Category Archives: financial crisis

Judges figure in this, too

Bluffing

It’s one of those planted stories that you have to get used to when you live in a planned economy.  Which we do.  Our pretenses to “capitalism” notwithstanding.

The Chairman of the St. Louis Fed comes out with a prediction that interest rates will begin to rise early next year, much sooner than anyone else at the Fed has been predicting.

I don’t see how this is possible without destroying the banking system, because the banking system is already holding, as “assets”, so much low interest debt – mostly USG bonds – and rising interest rates will virtually wipe out the value of those assets.

Yet the perpetually low interest rate environment has unarguably depressed the economy, sort of the opposite of what it’s supposed to do but this is a common feature of modern economics:  upside-down results followed by lots of head scratching.

This may all be feigned, of course.  It seems to me that the (probably unconscious, or semi-conscious) purpose of the central bank is to prop up the banking system for the benefit of the financial and government sectors, even if it does depress the real economy.

So, you know, Japan

At the same time, one wonders if the Fed might just be able to pull it off.  We are, after all, in uncharted territory.  Japan doesn’t have the “world’s reserve currency” or, say, the world’s greatest nuclear arsenal.

I’m open to other ideas on all this.  Don’t seem to be many out there, though.

4 Comments

Filed under financial crisis

Wealth Distribution In The USA

This little study is pretty revealing, on a number of levels.

Speaking for myself,  you know, I’m not a wealth redistributionist.  If that’s a word.

Not as a matter of politics, anyway.

On the other hand, I thoroughly approve of, and have brought about on a number of occasions, wealth redistribution on an individual level, to remedy an individual injustice of some kind.   In a successful personal injury lawsuit, for example, money is taken from an insurance company and paid to an injured person to compensate for the injury.  In other situations you might have an employee wronged in some way by an employer and the employer pays to compensate.  Or you might have a breach of contract where the breacher is ordered to compensate the other party. 

In fact as you might have just gleaned, one of the primary functions of any justice system is to transfer wealth – from the wrongdoers to the wronged.

Now, you don’t necessarily have an imbalance of wealth in the social sense (and if you didn’t read the linked article, it contains proof that wealth in the United States is extremely imbalanced) solely, or even primarily, because the justice system is failing.  Or even at all.  There could be other reasons.

But it’s also true to say that an extreme imbalance in wealth distribution is consistent with a failing justice system.  I am not the only one who thinks so.  It would be legitimate to suspect, then, that a justice system is failing when there is an extreme imbalance of wealth.  The conclusion that the justice system is failing is made more likely if there are other indicators that the justice system has problems.  Do we have other indications of that in the US?

Are you f***ing kidding me?

 

Leave a comment

Filed under financial crisis, Judicial lying/cheating, wrongful convictions

A More Just World

This very large disagreement I have with many lawyers – not most, perhaps, but certainly many – about whether there is such a thing as justice and even if there is whether it matters or has anything to do with practicing law, has corollary disagreements that are as big.  And in some ways bigger.

Plainly, if justice is not an intelligible concept or is unknowable then doing anything to make the world more just is worse than a fool’s errand.  And if that’s the beginning and end of the discussion you never get to an equally or maybe more important problem afflicting our justice system:

How does one make the world more just?

This issue is more subtle, yet every bit as profound.  Institutional actors – that is, cops, prosecutors, judges (do I repeat myself?), insurance defense/big firm lawyers, banks and their lawyers – come to believe that justice is imposed by institutions upon individuals, because this is how they encounter it.  If indeed they do, that is.  Anyway, this leads to a belief, unconscious at first but more and more deeply felt as you go along, that justice is primarily an institutional responsibility.  This in turn leads to the corollary, an implicit belief that justice is not an individual responsibility.  This leads to more individual irresponsibility that in turn leads to more cases where institutions must impose justice on individuals.

Self-reinforcing loop, doncha know.

So once this mindset is fully in control the question of how to make the world more just is seen as an inquiry about grand, collective institutional action for the common good.

It doesn’t sound like there’s anything wrong with that, until you consider that justice was traditionally regarded as a virtue – indeed one of the four cardinal virtues – to be practiced by individuals. 

