY INVOLVEMENT THAT MOST LAWYERS


HAVE WITH NUISANCE CLIENTS WILL BE MITIGATED OR EVEN ELIMINATED.


THE NORMAL SPECIALIST WOULDN'T HAVE TO WORRY ABOUT THE MULTIPLE


-14-










THINGS INVOLVED IN LAW PRACTICE IN WHICH THAT LAWYER HAS


ABSOLUTELY NO INTEREST ADMINISTRATION RECRUITING MARKETING.


IF A LAWYER CARED MORE ABOUT A STAMP COLLECTION THAN WORKING ON


FIRM COMMITTEES IT WOULD BE ARRANGED FOR THAT LAWYER IN THE


CENTRAL OFFICE NOT TO WORK ON THE FIRM COMMITTEE. ALL


ADMINISTRATIVE CHORES MANAGEMENT ACCOUNTING BILLING -


CONFLICT CHECKS FINANCES RECRUITING EVALUATING MARKETING


- WILL BE CENTRALIZED AND HANDLED BY NON-LAWYERS. MASSIVE


RESOURCES TO MEET ALL NEEDS WILL BE READILY AVAILABLE. WORK


LOADS WILL BE BALANCED. THE HUMAN POWER THE MEN AND WOMEN


LAWYERS THE PROFESSIONAL DISCIPLINES AND SPECIALTIES ALL WILL


DISTRIBUTE THEIR SPECIALIZED WORK ASSIGNMENTS IN THE CENTRAL


OFFICE EQUALLY AMONG THEMSELVES. IN THE CENTRAL OFFICE -


EVERYONE WILL NORMALLY BE IN THE OFFICE USING NORMALLY THE


TELECONFERENCE FACILITIES INSTEAD OF TRAVEL. AND I REITERATE A


CLIENT WILL NEVER NEVER VISIT THE HOLLAND & KNIGHT CENTRAL


OFFICE.


-15-










HOLLAND & KNIGHT CURRENTLY HAS AN OFFICE IN LAKELAND IN


WHICH OUR MAINFRAME COMPUTERS ARE LOCATED. ABOUT SIXTY PEOPLE


WORK THERE NONE OF WHOM ARE LAWYERS. WE NOW PAY $5.75 A SQUARE


FOOT RENT CONTRASTED WITH $25 A SQUARE FOOT FOR RENT IN MIAMI.


IF THE MAINFRAME COMPUTER WAS NOW IN THE MIAMI OFFICE A LOT OF


RENT MONEY WOULD BE SPENT THAT WE DON'T NOW SPEND AND THE


SERVICE WE GET FROM LAKELAND NOW IS JUST AS GOOD FOR OUR PURPOSES


AS IF THE LAKELAND FACILITIES WERE LOCATED IN THE MIAMI OFFICE.


WITH THAT HOLLAND & KNIGHT CENTRAL OFFICE CONCEPT -


ECONOMICS IN LAW OFFICE OPERATIONS WILL BE MULTIPLIED BY HAVING


EVERYTHING CENTRALIZED AND MASSED. AS YOU SAVE IN RENT YOU


WILL ALSO SAVE IN SECRETARIAL OR WORD PROCESSING COST AND


HUNDREDS OF OTHER WAYS. ALL FACILITIES FOR QUALITY CONTROL -


MANAGEMENT TRAINING MARKETING ACCOUNTING PERSONNEL -


RECRUITING CONFLICT AVOIDANCE LEGAL RESEARCH ARE LOCATED AT


THE MOST ECONOMICAL AND EFFICIENT LOCATION WITHOUT REGARD TO


WHERE FIRM CLIENTS ARE LOCATED.


-16-










PERHAPS THE ONLY THING THAT PREVENTS HOLLAND & KNIGHT


FROM UTILIZING TELECOMMUNICATIONS BETWEEN ITS EXISTING OFFICES IN


THAT WAY.AT THE PRESENT TIME IS THE MASSIVE INFUSION OF CAPITAL


WHICH IS REQUIRED WITHOUT PROVEN ECONOMIC RETURN.


TELECONFERENCE COMMUNICATIONS ARE NOW TECHNICALLY FEASIBLE BUT


STILL VERY EXPENSIVE. HOLLAND & KNIGHT WOULD NEED SEVERAL


TELECONFERENCE FACILITIES IN EACH OFFICE WITH AT LEAST TWELVE


STATE-WIDE OFFICES WHICH WOULD MEAN A PRESENT OUTLAY OF BETWEEN


FIVE MILLION AND EIGHT MILLION DOLLARS. NOT SURPRISINGLY -


HOLLAND & KNIGHT HAS NOT CONCLUDED TO DO THAT NOW.


