Why men like Judge Jed S. Rakoff should matter to us

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Justin Maxon / The New York Times

“We’re a nation of laws, not men.” Thus sayeth John Adams, verily coining America’s lofty definition of “the rule of law.” I hate to tell John but we’re a flawed nation, founded on poetic promises of fairness and objectivity we’re wholly incapable of delivering. If we were truly “a nation of laws, and not men,” who would care what judge got assigned to hear your case? The judge is just a law vendor right, a person who matches facts that the jury decided, with the right mix of law. Why should it matter then which judge you got? And what about¬†those instances where judge A rules for plaintiff, and with nothing more than a new judge, the outcome flips. Is the law so loosey goosey that it’s like jello, it can apply both ways, merely because a different set of eyes applied it?

If we’re truly “a nation of laws, and not men” then why would corporations go the trouble of “purchasing” our judges, governors, legislators, members of congress, senators and so on? State Farm “purchased” a judge and put him on the Illinois Supreme Court to reverse Avery v. State Farm, a billion dollar consumer fraud case. Massey Coal “purchased” a pimp judge in West Virginia and installed him on their Supreme Court to reverse a $50 million dollar verdict against it. Right now, Senator Max Baucus holds our health care fate in his hands yet big insurance “purchased” him with $3 million in campaign cash. If we’re really “a nation of laws, and not men,” all these corporate predators are they’re wasting their money, and all the lobbyists can park their cash wheelbarrows for good.

Take the situation in our own Supreme Court. One of the judges elected to the Court received the unheard of sum of $2.2 million in campaign funds. He was elected as a tort reformer, pledging allegiance to big insurance, big medical, big pharma, etc. After the election, he showed up as a guest of the notorious insurance shill, Robert Hartwig, at a big insurance confab.

Let’s examine what happened next at Mississippi Supreme Court. Alex Alston, an esteemed senior member of the Mississippi bar who’s practiced on both sides had this to say:

During the past 4 1/2 years, according to my research, an astonishing 88 percent of all jury verdicts in favor of the wronged victims have been reversed by the state Supreme Court.

But what about the jury trials won by defendants, in which the victim takes an appeal to correct an error? Here, again, the numbers are staggering.

Over the same 4 1/2-year-period, a plaintiff’s success rate in reversing a jury verdict for the defendant is an astonishing zero.

The defendant corporation, hospital, or insurance company prevailed in 100 percent of these cases. It is difficult to imagine victims of negligence and fraud losing 100 percent of the time, but that is the way it is in the state Supreme Court in a plaintiff’s appeal.

Actually, corporations remind us every day we are “a nation of men, not laws.” The sad truth is Adams was wrong. His lofty maxim expresses a wish, well meaning, but nonetheless a wish. But most maxims are in fact wishes, just flash cards saying “strive for this.” A purported nation of “laws and not men,” still must act through “men.” Until the black day arrives when we address an inanimate thing as “Your Honor, Judge Microsoft 1.20,” there’s no other way to do it.

Nations that give their government officers limited discretion, are said to follow the “rule of law.” Those that don’t, have a low degree of the “rule of law.” The opposite rule is the “rule of man.” That’s what kings and dictators practiced. Our founders stiffed the king idea, but now we’ve got corporations. An example of “rule of man” . . . oh, how about Alan Parker’s 1978 classic, Midnight Express. (An inside look at Turkish justice).

So, what’s so special about the so-called “rule of law?” Simply this: it means you can beat Exxon in an American court, when you probably can’t anywhere else. In other words, we’re pledging that we don’t take notice of who the “men” are, or what their social, political or financial status is, because a higher principle, the “rule of law,” controls in our system. (Hence that poor lady dutifully standing there for all these years, blindfolded).

The “rule of law” and “oath of office” link together, and this is the tie that binds us to Adams’ wish. In Mississippi, the judicial oath is a sworn statement the elected official agrees to be bound by in his job:

Mississippi Constitution of 1890, SECTION 155:

The judges of the several courts of this state shall, before they proceed to execute the duties of their respective offices, take the following oath or affirmation, to-wit: “I, —-, solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as —- according to the best of my ability and understanding, agreeably to the Constitution of the United States and the Constitution and laws of the state of Mississippi. So help me God.”

Notice it says “I solemnly swear . . . that I will administer justice without respect to persons . . . .” (emphasis added). It doesn’t say the judge gets to decide what the law is, according to some bought-off political agenda. The judge swears to “administer” the law. Legislatures, when they haven’t been “purchased” out of existence by lobbyists, democratically create law. When somebody takes millions of dollars from corporate sponsors trying to buy a seat on the court, how can this person solemnly swear to this oath? How can we expect them to “administer justice without respect to persons” if the whole reason premise of their election was to pay dividends back to corporate sponsors?

