The Chickenshit Club: Why the Justice Department Fails to Prosecute Executives

Link to a “video” from a symposium by The Modern Money Network about the book The Chickenshit Club: Why the Justice Department Fails to Prosecute Executives (2017) by Jesse Eisinger:

“The Chickenshit Club: Why the Justice Department Fails to Prosecute Executives”

 

Admittedly, this “video” is really just audio.  But Bill Black‘s introductory comments make very clear how U.S. Department of Justice (non)prosecution of financial sector crimes is a matter of shifting ideology, or, more precisely, the activities of federal prosecutors really represent the outcome of an ideological war and class war over which class and which ideology will control the state and its judicial apparatus.

 

Bonus links: …And the Poor Get Prison and Why Not Jail? and The Pervert’s Guide to Ideology and The Fragile Absolute and The State and Revolution

Bonus quote: “Does the masses’ struggle for emancipation pose a threat to civilization as such, since civilization can thrive only in a hierarchical social order?  Or is it that the ruling class is a parasite threatening to drag society into self-destruction, so that the only alternative to socialism is barbarism?”  Slavoj Žižek, Afterword to Revolution at the Gates: Selected Writings of Lenin From 1917 (pp. 209-10).

D. Casey Flaherty – Law Departments and the Foundation of Law Firm Marketing Bullshit

Link to an article by D. Casey Flaherty:

“Law Departments and the Foundation of Law Firm Marketing Bullshit”

 

The title of this article is misleading.  The foundation of law firm marketing, and all marketing, is capitalism.  All marketing is misleading.  The entire article is confused because it makes vague references to things like improvement, efficiency, or whatever, without really explaining who benefits or in what way.  Anyway, the parts about the “lawyer theory of value” are useful, as a specific illustration of the old saying “to a hammer every problem looks like a nail.”  But that doesn’t really explain much.  The labor leader Tony Mazzocchi once said that the construction trades would “pave over the Atlantic Ocean, if given the chance.”  It is no different with lawyers and lawyering.  A rather useful frame to apply to these questions is what Paul Kivel discussed in his article “Social Service or Social Change.”  A better framework is public benefit, and a (materialist) distinction between public and private benefit.  Laywers, as part of what Kivel terms the “managerial class”, tend to look like self-interested collaborators with society’s bad actors (the exploitative “power elite”).  The Flaherty article at most sees the problem as one of degree, not of kind.  But corporate benefit — as in increased profits for shareholders of a particular company — is a stupid metric, one that presupposes capitalism and an unfair social structure.  Yet, it is also true that lawyers can do good.  Take, for instance, something that Moshe Lewin discussed in The Soviet Century, about how the Khrushchev administration dismantled the Stalinist gulag system in the former USSR and unwound the brutal system of arbitrary arrest by the NKVD through…increased use of lawyering! This latter example (drawn from a different country and historical period) illustrates a public benefit.  After all, confronting institutions known for arbitrary persecutions leading to executions, torture and imprisonment in slave labor camps was fraught with potential peril and hardly a simple matter of self-aggrandizement.  Flaherty stops well short of concern for public benefit, discussing only private concerns within the realm of corporate law — and, it should be mentioned, the private self-interest of legal consultants like Flaherty.  But if Flaherty did raise concerns about public benefit, it would probably mean eliminating corporations and corporate law departments entirely, and likewise eliminating the need for consultants like him.  The cynicism of this article reflects what Peter Sloterdijk called “enlightened false consciousness”.  Or, perhaps, this can be explained by Upton Sinclair, who long ago said it is hard to get someone to understand something when his salary depends on him not understanding it.

