Woe Unto You, Lawyers!

Woe unto you, scribes and Pharisees, hypocrites! For ye compass sea and land to make one proselyte, and when he is made, ye make him twofold more the child of hell than yourselves.

Matthew 23:15, KJV

 

 

Once upon a time, a law professor by the name of Fred Rodell wrote a legal treatise on nature of the law itself. Sure, he based the title of his treatise upon Luke 11:52, but I thought Matthew 23:15 better highlighted just how much those who are licensed to practice law are essentially a priest-class:

 

“In TRIBAL TIMES, there were the medicine-men. In the Middle Ages, there were the priests. Today there are the lawyers. For every age, a group of bright boys, learned in their trade and jealous of their learning, who blend technical competence with plain and fancy hocus-pocus to make themselves masters of their fellow men. For every age, a pseudo-intellectual autocracy, guarding the tricks of its trade from the uninitiated, and running, after its own pattern, the civilization of its day.”

 

I couldn’t have it said it better myself, but why should anybody give a flying crap about what the lawyers want? Rodell explains:

 

“Of all the specialized skills abroad in the world today, the average man knows least about the one that affects him most – about the thing that lawyers call The Law…[n]ormal human skepticism and curiosity seems to vanish entirely whenever the layman encounters The Law…[t]he legal trade, in short, is nothing but a high-class racket. It is a racket far more lucrative and more powerful and hence more dangerous than any of those minor and much-publicized rackets, such as ambulance-chasing or the regular defense of known criminals, which make up only a tiny part of the law business and against which the respectable members of the bar are always making speeches and taking action…[t]he legal racket knows no political or social limitations.”

 

Perhaps, some might say, that calling the whole of the legal profession a racket might be a stretch too far, especially if you consider Frédéric Bastiat’s thoughts on the matter. Sure, there are “legal” rackets that exist today, such as central banking and the military-industrial complex, but isn’t it within the proper domain of government to determine what the law actually says? Because, without government, who would make the laws? Wouldn’t claiming that “the law is a racket,” be almost the same as saying that government itself, by extension, is a racket, too?

Regarding constitutional law, Rodell had this to say:

 

“Those little laws, those statutes, are, to a lawyer, the least important and least respectable of three kinds of rules with which the lawyers deal. The other two kinds of rules are those that make up what lawyers call ‘the common law’ and those that make up ‘constitutional law.’ Now, the common law is actually closer to The Law with a capital L than any constitution or statute ever written. The common law is the set of rules that lawyers use to settle any dispute or problem to which no constitution or statute applies…[c]onstitutional law is something else again. A constitution, in this country at least, is halfway between The Law and an ordinary statute. Like a statute, it is phrased by men, a few of whom are usually not lawyers, and is written down in definite if often nebulous-meaning words… [b]ut like The Law, constitutions, except where they deal with the pure mechanics of government…are made up of abstract principles which mean nothing until brought down to earth by the lawyers.”

 

If what Rodell says about constitutional law is true, then it would seem to be the case that whatever “The Law” appears to be is pretty important, since he says it is higher than any constitution ever written:

 

“The Law is this superior to constitutions, just as it is superior to statutes. And according to the legal legend, it is neither constitutions nor statutes which finally determine the rules under which men live. It is The Law, working unimpeded to produce the common law, working through the words of constitutions to produce constitutional law, working through the words of both statutes and constitutions to produce statutory law. All three kings of law are merely obedient offspring of that great body of abstract principles which never changes and which nobody but a lawyer even pretends to understand.”

 

At this point, constitutionalists need to make a decision as to whether they think their entire political ideology is based on sound principles, or whether it was invented out of whole cloth by a bunch of idiots (I already know what Lysander Spooner and the Anti-Federalists have to say, so let’s skip their rhetoric and just continue on, shall we?):

 

“So runs in brief the story of how Constitutional Law, the Highest Law of the Land, is laid down by the Supreme Court of the Land. Here is The Law at its best; here are the lawyers at their most distinguished, their most powerful. Still comparing piles of abstract, indecisive, and largely irrelevant principles as though they were matching pennies on a street corner. Still draping in the longiloquent language of a generalized logic the answers – some good, some bad – to specific social problems. And purposing all the while to be applying the commands and prohibitions of the U.S. Constitution. No wonder Charles Evans Hughes, long before he became the Supreme Court’s Chief Justice, once blurted out with a bluntness that is rare in lawyers – ‘We are under a Constitution, but the Constitution is what the judges say it is.’ ”

 

This strikes me as a rather pro-“Second Constitution” stance to take, considering also that Hughes’ quote was attributed to a speech he gave in 1907 before the Chamber of Commerce in Elmira, New York (approximately 31 years before the Ashwander doctrine was pronounced).

Why does commonplace skepticism vanish when it comes to legalities? Might be due to all of the intimidating legalese so ubiquitous in legal documents and court proceedings? As Rodell put it:

 

“The lawyers have made such a complicated mess out of the word-game they call legal reasoning that any effort to dissect even a tiny part of that reasoning and show it up for the fake that it is, inevitably makes tough going. In a sense, that fact has been the intellectual Maginot Line of The Law. Plenty of people have long suspected that the lawyers with their long words were indulging in nothing more nor less than wholesale flimflam, but when it comes down to trying to take that flimflam, with all its myriad trappings, apart, people just can’t be bothered. And even a personally conducted tour through the mirror mazes of legal logic becomes tiring and confusing.”

 

In case you haven’t figured it out yet, this is exactly why I use their own law dictionaries whenever I want to learn what all the possible combinations are of the meanings in the words they are using:

 

“Yet, it is precisely out of the constant and careless use of a loose craft lingo that the lawyers’ blind faith in the sacredness of words has grown. Meticulously trained in the mumbo-jumbo of legal concepts, subjected to it every minute of their working lives, the law boys passionately believe in the words they have learned to use…[d]ealing in words is a dangerous business, and it cannot be too often stressed that what The Law deals in is in words. Dealing in long, vague, fuzzy-meaning words is even more dangerous business, and most of the words The Law deals in are long and vague and fuzzy. Making a habit of applying long, vague, fuzzy, general words to specific things and facts is perhaps the most dangerous of all, and The Law does that, too. You can call a cow a quadruped mammal if you want to; you can also call a cat a quadruped mammal. But if you get into the habit of calling both cows and cats quadruped mammals, it becomes all too easy to slip into a line of reasoning whereby, since cats are quadruped mammals and cats have kittens and cows are also quadruped mammals, therefore cows have kittens too.”

 

Gee, I wonder why all the licensed practitioners of this trade would deliberately use unnecessary verbiage? Surely, it can’t be because they have ulterior motives, can it? Rodell explicates:

 

“The answer is, of course, that the chief function which legal language performs is not to convey ideas clearly but rather to conceal the confusion and vagueness and emptiness of legal thinking that the difficulties which beset any non-lawyer who tries to make sense out of The Law seem to stem from the language itself instead of from the ideas – or lack of ideas – behind it. It is the big unfamiliar words and the long looping sentences that turn the trick. Spoken or written with a straight face, as they always are, they give an appearance of deep and serious thought regardless of the fact that they may be, in essence, utterly meaningless.”

 

I knew it! The prolific use of legalese is meant to hide the truth of what these bar attorneys are doing:

 

“Anyway, that is why, in the last analysis, the language of The Law is inherently meaningless. It purports on the one hand to tie up in a general way with specific fact situations. It purports on the other hand to tie up in a general way to the great abstraction, ‘justice.’ Yet, in trying to bridge the gap between the facts and the abstraction, so that ‘justice’ may be ‘scientifically’ and almost automatically applied to practical problems, The Law has only succeeded in developing a liturgy of principles too far removed from the facts to have any meaning in relation to the facts and too far removed from the abstraction to make any sense in terms of ‘justice.’ ”

 

The reason why it is hard for most people to understand a legislative statute, an administrative regulation, or even a judicial opinion is because they are not supposed to; it is expected by the bar attorneys that the public will seek them out for their “interpretative services” in handling just about any conceivable everyday occurrence. You see, the very purpose of legalese is to make you dependent upon the bar attorneys; for, on the one hand, ignorantia juris non excusat, but then on the other, you must be licensed to practice law. How can you become knowledgeable about the law without being accused of practicing it?

Law schools, as I’ve written about before, are the premier breeding ground for the bar attorneys. On this point, Rodell says:

 

“As every good fascist knows, the perpetuation of the fascist fraud depends, in the long run, on the training of fledglings in the faith. The dictators catch their conscripts young and discipline them to think in goose-step. Promises of reward for the faithful and ominous warnings about the dangers of nonconformity play their part in making apprentices firmly believe a mass of lies, half-lies, and nonsense. Doubt, even the tiniest wondering doubt, is the cardinal sin. There are few heretics. The Law cannot catch its communicants so young. But the same mental goose step and the same kind of hopes and fears are used, perhaps not so purposefully but just as efficaciously, to instill a fighting belief in the nonsense of The Law. And of course it is on the rigid training of apprentices in the art that the perpetuation of the legal legend depends.”

 

Right there is prima facie evidence that law students are nothing more than acolytes being groomed to become the next generation of priests. Rodell also points out the Achilles’ heel of law schools:

 

“Moreover, the attempt to tie together the real problems that lie behind all law cases and the abstract principles on which decisions in law cases are said to be based usually results in one of two things. For the less intellectually sturdy, the result will be utter confusion. They will neither understand the problems nor learn the principles. But for the brighter boys, the result will likely be a realization that the problems and the principles have very little in common. From that realization, it is but a short step to a sort of unformulated contempt for The Law and its principles. And if legal neophytes should ever begin to realize, en masse, that legal principles are largely constructed of long words and irrelevant abstractions, it would be the beginning of the end of the legal legend.”

 

Perhaps Rodell is correct on this point, but you must remember, the only reason any of these “legal neophytes” take their course of study seriously is because they are trying to earn their law license, so they can make their living practicing the law. That’s it – it’s just business. It’s the rest of us libertarians who take their coercive interference into our own lives so damn personally. I say this not to insult anyone who partakes in any form of civil disobedience (or who has otherwise been profiled and targeted), but merely to point out the incentives of those who make up the prosecutors, judges, and even defense attorneys. Interestingly enough, Rodell has this apt observation on those who survive law schools:

 

“Those comparatively few law schools who do learn to recognize the great gap between worldly problems and legal principles – and who do not later fall prey to the propaganda of the trade they are practicing and forget all they once knew – can become extremely useful citizens. They have been trained to look at every legal problem as what it really is – a practical problem in the adjustment of men’s affairs. They have been taught how to throw aside the entangling trappings of legal language in seeking a fair and reasonable and workable solution; and then, having found such a solution, how to wrap it up again in respectable legal clothes and work for it in terms of principles of Law. In short, they have learned how to treat the whole of The Law as a technique, as a means to an end, as Pleading and Procedure. And, more than that, they have learned something woefully rare among the modern medicine men. They have learned to concentrate on the end, which is the practical solution of a human problem, instead of on the means, which is The Law.”

