On Lawyers, Judges, and Justice in America

GUEST: Mark Zauderer
AIR DATE: 05/29/10

I’m Richard Heffner, your host on The Open Mind.

And a few days before we record this program on lawyers, judges and our American justice system, I happened to watch the first on-air broadcast of another Open Mind on the law.

That was one in which I thought my guest rather much wiped up the floor with me as I opposed and he as enthusiastically supported “cameras in the courts – American style”. Which, of course, convinced me to invite my distinguished attorney friend and counselor Mark Zauderer back again today to look at various other aspects of the law – of lawyers, judges and justice in America.

My guest is former President of the Federal Bar Council, and some of our earlier Open Mind conversations have touched on efforts to fit the legal profession into a business model, on forcing lawyers to retire for reason of age, and on the jury system … at a time when New York’s Chief Judge had appointed him Chair of a Blue Ribbon Commission on the Jury.

Now, there are a number of legal issues I want to parse with my guest today … and perhaps the most off-beat one concerns what has been labeled “legal tourism”. I know it concerns Mark Zauderer. Why, Mark, why does that particular one get you?

ZAUDERER: Well, if that name sounds strange consider that other names have been appended to this, this concept. “libel tourism” and “libel terrorism”. So what does it mean? And it is an issue that actually has worked its way to the United States Congress and has gotten a lot of attention among many groups in the United States.

What “libel tourism” is basically is this and I think we have to go back and understand some basic principles of libel and, and free speech which we’re all familiar with in, in the United State system.

We have a system which allows for a very robust and broad freedom of speech. People have the right to express their opinions, to write books about people and there’s often not certainly when people speak. You can’t be certain and it’s important to our system that we have certainty.

On the other hand if you, if you defame people, if you say things about them that are not true, and in case of public figures, if you do so with malice or an intention to present a falseness, a falsity … you can be liable to be sued. But there’s a very high hurdle that a person who sues must climb in order to prevail in a libel suit. Because we have this very broad protection for free speech and the United States Supreme Court has said that’s a matter of Federal Constitutional protection.

Other countries, however, have different systems. One such notable country is the United Kingdom. And there it is much easier for someone to prevail in a libel suit which someone has said something unkind about them. And in fact they don’t have the burden of proving truth and they … the, the person who sues for libel is in the, is in a very difficult … easy position compared to the United States.

So what has occurred recently and let me give you an example of a case that has brought this to the forefront. In New York Rachel Ehrenfeld is a very distinguished and prominent writer. And several years ago wrote a book about the funding of terrorism. And in that book she named a Saudi Arabian citizen as someone who was supposedly connected with the financing of terrorism.

Man named Mahfous. He has some ties in England and he brought suit in the United Kingdom where it’s much easier to prevail in a libel suit … sent the papers to Mrs. Ehrenfeld in New York and she refused to appear there. He ended up getting on default a judgment of several hundred thousand dollars against Mrs. Ehrenfeld for what the court found would be the libel that she wrote in her book about his funding terrorism.

HEFFNER: The British court found that.

ZAUDERER: The British court did that. Now why do we care about that? Well, we have in an international procedure a set of “norms” called comity … c-o-m-i-t-y in which countries generally respect the judgment of other countries when they are brought there, subject to being put through a filter if the courts are asked to enforce those judgments here.

Now what Mrs. Ehrenfeld was concerned about is not that Mahfous would come here and ask a court to enforce the money judgment against Mrs. Erhenfeld’s assets in New York, but that he would not do so … he was wealthy man and he would sit out there with the sword of Damocles all these years.

And she was alleging that it was unable … she was unable to get book publishers to publish her work because, as in this instance, because it was apparently obtained from a website like Amazon and 23 books went to England, that was sufficient basis for Mahfous to bring his suit, saying he was defamed in England and she was liable for damages.

