Fraud Is As Fraud Does

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

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

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

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

Which is too bad.

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

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

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

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

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4 Comments

Filed under financial crisis, Media incompetence/bias, Striking lawyers

4 responses to “Fraud Is As Fraud Does

  1. Thank you for this all too apropos thread. Especially the remarks about the bias of our courts itoward institutions.

    In our litigation against Bain Cap. N Gildman Sachs for Civul RICO, we are blessed with confessions of lying under oath and an admittance to intentional fraud on the courts; but the justices use 130 year old case sites to give admitted bad faith its desire of being (in bogus fashion) precluded from prosecution.

    One judge even joked (transcribed) that she had to get back to Tweeter.

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  2. To expand on your penultimate paragraph, here’s a sobering thought: Fraud can be powerfully corrosive without even rising to the level of tort.

    Fraud and vices complementary to fraud are so pervasive in mainstream American culture as to constitute a serious natural law problem. If the solution, as you’ve argued before, is not to be a weak and virtueless society, how on earth do we get there? It’s demoralizing. It seems reasonable to believe that the United States is a wicked society by nature and by habit and that this is not likely to change. On the other hand, I’m a firm believer in the blogger Fabius Maximus’ credo that no society can undergo change for the better until its individual members look in the mirror and feel contempt for what they have become. I wouldn’t say such harsh things about my country if I didn’t care about it.

    I see fraud and variations on fraud in a wide variety of areas in American society. Some of them I’ve discussed at length on my own blog.

    I see fraud in the proliferation of legalized gambling operations and, perhaps more importantly, in the aggressive advertisement of lotteries and casinos to the gullible and the desperate. The old-line Baptist and Pentecostal churches that screamed bloody murder about gambling well into the mid-twentieth century have largely been bought off or extorted by promises of jobs for their economically depressed regions, leaving only the the Utah Mormons as last significant political and religious faction to even seriously question the wisdom of encouraging gambling as a matter of public policy. (Ironically, or perhaps paradoxically, confidence artists are so numerous in the LDS that one of the FBI’s busiest white collar crime field divisions is located in Salt Lake City.)

    I see fraud in the careers of Donald Trump, Mehmet Oz, Dov Charney, and countless other corporate executives, self-help gurus, and “celebrities.” Notice the etymology of the last term: we celebrate them because they are to be celebrated, i.e., we do as we’re prompted. I see it in “prosperity gospel” preachers like Joel Osteen, who profane the collection plate into a form of Tammany Hall graft.

    Some people will be surprised to hear this, but I see fraud in much of the opposition to decriminalized prostitution. Absent weird quasimoralistic legal regimes and the opportunistic sleazeballs that they nurture (e.g., Nevada and its peacocking ur-pimp, Dennis Hof), prostitution is often a profession of plain dealers: pay the fee, receive the service. It isn’t prone to the sorts of ex post facto claims of betrayal, false implicit promises, etc. that are common among hot mess amateurs everywhere from the meat market club scene to acrimonious divorces: I thought you were gonna sleep with me/commit to me/go exclusive/not be a slut/buy me more stuff/ad nauseam. As long as clients don’t get stupid (see: the Secret Service donnybrook in Cartagena) or fall for sleazy mountebanks or extortionists (for which there are often clear tells in escort ads), the potential for drama is fairly low. Most escorts don’t let themselves get done wrong by the same client twice, and many are quick to put bad clients on widely shared professional blacklists.

    In criminalized or heavily regulated regimes, a huge amount of the drama in prostitution is caused by police interference. In a decriminalized regime like Colombia’s, by contrast, a hooker can safely call the local cops to drag a group of drunk-ass Yanqui G-men out of her room. What else can they expect for menacing a woman at work and disrupting her business?

    It isn’t just overt moralists who want to suppress prostitution. A decriminalized, easily accessible sex trade free of overpowering stigma would be bad for business at strip clubs and trashy nightclubs. It would mean many broken rice bowls for people in the business of insinuating but not delivering on promises of sex. Many of the women who patronize nightclubs appear to have personality disorders (borderline and narcissistic, mostly) and clearly enjoy manipulating sexually needy men. And the men? They risk getting punched out by mateguarding nightmares for making a pass at the wrong woman or thrust headlong into the pavement by some meathead bouncer over God knows what kind of trifling or false accusation.

