Category Archives: financial crisis

Judges figure in this, too

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:

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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.

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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?

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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.

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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.

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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.

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*  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.”

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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.

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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.

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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.

 

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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.

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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.

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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.

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Women Lawyers

A group of women reflect – brood – over their “careers” twelve years out.

Interesting.

 

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Rolling Out The Heavy Guns

Heavy propaganda guns, that is.

The New York Times, which for some reason is obsessed with spinning the recent government shut-down as Republican Populist Tea Party wing foolishness, trots out the venerable name of Taft in an op-ed piece to further excoriate Cruz, et al., as irresponsible rhetorical bomb-throwers. 

Of course they’re projecting, for in that very piece Taft himself trots out the loathesome specter of the 20th century’s most infamous Republican, Joseph McCarthy, in a decidedly unsubtle rhetorical explosive aimed at those ugly Tea Party populists.

God, what tripe.  And what transparent class consciousness:  Taft, the patrician from one of the most revered political families in the country, versus the unruly rabble that has hijacked the Republican party from its traditional role of “stewardship”.

Stewardship is hardly called for when you’ve got too many water-tight compartments flooded and you’re sinking hard by the bow.  You have to wonder what planet the new generation Taft – this one’s name is John – is on.

I’ve probably said this enough times on this blog that regular readers have tired of it, and I don’t blame them.  But still:  you can wage all the propaganda war you want, you can change minds and shout down the opposing point of view and lock its advocates away, or kill them.  None of this will alter reality one iota.  The New York Times has a big microphone, but it will not change fiscal and economic fact and law.

A little more about the author of the piece, John G. Taft.  In addition to his role as scion of the wealthy and influential Taft breed, he is also a major executive at Royal Bank of Canada, apparently running its US operations.

Nice gig.  You know, you gotta love any institution with the word ‘Royal’ in it.

There’s a strong element of striving to re-open old Republican wounds in picking a Taft.  Taft’s uncle Robert (or was it cousin ?) was the leader of non-interventionist, deeply conservative - maybe even what you’d call “hard-right” – anti-FDR/New Deal Republicanism of the first half of the 20th century, the kind of Republicanism that famously (if you were a National Review subscriber in the later 20th century, like I was) succumbed to the more “moderate” (read: liberal), “eastern establishment” style of Republicanism typified by New York governor Tom Dewey.  Yes, Taft lost the fight for the soul of the Republican party, but was dignified and principled about it and is still remembered fondly by old timers.

The newer generation of Tafts has apparently defected to the other side.  John G. Taft isn’t the only one.

Thus there is further method to the madness in the op-ed’s citation and quoting of Warren Buffett, a dismal traitor to his father, Howard Buffett, Nebraska Congressman, hero of the libertarian Old Right (much like the older Robert Taft) and gold standard advocate who has graced these pages before.

See, the New York Times can try to pull off these subtle digs against their political opponents, but even these obscure little details will not escape our attention over here at Lawyers on Strike. 

A government shut-down must really frighten the New York Times, for the only reason anything frightens the New York Times – it must be a danger to its influence.  But why?  I suppose the problem is that the government can “shut-down”, as it just did, and too many people will realize that the sky didn’t fall, exposing all the Times’ propaganda efforts as just so much shrill hysteria.

Not to mention the government default problem.  That’s a dagger aimed right at Wall Street, which so far this century makes New York City what it is, which in turn makes the New York Times what it is.

Sabre rattling and gun brandishing are often just variations on squealing like a stuck pig.

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The Walmart-ization Of Justice

If you get over to federal court much you’ll hear lots of talk about “sequestration”, a veritable daily crisis of budget constraints.

Ho-hum.  Budget is as budget does.

The economics of some things are insoluble:  how do you pay for something no one wants?  No one, that is, except the poor schmuck in the dock?  The fact of the matter is that unless the poor schmuck can pay for it there’s no one else who will.  At least, not really.  As a sop to the consciences of the men in charge, of course, the regime will provide token service, the proverbial empty gesture.  The ratio of federal prosecutor resources to federal defender resources:  28 to 1.

Ease in life is not an inherently bad thing.  The ancient Greek philosophers, like Aristotle, thought leisure to be an essential social good, and I imagine it is when it is conferred upon the right people.

Then again, no one can have it easy all the time, and some things just aren’t easy but must be done anyway.

If only due to the sophisticated humor, I can’t improve upon Kierkegaard on this subject:

It is now about four years ago that I got the notion of wanting to try my luck as an author. I remember it quite clearly; it was on a Sunday, yes, that’s it, a Sunday afternoon. I was seated as usual, out-of-doors at the cafe in the Fredricksberg Garden. I had been a student for half a score of years. Although never lazy, all my activity nevertheless was like a glittering inactivity, a kind of occupation for which I still have a great partiality, and for which perhaps I even have a little genius. I read much, spent the remainder of the day idling and thinking, but that was all it came to.