So to a traditionalist, then, the idea of justice being practiced by an institution by imposing it on individuals is incoherent nonsense.  You will have a just world to the extent individuals living in it practice justice, and injustice exactly the same way.  Thus again to a traditionalist, the world becomes more just by more people practicing justice, or practicing it more.  It’s a one-individual-at-a-time kind of thing.  It’s about personal conduct.

Where are we, then, in the legal profession?  We have one group – the institutional kind – who believe in justice but regard it as residing in institutional rules, power and force.  We have the other group that in the main claims there is no such thing as justice.  Both of these, from the traditional point of view, are utterly hopeless in achieving any semblance of justice in the world.

Should it surprise anyone, then, that injustice thrives and that the legal profession seems to facilitate it?

What is justice?

St. Augustine tied justice and the other cardinal virtues together.  They are all different aspects of love:

“For these four virtues (would that all felt their influence in their minds as they have their names in their mouths!), I should have no hesitation in defining them: that temperance is love giving itself entirely to that which is loved; fortitude is love readily bearing all things for the sake of the loved object; justice is love serving only the loved object, and therefore ruling rightly; prudence is love distinguishing with sagacity between what hinders it and what helps it.”

 

But we don’t have to get all squishy and Catholic.  You can find a pretty good summary of western thought about justice here.  It begins – and it is unarguably appropriate to begin exactly like this in discussing the concept of justice – with this sentence:

Justice is one of the most important moral and political concepts.

 

For a lawyer to maintain that there is no such thing as justice is perverse.  One could make a good argument that it’s disqualifying. 

On a traditional understanding, it’s the job of lawyers to make the world more just, one individual and case at a time.  You can’t join that great task if you deny that it’s even possible.

1 Comment

Filed under financial crisis, wrongful convictions

Disparity Of Treatment – Courts Of Appeal Edition

Sometimes a couple of things strike you on the same day capturing in a nutshell, as it were, the very essence of the problem.

On the one hand you have District Court Judge Richard Kopf, undergoing a good deal of introspection these days at what presumably constitutes the tail end of his judicial career, blogging about a woman he sentenced to a long term of imprisonment in the early 1990’s.  Quite a saga.  He tried to set her free much earlier but the 8th Circuit Court of Appeals reversed him.  The title of his blog post is “Merciless”.  Ugh.

Contrast the mindless cruelty of the 8th circuit in that case with the tender solicitude demonstrated by Judge Barrington Parker (indeed apparently all three judges of a panel of the 2nd Circuit) yesterday for a different kind of criminal defendant.  That is, the kind of criminal defendant that wheels and deals in complicated securities and instruments in New York City’s main “industry”:

“We sit in the financial capital of the world,” Parker said. The atmosphere that you have “gives precious little guidance to all the institutions, all the hedge funds, that are trying to come up with some bright line rule of what they can and can’t do.”

Notice the subtle bias there.  Of course the good guys “institutions” are “trying” so, so hard, in good faith, with all their might, using all the resources at their command and of course they have copious resources because they’re such great, great people to begin with, otherwise how would they have become so successful, like hedge funds are?  (But then never mind about that Long Term Capital Management thing which was just an aberration.)  But these great, great people are having such a tough, tough time figuring out just how to game the system to maximum advantage without getting caught what the “bright line rule” is.  Oh, my. 

Really.  

Judge Parker and his panel are considering overturning the convictions of some hedge fund types for “insider trading”.  The idea being expressed is that the nature of the crime needs to be more precisely defined so that traders will be certain just what it is they are prohibited from doing.  The context is whether a jury needs to be instructed (and thus the law is) whether some benefit accrued to the source of the insider information, or whether the government just needs to prove that insider information was used to make trades.

By the way, as financial crimes go, insider information cases would be, I should think, fairly straightforward as compared with, say, fraud cases.

Note that the sentences the 2nd circuit panel is so concerned about are one for 4.5 years and one for 6.5 years for a couple of multi-millionaires, whereas the sentence Judge Kopf’s post chronicles is for 22 years.  For an impoverished mother with a young child.

But never mind.  In truth Judge Parker’s concerns appear to be entirely academic.  The more restrictive interpretation of the law – that is, with an additional requirement in the jury instructions adding an element the government must prove – that he seems to favor has already resulted in convictions:

U.S. District Judge Jed Rakoff, in the case of Whitman Capital LLC hedge fund founder Doug Whitman; former U.S. District Judge Richard Holwell, in the case of Galleon Group LLC co-founder Raj Rajaratnam and U.S. District Judge Paul Gardephe, in the trial of SAC Capital portfolio manager Mathew Martoma, all required jurors to consider the three elements of insider trading, as opposed to the two Sullivan instructed the jury on.

