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.