 

In a sense, one could infer from Rodell’s comments here that he is suggesting anyone who has had a legal education, yet doesn’t hold legalese as sacrosanct, are valuable assets to the cause of liberty, in that they would essentially function, according to Claire Wolfe’s “Freedom Outlaw” typology, as a mole, of sorts. Of course, if the law schools weren’t accredited solely by the American Bar Association, or if reading law was the norm and not the exception in modern legal education, or even if there wasn’t a license required to practice law, then it would be fair to say that neither the government nor any private special interest possessed a monopoly on the law because the barriers to entry would not be artificially high enough to deter potential competition for market demand. Sadly, such is not the case here.

Aren’t lawyers an indispensable occupation within American society, deserving of a living for all of their service? By consulting Rodell, we find that:

 

“The Law not only can be bought…but most of the time it has to be bought. And since it has to be bought, its results tend to favor those who can afford to buy it…the fact that The Law is constantly for sale, and generally to the highest bidder, ties right into the fact that The Law as a whole is a fraud. For The Law could not be bought and it would not favor those who can afford to buy it if the vaunted principles of which it is fashioned really were the ready keys to certainty and justice which the lawyers claim them to be. It is because those principles are so many and so meaningless…that The Law does not produce justice…The Law is bought, to put the answer bluntly and briefly right at the start, by hiring the services and the advice of the smartest lawyers, of the professional soothsayers who are most adept at manipulating the principles of which The Law is made…[t]he bulk of the business of the courts is given over to what the lawyers call ‘civil’ suits, in which one person sues another person or one company sues another company, usually over some financial or business squabble. In these cases, just as in criminal cases…the most money buys the best legal assistance. And the better your legal assistance, the better your chance of ending up with The Law in your favor.”

 

So, by the very fact that “The Law” is automatically biased against those who cannot afford to pay for the services of an attorney is evidence that “The Law” cannot satisfy the demands of justice. Rodell continues:

 

“Most of the business that lawyers handle and live on is made up of matters that never get near a courtroom. Most of the business the lawyers handle and live on is made of what is called legal advice, usually about financial matters, that is tendered, at a price, to those men and those companies that feel it will be well worth-while to get The Law safely on their side before they embark on any money-making or money-savings deals of any kind. Any legal advice amounts, for the most part, to casting spells of legal language over the wording of business documents so that the documents, if they ever should be dragged into court, will show that, regardless of where non-legal justice may seem to lie, The Law is pretty clearly on the side that bought the legal advice.”

 

Ah, so there’s the reason for the licensure in the first place! The bar associations wanted to entrench their profession by way of government law so as to centralize market demand towards themselves and away from any potential competitors who chose not to become licensed or otherwise members of any bar association.

In light of the many and sundry problems endemic to the legal profession, what, if any, solutions does Rodell have to offer? He says:

 

“What is ever to be done about the fact that our business, our government, even our private lives, are supervised and run according to a scheme of contradictory and nonsensical principles built of inherently meaningless abstractions? What is to be done about the fact that we are all slaves to the hocus-pocus of The Law – and to those who practice the hocus-pocus, the lawyers? There is only one answer. The answer is to get rid of the lawyers and throw The Law with a capital L out of our system of laws. It is to do away entirely with both the magicians and their magic and run our civilization according to practical and comprehensible rules, dedicated to non-legal justice, to common-or-garden fairness that the ordinary man can understand, in the regulation of human affairs.”

 

Assuming that is the goal, then how would one begin such a monumental effort? Rodell says:

 

“It is not an easy nor a quick solution. It would take time and foresight and planning. But neither can it have been easy to get rid of the medicine men in tribal days. Nor to break the strangle-hold of the priests in the Middle Ages. Nor to overthrow feudalism when feudalism was the universal form of government. It is never easy to tear down a widely and deeply accepted set of superstitions about the management of men’s affairs. But it is always worth trying. And, given enough support, the effort will always succeed. You can fool some of the people all the time, etc. The difficulty lies only in convincing enough people that they are being fooled.”

 

Despite the fact that appealing to the theory of critical mass might as well be a fallacy, maybe restoration of constitutional government could serve to oust the lawyers? Possibly:

 

“It would take, of course, a peaceful revolution in the system of rules under which we live. Constitutions, in part at least, would have to be rewritten, without benefit of lawyers. Why not? The machinery exists for doing it in an orderly and peaceful way. Where constitutional commands and prohibitions make sense to the average man, they could be kept unchanged. Anyone understands, for instance, what the federal constitution’s requirement of a census every ten years means. Where constitutional commands and prohibitions are completely incomprehensible except in the light of legal ‘interpretation,’ they should be clarified so that they do make sense or else omitted entirely. Why should the lawyers have a monopoly on the understanding of any part of any constitution?”

 

No kidding, and with the ranks of the constitutionalists swelling up by the month (especially in the aftermath of the Cattle Unrustling), I don’t think that trend is going to taper off anytime soon. However, one of Rodell’s suggestions did concern me quite a bit:

 

“In the field of government, the growth of commissions and boards of all sorts of administrative bodies have served to deprive the courts of Law of some of the decision-making business that used to be theirs. Today, most new statutes are put in charge of special decision-making agencies instead of being entrusted directly to the courts for interpretation and application. It is true that today an appeal to a court can always be taken from any commission’s decision. But the commission really stands in the place of a trial court – and appeals are comparatively few. It is true, too, that these commissions are now usually manned in large part by lawyers. But even the lawyer-commissioners are coming, more and more, to be chosen for their familiarity with the practical problems with which the commission has to deal, rather than for adeptness at The Law. At least it is a trend.”

 

As you could probably no doubt infer, this treatise was written back in 1939, seven years before the Administrative Procedures Act was passed by the United States Congress, which effectively created the fourth branch of government, the Administrative Agencies. I fail to see how one group of lawyers (the Congress) expanding beyond the limits of the United States Constitution is going to reign in the lawyers collectively, much less oust them. Alternatively, I was pleasantly surprised when I noticed this gem:

 

“In the field of business, the first halting step away from the lawyer-judges has been the growth of arbitration as a means of settling disputes. Arbitration means nothing more than the voluntary turning over of a dispute for fair settlement to a man or group of men, trusted by both sides and equipped by specialized knowledge to understand the question at issue. Lawyers are not necessary, either as arbitrators or as advisers, and experience has proved that their presence is all too likely to hold up and confuse the whole proceedings. They just can’t forget their abstract principles – nor their Pleading and Procedure – and get down to business. Most judges, incidentally, disapprove heartily of arbitration, and say so whenever they get a chance in a lawsuit, as when a contract provides for it. They well know in what direction arbitration, as a system, is heading.”

 

This is essentially the idea behind the dispute resolution organization concept. Some anarchists champion this type of private (non-corporate) business as the effective replacement for government, because they see these DROs as breaking up the monopoly in the production of arbitration services by offering them for sale according to market demand. Although some critics would point out that this is little different from our current situation with monopoly government law, I would prefer that entrepreneurs to not be criminalized for attempting to provide such a valuable service that necessarily competes for a share of this growing market demand.

Fred Rodell’s Woe Unto You, Lawyers! is quite an eye-opening expose into what I had long-suspected, but had never proven – that the so-called “law” is now a racket, and has been so for quite some time (how long it has been a racket, I honestly cannot say, for I would like to think that at some point in the distant past, justice could be found, even if only occasionally, in the courts of our forefathers). As Rodell concludes his treatise:

 

“For the average man’s respect, such as it is, for our present system of Law, and his consequent willingness to let his life be run in mysterious fashion by the lawyers, are indeed founded on the carefully nurtured legend that legal principles are just about infallible and that they produce, in the judges’ hands, something very close to certain justice. Which – to sum it all up in four words – they aren’t and don’t. It is a blind respect, born not of understanding but of fear. And the fear is built on ignorance. If only the average man could be led to see and know the cold truth about the lawyers and their Law. With the ignorance would go the fear. With the fear would go the respect. Then indeed – and doubtless in orderly fashion too – it would be: – Woe unto you, lawyers!

 

Woe unto them, indeed, for who else but the bar attorneys are but the chief beneficiaries of statism? They make the laws, issue orders to the cops, and reap in unseemly profits all thanks to their licensed monopoly. Might it finally be time, that now their profession has been identified as being antithetical to human liberty, to throw off those who proclaim themselves to be our rulers?

Boiling Down the Law: How to Write a Case Brief

[Download a PDF of this article]

Trying to make sense of the law is a chore. All of the incessant legalese makes it absurdly difficult for the average citizen to understand what exactly the lawyers meant when one group of them drafted a law (the legislature), when another group of lawyers try to enforce that law (the bureaucracy), and yet another group of lawyers attempt to interpret the law (the judiciary). This is precisely why law students are taught by their professors to “brief a case,” so as to better identify what is happening in a matter that has been brought before a court for adjudication.

 

 

A “case brief,” simply put, is nothing more extravagant than a summary of a judicial decision (or court opinion). Nearly always one-page in length, or less, case briefs are incredibly useful for stressing the most pertinent elements of a case. Although there are various ways a brief could be structured, I would prefer to teach you how I brief cases. Keep in mind as I explain how I do this that United States Supreme Court cases typically are divided into a “syllabus,” which is usually a clerk’s summary of the circumstances of a case, whereas the “opinion” is the judge’s actual written decision.

During my senior year as an undergraduate, I took this one semester-long course in constitutional law. As part of that course, the professor wanted to recreate a law school atmosphere, just to give us a taste of what it was like. Besides using the Socratic method, we were also taught how to brief cases. Since then, I have altered somewhat the structure of how I do that, but not by much. Now, I brief cases according to the following format:

 

  • Citation
  • Procedural History
  • Facts
  • Issue
  • Rule of Law
  • Reasoning
  • Result
  • Concurrences
  • Dissents

 

The “citation” is where I place the title of the case, the source publication it may be found in, and usually the year the case was decided. “Procedural history” is maybe a tad extraneous, but typically stems from a case’s syllabus, and seldom referred to in the case’s opinion (at least, not all in one spot). “Facts,” like procedural history, are the circumstances of a case (that is, the who, what, where, when, why, and how of the persons, places, and events involved in the matter before the court). The “issue” is, quite simply, the question at law that must be adjudicated.

Next comes the three R’s, as it were, the first of which is the “rule of law,” which is the legal precedent that is central to the issue being adjudicated. A judge’s “reasoning” is his explanation for why the court ruled in its decision the way that it did, and the “result” is the court’s actual decision. Even though the result is often called the “holding,” I prefer calling it a result because not only is it factually true, but also because it makes it easier for me to memorize those three categories that I always want to include in my case briefs.