David Walsh – Actor Matt Damon Comes Under Attack for His Criticisms of the Sexual Misconduct Campaign

Link to an article by David Walsh:

“Actor Matt Damon Comes Under Attack for His Criticisms of the Sexual Misconduct Campaign”

There are some useful reader comments under this article, especially from Jason Kennedy (criticizing the typical class-reductionist argument style of WSWS, which is prone to making a few sweeping, unsupported conclusions).  Trying to smear, shame and scapegoat the rich (including rich workers) undermines the effectiveness of the article by resorting to incoherent populist tactics — a problematic approach, lest Friedrich Engels‘ writings be dismissed on the same basis.

 

Underlying most of the #MeToo debate is a political/ideological divide.  On the one hand the most outspoken #MeToo advocates adopt extreme forms of liberal fear of making offense and a kind of “eggshell plaintiff” approach combined with a reactionary Ayn Randian acceptance of unilateral subjective belief as objective fact and a logic of victimization that anchors sociopolitical legitimacy in a victimhood identity.  On the other hand, there is the belief that every human activity should be judged according to its meaning in the total context, and not according to what an individual agent believes the significance to be. In this latter sense, many of the #MeToo advocates are self-serving opportunists stoking a “moral panic” for personal career advancement to the detriment of the public and the fair treatment of those accused of misconduct, often by conflating unrelated personal grudges or generalized (and non-sexual) ressentiment with sexual misconduct.

 

Bonus links: “Opposition Mounts to Sexual Harassment Witch-hunt” (“Under the blanket category of ‘sexual harassment,’ an extremely broad range of activity, including that which falls under the framework of normal interpersonal relations, is effectively being criminalized and associated with the horrific crime of rape. The effect is to create a situation where virtually anyone can be singled out and smeared with the charge of being a ‘sexual predator.'”) and “The Destruction of Matt Taibbi: How the Alt Right and Sloppy Reporting Smeared the ‘Rolling Stone’ Journalist” and « Nous défendons une liberté d’importuner, indispensable à la liberté sexuelle » and “Geoffrey Rush Lawsuit Strikes Blow Against Anti-democratic #MeToo Campaign” and “#MeToo Witch-Hunt Targets Veteran Actor Morgan Freeman” and “The Downfall of New York Attorney General Eric Schneiderman” and “Sex and the New York Times: When ‘Her Too’ Isn’t ‘Me Too'” and “Dominican-American Author Junot Díaz: The Latest Artist Victimized by the #MeToo Campaign” (“Well-paid academics and aspiring academics and others, full of jealousy and spite in many cases, are dishonestly taking advantage of, twisting, amplifying an individual’s difficulties and peccadilloes, and even perhaps missteps or misdeeds, to advance themselves and their careers. *** The politics are unwaveringly those of personal identity and the concerns are trivial and selfish.”) and Slavoj Žižek Quote About Victimhood Status

Bill Henderson – The Decline of the PeopleLaw Sector (037)

Link to an article by Bill Henderson:

“The Decline of the PeopleLaw Sector (037)”

 

This article conveys some useful factual information, but the commentary is troublingly limited.  The article states, “Our legal system as it pertains to ordinary people is unraveling.  *** No amount of tinkering at the edges is going to fix or reverse these trends. Instead, we need a series of fundamental redesigns.”  It then proceeds to suggest…tinkering at the edges.  The fundamental problem with the article is that it depoliticizes a fundamentally political issue, and then proceeds to suggest at most technocratic fixes at the edges that don’t touch the underlying political question.  That question?  Well, anti-labor, pro-business and pro-finance policies are at the heart of the so-called neo-liberal political project, inaugurated by things like the Trilateral Commission’s report warning about an “excess of democracy” or the infamous Powell Memo.  The decline of what Henderson calls the “PeopleLaw Sector” is just a small corollary to the intended political policies of neo-liberalism, which tends to be just a financialized version of the exclusionary logic of liberalism — which has always promoted economic polarization.  Anyway, the root problem is the extreme concentration of wealth in the hands of corporations and a small plutocratic elite.  Lawyers (like so many others!) generally follow the money, and also seek prestige, and most lawyers won’t be swayed by exhortations and moral chiding to forego money and prestige.  And frankly, the economic base for them to do so is shaky and limited without changes to the economy that are only possible in the realm of politics.  Henderson links to an article by Deborah Merritt, which further emphasizes minor technocratic fixes, mostly surrounding law school education.  Neither article addresses the problem of decreasing public funding for higher education, including law schools, which has the (intended) effect of pushing lawyers to accept corporate jobs to pay off the staggering tuition costs (increasingly pushed away from the state and onto students). Pierre Bourdieu usefully developed the metaphor of the left hand and the right hand of the state to make a similar point.

