Law and Morals in America.

"Congress and the Court," (Editorial) in The New York Times, December 14, 2010, at p. A34. (Someone in the Times must be reading my blogs: "The Gray Lady is Red Faced!" and "What is it like to be plagiarized?")

Ashley Southall, "Vote on Impeached Judge Is Coming in the Senate," in The New York Times, December 7, 2010, at p. A21.

Peter Baker, "In Deal With the G.O.P., a [sic.] Portent for the Next Two Years," in The New York Times, December 7, 2010, at p. A21.

Adam Liptak, "Justices Hear Case on Denial of Help to Veteran Who Missed Filing Deadline," in The New York Times, December 7, 2010, at p. A18.

James McKinley, "Panel Hears Same-Sex Marriage Debate," in The New York Times, December 7, 2010, at p. A19. ("Is there a right to same-sex marriage?")

James McKinley, "Legal Challenge to the Death Penalty Begins in Texas," in The New York Times, December 7, 2010, at p. A19.

It is often said that law and justice are distant neighbors.

Lately, in American courts, law and justice no longer seem to be on speaking terms.

There are, of course, conflicting views concerning the relations -- and they are plural -- between law and morals.

This much-discussed set of complex disciplines and relationships (law and morals) has multiple and variable aspects (or connections) to other branches of political economy, or democratic theory.

The relationships -- or entanglements -- between juridical and ethical reasoning and/or values are not archaic features of legal practice having little to do with the mundane experiences of the average practitioner. Rather, they are integral to the daily work-product of the humblest laborer in the legal vineyards.

It is certainly true that practitioners (even judges) rarely recognize the philosophical conundrums over which they dance and traipse so gingerly and, often, uncautiously. Perhaps this ignorance of jurisprudence by lawyers and judges is fortunate:

Compare Ronald Dworkin, "Jurisprudence," in Taking Rights Seriously (Cambridge: Harvard University Press, 1977), pp. 1-13 with Henningsen v. Bloomfield Motors, 32 N.J. 358, 161 A.2d 69 (1960). (New Jersey's Supreme Court once had standards and was competent in resolving appellate matters.)

A recent United States Supreme Court case raises issues concerning the scope of judicial power in interpreting laws. Technically, these are questions of boundaries and construction in what has come to be called "legal hermeneutics."

At issue before the Court is whether the violation of a statutory deadline to file an appeal from the denial of benefits to an injured veteran suffering from mental illness and acting pro se -- that is, without a lawyer -- should be sustained (or upheld) as "untimely" with the result that the veteran will be denied all benefits.

A lower court judge determined that the appeal was indeed "untimely" and barred the applicant's request to be heard.

"Mootness" would have allowed the Court to sidestep the substantive discussion, given the death of the appellant, but the justices entered the controversy anyway.

No doubt there are other similar cases pending before the nation's highest tribunal -- a tribunal which fills all of us with awe at the majesty of legal reasoning. Irony?

No final decision has been published in this matter.

We must await Justice Scalia's decision that, no doubt, will be filled with the milk of human kindness.

America's "nine scorpions in a bottle" (Oliver Wendell Holmes) hoped -- in their innocence -- to get this issue resolved for future cases. Sadly, the justices appear to have muddied the waters even further. Befuddlement and division among the justices will ensure many more cases raising similar issues in the future.

The veteran-appellant filed his appeal 135 days after a decision denying his initial application for benefits was handed down under a statute that provided only 120 days to appeal such a denial.

Unclear in the news accounts is whether the date of decision (or actual receipt by the appellant) of the initial decision is relevant in measuring the time-limitation, nor is it specified whether there is a "notice" requirement as concerns the time limit.

A notice requirement would mandate "affirmative evidence" of the appellant being aware of the relevant time limit before days would begin to count towards the 120 day period.

There is case law setting forth these various considerations in time limits cases which are quite common.

What does this law mean by a "time requirement" or filing "deadline"? ("What is Law?")

Limitations of actions or "statutes of limitations" that are now found in federal and state law originate in "equity" doctrines developed by the Courts of Chancery at common law.

This origin (or history) is significant because Chancery tribunals were especially concerned with fairness and developed maxims or broad principles aimed at curbing the harshness resulting from mechanical applications of legal decisions and rules.

For instance, no person could obstruct the legal process or prevent a litigant from filing an appeal through the denial of information then claim, successfully, that the filed appeal was "untimely":

"No one shall profit from his or her own wrongdoing" is one equitable maxim illustrated in a classic case not mentioned in this decision by America's current loftiest legal minds or at least in the reported legal argument. Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188 (1889).