However, although the other judges in the insider-trading cases have required jurors to find the extra element of personal benefit to convict, Rajaratnam, Whitman and Martoma, all were found guilty.

Judge Parker seems worried about it, but juries aren’t.

It’s disturbing that Judge Parker is so acutely aware of the fact that the 2nd circuit sits “in the financial capital of the world”.  So what?  Should the judges of the DC circuit give a lot of weight to the fact that they sit in the “governmental capital of the world” (or indeed the known universe at this point)?  Should the 9th circuit be sensitive to the fact that they sit in the “.com start-up/fall down capital of the world”?  Is Judge Parker worried about justice for the Defendants, or the impact on the local economy?  Which might be an attenuated, but genuine, form of self-interest?

That’s disturbing on a deeper level, though.  What’s disturbing enough on the surface is the comparative severity of the sentences, and that the difference is plainly related to the social status of the Defendants.

Things like this cannot go on forever.

2 Comments

Filed under financial crisis, Media incompetence/bias, wrongful convictions

It’s Good To Have A Navy

Not sure how you can justify this, given the cost-benefit analysis, but then search and rescue often seems like a disproportionate expenditure of resources.  I’m sure by now you could build 10 Boeing 777’s for the cost of searching for MH370.

At least this time we save a baby.  Nice going.

It surprises me that the US Navy is still operating any Perry class frigates.  I was on the reserve crew of one of them, out of Philadelphia when I was in law school.  Engineering wise, they were like half a Spruance.  Much cheaper to operate, I suppose, so they were kept around a lot longer. 

The Spruances were all gone years ago.  Most sunk as targets.  Like this:

800px-thumbnail

That’s the Hayler, the last one built.  The only Spruance still afloat is the Paul F. Foster, which is used as some kind of unmanned, experimental robot ship.  They don’t keep me informed anymore, so I can’t be more specific.

If memory serves Spruances were about $400 million a copy, and that was in the 1970’s when most of them were built.  They seemed ridiculously expensive for destroyers, which were kind of regarded by high up Navy brass as throwaway ships, at least historically.  The expense was justified because they were “modular” in construction and could be easily upgraded with new weapons systems, sensors and whatnot, which would keep them relevant and in service well into the 21st century.

Most of them didn’t make it past 2003.

Even so, a lot of that went on throughout their service life.  Upgrading, I mean.  Seemed like we were getting new systems every time we pulled into port toward the latter part of my active service.

I think to a large extent they were the Navy’s computer revolution pioneer ships, and ultimately casualties of that same computer revolution.  What little facility I have with computers I owe to my time on a Spruance class destroyer.  But even I could see, even at the time, that the dozens of refrigerator-size cabinets full of digital processing hardware that were built in to the 1970’s design were hopelessly outmoded a few years later.  By the turn of the century a typical civilian desktop computer was probably more processor-capable.

Sometimes the whole project just seems a waste to me.  A huge waste of billions of dollars.  Other times that doesn’t seem fair.  Having access to billions of dollars to build a Navy doesn’t make anyone clarivoyant.  You make the best decision you can about deploying resources and hope for the best.  Most of the time you’re not entirely correct, but you’ve probably done better than doing nothing, which I suppose is not an option if you might have to go to war to defend yourself.

In any case, we and our Spruances won the cold war, or so I am told.  It’s another of those things I am conflicted about now, although I wasn’t then.  Whether that’s because of maturity and wisdom or being addled by years of practicing law, well, I don’t know.

Maybe someone will interview that baby in a few years and ask her what she thinks of the United States Navy.

Leave a comment

Filed under financial crisis

Krugman Now In ‘Deflation’ Camp?

What’s kind of interesting to me about this seismic little shift in Paul Krugman’s thinking is that when he refers to interest rates being “zero-bound” he is speaking the language of liquidity traps; but the context of the discussion is “debt-deflation”.

So he’s finally catching up to …… me.  More than two years later. 

Is that right, Frances?

Leave a comment

Filed under financial crisis

Lawyers Need Not Apply? The Debo Adegbile Affair.

I’m not sure what to make of that name, but he’s a lawyer in Washington DC. 