Occasionally, other judges may “concur” with the ruling decision, but want to write their own opinions because the majority opinion either ignored an aspect of the case they found relevant or those judges simply want to justify the exact same holding using a different line of reasoning; a “dissent” by contrast, is an inherent disagreement by the judges in the minority explaining why they disagree with the court’s majority, yet unfortunately for the losing party, these dissents have no legal force since they mainly function more as an expression of the liberty of the press rather than a technique of making coercively binding political decisions by way of government law.

For example, using my own preferred method of briefing cases, here is how Katz v. United States would appear as my case brief:

 

Citation: Katz v. United States, 389 US 347 (1967)

Procedural History: Petition Granted for a Writ of Certiorari

Facts: Acting on a suspicion that Katz was transmitting gambling information over the phone to clients in other states, federal agents attached an eavesdropping device to the outside of a public phone booth used by Katz. Based on recordings of his end of the conversations, Katz was convicted under an 8-count indictment for the illegal transmission of wagering information from Los Angeles to Boston and Miami. On appeal, Katz challenged his conviction by arguing that the recordings could not be used as evidence against him. The Court of Appeals rejected this, noting the absence of a physical intrusion into the phone booth itself.

Issue: Does the 4th Amendment protection against unreasonable searches and seizures require federal law enforcement officers to obtain a search warrant in order to wiretap a public pay phone?

Rule of Law: Fourth Amendment (Search & Seizure Clause) – “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”

Reasoning: Justice Stewart wrote that the search and seizure clause of the Fourth Amendment protects people, not places; as such, the phone booth is considered private to that extent.

Result: The Court ruled 7-1, in favor of Katz, thereby reversing the Court of Appeals on the grounds that the 4th Amendment’s provision on unreasonable search and seizure does protect individuals in a telephone booth from wiretaps by authorities without a warrant.

Concurrences: Justice Douglas mentioned that the executive branch cannot simultaneously be a neutral 3rd party and also aggressive prosecutors. Justice Harlan introduced the idea of a ‘reasonable’ expectation of 4th Amendment protection. Justice White thought that if either the President or the Attorney General citied national security concerns and authorized electronic surveillance as reasonable, then the judiciary should not require warrants.

Dissent: Justice Black argued that the 4th Amendment, as a whole, was only meant to protect things from physical search and seizure & not meant to protect personal privacy. Additionally, he said that the modern act of wiretapping was analogous to the act of eavesdropping, which was around even when the Bill of Rights was drafted. Black concluded that if the drafters of the 4th Amendment had meant for it to protect against eavesdropping they would have included the proper language.

 

Notice how the brief limits itself to the crux of the case? Any extraneous material relating to long-winded judicial precedent or drawn-out hypothetical situations are removed, leaving only the core elements relevant to the decision, such as the names of all judges who wrote any part of an opinion, how the jury or judges voted, and whether an appellate decision was “affirmed” or “reversed” (either in whole or in part, and if the latter, which charges or elements of the case were reversed and affirmed, respectively; if there is neither a concurrence nor a dissent, simply write “N/A,” which means “not applicable”).

Again, I would like to emphasize that case briefs are supposed to be just that…brief. Part of the reason for this, besides the obvious, is that compiling a series of cases surrounding an area of law (or even a theme) can be done in a type of anthology referred to as a “casebook.” In fact, law school professors commonly teach according to the casebook method, which is simply the teaching of law via collections of judicial case precedents in an organized manner. One could also say casebooks could be compiled according to a legal topic, such as eminent domain, free speech, or judicial review.

Case briefs are unique for being able to make sense out of the legalese so common in the law, if you know how to use it. Reading carefully (perhaps even “between the lines”) is essential for spotting a detail crucial in understanding a case. Taking notes and highlighting the text within a case are indispensably useful for preparing a case brief; so, stay sharp.

Oath “Legally” Defined

The following definitions for “oath” are taken from Ballantine’s Law Dictionary (3rd edition), Bouvier’s Law Dictionary (6th edition), Black’s Law Dictionary (2nd edition), and Webster’s Dictionary (1828): 

 

 

 

(Ballantine’s)

A calling on God to witness what is averred as truth, accompanied expressly or impliedly with an invocation of God’s vengeance or a renunciation of God’s favor in the event of a falsehood [39 Am J1st Oath § 2]. A solemn appeal to God, a superior sanction, or to a sacred or revered person, to witness the inviolability of a promise or undertaking [People ex rel. Bryant v. Zimmerman, 241 NY 405, 150 NE 497, 43 ALR 909]. Any form of attestation by which a person signifies that he is bound in conscience to perform an act or to speak faithfully and truthfully [State ex rel. Braley v. Gay, 59 Minn 6, 60 NW 676].

The word has been construed to include “affirmation” in cases where, by law, an affirmation may be substituted for an oath [39 Am J1st Oath § 2].

 

 

(Bouvier’s)

  1. A declaration made according to law, before a competent tribunal or officer, to tell the truth; or it is the act of one who, when lawfully required to tell the truth, takes God to witness that what he says is true. It is a religious act by which the party invokes God not only to witness the truth and sincerity of his promise, but also to avenge his imposture or violated faith, or in other words to punish his perjury if he shall be guilty of it [10 Toull. n. 343 a 348; Puff. Book, 4, c. 2, s. 4; Grot. book 2, c. 13, s. 1; Ruth Inst. book 1, ch. 14, s. 1; 1 Stark. Ev. 80; Merl. Repert. Convention; Dalloz, Dict. Serment: Dur. n. 592, 593; 2 Bouv. Inst. n. 3180].
  2. It is proper to distinguish two things in oaths: 1) the invocation by which the God of truth, who knows all things, is taken to witness; 2) the imprecation by which he is asked as a just and all-powerful being, to punish perjury.
  3. The commencement of an oath is made by the party taking hold of the book, after being required by the officer to do so, and ends generally with the words, “so help you God,” and kissing the book, when the form used is that of swearing on the Evangelists [9 Car. & P. 137].
  4. Oaths are taken in various forms; the most usual is upon the Gospel by taking the book in the hand; the words commonly used are, “You do swear that,” &c. “so help you God,” and then kissing the book. The origin of this oath may be traced to the Roman law [Nov. 8, tit. 3; Nov. 74, cap. 5; Nov. 124, cap. 1], and the kissing the book is said to be an imitation of the priest’s kissing the ritual as a sign of reverence, before he reads it to the people [Rees, Cycl. h.v.].
  5. Another form is by the witness or party promising holding up his right hand while the officer repeats to him, “You do swear by Almighty God, the searcher of hearts, that” &c., “And this as you shall answer to God at the great day.”
  6. In another form of attestation commonly called an affirmation, (q.v.) the officer repeats, “You do solemnly, sincerely, and truly declare and affirm, that,” &c.
  7. The oath, however, may be varied in any other form, in order to conform to the religious opinions of the person who takes it [16 Pick. 154, 156, 157; 6 Mass. 262; 2 Gallis. 346; Ry. & Mo. N. P. Cas. 77; 2 Hawks, 448].
  8. Oaths may conveniently be divided into promissory, assertory, judicial, and extra judicial.
  9. Among promissory oaths may be classed all those taken by public officers on entering into office, to support the constitution of the United States, and to perform the duties of the office.
  10. Custom-house oaths and others required by law, not in judicial proceedings, nor from officers entering into office, may be classed among the assertory oaths, when the party merely asserts the fact to be true.
  11. Judicial oaths, or those administered in judicial proceedings.
  12. Extra-judicial oaths are those taken without authority of law, which, though binding in foro conscientiae, do not render the persons who take them liable to the punishment of perjury, when false.
  13. Oaths are also divided into various kinds with reference to the purpose for which they are applied; as oath of allegiance, oath of calumny, oath ad litem, decisiory oath, oath of supremacy, and the like. As to the persons authorized to administer oaths, see Gilp. R. 439; 1 Tyler, 347; 1 South. 297; 4 Wash. C. C. R. 555; 2 Blackf. 35].
  14. The act of congress of June 1, 1789 [1 Story’s L. U. S. p. 1], regulates the time and manner of administering certain oaths as follows: Be it enacted, &c. That the oath or affirmation required by the sixth article of the constitution of the Untied States, shall be administered in the form following, to with, “I, AB, do solemnly swear or affirm, (as the case may be), that I will support the constitution of the United States.” The said oath or affirmation shall be administered within three days after the passing of this act, by any one member of the senate, to the president of the senate, and by him to all the members, and to the secretary; and by the speaker of the house of representatives, to all the members who have not taken a similar oath, by virtue of a particular resolution of the said house, and to the clerk: and in case of the absence of any member from the service of either house, at the time prescribed for taking the said oath or affirmation, the same shall be administered to such member when he shall appear to take his seat.
  15. That at the first session of congress after every general election of representatives, the oath or affirmation aforesaid shall be administered by any one member of the house of representatives to the speaker; and by him to all the members present, and to the clerk, previous to entering on any other business; and to the members who shall afterwards appear, previous to taking their seats. The president of the senate for the time being, shall also administer the said oath or affirmation to each senator who shall hereafter be elected, previous to his taking his seat; and in any future case of a president of the senate, who shall not have taken the said oath or affirmation, the same shall be administered to him by any one of the members of the senate.
  16. That the members of the several state legislatures, at the next session of the said legislatures respectively, and all executive and judicial officers of the several states, who have been heretofore chosen or appointed, or, who shall be chosen or appointed before the first day of August next, and who shall then be in office, shall, within one month thereafter, take the same oath or affirmation, except where they shall have taken it before which may be administered by any person authorized by the law of the state, in which such office shall be holden, to administer oaths. And the members of the several state legislatures, and all executive and judicial officers of the several states, who shall be chosen or appointed after the said first day of August, shall, before they proceed to execute the duties of their respective offices, take the foregoing oath or affirmation, which shall be administered by the person or persons, who, by the law of the state, shall be authorized to administer the oath of office; and the person or persons so administering the oath hereby required to be taken, shall cause a record or certificate thereof to be made, in the same manner as, by the law of the state, he or they shall be directed to record or certify the oath of office.
  17. That all officers appointed or hereafter to be appointed, under the authority of the United States, shall, before they act in their respective offices, take the same oath or affirmation, which shall be administered by the person or persons who shall be authorized by law to administer to such officers their respective oaths of office; and such officers shall incur the same penalties in case of failure, as shall be imposed by law in case of failure in taking their respective oaths of office.
  18. That the secretary of state, and the clerk of the house of representatives, for the time being, shall, at the time of taking the oath or affirmation aforesaid, each take an oath or affirmation in the words following, to wit; “I, A B, secretary of the senate, or clerk of the house of representatives (as the case may be) of the United States of America, do solemnly swear or affirm, that I will truly and faithfully discharge the duties of my said office to the best of my knowledge and abilities.”
  19. There are several kinds of oaths, some of which are enumerated by law.
  20. Oath of calumny – this term is used in the civil law. It is an oath which a plaintiff was obliged to take that he was not actuated by a spirit of chicanery in commencing his action, but that he had bona fide a good cause of action [Poth. Pand. lib. 5, t. 16 and 17, s. 124]. This oath is somewhat similar to our affidavit of a cause of action [Video Dunlap’s Adm. Pr. 289, 290].
  21. No instance is known in which the oath of calumny has been adopted in practice in the admiralty courts of the United States [Dunl. Adm. Pr. 290], and by the 102d of the rules of the district court for the southern district of New York, the oath of calumny shall not be required of any party in any stage of cause [Vide Inst. 4, 16, 1; Code, 2, 59, 2; Dig. 10, 2, 44; 1 Ware’s R. 427].
  22. Decisory oath. By this term in the civil law is understood an oath which one of the parties defers or refers back to the other, for the decision of the cause.
  23. It may be deferred in any kind of civil contest whatever, in question of possession or of claim; in personal actions and in real. The plaintiff may defer the oath to the defendant, whenever he conceives he has not sufficient proof of the fact which is the foundation of his claim; and in like manner, the defendant may defer it to the plaintiff when he has not sufficient proof of his defense. The person to whom the oath is deferred, ought either to take it or refer it back, and if he will not do either, the cause should be decided against him [Poth. on Oblig. P. 4, c. 3, s. 4].
  24. The decisory oath has been practically adopted in the district court of the United States, and for the district of Massachusetts, and admiralty causes have been determined in that court by the oath decisory; but the cases in which this oath has been adopted, have been where the tender has been accepted; and no case is known to have occurred there in which the oath has been refused and tendered back to the adversary [Dunl. Adm. Pr. 290, 291].
  25. A judicial oath is a solemn declaration is made is some warranted by law, before a court of justice or some officer authorized to administer it, by which the person who takes it promises to tell the truth, the whole truth, and nothing but the truth, in relation to his knowledge of the matter then under examination, and appeals to God for his sincerity.
  26. In civil law, a judicial oath is that which is given in judgment by one party to another [Dig. 12, 2, 25].
  27. Oath in litem, in the civil law, is an oath which was deferred to the complainant as to the value of the thing in dispute on failure of other proof, particularly when there was a fraud on the part of the defendant, and be suppressed proof in his possession [see Greenl. Ev. 348; Tait on Ev. 280; 1 Vern. 207; 1 Eq. Cas. Ab. 229; 1 Greenl. R. 27; 1 Yeates, R. 34; 12 Vin. Ab. 24]. In general the oath of the party cannot, by the common law, be received to establish his claim, but to this there are exceptions. The oath in litem is admitted in two classes of cases: Where it has already been proved, that the party against whom it is offered has been guilty of some fraud or other tortuous or unwarrantable act of intermeddling with the complaintant’s goods, and no other evidence can be had of the amount of damages. As, for example, where a trunk of goods was delivered to a shipmaster at one port to be carried to another, and, on the passage, he broke the trunk open and rifled it of its contents; in an action by the owners of the goods against the shipmaster, the facts above mentioned having been proved aliunde, the plaintiff was held, a competent witness to testify as to the contents of the trunk [1 Greenl. 27; and see 10 Watts, 335; 1 Greenl. Ev. 348; 1 Yeates, 34; 2 Watts, 220; 1 Gilb. Ev. by Lofft, 244.2]. The oath in litem is also admitted on the ground of public policy, where it is deemed essential to the purposes of justice [Tait. on Ev. 280]. But this oath is admitted only on the ground of necessity. An example may be mentioned of a case where a statute can receive no execution, unless the party uninterested be admitted as a witness [16 Pet. 203].
  28. A promissory oath is an oath taken, by authority of law, by which the party declares that he will fulfill certain duties therein mentioned, as the oath which an alien takes on becoming naturalized, that he will support the constitution of the United States: the oath which a judge takes that he will perform the duties of his office. The breach of this does not involve the party in the legal crime or punishment of perjury.
  29. A suppletory oath in the civil and ecclesiastical law, is an oath required by the judge from either party in a cause, upon half proof already made, which being joined to half proof, supplies the evidence required to enable the judge to pass upon the subject [Vide Str. 80; 3 Bl. Com. 270].
  30. A purgatory oath is one by which one destroys the presumptions which were against him, for he is then said to purge himself, when he removes the suspicions which were against him; as, when a man is in contempt for not attending court as a witness, he may purge himself of the contempt, by swearing to a fact which is an ample excuse. See PURGATION.