THERE IT IS THE ARRANGEMENT IS NOT NECESSARILY PRETTY


OR PLEASING TO ANY LAWYER PARTICULARLY AN OLDER ONE. IT IS NOT


TO MY PERSONAL LIKING BUT IT ALREADY IS TECHNICALLY POSSIBLE -


AND THE TREND UNDOUBTEDLY IS NOW THAT WAY. OUR COMPETITION -


LAWYERS EVERYWHERE AND HOLLAND & KNIGHT CLIENTS WILL HELP US


DECIDE IN TIME WHETHER THE ARRANGEMENT I HAVE DESCRIBED IS AN


ACCEPTABLE ONE OR THE BEST ONE AND IF SO WE THEN WILL START


TO SHAPE AND BLOCK OUT AND DIRECT ITS IMPLEMENTATION WITH AN


-17-










EXHAUSTIVE VIEW TO PRESERVING THE BEST OF THE TRADITIONAL LEGAL


PRACTICE. IF THE PAST IS THE FUTURE WE AT HOLLAND & KNIGHT -


WILL THEN WORRY AND FUSS AND FIGHT AND DEBATE AND REFINE


- AND EXPERIMENT AND IMPROVE IT FOR FIFTEEN YEARS AND THEN


PROBABLY DISCARD IT MOVING THE ENTIRE OPERATION BACK TO POLK


COUNTY.


(THANK YOU)


























i?


-18-








SPEECHES OF CHESTERFIELD SMITH


SPEECH NUMBER 272


VOLUME XIX












ADDRESS OF:


CHESTERFIELD SMITH


LAWYER


HOLLAND & KNIGHT


MIAMI, FLORIDA


BEFORE:


HOMECOMING BREAKFAST


UNIVERSITY OF MIAMI


SCHOOL OF LAW


ENTITLED:


HOW LAW FIRMS (AND SPECIFICALLY


HOLLAND & KNIGHT) WILL BE


PRACTICING IN THE YEAR 2000


DATE AND TIME:


SATURDAY, NOVEMBER 15, 1986


8:30 A.M.


TWENTY MINUTES


D-Th


DURATION:










VAST CHANGES ARE UNDERWAY IN THE LEGAL BUSINESS. LAW


FIRMS ARE INCREASINGLY USING MODERN MANAGEMENT AND TECHNOLOGICAL


TOOLS. HIGH TECH LEGAL PRODUCTION COMPUTERIZED LEGAL RESEARCH


AND ELECTRONIC WORD PROCESSING HAVE BECOME A WIDE-SPREAD


REALITY. WITHIN THE ENTIRE LEGAL PROFESSION THE INNOVATIVE


ESTABLISHMENT OF NEW FORMS FOR THE DELIVERY MARKETING AND


PRODUCTION OF LEGAL SERVICES IS THE ORDER OF THE DAY. THE VERY


SOPHISTICATED LEGAL BOUTIQUE THE HIGHLY COMPETENT SMALL


SPECIALTY FIRM THE EVER-BURGEONING HUGE INTERNATIONAL -


NATIONAL AND REGIONAL LAW FIRMS WITH MULTI-OFFICES TIED


CLOSELY TOGETHER IN AN EFFICIENTLY ORGANIZED AND CLOSELY KNIT


ELECTRONICALLY MANAGED FULL SERVICE LAW FIRM PUBLIC INTEREST


LAW FIRMS AND HIGHLY ADVERTISED STORE-FRONT LEGAL CLINICS -


CHAIN STORE STYLE ARE MORE AND MORE TAKING OVER FROM THE


TRADITIONAL LEGAL PRACTITIONER.


THE LEGAL AND PRACTICAL STRUCTURES IN WHICH LAWYERS


PRACTICE HAVE BEEN AND ARE CONTINUOUSLY CHANGING.


PARTNERSHIPS PROFESSIONAL CORPORATIONS AND ASSOCIATIONS JOINT










VENTURES NON-PROFIT CORPORATIONS GROUP-COST SHARERS,


FRANCHISEES IN-HOUSE COUNSEL ARE BURGEONING AT ANY AND ALL


LEVELS. ADVANCES IN TECHNOLOGY THE CRUSHING AVAILABILITY OF


INFORMATION THE UNABATED GROWTH OF URBANIZATION AND THE


ATTENDANT REORDERING OF LIFESTYLES HAVE MADE LAWYERING IN THIS


AGE INCREDIBLY DIFFERENT AND MUCH MORE COMPLEX.


CERTAINLY THE LAST DECADE HAS SEEN LAW FIRMS GROW AND


PROSPER. IN 1969 THERE WERE TWENTY FIRMS IN THE NATION WITH MORE


THAN A HUNDRED LAWYERS IN 1979 THERE WERE OVER A HUNDRED FIRMS


WITH THAT MANY LAWYERS. TODAY THERE ARE OVER THREE HUNDRED AND


FIFTY SUCH LAW FIRMS. THAT GROWTH IN LAW FIRM SIZE HAS BEEN


ACCOMPANIED BY STEADY MOVEMENT INTO ADDITIONAL FIELDS OF PRACTICE


- AND BY THE BRANCHING OF BOTH SMALL AND LARGE FIRMS INTO


MULTIPLE OTHER CITIES INCLUDING SUBURBAN AREAS.


TOTAL SPECIALIZATION IN THE LAW IS HERE. FOR LARGE LAW


FIRMS AND SMALL BOUTIQUE LAW FIRMS IT IS NOT COMING IT HAS


ALREADY ARRIVED. THAT INCREASED SPECIALIZATION IN THE LEGAL


PROFESSION IN MY OPINION TENDS TO BROADEN THE DEMAND FOR LAWYERS.










