Legal Ethics and Reform

An Open Letter to Elizabeth Warren about her Next Job

Open Letter to Elizabeth Warren .

There is some talk that Pres. Obama might appoint you to the open seat on the Supreme Court which is coming with the resignation of Justice Stevens. While your appointment is to be wished for, it is unlikely to occur because you seem more possessed of classical liberal tendencies than the radical liberal tendencies exhibited by the President. Since appointment to the Supreme Court is unlikely, it is important that a different challenging task be found for your considerable talents.

Jim Crammer, the CNBC host, has a law degree as well as massive experience in financial services. He has pointed out that the American legal system is so slow, so costly, and so inclined to yield unjust results that it has a stifling effect on business activity equal to about 2% of GNP. This situation is unacceptable at anytime, but it is particularly unacceptable when nearly 20% of American workers are unemployed or underemployed or so discouraged they have stopped looking for work.

So Ms Warren you should consider deploying your diverse skills to reorganizing the American legal system so it operates more quickly, less expensively, and more accurately, thus allowing the people to benefit from the 2% increase in GDP those changes would engender. It will be hard to move the US legal system to something resembling the efficient system found in continental Europe. However, you are a persuasive speaker, a well connected law professor, and a knowledgeable commentator on the economic consequences of unfair processes on working people.

From a purely economic supply and demand perspective it does not matter if the small start up entrepreneur retains his capital to grow his business or if that money ends up in the pocket of a attorney to be spent on a larger conference room. However, if the transfer from entrepreneur to attorney is forced by an obviously unfair legal process, many potential entrepreneurs will react by keeping their money close to home invested in ways that supports little or no hiring.

People need jobs and jobs are created by people prepared to risk capital. But people who risk capital want to see a reasonable chance to succeed without being blind sided by a frivolous lawsuit or being forced into an expensive lawsuit to enforce a simple contract. People are desperate for a legal system that 1) gets an objective decision maker into the process early in the process and 2) gets the argumentation, an adversary advocates out of the process as much as possible. Of course, it is true that such systems tend to function quite well without the involvement of lawyers; small and mid-sized litigants quickly discover they can get a just result quickly and cheaply without recourse to lawyers. Litigants in Europe are willing to accept a 3% or 5% haircut on all judgements to pay for the additional time and attention that judges and their assistants have to give early on to make their system work.

There is one aspect to such a system which is slightly problematic. If a case contains within it a fact pattern that touches an aspect of the law which has yet to be fully defined by the appeals courts, there might not be an adequate record created by an expedited, simplified process to mount an appeal to a higher court .

Well enough of this. The challenge is there. Ms Warren you are one of very few who possess: 1) the public persona to access the media, 2) the deep desire to see this country's economy righted and functioning well for middle class people, 3) the required knowledge of the legal system and the opinion leaders influencing that system, and 4) the speaking skill to sell ideas to the broader public. The question is: are you prepared to take on this job after TARP oversight is over?

Just think 2% of GDP over the next 20 years means 1) America remains a first world county and doesn't follow Greece into the tank and 2) its young people have a decent future rather than a constant struggle to pay interest on an outsized government debt.

Regardless of your choice of work going forward - good luck.

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