Topic: General

Scapegoating Milberg Weiss

Saul Levmore is asking the right questions about the Milberg Weiss prosecution here.  “Milberg, who?,” you ask. 

(Warning:  boring lawyer-talk follows.) 

Milberg is the titanic plaintiffs class action firm that was just indicted for paying professional plaintiffs to serve as figureheads for the firm’s class action suits.  Those who love to hate class actions tend to love this prosecution.  But as Levmore asks, what, exactly, is so bad about lawyers paying professional plaintiffs to act as figureheads, anyway?

Hundreds of lawyers hate the firm and they are quick to say that plaintiffs are paid to lie, to agree to settlements that are not in the interest of other class members, to lie about having been consulted about conflict of interest questions, and so forth.  Some of these possibilities seem implausible, or at least somewhat puzzling, in a world in which named plaintiffs are rarely consulted at all, and in which judges must approve settlements (for better or worse) but are hardly accused of paying too much attention to the wishes of the named, nominal plaintiffs. 

Let’s not kid ourselves: class actions are bounty-hunting enforcement actions designed to deter wrongdoing, rather than compensate victims.  Named plaintiffs play a negligible role in these lawsuits, because the suits aren’t brought for their parochial benefit.  The suits are brought to punish the target, not to remedy individual injuries.  The “named plaintiff” is a virtual legal fiction–a stubby appendage of an older system of corrective justice and individual rights which our legal system has, for all intents and purposes, thrown over the side.

Now, I happen to like that old, lost, fundamentally liberal view of the law, in which state coercion is limited to aiding individuals, rather than promoting collective (i.e. state) interests.  But the incentive system set up under our current class action system simply isn’t designed to promote attention to individual remedial interests.  And prosecuting Milberg Weiss for paying kickbacks to figurehead plaintiffs isn’t going to change that fact.  

Radical, systemic solutions are necessary. One is to force lawyers to recruit not just named plaintiffs, but class members, by requiring absent class members to affirmatively “opt in” to the class litigation–thereby forcing lawyers to sell their representation to entire class.  By making class actions fully contractual, lawyers may act less as self-interested regulatory bounty-hunters and more like the advocates-for-hire of old.  See this piece for further discussion. 

But this is a solution that our political system can’t stomach.  And so we’re left, instead, with the Milberg prosecution:  a symbolic, ineffectual fit of pique.

The Greatest Deliberative Body?

Columnist Robyn Blumner has nice things to say about our new study, Power Surge, and she takes Congress to task for doing nothing: 

The Republican leadership in Congress is standing by while its house is being pillaged. The power to write federal laws is Congress’ alone. The president’s duty, as expressly stated in the Constitution, is to faithfully execute the laws he signs, not to add asterisks on parts he intends to ignore.

Senate Majority Leader Bill Frist and House Speaker Dennis Hastert are joining in their own emasculation when they utter not a peep during this bloodless coup. I don’t know why Republicans have a reputation for strength. When blindly supporting a president from your own party takes precedence over guarding Congress’ historic role, “Republican leadership” becomes an oxymoron.

It is not just liberals who have recognized the danger. I challenge anyone to read an important new report by the libertarian Cato Institute (www.cato.org) and not be chilled. “Power Surge: The Constitutional Record of George W. Bush” is an unblinking 28-page analysis of our slow devolution into autocracy. Its message can be summed up with this quote: “Under (the president’s) sweeping theory of executive power, the liberty of every American rests on nothing more than the grace of the White House.”

A meek and pliant Congress is allowing this new paradigm to take root.

One can almost hear Speaker Hastert trying to defend himself: ”Look, I said something about executive branch overreaching just this morning.  Ya know, I’ve signed off on some extraordinary police powers over the years, but there’s gotta be a limit to those powers.  The Constitution is clear: The right of members of Congress to be secure in their offices and homes shall not be violated!”

Requiem for 5-4 Supreme Court Decisions

Chief Justice Roberts gave an address at Georgetown in which he lauds the virtues of deciding cases, where possible, narrowly and unanimously:

 ”If it is not necessary to decide more to a case, then in my view it is necessary not to decide more to a case,” Roberts said. “Division should not be artificially suppressed, but the rule of law benefits from a broader agreement. The broader the agreement among the justices, the more likely it is a decision on the narrowest possible grounds.”