INSOFAR AS THE BUSINESS INDUSTRIAL AND FINANCIAL COMMUNITY IS


CONCERNED THE DAY OF THE MAGNIFICENT GENERALIST IN THE LAW -


"THE JACK-OF-ALL-TRADES" HAS BECOME A THING OF THE PAST.


LAWYERS REPRESENTING THOSE FAR FLUNG AND DIVERSE ENTERPRISES NOW


OF NECESSITY HAVE TO BE SPECIALLY TRAINED IN SPECIFIC AREAS OF


THE LAW. THAT LEGAL SPECIALIZATION BY INTENSE FAMILIARITY AND


EXCLUSIVE PRACTICE IN LIMITED LEGAL AREAS LOWERS THE FEE


DEMANDS OF LAWYERS ENABLING THEM BETTER TO COMPETE WITH OTHER


DISCIPLINES.


WITH THAT PREDICATE PERHAPS IT IS NOW ACCEPTABLE FOR


ME TO MAKE PREDICTIONS ABOUT THE WAY LAW FIRMS IN GENERAL MIGHT


BE STRUCTURED AROUND THE YEAR 2000. IN MY OPINION THE


CONFUSING DIVERSITY IN FORMS OF PRACTICE THAT NOW EXISTS WILL


CONTINUE AT LEAST IN PART AND EVEN PERHAPS GROW. VERY LARGE


NATIONAL FIRMS WILL COMPETE SIDE BY SIDE WITH VERY LARGE REGIONAL


AND EVEN VERY LARGE LOCAL FIRMS. SPECIALTY FIRMS BOUTIQUE


FIRMS WILL PROSPER BUT IN MY OPINION AT A LESSER LEVEL OF


SUCCESS THAN MOST LAWYERS NOW PREDICT. MIDDLE-SIZED FIRMS WILL










CONTINUE TO BECOME EVER LARGER AND EVERMORE SPECIALIZED. SMALL


GENERAL FIRMS A GROUPING IN WHICH 1 INCLUDE THE SOLE


PRACTITIONER WILL HAVE INCREASED IN NUMBERS ALMOST GEOMETRIC IN


SCALE BUT THEY WILL TEND TO SERVE ALMOST EXCLUSIVELY


INDIVIDUALS OR SMALL CLOSELY-HELD BUSINESS CLIENTS. IT WILL NOT


BE COST EFFECTIVE FOR THE LARGE OR MEGA-FIRMS TO SERVE SUCH


CLIENTS. HOWEVER I PERSONALLY HAVE LITTLE DOUBT THAT THE


LARGER LAW FIRMS BOTH REGIONAL AND NATIONAL WILL DOMINATE THE


GENERAL BUSINESS AND FINANCIAL PRACTICE OF LAW IN FLORIDA AND


ELSEWHERE. SPLIT-OFFS FROM FIRMS OF ALL SIZES WILL INCREASE A


DIRECTION THAT INEVITABLY WILL RESULT IN EVERMORE SPECIALIZED OR


BOUTIQUE FIRMS. NO LONGER WILL A RECENT LAW SCHOOL GRADUATE JOIN


A FIRM NEVER TO LEAVE SPENDING HIS OR HER ENTIRE PRACTICE


THERE. LATERAL MOVEMENT OF BOTH EXPERIENCED AND BEGINNING


LAWYERS WILL BE THE WAY OF THE DAY. THE HIGHLY COMPETENT LAWYER


WILL ON THE AVERAGE PROBABLY CHANGE HIS LEGAL AFFILIATION FOUR OR


FIVE TIMES DURING HIS OR HER PROFESSIONAL PRACTICE. THE MID-


SIZED FULL SERVICE FIRM OF THE YEAR 2000 WILL HAVE THE MOST










TROUBLE IN KEEPING UP IN COMPETING FOR DESIRABLE CLIENTS IN


MAINTAINING MARKET SHARE. SUCH FIRMS OVERALL WILL BE LESS


PROFITABLE THAN BOTH THE VERY LARGE FIRMS AND THE SPECIALTY


BOUTIQUE LAW FIRMS. THE AVERAGE LARGE FLORIDA LAW FIRM OF ABOUT


ONE HUNDRED LAWYERS TODAY WILL HAVE AROUND THREE HUNDRED LAWYERS


IN FIFTEEN YEARS AND NATIONWIDE THERE WILL BE BETWEEN TWENTY-


FIVE AND FIFTY VERY LARGE MEGA-FIRMS OF MORE THAN ONE THOUSAND


LAWYERS MOST OF WHOM WILL HAVE OFFICES IN FROM FIVE TO TEN


METROPOLITAN STATES.


