Fraud Is As Fraud Does

I don’t think anyone can really tell you the point at which fraud, as a civil matter, crosses a line and becomes a criminal matter.  For that reason, all criminal fraud prosecutions are suspect, because their criminal nature is ill-defined.

But that does not by any means imply that fraud is unimportant.  At least not to us here at Lawyers on Strike.  We are of the opinion that civil cases are just as socially important and often more socially important than criminal cases.  In the fraud context we have taken the interesting position (well, it should be interesting for a lot of people but apparently it isn’t) that Wall Street corruption and perhaps some government corruption would be far better addressed by private lawsuits brought by the injured parties as opposed to criminal prosecutions conducted by the government, and that the major impediment to pursuing that remedy robustly is a corrupted judiciary which favors institutional litigants over individuals, for the most part depriving them of jury trials.  Which in turn are the only way, say, the Wall Streeters might be called to account.  Because regulatory capture, among other things.

But we must also recognize that we are pretty much alone in those views.  So alone, in fact, that there’s almost no chance any serious effort along those lines will be made.  At least not in our lifetime.

There’s a lawyer/law professor out there named William K. Black.  We like him over here even though he apparently doesn’t agree with us either, and thinks government regulation and criminal prosecutions are the solution.  Yet we keep trying to suggest our idea to him, with no response (scroll down to the first comment).

Which is too bad.

But moving on.  Unlikely though it may seem, our federal judge from Nebraska has recently tipped his hat in our direction by putting up a post featuring a well-known personal injury Plaintiff’s attorney exploring the idea that civil litigation – even personal injury litigation – has important social benefits.  And it’s worth noting how even in the title of the post the bias comes out, since Judge Kopf felt the need to acknowledge those who would call the featured lawyer “infamous” rather than simply famous.

I would call it subtle bias, but to me at least it is none-too-subtle.  And I daresay it has affected many, many rulings by Judge Kopf over the years, just as for Bill Black the only litigation he’s interested in is litigation on behalf of the government.

At some point I may go on from these anecdotal musings to describe how, in my view, there’s a loss of faith involved.  Faith in each other, in our ability to figure out the truth based upon evidence, in our rationality and capacity to be just.  And how this loss of faith engenders a kind of tyranny when it becomes widespread in a society.

But that’s too much for today.  Because football.

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A Few Ebola Facts

At least, “facts” as gleaned from CNN.

1.  Health officials are “searching” for people who came into contact with the known Ebola victim in Dallas.  Great.  They pretty much deliberately did nothing to keep the plague out of the country and now that the inevitable has happened they’re running around trying to find people who might have gotten it.  Like trying to put the toothpaste back in the tube.

2.  You can get the virus from a handshake or a hug.  First the good news, or what would be good news except that it’s partially false:

But the first thing you should know is that it’s not very contagious — the virus isn’t spread through the air via coughs or sneezes like the common cold.

Then the bad news:

It’s spread through frequent contact with bodily fluids and can be spread only by someone who is showing symptoms…

Blood, sweat, feces, vomit, semen and spit. Basically any kind of fluid that comes from the body. People in West Africa are avoiding hugs and handshakes because the virus can be spread through the sweat on someone’s hand.

The uninfected person would have to have a break in the skin of their hand that would allow entry of the virus, CNN’s Dr. Sanjay Gupta says. But “we all have minor breaks in our skin. And there is a possibility that some of the virus can be transmitted that way.”

Translation:  this disease is highly contagious.  It is not accurate to state that it is “not very contagious”, which is why the “good news” is not so good and the bad news is really, really bad.

Want more bad news?

While the Ebola virus is believed to be able to survive for some days in liquid outside an infected organism, Doctors Without Borders says, agents such as chlorine, heat, direct sunlight, soaps and detergents can kill it.

Translation:  you can get it even if you don’t directly have contact with an infected person.  It lies around on or in inanimate matter, waiting for an opportunity to infect another organism, such as you.  What are they implying, that we all carry around Clorox to use before we touch anything?  Not very contagious my ass.