Henderson is correct, to a point, that “we are either going to redesign our legal institutions or they will fail.”  (Assuming he means they fail for most people; the current institutions are quite effective for the so-called “1%” [or really the “0.001%”] at present).  But redesigns to legal institutions without large redesigns of political institutions that shape the overall economy will produce no long-term changes.  But of course, Henderson doesn’t seem to want that.  He writes about finding “creative ways to restore the balance.”  What historical balance, precisely, is he referring to?  Is this yet another (implied) invocation of the “Keynesian” (or “Bretton Woods”) post-WWII “golden years” of prosperity and growth, which depended on things like the destruction of industrial capacity in much of the world, racial discrimination, sexism/patriarchy, financial imperialism, wanton environmental destruction, etc.?  I don’t think there was a time in the past that we can say had anything close to a reasonable “balance” in the American legal system.  As Alan Nasser put it: “A rational and historically informed response to the legend of the middle class is that this alleged stratum of the 1920s and the Golden Age existed for a mere 34 years of American history. Before the 1920s just about all working-class people were poor. Since 1974 then we have had 42 years of burgeoning inequality, un- and underemployment, growing poverty and steadily declining wages with no end in sight. The middle class was a departure from the historic norm of a materially insecure working class, the default position of industrial capitalism.”  Reference to “balance” (in a purely domestic sense) is just coded language in a way parallel to the slogan “Make America great again.”

I guess, in short, my major concern is that Henderson seems to suggest narrowly framing symptoms of class warfare in the legal sector as root problems that permit sufficient technocratic fixes solely within the legal sector, bracketing out the larger society-wide political dimension of class warfare (and avoiding a class-based materialist analysis in general) that better explains the origins of the (very real) downstream symptoms he chronicles in the legal sector.  For the kind of analysis I would like to see Henderson engage in, see Jeffrey Reiman’s …And the Poor Get Prison (which deals just with criminal justice).  

Jeffrey Reiman – …And the Poor Get Prison

...And the Poor Get Prison: Economic Bias in American Criminal Justice

Jeffrey Reiman…And the Poor Get Prison: Economic Bias in American Criminal Justice (Allyn and Bacon, 1996)


Jeffrey Reiman’s …And the Poor Get Prison: Economic Bias in American Criminal Justice is a 1996 edition of a book first published in 1979 and republished in revised editions through the eleventh edition in 2016 (most under the title The Rich Get Richer and the Poor Get Prison: Ideology, Class, and Criminal Justice).  Paul Leighton became a co-author on later editions.  The book is intended primarily for use as a textbook for college-level criminal justice coursework.  But it remains readable for general audiences as well.  This review addresses an edition now over twenty years old, and does not compare either newer or older editions.

In short, this book presents an outstanding critique of the ideology behind American criminal justice, concluding that the system and its institutions are biased against the poor.  What is most commendable about the book is that it is structured in a logical and coherent way, it provides citations and evidence for every one of its arguments, and it responds to typical counter-arguments.  In other words, rather than a polemic that simply asserts its thesis without testing it, or attempting to side-step normative moral and political judgments by hiding behind technocratic language, the book attempts to ground and defend its positions in an explicitly materialist way.  While it would be fair to say that not every individual argument in the book is well-taken, be it due to outdated or incomplete statistical information or something else, the overwhelming majority of what is presented is supported by both coherent theory and some type of empirical data.