CLIENTS ALREADY TODAY DEMAND THAT LAWYERS CONDUCT THEIR


PRACTICE ON A MORE BUSINESS-LIKE BASIS SO AS TO BECOME MORE


EFFICIENT AND ECONOMIC THAN IN THE PAST. INSTITUTIONAL LOYALTIES


ARE DIMINISHING. THE DRIVING FORCE BEHIND ALL THESE CHANGES IN


THE QUALITY OF LIFE IN THE LEGAL COMMUNITY IN LAW FIRM


STRUCTURE AND GOVERNANCE IN MARKETING IN RECRUITING IN


COMMUNICATIONS IN FEES AND IN LAWYER COMPENSATION IN LEGAL


AND DOCUMENT PRODUCTION IN LATERAL MOVEMENT OF LAWYERS IS


COMPETITION INTENSE MERIT COMPETITION DOG-EAT-DOG COMPETITION










- NEVER CEASING COMPETITION UNYIELDING COMPETITION -


COMPETITION BETWEEN LAW FIRMS TO GET THE BEST POSSIBLE LAWYERING


DONE IN THE MOST SATISFACTORY AND ECONOMIC WAY FOR CLIENTS AND


FOR SOCIETY AS A WHOLE.


TO BRING SOME OF THE ISSUES RAISED BY THOSE CHANGES INTO


SHARPER FOCUS I AM GOING TO TALK BRIEFLY ABOUT HOLLAND & KNIGHT


- THE LAW FIRM WHERE I PRACTICE HOW IT IS NOW AND DISCUSS


WITH YOU WAYS FORMS AND STRUCTURES WHICH MIGHT HAPPEN TO


IT IN THE FUTURE HOW IT MAY BE IN 15 YEARS. MY COMMENTS MAY


TURN OUT TO BE INACCURATE OR EVEN RIDICULOUS BUT THESE


FANTASY RUMINATIONS ARE MY OWN THEY ARE NOT TO BE ATTRIBUTED TO


THE FIRM THEY ARE GIVEN BY ME AS A FUN WAY TO TRIGGER THOUGHT


AND DISCUSSION ABOUT THE LAW FIRM OF THE FUTURE. IF MY PROPOSALS


WERE PRESENTED TO THE SEVERAL PARTNERS OF HOLLAND & KNIGHT TODAY


- THEY SURELY WOULD NOT TODAY BE ACCEPTED. INDEED THOSE PARTNERS


WOULD BE SHOCKED ALMOST CERTAINLY CONCLUDING THAT I WAS ON A


COCAINE TRIP.










I ENVISION HOLLAND & KNIGHT IN THE YEAR 2000 STILL TO BE


PRIMARILY A FLORIDA LAW FIRM WITH OFFICES GEOGRAPHICALLY


COVERING THE ENTIRE STATE AND WITH A WASHINGTON LEGAL OUTLET


DESIGNED PRIMARILY TO SERVE FLORIDA CLIENTS WITH FEDERAL LEGAL


PROBLEMS. HOLLAND & KNIGHT IN THE YEAR 2000 WILL HAVE AROUND


1,500 LAWYERS A PROJECTED CONTINUATION OF THE FIFTEEN PER CENT


ANNUAL GROWTH RATE IT HAS BEEN EXPERIENCING. ALL HOLLAND &


KNIGHT LAWYERS WILL BE MEMBERS OF THE FLORIDA BAR AND


APPROXIMATELY 300 OF THOSE WILL BE GRADUATES OF THE UNIVERSITY OF


MIAMI LAW SCHOOL. IT WILL HAVE AS FLORIDA COMPETITORS IN SIZE


- AT LEAST THREE OTHER FLORIDA LAW FIRMS PERHAPS ONE OF WHICH


WILL HAVE AS MANY AS 2000 LAWYERS AND HOLLAND & KNIGHT WILL


ALSO COMPETE IN THE LARGER METROPOLITAN AREAS OF FLORIDA WITH AT


LEAST TEN OF THE VERY LARGE REGIONAL NATIONAL OR


INTERNATIONAL MEGA-FIRMS ALL OF WHOM WILL HAVE AT LEAST 200


MEMBERS OF THE FLORIDA BAR PRACTICING IN THE STATE.