 

 

(Black’s)

An external pledge or asseveration, made in verification of statements made or to be made, coupled with an appeal to a sacred or venerated object, in evidence of the serious and reverent state of mind of the party, or with an invocation to a supreme being to witness the words of the party and to visit him with punishment if they be false [see O’Reilly v. People, 86 N. Y. 154, 40 Am. Rep. 525; Atwood v. Welton, 7 Conn. 70; Clinton v. State, 33 Ohio St. 32; Brock v. Milligan, 10 Ohio, 123; Blocker v. Burness, 2 Ala. 354].

A religious asseveration, by which a person renounces the mercy and imprecates the vengeance of heaven, if he do not speak the truth [1 Leach, 430].

 

  • Assertory oath: one relating to a past or present or state of facts, as distinguished from a “promissory” oath which relates to future conduct; particularly, any oath required by law other than in judicial proceedings and upon induction to office, such, for example, as an oath to be made at the custom-house relative to goods imported.
  • Corporal oath: see CORPORAL.
  • Decisory oath: in the civil law, an oath which one of the parties defers or refers back to the other for the decision of the cause.
  • Extrajudicial oath: one not taken in any judicial proceeding, or without any authority or requirement of law, though taken formally before a proper person.
  • Judicial oath: one taken in some judicial proceeding or in relation to some matter connected with judicial proceedings.
  • Oath against bribery: one which could have been administered to a voter at an election for members of parliament. Abolished in 1854 [Wharton].
  • Oath ex officio: the oath by which a clergyman charged with a criminal offense was formerly allowed to sear himself to be innocent; also the oath by which the compurgators swore that they believed in his innocence [3 Bl. Comm. 101, 447; Mozley & Whitley].
  • Oath in litem: in the civil law, an oath permitted to be taken by the plaintiff, for the purpose of proving the value of the subject-matter in controversy, when there was not other evidence on that point, or when the defendant fraudulently suppressed evidence which might have been available.
  • Oath of allegiance: an oath by which a person promises and binds himself to bear true allegiance to a particular sovereign or government, e.g., the United States; administered generally to high public officers and to soldiers and sailors, also to aliens applying for naturalization, and occasionally, to citizens generally as a prerequisite to their suing in the courts or prosecuting claims before government bureaus [see Rev. St. U.S. §§ 1756, 2156, 3478 (U. S Comp. St. 1901, pp. 1202, 1329, 2321), and section 5018.
  • Oath of calumny: in the civil law, an oath which a plaintiff was obliged to take that he was not prompted by malice or trickery in commencing his action, but that he had bona fide a good cause of action [Poth. Pand. lib. 5, tt. 16, 17, s. 124].
  • Oath-rite: the form used at the taking of an oath.
  • Official oath: one taken by an officer when he assumes charge of his office, whereby he declares that he will faithfully discharge the duties of the same, or whatever else may be required by statute in the particular case.
  • Poor debtor’s oath: see that title.
  • Promissory oaths: oaths which bind the party to observe a certain course of conduct, or to fulfill certain duties, in the future, or to demean himself thereafter in a stated manner with reference to specified objects or obligations; such, for example, as the oath taken by a high executive officer, a legislator, a judge, a person seeing naturalization, an attorney at law [Case v. People, 6 Abb. N. C. (N. Y.) 151].
  • Purgatory oath: an oath by which a person purges or clears himself from presumptions, charges, and suspicions standing against him, or from a contempt.
  • Qualified oath: one the force of which as an affirmation or denial may be qualified or modified by the circumstances under which it is taken or which necessarily enter into it and constitute a part of it; especially thus used in Scotch law.
  • Solemn oath: a corporal oath [Jackson v. State, 1 Ind. 184].
  • Suppletory oath: in the civil and ecclesiastical law, the testimony of a single witness to a fact is called “half-proof,” on which no sentence can be founded; in order to supply the other half of proof, the party himself (plaintiff or defendant) is admitted to be examined in his own behalf, and the oath administered to him for that purpose is called the “suppletory oath,” because it supplies the necessary quantum of proof on which to found the sentence [3 Bl. Comm. 370]. This term, although without application in American law in its original sense, is sometimes used as a designation of a party’s oath required to be taken in authentication or support of some piece of documentary evidence which he offers, for example, his books of account.
  • Voluntary oath: such as a person may take in extrajudicial matters, and not regularly in a court of justice, or before an officer invested with authority to administer the same [Brown].

 

 

(Webster’s)

OATH, n.

A solemn affirmation or declaration, made with an appeal to God for the truth of what is affirmed. The appeal to God in an oath, implies that the person imprecates his vengeance and renounces his favor if the declaration is false, or if the declaration is a promise, the person invokes the vengeance of God if he should fail to fulfill it. A false oath is called perjury.

Law School Accreditaton Standards

“Rightful liberty is unobstructed action according to our will, within the limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law;’ because law is often but the tyrant’s will, and always so when it violates the right of an individual.”

                 – Thomas Jefferson, in an 1819 letter to Isaac Tiffany

 

 

Given the history of the American Bar Association and its key role in “approving” law schools in Texas, it seemed only fair to examine this in more detail so as to determine its importance to the government’s monopoly on the law. A scholar in 1978 admitted that:

 

“From its earliest days, the American Bar Association has sought to regulate the training and licensing of the nation’s lawyers. The ABA was founded in large part to improve the quality of the legal profession, and many of its members believed that this could best be accomplished by upgrading the training received by American lawyers and by raising the standards for admission to the bar. Its attempts to improve professional training led to the association to implicitly endorse law schools rather than law offices as the best place to prepare for law practice. Eventually, as it focused on improving the quality of training rendered by law schools, the association set minimum standards for law schools and established a program to accredit law schools that complied with the standards.”

