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:

After listing all the investigating going on, [Treasury official Michael] Barr stresses they’re coordinating with DOJ’s Financial Fraud Task Force. Why are they including the FFTF (which, btw, seems to focus primarily on origination fraud)? As a way, Barr explains, “to hold the banks accountable to fix it”–echoing that same formula of holding banks accountable to fix problems, but not to be prosecuted for committing fraud. Now jump ahead to where Barr describes how they can be held accountable: “they can be held accountable for not following the law. HUD can assess significant fines on them.” Let me repeat, again, that HUD has been aware of the foreclosure problems since around May and has thus far levied no fines. More importantly, note how (at least in Salmon’s presentation) Barr jumped from having DOJ hold the banks accountable to HUD doing so? Either Barr doesn’t believe DOJ has the power or the will to hold banks accountable and he reverts to fines as the magical way the federal government will holds the banks accountable. And the outcome of all this? To “increase the chance that when foreclosures happen, they will happen according to established law.” Not, “to make sure we restore the integrity of the property system,” but to increase the overall odds but not guarantee that when a family is thrown out of its home, they were done so legally.

(Emphasis supplied.) A classic "justice for some" formulation. This got me to thinking again about how extreme conservative judicial activism and anti-consumer legislation has undermined due process and the rule of law in our country. I've written on this before and I think I will give it some more long form serious treatment after Thanksgiving, but for now I just want to touch on a few subjects relevant to this discussion.

There was a time when conservatives believed that the legal system was a great and efficient way to sort out disputes in our society. Thus the field of Law and Economics was popularized and mainstreamed in our law schools and legal discussion.

Relatedly, it was argued that legislation that incorporated the concept of "private attorneys general" by providing civil remedies, to enforce public interest laws, such as antitrust, civil rights and securities laws, lessened the need for intrusive government regulation.

Today the reverse is true in practice, if not in preaching. In case after case, the Supreme Court has made it more difficult for private citizens to seek redress for violations of antitrust, civil rights and securities laws, to name just 3. And laws have been passed to enforce this strangulation of the "private attorneys generals" concept (see the restrictions on class action lawsuits and private securities actions to name 2.)

At the same time that the "private attorneys general" concept has been severely undermined, the government is not exactly stepping up to fill the void. It is one of the main reasons I am so skeptical of the regulatory reform framework for health insurance.

I'm currently seeing this in my profession in various ways - I am prosecuting civil antitrust cases, defending against government agency cases, advising homeowners in foreclosure cases, etc.

I think there is an important story to be told in all of this and am eager to read Glenn's book to see how he tackles these issues. In the meantime, I'll try to find a way to write about them as well, to the extent I can.

Speaking for me only

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    And the depressing part is (5.00 / 1) (#1)
    by robotalk on Wed Nov 24, 2010 at 10:42:36 AM EST
    there is absolutely no sense that things will change anytime soon.

    Justice hardly ever happens in the first instance.  It occurs only after injustice is exposed and exposed and exposed again.

    And the depressing part of that is that we have been through all this before.

    The depressing part IMO (none / 0) (#2)
    by MO Blue on Wed Nov 24, 2010 at 10:47:12 AM EST
    is that there is no real outrage over the injustice. No real push back from any major front. In fact, in many instances, it is rationalize as no big thing, necessary or even beneficial and often sold to the masses by the media.  

    There is essentially agreement among our elite (5.00 / 0) (#4)
    by BDB on Wed Nov 24, 2010 at 11:48:00 AM EST
    that the rules that apply to the rest of us should not apply to them.  The reason "conservatives" have gotten their way is because they are supported (or at least not opposed) by the Republican party and a good portion - the important leadership portion - of the Democratic Party.  Nowhere is this more apparent than in the bailout of Wall Street - proposed by Bush, whipped for and continued by Obama.  Anglachel has a good overview of a recent New York Review of Books article on the Obama Administration's reaction to the financial crisis.  It is a reaction that, on a policy level favors the wealthy over the res of us.  A reaction that was almost guaranteed to be followed by whoever won the 2008 election and will continue to be followed regardless of whoever wins he 2012 election so long as our politics remains as broken as it currently is.  There simply is no meaningful group of people among our elite who believe in equality before the law.  Indeed, there isn't even much pressure these days to pretend to believe in such things.  

    This is why it is insane, IMO, to continue to see the world through the lens of either major party.  The real division in this country is not D v. R, it's the rich (and their D&R enablers) v. everyone else.  Until enough people understand that, we are, I fear, doomed to a very bleak future.

