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Justice For Some, Again

The Fed takes care of banks:

[B]anks have never acted as if they bear responsibility for the mortgage mess. They have pursued foreclosures in violation of borrowers’ rights to due process, as revealed by the recent robo-signing scandal. And, despite having been bailed out for their mistakes, they have pursued their self-interest, not the public interest, when it comes to modifying bad loans. They have resisted reducing principal balances for troubled borrowers, for instance, because that could force them to take losses they would rather delay.

Now, despite mounting evidence of borrower mistreatment, the Federal Reserve has proposed a rule that would disable the most effective legal tool that borrowers have to fight foreclosures. [. . .] Citing concern over banks’ compliance costs, [the Fed] would require a borrower to pay off the remaining principal before the lender gives up its security interest. That would be clearly impossible for troubled borrowers. So the Fed’s proposal would benefit the creditor who violated the law rather than the borrower, paving the way for foreclosures that otherwise could be avoided.

The Fed failed to protect consumers before the financial crisis, and is failing again. [. . .]

The entire government has failed consumers and is still failing. This is not new.

Speaking for me only

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Justice For Some

Glenn Greenwald's new book shows promise of being his best one yet. The proposed title, part of which I stole for the title of this post, is With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the Powerful. I suspect Glenn will, as he mostly does, concentrate on civil liberty issues but there are indications he will go further:

The book's central theme -- the legal immunity which political and financial elites have bequeathed to themselves even for egregious illegality, contrasted with the merciless system of punishment and coercion imposed on ordinary citizens -- was potently highlighted by two very recent events and necessitated substantial work to include them: (1) the mortgage/foreclosure fraud scandal and the political class's reflexive attempts to immunize the banks from the consequences of wrongdoing [. . .]

Marcy Wheeler (who with David Dayen, is doing a great job on the story), covers the latest:

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The Legal System

I wonder how prevalent this view, expressed by Matt Yglesias, is:

With President Barack Obama seeking to move an ambitious legislative agenda through the molasses-like United States Senate,* it was fairly easy for Mitch McConnell and his colleagues to obstruct a given person’s nomination simply by threatening to drag things out. After all, Harry Reid and the White House had better things to do with their pressure floor time than quibble about district court nominees.

(Emphasis supplied.) Lawyers almost certainly overestimate the importance of the judiciary in our political system, but it seems to me non-lawyers underestimate its importance. Justice AND policy are often decided at the district court level, and of course, a lot of individual justice is served, or not, at that level. It's a lot more important than folks like Yglesias think.

Speaking for me only

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"Bonfire of the Vanities" Judge Burton Roberts Dies

Judge Burton Roberts has died. He was 88. The retired Bronx Supreme Court Judge was the inspiration for Myron Kovitsky, the judge in Tom Wolfe's Bonfire of the Vanities.

In “The Bonfire of the Vanities,” one of the only admirable figures is Myron Kovitsky, a Bronx judge who refuses to be influenced by the press, the public or publicity-seeking prosecutors. Mr. Wolfe modeled the character after Judge Roberts and dedicated the book to him and one of his former assistants, Edward W. Hayes. In the 1990 film version, the judge’s name was changed to Leonard White, and he was portrayed by Morgan Freeman.

Judge Roberts, a longtime prosecutor before becoming a judge, was flamboyant but always true to his strongly held principles:

[He] denigrated capital punishment, mandatory sentencing laws, and public officials who criticized rulings in ways he felt were politically motivated intrusions upon the independence of the judiciary.

[More...]

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Judicial Activism For Me, But Not For Thee

Via OpenLeft, a conservative complaint about Ted Olson:

I cannot trust the legal judgment of a fellow who claims to be conservative and yet who clearly believes the Constitution should be used by the Judiciary to invalidate the will of the people [. . .]

Meanwhile, back at extreme conservative headquarters, the Wingnut AGs filed their opposition (PDF) to the federal government's motion to dismiss their complaint asking the judiciary to overturn a law enacted by the duly elected Congress and signed by the duly elected President, the health bill and its individual mandate.

Respect for "the will of the people" apparently only matters some of the time. In other words, judicial activism for me but not for thee.

