“No man is above the law, and no man is below it.” – Theodore Roosevelt
With this in mind and the New Year here, I proudly introduce 7 Questions -The Law Series. In the coming months these articles will be focusing more directly on the law - not just in the United States, but around the world. The articles are designed to help you, the reader, become more informed on matters of the law, the justice system, its duties, your role, the struggles, the hopes, the high (and some low)lights and the people involved and immersed in the profession of law.
Our first interview features one of those people, who is deeply involved with the profession - H. Thomas Wells, president of the American Bar Association (ABA), the largest organization of lawyers in America. A well-spoken Alabama attorney that leads over 400,000 ABA members in its initiatives to improve the legal system for the public, providing information about the law, programs to assist lawyers and judges in their work, and continuing legal education for the profession. In a word, Mr. Wells has the “pulse” of the law. The opportunity to sit down and talk with this gentleman about the law, its life and its applications was a genuine pleasure which I hope captures you as you read on.
Matthew Crouch: What is the most important thing that J.Q. Public should know about the legal system and their access to it?
Thomas Wells: Really, we have to start with the fundamentals. Start with the concept of checks and balances: understanding the concept of three co-equal branches of government. One branch of government doesn’t have all the answers. As a member of the public, you can’t always look to the executive only, or legislative only or even to the courts only for the answer. Each branch has its own role. I think understanding the fundamentals is most important.
MC: Do you think justice and access to it is a right or a privilege?
TW: I believe clearly that it is a right. For example, as you know in most criminal cases, if you can’t afford a lawyer, a lawyer will be provide to you because it is a situation where life and liberty is on the line. The ABA has taken a position that there should be a corresponding civil right to a lawyer when basic human needs are at stake: shelter, food and water. If someone is being evicted and has no place else to go, that person should be allowed to have a lawyer even if they can’t afford one or if a pro-bono one is not available. This position is sometimes referred to as the “civil Gideon” based on the Gideon v. Wainwright right which established the right to counsel in criminal cases.
MC: What is your definition of the "rule of law?" And what do you think J.Q. Public’s role is to the rule of law?
TW: I think the best definition of the rule of law is the one developed by the World Justice Project, which, of course, initiated by the ABA beginning last year. It really has four imperatives to the rule of law: 1) Government officials are accountable and have to follow the law; 2) that laws are made in an open process and protect the rights of individuals and of property; 3) that the legal system is guided by due process; and 4) the laws have to be enforced fairly so that everyone can have confidence in them. That is the definition that some very smart people working on the World Justice Project came up with.
I obviously paraphrased somewhat from the exact wording that they used, but I think we got the gist of it. What they were trying to do is find the rule of law for the world, not just the United States but for any society. As for J.Q. Public, well, I think first that J.Q. Public needs to understand what the rule of law is. And that it is the glue that binds us and prevents disputes from being decided simply by who is the biggest, who is the strongest, who is the richest or who is the best armed. Because if you think about it, that is was a justice system does. It decides society's disputes without resulting in force.
MC: Where do you see the ABA and the legal profession itself on the global scale?
TW: It is interesting that you ask that because I just got back from the International Bar Association meeting in Buenos Aires. I spent a week meeting with bar association leaders from all over the world. It is a bit humbling to see the respect that foreign bar leaders give to the American legal profession and the American legal system itself. Quite frankly, I think sometimes I believe that foreigners have a greater respect for our legal system than some of our own citizens. This is unfortunate but obviously understandable in the current situation. Some of bar leaders and attorneys come from countries were the rule of law is not as robust as it is in the United States, so they really understand why it is important.
MC: What is the greatest challenge facing the legal profession today?
TW: Well, you know if you asked me that six months ago, I might have given you a different answer. But I think today – it is the same challenge that we have world wide, which is the financial crisis. There will clearly be a legal fall-out from this as well as deep financial fallout and that is certainly going to be the short and long term challenge for all of us.
MC: What do you think the most important part of the U.S. Constitution is? Is there anything that you would add or subtract to the Bill of Rights?
TW: For me, it is the Bill of Rights. Over the few hundred years that we have been in existence, it is perhaps one of the more litigated parts of our Constitution. I certainly would not subtract anything from the Bill of Rights. There is something in there whether you are a liberal or a conservative. From the Second Amendment to bear arms to the Sixth Amendment to the Fifth Amendment, there is something for everybody. Realistically, there are rights that we as American citizens believe are rights that are not listed on the Bill of Rights. One of the examples is the right to privacy. If you asked anybody on the street is there a right to privacy, most everybody will say "yes there is."
But there is no right to privacy written in those terms in the Bill of Rights. It has been interpreted by the courts to be included.
MC: What is your favorite law and why?
TW: This is a bit obscure, but the Rule against Perpetuities. As you probably know, the Rule against Perpetuities is a rule of future interest law generally used in estate planning. This rule says that the property right or a right in a piece of property must vest, if ever, within the life or lives in being plus twenty-one years. It is my favorite because it was the lynchpin of the movie “Body Heat.” It is the only time that I have ever seen really arcane, sort of boring, estate planning rule of law become the central piece of a Hollywood movie.
For more information on President H. Thomas Wells or the American Bar Association, please visit www.abanet.org.
To build on, the next 7 Questions-The Law Series article will feature Attorney William Kelly and a discussion on employment law & tough times.
written by David A. Simmental, Esq. Greeenwood Village, CO , January 09, 2009
J.Q. Public needs to feel that the law personally serves them. If the public feels that the law only protects the majority, the rich, the government, the criminal, the poor, the etc. but not them, they will not feel the have a stake in the government, in the rule of law, or in society. The Courts have traditionally protected the rights of the individual, regardless of popular opinion. We have a responsibility to ensure that every individual has the right to demand fair and impartial hearing before a governmental entity, whether it be a judge, municipal board or Congress, with the power to resolve his or her dispute. Too often we create barriers to this right because we are worried it is "open the floodgates" to frivolous claims or it will cost too much or it will needlessly create more work for the government. If an individual does not feel safe, secure and empowered in presenting his claim to his government, what is the point of government or the rule of law?
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