Corporations want to strip the “rule of law” and return us to the “rule of man.” They believe they can get this done with lots of campaign M-O-N-E-Y, which I call bribes.

Back in August I described Judge Rakoff’s view as the public must be able to “see” what our court system is doing if they are to have any confidence in it at all. Rakoff calls this “transparency,” but what he’s really saying is this . . . every time a court does something under the table . . . it demeans the justice system and destroys people’s belief in their government.¬†

Judge Rakoff had an important case before him this week. True to his oath, Judge Rakoff summarily rejected a crooked settlement concocted between the SEC and Bank of America, designed to hide the actions of fraudulent corporate execs.

Other than tea baggers and comatose people, many people by now feel the US has gone third world, i.e., in terms of fidelity, truth-in-government, we’re now on a par with Mexico, Bolivia, Columbia. In other words, we no longer have a functioning, constitutionally virile government. Judge Rakoff is a man who defies this trend, and refuses to sell our system out. He had before him a powerful but woefully corrupt agency of the government, the SEC, and one of the foremost vampires of the corporate world, Bank of America.

Death to the “rule of man.” Long live Jed Rakoff. Here’s a fitting song from New Zeland’s Coldplay:

I used to rule the world,
seas would rise when I gave the word,
now in the morning I sleep alone,
sweep the streets I used to own,
I used to roll the dice,
Feel the fear in my enemy’s eyes, . . .

For some reason I can’t explain,
Once you know there was never, never an honest word,

[youtube=http://www.youtube.com/watch?v=44xirQ55IgA]

9 thoughts on “Why men like Judge Jed S. Rakoff should matter to us”

  1. Justice Dickinson said the lack of fair, balanced and reasonable judges in the legal system is a growing problem. “In Mississippi our system is set up such that our judges are elected at every position from trial to appellate courts. When judges are placed in that position because of an election and those elections are guided by contributions, those contributions are always jealously guarded and put together by people who want to control the judicial process.”

    Meet your Boss Judge—HANK GREENBERG!!!
    http://www.youtube.com/watch?v=JeROnVUADj0&eurl&feature=pyv

  2. Wow this is Prime Posting!
    Slabbed is growin’up some knobby’headed step’chillinz hear’ah…
    —I’m tollin’yall!
    Like an Orphanage of the Damned,
    there’s always More Soup Here If You Please.
    Editilla

  3. In Buying Justice, Robert Lenzner and Matthew Miller write extensively of efforts by the Chamber of Commerce to subvert justice and buy pro-business judges. Forbes, which published the article, is no friend of trial lawyers, so it must be taken seriously. Excerpts:

    For years the trial lawyers had state courts wrapped around their fingers. Now big business is striking back. It is waging a secret election-campaign war on judges who favor plaintiffs in tort cases.

    As for “wrapped around their fingers,” the facts show otherwise (though isolated individual judges have been wrapped both ways).

    . . . Dickinson [a pro-business judge] was swept into office on a down-and-dirty, name-calling campaign bankrolled by $1.2 million he raised from doctors and small-business owners–an unheard of sum for a judicial election. But he also had a hidden helper: Unbeknownst to some Mississippi voters, the U.S. Chamber of Commerce pumped $1 million more into anti-McRae [a populist judge backed by trial lawyers] ads, funneling it through local groups such as Mississippians for Economic Progress. McRae’s ouster is part of a secret war on judges now being waged by the chamber. It has spent $100 million since 2000 and will spend $50 million or more this year. The prime objective: to vote out judges supported by trial lawyers, labor unions and the Democratic Party and install new judges sympathetic to insurance companies, multinational corporations and the Republican Party. The chamber also is taking aim at state attorneys general, trial lawyers and state legislators.

    . . . Insurance giant American International Group, Home Depot and DaimlerChrysler are chipping in. The influx of money has raised the stakes: In 2000 candidates spent $46 million in state judicial elections–or $430,000 per race, up 60% from the previous election, says a study by the Brennan Center for Justice at New York University Law School and the National Institute on Money in State Politics. The chamber thus has reshaped the once sedate, lawyer-friendly game of electing judges, roiling it with vituperative politics replete with attack ads, whisper campaigns and allegations of election-law violations.

