Should Appellate Judges Discuss Cases Prior to Oral Argument?

    On a number of occasions I have heard Justices of the United States Supreme Court say that prior to oral argument the members of the Court do not discuss a case among themselves, and that the first time they become aware of another Justice's views about an appeal is during oral argument.

    I have also heard Justices of the Appellate Division, Second Department, say the same thing (although in the past apparently there were some Justices on that Court who made it a point to discuss cases on the calendar before oral argument).

    In my view, this is how it should be. After reading the briefs and records appellate judges undoubtedly form an opinion, before they attend oral argument, on how a case should be decided. But that is very different from discussing the case with other members of the panel which will hear a case: such preargument discussions may lead to conclusions among the judges on how to rule even before the lawyers have been heard, and may make it difficult for a judge to tell his colleagues he has changed his mind based on what he heard at oral argument. In short, it makes a judge less open to persuasion by the lawyer at oral argument.

    All of this came to mind when I read Dan Wise's blog report that there is a "schism" among the Justices of the Appellate Division, First Department, over whether the Justices scheduled to sit together on a panel should, prior to oral argument, discuss the cases they will hear. Wise was a reporter for 28 years with the New York Law Journal and he uses the sources he has cultivated to put together an insider's view of the judiciary. You can see his article here.

  

American "Supermax" Prisons and the European Court of Human Rights

    It is not often that we are aware of an overseas appellate ruling, but today's decision of the European Court of Human Rights in Case of Babar Ahmad and Others v. The United Kingdom is worth some attention.
    In the ruling, the court, which sits in Strasbourg, France, holds there will be no violation of human rights if five individuals are extradited by England to the United States to stand trial on charges of being involved in terrorism. The charges are made in a federal indictment in Connecticut, and two indictments in the United States District Court for the Southern District of New York. One of the New York indictments alleges various degrees of involvement in the 1998 bombings of the United States embassies in Nairobi and Dar es Salamm in East Africa.
    The first matter of note is the structure of the court's opinion: the decision is set forth in a series of 258 numbered paragraphs and will, therefore, look to an American reader as a litigant's pleading, and not the decision of an appellate court. 
    The second matter of considerable interest is the court's extensive discussion of the federal "supermax" prison in Colorado where the five defendants can expect to be incarcerated if they are convicted after trial in federal court. 
    The defendants maintained that the nature of the incarceration in a supermax prison--in particular, the isolation from contact with other humans--would be a violation of their human rights. The court rejects the claims, and in doing so sets forth in great detail how a supermax prison is run. The court cites extensively to American case law interpreting the Eighth Amendment's prohibition against cruel and unusual treatment, and to the Fifth Amendment's Due Process Clause. The court also shows its familiarity with federal court decisions which have addressed conditions in a supermax prison.
    American supermax prisons have been the source of some controversy, and there is much misinformation about them. This opinion offers an excellent description of them, from the size of the cells, to recreation time, to contact with other inmates. There have been some differences among the Justices of the United States Supreme Court over to what extent, if any, American courts should rely on the opinions of the courts of others nations in constitutional adjudication. Regardless of these differences, I expect that future American litigation regarding supermax prisons will cite this decision of the European Court of Human Rights. The decision can be found here.    

Appealing a Motion to Reargue

    A recurring error arises in New York when an attorney loses a motion and he wants to appeal the order denying the motion while also moving to reargue in the lower court the motion he lost. 
   There are two simple New York rules to keep in mind: 1) making a motion to reargue does not extend the time to file a notice of appeal from the order denying a motion; and 2) there is no appeal from an order which denies a motion to reargue. 
   I am reminded of this because only last week the Appellate Division, First Department, had occasion to repeat rule 2 in Williams v. Tatham, which can be found here.
   The rules are traps for the unwary: by the time a motion to reargue is decided it will ordinarily be too late to file a notice of appeal from the original order denying the motion.
   What should be done? After a motion is denied file a notice of appeal in accordance with the time limits laid out in CPLR § 5513. Then file the motion for reargument. If the motion for reargument is denied there is no appeal from the denial, but the attorney can still perfect an appeal from the original order because he filed a timely notice of appeal. 
   Final note: if the court grants the motion for reargument but adheres to its original ruling, that order is appealable. See, CPLR § 5701(a)(2)(viii).       