    I totally agree with this assessment (5.00 / 2) (#11)
    by MO Blue on Wed Nov 24, 2010 at 12:49:32 PM EST
    This is why it is insane, IMO, to continue to see the world through the lens of either major party.  The real division in this country is not D v. R, it's the rich (and their D&R enablers) v. everyone else.  Until enough people understand that, we are, I fear, doomed to a very bleak future.

    I will go one step further and state that the meme of "Democratic politicians are bad but they are better than Republicans." or "Republican politicians are bad but they are better than Democrats." are intentional distractions that keep people from realizing that neither party represents 98% of the population.


    Notice, too, the lack of agency in (5.00 / 1) (#10)
    by Anne on Wed Nov 24, 2010 at 12:40:21 PM EST
    "holding the banks accountable;" levying a fine against a corporation that budgets for this kind of thing as a cost of doing business is not the same as identifying what laws and regulations were violated, determining who in the organization originated, instituted and perpetuated those actions, and bringing them into a court of law where a judge and a jury can determine whether there is enough evidence to convict the responsible parties.

    I get the feeling, though, that there's no energy to undertake such a massive and far-reaching investigation and prosecution, and there is fear that the criminal consequences may be less earth-shattering then the civil consequences that will inevitable follow.  It's like "Too Big To Fail" spawned a couple of evil children: "Too Big To Investigate," and "Too Big To Prosecute," so they think the answer is to just hit them with fines to make the public think they're on top of things.

    But, as has been pointed out, there have been no fines.  Levying fines means making a determination that laws/regulations/rules were broken, and someone - not just some corporate monolith - was responsible for it.  Pretty soon, there's a trail that ought to lead to an actual criminal investigation, isn't there?

    The problem is obvious: not only is this a class war, but it's being waged with the help of the government and both political parties.

    The answer is...what?  How do we solve this problem?  There are still a few Davids out there willing to take on Goliath, but it's not fomenting the kind of institutional revolution needed to restore the balance of power that is supposed to be vested in the people.

    Interesting post. Thanks. (none / 0) (#3)
    by oculus on Wed Nov 24, 2010 at 10:54:28 AM EST
    Note:  Glenn Greenwald credits a commenter for inspiring the title of this book.  Will this avert the criticism of the title "American Taliban"?  

    Look forward... (none / 0) (#5)
    by kdog on Wed Nov 24, 2010 at 11:48:19 AM EST
    to a renewed focus of the epidemic that is inequality under the law/different rules different fools.

    It gets no bigger...the courts, flawed as they are, are the only hope the proles got.  The Executive and Legislative branches are corrupt to their very core, if there is any hope at all for liberty and justice for all, it's in the Judicial branch.

    I blame the lawyers, no offense. (none / 0) (#6)
    by sarcastic unnamed one on Wed Nov 24, 2010 at 12:13:36 PM EST

    Yep (5.00 / 2) (#8)
    by Big Tent Democrat on Wed Nov 24, 2010 at 12:19:35 PM EST
    Scalia, Thomas, Rehnquist . . .

    ...Obama, Holder... (5.00 / 1) (#9)
    by oldpro on Wed Nov 24, 2010 at 12:28:15 PM EST
    don't follow (none / 0) (#7)
    by CST on Wed Nov 24, 2010 at 12:15:56 PM EST
    blame them how?  Or for what - rather?

    Lawyers don't make the law, they just argue it.


    Cannot be a serious question. (none / 0) (#12)
    by sarcastic unnamed one on Wed Nov 24, 2010 at 01:05:21 PM EST
    Lawmakers are often, if not usually, lawyers. Lawyers are often part of our political and financial "elite." Lawyers are often, and quite willingly, paid to find ways to skirt the intent of laws, if not to skirt the laws themselves, to the benefit of their benefactors and, because they are paid to do this, to the benefit of themselves.

    Of course, this does not at all apply to all lawyers.


    ok (5.00 / 1) (#15)
    by CST on Wed Nov 24, 2010 at 01:39:51 PM EST
    so by lawyer you mean someone with a law degree who has practiced law.  I thought you meant someone who was currently acting as a lawyer.  I do not see politicians/judges as lawyers, no matter what their previous career was.

    I think the post is about the fact that the law has been changed so much, that it's no longer necessary to "skirt" anything - even if you lawyer up on the other side, there's nothing you can win, since it's the "intent" of the law itself that's working against you.


    The Merchant of Venice (none / 0) (#14)
    by christinep on Wed Nov 24, 2010 at 01:16:49 PM EST
    and the not-so-funny, two-edged "Kill all the lawyers." Now, was that Shylock speaking?