    This is a dirty business. The Brennan Center says ads have “grown increasingly negative and controversial, and in some cases [have] fallen far beneath the level of dignity most Americans associate with their judicial system.” Adding to the intrigue, the chamber cloaks its efforts by sidestepping disclosure laws that require revealing contributions. Instead of donating cash to candidates, it provides ad money and couches the effort as “informational” and policy-based. “We’re seeing that politics is rearing its ugly head,” says professor Lester Brickman of the Cardozo Law School in New York. “But politics has always been present, if shrouded in black robes. Now it’s out in the open.”

    Lawsuits brought by Mississippi and an Ohio group charge the chamber with illegal tactics in election advertising. The American Bar Association last month issued a blistering report entitled “Justice in Jeopardy,” attacking “the corrosive effects of excessive money in judicial campaigns.” It was striking back at the chamber’s $10 million TV ad campaign in five states last year, which asserted that judges and lawyers impose a “lawsuit abuse tax” of almost $2,000 a year on every family of four in the U.S. One spot shows a needy mother and child waiting in a long line at the courthouse, while a smarmy trial lawyer saunters up to the front. “It’s a cheap trick,” says ABA President Alfred P. Carlton Jr., “offensive imagery, non sequiturs and factual inaccuracies.”

    . . . But chamber-backers such as Maurice (Hank) Greenberg, the 78-year-old chairman of AIG, the nation’s largest insurer, say there isn’t any choice but to wage allout war. In February AIG took a jolting $1.8 billion charge for the 2002 fourth quarter, blaming “egregious jury awards and settlements for litigation related to asbestos, medical malpractice and other damages.” AIG’s stock fell from $55 to $47 in a week, wiping out $23.5 billion in market value. Though the stock recovered, Greenberg remains riled. “A bubble economy translated into a bubble on awards,” he huffs. “It’s coming out of our companies, out of the insurance industry, and it is being divided among the lawyers and some of the plaintiffs.” The costs of litigation and liability claims exploded from 0.6% of GDP in 1950 to 2% of GDP by 2001–$200 billion a year. The annual toll could hit $300 billion by 2005. Lawyers typically pocket a third of the loot.

    . . . But even some chamber backers are uncomfortable with this crusade. DaimlerChrysler says it supports “voter education,” not a war on judges. But this ugly battle will go on for a while; judges ordinarily sit for 6 to 12 years before they face reelection. Says Tom Donohue: “We want to play a full-court press–challenge [the trial lawyers] in the courts, in the voting booth, in the court of public opinion and in the state legislatures and Congress. Then they have to play everywhere at the same time. They become more visible and have to defend themselves.”

    http://www.mindspring.com/~cmcork3/mp7.html#187

  4. The industry’s tactics for pressuring state legislators are as cutthroat as some of its claims handling; in April, AIG Chairman Maurice “Hank” Greenberg, who raised millions for George W. Bush’s 2000 presidential campaign, said his firm would stop buying municipal bonds from states that don’t restrict citizens’ rights to sue. Such strategies have worked. In the past decade, more than 40 states have instituted some kind of limits on citizens’ ability to check corporate malfeasance through civil suits

    http://www.prospect.org/cs/articles?article=insurance_impunity

  5. In Buying Justice, Robert Lenzner and Matthew Miller write extensively of efforts by the Chamber of Commerce to subvert justice and buy pro-business judges. Forbes, which published the article, is no friend of trial lawyers, so it must be taken seriously. Excerpts:

    For years the trial lawyers had state courts wrapped around their fingers. Now big business is striking back. It is waging a secret election-campaign war on judges who favor plaintiffs in tort cases.

    As for “wrapped around their fingers,” the facts show otherwise (though isolated individual judges have been wrapped both ways).

    . . . Dickinson [a pro-business judge] was swept into office on a down-and-dirty, name-calling campaign bankrolled by $1.2 million he raised from doctors and small-business owners–an unheard of sum for a judicial election. But he also had a hidden helper: Unbeknownst to some Mississippi voters, the U.S. Chamber of Commerce pumped $1 million more into anti-McRae [a populist judge backed by trial lawyers] ads, funneling it through local groups such as Mississippians for Economic Progress. McRae’s ouster is part of a secret war on judges now being waged by the chamber. It has spent $100 million since 2000 and will spend $50 million or more this year. The prime objective: to vote out judges supported by trial lawyers, labor unions and the Democratic Party and install new judges sympathetic to insurance companies, multinational corporations and the Republican Party. The chamber also is taking aim at state attorneys general, trial lawyers and state legislators.

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