I mean after all, just about everyone in Washington DC is a lawyer. 

But overall of course they’re not the type of lawyer who might ever represent a criminal defendant.  This guy (Debo Adegbile) did, and now he’s apparently unfit for public office in the minds of many United States Senators.

I’m not an Obama partisan by any stretch, but this is a profoundly socially dangerous attack on the legal profession.  Every lawyer – and especially prosecutors – should have weighed in on this in a big way.  Fifty years ago that would have happened.

Not today.  The difference is probably worthy of another post.  But not today.

Leave a comment

Filed under financial crisis

Bitcoin (Updated)

Suffice it to say, for now, that I have my doubts about any ‘virtual’ currency.  At some point, for some things, bricks and mortar are indispensable.  And I think money is one of them.

That said, I don’t think the idea of a virtual currency is worthy of mockery.  The nature of money is poorly understood by just about everyone:  politicians, journalists, lawyers, and even economists at the Fed. 

It’s easy to naysay after the fact:

The uncomfortable fact for Bitcoin believers is that every major prediction they’ve made has yet to come true. And as time passes and the inevitable fizzle-out of Bitcoin becomes visible, those believers will splinter. More will drop out of the cult. And the ones who remain will only grow more convinced, more zealous, more eager to share the good news.

Well, this is what happens with all kinds of investments.  Investing is an interesting business.  Commitment is an important part of any successful venture.  At what point does commitment become folly, more of a cult-like devotion than a rational appraisal of the merits of an idea or product?  There is no really good answer to that question.  It depends on too many things.  There are ideas that turn out spectacularly after decades of seeming failure; more often, there are seeming successes that blow to smithereens because there was never anything there in the first place.

The article appears in the New York Magazine.  New York qua New York has a personal stake in quashing economic and particularly monetary innovation, and most particularly anything that threatens to decentralize and fragment the financial “industry”, over which New York currently has a monopoly.

New York Magazine is pretentiously protecting its turf, in other words.

But that doesn’t mean I think Bitcoin is going anywhere.  In fact I don’t.

UpdateThis is terribly sad, a 28 year old woman dead.  Or maybe it’s suspicious.  But I don’t want to go there this morning.

Leave a comment

Filed under financial crisis

A Note On The Profession

Two seemingly unrelated pieces from legal blogs I follow:  this one from Scott Greenfield and this one from The Irreverent Lawyer

Of course I gave it away by writing “seemingly”.  Obviously, I’m now going to tell you how they are related, at least in my mind they are.

Greenfield is critiquing the latest gimmick proposal by Chief Judge Lippman to coerce require pro bono services out of would be lawyers.  That is, people who are not lawyers yet.  Law students, say.

Greenfield, as is so often the case, is both right and wrong:

The provision of legal representation to the poor is not a lawyer problem. It’s not a judge problem. And it’s most assuredly not a law student problem. It’s a societal problem, and each effort to tweak the system to alleviate the building pressure saves society, and its elected representatives, from the nasty duty to deal with it.

But let’s come back to that quote.

Irreverent is pointing out that it’s an absurd devaluation of what remains a fairly vigorous vetting process to behave as if anyone, vetted or no, can basically practice law without consequence.  Yet that is how things are, almost everywhere.  He quotes attorney Karyl Krug:

“Foolishly, I thought I would have to have a license in Arizona to call myself a lawyer in Arizona state court. I paid in excess of $2000 and went through a rigorous criminal and character background investigation lasting 6 months to get my Arizona law license. But it turns out that everybody, including the trial courts in the county with the biggest glut of death penalty cases Arizona has ever seen, can and did call whoever they wanted to a lawyer, with no criminal or other penalty whatsoever.

Now, I suppose there are big problems with enforcing the prohibitions on the unauthorized practice of law.  The libertarian in me abhors the idea of more criminal prosecutions.  I mean, enough already.  On the other hand with  civil litigation (private) enforcement you’re just going to wind up suing the judgment proof which, you know, nobody does.  Ugh. 

Regulatory enforcement?  Take a look at how attorney grievance committees work and let me know what you think.

