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.

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Stuck In Time (Updated)

You write a blog and wind up revealing things….about yourself.  Among other things.

Often inadvertently.

Over at Simple Justice, Scott Greenfield has one post about a phony curmudgeon – he being the genuine article, of course – followed quickly by another post in which he fights yesterday’s losing battle yet again.

It’s lawyers who need time for sabbaticals, not law professors.  And you couldn’t have a better example.

First the set-up:

There’s an adage, the only thing worse than a young fool is an old fool.  Age doesn’t make one wise. Learning from experience does, and one of the things one learns from experience is to appreciate new ideas.

SHG goes on, but damned if he isn’t fixated only on young fools:

Give the kids tummy rubs because it makes them feel better about themselves and doesn’t hurt their feelings.  There is an industry that provides seminars on how to do this…

Condescend much, Scott?

What’s pretty sweet about SHG’s trip to the keyboard this morning, though, is the swiftness with which he hands so much ammunition to the other side of the argument, with the old fool’s curmudgeon’s stock-in-trade – the war story:

Crossing a state highway patrol officer who had seized my client’s tractor-trailer filled with narcotics at the suppression hearing, he testified to something different than he wrote in his report.  The wheels turned as I carefully framed the question so he couldn’t weasel out of his hole, and closed the trap.  He responded:

Well, I couldn’t put that in the report because the judge wouldn’t like it.

Nailed. I had him.  Caught the cop dead in a lie*, and it doesn’t get any better than that.

 

The cop caught his client with a “tractor-trailer filled with narcotics”, but the important thing for SHG is that he is much, much more clever than the cop.

Lawyers have been besting cops in cross examination on such things for 50 years.  And the net result is always the same as in the very war story SHG tells:  suppression denied, no opinion, defendant convicted and, you know, off with his head.  The fruits of all this?  An incarceration rate that would have been unimaginable at the beginning of that 50 year period.  A justice system that has become increasingly honesty challenged, and not nearly so clever as it imagines itself to be, because you don’t have to be terribly clever if you can just ignore evidence and argument that gets in your way and do what you want anyhow.

Alas.

You know what else would have been unimaginable 50 years ago?  All this lawyer prattle over search and seizure and suppression motions. 

In fact, you could make an argument that the sudden swelling of 4th amendment tripwires for law enforcement in the 1960′s, on the one hand; and the cascade of criminal prosecutions, convictions and incarcerations in the time since, on the other - are related.  Causally connected, even.  Of course it also just might be that you could make that argument because….it’s valid.

I’m not the only one who has had that thought.

In other words, you could argue that the “due process revolution” of the Warren Court era has been a dismal failure, and that we have a lot of re-thinking to do, and that what is most needed is fresh blood and youthful enthusiasm.  In fact, we here at Lawyers on Strike argue exactly that.  Sometimes.

But then we’re not self-styled curmudgeons:  habitually re-living our glorious failures and faulting the young for not following in our footsteps.

As someone I know says:  error recognition is a pre-requisite to error correction. 

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*  I don’t know that that’s an entirely fair summary of the story.  Apparently the cop was at least telling the truth on the witness stand when he was under oath, right?

UpdateThis is a thoughtful response from SHG, although I have to question why, if he has read over here and wants to have a discussion about this or that he doesn’t just do so openly.

Parenthetically, and I assume also in response to this post, SHG notes an appellate opinion from 1992 where he prevailed on a suppression motion.  You know, 22 years ago.  If he’s using that as proof that suppression motions can be granted then I suppose I can cite a 1992 appellate opinion for the proposition that section 1983 actions in federal court on behalf of state prisoners can be won on summary judgment.

Either claim is wildly misleading, of course. 

 

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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?

 

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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.

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Three Related Stories

With connections to problems in the criminal justice system, and specifically wrongful convictions.

First we have the New York Times reporting on Brooklyn’s “Conviction Review Unit”, which now has funding and 10 assistant district attorneys and a Harvard law professor consultant.  They are trying to figure out who that office has wrongfully convicted over the last, oh, 30 years.

Good for them.

Then, in what is really a bombshell news story that should be leading every major outlet, as they used to say, we learn from the very same New York Times that the very same Brooklyn District Attorney’s office was allegedly mired in some pretty heavy corruption reaching right to the top, both to the formerly widely respected and elected DA Charlie Hynes and to widely respected judges like Barry Kamins.

So, let’s get this straight:  the same office that succumbed to high level corruption reaching into the very judiciary it supposedly pleaded before, and that must have secured the wrongful convictions in the first place, is going to lead the effort to police itself and right its wrongs.  What, no one has ever heard of the fox guarding the henhouse?

But what bothers me so much more about the perspective on display in these articles is the vanishing criminal defense bar.  It would seem that the natural people to review criminal convictions to determine whether or not they were wrongful would be criminal defense lawyers, but the task has fallen to prosecuting attorneys and consulting law professors. 

Maybe they’ll do a good job, but I seem to remember the New York Attorney General set up some sort of conviction integrity unit a couple of years back that hasn’t been heard from since.  Although they do “meet regularly” under their “new chief”, who used to be a prosecutor of course.

