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Frank Lee's avatar

The lack of any reflection on the last decade of coordinated lawfare clearly designed to eliminate Trump as a political candidate is telling in this article. Note too all the reference to this assessment of power and law from Ivy League law schools.

We are in a clash of civilization between our elites and everyone else. The judicial system is dominated by the elites... people that lack intellectual honesty or self-reflection to admit their own corruption of law and democracy for power... but are quick to accuse everyone else of doing it.

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Dustin Hecker's avatar

Great debate, and thank you for it. A few observations. (Synthesis from thesis and antithesis??). I practiced law for 40 years. I have arbitrated cases for 35 years. I have mediated disputes (small claims as a volunteer, to millions of dollars on a paid basis) for the last half dozen years. Believe me, virtually all of “the law” exists outside these refined and theoretical concepts. Most law is pedestrian, uncontroversial, not particularly dependent on who has more “power” or money. In civil law (contract disputes, civil wrongs like negligence cases, usually consumer versus vendor - often auto repair shop or home contractor) the party that has the power is the one that has the better facts. Not infrequently, the party with the better facts is a “minority” member of our society, BTW. The party that wins usually is the one who can say, truthfully and persuasively, “I did what I promised to do.” In which case, “power structures” and “CRT” are utterly and totally irrelevant.

Where they are relevant, perhaps, is the criminal side of law and when some advocacy group (left-wing or right-wing) wants to use the courts rather than the political process to effect policy changes and, yes, to accumulate or perpetuate political power. On the criminal side, from what I can see — several steps removed — the question isn’t whether the crime was committed. Sorry, progressive folks, essentially everyone who is prosecuted is in fact guilty of the crime (or included crime) charged and, BTW, has harmed some identifiable human, usually a member of (his, spoiler alert, most criminals are male) own community.

A question is whether we focus on specific crimes and prosecute and punish them because they are objectively more serious and a danger to the community and society or because the effects hit those who have louder voices and are more similar to the politicians who make the laws and those like judges who must enforce the laws. Any honest appraisal must admit that the law, like everything else, is a people business. What is outlawed, what is investigated, what is prosecuted, what is punished, is all influenced by the flawed humans who control the system. One should always be a bit skeptical how well the system works and whether it is fair.

A second question is whether we should assume good faith or pure motives in those who use the courts to push social policy agendas or to push personal vendettas for or against politicians or institutions (I’m looking at you, Harvard) of or dominated by the other party. Answer, no. Whether it’s the New York Democrats targeting Trump or Trump targeting his enemies through the courts, we can’t and shouldn’t trust any of them. Lawfare begets lawfare. A belief that a proper end justifies twisting the legal process only begets more of the same when the other side picks up the mantle of power.

But to say, as CRT suggests or at least has been interpreted by those now in power in our many instiutions, that it’s really all about imposing the power of one group over another and any belief the law is objective is a large step too far. The idea that we should not try to be objective in the application of the law, that somehow the law should be adapted to account for power discrepancies and the like, is a massive mistake.

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