But let’s not kid ourselves that there isn’t a real problem.  I have found myself on more than one occasion “competing” with “legal advice” from laymen to clients or prospective clients that is utterly bizarre, along the lines of taking the position that outcomes would be different if you just spoke the magic words to the court.  Something to do with the Queen of England and gold fringes on the flag in the courtroom.  Others have had similar experiences.  But I attribute this to too many – far too many – outcomes that make no sense and can’t be explained rationally other than to say that the courts favor the powerful.  People quite understandably will not accept such an explanation, and when they get done with their increasingly bizarre and insane explanations they will turn to violence.  If nothing changes, that is.

And how are things going to change?  Well, the profession has to do it.  There isn’t anyone else.  And it’s only reasonable to expect that those on the receiving end will have to lead the way.  That means criminal defense lawyers.  And personal injury Plaintiff lawyers.  When the judge denies your criminal defendant’s well-reasoned motion to dismiss for no good reason in the face of some garbage form opposition from the DA’s office; or when the judge grants insurance defense counsel’s motion for summary judgment for no good reason other than that he thinks no one will make a fuss…..well, make a fuss.  A big one.

So here’s where Greenfield is wrong.  The gap in legal service to the poor is a lawyer problem and very much a “judge problem”.  A lawyer, almost any lawyer, would be able to make a living or even do quite well if judges actually followed the law and applied it even-handedly.  Because if they did that, the little guy would win with some frequency,* whereas as things stand now a judge might pay lip service to how valuable your services are by tossing off a phrase or two about it when he screws over you and your client (that’s a common practice), but he’s still screwing over you and your client and rendering your knowledge of the law and your skill in using it and arguing it worthless.

And this change in judicial behavior would also have the salutary effect of doing justice, righting wrongs and making adjustments in wealth from those who have cheated or lied or worse, to those who have been victimized by that – and their lawyers, too.

This is what the rule of law is supposed to accomplish.  When you have it.

And then the pro bono thing tends to take care of itself.  And the citizenry is less liable to be taken in by charlatans that claim to be lawyers but aren’t.  And the citizenry recovers at least some modicum of respect for lawyers and the legal profession because things work a little bit more like they are supposed to, because when they don’t people tend to blame lawyers even though judges are the real problem.

—————————————————————

*  There’s a whole legal industry to be made opposing foreclosures and evictions.  Without making the case in this post, it seems to me none of the big banks should be entitled to foreclose on anyone; and that people being evicted for non-payment are being denied equal protection of the laws.  The arguments in support of both propositions are sound and not difficult.  What’s difficult is getting judges to yield to sound arguments when that means they’d have to tell the powers that be:  “You lose.”

Leave a comment

Filed under financial crisis, Judicial lying/cheating, Media incompetence/bias, Striking lawyers

Sea Change (Updated)

Last week, a three judge panel on the 7th Circuit came down with a split decision in the matter of Fields v. Wharrie.  Judge Posner wrote the majority opinion and Judge Sykes dissented.

Like almost all the due process cases that we have been interested in here recently at Lawyers on Strike, Fields is an action under 42 U.S.C. 1983 and primarily deals with issues of prosecutor immunity from suit under that statute.  But when you rule out “absolute” immunity as the 7th Circuit did here, and begin to consider “qualified” immunity, as the 7th Circuit also did here, you reach the question of whether there is a constitutional violation triggering section 1983 at all.  Don’t ask why, it’s not important.

What is important is that in reaching this very big constitutional question at issue in Fields that shouldn’t be a big issue at all – that is, do prosecutors and/or police violate a defendant’s right to due process of law when they deliberately use perjury and fabricated evidence to prosecute him? – you have Judge Posner answering one way – that it is a violation of due process of law – and Judge Sykes answering the opposite.

Now, neither one of them has anywhere near as good a handle on this issue as we do.  See here and here and here and here and here and here and here.  It’s not that I blame them.  I spent two years of the last ten being completely incredulous at the thought that this was a big issue myself.  And I had a case where they had put a knife to my client’s throat and raped her, and by thereafter framing her for prosecution they were trying in effect to murder her (18 year old high school girl, no criminal record) through self-harm, so the issue was staring me right in the face from early on (well, relatively early).  Meaning that I had a great deal at stake in it, whereas these federal judges don’t.

Anyway, I figured once I had shown what happened to her, my job was done.  It took a long time to sink in that there were some warped individuals out there calling themselves judges and lawyers that didn’t believe such official conduct violated anyone’s rights, and that I would have to spend well, pretty much a decade of my life trying to dispel that idea as well.