The normative positions taken by Reiman are ultimately defended on moral terms, rather than on a “mistaken facts” basis.  In other words, he does not fall back on the weak justification that things would change if only people knew what the facts really were.  The saying from the total quality improvement discipline, that every system is perfectly designed for the results it currently achieves, fits perfectly into Reiman’s analysis.  Indeed, he mentions teaching a class in which he asked his students a question: how would they design a criminal justice system so that it “would maintain and encourage a stable and visible ‘class’ of criminals.”  The students indicated that it would look pretty much like the current American criminal justice system.

As Alex S. Vitale writes in a more recent book, The End of Policing, “Powerful political forces benefit from abusive, aggressive, and invasive policing, and they are not going to be won over or driven from power by technical arguments or heartfelt appeals to do the right thing.”  Reiman recognizes this too.  In this edition of his book, he alludes to this problem.  His goal is not to outline a specific political problem merely to justify addressing it in a particular predetermined way, but rather to detail the set of interrelated problems that justify a significant political intervention of some sort the particulars of which are not fully determined.

Reiman establishes a few points that should, now at least, be considered incontrovertible:

“1. Society fails to protect people from the crimes they fear by refusing to alleviate the poverty that breeds them . . .

“2. The criminal justice system fails to protect people from the most serious dangers by failing to define the dangerous acts of those who are well off as crimes . . . and by failing to enforce the law vigorously against the well-to-do when they commit acts that are defined as crimes . . .

“3. By virtue of these and other failures, the criminal justice system succeeds in creating the image that crime is almost exclusively the work of the poor, an image that serves the interests of the powerful . . . .”

In the details, Reiman admirably explains how bias in upstream aspects of criminal justice are more damaging than downstream ones.  For instance, legislation that exempts the actions of the rich from the definition of “crime” means that the rich never enter the criminal justice system in the first place, and sentencing fairness is therefore irrelevant to them.  While bias in downstream events like sentencing do matter, by that stage most of the rich have been filtered out of the system.  A key point here is prosecutorial discretion.  Reiman notes how it remains an opaque process rife with opportunities for bias that have been restricted in other areas.

There are a few flaws in this edition.  For instance, Reiman argues that his “Pyrrhic Defeat” theory is not a “conspiracy theory”.  But this is somewhat a strawman argument, with Reiman applying an unduly narrow criminal law definition of “conspiracy”.  It also overlooks a similar sort of middle-ground position like the “propaganda model” of mass media put forward by Edward S. Herman and Noam Chomsky, which emphasizes the reinforcement and reproduction of an ideological system while also suggesting causal intent, or the psychoanalytic concept of denial/disavowal/Verleugnung, in which denying something that affects an individual is actually a way of affirming what he or she is apparently denying.  Indeed, Reiman’s focus on the criminal justice system as such means he only discusses mass media complicity in passing, which seems like too little treatment.  Additionally, Reiman makes a conservative argument about gun control that is contrary to his other arguments(i.e., non-materialist), and counterfactual.  More recent evidence suggests that banning firearms will not reduce murder or suicide, directly contradicting Reiman’s claims.  And lastly, Reiman concludes the book with some suggestions to make the criminal justice system minimally morally defensible.  What is interesting here is that Reiman abandons the materialistic critique that grounded the entire book to that point and instead justifies his policy recommendations based on an entirely different foundation, namely that of center-left liberalism.  He cites the likes of John Rawls and John Stuart Mill.  While Reiman applies this approach because he seeks only to suggest the minimum necessary moral reforms, not the best possible reforms, his abrupt abandonment of a materialist philosophy renders the basis for these suggestions incompatible with his overall critique.  With the exception of the “gun control” position, which is not defensible, everything else is sort of unobjectionable, even if it comes across as kind of arbitrary as presented.