FOR HOLLAND & KNIGHT MOST OF THOSE 1500 LAWYERS WILL


BE LOCATED IN ONE BIG CENTRALIZED LOCATION PERHAPS A LOW RENT










AREA BUT A PLACE WITH A HIGHLY DESIRABLE ENVIRONMENT WHERE THE


LIVING IS NICE A CITY LIKE LAKELAND LOCATED IN THE SAND HILLS


- AND ORANGE GROVES AND AROUND THE LAKES A CITY WITH ALL OF


THE AMENITIES BUT ONE WITH A VERY LOW COST OF LIVING AND A


STABLE LABOR FORCE. THE MAJOR RESEARCH AND PRODUCTION FACILITIES


OF THE ENTIRE FIRM WILL BE THERE IN LAKELAND THE MAINFRAME


COMPUTERS WESTLAW LEXIS NEXUS ALL ELECTRONIC LEGAL


RESEARCH FACILITIES A MICROFICHE LIBRARY PARAPROFESSIONALS -


LEGAL TECHNICIANS THE CLOSED FILES ALL WOULD BE HOUSED OR


MAINTAINED IN THAT CENTRAL OFFICE. AN ATTRACTIVE LIFESTYLE FOR


ALL IN THE CENTRAL OFFICE CAUSING LAWYERS AND OTHER


PROFESSIONALS TO WANT TO WORK THERE WOULD BE A PRIME AND


CONTINUING GOAL OF MANAGEMENT. THE HOLLAND & KNIGHT CENTRAL


OFFICE STAFF WOULD EMBRACE AND HOUSE PROFESSIONALS FROM


MULTIPLE DISCIPLINES OTHER THAN THE LAW SUCH AS ENGINEERS -


ECONOMISTS ARCHITECTS SURVEYORS PHYCOLOGISTS MEDICAL


DOCTORS CARTOGRAPHERS STATISTICIANS AGRONOMISTS -


HYDROLOGISTS PHYSICISTS BIOLOGISTS AND ELECTRONIC AND










COMMUNICATION SPECIALISTS. PLEASANT AND HIGH QUALITY SCHOOLS -


DELIGHTFUL HOMES AND AMPLE RECREATIONAL FACILITIES FOR


EVERYONE THERE WOULD BE MADE AVAILABLE AND MAINTAINED BY


HOLLAND & KNIGHT. LAWYERS FROM THAT CENTRAL OFFICE WILL TRAVEL


TO THE VARIOUS LAW OFFICES COURTHOUSES CITY HALLS -


ADMINISTRATIVE HEADQUARTERS GOVERNMENTAL OFFICES LOCATED


THROUGHOUT THE STATE UTILIZING EITHER HELICOPTERS AIRPLANES -


OR AUTOMOBILES TO TRY CASES TO TAKE DEPOSITIONS TO ENGAGE


IN ADVERSARIAL RELATIONSHIPS AT ALL LEVELS TO NEGOTIATE TO


COUNSEL AND TO CLOSE TRANSACTIONS. EVERY KIND OF LEGAL


SPECIALIZATION KNOWN TO THE FIRM WILL BE ORGANIZED IN THAT


CENTRAL OFFICE IN TEAMS GROUPS AND DIVISIONS. PRODUCING


AND WORKING IN A HIGHLY INTEGRATED BUT TOTALLY PLEASANT WORK


ENVIRONMENT.