Shades of Daniel Webster

    When I read histories of the United States Supreme Court one matter that jumps off the page is the length of oral arguments before the John Marshall Court in the early part of the nineteenth century.
    I have read of arguments by Daniel Webster and others which went on for days. I even read an account which stated that Webster and others argued one case for ten days!
   I was reminded of this when the Supreme Court announced it would hear three days of oral argument on the challenges to the Patient Protection and Affordable Care Act which requires that beginning in 2014 virtually every person must obtain a minimum amount of health insurance or pay a tax penalty.
   Oral argument will be heard on "Obamacare" on March 26, 27 and 28, and a decision is expected by the end of June--just as the presidential race becomes more intense. 
    The hours of oral argument scheduled by the Court on the constitutionality of the health care law serve, in my view, to illustrate the importance of appellate oral argument. As appellate court dockets have grown, less and less time has been allotted for oral argument, and many attorneys consider oral argument a waste of time. I strongly disagree.
    However brief the time a court allots for oral argument, attorneys--particularly those representing an appellant--should not forego an appearance. It is the only opportunity to address concerns appellate judges may have. In my experience judges have not been hesitent to use the opportunity to clarify or probe matters with the attorneys, and different judges have said that oral argument changes their mind five to fifteen per cent of the time. I only complain about oral argument when a court decides a case on a point the judges did not raise during the argument and which, therefore, an attorney had no opportunity to address.  

The Influence of the New York View of GPS Surveillance

    Back on May 12, 2009, I noted the decision of the New York Court of Appeals in People v. Weaver, 12 N.Y.3d 433 (2009), in which the Court in an opinion by Chief Judge Lippman for the majority, ruled that the government cannot install a global positioning system device (GPS) on an person's automobile without a warrant.
    The opinion harked back to Justice Brandeis' invocation of "the right to be let alone" in his prescient dissent in Olmstead v. United States, 277 U.S. 438 (1928), and noted the intrusive nature of GPS surveillance which allows the government to obtain all sorts of information about a person's private life such as "trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment, the strip club, the criminal defense lawyer, the mosque, the synagogue or church, the gay bar and on and on."
    This past November I noted that the United States Supreme Court was about to hear oral argument in U.S. v. Jones which raised the question of warrantless GPS surveillance, and I wondered whether the Court would follow Chief Judge Lippman's lead.
    Happlily on January 23rd a unanimous Superme Court did conclude that the warrantless installation of a GPS device in an automobile violates the Fourth Amendment. I will not engage in an extended discussion here of Justice Scalia's opinion for the Court, or Justice Alito's concurring opinion for four Justices. I do note, however, that in her concurring opinion Justice Sotomayor cited the above-quoted language of Chief Judge Lippman's opinion in Weaver to emphasize the intrusive nature of GPS surveillance and what it can disclose about a person's private life. 
    At a recent bar association dinner I congratulated Chief Judge Lippman on his impact on Jones. I write here with the hope that the impact of Weaver is more widely appreciated.  

Appealing a Sua Sponte Order

    One of the practical problems which trial counsel confront is a sua sponte order which has an adverse effect on a party. 
    The situation can arise, for example, at a pretrial calendar conference when a judge sanctions a party for failure to comply with discovery deadlines established by court order or by stipulation of the parties. The sanction may consist of the imposition of attorneys' costs on the offending side, or even, in an extreme situation, the dismissal of a claim.
    It is well-established under New York law that there is no right to appeal a sua sponte order. The rule follows from CPLR § 5701(a)(2) which indicates that a party has a right to appeal from an order "where the motion it decided was made upon notice." Because a sua sponte order is not the result of a motion made on notice, the courts conclude that there is no right to appeal the order. 
    The solution for the aggrieved party? Make a motion on notice to vacate the sua sponte order, and if the motion is denied, appeal the order denying the motion to vacate. See, Sholes v. Meagher, 100 N.Y.2d 333 (2003); CPLR § 5701(a)(3).
    Happy Thanksgiving.       

