As a litigation attorney of forty years, I have a fairly well defined picture of the legal system — one that I have seen from both sides of the bench: I served as a federal appeals law clerk for two years and since that time I have continuously engaged in civil trials and appeals. One take away is that the law can be unpredictable and undependable. Part of that is human nature. People think that they are right most of the time and probably right the rest of the time. And in terms of depending upon the law to foster justice, the sad reality is that too many get away with too much. For example, how many of the thousands of schmucks who generated credit default swaps have been or will be punished? And who gets punished? The answer is simple: the CEO — not the minions who created the problem.

It is also important to understand two things about the judiciary. First, courts do not act on their own. The criminal justice system requires a prosecutor with guts and time to devote and the civil justice system requires a resolute civil litigant poised to spend the ranch, and most of the time the ranch ain’t that big. At the risk of sounding agest, Aunt Minnie for example, widowed and alone would have a hard time staying toe-to-toe with well-heeled big firm lawyers who are resourceful and full of resources. Perhaps it works in a John Grisham novel, but there are not too many angels around providing the elderly Minnie with practical access to the courts. Further to this point, prosecutors seldom go after big names for the sake of the long arm of the law. There are exceptions, to be sure. But personal motivations often trump decisions on who to prosecute. Second, not all judges are created equal. And brains are but one factor. Ideology and outsized personalities drive decisions on everything from pretrial proceedings to appellate review. In other words, what is in the books does not always matter. What matters is an understanding and acceptance of the real world. An example of differing points of view on the same set of facts and circumstances, the same constitution, the same statutes and the same legal precedents is that United States Supreme Court opinions are seldom unanimous.

Then there is TARP. An unpunished crime I see is that banks who received government life preservers have not been willing to put that money back into circulation. On a macro level that is bad for GDP. On a micro level it is a crime because those who were loaned money at unrealistic margins and have lost their homes at least in part on bank culpability cannot borrow to restart their lives. The banker’s tragic lament: “We were nice enough to loan you what you requested, and you read the fine print.” And righting oneself today is not just an issue of creditworthiness — the banks are just keeping the money and making more money with the taxpayer dollars through daily sweeps and currency arbitrage.

My remarks are meant solely as a reaction to what I see in the real world — not a criticism of the system, but more appropriately a criticism of understanding the system. It is up to those of us who make our living in the courts to uphold and maintain the integrity of the law, but to understand that the rule of law is not a static, computerized and predictable science. It is also an applied art. As Underhill Moore, a legendary law professor at Columbia in the mid-20′s, put it, the law is not just a body of rules, regulations and principles found in law books, but rather the result of what legal actors do in the real world, influenced by economic, social and pyschological factors. It is critical for all citizens to keep that in mind.