A FIRM CLIENT WILL NEVER VISIT THAT CENTRAL OFFICE -


CLIENTS WILL NOT BE ALLOWED. BUT THAT CENTRAL OFFICE WILL BE


ELECTRONICALLY CONNECTED WITH THE TEN OR FIFTEEN CLIENT OFFICES


LOCATED THROUGHOUT FLORIDA EACH OF WHICH WILL HAVE TWENTY-FIVE










TO FIFTY LAWYERS. THE LAWYERS IN THOSE CLIENT OFFICES PRIMARILY


WILL BE INVOLVED IN LEGAL WORK FOR EXISTING FIRM CLIENTS AND


ALSO WITH THE TOTAL SOCIAL ECONOMIC AND POLITICAL LIFE OF THE


ENTIRE GEOGRAPHIC REGION WHERE THE PARTICULAR CLIENT OFFICE IS


LOCATED. THEY WILL BE EXPERIENCED AND HIGHLY TRAINED LAWYERS -


ABLE TO ATTRACT LEGAL BUSINESS AND PROFICIENT IN COUNSELING


FIRM CLIENTS IN THE HIGHEST AND BEST TRADITIONS OF THE HONORED


GENERAL PRACTITIONER. AN INSTITUTIONAL FIRM CLIENT WITH


SUBSTANTIAL RECURRING AND MASSIVE LEGAL PROBLEMS WILL HAVE


CONTACTS WITH SEVERAL CLIENT OFFICES THROUGHOUT FLORIDA OR


MAYBE ALL OF THEM. AS A USUAL MATTER THE HOLLAND & KNIGHT


LAWYER STATIONED IN A CLIENT OFFICE WILL ADVISE COUNSEL AND


CONSULT WITH A PARTICULAR CLIENT AND IF THAT CLIENT HAS


SPECIFIC LEGAL DEMANDS THEN HELP MEET THAT CLIENT'S NEEDS BY


UTILIZING AN APPROPRIATE LEGAL SPECIALTY LAWYER GROUP OR TEAM


IN THE CENTRAL OFFICE. FOR EXAMPLE A PARTICULAR DADE COUNTY


CLIENT AND A CLIENT LAWYER LOCATED IN A HOLLAND & KNIGHT


CLIENT'S OFFICE IN MIAMI MAY TALK BY TELECONFERENCE FIRST ABOUT


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THE CLIENT'S PROBLEMS WITH A TRIAL GROUP LOCATED IN THE CENTRAL


OFFICE. WHEN THE LITIGATION TELECONFERENCE IS THROUGH THE


CLIENT AND THE CLIENT LAWYER THEN MAY CLARIFY WITH A


SPECIALIST IN THE CENTRAL OFFICE TAX ASPECTS OF THE CLIENT'S


MATTER. LASTLY THE CLIENT AND THE CLIENT'S LAWYER MAY


CONFER BY TELECONFERENCE WITH A CENTRAL OFFICE SPECIALIST ON THE


SECURITIES AND CORPORATE ASPECTS. ALL OF THAT AND THE


RESULTING LEGAL PRODUCT INCLUDING CONTRACTS PLEADINGS -


BRIEFS OPINIONS OR BUSINESS OR CORPORATE DOCUMENTS WILL BE


PRODUCED BY THE CENTRAL OFFICE AND DELIVERED TO THE CLIENT


SITTING FAR AWAY IN A CLIENT OFFICE. LEGAL PAPERS WILL WHIZ


ELECTRONICALLY BACK AND FORTH INSTANTANEOUSLY BY LASER TECHNOLOGY


FROM THE CENTRAL OFFICE TO THE SEVERAL CLIENT OFFICES LOCATED


THROUGHOUT THE STATE AND WHEN DESIRABLE FROM CLIENT OFFICE TO


CLIENT OFFICE. MAJOR AND CONTINUING CLIENTS WILL HAVE THEIR OWN


IN-HOUSE TELECONFERENCE SCREENS SO THAT THEY CAN CONTACT THOSE


LAWYERS WORKING FOR THEM IN THE HOLLAND & KNIGHT CENTRAL OFFICE


ABOUT THEIR LEGAL PROBLEMS WITHOUT VISITING THE HOLLAND & KNIGHT


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CLIENT'S OFFICE. INDEED ONCE AN ATTORNEY-CLIENT CONNECTION HAS


BEEN ESTABLISHED BY A PARTICULAR CLIENT WITH A PARTICULAR


SPECIALIST IN THE HOLLAND & KNIGHT CENTRAL OFFICE BY


TELECONFERENCE FACILITIES THE CLIENT OFTEN THEREAFTER WILL BY-


PASS THE HOLLAND & KNIGHT CLIENT LAWYER AND GO DIRECTLY TO THE


SPECIALIST IN THE HOLLAND & KNIGHT CENTRAL OFFICE.


THE HOLLAND & KNIGHT CLIENT OFFICES LOCATED IN AT MOST


TEN TO FIFTEEN METROPOLITAN AREAS WOULD HOUSE PRIMARILY SENIOR


LAWYERS OR THOSE ESPECIALLY TRAINED OR QUALIFIED IN COUNSELING -


BUT THERE ALSO WILL BE A SUBSTANTIAL NUMBER OF BEGINNING OR LESS


EXPERIENCED LAWYERS ASSIGNED THERE TOO. IN ADDITION TO THE


PERFORMANCE OF NORMAL CLIENT LEGAL SERVICES ALL LAWYERS IN THE


CLIENT OFFICES WILL BE CONTINUOUSLY INVOLVED IN COMMUNITY SERVICE


- PRO BONO TYPE LAW ACTIVITIES ACTIVITIES OF THE ORGANIZED BAR


- AND PERHAPS ABOVE ALL CLIENT DEVELOPMENT AND MARKETING.


THERE WOULD BE EXTENSIVE LEGAL WORK PERFORMED FOR CLIENTS BY THE


LAWYERS IN THE HOLLAND & KNIGHT CLIENT OFFICES ABOUT THE SAME


AMOUNT AND DONE IN THE SAME WAY THAT LEGAL SERVICES ARE NOW


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PERFORMED IN THE HOLLAND & KNIGHT MIAMI OFFICE EACH CLIENT


OFFICE WOULD BE EQUIPPED WITH SEVERAL LARGE THREE-SIDED


TELECONFERENCE ROOMS TWELVE OR FIFTEEN SMALL CLIENT CONFERENCE


ROOMS ONE SMALL AUDITORIUM CAPABLE OF SEATING TWO TO FOUR


HUNDRED PEOPLE SPECIAL FACILITIES FOR ENTERTAINMENT EXTENSIVE


RESOURCES FOR MARKETING AND MARKETING PRESENTATIONS. IT WOULD


HAVE NO TYPEWRITERS NO LIBRARY BOOKS AND NO FINANCIAL OR


ACCOUNTING FACILITIES. PERHAPS SUCH HOLLAND & KNIGHT OFFICES


WILL AT LEAST INITIALLY BE LOCATED IN MIAMI FORT LAUDERDALE


- WEST PALM BEACH FORT MYERS BRADENTON-SARASOTA TAMPA-ST.


PETERSBURG-CLEARWATER LAKELAND ORLANDO DAYTONA BEACH -


JACKSONVILLE GAINESVILLE TALLAHASSEE PENSACOLA AND THE


DISTRICT OF COLUMBIA.


THE FOREGOING RECITAL OF HOLLAND & KNIGHT'S OPERATION IN


THE YEAR 2000 IS QUITE OBVIOUSLY AN OVER-SIMPLIFICATION. IF IT


IS EVER IMPLEMENTED AND REFINED THERE MANIFESTLY IS BOTH GOOD


AND BAD IN IT. A HOLLAND & KNIGHT CENTRAL OFFICE OF 1000 IN


LAKELAND COULD MEAN THAT A LOT OF LAWYERS WILL BE LEFT IN A DEEP


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PROFESSIONAL HOLE IN THE MINDS OF SOME BECOMING ALMOST LIKE


FACTORY PRODUCTION WORKERS. BUT THOSE LAWYERS IN THE CENTRAL


OFFICE CAN IF THEY WISH ALSO HAVE A LEISURELY LIFE AT THEIR


OWN PACE AND WITH THEIR OWN ECONOMICS AND SOCIAL GOALS COME


TO WORK IF THEY WISH AT 6:00 IN THE MORNING AND WORK THROUGH TO


2:00 P.M. OR AT 6:00 IN THE EVENING AND WORK TO 2:00 A.M. -


HAVING TIME OFF EVERYDAY TO FISH OR PLAY TENNIS OR GOLF OR


DO THEIR OWN THING WHATEVER. THEY CAN WRITE OR FARM OR BE


ENTREPRENEURS. THEY CAN FLY OR SWIM OR READ AND REST. THERE


ARE SUCH LAWYERS IN THE WORLD THOSE WHO WANT TO DO SOMETHING


BESIDE THE 10 HOURS A DAY SEVEN DAYS A WEEK LIFE NOW PURSUED BY


SO MANY LAWYERS.