There are instances, furthermore, when ignorance of the role played by various defendants or the identities of culprits -- as in res ipsa locquitur and products liability cases in Tort law -- precludes "closing the courthouse" door to a necessarily "untimely" appeal, as in the D.E.S. cases or medical malpractice cases, where a fun-loving surgeon has left an instrument inside the body of a patient whose claim is opposed on the grounds that he cannot identify the culprit because, being under anesthesia, he did not "see who done the deed."

Courts have placed the onus on the defense in such cases with Shakespearean wisdom: "A plague on all your houses." You tell us who done the deed or you all take the hit, as it were. Defendants usually do take the hit in the form of damages. ("Terry Tuchin, Diana Lisa Riccioli, and New Jersey's Agency of Torture.")

With the enactment of such limitations of actions into statutory law all of the equitable doctrinal features, including canons of interpretation, also become part of the positive law.

No limitation was to be applied to work an injustice or to defeat the purpose of the substantive law to which the limitation was annexed.

This equitable doctrine focusing on results from mechanical applications of limitations statutes makes excellent sense.

Yes, "equittable" and "equitable" are correct spellings of this word.

I am hoping to annoy New Jersey persons offering incorrect corrections. ("The Allegory of the Cave.")

"Justice Stephen G. Breyer wanted to know whether it was possible that Congress intended to deny help to veterans who missed deadlines because of the very disabilities for which they sought help."

Justice Breyer wondered in a philosophical mood just for the laughs:

" ... 'You have someone who served his country and was wounded and has post-traumatic stress syndrome or schizophrenia,' Justice Breyer said at a Supreme Court argument Monday. 'Who in Congress would have thought such a thing?' ..."

Justice Antonin Scalia "thinks such a thing" with wicked glee. Justice Scalia would happily preclude the veteran's enjoyment of a day in court and/or prevent his ever being heard on appeal, whatever morality or justice dictates, only for the pleasure of being cruel.

Known to his colleagues as Il Gran Inquisitor, Justice Scalia regrets the abolition of the Spanish Inquisition or the "auto da fe" for all liberal jurists, like Justices Breyer and Ruth Bader Gingsburg, who are (for Scalia) heretics to be burned at the positivists' stake. ("Richard A. Posner On Voluntary Actions and Criminal Responsibility.")

Lawyers arguing before the High Court have heard Mr. Scalia's rendition of Verdi arias as he hands down his most draconian decisions.

Have you seen Don Carlo, "Nino"? ("Law and Literature" and "Drawing Room Comedy: A Philosophical Essay in the Form of a Film Script.")

Should a limitations provision be applied in a manner that frustrates the purpose of the relevant substantive law? Is the injustice -- or even evil -- result that will follow from such an application of a limitations clause "irrelevant" to what courts and judges are expected to do? Apply the rules without regard for their purposes and let the chips fall where they may, Justice Scalia? Ronald Dworkin, "Is There Really No Right Answer in Hard Cases?," in A Matter of Principle (Cambridge: Harvard University Press, 1986), pp. 119-146. ("The Wanderer and His Shadow.")

"Justice Scalia argued for a literal application of the provision that would deny the applicant the requested relief" and was, allegedly, "dismayed" that the appellant died before Justice Scalia could reject his appeal.

Not to worry, Justice Scalia, there will be other opportunities for harshness at the expense of the "little people."

Justice Breyer, on the other hand, said that he would "try to work out from context, language, and objective purpose what a 'reasonable member of Congress would have intended.' ... "

Is the concept of a "reasonable member of Congress" a contradiction in terms? Is being a "member of Congress" negligence per se? ("Manifesto For the Unfinished American Revolution.")

What the Framers intended by fidelity to law was "due process." This is a loaded term with an irremovable moral component. Edward S. Corwin, The "Higher Law" Background of American Constitutional Law (Ithaca & London: Cornell University Press, 1955), pp. 72-73. (Coke and Locke, then Blackstone, were the foremost influences on America's Framers and they have also been influential upon all natural law thinkers since that time.)

Natural law principles lead to the question: "Fidelity to what law?" The Constitution? A statute in conflict with the Constitution?

Is it "fidelity to law" to frustrate the entire purpose of a statute aimed at defending the rights of wounded veterans by precluding an appellant from being heard when -- as a result of his injuries in battle and their effects on his mental health -- he was unable to comply with a procedural provision? Is the "purpose" of a law relevant to construing its most technical provisions?

I doubt that anyone intended a result excluding a wounded veteran from relief aimed especially for persons like him. (Again: "Manifesto for the Unfinished American Revolution.")

Justice Scalia's concern with so-called "fidelity to law" deserted him rather abruptly in Bush v. Gore. The politics of an electoral outcome seemed much more important to America's "Conservative Phalanx" than the merits of the specific controversy (or due process of law) that required counting every single vote in Florida. Ronald Dworkin, "The Strange Case of Judge Alito," in The Supreme Court Phalanx (New York: NYRB, 2008), pp. 21-37.