And what she did was to go to court in New York and in a series of court proceedings, it went up through Appeals, she was unsuccessful at the lower level, she tried to start a lawsuit in New York against him, he was then in Europe, to declare unenforceable in the United States, the judgment which he had obtained in the United Kingdom and the court said, “There’s no jurisdiction over Mr. Mahfous. He has no business here, he does nothing here and you can’t do that.”

Feeling inadequately protected, she went to the New York Legislature which responded very quickly and passed what was called “The Ehrenfeld Law”. And it purported to do two things by its language. One, it made clear something that’s actually already crystal clear that a court in New York which is being asked to enforce a foreign country judgment for libel, if the libel standards are weaker than ours, in that country, the court shall not enforce it. And this law made it very clear … this Ehrenfeld Law.

But it did something else which I think would perhaps put us on a fool’s errand. It purported to give a right to sue people who bring these judgments in foreign countries, if they affect American citizens, in this case New Yorkers. But I think that’s doomed to failure because in cases where people have no contacts with this country, they’re simply not going to be able to be sued for the kind of declaratory judgment that Mrs. Ehrenfeld and so many of these groups felt was necessary to try to obtain.

HEFFNER: You say, “a fool’s errand”. Why was it even tried? Why did this New York State legislature even try to do this if, in fact, the courts would not have enforced the British judgment?

ZAUDERER: A superb question and as often is the case, the legislature responded to many interest groups … many of them acting in good faith, but who were very concerned about libel tourism, a label they came up with. In fact the bill is now … a bill in the national arena has been called “libel terrorism” which I will … I’ll come to in a moment.

But what happened as a result is Congress picked this up in early 2009 there were draft Bills in both the House and the Senate to do not only what the New York bill did, but to do something much further and, in fact, unprecedented.

What the Bills would do would be to create a Federal cause of action for someone who is sued for libel abroad in a country in which the standards are not as favorable for the speaker as they are in the United States, to bring an action for damages.

Any American citizen could bring an action for damages against that person if that person who started the action in the foreign court simply served papers by mail into the United States. That’s a very thin thread of jurisdiction. I personally doubt its constitutionality because courts have held that simply mailing papers into this country doesn’t give a US court jurisdiction over some foreign citizen or foreign company.

But it went even further than that. It said that if the person mails into this country the process papers in the foreign law suit that the American citizen can bring an action for damages, including all the attorney’s fees, any injury as a result of the suit being brought … even before it’s, it’s won.

Simply the bringing of the action creates the cause of action. And in fact if the court finds that it’s done with an intent to suppress free speech, the plaintiff in New York could be … or any state in the United States where the action’s brought under this Federal statute … could be awarded treble damages, triple damages as a result.

HEFFNER: Which undoubtedly couldn’t be collected anyway.

ZAUDERER: I think not. And in fact, the Senate has just held hearings in February, the Senate Judiciary Committee on the Senate version of the Bill … the House appears to have backed off, having passed a much milder Bill which really does very little other than affirm current law, which is to make it clear that Federal Courts … Courts in the United States shall no enforce foreign country libel judgments where the standards are not as favorable to the speaker as they are in the United States.

But as even the briefs made clear in the Ehrenfeld case, we don’t know of any such cases, the parties to that case were unable to come up with any instances in which United States courts actually enforced foreign country libel judgments from England. So it appears to be a problem that is somewhat overrated.

HEFFNER: So I’m led to ask you … is that the kind of problem that you lawyers are dealing with day in and day out?

ZAUDERER: Well, I think the fact that Congress is dealing with it is, is very significant. It shows that a lot of interest has been brought to bear on this, shall we say.

And my understanding is that the publishing community is extremely involved in this issue because publishers are concerned that unless the United States takes a very firm stand about what US views are toward foreign country libel judgments, they won’t be able to publish and particularly today in an age when books can so easily be sold abroad, when the publisher is not primarily directing the sales to that country, that by virtue of these mere sales of a few books, it’s sufficient as it was in the Mahfous case to give a UK court jurisdiction to commence a libel proceeding.