On the whole, this is a wonderful book.  It makes an essential introduction to the operation of the American criminal justice system, and provides a durable critique of its most fundamental moral flaws.

Suja Thomas & David Lopez – Why Judges Routinely Dismiss Sexual Harassment Cases

Suja Thomas & David Lopez:

“Why Judges Routinely Dismiss Sexual Harassment Cases”

 

This article makes an excellent example of why nearly-correct commentary is dangerous.  While it is helpful that the authors cite a 2015 study about a divergence between decisions made by a judge (from the bench) as compared to those by juries, that argument boils down to drawing a line in the sand as to how much judicial decisions must match those of juries.  The authors clearly feel that juries agreeing with judges 75% of the time, in the study sample, is insufficient; they do not articular their minimum acceptable threshold: 80%? 90%? 99.999999999%?  And they side-step the issue of bias in juries — perhaps the views of bigoted juries should be curbed by judges?  Are juries selected in a way that is more fair than judicial selection (obviously, yes, though the article leaves the extent of that and limitations of jury selection unexplored).  The study is limited to situations in which appeals judges overturned a lower court judge (in other words, the study of divergence between judge and jury views is limited to a sample in which judges disagreed).

Anyway, turning to the main thrust of the article, it has some troubling features.  From a legal realist standpoint, it is clear that the authors are peddling a liberal “identity politics” platform, and are dredging around for facts that look like they support the authors’ preferred “identity politics” solutions.  What do I mean by that?  Well, for starters, the key to this article is its reference to “structural reasons”.  This is invoked as the proper explanatory frame for judicial bias in a very specific way:  the accusation is that judges are disproportionately white men, compared to the general population.  While avoiding explicitly saying it, the authors are suggesting that if judges were made up of a racially/gender/etc. diverse base, then the problems they discuss would disappear.  This is certainly better than the “implicit bias” framework.  But nonetheless this approach has been tested in other contexts, and it fails.  In particular, police departments have been exhorted to “diversify” for some time, and departments that have done so have not shown hoped-for reductions in discrimination.  This is because the “identity politics” frame overlooks the role of ideology.  Minorities can accede or succumb to hegemonic ideology, and thus act as collaborators in a biased system.  Elaine Brown in her book The Condemnation of Little B referred to this as “New Age Racism” in a similar context.   Walter Benn Michaels and Adolph Reed, Jr. have been hamming this point home for at least a decade too.  Merely appointing more minorities to judgeships won’t solve the problem of a discriminatory ideology unless those judges are willing to challenge the hegemonic ideology.  They might, or they might not — although more racial/gender/etc. fairness in such judicial appointments would undoubtedly be a good thing.  The point is that the authors have offered an insufficient analysis.  Their version of a “structural” analysis is flabby.  To be sound, and come closer to being sufficient, it would need to take more account of power and something like ideology and class, though they do hint in that direction by saying that judges “may want higher positions in the judiciary or elsewhere, which can influence their decisions”, which is perhaps a passing reference to hierarchies of power, economic bases, and hegemonic ideology.  A much more probing set of questions was raised in another article questioning how alternative dispute resolution arose to stifle discrimination suits — though this other article was offered by an independent scholar.  Could it be that Suja Thomas and David Lopez themselves “may want higher positions in [academia] or elsewhere, which can influence their [theorizing]”, and therefore limit the scope of their criticism?  Social science is only valid if it is reflexive and its intellectual weapons are also turned on those who create and wield them.  Thomas and Lopez’ article does not seem to meet such a standard.  It masks an adherence to a hegemonic worldview premised on inequality behind seemingly benign and well-meaning advocacy for minor technocratic improvements, thereby depoliticizing the underlying struggle and reinforcing the ideology that sustains bigotry at its very roots.  In other words, a version of this quote by Frantz Fanon applies: “What matters is not so much the color of your skin [or, your gender] as the power you serve and the millions you betray.” (Black Skin, White Masks).