So there I sat and smoked my cigar until I lapsed into thought. Among other thoughts I remember these: “You are going on,” I said to myself, “to become an old man, without being anything, and without really undertaking to do anything. On the other hand, wherever you look about you, in literature and in life, you see the celebrated names and figures, the precious and much heralded men who are coming into prominence and are much talked about, the many benefactors of the age who know how to benefit mankind by making life easier and easier, some by railways, others by omnibuses and steamboats, others by the telegraph, others by easily apprehended compendiums and short recitals of everything worth knowing, and finally the true benefactors of the age who make spiritual existence in virtue of thought easier and easier, yet more and more significant. And what are you doing?” Here my soliloquy was interrupted, for my cigar was smoked out and a new one had to be lit. So I smoked again, and then suddenly this thought flashed through my mind, “You must do something, but inasmuch as with your limited capacities it will be impossible to make anything easier than it has become, you must, with the same humanitarian enthusiasm as the others, undertake to make something harder.” This notion pleased me immensely, and at the same time it flattered me to think that I, like the rest of them, would be loved and esteemed by the whole community. For when all combine in every way to make everything easier, there remains only one possible danger, namely, that the ease becomes altogether too great; then there is only one want left, though it is not yet a felt want, when people will want difficulty. Out of love for mankind, and out of despair at my embarrassing situation, seeing that I had accomplished nothing and was unable to make anything easier than it had already been made, and moved by a genuine interest in those who make everything easy, I conceived it as my task to create difficulties everywhere.

Of course, given this habit of mind, Soren was fortunate to be able to live on inherited wealth.  You won’t find investors for an idea the goal of which is to make things more difficult than they otherwise would be.  Or appear to be.

And yet, and yet.  People talk favorably about being “empowered”.  Here is what constitutes the terrible temptation of power:  that difficult things are made to seem easy.  I say “seem” because it is an oxymoron:  difficult things are not easy, by definition.  And when they are made to seem easy you know something’s wrong.  You know someone is getting screwed because if it gets done and if it was difficult to do then someone labored through that difficulty.  Whoever is making it seem easy is a deceiver.

Snake oil salesman’s pitch:  drink this elixir and all will be well.  Just that easy.  But it never is.

The acquittals I have won doing criminal defense have probably been the most significant contributions I have made to my country and my fellow human beings.  They were all extremely hard won - there is almost no way to describe it to someone who hasn’t done it.  And they were all, without exception, very poorly compensated.  To the extent I have made any money, it has been made elsewhere.

Prosecuting is not remotely comparable.  While I will stipulate that many criminal prosecutions are socially worthwhile and an important service, it is simply a thousand fold easier to prosecute – maybe infinitely easier – than to defend.  Which is not to pick on prosecutors at all.  The point is that we ask lawyers to defend the accused, expect them to do a good job in the face of great and sometimes insurmountable adversity and then, effectively, we don’t pay them.  I’m certainly not advocating that it’s wrong to pay the prosecutors, but the imbalance of it all has reached dizzying heights.

Imbalance, of course, is more or less a metaphor for injustice.  A just society is an extremely difficult thing to achieve; and to the extent you do achieve one, it remains extremely difficult to maintain what you have built up.  And this is why we have lawyers.  We may have “too many”, but more importantly – and like other occupations and professions – no one wants to do the hard but necessary jobs, only the things that can be made to seem easy and are nowhere near as necessary, if they are necessary at all.  Like evictions.  And mergers and acquisitions.

Just as the ugly and hidden reality underneath Wal-mart and Apple involves slave labor in far off countries, so the ugly and hidden reality underneath the collective neglect of our responsibilities to build and maintain a just society are hollowed out neighborhoods of boarded up homes and lots of prisoners who, although locked away out of view are beginning to make at least a few people uncomfortable, like some federal judges in California.

Kierkegaard was only kidding.  He didn’t really believe in making difficulties; he was admonishing us to recognize difficulties openly and not try to conceal or deny them.  The difficulty is already there.  Our job is to conform our minds to this reality.

Of course we’re never going to do that if we don’t believe there’s any objective reality in the first place, not to mention believing there’s no such thing as truth.  Or justice.

Clark is onto something on that score, don’t you think?

At bottom, as with so many things, this is not an economic problem.  This is a moral problem, and a rule of law problem.  And of course it has developed into an intractable problem when the very people who are the only ones who can correct it, and who in many ways are the primary victims of it, don’t believe in the law or the truth or morality in the first place.

Or say they don’t, which is more like it because, as Clark over at Popehat points out, no one really doesn’t believe in truth or justice or the law.  That’s an intellectual affectation, and an especially harmful one in lawyers.

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Starving To Death

It’s as if they don’t exist.  But they do.  It started out with thousands about July 8th, but there are still over 200 who haven’t eaten.  For 30 days or more.

The more curious thing is how little anyone is paying attention here.  There’s an article here and there, but you would think on slow news days they might report this rather dramatic prison hunger strike in the largest state in the United States, rather than, say, the latest public relations effort by the local police department.

There are lots of newsworthy events that editors decide are not news and don’t cover.  It’s a deceptively large part of the problem.

 

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