But let’s move on.  Because something is plainly afoot in the country’s federal appellate courts.

Judge Posner is one of those federal court of appeals judges that are almost like a Supreme Court Justice because he is so well known and respected.  And it appears that he now gets it, in more ways than one.  Because not only has he seen this due process issue and come down on the right side of it, he has gone on from there and thought about the question of how this absurdity could ever have been argued in the first place, and he is treating the formerly highly favored litigants’ attorneys who have made such arguments with a rather harsh skepticism that would have been unthinkable from any federal judge even a year or two ago.

That is the significance of an earlier decision he penned for a different three judge panel just a few months ago, Julian v. Hanna.  Read the opinion.  He excoriates the formerly favored litigants’ attorneys.  He says their omission of citation to a well known case that didn’t support their position was “inexcusable”.  He said they exceeded the boundaries of “responsible advocacy”.  And then he decided squarely against the formerly favored litigants, reversing the District Court in the process with a unanimous opinion.  Then a few months later – that is, last week – he has flushed Judge Sykes out of hiding and made her go on the record with an indefensible opinion in dissent saying, in effect, that deliberately using perjury and fabricated evidence to prosecute someone doesn’t violate their right to due process.

The stage is now set.  All it needed was an explicit disagreement among the appeals judges.  This due process issue is now ripe for Supreme Court review.  That review has almost happened twice within the last year or so, and now it is sure to happen soon, quite possibly on the Fields case itself.

But the broader implications of Fields are equally significant.  Judge Posner’s epiphany has surely not occurred in a vacuum.  A judge on South Carolina’s Supreme Court told a gathering of prosecutors – a gathering of prosecutors! – that they’ve been indulged too much for too long and that it’s over and that if they keep it up there will be consequences.  To them.

Less than two months ago the US Court of Appeals for the 2nd circuit smacked the New York State Attorney General’s office for refusing to see an obvious 8th amendment problem.

Just two weeks ago, the first en banc decision coming out of the 2nd circuit in about two years held that prosecutors might be held liable for horrifying perfidy in obtaining a conviction even where their victim had pleaded guilty.

All of these developments would have been unthinkable even three years ago. 

This is what a sea change looks like when you’re in the middle of it.  No one really notices at first, or at best only a few people.  It’s only in retrospect that the certainty of it all becomes apparent to most people.

But the certainty is there from the beginning.  There is no doubt about what is happening, finally, among some judges in this country. 

It is a very, very good and encouraging development for those who are concerned about the rule of law.  Just my two cents, of course.

And Judge Posner’s.

UpdateScott Greenfield notes another example.  I kid you not, this stuff never used to happen.  Never.  You never heard a judge on the record excoriating prosecutors.  Hell they would only rarely do that to defense lawyers.  It’s like a memo went out somewhere, iohno.

1 Comment

Filed under financial crisis, Judicial lying/cheating, Media incompetence/bias, Striking lawyers, wrongful convictions

SCOTUS Potpourri

I would have said “trivia”, but nothing at the SCOTUS is really trivial, and certainly not some of the miscellanous data reported here.

We were just talking about insularity, and today’s little tidbits flesh that out some:

Following recent trends, a small group of top advocates continues to argue a large number of cases at the Court. Lawyers from the Office of the Solicitor General constitute the largest part of this elite tier: Solicitor General Donald Verrilli himself has argued four cases, while Deputy Solicitor General Michael Dreeben and Assistant to the Solicitor General Nicole Saharsky have each argued three cases. Twelve other lawyers from that office have argued two cases each.

Outside of the Office of the Solicitor General, John Bursch, Paul Clement, Tom Goldstein, and Neal Katyal lead the pack with three arguments each through January. William Messenger, Mark Perry, Kevin Russell, and Eric Schnapper round out the group of advocates who have argued at least twice during the Term…Advocates with experience (either past or present) in the Office of the Solicitor General have argued fifty-one times, constituting forty-three percent of all arguments…Lawyers who attended law school at Harvard, Yale, or Stanford argued forty-nine times, forty-one percent of all arguments. Lawyers who had clerked on the Supreme Court argued fifty-seven times, while lawyers who had clerked at one of the federal courts of appeals argued ninety times.

It goes without saying that none of these top advocates has ever tried a case to a jury.  The prevalence of lawyers who had clerked at one of the federal courts of appeals or at the Supreme Court is telling. 

