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Our Judicial Imperialism

Imperialism is a word that suggests power fitting of an empire or of an emperor. An op-ed out of Australia today uses the phrase "judicial imperialism" to describe the U.S. legal system's increasing extension of its power overseas. The term might also have fit a story earlier this week out of Washington describing the increasingly imperial stance being taken by some judges towards the news media.

In the opinion piece from The Sydney Morning Herald, Lawyers Without Borders is Justice American-Style, Mark Coultan, the newspaper's New York correspondent, describes how the United States is giving new meaning to the phrase, "long arm of the law." There is Hew Griffiths, the Australian forcibly extradited to a Virginia prison last month even though he never committed a crime on U.S. soil; he is charged with helping to crack copy-protected software and media products and distribute them for free. There are three British bankers -- the so-called Natwest Three -- extradited to the United States for allegedly taking part in a scheme involving former Enron executive Andrew Fastow to acquire ownership of a Cayman Islands investment company at far below worth. "If there was a crime," Coultan writes, "it was committed against a British company, in Britain by British citizens." After citing other examples, he concludes:

"The point about this judicial imperialism is not that any of these cases is without merit. In the Natwest case, prosecutors have emails in which the accused refer to the transaction as 'robbery'.

"Nor is it that US courts are unfair or unjust. But justice systems vary widely. US prison sentences tend to be longer, particularly for white-collar crimes.

"Extending the reach of courts may be the answer to a globalised economy. But we will have to wait and see."

In Washington, meanwhile, Legal Times correspondent Tony Mauro writes about the increasing number of libel cases brought by judges. He sets the stage:

"Supreme Court Justice Antonin Scalia once said judges should adopt a 'rope-a-dope' posture when criticized, taking the hits passively until their adversaries wear themselves out.

"But with 25 judges suing for libel in 2005 alone — nearly 10 percent of all libel suits filed nationwide — that form of judicial restraint is fading, raising questions about the role, and the ethics, of judges and whether they have a right to be as litigious as everyone else."

Last week, the news media began to push back, Mauro reports, "questioning when and whether judges should be able to use their own court systems as a tool to retaliate against the media." One leader in that pushback is media lawyer Bruce Sanford, a partner with Baker & Hostetler in D.C. He tells Mauro: "If these suits lead the public to feel that judges are taking care of their own, it will only add to cynicism about the judicial process."

No question, judges sometimes find themselves stuck between a rock and a hard place when it comes to the news media. But even Gary Hengstler, director of the Reynolds National Center for Courts and the Media at the National Judicial College, tells Mauro that judges nowadays "are more emboldened to sue." In some cases, it seems to me, this attitude begins to approach imperiousness. Judges themselves differ widely in their dealings with and attitudes towards the news media. But I say Justice Scalia got it right. Becoming a judge opens you to criticism; it does not raise you above it. Judges need to understand that going in.

Posted by Robert J. Ambrogi on June 20, 2007 at 03:12 PM | Permalink | Comments (0)

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