Exacerbating the situation, boards and commissions set up to deal
with judicial misconduct often lack will, power, and effectiveness;
few judges are brought to book, and commissions, comprised largely of
judges themselves and staffed by defenders, may function more to
protect miscreants than to punish them.
There is much in these various critiques that is difficult to deny
or disagree with. True, the claim that judges are usurping power by
constitutional decision making may be unsustainable because there have
been nearly two centuries of judicial decision making on sensitive
political issues. Yet one does wonder whether some recent decisions
simply outrun common sense. In any event, it is impossible to condone
bias against women, sexual predation, tyrannical conduct, or misuse of
position.
Beyond these matters, my thirty-four years as a law professor or a
litigator have persuaded me that there is yet another problem, one
that is widespread. It is that judges too often are unwilling to
listen to facts or reasons. Rather, they start with predilections
heavily favoring one side - predilections which they, of course, deny
- and then prove impervious to facts and resulting reasons contrary to
their bias. They are impervious when the evidence overwhelmingly
supports such facts, even when the facts are not denied. Not
untypically, they also invent - they literally make up - supposed
counter facts. An analogy to judges' resistance to facts is the O.J.
Simpson jury, which was not about to let the facts get in the way of
its prejudices.
As one might expect, prior predilection, associated resistance to
facts, and plain invention of counter facts are employed in the
service of establishment views and to protect the establishment in a
wide range of areas. (One does not find them employed against
the establishment.) In my own career, I have personally experienced or
otherwise observed these phenomena in litigation challenging the
constitutionality of a war waged by powerful presidents in Vietnam, in
litigation challenging the accreditation of law schools by, and other
actions of, the powerful American Bar Association, and in litigation
challenging the interests of powerful corporations.
When judges act on the basis of their prior predilections, ignore
facts, and even make up supposed counter facts, they destroy a central
tenet of the judicial system: decision of cases based on facts rather
than prejudice. They also (like the Simpson jury) destroy faith in the
judicial system. The general public will not continue to give its
trust and confidence to a system which makes decisions by ignoring
truths that are plain for all to see. And persons who are directly and
personally injured by such decisions will be bitter toward a system
which they rightly feel denied them a fair chance after promising it
to them.
This bad situation is made even worse when disregard of facts is
combined with other "features" that often are concomitants. For
example, a judge may insure that facts contrary to the side he favors
are kept to a minimum by denying "discovery" of those facts. Discovery
is the legal process by which, before trial, a party receives
documents from the other side and examines the other side's personnel.
It is the crucial engine for uncovering truth in a lawsuit. Its
importance is made dramatically clear if you consider that, after
years of succeeding in litigation by withholding discovery of
incriminating documents, the tobacco companies' resistance collapsed
when the incriminating information began to come out in various ways.
Judges with a predilection for one side can and too often do suppress
contrary truth by denying discovery, using one pretext or another for
the denial.
Another example occurs when judges - almost unbelievably - hold
secret hearings from which the disfavored party is barred so that it
cannot examine witnesses and learn facts. A judge may also receive
secret evidence and then refuse to turn it over to the disfavored
side. (What was in that famous envelope given to Judge Ito,
anyway?)
Yet other examples occur when a judge claims there is reason to
disqualify the counsel who, because of knowledge and experience, would
be best able to uncover the facts, or when a judge who is accused of
bias refuses to disqualify himself and to let the case be heard by a
different judge who would not ignore or bury facts.
Prior judicial predilection and associated imperviousness to facts,
judicial invention of purported counter facts and concomitant problems
are among the most important problems of the judicial system today. It
would be beneficial to the system, would prevent the law from being a
hollow mockery of its promises, and would help maintain the faith of
citizens, if judges were to stop ignoring facts in order to enforce
their own predilections. '
Harvard’s Endowment Is A Symbol Of Much That Is
Wrong With Higher Education
June 8, 2004
Dear Colleagues:
It has been revealed that the head of the group
which "runs" Harvard’’s endowment was paid 6.9 million dollars for
2003. But he was a piker in the compensation department. One of his
subordinates, who "runs" domestic bonds, was paid 36.8 million.