An Outstanding CLE Program

    Now that Continuing Legal Education is ensconced as a cottage industry, lawyers are deluged with brochures and e-mails assuring us that if we do not immediately enroll in a particular CLE course we surely will be consigned to the dustbin of legal history. 
    Amidst the deluge it is always refreshing to find a CLE program which is not only informative and useful, but actually enjoyable. I attended one last week and I strongly recommend it when it comes around next year.
    For four days I attended an appellate practice program in Washington, D.C., sponsored by the American Bar Association's Council of Appellate Lawyers (I sit on its executive committee), the Appellate Judges Education Institute, and SMU Dedman School of Law. Hundreds of lawyers and appellate judges from across the country attended. Judge Eugene F. Pigott of the New York Court of Appeals was a member of a panel on how appellate judges approach decision making. 
    The program began on Thursday afternoon with two lawyers interviewing Justice Sonia Sotomayor for one hour, and it concluded on Sunday morning with a talk by Harvard Law School Professor Jack Goldsmith on the impact of war (including 9/11) on constitutional law. In between there were talks on developments and trends in civil and criminal law, a luncheon talk by Scott Turow on law and literature, panels on various aspects of appellate practice, and predictions by the attorneys involved in the challenges to the health care law regarding whether and when the Supreme Court would agree to hear the case (the predictions were accurate).
    A fascinating topic was the impact of technology on appellate practice. I learned, for example, that iPads have been distributed to all the judges of the United States Court of Appeals for the Ninth Circuit and the judges use them rather than carry around briefs and records on appeal. Does the fact that judges are reading from a screen affect how attorneys should write and structure their briefs? Should footnotes be avoided?
    Next year this appellate "summit" will be held in New Orleans. It will be one of the very best CLE programs you can attend.  

GPS Surveillance: Will the Supreme Court Go New York's Way?

    Back on May 12, 2009, I reported here that the New York Court of Appeals had that day ruled that the police cannot attach a global positioning system (GPS) tracking device to a person's automobile without a search warrant. People v. Weaver, 12 N.Y.3d 433 (2009). I noted that the opinion by Chief Judge Jonathan Lippman was a resounding invocation of  "the right to be let alone" enunciated by Justice Louis Brandeis in his prescient dissent in Olmstead v. United States, 277 U.S. 438 (1928).
    I also noted that because Weaver was based on provisions of the New York State Constitution the decision was beyond review by the United States Supreme Court.
    Next Tuesday, however, the Supreme Court will have the opportunity to address the issue when it hears oral argument in United States v. Jones, a Government appeal from a ruling by the United States Court of Appeals for the D.C. Circuit that a warrant was required to install the GPS tracking device which monitored Jones' movements in his car for approximately four weeks. Decisions in at least four other federal circuit courts have upheld the warrantless installation of a GPS tracking device.     

Next Week in the Supreme Court: Criminal Justice

    The United States Supreme Court will hold three days of oral argument next week and hear six cases, all touching on issues central to the criminal justice system.
    Two cases will deal with the constitutional right to the effective assistance of counsel during plea bargaining (Lafler v. Cooper and Missouri v. Frye); one will deal with a matter of growing concern--the due process protections against unreliable eyewitness identification testimony (Perry v. New Hampshire); another will address the deadline imposed on state inmates for filing federal habeas corpus petitions (Gonzalez v. Thaler); a fifth case will address governmental immunity when a governmental official testifies falsely before a grand jury which then issues an indictment (Rehberg v. Paulk); and the sixth will consider suits against individuals who work for companies which have contracted with the government to provide prison services (Minneci v. Pollard).   