3.  Want some more “comfort”?

While the CDC acknowledges it is possible for a person infected with Ebola in West Africa to get on a plane and arrive in another country — which is apparently what happened in the U.S. case — the chances of the virus spreading during the journey are low. That’s unless your fellow passenger is bleeding, sweating profusely or vomiting on you, of course.

“It is highly unlikely that someone suffering such symptoms would feel well enough to travel,” the International Air Transport Association said.

Sure, no one is ever sick with a fever or a cold or vomits on an airplane, all those air sickness bags all these decades have been totally unnecessary.  This is either obvious minimizing by CDC and the IATA, or both organizations are run by incompetents.  Feel safe now?

I probably lack qualifications to have too firm an opinion about it but nevertheless I think the spread of this terrible disease to North America could easily have been prevented (any infectious disease aficionados would be welcome to come over here and enlighten me), but the country’s leadership just didn’t want to.  All the Ebola casualties are on them.

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Project For My Readers

All three of them.

There’s a guy named Piketty who has been making a splash in economics circles with a new book, “Capital in the 21st Century“, which I admit to not having read although I plan to.  It’s probably not as interesting as it might otherwise be because, as I understand it, it’s essentially the kind of redistributionist screed you’d expect from socialists or communists.  But I digress.

In any case, it’s not like socialists and communists are always wrong about everything.  This (h/t Paul Campos at Lawyers, Guns and Money) appears to be a chart from Piketty’s book simply reflecting hard data:

qyisEsJ.png

So here’s the challenge for my readers.  In the comments, in a paragraph or two, identify and explain the common thread between what that chart shows and the previous two posts.

The best answer will receive the enviable prize of fulsome praise from the proprietor of Lawyers on Strike.

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Jury Verdict Deference And Double Standards

It – that is, deference to jury verdicts by judges – varies.  Unfortunately, it varies primarily depending on whose ox is being gored.  I’m not sure whether to be pleased or alarmed that the SCOTUS might be taking up the issue of which litigants get how much deference when they win, with the possible outcome being the formal recognition of what has hitherto merely been an embarrassing reality for a system that prattles on about “equal justice”:  juries aren’t second guessed when they rule against little people, only when they rule against the powerful.

The question in Stevenson v. First American Title Corp. ,specifically, is whether “due process” requires no deference whatsoever to a jury’s punitive damage award, or the usual amount of deference – that being so long as a jury verdict does not slip the bounds of rationality it will stand.

Needless to say, for those who have been paying attention, the latter kind of deference is actually in practice, as well as in theory, afforded to a jury’s “guilty” verdict in a criminal case.  In the former case, where a punitive damage award is almost always an award in favor of the lower status litigant against the higher one, well, in theory it’s the same deference given to criminal jury guilty verdicts.  In practice it’s more often no deference at all:  high punitive damage awards by juries are routinely overturned by trial judges and appellate courts.  Which is to say that in practice there is a gross double standard in favor of institutional litigants but we don’t come right out and say that because it’s embarrassing.

But it’s not like anyone is fooling us here at Lawyers on Strike.  We’ve been over this many times before.

The Stevens case then, should the SCOTUS take it up, will determine whether we have become so shameless that we will now explicitly endorse that double standard, or whether we’ll just continue to practice the double standard but continue to be ashamed of ourselves.  I think the petition for certiorari puts it rather well:

.
For decades, this Court has endorsed the use of the rational-factinder test (formalized in Jackson v. Virginia, 433 U.S. 307, 318-19 (1979) in a myriad of criminal and civil contexts in which the result reached in a case is attacked as insupportable on the record. The decision below is irreconcilable with this line of authority and with opinions in several of this Court’s punitive damages cases.  Because the rational-factfinder test supplies adequate due process for review of criminal jury verdicts which deprive a capital defendant of his or her life, it necessarily must be regarded as adequate for review of civil jury verdicts which deprive the defendant [that is, a big insurance company - ed.] of only money.