But then there is this:

And criminal defense lawyers do not “desire justice.” We desire to win our client’s cause. That, and nothing else, is our highest calling. I would have thought you would know this by now.

A familiar refrain from the criminal defense bar.  Not a universally held belief, but widely held enough that no one is going to trust them to distinguish between wrongful convictions and just ones.  The latter being, to them, a theoretical as well as a practical impossibility, like an oxymoron.

Truth is, the criminal defense lawyer’s “calling” is a lot more nuanced than that.  Can a criminal defense lawyer incite or aid and abet prosecutorial misconduct in order to “win” his client’s cause?  There are many scenarios I can think of where this could be done. 

I think the answer is no.  Obviously.

What Greenfield and other CDL’s do is transplant the simple and unambiguous rule at the trial itself – that you do everything within the rules to win – to every aspect of representing a criminal defendant, including plea negotiations with prosecutors.

If a prosecutor can’t trust that a CDL won’t mislead him – or worse – that will affect not just plea negotiations with one CDL but with every CDL, and every CDL’s clients. 

It’s the CDL destructive contribution to systemic dysfunction, and it’s every bit as stubbornly adhered to by some as the exonerations from obviously wrongful convictions are resisted by prosecutors and attorneys general.

There’s something very out of whack when there’s a national awakening about wrongful convictions and independent criminal defense lawyers are conspicuously absent from the discussions.  To some extent it is a self-inflicted wound.  Ugh.

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Greenhouse Follies

An uncharacteristically lively screed from the normally somnambulistic Linda Greenhouse who has done a very good job for a very long time keeping the goings on at the SCOTUS excruciatingly boring to the general public.

Linda is especially exercised about the recent Town of Greece case, which held that prayers before public meetings didn’t offend the constitution’s “establishment of religion” clause:

This is an opinion column, and here is my opinion: the court’s majority is driving it into dangerous territory…setting an agenda that mimics a Republican Party platform…Opening the doors to greater public expression and observance of religion is another central part of the Roberts court’s project…The United States Court of Appeals for the Second Circuit had found the steady diet of Christian prayer at town board meetings to be an unconstitutional establishment of religion…Since it was obvious that the majority’s goal was to overturn the Second Circuit’s decision, it was no great surprise that the 5-to-4 opinion did so…Justice Kennedy’s opinion for the court was startling nonetheless for its obliviousness to the impact that sectarian prayers can have on those citizens for whom prayer before a government meeting is not “a benign acknowledgment of religion’s role in society” (to quote the opinion) but an affront…This from a justice who in his majority opinion in a Florida death penalty case on Tuesday emphasized the right of a convicted murderer to be treated with “dignity” by having his intellectual deficit assessed meaningfully rather than mechanically…I was left to wonder about the dignity of the two women who sued Greece, N.Y., on the claim that the price of conducting their business with the town board should not include having to listen to Christian prayers…The country didn’t need to have the religious culture wars reignited, but thanks to the court, that’s where we now are.

 

Let’s just say to start with that analogizing a couple of old women complaining about some prayer or other at some public meeting or other to someone complaining that he doesn’t want to be literally tortured to death at his execution reveals a strange sense of proportion:  concerns about “dignity” in the one situation are hardly comparable to the other.

But it also strikes me that Greenhouse is so far behind the curve, politically speaking.  She is obsessed with yesterday’s issues, like public prayer.  And it’s ironic that she accuses the Supreme Court of political orientation in supposedly “reigniting” the religious culture wars, inasmuch as to the extent we’ve had any religious culture wars they were almost entirely the product of Supreme Court meddling in the first place.

Honestly, I don’t get the hyper-sensitivity some people have to public prayer.  In many ways I find most public prayers objectionable for all kinds of reasons but I don’t see any constitutional problems with them. And all the Supreme Court jurisprudence to the contrary has always struck me as a product of the usual pseudo-intellectual anti-religious snobbery so common among the American ruling class.

But that’s just me.  I’m no Linda Greenhouse. 

I’m actually glad she got up on her high horse a bit.  As she notes, she can have opinions, too, and I’m glad to know what they are, agree or disagree.  But she’d be doing her job and serving the public a lot better if she used her megaphone about far more important issues, such as whether summary judgment as currently practiced violates the 7th amendment or what in the hell “due process” means for a criminal defendant, because we’ve gotten very confused about those things on her watch.

Well, not us here at Lawyers on Strike, of course.  Just everyone else, it seems.

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Too Cozy

It’s a real problem when the ‘news’ is the product of agreement and an unholy consensus, instead of facts.

And we’re not the only ones noticing and/or complaining.

A consensus doesn’t make anything true.  If it did there would be nothing wrong with lynch mobs.  Beyond that, desiring something to be true doesn’t make it true. 

The biggest temptation of power is to conflate one’s own ego-driven conception of reality with reality itself.  The press is probably the most important antidote to that tendency in a nation’s political leaders. 

How abjectly they are failing.  And much of the torrent of wrongful convictions can be laid at the feet of that failure.

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