The vast majority of arguments in the federal appellate courts are both argued and decided by people who have never practiced law in the sense of having had real human being type clients with something important at stake, at least for them.

This is a problem.

Leave a comment

Filed under financial crisis, Striking lawyers, wrongful convictions

Ugh.

The depth of the insularity required to pen this little op-ed on the SCOTUS blog is impossible to fathom.  The author seems completely unaware of the world outside of Harvard Law School graduates, the Solicitor General’s Office and the Supreme Court.  The burning question she is addressing is:  should the government’s counsel before the Supreme Court – that is, the Solicitor General’s (SG’s) office – be favored only in those cases in which they have a direct interest, or should the SG be favored in as many cases as possible, even where their interest is much more attenuated?

Thus the title of the article:  “Too Much Of A Good Thing?”  Apparently, some of us just can’t get enough of the SG.

The SG, notes the author, “…has been an enormously successful litigant”.  Put another way, the government most often wins in its own courts. 

Duh. 

But let’s pretend: 

Given the high quality of the SG’s work in general, and the apparent helpfulness of the SG’s amicus briefs, many observers seem to approve of the status quo, and applaud the SG filing numerous amicus briefs, and their influence on the Court.

She couldn’t possibly believe the drivel she’s admiring here.  She went to Harvard herself.  She’s not stupid; she just thinks her audience is. 

But alas, she just echoes it all in her own piece:

…many scholars have lauded the SG’s active role in Supreme Court litigation, noting that the SG is an expert and unbiased source of information for the Court.

That “many scholars” feel that way is a great argument for a complete overhaul of legal education, especially if they also feel that “…the SG is an expert and unbiased source of information.”

I’m sure the SG’s office delivers high quality work.  So do many other litigants’ counsel.  But there’s something else to consider:  they’re also wrong a lot

Once Justice Stevens went on a little bit of a tirade about the favoritism the Supreme Court shows to the government

This Court has a special obligation to administer justice impartially and to set an example of impartiality for other courts to emulate. When the Court appears to favor the Government over the ordinary litigant, it seriously compromises its ability to discharge that important duty…because I am so firmly opposed to the Court’s favored treatment of the Government as a litigator, I would dismiss the writ of certiorari as improvidently granted.

He was writing in dissent, of course.

Isn’t it odd that in our system of justice, it’s an open secret that at least one kind of litigant is heavily favored in the nation’s highest court?  You would think that a candid admission that one litigant is to be favored over all others might generate a little heat out there in flyover country; but then the fact of it is hardly reported at all.

But whether people are aware of it or not, the SCOTUS relationship with the SG’s office is a big problem.  In childish terms that might actually be appropriate in this context, judges on other courts will see the SCOTUS playing favorites, and who they’re playing favorites to, and do the same thing, with the same litigants, or types of litigants.

And that winds up explaining a lot.  Although would that it were otherwise.

 

Leave a comment

Filed under financial crisis, Judicial lying/cheating, Media incompetence/bias, Striking lawyers, wrongful convictions

Too Hard

I couldn’t help noticing what Matt Taibbi was really saying in this latest installment of his very insightful musings on Wall Street criminality.

It’s very hard work to get the bad guys when they’re rich.  Too hard.

But on this one Taibbi’s naive.  He’s following an approved narrative of the justice system that is almost entirely mythology.

You make one misstep, and the whole case goes away – in this case, 10 years of work by God knows how many lawyers and investigators goes down the drain, with the snap of a finger. Imagine the last time you lost a paper thanks to a computer error, multiply that feeling by about 10 billion, and you might get close to grasping the horror of the DOJ prosecutors in this case this week.
  The “horror” of a whole case going away because of a single “misstep” is what happens to Plaintiff lawyers representing lone individuals, not DoJ lawyers representing the government.  Except that often for Plaintiff lawyers there isn’t even a misstep.  The case just “goes away” because no one wants to hear it, and individuals aren’t very important to judges.  Among the personal injury Plaintiff’s bar it is considered a victory just to get to trial.  Judges toss their cases beforehand, or at the close of opening statements, or at the close of proof, or after the verdict comes in and it’s “too high”.  Judges never do this to government lawyers.  And it’s not because they’re “better lawyers”, either, although that’s another part of the approved narrative that Taibbi should be questioning:
 
There are two important reasons why Wall Street defendants tend to slink out of convictions more easily than, say, drug dealers or burglars. Both reasons showed loudly in this case.

