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Judge Loren Smith Speaks to Louisville's Federalist Society on The Function of Law and Lawyers in a Healthy Society

On Thursday, April 26, Hon. Loren A. Smith, a Judge in the U.S. Court of Federal Claims, addressed the Federalist Society in Louisville.  Judge Smith has had an interesting career and discussed various aspects of his career in his lively talk.  At the outset, Judge Smith held up the type of laptop he said he uses (an etch-a-sketch), which, he said, never crashes unless you drop it.  He also did some rope tricks and magic to warm up the audience.  Judge Smith related that, when he was on the Nixon impeachment defense team, his mother preferred to tell her friends that he worked at a brothel in New Orleans rather than telling them what he really did! 

Judge Smith also worked as an attorney for the Reagan campaigns in 1976 and 1980.  In his role as Chief Judge in the U.S. Court of Federal Claims, he wrote decisions concerning healthy savings and loans that had made agreements with the federal government to take over ailing S&L's.  After the healthy S&L's had agreed with the federal government on credits they would be given to take over the ailing thrifts, and then took them over based on their agreement, the federal government reneged on its agreement.  Judge Smith ruled that this was a taking by the federal government that required compensation, and his opinion was upheld by the U.S. Supreme Court.  He said that, at times, it may be necessary for a government entity to take property for the public good, but, in that case, the government should pay for the property it takes.  It should not force one person to give up his property rights for the benefit of others without compensation.

Judge Smith was also able to provide an interesting perspective on the function of law in a society, because he has been working with groups in about 25 third world countries to help improve their legal systems.  He has worked with lawyers and judges in several African countries, in countries that were formerly part of the USSR, and in Latin American countries.  He said that the people in most of these countries, especially the people in the formerly communist countries, understand very clearly that socialism does not work and that there must be a rule of law, and, in particular a rule of law that respects property rights in order for a country to be healthy and productive.  Judge Smith said that, in the United States, there are many people who try to separate personal liberty from property rights, but people who have lived under communism, where individual rights were not respected, understand very well that you cannot separate personal rights from property rights.  A person needs property to feed his family and to provide them security; and he needs property in order to exercise his right to free speech and other personal rights.  For example, if he cannot rent a hall to give a speech, then he cannot exercise his right to speech.

Judge Smith stressed that what really unites us in this country is not our race, religion or national origin but the fact that we all respect the Constitution.  The Constitution provides us a rule of law, a respect for private property, and a federal system.  Under the federal system, the central government is granted only very limited powers, while most of the power is retained by the states and the people.  Because the power is dispersed among the 50 states, we have the opportunity to experiment and to vote with our shoes, so we can move to a state that suits us better.  Judge Smith said that an understanding of the Constitution and the framework it created is very important, and it is essential that lawyers in practice today keep this big picture in mind and use the legal tools at their disposal to uphold those central premises on which our country is based.