Summer Travel and the Law: Looking Back

    Now that the chill of fall is here, and the appellate courts are back in session, it is time to take a pause from drafting briefs and preparing for oral argument, to look back to the days of summer.  
    Summer is, of course, a good time to travel, and when I do I try to catch the local sites of legal interest. Jacqueline and I have always enjoyed Virginia, so we decided to see parts of the state we had not explored: the Shenandoah Valley, the Blue Ridge Mountains, and other places in the far west of the state. One of the things we quickly learned is that the Civil War is ever present wherever we went.
    The first stop on the drive from New York was the town of Frederick in western Maryland, the scene of much Civil War conflict. Sitting on a quiet street is the Roger Brooke Taney House, home of the fifth Chief Justice of the United States Supreme Court and the author of the Dred Scott decision. Traveling south from Frederick one passes through Harpers Ferry, West Virginia, the scene of John Brown's famous 1859 raid on the federal armory designed to incite a slave insurrection.
   Our first stop in Virginia was Winchester, a town which reportedly changed hands 72 times during the Civil War, including 13 times in one day! In the center of town there is a statue of a Confederate soldier, and behind the statue sits an impressive courthouse which served as a hospital during the Civil War.
    The layout of the courtroom was particularly striking: the jury would sit directly below the judge's bench facing the courtroom, and the witness would sit directly in the front of the jury facing the jurors. This face-to-face arrangement is, of course, very different from the modern courtroom in which the witness sits to the side of the judge's bench and the jurors sit perpendicular to the witness. Jurors must weigh credibility, and I wondered as I viewed the Winchester courtroom whether the face-to-face arrangement is actually better suited to this purpose than the modern configuration.
    On the second floor of the courthouse is a museum which displays not only the weaponry of the Civil War, but recounts the terrible suffering of the troops. We tend to forget that over 600,000 soldiers died during the war, many because battlefield medicine was simply inadequate to the task.
    From Winchester we traveled south, stopping at the New Market battlefield: the stillness was haunting as we looked over a plain grass field which was the scene of an 1864 Confederate victory. From there we visited the Virginia Quilt Museum in Harrisonburg, and then on to the Woodrow Wilson Presidential Library and Museum in Staunton. I had frequently read that Wilson was a racist, but only in Staunton did I realize that he was a southerner.
    Next was Hot Springs, high in the Alleghany Mountains. Not only did we stay in a wonderful inn, but we bathed in the Jefferson Springs which have been bubbling up at 98 degrees for hundreds of years. It is said that Thomas Jefferson bathed here, but there seems to be some difference of opinion whether he found it beneficial. We loved it.
    A detour took us into White Sulphur Springs, West Virginia--site of a secret underground bunker built in the 1950s to house members of Congress in the event of a nuclear attack--and from there we went back to Lexington, Virginia, home of Virginia Military Institute, Washington and Lee University, and the George C. Marshall Museum and Library. I had always thought that Marshall--Army chief of staff during World War II and later Secretary of State--was a West Point graduate, but he actually attended VMI. VMI, of course, was the school at the center of the Supreme's Court's ruling in U.S. v. Virginia, 518 U.S. 515 (1996), holding its males-only admissions policy a violation of equal protection of the law.
    We left the Shenandoah Valley, and traveled east through Lynchburg to Appomattox Court House, the town in which Lee surrendered to Grant in the parlor of the Wilmer McLean home. The town is now a National Historical Park and contains a number of restored buildings, including two law offices. Outside the town is a small cemetery with the remains of 13 unknown Confederate soldiers and one unknown Union soldier. Very moving. 
    We traveled further north to Montpelier Station, the site of James Madison's estate, Montpelier. The 2,700 acres are magnificent, and the tour of the main house particularly meaningful for any student of the Constitution. I was so inspired that I purchased and have read James Madison and the Struggle for the Bill of Rights by Richard Labunski (Oxford Univ. Press).
    From Montpelier we headed west to the Blue Ridge Mountains and turned north for the 100 mile Skyline Drive--a stunning ride with beautiful, unobstructed mountain vistas. A calm, leisurely conclusion to a wonderful summer journey.            

Defamation and the Internet

    With the exponential growth of websites and blogs society has been forced to address defamatory abuses on the internet: sometimes wild and unsubstantiated statements about individuals which would be the basis for tort liability if published in a newspaper or a book.
    Ordinarily, the publisher of defamatory material authored by a third person is subject to tort liability. But in 1996, in the Communications Decency Act (CDA), 47 U.S.C. § 230, Congress created an exception to this general rule for internet publication. In substance, if one is a "provider or user of an interactive computer service" he is not liable in tort for publishing material authored by third parties.
    Today in Shiamili v. The Real Estate Group of New York, Inc., a divided New York Court of Appeals took its first look at the CDA and ruled that Section 230 immunity applies to those who run a blog dedicated to the New York City real estate industry. The allegedly defamatory comments were written by readers of the blog, not the administrator of the blog. In the view of the majority of the Court, simply publishing the comments could not create tort liability in light of Section 230.  A dissenting opinion by Chief Judge Lippman maintained that the defendants had gone further than merely publishing the material: they abused their power as website publishers to "promote and amplify defamation targeted at a business competitor." The dissent is noteworthy because Chief Judge Lippman is seen as a strong advocate of First Amendment free speech.
    The majority opinion in Shiamili contains an excellent survey of cases from across the country interpreting Section 230. The decision can be found here.   