GOOD THINGS FOR HOLLAND & KNIGHT AND ITS CLIENTS -


COMING OUT OF SUCH AN ARRANGEMENT WILL BE OVERWHELMING. LEGAL


TRAINING AND QUALITY CONTROL WOULD BE A PURIST EXPERIENCE -


BEAUTIFUL. ALL OF THE UNNECESSARY INVOLVEMENT THAT MOST LAWYERS


HAVE WITH NUISANCE CLIENTS WILL BE MITIGATED OR EVEN ELIMINATED.


THE NORMAL SPECIALIST WOULDN'T HAVE TO WORRY ABOUT THE MULTIPLE


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THINGS INVOLVED IN LAW PRACTICE IN WHICH THAT LAWYER HAS


ABSOLUTELY NO INTEREST ADMINISTRATION RECRUITING MARKETING.


IF A LAWYER CARED MORE ABOUT A STAMP COLLECTION THAN WORKING ON


FIRM COMMITTEES IT WOULD BE ARRANGED FOR THAT LAWYER IN THE


CENTRAL OFFICE NOT TO WORK ON THE FIRM COMMITTEE. ALL


ADMINISTRATIVE CHORES MANAGEMENT ACCOUNTING BILLING -


CONFLICT CHECKS FINANCES RECRUITING EVALUATING MARKETING


- WILL BE CENTRALIZED AND HANDLED BY NON-LAWYERS. MASSIVE


RESOURCES TO MEET ALL NEEDS WILL BE READILY AVAILABLE. WORK


LOADS WILL BE BALANCED. THE HUMAN POWER THE MEN AND WOMEN


LAWYERS THE PROFESSIONAL DISCIPLINES AND SPECIALTIES ALL WILL


DISTRIBUTE THEIR SPECIALIZED WORK ASSIGNMENTS IN THE CENTRAL


OFFICE EQUALLY AMONG THEMSELVES. IN THE CENTRAL OFFICE -


EVERYONE WILL NORMALLY BE IN THE OFFICE USING NORMALLY THE


TELECONFERENCE FACILITIES INSTEAD OF TRAVEL. AND I REITERATE A


CLIENT WILL NEVER NEVER VISIT THE HOLLAND & KNIGHT CENTRAL


OFFICE.


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HOLLAND & KNIGHT CURRENTLY HAS AN OFFICE IN LAKELAND IN


WHICH OUR MAINFRAME COMPUTERS ARE LOCATED. ABOUT SIXTY PEOPLE


WORK THERE NONE OF WHOM ARE LAWYERS. WE NOW PAY $5.75 A SQUARE


FOOT RENT CONTRASTED WITH $25 A SQUARE FOOT FOR RENT IN MIAMI.


IF THE MAINFRAME COMPUTER WAS NOW IN THE MIAMI OFFICE A LOT OF


RENT MONEY WOULD BE SPENT THAT WE DON'T NOW SPEND AND THE


SERVICE WE GET FROM LAKELAND NOW IS JUST AS GOOD FOR OUR PURPOSES


AS IF THE LAKELAND FACILITIES WERE LOCATED IN THE MIAMI OFFICE.


WITH THAT HOLLAND & KNIGHT CENTRAL OFFICE CONCEPT -


ECONOMICS IN LAW OFFICE OPERATIONS WILL BE MULTIPLIED BY HAVING


EVERYTHING CENTRALIZED AND MASSED. AS YOU SAVE IN RENT YOU


WILL ALSO SAVE IN SECRETARIAL OR WORD PROCESSING COST AND


HUNDREDS OF OTHER WAYS. ALL FACILITIES FOR QUALITY CONTROL -


MANAGEMENT TRAINING MARKETING ACCOUNTING PERSONNEL -


RECRUITING CONFLICT AVOIDANCE LEGAL RESEARCH ARE LOCATED AT


THE MOST ECONOMICAL AND EFFICIENT LOCATION WITHOUT REGARD TO


WHERE FIRM CLIENTS ARE LOCATED.


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PERHAPS THE ONLY THING THAT PREVENTS HOLLAND & KNIGHT


FROM UTILIZING TELECOMMUNICATIONS BETWEEN ITS EXISTING OFFICES IN


THAT WAY AT THE PRESENT TIME IS THE MASSIVE INFUSION OF CAPITAL


WHICH IS REQUIRED WITHOUT PROVEN ECONOMIC RETURN.