Of course, the Petitioner here is being naive.  Or perhaps not.  Putting the matter as starkly as that might just alert someone at the SCOTUS that they dare not grant more special privileges to the already absurdly over-privileged.  In any case, keep your fingers crossed.  There’s a lot of power money at stake.

See how important it is to follow developments in the Supreme Court?

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‘Positively’ Utilitarian Approach

Talk about ideas mattering.  Even philosophy.

I was a philosophy major at university.  People used to ask me what I was going to do with such a useless degree.  I’d say I would open a philosophy store.

“Life is a twinkie.  That’ll be $5 please.”

We were talking the other day about Judge Kopf, natural law and utilitarianism.  Well, not a whole lot about the latter, because there really isn’t much to say:  “Greatest good for the greatest number.  Natural law is nonsense on stiltsSolitary, nasty, brutish and shortEpistemology?  What’s that?  We done here?”

Judge Kopf’s rejection of natural law and passionate – that is, unthinking – embrace of utilitarianism dictates the way he decides things.  It’s utterly predictable.  And depressingly impoverished, intellectually and morally.  Every post he puts up, every comment he makes, only reinforces that.

Take Judge Kopf’s latest post regarding the association of criminal conduct in adult men and lead paint poisoning incurred as a child, more prevalent in older men since lead paint use has been curtailed in recent decades:

What should a judge do with this information?  In my opinion, there are two things a judge should strongly consider if Nevin’s conclusions are correct….First, particularly for drug and gun charges (that are often associated with violence), judges should be far more skeptical of the ability of older men (40 and above) exposed to lead as children to reform themselves in prison or conform their conduct to supervision when released…Second…judges may wish to treat older men exposed to lead as children as posing an increased risk to violate the conditions of supervise release and insist that the probation departments act aggressively when supervising such a person in order to protect the public from the offender…

In the entire post it does not occur to Judge Kopf that one other implication of the data is that the culpability of offenders would be less – or even eliminated – in the event their behavior was the result of circumstances over which they had no control.

As Scott Greenfield points out, Judge Kopf’s – how shall I put this – glaring oversight of this obvious alternate implication was cited in the very first comment to Judge Kopf’s post and is then given the same dismissive and even patronizing treatment I’m sure Judge Kopf regularly hands out in his courtroom – but only to the relatively powerless litigants.  It’s a question of ‘balance’, says Judge Kopf:

It is a large part of my job, as I see it, to protect the public from criminals who are likely to reoffend even if they are otherwise a sad lot. In this sense, “fairness” is trumped by “public safety concerns” because the defendant has first been proven to be legally culpable even given his or her deficiencies and therefore it is more important to protect the innocent public from the guilty defendant than it is to be “fair” to the defendant. Bluntly, my job is not to be a social worker. I don’t have the training, and I don’t have the resources to serve in that capacity. Fifth, I agree that I must seriously grapple with the facts and that to me means being very serious about assessing risks in a clear-eyed manner. The sentencing process is not and should not be a one-way ratchet that constantly looks for ways to excuse the conduct of a legally culpable defendant and lower his or her exposure to a prison sentence. Sentencing is a process of balancing the defendant’s interests with the public’s interest.

Where to begin?  The “public” is an abstraction, not a real thing.  The Defendant is a real thing – a human being – not an abstraction.  The judge is balancing the unreal against the real without knowing the difference, without even understanding that this is a problem.

Then, having begun with this fundamental confusion he aggravates it by, of course, giving more weight to the unreal consideration than to the real one.

And these are just the two of the biggest conceptual problems about Judge Kopf’s take on reality.  His take on his “job” is just as bad or perhaps worse.  It most emphatically is not “a large part of his job” to “protect the public”.  Protecting the public is an executive function, not a judge’s.  Because separation of powers.  It would be far closer to being correct if he said that protecting the public was no part of a judge’s job.

Not to mention that from a utilitarian perspective “the public” v. “guilty defendant” is not a contest, not a fair fight.  There’s really no ‘balancing’ to be done.