HEFFNER: It’s interesting. My understanding is that the Brits themselves are beginning to take a position on free speech more akin to our own. Am I wrong in that?

ZAUDERER: They’re moving in that direction, but at a snail’s pace and only very slightly. They have created judicially a kind of opinion penumbra of protection for speech. But it’s very small compared to what’s provided in the US and it remains to be seen whether they will ever conform their law to what the standards are that are applied in the United States.

HEFFNER: Do you think we’ve gone as far as we’re going to go? In terms of our own libel approach?

ZAUDERER: I do. I … my own opinion would be that we’re not going to go any further than the House Bill went which is simply to affirm that courts in the US will not, will not enforce foreign country libel judgments here. So anyone’s assets here, any American citizens’ assets here are essentially protected.

HEFFNER: Mark, I didn’t really mean in terms of the question of libel tourism, I meant in terms of our own posture in the matter of libel. Have we gone as far as we can go in backing away from concepts of libel?

ZAUDERER: I think so. I mean we have come a long way and we do provide considerable protection for speakers, particularly where the people spoken about are not only public officials, but people who have put themselves in the public arena and are subject to fair comment.

HEFFNER: For good or for bad?

ZAUDERER: I think that’s good. I think there are few people who would, would say that our system of libel is … needs reform.

Obviously there are individual cases where a result can be unfair. Because somebody can, can libel somebody … have a very difficult … the plaintiff, who was injured … can have a very difficult time proving it.

I remember a case some twenty years and so ago in my firm, where we sued, successfully, a major paper whose story about a consulting firm was libelous and it put it out of business. In fact we had testimony from the Secretary of Commerce … a former Secretary at the time … that this consulting firm no longer got business as a result of this newspaper article. So … and this was a small Mom and Pop consulting firm.

HEFFNER: Who won and who lost?

ZAUDERER: Well, we won the case fortunately. And … but, nonetheless, I think … being objective about it and weighing all of the considerations that we need to weigh and considering what’s good for society … preserving and protecting free and robust speech, even in the instances where it may be erroneous in what’s said, is an important value.

HEFFNER: Tell me about judges. I happen to know that you have said to me at times, “let’s talk about the misunderstanding of the role of judges in the American court system”. What do you mean by that?

ZAUDERER: Well, I think judges are very badly misunderstood. And I think that politicians have unfortunately done a lot to enhance that degree of misunderstanding.

HEFFNER: How so?

ZAUDERER: Well, you know, we see on the cable shows … some judge makes a decision letting somebody out on bail. Or suppressing a piece of evidence because it violates somebody’s Fourth Amendment rights. And the commentator on TV says, “Look at what that crazy judge did up in Maine or New Hampshire” and …

HEFFNER: “Let’em loose, Bruce” …

ZAUDERER: That was a case, an appellation about a, a judge in New York who has passed away since. But he … but the, the idea that people can make these kinds of comments, and of course, judges cannot respond to defend themselves. I think is very unfortunate. You know, at the Trial Judge level, judges are, by and large, in good faith, trying to carry out the law as it’s given to them.

The very thing that people say they should do. And of course, when people don’t like the result, they blame the judge.

But let’s talk about, if we can, for a moment, at the Appellate Level … Supreme Court typically is where, is where we focus. We hear a lot of back and forth these days about judges not being activist or we don’t want activist judges.

And I’m not sure we know what we mean when we say that. You know, I was watching during the last election cycle a program on cable news and they were interviewing somebody who was at a counter at a truck stop, and he was being interviewed about what he thought the current political scene.

He said, “I don’t any activist judge”. And I thought to myself, “Well, what does he think that means?”

And let, let me give you something to think about in your mind’s eye. Let’s picture a young man who grows up in a blue collar community, suburb, let’s say in Jersey City and in his community the police have been the bulwark between order and chaos. And picture nearby there’s a kid who grows up in the ghetto for whom the police are a constant presence and they feel, rightly or wrongly, that the police are intrusive and disrespectful in the community.