 

Right there, the ABA has been dead set against the ancient common law practice of reading law, allegedly on the grounds that so-called country lawyers were grossly incompetent. Fossum goes on to say that:

 

“To have an impact on the legal profession, the ABA standards have to be tied to the bar-admission standards of the various states, inasmuch as the association as no direct control over admissions. Thus, following its adoption of accrediting standards, the ABA commenced efforts to persuade each state to limit licenses for the practice of law to graduates of law schools that have received ABA accreditation. Despite the importance of the ABA accrediting standards and program for the legal profession and the public, few efforts have been made to explore their influence on the structure of legal education. Virtually no attempts have been made to examine the validity of any of the standards.” [emphasis added]

 

Here we have yet another example of a private special interest who is seeking undue government favor. Just as American eugenicists sought legislative privilege to forcibly impose draconian “genetic purity” statutes, these American bar attorneys sought legislative privilege to forcibly impose “accreditation standards” (that ultimately determine who may be licensed to practice law), whose validity in achieving its stated claims has never been proven. And just like how the Carnegie Institute and the Rockefeller Foundation funded the Cold Spring Harbor eugenics facility, the ABA planned what they wanted the various state bar associations to forcibly implement by way of government:

 

“It was at its annual meeting in 1921 that the American Bar Association officially began its efforts to regulate access to the legal profession by adopting a resolution that (1) set minimum standards for law admissions, courses of study, faculties, and libraries; (2) established an accrediting program to encourage compliance with these standards; and (3) declared that only lawyers who were graduates of accredited law schools should be allowed to practice law. The purpose of these measures was to improve the quality of the nation’s lawyers. Some commentators who subsequently examined these events, however, have suggested that the members of the association – primarily the more successful, established members of the bar – also hoped to stop the proliferation of lawyers which threatened ‘the income and prestige of their profession.’ ”

 

Notice right there how Fossum reiterates the ABA’s official story, only to then cause doubt as to its truthfulness in the very next sentence by suggesting the real reason instead was the ABA’s systematic discrimination against the country lawyers who had not been indoctrinated by spurious theories of justice when they attended law school in order to protect their own profits and professional “respect.”

So, just how easily were these accreditation standards passed? Well, let’s consider the internal politics of the ABA at that time first:

 

“At the meeting of the association in 1929, members who disapproved of the standards for openly promoting full-time, university-affiliated law schools, to the detriment of part-time law schools, tried unsuccessfully to convince the association to reconsider its accrediting standards and program. Instead, the association reaffirmed its original standards and adopted a new one that specifically prohibited the accreditation of law schools that were run as ‘commercial enterprises’ (i.e., proprietary law schools).”

 

That’s ironic, isn’t it? In the attempt to establish a full-fledged monopoly, the ABA quells internal dissent by claiming they are also trying to clamp down on private schooling! Using a contemporary example, this would be like a statist insisting that the Common Core State Standards Initiative is necessary to curb all those varieties of free-market schooling (because, you know, the No Child Left Behind Act was such a resounding success). Regarding the adoption by the state bar associations of these standards, Fossum says:

 

“The states were slow to incorporate the ABA standards into their bar admission provisions because the ABA had too little influence to gain the necessary support for their adoption. In the 1920s, the organization was a relatively weak one that represented less than 10 percent of the nation’s lawyers. Further, on the matter of legal education, the ABA members could not unite in a single course of action. In comparison, the American Medical Association represented 40 – 50 percent of the nation’s doctors when it began accrediting medical schools in the early 1900s, and it presented a united front in pursuing its goals. By the 1930s, less than 30 years after the AMA had established accrediting standards, 44 states required any ‘applicant for a medical license to be a graduate of a school approved by the American Medical Association.’ It took considerably longer – over 50 years – for the ABA to succeed in getting a comparable number of states to adopt restrictive licensing provisions.”

 

Rather interesting, wouldn’t you say? It wasn’t even so much the profession of being a bar attorney that was despicable at that time, because it was a tiny minority of bar attorneys who sought to establish their monopoly by controlling which law schools were permitted to teach those individuals who wanted to practice law. This hegemonic control of educational standards, instead of a plurality of standards competing with each other in order to satisfy market demand, smacks more of corporatism rather than laissez-faire. Fossum continues:

 

“Nevertheless, as late as 1956 only 18 states required that original applicants for bar admission (i.e., applicants who had not been admitted to the bar of any other state) be graduates of an ABA-accredited law school; 7 other states had practices that in effect limited admission to graduates of ABA-accredited schools. Milton Friedman explained the inability of the ABA to equal the AMA in gaining the support of the states by the fact that many state legislators were graduates of unaccredited law schools…Friedman predicted, however, that as state legislatures became increasingly made up of graduates of accredited schools, they would be more willing to incorporate the ABA standards into bar admission provisions.”

 

Even here, an efficiency expert for Big Government was able to surmise that, given enough time, the state legislatures would be infiltrated by the products of these monopolized law schools. The result of such infiltration was:

 

“Thus, approximately 50 years after commencing efforts to regulate access to the legal profession, the ABA had come close to matching the success of the AMA in obtaining passage of restrictive licensing provisions in the states.” [emphasis added]

 

Ah, so that is what much of this is about – the licensure upon the practice of law. Cui bono, much?

What was Fossum able to determine, if anything at all, about the validity regarding the ABA’s claims that its standards would decrease the incompetency of lawyers? Using the (now old) Standard 202 as her testable variable, Fossum says:

 

“The ABA standards govern those elements of a law school which are considered to determine the quality of its legal education…Standard 202 states that a law school ‘may not be operated for private profit’ (i.e. it may not be proprietary). This restriction reflects the belief that the provision of a sound legal education is not compatible with the maximization of profit and therefore that the quality of any proprietary law school must of necessity be low. Since this standard has acted as an absolute bar to accreditation it has never been possible to test the validity of that belief, if Standard 202 has applied, none of the other standards has been considered. This, if a law school is nonproprietary and meets the other ABA standards, the ABA will accredit it. If it meets or even surpasses all the standards regarding faculty, library, and other facilities but is proprietary, the school cannot be accredited.”

 

Besides the fact that this economically bogus, what it reveals is that this tiny minority of bar attorneys espoused virtually the same beliefs as the authoritarian communists. The hatred of bourgeois profit, the phony egalitarianism, and the love of undue government favor all evoke an aristocratic desire for honors that would have been prohibited by the Titles of Nobility Amendment. Fossum said that:

 

“In conclusion, the comparison of unaccredited proprietary and nonproprietary schools revealed that the two types of schools were remarkably similar with respect to administrative policies, admissions politics, education programs, faculty, library, and physical plant. Most differences were noted within each category than between the two categories. When differences on the quality measures were noted between unaccredited nonproprietary and proprietary schools, size and geographical location were more likely to account for differences than was financial structure. The data gathered in this study fail to show persuasively that on the basis of accreditation criteria proprietary schools are inherently inferior to similarly situated nonproprietary schools. In short, the available data do not establish that when assessing the quality of a law school, ABA Standard 202 can fairly serve as a surrogate for the remaining ABA standards.” [emphasis added]

 

At best, according to Fossum, the ABA’s accreditation standards did not improve the competency of new bar attorneys. Why then, I wonder, would the ABA push so hard for these ineffective standards to be adopted by various state bar associations? Fossum explains that:

 

“To the extent, then, that is has been justified as a surrogate for the other standards to facilitate the elimination of a class of law schools that are believed to be inherently defective, Standard 202 has apparently been based on a faulty or at least unproved assumption. In any event, owing to the status of the ABA as a ‘semiofficial agency’ in most states, Standard 202 has had a considerable effect on the structure of legal education as well as on that of the legal profession.”

 

Understandably, she is trying to be objective by also being charitable here, but come on! Does no one see a glaring problem here? Who the hell in their right mind would ever support anything the ABA ever wanted to do again in the future after learning about this notorious disaster? What part of “faulty or at least unproved assumption” does not absolutely reek of corruption? Fossum concludes that:

 

“Like Standard 202, the rest of the ABA standards have been and continue to be officially justified on the grounds that they improve the quality of legal education…[t]hese standards, like Standard 202, have been promoted by the ABA and enforced by the states without any serious attempt to validate them. All the ABA standards should be examined and their supporting assumptions tested.”

 

I guess it wouldn’t hurt to acquire more empirical proof just to be on the safe side, yet, is it really necessary for you to judge whether the ABA’s monopoly on the law is justified? If you remember, Harvey Silverglate claimed that the ABA was an independent bar, and as such, was an indispensably important counterweight to government actions. How “independent” can any bar association be if it enjoys a government granted monopoly on the provision of law schools, and subsequently, a unique advantage in determining how the licensure on the practice of law itself is granted?

Donna Fossum’s Law School Accreditation Standards and the Structure of American Legal Education is a mind-blowing piece that exposes the ABA for what they are: a ruling secular priest-class. Is it any wonder that huge chunks of government employees (such as legislators, judges, and bureaucrats) are as institutionally despotic as they are? Only by decentralizing power through avenues such as the apprenticeship of new lawyers by judges and the private production of legal educational services can any lover of liberty be able to cause serious dents against the statist monopoly upon the law.

A State of Nature

 

There are no wars, there is no income tax

There is no drug prohibition, there are no corporations

There is no central bank, there are no police

There is no bureaucracy, there are no courts

No one is outlawed, nothing is banned

There are no licenses, there are no permits

There are no taxes, there is no citizenship

There is no social contract, there is no government

If you want to be free, then you must realize the truth

That there are only criminals and their victims

So, why are you obeying criminals, again?

The History of the American Bar Association

“Law is force, and that consequently the domain of the law cannot properly extend beyond the domain of force…when law and force keep a man within the bounds of justice, they impose nothing upon him but a mere negation. They only oblige him to abstain from doing harm…but when the law, through the medium of its necessary agent – force – imposes a form of labor, a method or a subject of instruction, a creed, or a worship, it is no longer negative; it acts positively upon men.”

                                                            – Frédéric Bastiat

 

 

Many libertarians are intimately familiar with the history of central banking, but how many of them can say the same when it comes to the history of the government’s monopoly on the law? As one scholar said back in 1962:

 

“There is, unfortunately, no general history of the American Bar Association.”

 

Doesn’t this strike anybody as being uncomfortably odd? Wouldn’t you think that if Harvey Silverglate was willing to criticize the Department of Justice by taking up the American Bar Association’s side, then there should be a general history of the ABA somewhere, right? Alas, all the author can afford to give us is a patchwork quilt of bibliographic references in addition to his brief observations; fortunately, that alone is rather eye-opening.

Early last century, the ABA began lobbying the government on a variety of political issues. For instance, they lobbied against recall elections and lobbied on behalf of federal “regulations” against the commercial airline industry (even going so far as to draft the Air Commerce Act of 1926). Brockman goes onto say that:

 

“Major post-war activities were in two areas: professional problems, such as bar federation and legal education, and social issues. As early as 1916 organizational changes were attempted that would bring about closer collaboration between the A.B.A. and state and local bar associations.”

 

What, pray tell, would this “closer collaboration” entail, exactly? As I’ve written about before, the Texas Board of Law Examiners requires all applicants to first earn a J.D. degree from an “approved” law school before even registering to take the Texas Bar Examination. According to the Texas Government Code §§ 82.021, 82.022, & 82.024, only the Texas Supreme Court may issue licenses to practice law in Texas; yet, to acquire said license, an applicant is required to first satisfy the law study requirements by completing the prescribed study in an approved law school. Rule I (a)(3) of the rules governing admission to the Bar of Texas defines an “approved law school” to mean a law school approved by none other than the ABA.