    The degradation at some of these venues is hard to believe until it’s been seen. But it’s only tangentially related to sex. Sex is really just the carrot dangled in front of men to get them to pay for overpriced liquor in bad company. Or, in the case of MRA/PUA blogs, to keep incels in thrall to demagogic creeps. The worst of these joints would be bankrupted if their male customers realized how much cleaner, safer, and more wholesome the local Asian massage parlors are. Many men go to these nightclubs in pursuit of sex, and many of them realize that they’re playing a losing game but don’t know where else to go.

    I mention these things because they inevitably have civic ramifications because they affect people’s values and worldviews. One way to frame the question is to ask whether they’ll adopt the orderly, civil, and honest values of a well-run pub or whorehouse or the disorderly, coarse, fraudulent, and lawless values of the kind of nightclub that infests trendy neighborhoods with large numbers of young people. I fear that the answer is the latter.

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    • I don’t have a lot of time right now to say everything I’d like in response to your comment here, Andrew, but I will point you to this post:

      https://strikelawyer.wordpress.com/2010/12/11/money-iii/

      which makes the point that I think our monetary system breeds fraud in many different contexts and at the individual and collective level. Not that this is the whole story about how dishonest we have become, but it’s part of it.

      As for toleration of prostitution, that’s kind of an interesting subject. I follow a blog called “The Honest Courtesan” which regularly explores that subject in sometimes very interesting ways. But I’ll have to try to tackle that subject a little later.

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    • I can’t see any religion, within the usual understanding of that term, condoning prostitution as such. Certainly Catholicism never will, and I’m a Catholic, and I accept that principle with no reservations whatever.

      The operative phrase, however, might be “as such”. The Catholic approach to sin is probably beyond my power to adequately put into words. Intolerance of sin is certainly there. Then again mercy is certainly there as well. The idea isn’t to balance the two off, which is facile; but somehow both a high degree of intolerance and an abundance of mercy get embraced, even though that’s more or less impossible. This is easily, and often, derided as hypocrisy; but while it can degenerate into that such a criticism can also be and very often is extremely unfair.

      In the old days, before even my time, the context helped. People went to confession often and part of doing that was the “examination of conscience”. Done well, it was a thorough critique of one’s own behavior, intentions, failures of both commission and omission. Seven capital sins, nine ways of being an accessory to someone else’s sin, mortal sins, venial sins, mea culpa mea culpa mea maxima culpa, on and on. The focus on the interior state of one’s own soul was both comprehensive and relentless.

      After all this becomes a habit it seems to be such an enormous task just keeping track of your own conscience that you can’t possibly have the time or mental energy to worry too much about anyone else’s. I mean, if someone wants your help or advice that’s one thing. But the rule the whole regime seems to foster is: mind your own business. Prurient forays into other peoples’ problems was probably seen as little more than a “near occasion” for yet another sin, the sin of “rash judgment”.

      It’s more of an impression than a well formed opinion at this point, but I tend to estimate that a society where most people have the “examination of conscience” habit is a society where there would be no harm if prostitution were legal. I guess it has something to do with being able to rely on people to police themselves and govern their own consciences, however imperfectly, and an underlying belief that this would be a considerable improvement on having their consciences policed for them from the outside.

      While I could never condone prostitution “as such”, there are “matters in mitigation” as with anything objectively sinful, whether venial or mortal, that can reduce culpability or sometimes even eliminate it. But thankfully it is not my job to make all those calculations for anyone else, and I can assure you I would have a difficult enough time doing it for myself, should the need ever arise, which I hope it doesn’t.

      Again, this seems quite inadequate to express the thought. Perhaps it is better understood by contrasting the Catholic approach with the more protestant and entirely vulgar public spectacle of everyone’s foibles, like Jimmy Swaggart’s maudlin “I have sinned against you” episode that involved, not coincidentally, his patronization of prostitutes.

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