And why “guilty” defendant, not just defendant?  Because definition.  It’s a tautology – which is to say, meaningless – but this particular tautology, and only this one, seems to be very meaningful to Judge Kopf.

That a “positivist” thing.

As I’ve said, we’re all utilitarians and maybe even positivists, up to a point.  But elevating utilitarianism to a principle is an oxymoron.  Or at least it would be if Judge Kopf had a clue.  And the judge certainly sounds awfully moralistic for someone who claims not to have any opinions about morality:

Please realize that a low IQ and impulse control problems are deficiencies I see very often whether caused by lead or chance. By definition, I don’t sentence anyone unless they are blameworthy. Thus, while I appreciate your sentiment, and agree that we could do a much better job as a society extending a hand to the unfortunate, the stark reality is that the people we are talking about are criminals in every sense of that word.

To quote one of your other heroesthree generations of imbeciles are enough, right your honor?

Don’t worry, Judge Kopf.  Buck v. Bell is still good ‘law’, in the sense of that term you subscribe to.  And locking the defectives up for life only with others of their own sex makes forced sterilization pretty much a moot point, doesn’t it?

Same intellectual/philosophical destination, different route.  The problem is that the destination is moral depravity.  At that point, what meaning does the term “criminal” really have?

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Eight Years For Dawn Nguyen

I’m just going by news reports, of course.

Based on those my understanding was that the government was asking for 10 years consecutive, meaning that she would serve the 10 years after the state sentence was completed.  If she served the state maximum of 4 years that would translate into a total of 14 years.

Judge Larimer took 2 years off the government’s position and made the sentence concurrent, meaning that she’ll be serving her state and federal sentences at the same time, for a maximum of 8 years.

In the world of criminal sentencing, this is a considerably more lenient sentence than the government was asking for, and I have to give Judge Larimer credit for bringing a little, a tiny little bit, modicum, sliver of perspective in handing out his sentence.  It is still way too much for what she actually did, even assuming it’s all true.  Which I doubt.

It’s still very troubling that there isn’t one single living person in the chain of causation besides Dawn Nguyen that is suffering any consequences at all, even though there’s an abundance of candidates.  How is it that a 21 year old woman is singled out for 8 years but the parole board members who released Spengler don’t miss so much as a paycheck?

It’s so disproportionate.  Disproportionate based on the nature of the act being punished (signing a form), disproportionate given the nature of the defendant – a young and evidently productive citizen with no criminal history – and disproportionate given that there are many others with a very similar, if not greater, level of culpability who have not even been prosecuted, let alone imprisoned.

More fundamentally, turning someone like that into an arbitrarily selected scapegoat that the angry mob vents their anger onto is unspeakably cruel.  Not as cruel as what Spengler did, but I don’t see how adding to the cruelty helps anyone or anything.

Ugh.

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Natural Law

I’ve said that the problems of the justice system in the United States, both for civil and criminal cases, run very deep, and one of the main sources of trouble is a reflexive hostility to what is called ‘natural law‘.

Interesting discussion from the other day hosted by Judge Kopf at his blog, Hercules and the Umpire, about the death penalty.  Interesting not least because it wasn’t just about the death penalty, but also Judge Kopf’s rejection of natural law.

There is a line of reasoning by which the political concept of “pluralism” degenerates into rejecting natural law that is peculiarly American and is perfectly illustrated by Judge Kopf.  It’s largely derived from Thomas Hobbes’ political philosophy.  And indeed Judge Kopf mentions Hobbes specifically in his post describing his thinking about the death penalty.

The first thing to be said about this is that in the long history of what is often termed western thought Hobbes is barely a footnote, not to be taken seriously as a launchpad for anything that could be remotely described as a “school of thought”.  He was not, properly speaking, a philosopher.  Even a cursory comparison of his writings and ideas with those of Plato, or Aristotle, or DesCartes, or David Hume or Kant or Leibniz or Hegel or indeed dozens of others I and nearly any other somewhat educated person could rattle off (Edmund Husserl and phenomenology, anyone?) will demonstrate beyond any debate how relatively mundane Hobbes is, in a totally different – and clearly lesser – league.  Any semi-serious undergraduate student of western philosophy in his second year of study would regard Hobbes as little more than an amusement or distraction, intellectually speaking.