Remember how Nelson Aldrich, Henry Davidson, Abraham Andrew, Frank Vanderlip, Benjamin Strong, and Paul Warburg were the 6 men who originally used pseudonyms when they attended the infamous Jeckyll Island meeting in order to draft the Federal Reserve Act under the guise of the National Monetary Commission? In light of the fourth branch of government, I thought the following admission by Brockman to be particularly enlightening:

 

“The concern with the administrative process continued into the present era of the Association’s history…[t]he report for the Committee on Administrative Law for 1938 is an excellent presentation of the views of the Association at this time. It concerns itself not only with policy questions, but also with questions of administrative theory, and sets forth arguments for the A.B.A.’s most insistent point, the need for greater judicialization of administrative procedure…[t]he A.B.A. was also the source of the Administrative Procedures Act, the first draft of which the Association began discussing in 1944, see ‘Fair Administrative Procedure for Administrative Agencies is Offered in Improved Draft of a Proposed Bill,’ 30 ABAJ 7 (1944). The excellent debate on the draft, really almost a discussion is reported loc. Cit., pp. 185 – 193.”

 

So, less than two years before Senator Pat McCarran admitted on the Congressional Record that the United States Congress was establishing a totally new branch of government by way of the Administrative Procedures Act, the ABA had already wrote and debated on the legislation. Unfortunately, I was unable to access by Internet the record of that debate from the Vol. 30, No. 7, July 1944 issue of the American Bar Association Journal (perhaps someone else could fair better if they were able to get a hard copy of that issue, or even make photocopies of it at a law library). Needless to say, the ABA’s “official” reason for being involved in the first place was that:

 

“The Association’s interest in the administrative process is matched by an intense concern for the quality of the judicial process, which has expressed itself in a comprehensive program aimed at bringing the most competent personnel to the courts.”

 

Oh, really? Doesn’t this sound awfully a lot like the “official” reason given by the Federal Reserve that its chief purpose was to stabilize the banking industry? Is it just me, or did I just miss the evidence conclusively demonstrating that the “administrative process” has brought the “most competent personnel to the courts?” As if that wasn’t bad enough, consider also Brockman’s following statement:

 

“Having been a long-time supporter of the World Court idea, the Association opposed the Connolly Reservation, the American self-judging declaration attached to U.S. ratification of the Statute of the International Court of Justice…[r]epeal of the Connolly Reservation is only one of a series of proposals to strengthen international legal order, being advocated by the A.B.A.’s Committee on World Peace through Law. It has just held the first of a series of international regional conferences of lawyers to promote its recommendations.”

 

Wow, don’t international tribunals make you feel just peachy inside? I mean, it’s not like the World Court was an attempted expression at dangerously centralizing political power, was it? Hell, if you also consider the World Bank, there would never be even a slight possibility for absolute power to corrupt absolutely, now would there?

Norbert Brockman’s The History of the American Bar Association: A Bibliographic Essay provides an important clue in the story about the incremental development of America’s contemporary police state. I find it rather interesting that a national bar association, founded a decade after the ratification of the 14th Amendment, drafted the legislative statute which established the Administrative Agencies. Brockman concludes that:

 

“This bibliographical essay has necessarily been selective. Certain aspects of the A.B.A.’s history have been left out either because they were regarded as being of minor importance, or else because the sources are too incomplete and scattered. Where there were several available sources, the most complete or most representative were chosen.”

 

Again, this concerns me to no end, for why would most of the alternative media prefer to focus on the central bankers while totally ignoring those who are primarily responsible for the massive bureaucracies who often give legitimacy (or color of law) to those socialized mercenaries hell bent on infringing upon our Liberties? What I would like to see more of are citizen journalists and pro bono researchers digging up those missing aspects of the ABA’s history, and publishing their findings for all to see, just so that we know whom we’re really dealing with here. If it can be done with the Federal Reserve, it can certainly be done with the American Bar Association.

Larry Myers: An Ignored Political Prisoner

[Download the PDF of this article]

People within mainstream American culture typically view incarcerated political dissidents as uninteresting. Given that the entertainment value for such cases is usually quite low because they lack sensationalism, popular support is notoriously absent. Despite the fact that donating to legal defense funds which pay bar attorneys is counter-productive, what I am surprised about is how almost no one desires to learn from, or is even bothered by, what happens when you are sent to an American gulag.

 

 

 

In August of 2011, Larry Mikiel Myers was arrested on various counts of conspiracy to intimidate government agents. The following January, a demand for habeas corpus was served on his behalf, yet it was ignored by all the recipients. His trial commenced anyway on February 9th, in a flagrant violation of due process; he was subsequently convicted on all counts three days later.

What exactly led to such a state of affairs for Larry Myers? To answer that question, we must go back into the past and examine how a series of interrelated events were set in motion by the domino effect. Spanning the course of about 20 years, the story of how Larry Myers came to be incarcerated, and remains so today, is certainly one well worth learning if you care about human liberty.

Philip Marsh was indicted by a federal grand jury in November of 1993 for conspiracy to defraud the United States. His trial and that of his co-defendants began in August of 1994, ending in November with a hung jury. A retrial was eventually held, and by December of 1995, Marsh was convicted by a jury on numerous counts of violating 18 USC § 371, 26 USC § 7212, 26 USC § 7201, 26 USC § 7203, & 18 USC § 1341; he was sentenced seven months later to 17 years and 6 months in prison. In the United States v. Marsh, 98 C.D.O.S. 3974 (1998) decision, the United States Court of Appeals for the Ninth Circuit chose to reverse most of the convictions for Marsh and his co-defendants, yet that court affirmed every single conviction of 26 USC §§ 7201 & 7203 for all defendants. Marsh was able to get his sentence reduced down to a total of 7 years in prison because of this appellate decision, yet the reason for his sentence was because he had violated mala prohibita by his “willful failure to file tax returns” and for “tax evasion.”

Emilio Ippolito was indicted by a federal grand jury in March of 1996 for conspiracy to commit any offense against the United States. His trial and that of his co-defendants began in May, ending in August of 1997 with a mixture of acquittals and convictions. In the United States v. Carpa, No. 98-2797 (2001) decision, the United States Court of Appeals for the Eleventh Circuit chose to affirm the judgment of the district court.

Not only was Philip Marsh a co-defendant of Ippolito’s, but so was Larry Myers. What happened here was that Ippolito and his group decided to mail some letters to the jurors who were on the second Marsh trial, because they felt that Marsh’s right to due process was being violated. As Gary Hunt described it at the time:

 

“The Tampa trial was based upon the defendants attempting to educate judges and juries that treason would constitute violation of the Constitution in convicting people for crimes they did not commit. The first jury determined that Marsh, et al, did not commit a crime. The second jury was denied the evidence (witnesses, i. e. Sixth Amendment right) that prevented conviction in the first trial. However, this is not Obstruction of Justice. Perhaps, however, it is Obstruction of the Constitution. It was these concerns that prompted the Tampa Common Law Court to advise the jurors and the judges that they were not acting in their proper capacity in the Marsh second trial.”

 

Yet such education and advice was interpreted by the government as if it were a crime unto itself. If mailing letters were sufficient for causing a tort, then wouldn’t that mean notices from the IRS demanding payment from an individual therefore mean he is their victim? That’s the double standard right there – if they threaten to extort you, that’s okay because “it’s the law,” but the second you do what they consider to be the same to them, all of a sudden it becomes a “crime.”

Larry Myers was indicted, in March of 1996 alongside Ippolito, on the following five counts, specifically:

  1. Conspiracy to commit offense or to defraud United States 18 USC § 371
  2. Conspiracy to impede or injure officer 18 USC § 372
  3. Mailing threatening communications (on 7/15/94) – 18 USC §§ 876 & 2
  4. Influencing or injuring officer or juror generally (on 8/27/94) – 18 USC §§ 1503 & 2
  5. Influencing or injuring officer or juror generally (on 9/20/94) – 18 USC §§ 1503 & 2

 

According the indictment:

 

“Defendant Myers signed ‘Militia…Arrest Warrants’ in his capacity as a ‘Militia Volunteer’ and ‘Constitutional Common Law Enforcement Officer.’ These ‘arrest warrants’ were based on the CLC ‘contempt order’ of the same date, and were directed at Judge Walker and the other ‘respondents…’ Myers…mailed and caused to be mailed, the CLC ‘contempt order’ of August 27, 1994, together with the ‘arrest warrant’ of that date, to Judge Walker and the other ‘respondents….’ Myers signed ‘arrest warrants’ for the petit jury members, alternates and the defense attorneys who represented defendant Marsh [in the other case]. The ‘arrest warrants’ identified the alternate jurors by name and badge number…[and] Myers…mailed and caused to be mailed from Tampa, Florida, the CLC ‘contempt orders’ and ‘arrest warrants’ to Judge Walker, the jurors, alternate jurors, and the other ‘respondents.’”

 

So, by simply mailing letters expressing his displeasure with the federal government’s conduct of Marsh’s tax case, Myers committed a statutory violation despite the fact there was neither a breach of contract nor any real victim (in light of the fourth branch of government, I checked the Parallel Table of Authorities and Rules for the Code of Federal Regulations and the United States Code just to see if any of the Administrative Agencies were involved by default, and thankfully, there was no CFR equivalent to the USC sections he was charged under).

Now, you may be asking, why was Larry Myers conspicuously absent from the United States v. Carpa case? It wasn’t as if he acquitted by the government, otherwise they would’ve mentioned it, just as they did with Richard Brown (who was another one of the co-defendants), so what exactly happened to Myers after the indictment? Apparently, unlike his fellow co-defendants, Myers simply never showed up for the trial, and he eventually moved to Arkansas. He was never heard from again until his arrest over two years ago. Because Myers was able to avoid “the long arm of the law” for 15 years, I suspect that a man like that would get arrested only if someone chose to snitch on him, although I will admit I cannot prove it. Regardless, his 2012 conviction was solely based upon the 1996 indictment.

After his arrest, Myers’ sister contacted Gary Hunt for assistance. Hunt was able to secure a specific power of attorney on Myers’ behalf. Following Myers’ conviction, Hunt mailed a letter to Pinellas County Florida Sheriff Bob Gualtieri saying that it was wrong for him to refuse service on Myers’ earlier habeas corpus back in January, because it was tantamount to denying habeas corpus, which is a violation of the United States Constitution’s Suspension Clause (besides the fact that such a denial was crucial to securing what became an unjust conviction). Unfortunately, this fell on deaf ears, and after slogging his way through various court clerks for the next few months, Hunt received a letter from Thomas Hall, the Clerk of the Florida Supreme Court, who told him that:

 

“In response to your filing received May 14, 2012, and related question, please be advised that analysis on your pleading would constitute legal advice. However, we are able to clarify that the pleading is deficient because it concerns a party prosecuted in federal court and currently incarcerated in a federal facility. As such, it must be filed in a federal court. We are returning it to you for that purpose.”

 

Besides the fact that the “federal facility” in question was not on ceded federal land, as required by the Constitution, because it is owned by Corrections Corporation of America, Incorporated, another federal clerk decided to jerk Hunt’s chain around by appearing to treat Myers’ habeas corpus as if it were an appeal. Because of this flagrant denial of habeas corpus, coupled with the equally bad denial of habeas corpus by John Ley (who is the Clerk of the United States Court of Appeals for the Eleventh Circuit), Hunt found himself in the position of having to submit Myers’ habeas corpus to none other than the United States Supreme Court.