Lincoln, Slavery, and the Law

    I was about a quarter of the way through The Fiery Trial when the announcement came that the book was awarded this year's Pulitzer Prize in history. 
    Written by Eric Foner, the DeWitt Clinton Professor of History at Columbia, the book recounts in fascinating detail the evolution of Abraham Lincoln's thinking about slavery and the action government could legitimately take to address the issue. Most striking for me was the role that constitutional law played in Lincoln's thinking over three decades. 
    Lincoln was morally repelled by slavery but he thought that the law imposed serious constraints on what could be done about the "peculiar institution." The Constitution drafted in 1787 plainly recognized slavery without actually using that word: the three-fifth compromise allowed a state to count 60% of its slaves towards the state's total population for determining its representation in the House of Representatives (and its Electoral College vote), and the fugitive slave clause permitted slave owners to legally secure the return of runaway slaves. 
    Because the Constitution recognized a property right in slaves, Lincoln could not adopt the abolitionist view. Instead, he, like many others, opposed the expansion of slavery and had to deal with such knotty legal questions as whether a slave secured his freedom if the slave owner traveled with the slave into a state which had abolished slavery. 
    The Civil War and the Emancipation Proclamation brought Lincoln's legal dilemma to the fore: as President he was decreeing the manumission of slaves without providing for compensation to the owners--a policy he considered a necessity of war. Until his death Lincoln was concerned that the Supreme Court would declare the Proclamation unconstitutional. According to Professor Foner he named Secretary of Treasury Salmon P. Chase the Chief Justice of the Supreme Court "to guarantee that the Court did not challenge the constitutionality of the Emancipation Proclamation." The legal question was put to rest, however, when the Thirteenth Amendment abolishing slavery (without compensation to slave owners) was finally ratified several months after Lincoln's assassination. 
    This is history at its best: deeply informed, scholarly but readily accessible, and very well written. Take it to the beach this summer.        

Appellate Tips From Supreme Court Justices

    There is a cottage industry in America--continuing legal education courses, tapes, lectures, and books--which promises to teach both the experienced and novice appellate lawyer how to write a persuasive brief and how to make a winning oral argument. Some of these materials are specific to a particular court, while others offer generic advice which is applicable regardless of the jurisdiction in which the appeal will be heard.
    Some of the best material comes from appellate judges, although few can improve on Justice Robert H. Jackson's 1951 speech "Advocacy Before the United States Supreme Court," which can be found here. 
    Scribes, The American Society of Legal Writers, has just published in its journal interviews with eight United States Supreme Court Justices about appellate advocacy . The interviews are conducted by Bryan A. Garner, co-author with Justice Scalia of Making Your Case: The Art of Persuading Judges. 
    I have just started to make my way through the interviews--which run over 180 pages--and I will share the nuggets in future blog entries. You can access all the interviews here. A New York Times article on the interviews can also be found here.


Today's Decisions:  the United States Supreme Court issued four decisions today. In Chamber of Commerce of the United States of America v. Whiting the Court ruled 5-3 that the federal Immigration and Reform Control Act did not preempt Arizona's Legal Arizona Workers Act, a decision certain to add fuel to the controversy over whether states can enforce their own laws directed at immigrants. 
    U.S. v. Tinklenberg addresses the application of the federal Speedy Trial Act; Camreta v. Greene addresses when a party which has prevailed in a United States Court of Appeals can still seek review in the United States Supreme Court because it is displeased with one aspect of the Court of Appeals ruling; and Fowler v. United States provides an interpretation of the federal witness tampering statute, 18 U.S.C. § 1512(a)(1)(C).    

Strauss-Kahn and Bail: Getting It Right

    On Tuesday I wrote that I was surprised that Dominique Strauss-Kahn was not released at his arraignment in the New York City Criminal Court "on a high bail with serious restrictions on his movements." I also said that "other judges will look at the matter."

    Yesterday another judge did look at the matter: Strauss-Kahn's lawyers made a motion for bail review in the Supreme Court, New York County, and the judge there got it right. He ordered Strauss-Kahn's release on high bail with serious restrictions on his movements.