One is obvious. The Wall Street types have better lawyers. They don’t miss anything and they all have gigantic balls (or are paid to have them, anyway). In this case, who knows, the court might even have been technically right in its decision. But it needed to be led there by lawyers with the skill to pull it off.

Mu.

Let’s stipulate that it’s a lot harder to convict people who put up a good fight than other people who don’t, and that the wealthy are way over-represented in the former category and the “not wealthy” are way over-represented in the latter.  That is hardly the point.  The feds went after Conrad Black with a vengeance and got him.  The case was “crazy complex” (also meritless, but that’s another subject).  I’m sure Conrad Black had very good – or at any rate very expensive – lawyers. 

The point is, when the feds want to get someone they can.  In Conrad Black’s case they wanted to.  In the Wall Street cases they don’t want to.  The likely reason for the difference is that the New York City based prosecutors, judges, defendants and their lawyers are all drinking from the same public trough.  They are much more like each other than any of them is like a street thug or a drug dealer.  They don’t rob people and kill them; they drain them under color of law and oppress them.

At some point that becomes a distinction without a difference, of course.  The Marquis St. Evremonde doesn’t deliberately rob and kill, either:

Marquis St. Evrémonde heads for his Chateaux at the usual, break-neck pace. Although most peasants scatter in terror, his carriage runs over a little child, that child being one of Gaspard’s. The Marquis shows no remorse at the sight of the crushed body—inquiring whether his horses are alright, and throwing a gold coin to the despairing father.

We like Dickens here at Lawyers on Strike.  He captured things perfectly through stories that we often have trouble making explicit.

Here’s the truth, Matt Taibbi.  The judges on the 2nd circuit wanted to be lenient with those particular defendants.  The outcome had nothing to do with their attorneys’ skill; rather, the defendants had attorneys who belonged to the same club as themselves and the judges.  And the prosecutors don’t fight that hard because they belong to the club, too.  Or want to.  Or soon will. 

Mary Jo White was the United States Attorney for the Southern District of New York – that is, New York City.  She currently heads up the Securities and Exchange Commission.  In between, she “worked”, no doubt with an impressive salary, for a law firm in New York City that defended the same class of people she is now in charge of regulating and was formerly in charge of prosecuting. 

And that is why it is “too hard” to get the Wall Street criminals.

Leave a comment

Filed under financial crisis, Media incompetence/bias

Innocent And Broke

Nobody really talks about the financial devastation caused by a wrongful criminal prosecution, but it’s one of the primary features.

It often extends to the innocent person’s family.

Yet courts are very reluctant to allow exonerees any compensation, rationalizing with decisions that would be called recondite if they weren’t beyond that into the realm of the unintelligible.

Ugh.

Leave a comment

Filed under financial crisis, wrongful convictions

Unprecedented – And Perilous

So this guy from the Fed named Andrew Huszar makes a splash with a piece in the Wall Street Journal.  And he gives us plebes a sense of just how extraordinary the Fed’s program of “quantitative easing” is:

In its almost 100-year history, the Fed had never bought one mortgage bond. Now my program was buying so many each day through active, unscripted trading that we constantly risked driving bond prices too high and crashing global confidence in key financial markets. We were working feverishly to preserve the impression that the Fed knew what it was doing.

And we get a little perspective on the paradigm shift involved:

Where are we today? The Fed keeps buying roughly $85 billion in bonds a month, chronically delaying so much as a minor QE taper. Over five years, its bond purchases have come to more than $4 trillion. Amazingly, in a supposedly free-market nation, QE has become the largest financial-markets intervention by any government in world history.

And then the issue going forward, that being:  where is this all leading?  How will it “unwind”?  From Mr. Huszar’s CNBC follow up interview:

“I think the real issue is that the Fed has expanded its tool kit so dramatically, and really there are some real questions as to how potentially it unwinds, when it unwinds,” he said. “We saw this past summer there was this announcement of potentially a taper and the markets actually tanked, and after that the Fed backpedaled. What’s going to happen if we go on for months, years longer?”

The problem being, if Huszar is right we’re simply digging ourselves into a deeper hole.

Readers over here knew this already, though.  And know what the solution is, too.  At least a few of them do.

Leave a comment

Filed under financial crisis