Relevant to this pending controversy concerning limitations of actions and justice is what Professor Dworkin calls "integrity" in law.

Quoting from a landmark decision where similar issues were examined by New York's Court of Appeals, I believe that Judges Cardozo and (eventually) Learned-Hand were members of that tribunal, Dworkin notes:

"Judge Earl, however, writing for the majority, used a very different theory of litigation, which gives the legislators' intentions an important influence over the real statute. 'It is a familiar canon of construction,' Earl wrote, 'that a thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter; and a thing which is within the letter of the statute is not within the statute, unless it be within the intention of the makers.' [Notice how he relies on the distinction between the text, which he calls the letter of the statute, and the "real" statute, which he calls the statute itself.] It would be absurd, he thought, to suppose that the New York Legislators who originally enacted the statute of wills intended murderers to inherit, and for that reason the real statute they enacted did not have that consequence."

Ronald Dworkin, "What is Law?," in Law's Empire (Cambridge: Harvard University Press, 1986), pp. 18-19 (emphasis added).

More accurately the statute under construction could not be permitted by good N.Y. judges to have that unjust effect. It was held to be incumbent on judges to read the law so as to bring about "just" results.

I am sure that this is no longer true in New York under Governor Cuomo because justice takes time and is far too expensive.

Part of the problem in these limitations cases is the decline in the appellate bench or in the quality of the federal judiciary with all exceptions granted.

American judges today are taught to accept that justice (or legality) is unconcerned with the outcome of cases -- or what is known as "result-orientation" -- which seems absurd to jurists from other cultures in the world. ("The Allegory of the Cave.")

Justice Scalia is a very fine justice and superb legal thinker. This recognition is offered aside from all joking or criticisms concerning Justice Scalia's opinions or specific decisions on Constitutional issues of personal rights.

Many of Justice Scalia's "brethren" on the federal bench -- much worse in state courts -- leave a great deal to be desired. This criticism of federal and state judges applies regardless of their politics or outcomes in cases. Nowhere is this more evident than in the sadly and dismally failed legal system of New Jersey. Bob Ingle & Sandy McClure, "'See No Evil' Law Enforcement and Court Jesters," in The Soprano State: New Jersey's Culture of Corruption (New York: St. Martin's Press, 2008), pp. 127-163. ("Law and Ethics in the Soprano State" and "Anthony Suarez Goes On Trial.")

"The Senate is preparing to vote this week on whether to unseat a federal judge impeached by the House on charges of corruption and bribery."

There are dozens of judges in New Jersey who should be facing similar charges, possibly including the state's tainted Chief Justice. ("Stuart Rabner and Conduct Unbecoming to the Judiciary in New Jersey" and "No More Cover-Ups and Lies, Chief Justice Rabner!" then "Jaynee La Vecchia and Conduct Unbecoming to the Judiciary in New Jersey.")

Among U.S. Senators voting on the "ethics" of this federal judge is Senator Robert ("BobbyM") Menendez, who is still awaiting the decisions of two grand juries, I believe, concerning whether Menendez will be indicted. This is a man, Bob Menendez, whose own ethics are subject to deep criticisms. ("Menendez Charged With Selling His Office.")

You are more than welcome to question my ethics. The merits of any such criticisms become highly doubtful after the commission of great crimes against me before the eyes of the Internet world followed by an incompetent effort to cover-up  and lie about such atrocities. ("Does Senator Menendez Have Mafia Friends?" and "Senator Bob, the Babe, and the Big Bucks" then "Corrupt Law Firms, Senator Bob, and New Jersey Ethics" and "New Jersey's 'Ethical' Legal System" as well as "New Jersey's Politically Connected Lawyers On the Tit.")

" ... Judge Porteous ran up gambling debts, [I have never gambled in my life,] used a fake name to file bankruptcy, accepted cash and gifts from lawyers involved in cases he handled" -- How about alleged sexual favors like Deborah T. Poritz? -- "and lied to the Senate and the Federal Bureau of Investigations while he was vetted to fill the vacancy on the Federal District Court in New Orleans, a pattern of conduct that House lawmakers agreed made him unfit to hold office."

Why was Judge Porteous "unfit" when his conduct is quite common and often rewarded among members of New Jersey's soiled judiciary? Estela De La Cruz? Lourdes Santiago? Maureen Manteneo? ("New Jersey's Failed Judiciary" and "New Jersey's Judges Disgrace America.")