    Bail is, after all, designed to assure the defendant's future appearance in court. The decision of the first judge to remand Strauss-Kahn without bail was a judicial determination that no conditions could be set to assure his future appearance in court. This is implausible, as the release on bail in the past of high profile defendants has shown. One of the conditions set for Strauss-Kahn's release is virtual house arrest with security paid for by him to keep him put. The press is reporting that it will be the same security firm which watched over Bernie Madoff when he was released on bail by a federal judge.

    It was also reported in court yesterday that the grand jury voted to indict Strauss-Kahn on various sexual assault charges, although it appears that the indictment has not yet been formally filed. In New York the grand jury consists of 16 to 23 members, and a vote of at least 12 is needed for an indictment. 

    The fundamental criticism of grand jury proceedings is that they are secret, and there is no judge or representative of the accused present. New York has sought to address the criticism by requiring a judge, upon request of the defendant, to make an in camera inspection of the grand jury minutes to determine whether there was sufficient evidence before the grand jurors to indict the defendant. See, CPL § 210.30. The required judicial inspection of the minutes will generally result in a judicial ruling of sufficient evidence to indict. But it is not a pro forma proceeding: indictments have been dismissed.

   As I noted on Tuesday, in light of the Strauss-Kahn "perp walk" and the denial of bail, there has been widespread overseas criticism of the criminal justice system in New York. The order granting bail should blunt some of this criticism.           

Strauss-Kahn, the "Perp Walk," and Bail

    The arrest of Dominique Strauss-Kahn, managing director of the International Monetary Fund, on charges that he sexually assaulted a chambermaid in his hotel room on West 44th Street in Manhattan, will throw an international spotlight on the criminal justice system in New York.
    Strauss-Kahn is a player on the world stage. As head of the I.M.F. he has been at the forefront of the financial bailouts for Greece, Portugal, and Ireland. He was widely expected to step down from his I.M.F. post this summer to seek the Socialist party nomination for the president of France in elections to be held in 2012. He is so well known that newspaper headlines in the foreign press simply refer to him as DSK. The case is a magnet for press attention: a world figure, salacious details, and claims that political intrigue is behind events leading to the arrest. 
    In the circumstances, the American legal system, and the New York City system in particular, will be put under an intense international microscope. Some recent high profile cases in New York which have garnered international attention have involved financial scandals whose courtroom presentations were affected by a maze of sometimes abstruse market and banking data. The Strauss-Kahn case, however, has a simple story line--what allegedly occurred in a hotel room--which everyone can follow and about which everyone will have an opinion.
    I was interviewed for background on the American legal system by France 24, an internet and television enterprise based on the CNN model. Two matters immediately were raised: the police escorting a handcuffed Strauss-Kahn before the waiting press photographers--the "Perp Walk"-- and the bail system. From the European perspective the Walk seemed intentionally designed to humiliate the accused and to plant "Guilty" in the minds of members of the public who may end up on the jury months later. The view was expressed that Strauss-Kahn had been singled out for this treatment but I assured the interviewer, as any reader of the tabloid press knows, that this sort of display of the accused in high profile cases is common.
    There has been litigation over perp walks. In Lauro v. Childs, 219 F.3d 202 (2nd Cir. 2000), the United States Court of Appeals for the Second Circuit ruled that a "staged perp walk"--one in which the accused is displayed solely for the benefit of the press and which serves no legitimate law enforcement purpose--violates an individual's Fourth Amendment right to be free of unlawful seizures. But in Caldarola v. County of Westchester, 343 F.Fd 570 (2nd Cir. 2003), the court held that the perp walk of a former corrections officer--a videotape of the walk was distributed to the press--served the legitimate governmental purposes of informing the public of efforts to root out wrongdoing by public employees, enhancing the transparency of the criminal justice system, and deterring others from wrongdoing.
    There is also foreign disbelief that at his arraignment Strauss-Kahn was denied release on bail. I, too, was surprised that he was not released on a high bail with serious restrictions on his movements--surrender of his passport, electronic monitoring, and so forth. But bail conditions do change as cases progress through the system: other judges will look at the matter, and appellate review of bail is available.
    So far, therefore, in two ways the New York criminal justice system has come up short in foreign eyes : the perp walk and the flat denial of bail. This sort of close scrutiny by those not familiar with the system nor beholden to it will continue, as it should in a free society.