TELECONFERENCE COMMUNICATIONS ARE NOW TECHNICALLY FEASIBLE BUT


STILL VERY EXPENSIVE. HOLLAND & KNIGHT WOULD NEED SEVERAL


TELECONFERENCE FACILITIES IN EACH OFFICE WITH AT LEAST TWELVE


STATE-WIDE OFFICES WHICH WOULD MEAN A PRESENT OUTLAY OF BETWEEN


FIVE MILLION AND EIGHT MILLION DOLLARS. NOT SURPRISINGLY -


HOLLAND & KNIGHT HAS NOT CONCLUDED TO DO THAT NOW.


THERE IT IS THE ARRANGEMENT IS NOT NECESSARILY PRETTY


OR PLEASING TO ANY LAWYER PARTICULARLY AN OLDER ONE. IT IS NOT


TO MY PERSONAL LIKING BUT IT ALREADY IS TECHNICALLY POSSIBLE


AND THE TREND UNDOUBTEDLY IS NOW THAT WAY. OUR COMPETITION


LAWYERS EVERYWHERE AND HOLLAND & KNIGHT CLIENTS WILL HELP US


DECIDE IN TIME WHETHER THE ARRANGEMENT I HAVE DESCRIBED IS AN


ACCEPTABLE ONE OR THE BEST ONE AND IF SO WE THEN WILL START


TO SHAPE AND BLOCK OUT AND DIRECT ITS IMPLEMENTATION WITH AN


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EXHAUSTIVE VIEW TO PRESERVING THE BEST OF THE TRADITIONAL LEGAL


PRACTICE. IF THE PAST IS THE FUTURE WE AT HOLLAND & KNIGHT -


WILL THEN WORRY AND FUSS AND FIGHT AND DEBATE AND REFINE


- AND EXPERIMENT AND IMPROVE IT FOR FIFTEEN YEARS AND THEN


PROBABLY DISCARD IT MOVING THE ENTIRE OPERATION BACK TO POLK


COUNTY.


(THANK YOU)


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SPEECHES OF CHESTERFIELD SMITH


SPEECH NUMBER 273


VOLUME XIX













REMARKS OF:


BEFORE:


CHESTERFIELD SMITH
LAWYER
HOLLAND & KNIGHT


MIAMI, FLORIDA



ORANGE COUNTY BAR ASSOCIATION
ORLANDO, FLORIDA



AN INDEPENDENT FEDERAL JUDICIARY
AND CIVIL LIBERTIES AND
INDIVIDUAL FREEDOMS



THURSDAY, JANUARY 15, 1987
12:00 NOON


TITLE:


DATE:


TWENTY MINUTES


a-77


LENGTH:










AMERICANS LONG HAVE REALIZED THAT AN ABSOLUTELY INDEPENDENT


JUDICIARY AT THE FEDERAL LEVEL IS ESSENTIAL TO THE PRESERVATION OF


BOTH ITS REPUBLICAN FORM OF GOVERNMENT AND ITS CHERISHED CIVIL


LIBERTIES AND INDIVIDUAL FREEDOMS,


THAT JUDICIAL INDEPENDENCE


IS IN A SIGNIFICANT WAY BUTTRESSED ON THE CONTINUED DEVOTION OF


ITS PEOPLE TO EACH CONCEPT,


UNDER THE AMERICAN SYSTEM OF


GOVERNMENT THE SIMPLE TRUTH IS THAT THE FUNDAMENTAL CHECK TO


GOVERNMENTAL POWER AND ITS POTENTIAL ABUSE HAS BEEN IS AND


WILL BE THE FEDERAL COURTS.


WHERE A JUDICIARY IS NOT STRUCTURALLY AND IN FACT -


INDEPENDENT FROM OTHER BRANCHES OF GOVERNMENT OR WHERE ITS


INDEPENDENCE IS NOT FORMALLY RESPECTED BY THE CITIZENRY OR WHERE










LITIGANTS BEFORE IT ARE INTIMIDATED OR PERSECUTED FOR MERELY


ATTEMPTING TO SECURE THEIR RIGHTS AND FREEDOMS THERE ARE NO


TRULY EFFECTIVE DEFENSES IN THAT JUDICIAL SYSTEM AGAINST OR


REMEDIES FOR INDIVIDUAL PROTECTION FROM GOVERNMENTAL VIOLATIONS,


SINCE CIVIL LIBERTIES OR INDIVIDUAL FREEDOMS ARE RARELY


SELF-DEFINING AND ARE NEVER SELF-ENFORCING ANY POLITICAL SYSTEM

A4P FREE06MS
WHICH INTENDS TO RECOGNIZE THOSE RIGHTSAALWAYS MUST MAKE A FUNDAMENTAL


CHOICE ABOUT WHO IS TO DEFINE AND ENFORCE THEM,


MANY SOCIETIES


HAVE CHOSEN TO GIVE POLITICALLY SENSITIVE LEGISLATORS OR ADMINISTRATORS


THE LAST WORD IN DECIDING THEIR SCOPE.


AMERICA ON THE OTHER HAND -


WISELY HAS CHOSEN TO GIVE PRECISE MEANING TO THOSE CONCEPTS BY


USING INSULATED FEDERAL JUDGES TO CONSTRUE A PURPOSEFULLY AMBIGUOUS


-2-