Its not clear that Roberts’ prediction (that consensus on the Court yields clarity, precision, and narrowness) is right.  Consensus-building in Congress, another multi-member voting body, is purchased at the price of legal fuzziness.  The more amorphous and open-ended the statute–the more the statute defers tough questions–the more members of Congress agree to add their names to it. 

While consensus building on the Supreme Court is a simpler prospect, there’s no reason to think the same basic dynamic won’t apply here too:  Supreme Court justices will purchase broad agreement at the price of clarity, harming the rule of law. 

Indeed, as I discuss at the end of this online debate, this may be the lesson of one of Roberts’ earliest opinions (in Rumsfeld v. FAIR).  There, the Court was asked to decide whether Congress violated law schools’ free speech rights by threatening to withdraw federal funding unless the schools sponsored JAG recruiters on campus.  The Court unanimously rejected the law schools’ First Amendment claims.  But in the course of doing so, it reached a question it didn’t have to reach:  the scope of deference owed to Congress when it regulates “military affairs.”  Worse, the Court’s cursory discussion of military affairs deference is exceedingly unclear and could be read to mean that judicial enforcement of the Bill of Rights is at a vanishingly low ebb when Congress raises and supports armies.  

As even the National Review admits, this aside is troubling and deserves clarification.  But it may also be a by-product of Roberts’ drive for consensus:  Some justices may have joined the Court’s ruling on the First Amendment only if there was some hedge that allowed them to distinguish the First Amendment ruling in a later, different case.  Adding in a bit about military deference may have been the hedge that brought those justices on board, allowing them to rule differently in a case that didn’t involve national security.  But other justices may have been wary about the scope of deference in this area.  Therefore it was necessary to discuss military deference in a vague way in order to belay these fears.  The result:  an opinion that inadvertently muddies the scope of civil liberties in the shadow of military-related legislation, inviting envelope pushing by Congress and the President.

The lesson:  Sometimes being narrow requires hedging.  And sometimes consensus requires wishy-washiness.  Hedging and wishy-washiness in turn make the law less clear.  That may give government officials more discretion to boss us around, while leaving the rest of us in the dark about the scope of our rights.

The Veterans Administration and Data Privacy

I woke up this morning to learn that I might be one of the more than 26 million veterans whose personal information - including name, social security number, and date of birth - is now in the hands of a (presumably) common thief. I won’t be certain that I am one of the individuals affected until I receive notification in the mail from the Department of Veterans Affairs. But I’m reasonably sure, given that I joined the service after 1975, that my personal information has now been compromised.

The Washington Post is certainly correct that this is a case of “incompetence” – the VA employee in question removed the data to his home, from whence it was stolen. The Post editors note:

Mr. Nicholson says that the employee was not authorized to take this information home, but his department clearly failed to do enough to enforce its own guidelines. It now promises to restrict access to sensitive data to those who need it and to conduct background checks on those who do. It’s extraordinary that this approach did not prevail already.

It is indeed. But the larger point is this: If we depend upon government to defend us from compromises of our personal information, and if we assume that such violations are most likely to be perpetrated by negligent, incompetent or mendacious individuals in private firms, then who is to protect us from negligence, incompetence or mendacity on the part of government officials?

In the case of the private firms, I retain some capacity for limiting the scope of my liability by tearing up that credit card application, or by hanging up on the telemarketer trying to sell me (another) home equity loan. Meanwhile, I subjected myself to a degree of scrutiny that most Americans avoid when I joined NROTC in 1985, and the active duty Navy in 1989. In a sense, I “opted in” and my name appears in a VA database. On the other hand, most Americans “opted out” by having never served in any branch of the military; and in this particular case, their personal data is not at risk. 

But unlike credit card solicitations and telemarketers, letters and phone calls from the federal government cannot be ignored, meaning that Americans are not always afforded the opportunity to opt in to a particular database. Nearly every American has a social security number, most have filed federal income taxes, and millions of American males are required to register with the federal government under the Selective Service Act. Each of these cases involve an obligation under the law; choosing to opt out is a criminal offense.

So I ask again: Given that we cannot limit our liability without penalty of fine or imprisonment when the government demands personal information from us, who protects us from identity theft when the government is at fault? 