Myers’ last recourse was to have the constitutionality of the laws he was charged with challenged, and this could only be done by the forcing of original jurisdiction upon the Supreme Court due to the inaction of the lower courts. The petition for a writ of habeas corpus was filed in June of 2013, and the Court refused to hear it the following October, despite the fact that Hunt had corrected the Clerk of the United States Supreme Court William Suter’s amateur mistakes (such as changing the petition’s caption from In Re Larry Mikiel Myers to In Re Gary Hunt) in his emergency petition for a writ of mandamus. Hunt refiled the habeas corpus in a petition for rehearing in November of 2013, but this too the Court refused to hear in December.

For two whole years, Gary Hunt engaged in many rounds of correspondence with various government agents, especially court clerks, of both the Floridian and United States governments. Article 1 §13 of the Florida Constitution said that:

 

“The writ of habeas corpus shall be grantable of right, freely and without cost. It shall be returnable without delay, and shall never be suspended, unless, in case of rebellion or invasion, suspension is essential to the public safety.” [emphasis added]

 

How is remaining incarcerated for three months within the bounds of a habeas corpus “returnable without delay?” Habeas corpus ad subjiciendum is legally described by Sir William Blackstone as being the great and efficacious writ in all matters of illegal confinement, and a high prerogative writ above all the other types of habeas corpus. It is also known as the “great writ of liberty,” or the Sacred Writ, and as such, it would be accurate to say that habeas corpus ad subjiciendum is the guardian of liberty (and quite possibly one that could have functioned as a form of individual nullification, pursuant to the Ninth and Tenth Amendments). As such a guardian, the timeframe for the Sacred Writ to be answered in is even recognized by 28 USC § 2243:

 

“A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto.” [emphasis added]

 

For those of you who don’t know, the word “forthwith” means immediately. This doesn’t mean that the Court is obliged to rule in your favor, because habeas corpus is not a “get out of jail free card;” all that the Court is obliged to do is to respond to the Sacred Writ only in regards to the legality of the incarceration itself. How “immediate” is it for the United States Supreme Court to sit on Larry Myers’ habeas corpus ad subjiciendum for over six months? Color of law, anyone?

What are the implications of Larry Myers’ habeas corpus being denied by the United States Supreme Court twice? If the Court had heard his habeas corpus, and if they had also ruled that Myers’ incarceration was illegal, it still might not have overturned or reverse his conviction, but it certainly would’ve determined whether the federal government can charge people with crimes that have not been legislated by the United States Congress, but were in fact created by the Administrative Agencies. More significantly, it would’ve also legally determined the legitimacy of administrative law, and thus, and the fourth branch of government itself. The reason the various court clerks (such as Thomas Hall, John Ley, and especially William Suter) were trying to stonewall Myers’ habeas corpus was because they had assumed a power to protect the judges from ruling on matters that are within their purview, but that which is not within the scope of the clerks themselves. In essence, these court clerks have become gatekeepers, much like the doorkeeper in the “Before the Law” parable (which is mentioned in Franz Kafka’s novel, The Trial).

At this point, you might be asking what became of Larry Myers after his habeas corpus was refused to be heard by the Supreme Court? He still remains in prison serving out his 7 year sentence, as of today. Given that he has already experienced 2 years of that (barring any other charges and convictions he may incur while in prison), he is expected to be released sometime in 2019. If you are pondering why you haven’t heard about Larry Myers’ predicament more often on the Internet, it could be due to an intentional blackout by the Carousel of Carnivores within the alternative media, or it could be nothing more nefarious than simple indifference by those who’d rather solicit donations from you towards a legal defense fund scam.

Are there lessons to be learned from Larry Myers’ saga? First, and most importantly, just realize that habeas corpus ad subjiciendum is not anymore a guarantee of being able to challenge potentially illegal confinement, especially in a federal case. Although I will maintain that the Sacred Writ might still work in Texas (pursuant to Article 1 § 12 of the Texas Constitution & the Texas Code of Criminal Procedure, Chapter 11), I am not at all that optimistic, but it would require a test case in order to replicate the similar conditions Larry Myers faced to determine that for certain.

Another lesson to be learned is the fact that even if you avoid capture for being what the government considers to be a fugitive, all it takes is for one opportunistic or even careless individual to rat you out, no matter how innocently, thereby siccing the police on you. Whether or not paper-tripping could be helpful in this regard remains to be seen, but even if it were, the best identity documentation will only assist the Standing Army in capturing you if their informant simply alleges that you are not who you claim to be, but are instead a fugitive who deserves to be captured.

Yet another lesson would be to understand that supposedly issuing your own “arrest warrants” simply does not work. The fact of the matter is that the government monopoly courts only follow their own rules when it suits them, but you and I are always held strictly to them and are never allowed to deviate, such as what happened with the 1996 Tampa Florida Common Law Court trial with regards to felon Matthew Finch as “Juror #505.” As Gary Hunt wrote back in 1998:

 

“Ironically, the very case that attempted to quash the Common Law Courts is beginning to provide the proof that only in those Courts can we hope to find Justice.”

 

The reason why Hunt would say that is because the United States government, as George Mercier described it, could be collectively thought of as if it were a King. If accurate, then the concept that “the King can do no wrong” would certainly explain the actions and justifications given by judges and prosecutors, wouldn’t it? So, when it comes down to the technique of contacting government agents, doing so will always carry the risk of either you losing your cool by threatening them because they are infuriating, or, they will chose to falsely accuse you of losing it by threatening them because they are sore losers. This, more than anything, is why any direct contact you have with government agents should be done with the attitude of “killing them with kindness.” For an example of this being politely done, I will refer you to when I unregistered from the voter rolls.

Probably the most important lesson to learn is the fact that both the United States v. Marsh & United States v. Carpa cases were easily avoidable. Quite simply, the lesson from Marsh is that you shouldn’t sell phony document templates, and then file commercial liens against the federal government (although interestingly enough, Marsh & his co-defendants were all acquitted on those related charges, but were still punished anyway because the government’s spotlight was already on them); the lesson from Carpa is don’t mail judges any letters telling them how you plan to hold them accountable if they happen to railroad somebody.

If you are to take away any lesson from Larry Myers’ experience, it is that you must look before you leap, and study the lay of the land before you travel it. Although you can never be certain about how the government will apply their “laws” to you in particular circumstances, at the very least you have no excuses for not studying their statutory codes and their case law ahead of time in order to gauge the risk you’d be undertaking, if any at all. An ounce of prevention is worth of pound of cure, and seldom is it truer than when you are dealing with government tyranny.

Adventures in Legal Land

Coercive monopolization on the production of arbitration services is a hallmark recipe for tyranny. Without competition amongst varying and overlapping jurisdictions, the provision of dispute resolution becomes immune from accountability. Not only is this monopoly’s customer service just plain lousy, but it also fails to satisfy market demand for adjudication by saddling the losing party with the court costs.

 

 

 

Many individuals, even those who adhere to mainstream American culture, greatly dislike the hassle of litigation, yet they are unable to comprehend the legalese used by bar attorneys. Marc Stevens tries to explain its prolific use:

 

“When going to any court, you enter what I call ‘Legal Land.’ ‘Legal Land’ is very similar to Alice’s Wonderland. It’s where words and phrases mean whatever a ‘judge’ or other lawyer thinks they should mean. This is a fantasy world where theft and violence is O.K. if you have a badge or a fancy political title. It’s a magical world where facts are opinions and opinions are facts. ‘Legal Land’ is where facts spontaneously become opinions and then turn back to facts. It’s an enchanting place where slavery is freedom and submission to degrading and humiliating searches is a ‘patriotic duty.’ ‘Legal Land’ is also where there are millions of ever-changing incomprehensible rules, but not one of them that’s binding on the individuals who make up those rules and force them on others.”

 

Based upon Alice’s Adventures in Wonderland, Stevens’ analogy of Legal Land points out the arbitrary and capricious nature of modern American jurisprudence. Through the lens of this analogy, Stevens describes the reality of a traffic stop:

 

“A typical ‘traffic stop’ involves a man dressed up like a ‘cop’ committing numerous crimes against his victim. I mean crimes in the lay or laymen’s sense of the word, not in the so-called ‘legal’ sense. These are not considered to be crimes because, in ‘Legal Land,’ it’s not false imprisonment, it’s called an ‘investigative detention’ or some equally inane political label. Nothing has changed except the label or opinion that’s been added to it. The political or statist ‘Legal Land’ words cover up the real issue and distort reality. That reality is someone is taking my property through physical violence, threats, and organized coercion.”

 

This lays down the ideological perspective for the rest of the book, for I think it is plain to see that Stevens understands the violence inherent in the system. By extolling the virtues of liberty while rebuking the evils of the State, the author is interested in getting his readers to see through the fog of illusion, as it were.

When it comes right down to methodology, however, is where Stevens goes for a ride on the wild side (as if his political philosophy wasn’t radical enough for many American Patriots). He suggests that:

 

“If a ‘judge’ snaps he has ‘jurisdiction’ over me, then I don’t tell him he is wrong; as will be shown below, that’s an opinion the ‘judge’ can deny. It’s far more effective to just ask him to explain factually, where, when, why and how his so-called ‘jurisdiction’ over me was acquired. I want to know where, when, why and how it happened so I can possibly avoid it. I put the burden where it belongs, on the unproductive individuals seeking to forcibly take my productive time. I call this Zen and the Art of Litigation. I am no longer the opponent, it’s pitting the bureaucrat against himself. There is no fighting, arguing, or other resistance, just asking for the facts and watching a bureaucrat’s confidence collapse along with his pretended case. He may still be violent, but his confidence is declining steadily. It could probably be a mathematical formula, where a bureaucrat’s confidence drops, his level of anger and violence rises.”

 

So, that is Stevens’ litigation strategy in a nutshell – use the State’s own burden of proof against them using a variation on a theme of Socratic questioning. He details further that:

 

“The point is, arguments and opinions can be denied and now the bureaucrats can say they have been responsive, they just disagree with me. In ‘Legal Land,’ this is enough to satisfy so-called ‘due process’ requirements, or what is more accurately termed the pretense of justice and fairness. So, if I have to put forth an opinion or an argument, I just use one the ‘judge’ and the ‘cop’ have used. I send it right back at them as a question. Feed their testimony back to them in question form and then sit back and watch it all fall apart.

 

Although this may work occasionally during litigation, I think solely relying on it to carry you through to an acquittal is naïve, to say the least. Stevens is assuming that:

 

“The beauty, the Achilles heel of this entire scam is that because these phony ‘trials’ are so idiotic and contradictory, they can very easily be exposed for what they are. A ‘judge’ always ‘sacrifices’ one of the two ways by which he operates: either the physical violence behind all their actions or their pretense of fairness and good faith. It’s one or the other.”