Another subordinate, who "runs" Harvard’’s international bonds, was
paid 35.6 million. This is nice work if you can get it, especially
since payments of this type have been occurring for many years now.
If memory serves, Harvard has claimed for years, and
plainly seems to be claiming now, that payments like this are needed
to get money managers skilled enough to obtain the high returns that
Harvard’’s 19 plus billion dollar endowment has earned. It now
appears, however, that this is pretty fallacious. According to what
I’’ve read, Harvard’’s endowment has made an average annual return of
14.3 percent for the last ten years. But Yale’’s endowment, which is a
not exactly poverty stricken 11 billion dollars, has earned an average
annual amount of 16 percent over the last 10 years, while last
year the head manager of that endowment was paid "only" a fraction
over one million dollars ($1,027,685, to be exact). The head manager
for the University of Texas’’ funds of 14.8 billion dollars earned a
paltry $743,316 last year, and, while complete figures for Texas
apparently are not available on a 10 year basis, last year Texas
earned 12.8 percent on its 14.8 billion while Harvard earned the
lesser percentage of 12.5.
It seems that a relatively small number of
Harvard’’s 300,000 graduates are finally beginning to complain about
what some people might see as a gigantic ripoff worthy of our Wall
Street sharks. Thus, one Harvard alumnus points out that the two bond
managers together took home about the same amounts as will be raised
by the 5.1 percent tuition increase which Harvard is socking to its
students (whose tuitions are going up to $27,448, no less). This same
alumnus has the nerve -- the nerve! -- to in effect level an
accusation of hypocrisy at Harvard officials up to and including
President Sommers because the officials lament the fact that students
do not go into low paying public interest careers of one type or
another, while at the same time they are socking students with huge
tuitions, which require huge loans, which leave the students with huge
debts, which make it impossible for them to do anything other than try
to make gobs of money in non-public service jobs. Another alumnus, a
historian, has the nerve -- the nerve! -- to say the outlandish
compensation levels of the money managers is a question of values, as
evidenced by the fact that Harvard, citing budgetary cutbacks, has cut
10 librarians while paying a total of over 100 million dollars to the
investment types. (I’’ll bet that cutting 10 librarians might have
saved Harvard as much as 300 to 500 thousand dollars. Whew! What a
relief!)
Though a small number of alumni are objecting to
these outlandish pay packages, Harvard vigorously defends them. Its
spokesman for the defense is a vice president whose last name is
Rapier. As Dave Barry says, I’’m not making this up. But whether the
joke relates to the act or the blade is not entirely clear. (The vice
president is a woman, however.)
It is reported that President Summers did not
respond to requests for interviews on the money mangers’’
compensation, does not answer correspondence from angry alumni about
it, and his office refers inquiries about it to the Rapier. As Jim
Nabors used to say as Gomer Pyle, "Supriise, supriise, supriise."
But enough of this comedy. It’’s time to get
serious. As some people have been saying and writing -- Harvard’’s
former President Derek Bok among them -- the universities of this
country have ever more been adopting commercial values rather than
academic ones. Some university presidents are now making in the
neighborhood of a million dollars per year, lots of them are making
300 to 700 thousand dollars, star professors are being paid fortunes,
coaches -- coaches, for God’’s sake -- are being paid in
the millions, and money is in the forefront of the academic mind.
Learning, honesty, setting a moral example and all the rest of this
old fashioned stuff takes a back seat -- in fact, the seat is so far
back that it is hardly even in the car or bus anymore. Students are
socked with ever increasing tuition bills, to the point where college
-- let alone graduate schools -- are financially out of reach for
working class and lower middle class persons who otherwise would go to
university. In general, selfishness reigns unmitigated.