Speaking for me only

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How A State Can Create Standing To Challenge A Federal Law: Pass A Law In Conflict

The absurd ruling (PDF) by Virginia federal judge Henry Hudson denying the United States' motion to dismiss the complaint filed by Virginia AG Ken Cucinelli attacking the recently enacted health care bill (specifically the individual mandate) is most notable for its reasoning for why Virginia has standing to challenge the law. Here is how Ilya Somin, who is sympathetic to the ruling, puts it:

Hudson rejected the federal government’s claim that Virginia did not have standing to challenge the mandate. Although states are generally not allowed standing to litigate the interests of their citizens, Hudson argues that Virginia has standing because the federal health care bill conflicts with a recently enacted Virginia state law, the Health Care Freedom Act. This, he argues, is enough to give Virginia standing [. . .]

If this ruling is eventually upheld (it won't be imo, if the district court decides in Virginia's favor), here is a great new vehicle for challenging federal actions - states could pass laws that expressly conflict with federal policies they don't like and then take the United States to court and challenge the constitutionality of the federal actions. See Jack Balkin. Yes, it's stupid. But it is rather useful, for it really places in stark relief what conservatives are about - reversing by judicial activism settled law regarding the power of the federal government. Yes, they want to refight not only the New Deal but the Civil War as well. A smart and effective Democratic Party would make hay from this.

Speaking for me only

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The Glaring And Dangerous Error In The AZ SB 1070 Decision

At page 27 of the decision (PDF), Judge Bolton makes a grievous error that needs to be appealed. It leaves a huge loophole for mischief:

Section 5 of S.B. 1070 also creates A.R.S. § 13-2929, which makes it illegal for a person who is in violation of a criminal offense to: (1) transport or move or attempt to transport or move an alien in Arizona in furtherance of the alien’s unlawful presence in the United States; (2) conceal, harbor, or shield or attempt to conceal, harbor, or shield an alien from detection in Arizona; and (3) encourage or induce an alien to come to or live in Arizona. A.R.S. § 13-2929(A)(1)-(3). In order to violate A.R.S. § 13-2929(A), a person must also know or recklessly disregard the fact that the alien is unlawfully present in the United States.Id. The United States asserts that this provision is preempted as an impermissible regulation of immigration and that the provision violates the dormant Commerce Clause. (Pl.’s Mot. at 44- 46.)18

[MORE . . ]

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Injunction Of AZ SB 1070 Based On Preemption

From the decision (PDF):

Finding a state law related to alien registration to be preempted, the Supreme Court in Hines observed that Congress “manifested a purpose to [regulate immigration] in such a way as to protect the personal liberties of law-abiding aliens through one uniform national . . . system[] and to leave them free from the possibility of inquisitorial practices and police surveillance.” 312 U.S. at 74. [. . .T]he United States has demonstrated that it is likely to succeed on its claim that the mandatory immigration verification upon arrest requirement contained in Section 2(B) of S.B. 1070 is preempted by federal law. This requirement, as stated above, is likely to burden legally-present aliens, in contravention of the Supreme Court’s directive in Hines that aliens not be subject to “the possibility of inquisitorial practices and police surveillance.” 312 U.S. at 74.

[More . . .]

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Parts of AZ SB 1070 Enjoined

CNN:

A federal judge has granted an injunction blocking enforcement of parts of a controversial immigration law in Arizona that is scheduled to go into effect Thursday.

NYTimes:

The parts of the law that the judge blocked included the sections that called for officers to check a person’s immigration status while enforcing other laws and that required immigrants to carry their papers at all times. Judge Bolton put those sections on hold until the issues are resolved by the courts.

When I get the decision (PDF (site is swamped), I'll write a separate analysis. As regular readers know, I thought the preemption argument was a slam dunk. I wonder if the judge agreed.

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Holder Supersedes Ashcroft Sentencing Directive

Via Sentencing Law and Policy, Attorney General Eric Holder has issued a new directive to prosecutors on federal sentencing. You can read it here.

Ashcroft's sentencing memo, "Department Policy Concerning Charging Criminal Offenses, Disposition of Charges, and Sentencings" directed prosecutors to charge the most serious provable offense. I posted it here back in 2003. Former Deputy AG James Comey's January 28, 2005 sentencing directive is here. Professor Berman says of today's Holder memo:

Distilled to its essence, it seems that instead of a general policy that federal prosecutors "must" charge and pursue the most serious offense and must advocate a within-guideline sentence, this new Holder memo now asserts that federal prosecutors "ordinarily should" charge and pursue the most serious offense and "should generally" continue to advocate a within-guideline sentence. In other words, in appears that this new Holder memo is a fairly subtle change in policy, but that subtle change may still prove to be very consequential in practice.

