CBA Record April-May 2018

CBA RECORD

EDITOR’S BRIEFCASE BY JUSTICE MICHAEL B. HYMAN, EDITOR-IN-CHIEF Cracks in the Rule of Law True or False: The rule of law in the United States outshines that of any other nation. Most of us would say the statement is true—the rule of law as it exists in the United States embodies the ultimate example of how the rule of law should work. So why does the United States rank 19 out of 113 countries in the most recent international survey of adherence to the rule of law, one place lower than it did in the 2016 survey? Conducted annually since 2010 by theWorld Justice Project (WJP), the Rule of Law Index measures “how the rule of law is experienced and perceived in practical, everyday situations by the general public worldwide.” WJP, an independent non-profit, was initiated by then-ABA president William Neukom in 2006. WJP aspires to advance the rule of law by evaluating its functioning around the world. WJP uses eight factors, scoring and ranking them globally and by region and income. The factors and the United States’ ranked globally, and then regionally, are: (i) Constraints on Government Powers (16/113; 13/24); (ii) Absence of Corruption (19/113; 12/24); (iii) Open Government (13/113; 11/24); (iv) Fundamental Rights (26/113; 17/24); (v) Order and Security (31/113; 17/24); (iv) Regulatory Enforcement (19/113; 13/24); (vii) Civil Justice (26/113; 15/24); and (viii) Criminal Justice (20/113; 13/24). (The 2017-2018 report, with country profiles and methodology, can be located at worldjusticeproject.org/rule-of-law-index.) Global Rankings The United States “has lagged in providing justice services for several years,” according to the executive director of WJP. Among nations with global rankings higher than those of the United States are Denmark (1), Norway (2), Finland (3), Germany (6), Canada (9), United Kingdom (11), Estonia (12), Japan (14), Hong Kong (16), and France (18). While theWJP acknowledges the difficulty of measuring and defining the rule of law, this does not excuse the poor showing of the United States compared to its peers, especially on matters of civil justice and criminal justice. Whatever one might think of the survey’s methodology, it still presents a melancholy picture—our rule of law is neither exceptional nor unique. If nothing else, this should serve as a wake-up call against arrogance and complacency. Long-term issues our country has been struggling with, which the WJP evaluates, include accessibility and affordability of civil courts, improper influence by public or private inter- ests, government transparency, fair and effective enforcement of regulations, integrity of the electoral process, and effectiveness and fairness of the criminal justice system. The current political climate has put additional strains on the rule of law, sharpening divides, creating uncertainty, and burdening the institutions that administer and sustain the rule of law. Each of us can (and should) involve ourselves in projects that defend, protect, and maintain the rule of law, through the Chicago Bar Association, the Chicago Bar Foundation, and other legal and civic organizations dedicated to strengthening and perpetuating our democratic ideals. To paraphrase Dwight D. Eisenhower, the enormity of the rule of law in everyday life is revealed by recalling what happens when there is no rule of law. Addressing the complex political and societal issues enveloping the rule of law is a formidable undertaking. Yet, lawyers must act as the nation’s conscience in these matters; otherwise, we put at risk the principles enshrined in the Constitution. We put at risk the legitimacy of our national institutions. We put at risk the values of our democratic way of life. And, ultimately, we put at risk, for our children and grandchildren, the liberties we take for granted today. Rehearing: “I firmly believe in the rule of law as the foundation for all of our basic rights.” – Justice Sonia Sotomayor

EDITORIAL BOARD Editor-in-Chief Justice Michael B. Hyman Illinois Appellate Court Managing Editor Amy Cook Amy Cook Consulting Associate Editor Anne Ellis Proactive Worldwide, Inc. Summary Judgments Editor Daniel A. Cotter Latimer LeVay Fyock LLC YLS Journal Editors-in-Chief Nicholas D. Standiford Schain Banks Kenny & Schwartz Ltd. Natalie Chan Sidley Austin LLP Carolyn Amadon Nina Fain Janet Sugerman Schirn Family Trust Anthony F. Fata Cafferty Clobes Meriwether & Sprengel LLP Clifford Gately Heyl Royster Angela Harkless The Harkless Law Firm Justin Heather Illinois Department of Commerce and Economic Opportunity Jasmine Villaflor Hernandez Cook County State’s Attorney’s Office Michele M. Jochner Schiller DuCanto & Fleck LLP Oliver A. Khan American Association of Insurance Services John Levin Bonnie McGrath Law Office of Bonnie McGrath Clare McMahon Law Office of Clare McMahon Pamela S. Menaker Clifford Law Offices Peter V. Mierzwa Law Bulletin Publishing Company Kathleen Dillon Narko Northwestern University School of Law Adam J. Sheppard Sheppard Law Firm, PC Richard Lee Stavins

Robbins, Saloman & Patt, Ltd. Rosemary Simota Thompson William A. Zolla II The ZOLLaw Group, Ltd.

THE CHICAGO BAR ASSOCIATION David Beam Director of Publications Rebecca Martin Manager of Advertising and Sponsorships

6 APRIL/MAY 2018