Under these circumstances -- with a judiciary like this in America -- talk of the "integrity" of law becomes laughably absurd along with any opinion by such persons regarding the "ethics" of their victims. ("New Jersey's 'Ethical' Legal System" and "New Jersey's Office of Attorney Ethics" then "Deborah T. Poritz and Conduct Unbecoming to the Judiciary in New Jersey" and "Trenton's Nasty Lesbian Love-Fest!" then "Jennifer Velez is a 'Dyke Magnet!'")

Do the right thing for once, Mr. Rabner. ("Have you no shame Mr. Rabner?")

Several defacements of this text have already taken place even though the essay was only posted hours ago.

I cannot accept that this continuing public computer crime takes place without the cooperation of New Jersey's legal establishment.

Shame on you, Mr. Rabner. ("Stuart Rabner's Selective Sense of Justice.")

Have you no sense of your Constitutional obligations or of the integrity of the laws being violated before the eyes of the world Mr. Rabner? Is it possible that New Jersey's judiciary fails to perceive its own hypocrisy on legal ethics issues, or so-called legality, even at this late date with regard to my matters? ("New Jersey's Filth, Failures, and Flaws.")

Clearly, you either do not care about these crimes or are incapable of discharging your responsibilities, Mr. Rabner. Ms. Dow? Mr. Christie? OAE? Mr. Holder? Are none of you capable of preventing this spectacle of public criminality emanating from Trenton, New Jersey? ("New Jersey's Feces-Covered Supreme Court" and "New Jersey's Political and Supreme Court Whores.")

The continuing catastrophe for America's Constitution deprives us of standing to criticize Cuba, China, Russia or the legal systems of other nations that seem to be better at controlling corruption and organized crime.

At the very least some effort is made in most of the world's legal cultures to correct legal errors when they become evident or impossible to ignore.

Computer crime and state-sanctioned censorship on-line sickens all of us especially when it is accompanied by hypocritical endorsements of free speech from the White House or Congress.

What is being trashed each time my computer is turned off by hackers and whenever my writings are altered or my phone service is disrupted illegally from New Jersey is the Bill of Rights. ("How Censorship Works in America.")

Several alterations of the list of sources have taken place within hours of posting this work. Letters have been deleted from words at irregular intervals to maximize the frustration effect of making corrections of the text. I will continue to write.

Supplemental Sources in Chronological Order According to Author:

H.L.A. Hart, The Concept of Law (Oxford: Oxford University Press, 1961).

Lon F. Fuller, The Morality of Law (New Haven: Yale University Press, 1964).

Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1977).

Ronald Dworkin, A Matter of Principle (Cambridge: Harvard University Press, 1985).

Ronald Dworkin, Law's Empire (Cambridge: Harvard University Press, 1986).

Ronald Dworkin, Justice in Robes (Cambridge: Harvard University Press, 2006).

Ronald Dworkin, The Conservative Phalanx (New York: NYRB, 2008).

John Finnis, Natural Law, Natural Rights (Oxford: Clarendon Press, 1980).

Kent Greenawalt, Conflicts of Law and Morality (Oxford: Clarendon Press, 1989).

Duncan Kennedy, Sexy Dressing Etc.: Essays on the Power and Politics of Cultural Identity (Cambridge: Harvard University Press, 1993).

Duncan Kennedy, A Critique of Adjudication (fin de siecle) (Cambridge: Harvard University Press, 1997). ("Roberto Mangabeira Unger's Revolutionary Legal Theory.")

Additional Supplemental Sources, Chronologically Listed According to Author:

Edwin S. Corwin, The Higher Law Background of American Constitutional Law (Ithaca & London: Cornell University Press, 1955).

James B. White, The Legal Imagination: Studies in the Nature of Legal Thought and Expression (Boston: Little, Brown & Co., 1973).

James B. White, When Words Lose Their Meaning (Chicago: U. Chicago Press, 1984).

Sandford Levinson & Steven Mailloux, eds., Interpreting Law and Literature: A Hermeneutic Reader (Illinois: Northwestern University Press, 1988).

Richard A. Posner, The Problems of Jurisprudence (Cambridge: Harvard U. Press, 1990). ("Richard A. Posner on Voluntary Actions and Criminal Responsibility.")

B.H. Levy, Anglo-American Philosophy of Law: An Introduction to its Development and Outcome (New Brunswick & London: Transaction, 1991).

Bob Ingle & Sandy McClure, The Soprano State: New Jersey's Culture of Corruption (New York: St. Martin's Press, 2008). (Things are worse now than when this book appeared in America's most "feces-covered" jurisdiction, New Jersey.)

Finally, a classic work that was a gift from a friend who may have been the first Puerto Rican to practice law in New Jersey and whose treatment at the hands of "colleagues" defies description:

Jerome Hall, Readings in Jurisprudence (New York & Indianapolis: Bobbs-Merrill, 1938). (Ignacio Saavedra, Esq.)