    Turn your head, Kdog (none / 0) (#13)
    by NYShooter on Wed Nov 24, 2010 at 01:09:54 PM EST
    I agree with the growing list of Nobel economists who say JAIL is the only remedy that has a chance of turning this mess around.

    When I see Jamie Dimon in prison stripes, I'll believe in "green shoots."

    And become what we despise? (none / 0) (#16)
    by kdog on Wed Nov 24, 2010 at 02:12:24 PM EST
    The answer to inequality under the law isn't to treat the protected class of thieves as badly as the proles are treated, the answer is to stop sh*tting on the proles and treat us more like the protected class of thieves, aka equally served by and under the law instead of unequally screwed by and under the law.

    Our hearts are in the same spot Shooter, but what you're suggesting is a road to 50% in the system instead of the current 10%...I can't get down with that mess.


    The essential element that you're not (5.00 / 1) (#17)
    by Anne on Wed Nov 24, 2010 at 03:00:30 PM EST
    seeing, kdog, is that it is the protected class of thieves that is running the show; there is no "they" anymore who are going to stop the haves from screwing the have-nots.  I know you read Taibbi's RS piece on his day in foreclosure court, so I know you know that the judges are doing ther damndest to look out for their corporate overlords.

    When the Supreme Court is making it harder for the people to seek redress, when the Congress is writing laws that make it harder for the people to seek redress, when the savvy businessmen that run the corporations are not voluntarily looking out for anything but their own bottom line, who would you suggest is going to bring things back into balance?


    It doesn't look good, (none / 0) (#19)
    by NYShooter on Wed Nov 24, 2010 at 08:23:23 PM EST
    as the regulatory & Congressional talks regarding potential actions vs. the banks have belatedly begun. Not a word about criminal charges, just fines.

    Maybe we'll get some justice if the Banksters drop from laughing too hard.

    And, sorry Kdog, the beneath disgusting banksters fear a year in prison more than a 50 billion dollar fine.(which they would only tack onto future interest charges anyway)


    Oh I see it... (none / 0) (#20)
    by kdog on Thu Nov 25, 2010 at 06:47:35 AM EST
    and it makes talk of handing out cage time pure fantasy...unless we plan on making citizens arrests and locking protected class thieves in our basements, its a moot point.

    So we must find a people-power way that doesn't involve the law to bring that balance...you know I'm trying, I do as little business with the protected class of thieves as possible.  That's probably the first step...we need to close our bank accounts, our 401k's, our CD's, etc...go on mortgage payment strike...at least see if we can get some better terms or reduce our exposure to the thievery.  Maybe a tax protest too, paying for the thieves' preotection racket ain't helping, aka funding our own demise.

    No dime drop is gonna fix this one, no ma'am..no one to drop a dime to call, they're all in on it. Any fix is gonna have to come from we the people on this one...not our government, not our cages.  A least in this framework, and with this government.


    Once upon a time (none / 0) (#21)
    by Rojas on Thu Nov 25, 2010 at 10:39:16 AM EST
    Political parties exist to secure responsible government and to execute the will of the people. From these great tasks both of the old parties have turned aside. Instead of instruments to promote the general welfare they have become the tools of corrupt interests, which use them impartially to serve their selfish purposes. Behind the ostensible government sits enthroned an invisible government owing no allegiance and acknowledging no responsibility to the people. To destroy this invisible government, to dissolve the unholy alliance between corrupt business and corrupt politics, is the first task of the statesmanship of the day.

    Request for Congressional Foreclosure Panel to. . (none / 0) (#18)
    by lawgrace on Wed Nov 24, 2010 at 06:36:46 PM EST
    Request for Congressional Foreclosure Panel to Examine Foreclosure Lawyers
    http://www.change.org/petitions/view/request_for_congressional_foreclosure_panel_to_examine_foreclos ure_lawyers#

    "Although increasing numbers of courts are continuing to reject improper and fraudulent foreclosures, the Congressional Foreclosure Panel examination of mortgage services and foreclosure practices did not include foreclosure lawyers.

     Lawyers are officers of the court; knowledge of applicable laws and civil procedure is not required from mortgage lenders.  In states that require judicial foreclosures, lawyers are the ones who file lawsuits to seize and sell property; and lawyers are responsible for filing and recording foreclosure property deeds.

    An investigation could prove helpful to sorting out whether improper and illegal foreclosure proceedings are linked to any self-dealing conduct disadvantaging lenders, investors, homeowners, and city governments. . ."
    http://www.change.org/petitions/view/request_for_congressional_foreclosure_panel_to_examine_foreclos ure_lawyers#