The Harvard endowment and its compensation practices
symbolize the extent to which greed has taken over the academy. Think
of it this way: if you assume that Harvard has 15,000 students in its
various undergraduate and graduate schools (15,000 is probably too
high an estimate), and if you further assume it costs a student
about $50,000 per year in tuition, room, board, etc. to go to Harvard
(which is probably pretty close give or take a few thousand dollars
one way or another), then the total bill of all Harvard students for
tuition and expenses is 750 million dollars per year. But the average
earnings of 14.3 percent on Harvard’’s endowment, which is now about
19 billion dollars, are $2.71 billion per year. The average
amount of earnings on Harvard’’s endowment, in other words, is
nearly four times the total tuition and other expenses of all of
Harvard’’s students put together. So Harvard could pay every nickel
needed by every student, and charge them nothing, while retaining
nearly three-fourths of the average annual earnings on its
endowment and all of the principal. But neither Summers nor the
Rapier nor anyone else in authority at Harvard is likely to ever even
consider anything that is within 100 country miles of this.
Harvard is a part of the American plutocracy and damn well intends to
stay that way, regardless of its contrary protestations about
educating the disadvantaged. And what is true of Harvard is true in
general of lots of other American universities too, albeit they are
not as wealthy as Harvard (though often they are very wealthy)
and the kinds of figures I set forth above regarding the ratio of
tuitions to average annual earnings may not be quite as favorable at
these other schools as at Harvard.
Nor is Congress worth a damn in this equation.
Congress’’ only response for many years has been to make more money
available in loans and loan guarantees, which enables universities to
jack up their tuitions ever more so that students can pay ever more
and graduate with ever higher debts. My own profession, legal
academia, is an area where Congress may have reached the nadir of do
nothingness. To a vastly disproportionate extent lawyers run this
country. Vastly disproportionate percentages of senators, congressmen,
governors, state legislators and virtually all judges and prosecutors
are lawyers. Lots of university presidents, corporate officers and
major real estate people are lawyers. Community leaders are often
lawyers. But the law schools, spurred on by the American Bar
Association’’s accreditors, have put law school and therefore the
legal profession out of the financial reach of the poor, the lower
middle class and, increasingly, even the middle class; they have put a
major avenue of social mobility and accomplishment out of the reach of
these groups. (The average tuition of ABA law schools in New England
is now approaching $30,000 per year.)
The law schools and the accreditors get away with
this because, lawyers and judges in effect being one huge national
cartel, the ABA has persuaded almost every state supreme court not to
let law graduates take the bar exam unless they graduate from a school
approved by the ABA, which sees to it that law schools have high costs
which necessitate high tuitions. Congress could put an end to the
success of this high cost, high tuition cartel by a simple expedient
that it has used in other areas. Congress gives the law schools and
the states money -- billions upon billions every year - - for higher
education. It therefore could say that graduates of any school
approved by any federally recognized accrediting body -- not
just by the high-cost-demanding ABA -- must be permitted to take a
state’’s bar exam, or it will cut off lots of the federal money going
to that state’’s law schools and/or other higher educational
institutions. Since there are completely competent accrediting bodies
other than the ABA which do not measure a school by its costs
but by its quality, this simple congressional expedient would allow
competent low cost schools to develop and flourish in order to serve
the economically deprived working class and lower middle class. (In
other fields, incidentally, allowing competent low cost suppliers to
exist is called competition.)
But will Congress do this? Don’’t hold your breath.
It has been unwilling to do it previously, is in thrall to both the
high cost educational establishment and the high cost ABA, and, in
reality, doesn’’t give a damn about people who cannot approach it with
huge open wallets for the legalized bribery called campaign
contributions. It is in thrall to the overarching credo symbolized by
Harvard’’s endowment and its compensation practices: money uber
alles.
http://velvelonnationalaffairs.blogspot.com/
