Monday, June 04, 2012

The Past Provides Myth and Reality

I can’t believe it. My last two columns were about the so called Top 100 whatever lawyers, judges, taxidermists, you name it. I received more e-mails on these columns than any previous columns, except the ones I have written about cats. One cannot imagine how many hundreds of cat lovers there are in the legal profession, except for a few who find the feline species abhorrent. Well, what do you expect from judges?
I had hoped that, at last, we are done with the “tops,” and the “best,” and the “greatest,” when just last week I received the slick 47-page magazine supplement to The Los Angeles Times, “Southern California’s BEST LAWYERS-The Definitive Guide to Legal Representation in Southern California.” Let us hope that this column, Part III, will be the last in the series.
The “best” in the magazine greatly outnumber the Top 100 lawyers that I mentioned in my last two columns. Some lawyers were both in the Top 100 and Best Lawyers lists. Some made one list, but not the other. I wonder why. They all deserve praise, but the manner of selection still puzzles me despite the comprehensive explanation in a box at the bottom of page 12. The box is entitled “METHODOLOGY.” It explains that selection is “based solely on a vote of [the lawyer’s] peers.” It is a relief to know that “listings cannot be bought," and that “no purchase is required to be included.” Does this include the full page photos of lawyers in smartly tailored suits and warm engaging smiles informing the reader of the benefits they derive from the firm’s representation?
I do not doubt that the “Best Lawyers” magazine in fact does list highly competent lawyers. I just think the list of the “best” or the “top” is not comprehensive. There are plenty of first-rate lawyers who are not mentioned in either list. Whether deserved or not, the advantage to being on a list of "the best," "the brightest," "the most wonderful" is that it satisfies the ego and helps business. Lists and marketing have replaced love and marriage as inseparable.
The same principle applies to law schools. Are the best Harvard, Yale, Stanford, Berkeley Law-Boalt Hall….? If I were to rate smaller, less known law schools, I would put the Monterey College of Law on the top of the list. Two weeks ago, I journeyed to Monterey, California to participate in the law school’s Heisler Moot Court program. The yearly event, named after legendary civil rights lawyer Francis Heisler, was held in the World Theater on the Cal State campus. Several hundred people in the community witnessed a spectacular display of appellate advocacy by the students.
I had participated in this program a few times in the past, and I once again joined my colleagues, Justice Patricia Bamattre-Manoukian and retired Monterey Superior Court Judge Richard Silver to sit on the appellate panel for the 25th year of this unique moot court. What has remained constant over the years is the student's high level of competence. Their inventive professors, Joel Franklin and Michael Stamp, never at a loss to create an intriguing problem, crafted a legal case involving a national mandatory vaccination program. Does this program override the rights of members of a church, the religious tenants of which are opposed to vaccinations? And can this law run afoul of the Commerce Clause? Professors Franklin and Stamp, and the articulate students who presented both sides of the case, gave us a preview of how our National Health Care Bill may be argued before the United States Supreme Court.
My trip to Monterey also gave me the opportunity to spend some time with my friend, Blaine Gibson, whose father Phil Gibson was California’s preeminent Chief Justice. Signed photographs from Gibson’s friends, Presidents Kennedy and Johnson, including his entire cabinet, Chief Justice Earl Warren, and other dignitaries line the walls of the warm hacienda-style home in Carmel where Blaine grew up. Over wine and cheese, Blaine and I talked about what the court was like during the forties and fifties.
However more complex our society is today, I fail to see why it can take more than 70 pages to write, often in impenetrable prose, a United States Supreme Court opinion or a Supreme Court opinion of any individual state. Perhaps these courts are burdened with so many cases that time does not allow for a briefer legal analysis. Oliver Wendell Holmes' and Benjamin Cardozo's opinions were tightly written; clarity and substance prevailed.
The same can be said of opinions authored by California’s two great Chief Justices Phil Gibson and Roger Traynor. In Jackson v. Pasadena City School Dist. (1963) 59 Cal.2d 876, Gibson, writing for a unanimous court, held it a violation of equal protection for a school district to gerrymander school zones to achieve segregation. He said it in five pages. In Sei Fujii v. State of California (1952) 38 Cal.2d 718, Gibson wrote the majority opinion, striking down as a violation of equal protection the California Alien Land Law, which prevented an alien Japanese from owning land. He took a few more pages, 17 1/2, to write this historic opinion. And Justice Jesse Carter's 14-page concurring opinion eloquently refutes the dissent's charge that the majority "desire to make the law what [it thinks] it should be." (Id. at p. 738.)
Gibson was our Supreme Court's supreme administrator. He persuaded the Legislature to transfer the authority to draft rules of appellate procedure and ultimately all the rules of practice and procedure to the Judicial Council. He created the Judicial Performance Commission and wrote 670 opinions. Unlike what is de rigeur today, Gibson sought to avoid the spotlight and publicity. He did not aspire to a "best" list. He let his work speak for itself and left the court in better condition than when he joined it.
I hope I have not distorted the past through the lens of nostalgia. In many significant ways, the law has progressed, and we recognize rights that had long been denied our citizens. Philosopher and critic Marshall McLuhan posited that we romanticize earlier ages and make them into art forms. Take the “West,” for example. There may have been lonesome cowboys sitting around evening campfires giving voice to inarticulate thoughts through the mournful notes of their harmonicas. But the laconic Marlboro Man was a myth invented by characters like those in Mad Men, a creation of Madison Avenue. It is unlikely that he was the archetype for those who herded unruly cows crammed together on the dusty plain. (I probably got that image from a movie but no matter.) Instead, the Marlboro Man was on a plane en route to film a commercial that sought to sell nicotine against the backdrop of an ersatz past. Mel Brooks, on the other hand, got it right in Blazing Saddles. We know the consequences of bacon and beans around the fireside. Similar consequences often flow from giving primacy to marketing over ability.
Some aspects of the past, however, serve as a useful model for the present. Our two great California Justices Phil Gibson and Roger Traynor proved that the best can rise to the top without a list or an advertisement.

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