Put simply, it’s a profound intellectual error to base any kind of outlook on the world, or an analysis of any serious issue, on Hobbes.  He simply doesn’t have the depth, the intellectual gravitas.  It’s like basing your opinions about roadrunners on the cartoon.  And since Judge Kopf actually went to the trouble of including Hobbes’ portrait in his death penalty essay:

Roadrunner_looney_tunes

The only depth that follows in Judge Kopf’s analysis after making this mistake is the kind when you are further down the rabbit hole.  For the love of God, he starts bringing up Oliver Wendell Holmes as some kind of ‘theorist’.  Ugh:

The positive law theorists (like Hobbes and Holmes*) would say “yes, it is just”–so long the judge acts pursuant to the law. To them (and probably me) there is no justice without law. Legal positivists believe (a) Justice and injustice are dependent on positive law; (b) Law itself is independent of justice; (c) Justice consists in conformity to positive law; (d) Justice, apart from legality, is merely a subjective [individual] norm; (e) Justice is obligatory ultimately only because of legal and political sanctions; and (f) The virtue of justice is identical with obedience.

At least Holmes had the excuse of extremely traumatic experiences in the Civil War, but the point – well, one point – is that while Hobbes can barely make it onto the most expansive possible list of thinkers in the history of western thought one might give the slightest consideration to, Holmes doesn’t even make that list.  The only reason anyone outside of lawyers has ever even heard of him is that damn unforgettable name.  His most important ‘contribution’ as a judge was to place his imprimatur on Alger Hiss, who of course turned out to be a communist, a spy and a perjurer.  I often call Alger Hiss the most important but obscure American political figure of the 20th century.  And I don’t mean that in a good way.  But in any case I find his association with Holmes endlessly amusing.

I guess the bottom line here is that there’s a lot to be said about the death penalty but if somebody brings up Hobbes or Holmes you might as well absent yourself from the discussion and turn on the TV.

Not a suggestion I’d normally make.

Of course it’s not as if Judge Kopf doesn’t have a lot of company.  Contemporary judges might rightly be called liberal or conservative, but the vast majority bristle at the notion of natural law, and that includes Scalia.  But maybe not Justice Thomas:

In 1991, shortly before Supreme Court Justice Clarence Thomas’s Senate confirmation hearings, Harvard Law School professor Laurence H. Tribe wrote in The New York Times that Thomas was “the first Supreme Court nominee in 50 years to maintain that natural law should be readily consulted in constitutional interpretation.” Thomas was repeatedly grilled on this point during the hearings that followed. Though he acknowledged that the Constitution is “[t]he positive law,” he added, “We look at natural law beliefs of the Founders as a background to our Constitution.”

So there’s that, then.

Now, there are intellectually respectable reasons to question or maybe even reject natural law.  In my view they’re all wrong, but they might be intellectually respectable.  But rejecting natural law “because Hobbes” is like rejecting high school physics “because Curly“.  It may well be, as Judge Kopf says. that he’ll always come to an impasse with natural law adherents, but how you get to the impasse can be important.  Intellectually, I mean.

Does that make all this merely an intellectual exercise?  Not if the subject is the death penalty and you’re a judge.  Or for that matter a lawyer.

Besides, what’s wrong with an entirely intellectual exercise?  Oh, I forgot:  there’s a strong strain of anti-intellectualism in the American political arena, of which a devotion to Hobbes is a part.  Or maybe a product.

And the reflexive hostility to natural law is part of the peculiar American brand of anti-catholicism as well. Even if a lot of Catholics go along.

So maybe this makes clear how deep the divide really is between someone like Judge Kopf and someone like me.  We barely speak the same language, really.  And that’s one big reason why, for me……juries.  People – other than judges – naturally believe in and understand natural law.  Because it’s natural.

Duh.

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