And let’s say that each of them through good fortune and hard work gets to the United States Supreme Court forty years later. And as members of the court they are confronted with a question about whether or not a particular police procedure for searches and seizures is Constitutional.

Now I would suggest to you that each of these fine people is going to apply all of the judicial tools they’re given, each is going to try to do his job without overstepping the bounds of judicial review. And, and yet, they’re going to see that case through two entirely different prisms because of the nature of their experience.

And I think that when you talk about activist judges and the most common definition is … there are several, but one test of activism to the scholars is the extent that a judge votes to overturn an act of Congress or an act of a state legislature. Another would be to the extent to which a judge is ready to overturn prior precedent on the issue.

But activist judges can be found on both ends of the political spectrum, not just as has been often the, the accusation recently on the Liberal spectrum.

In fact if you recall in the United States, beginning with the so-called Lochner era … there was a case, Lochner versus New York in the US Supreme Court in 1905 … began 30 years of the court being “activist” … all of the Conservative judges overturning progressive litigation … progressive legislation.

In 1905 the Lochner case was a New York statute which put a restriction of 60 hours on what a baker could work in New York. And what did the court hold? That that was an infringement on an individual’s right to work as long as he wanted. And the same thing was done in the face of child labor laws and right into the New Deal when much social legislation was enacted, it was largely struck down and which led to President Roosevelt’s frustration when he came up with his court packing scheme … to enlarge the US Supreme Court … mid-1930s.

You know today we hear that label often attached to those judges who are perceived to be Liberal. They’re invading the province of Congress … so many people … so it’s often charged … but in fact, you know, activism is like beauty … in the eye of the beholder. And I think what we can draw from this is that all judges and most of them act in good faith and act responsibly will view the world and decide their cases through their own experience.

And they have many arrows in their quiver in reaching decisions in cases, and which arrow they pull out depends on which seems to be the one to do the job at the time. Every judge will weigh in considering whether a case should be decided a certain way … you know, does the party have standing? What is the precedent? How much weight do we give the precedent? What is our degree of respect we must give the Constitutional … the, the Legislative statute in this particular situation. What is the standard we should use?

I mean these are all things that are talked about in Appellate courts. But what I think is misunderstood is that by and large, judges … the judges we respect … are principled people who inevitably view these cases through their own lens. Use judicial tools, but are not engaged in any kind of activity that earns the pejorative of “judicial activism” to the extent it suggests that they are substituting their own views for those of the Congress, other than where it should be done.

And for 200 years we’ve had a principle of judicial review, where there comes a point where a court must declare a statute unconstitutional, without abdicating its responsibility. So I think that’s widely misunderstood about the judging function.

HEFFNER: But, Mark, you, you say widely and wildly …

ZAUDERER: Yes.

HEFFNER: … misunderstood. How so? Because we don’t learn any more in our schools the way we used to what the judicial system is. We don’t learn about the role, the function of judges. We don’t learn about Constitutional history. We don’t learn … if I may put it in one short word …

ZAUDERER: Sure.

HEFFNER: … civics. So how are we going to … you’re getting all excited about this and I’m, I’m not amused … I’m fascinated by this. Do you think there’s any reversible trend here? Do you think there’s anything that can be done here?

ZAUDERER: I’m not optimistic about that because the value of general education and the requirement to learn and absorb the kind of information that was once required seems to have, have evaporated. That’s not for me or anyone else to make a definitive judgment that what’s been substituted is, is worse.

But what you’ve just alluded to, for example, is true not only in the teaching of law and our Constitution, but it’s true in the teaching of the language … grammar was taught in the New York City public schools when I grew up. I, I didn’t go to one, but I remember it was being taught there. Today it’s not even taught. I talked to my son’s teachers when he was in high school … they had not learned grammar.

We used to have to diagram sentences and stand up in front of the room and understand the parts of speech …

HEFFNER: Good old days.