Con Nation

According to new data from the U.S. Department of Justice, one in 136 Americans is behind bars today, including an astounding 12 percent of all black men between the ages of 25 and 29. The United States represents 4.6 percent of the world’s population, but houses nearly 23 percent of humanity’s prison population. Certainly, part of this is likely due to politicians’ unfortunate habit of addressing every social problem with a new law, but much of it is due to our ever-more-draconian drug laws. A few more statistics to chew on from the latest edition of Drug War Facts, published by Common Sense for Drug Policy:

  • As of 2005, drug offenders accounted for 55 percent of the federal prison population. About 45 percent of them were in prison for possession, not trafficking.
  • The number of people incarcerated in federal prisons for drug crimes rose from 14,976 in 1986 to 68,360 in 1999.
  • It costs U.S. taxpayers $3 billion per year to keep drug offenders behind bars in federal prisons.
  • Drug offenders have accounted for nearly half the meteoric growth in prison populations since 1995.
  • About half the population of U.S. jails and prisons are nonviolent offenders, more than the combined populations of Wyoming and Alaska.
  • Forty percent of the more than 1,000 state prisons in the U.S. opened in just the last 25 years. The state of Texas alone has opened an average of 5.7 new prisons each year for the last 21 years. Despite this, about half of federal and state prisons operate over capacity.
  • Total U.S. inmates numbered 488,000 in 1985, 1.3 million in 2001, and number 2.2 million today.
  • According to survey data by human rights groups, one in five U.S. prison inmates has been sexually assaulted.
  • According to federal sentencing guidelines, a man would need to possess 50 times more powder cocaine (preferred by white users) than crack cocaine (preferred by black users) to earn the same prison sentence.
  • Blacks represent about 12 percent of the U.S. population, but 48 percent of the prison population. They represent just 13 percent of drug users, but 38 percent of those arrested for drug crimes, and 59 percent of those convicted.
  • When convicted of the same drug felony, blacks are about 50 percent more likely to be sentenced to prison than whites.
  • A black woman’s chances of spending some time in prison over the course of her life (5.6 percent) is about equal that of a white man (5.9 percent). For black men, the odds are nearly one in three (32.2%).
  • Before Congress passed mandatory minimums for offenses related to crack (but which didn’t apply to powder cocaine) in 1986, the average drug-related sentence for blacks was 11 percent higher than for whites. After that law, the disparity jumped to 49 percent.
  • Despite all of this, overall drug use in this country hasn’t substantially abated. According to government survey data, the percentage of people reporting illicit drug use in their lifetimes rose from 31.3 percent in 1979 to 35.8 percent in 1998. Between 1999 and 2001, the figure went from 39.7 to 41.1 (data prior to 1998 isn’t comparable to data after 1998 due to changes in methodology). The percentage of college students reporting having used marijuana in the last year went from 27.9 percent in 1993 to 33.7 percent in 2003; the number using in the past month went from 14.2 percent to 19.3 percent; and the number reporting daily use went from 1.9 percent to 4.7 percent.

    Interestingly, all of these increases have come from people over 18 years of age. Drug use among minors is significantly down. Which means that even as adult Americans are more likely to take recreational drugs than they once were (and given these figures, with little corresponding social harm), they’re doing a good job of steering their kids away from them. Nevertheless, the government continues to arrest and incarcerate drug offenders, and in fact is now expanding its reach to include not just recreational users and traffickers, but doctors and patients who use controlled drugs to treat illnesses in ways the drug warriors have determined are “outside the scope of legitimate medical practice.” One wonders what percentage of Americans will need to be in prison before our politicians find the courage to say “enough.”

    Nuclear Welfare

    At a Senate Energy & Natural Resources Committee hearing yesterday, outgoing Nuclear Regulatory Commission chairman Nils Diaz reported that 16 utility companies were busily planning to build 25 new nuclear power plants thanks to last year’s energy bill. Champagne corks were popped, backs were slapped, congratulations were offered, and all was right in the political world.

    Just what did last year’s energy bill do to usher in this nuclear nirvana?  Well, our fair Senate–said by many to be in the grip of doctrinaire, free market Republican jihadis–passed a 20-year extension of the Price-Anderson Act (which protects the industry from liability if damages from an accident exceed a certain amount); adopted a 1.8 cent production tax credit for up to 6,000 megawatts of new nuclear generating capacity; provided risk insurance against the financial costs of litigation and other delays in building new nuclear power plants; and provided federal loans and guarantees for up to 80 percent of project construction costs.

    Look, I’ve got nothing against nuclear power per se.  But if nuclear energy had economic merit, it wouldn’t need this avalanche of government help and hand-holding.  Neither party looks good in all of this.  Republicans have no business meddling in markets this way.  And Democrats should quit folding to business interests like a cheap suit.