Consider, finally, Gingrich’s much-discussed desire to weaken the federal courts. The view that the courts have much more power than they used to have, and that this change is mostly unfortunate, is a respectable one. The view that Congress and the president should respond on occasion by limiting the courts’ jurisdiction, as Gingrich wants, ought to be respectable, too.

But Gingrich cannot, of course, stop there. He also has to call for Congress to summon judges to explain their decisions, which would be both pointless (they already write opinions), and wrong (congressmen have no constitutional power to hector judges). And he wants to abolish liberal circuit courts and replace them with conservative ones, which is an obvious attempt to ignore the Constitution’s grant of life tenure to judges.

Anyone who proposes that judicial power should be checked arouses the suspicion that what he really wants is freedom from the constraints of the law. Gingrich’s solution to this problem is to confirm the charge instantaneously.

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Overlawyered is a natural read for mediators such as myself.  The high cost of litigation. Expensive. Procedurally encrusted and, with electronic discovery, a 21st century e-Bleak House.  Endless legal process for those with the funds to foolishly waste on pre-trial dispositive motions; appeals; returns to the trial court; verdicts; motions for new trials and judgments notwithstanding the verdict, further appeals.  A process that is brutal on the people and an enjoyable though intense board game to the lawyers who participate.  Lawyers for whom winning everything because that’s our job. Win. Not write a brilliant motion.  Not make a cogent closing argument.  Not buy our witnesses $150,000 in new clothes.  All that might be necessary.  But without the  win, pointless.

Having said that — and having personally experienced the case that went to trial only after it was “old enough to drive” (the Stringfellow Insurance Coverage Litigation) — what I am about to say may surprise Overlawyered’s readers.

The rule of law (and the human resources necessary to keep its machinery running) accounts for a full 57% of the wealth of developed nations like ours.

This statistic comes not from the ABA, some self-serving trial lawyers association (i.e., the Plaintiffs’ bar) or a left-leaning academic at an Ivy League University.  No.  This comes from the World Bank!

As ReasonOnline science correspondent Ronald Bailey recounted in The Secrets of Intangible Wealth a little more than a year ago;

Human capital and the value of civil institutions – as measured by the rule of law – constitute not just a part of the economic well-being of nations, but the largest share of wealth in virtually all countries.

The statistics compiled by the World Bank should surprise you as much as they did me:

Once one takes into account all of the world’s natural resources and produced capital, 80% of the wealth of rich countries and 60% of the wealth of poor countries is of this intangible type.  [According to] the World Bank[‘s] economists  . . . .  the rule of law explains 57 percent of countries’ intangible capital. Education accounts for 36 percent.

We need only return to the first principles we were taught in law school — certainty of contracts, for instance — for the following figure to be less than completely astonishing:

the  natural wealth in rich countries like the U.S. is a tiny proportion of their overall wealth—typically 1 percent to 3 percent.

Why?  Because we

derive more value from what [we] have. Cropland, pastures and forests are more valuable in rich countries because they can be combined with other capital like machinery and strong property rights to produce more value.

And the role of the rule of law here?  Predictability — trust in civic, political and financial institutions (cf. the stock market when it’s working productively) — freedom of contract, the internalization of legal precedent for managing disputes that are never litigated, and many more efficiencies made possible by the mere presence of a working justice system in America.

I write this as we experience an unprecedented Presidential campaign, the result of which is uncertain and, to many people, frightening.

All I can say to those filled with fear of a McCain or of Obama presidency, is to remember this — America’s political institutions and the people who elect representatives to serve them are more powerful than any single man (or woman).  Whoever is elected, we retain the power to eject him if he over-reaches.  So let’s get past this ENDLESS campaign and laissez le bon temps roulez!

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