ZAUDERER: Well, there was a value to that. I was talking to a law student recently and we were going to do a presentation on some great trials of the century … and I said, “Well, shall we do the Sacco and Vanzetti case?” And the student said, “I never heard of that.” Well, what about the Rosenberg case? Not sure what that was. So, I don’t fault the student, it’s something they haven’t been taught in school.

HEFFNER: Yeah, but now … not talking necessarily about fault, but when Steve Axinn was on this program, he was talking, as you are, with great indignation about what we don’t know. And we don’t understand the role of the judges, etc.

And the word “civics” came up, which is not taught anymore. Isn’t this a responsibility you lawyers might take upon yourselves?

ZAUDERER: Well, that’s a good point. I, I, I credit that point and I think that it’s something we ought to expand our reach to encompass. The law profession is good at educating the public.

You know when we did the Jury Commission hearings, for example, I think the Chief Judge had a wonderful idea and asked us to go around to courts of the state … I remember going to courts in five different cities, where we had students brought into the court .. we did it on the floor of the New York Court of Appeals and then five other courts, where we conducted a dialogue about the jury system.

And we did it for several hours and we had several hundred students in every location we went … all participating in dialogue. We would encourage them to give their ideas at each stage of the, of the jury process.

I think that was a good teaching tool. I would like to see our profession do, do more of that. I think that would be a fine idea.

HEFFNER: You do a lot of pro bono work …why not this, why not formal education in what we used to call “civics”.

ZAUDERER: Well, I guess pro bono education has no bounds and your suggestion proves that and probably would be a very, very worthwhile effort. Thank you for suggesting it.

HEFFNER: Okay, but now it, it depends upon the lawyers to pursue it. I, you know I was saying to you before we went on the air, I was talking about Harold Rothwax who said he belonged to the school of thinking he was not the potted plant kind of judge. He was … I won’t say “activist” in the way …

ZAUDERER: Right.

HEFFNER: … you’ve used it, but an active judge. This good, bad or indifferent.

ZAUDERER: I don’t care for that. And let me say that I think … ahemm … that … when … and I’m not specifically talking about Judge Rothwax … I never had a case before him, I’m a civil practitioner, he was in the criminal court.

But the phenomenon suggested by that is not one that we like to see.

HEFFNER: Why not?

ZAUDERER: Because at that point the judge ceases to be neutral. If a judge is result oriented, or in … say in a, a particular case feels a result should come out a certain way, and is … and either manipulates or is perceived to be manipulating the process … in the judge’s mind … for a good end, it perverts the process.

And judges should be neutral. I think those that engage in the kind of practice that you’re talking about do the system a disservice. And there is not always a remedy for that in, in a particular case if the judge oversteps his or her bounds.

Fortunately, it’s the exception rather than the rule. But, if a judge feels that the case has to go a certain way, even if the judge believes it’s the way it should go because that’s the better result, the judge is, unfortunately, stepping out of his assigned role.

HEFFNER: Yes, but you say, Mark, if the judge feels a case has to go a certain way. Let’s forget about “a certain way”. But the judge feels that the case has to go, it has to move on because our judicial system is so jammed. No sympathy for that point of view?

ZAUDERER: No. That’s, that’s a valid goal. Justice delayed is justice denied. You’re familiar with that somewhat hackneyed aphorism … but there has to be a balance … speed is not always justice. Efficiency is good.

But there is something called the “next case” syndrome. It’s an old joke among lawyers, but it’s the judge who, every time you come there says “I don’t have any time for this, I’ve got another case”.

HEFFNER: (Laughter)

ZAUDERER: So … you don’t want that.

HEFFNER: And … so you won’t like my saying “I don’t have time for this because I’ve just been told our time is up”. Which means that we have to have another case, you’ve got to come back and we’ll continue this discussion of the niceties of the law. Mark Zauderer, thank you for joining me again.

ZAUDERER: Thank you. My pleasure.

HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time. Meanwhile, as an old friend used to say, “Good night and good luck.”

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.