 

By demonstrating the contradictory nature of the entire legal proceedings themselves, Stevens appears to think that dismissals, acquittals & nolle prosequi are much more likely to occur if you simply point out the disingenuous bad faith on the judge’s part in a certain way. While certainly an interesting thought, I would first prefer to see some evidence of that actually working before I put any credible stock in it, considering that any lack of effectiveness could incur serious legal consequences for anyone who uses it.

Why is Stevens so antagonistic towards the courts? Perhaps it would be better if he just told you himself:

 

“It follows that a so-called ‘law’ is just the ‘written will’ of men and women. We should not forget this ‘written will’ differs from mine in that I don’t force my ‘written will’ on anyone under the pretense of ‘protection’ and most assuredly not at the barrel of a gun. Does the ‘law’ seem as sacred to you now? Don’t confuse a political ‘law’ with a natural law such as the law of gravity. The law of gravity is not the intervention or whim of man; it’s an observation. Just as important, when was the last time you were forced by another person to comply with the law of gravity? And why is that? Amazing, the earth rotates on its axis everyday without a sacred ‘act of congress’.”

 

Obviously, Stevens doesn’t place much faith in the American system of government, as it is today. Quite frankly, with descriptions like these, I don’t blame him:

 

“Going to court is less intimidating if you remember the ‘judge,’ contrary to what ‘cops’ may believe, is only a lawyer wearing a black robe and sitting four or more feet off the floor…[t]he ‘cop,’ on the other hand, is just a man with a gun who, more often than not, blindly follows orders for a paycheck…no ‘cop’ has ever accused me of breaching a contract or causing any actual or pretended damage…this helps to conceal what is really going on, not only from you, but from the ‘judge’s partner in crime, the loyal ‘cop’ as well.”

 

This is rather interesting, for Stevens here is suggesting that the Standing Army is being systematically manipulated by bar attorneys! During his rant about judges, Stevens says:

 

“This lawyer with a robe is a cruel one-man show. He represents both the plaintiff and the defendant while pretending to be independent and impartial. No one else really needs to show up to put on a ‘trial’ because he does it all. It’s a no-win situation: if he doesn’t represent the plaintiff then he cannot claim to be authorized by the ‘constitution’ without contradicting himself. If he does represent the plaintiff, then the conflict of interest and lack of impartiality is self-evident. In other words, the ‘judge’ is the ringmaster of a very bad dog and pony show designed to put forth an illusion of justice.”

 

Such a harsh characterization is, I think, aimed at showing just how hypocritical judges are in their application of the law. If anything, this inherent conflict of interest highlights the failure of the government monopoly on the law to provide impartial justice.

Interestingly enough, Stevens abhors reformism while also embracing agorism. He says:

 

“What if they passed a ‘law’ that rocks were now apples? Would you take a big bite of a block of granite? Shouldn’t we respect and comply with all ‘laws,’ at least until they are declared ‘unconstitutional’ by the courts or ‘repealed’ by the ‘legislature?’ Before you think these are absurd examples, consider the fact that a ‘legislature’ in the South, I believe it was Alabama, passed a ‘law’ forbidding a river from rising past a certain level. When you just look at the facts, the ‘law’ starts to lose its hypnotic dream like power.”

 

His way here of describing the silliness of relying on tyrants to grant you freedom is well-taken, for I have broached this very idea myself when I was trying to answer the question of whether you are obligated to buy medical insurance. Stevens adds:

 

“This book shouldn’t end without some explanation of an alternative to a coercive ‘state’ and the mythology supporting it. People only need to provide better services and products than bureaucrats do. This in a sense could put them out of business; to finally and forever put to rest the nonsense that services need to be provided on a compulsory basis. It doesn’t take violence to put this dinosaur called politics to rest; apathy and better services provided on a mutually voluntary basis. As you can tell I’m no fan of coercive business practices. I am sure you would agree that no service or product needs to be administered at the barrel of a gun.”

 

Although I completely sympathize with him that such compulsory “services” are an unnecessary evil, just try convincing your average survivalist of that, much less the general public. Only libertarians have raised a hue and cry about this to my knowledge, and I think that the effort should be commended, for it does suggest a possible way out of Leviathan by way of economically discrete civil disobedience, doesn’t it?

I think the time has come to objectively evaluate Marc Stevens’ litigation strategy. For purposes of (*heh*) “judging” the results, I will presume that such success stories must end in either a nolle prosequi, dismissal, or acquittal. As such, I have compiled the following from MarcStevens.net as well as the No State Project video archive (dates follow a yy/mm/dd format):

 

 

As you can no doubt tell, I was able to verify 19 “wins” over the span of almost 2 ¼ years, which were due to either Stevens’ personal intervention in a case, or the formulas in his book. Yet, 6 out of these 19 cases (~ 1/3rd) were only shown in videos laced with Stevens’ commentary; subsequent searches for them on his website turned up empty (even for the Deoliveira case, which Stevens explicitly said would be available for download).

Two additional cases worth mentioning briefly involve Lorin Kee and the now-infamous contraband turkey farmer right here in Texas. If you listen to the judge, you’ll hear him refuse to answer Kee’s question about why his case was dismissed, but other than that, there is nothing else to go on. Despite the confirmation of the Texas Administrative Code being used against the turkey farmer, I have been unable to locate the disposition of his case. Although both cases attribute the help of Marc Stevens in some way, it is rather unclear to what, if any, influence Stevens’ assistance was in the dismissal of Kee’s case or in the final disposition of the turkey farmer.

One glaring case which might suggest the weaknesses in Stevens’ method was none other than when Ian Bernard has his “operator’s privileges” indefinitely suspended last year. As the hearings examiner, Michael King, wrote in the his ruling decision:

 

“The initial portion of the hearing consisted of a discussion between Mr. Stevens and the hearings examiner concerning the basis for proceeding with the hearing. Whenever the hearings examiner attempted to allow the state to present its case by eliciting factual testimony, Mr. Stevens would object. Without attempting to summarize the number of objects by Mr. Stevens, the essence of his objections appeared to be that he did not believe that Ian Freeman (herein ‘respondent’) was subject to the jurisdiction of the Department of Safety. He framed the argument in various ways, but the arguments all amounted to the same thing: Mr. Freeman has not subjected himself to any governmental authority and the Department of Safety has no right to conduct the hearing and the Keene Police Department had the burden of establishing that authority. No matter how many times the hearings examiner explained the basis for the hearing, Mr. Stevens would not accept the explanation or the ruling and continued to object to any testimony being elicited. Eventually, the hearings examiner had to invoke Saf-C 203.12.”

 

During this administrative hearing, Stevens did not appear to me to be non-confrontational, as his litigation style is actually very combative:

 

“After approximately 45 minutes of continually overruling the same or similar objections and having warned Mr. Stevens that the continuation of his behavior toward the authority of the hearings examiner would result in his WEBEX connection being terminated, the hearings examiner did terminate the WEBEX connection. This banishment of Mr. Stevens from the hearing will not be considered in the ultimate decision per Saf-C 203.12(d).”

 

Stevens getting himself disconnected, I think, does not bode well for his litigation strategy, because he might as well as have earned himself a contempt of court charge. To further add insult to injury, Bernard’s motion for King to reconsider his indefinite suspension was rejected by King’s subsequent ruling. Last month, Bernard was arrested due in part to complications from the administrative hearing Stevens “assisted” him with. How’s that for “damage control?”

Needless to say, I would hate to fall into the trap of “hard cases make bad case law,” so for comparison’s sake, I’d like to introduce the 3 different cases of Vernice Kuglin, Stephen Anderson, and the Keene Robin Hooders:

 

 

If you happened to notice, all 3 cases share a few significant characteristics – Stevens did not assist any of the defendants, they were all solid wins for the defendants, and all the defendants were not representing themselves pro se because they had each hired bar attorneys in private practice as defense counsel! Also, if you peruse the ~ 60 videos listed in the Free Keene video archival court footage between 2008 – 2014, I suspect you’ll discover that the majority of the cases (with the exception of last year’s “Robin Hooding” case) were resounding failures. This contrasts pretty sharply with the successes of the Kuglin, Anderson, & the Robin Hooding cases.

Now you may be wondering what Marc Stevens has anything to do with the legal troubles of Free Staters in Keene (aside from Bernard). Well, you must keep in mind that Stevens has often touted that this book of his has inspired libertarians to litigate their own cases pro se by Socratically questioning judges and prosecutors in court. Since the book was first published in 2002, and the fact that the civil disobedience in Keene didn’t really take off until 2009, there is a period of well over half a decade for Stevens’ book (and subsequent radio show) to really kick off and become popular within the libertarian sub-culture. Considering also the fact that the verifiable documentation provided by Stevens himself as to his win record only covers the last two years, I think you can begin to see the very mixed results of his allegedly “zen-like” litigation strategy.

You should also understand that my critique of Marc Stevens is not at all philosophical, but strictly methodological in nature. For instance, why didn’t Stevens (or one of his “clients”) try an oral habeas corpus like Gary Hunt did back in the ‘90s? Wouldn’t that have saved a lot of time and heartache if Stevens, or any of his clients, had simply said:

 

“I am the moving party today, and I am the plaintiff and I set forth a demand for Habeas Corpus for the record. I cannot find an injured party to summon for trial and I want an order for the Sheriff to bring the injured party before the court. I need an order from the court to tell the Sheriff to bring forth the injured party. If this charge is criminal then the injured party must present himself with a sworn statement of the injury. If the nature is civil, then the original contract to which I am alleged to be a party to and have violated must be brought forward.”

 

Also, if Stevens’ claim to fame is how he personally assisted in getting entire cases dropped, wouldn’t you think he would’ve bent over backwards to provide documentation (with privacy stipulations as necessary, of course) backing those claims up? Stevens is rather harebrained and inconsistent when it comes to documenting government oppression, although thankfully the Rio Grande Valley No State Project right here in Texas significantly improved upon this by documenting their own cases more consistently.

Marc Steven’s Adventures in Legal Land: Where Black is White and White is Black and Other Shocking Discoveries from America’s Courtrooms is an intriguing look into the psychology of bar attorneys. As the priesthood of statism, lawyers perpetuate an insidious lie about their execution of justice. Admittedly, while Stevens is right about the lunacy of “the code is applicable because the code is applicable,” his methodology, while not entirely wrong, leaves much to be desired. Looking forward, however, to a truly libertarian society, I will leave you with what I think best encapsulates that vision by Stevens’ concluding remarks:

 

“Notwithstanding the lies inherent in all politics, the protection of life, liberty, and property is a service. There is no reason why this particular service should be set apart from others and provided at the barrel of a machine gun. What a ‘business’ concept; no sales, no accountability, and everyone is a paying customer whether they want to or not. And why aren’t those services provided on a mutually voluntary basis? Quite simply: the loss of dominance and control over the people. Can you picture a world without Legal Land?”