I think the memo is a welcome change. [More....]

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The Regulatory State, FinReg And "Private Attorneys General"

One of the most unfortunate convergences in legal theory has been that private civil litigation is merely a "racket for lawyers" with no redeeming social value. I find myself guilty of that thinking myself. And yet it was not always so. Many, if not most, legislation which intended to reform and regulate commerce, included private litigation as part of the regulatory process. The phrase private attorneys general used to have resonance. Today, "tort reform" is the "cheap slogan" that has trumped the concept.

On the FinReg debate, one of the ideas being bandied about is making it easier to sue the rating agencies. Paul Krugman writes about it today:

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Will The SEC's Case Against Goldman Be Difficult To Win?

The NYTimes writes a news analysis story arguing so:

In accusing Goldman Sachs of defrauding investors, regulators are not only taking aim at a company with deep pockets and a will to fight — they are also pursuing an unusual claim that could be difficult to prove in court, legal experts said.

I have not delved enough into the facts of the case to know if this is true, but some statements in the article seem clearly wrong on the law. This statement for instance:

To win its case, the S.E.C. must prove that Goldman was not merely silent about Mr. Paulson’s role but actually gave investors the wrong impression, experts in securities law said. Then it must prove that the missing information was material, a legal term meaning that investors armed with that knowledge might have decided not to buy the product from Goldman, or to do so at a lower price.

(Emphasis supplied.) That is not a good description of the standard in my view. We went through this issue before. The standard the reporter is trying to articulate is this:

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What Is Fraud?

Commenting on the now widely covered SEC civil charge against Goldman (here is the complaint (PDF), Matt Yglesias writes:

The general form of this complaint, that it was wrong for Goldman to make money by betting on the failure of debt-vehicles that in another context Goldman was marketing, has been around for a while. But it’s never been clear to me if there was evidence of actual deliberate fraud, as opposed to something vaguer like an undisclosed conflict of interest.

(Emphasis supplied.) To non-lawyers, non-disclosure of a material fact may not seem like fraud, but under securities laws, it is fraud:

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When Did "Statist" Become A Dirty Word?

Scott Lemieux writes:

I’m somewhat puzzled by Matt [Yglesias]’s argument that a concern with Elana Kagan’s civil liberties record is “a quite different thing than the concern that Kagan isn’t a “real liberal” in the Marshall tradition.” Brennan, Marshall and Douglas were much more civil libertarian than any of the Court’s current liberals, and there’s a real danger Kagan that Kagan would be more statist than any of them with the possible exception of Breyer.

(Emphasis supplied.) I think Lemieux has made Yglesias' point here. Indeed, the concerns of libertarians are indeed quite different from those of the traditional liberal - who views the state is a solution, not a threat. Of course, those holding these views often overlap, as they did in Justices such as Brennan and Marshall. But the concerns are, as Yglesias argues, distinct. I can assure you that you will see more libertarian concerns from Jeralyn than you will from me. And I suspect, you will see more statist concerns from me than from Jeralyn. But I imagine we both probably agree on most of these issues. I think Yglesias' point is that libertarian concerns are not equivalent to liberal concerns. I think that's right.

Speaking for me only

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Haiti Midnight Update

Bill Clinton has an op-ed in Thursday's Washington Post on how to help Haiti.

MSNBC's David Shuster is hosting a show at midnight ET on Haiti, with reports from a few hours ago from those on the scene, including Brian Williams, Kerry Sanders, Al Roker and Ann Curry. (If you saw Olberman, you've probably already seen them.) Kerry Sanders is predicting anarchy will set in. Air traffic control is being set up. The flights are starting to come in. The Canadian military has arrived.

Secretary of State Hillary Clinton has canceled her trip to Australia and is heading back to Washington from Honolulu due to the Haiti crisis.

Some experts are saying the death toll could reach 500,000 and rival the 2004 tsunami which killed 230,000 people. That seems to include people who will die from lack of treatment and after-effects, in addition to those killed in the actual earthquake, although all numbers seem to be guestimates right now. . From ABC News Australia: [More...]

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