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Justice For Some

By Big Tent Democrat

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

Full post as published by TalkLeft on November 24, 2010 (boomark / email).