Fed Up Followers – Week in Review

• One day after my blog appeared titled The Long Arm of the Law, there was this headline in the Wall Street Journal (9/29-30): “BofA Takes New Crisis-Era Hit.” The law wrenched from the Bank of America a settlement of $2.43 billion to appease claims it misled investors. This figure is the largest settlement of a shareholder claim by a financial-services firm since the financial crisis started. Even the WSJ acknowledged that the “deal is a sign that the U. S. banks’ battle to contain the high cost of the crisis continues to escalate, despite a four-year slog of lawsuits, losses and profit-sapping regulations.”

In this case, as in most others, an institution is being held responsible – not an individual or even a few individuals. Therefore, one might reasonably argue that this does not really count. No single person is being made to pay for the wrongdoing, but rather a large, amorphous organization – which means that accountability has been diffused. (Among ethicists this is referred to as the “problem of many hands.”) True enough – and it’s an important distinction. Still, diffused accountability does not mean zero accountability.

• It was announced that Cambodia has asked the U. S. to help it recover a 10th century Khmer sandstone statue from the Norton Simon Museum in California. It’s only the latest example of a major trend in recent years: relatively powerless countries seek to retrieve from relatively powerful countries what in the 21st century they have come to consider rightfully theirs. It is, if you will, a cultural leveling, in which countries of origin demand the return of various objects, usually art objects, that earlier were removed and taken elsewhere. In the past, such transfers were widely accepted, and in fact most of the world’s great museums, especially in Europe and America, were built in part on treasures that were, in today’s parlance, looted, stolen, or plundered. But times change. Such transfers are now often considered outright illegal, which is why countries such as Cambodia will not be mollified until they regain what they believe they lost. Egypt is at the forefront of this movement, having had retrieved in recent years objects of art from countries as various as the U. S. Australia, England, and Spain.

• Poor Tim Cook. For all his growing fame and fortune he has the bad luck to follow in the footsteps of the iconic Steve Jobs. Poor Tim Cook. This week, when users of the new iPhone 5 became more and more angry and then more and more vocal over Apple’s misguided mobile maps, Cook was forced to retreat. Poor Tim Cook. He felt compelled to apologize: “We are extremely sorry for the frustration this has caused our customers, and we are doing everything we can to make Maps better.” Poor Tim Cook. He was reduced to recommending the competition, map apps that were other than Apple’s. How much humbling can one man take? In this day and age, not much. Having been forced to eat humble pie this once, Cook cannot consume it easily again.

• In Spain and Portugal tens of thousands took again to the streets, raging against increased taxes, decreased government services, and high unemployment.

One comment

  1. I had intended to expand the email I sent to you regarding the long arm of the law, but upon rereading it I am not sure that I have much to add. So for what it is worth, I am paraphrasing it here.

    As a litigation attorney of forty years, I have a fairly well defined picture of the legal system — one that I have seen from both sides of the bench: I served as a federal appeals law clerk for two years and since that time I have continuously engaged in civil trials and appeals. One take away is that the law can be unpredictable and undependable. Part of that is human nature. People think that they are right most of the time and probably right the rest of the time. And in terms of depending upon the law to foster justice, the sad reality is that too many get away with too much. For example, how many of the thousands of schmucks who generated credit default swaps have been or will be punished? And who gets punished? The answer is simple: the CEO — not the minions who created the problem.

    It is also important to understand two things about the judiciary. First, courts do not act on their own. The criminal justice system requires a prosecutor with guts and time to devote and the civil justice system requires a resolute civil litigant poised to spend the ranch, and most of the time the ranch ain’t that big. At the risk of sounding agest, Aunt Minnie for example, widowed and alone would have a hard time staying toe-to-toe with well-heeled big firm lawyers who are resourceful and full of resources. Perhaps it works in a John Grisham novel, but there are not too many angels around providing the elderly Minnie with practical access to the courts. Further to this point, prosecutors seldom go after big names for the sake of the long arm of the law. There are exceptions, to be sure. But personal motivations often trump decisions on who to prosecute. Second, not all judges are created equal. And brains are but one factor. Ideology and outsized personalities drive decisions on everything from pretrial proceedings to appellate review. In other words, what is in the books does not always matter. What matters is an understanding and acceptance of the real world. An example of differing points of view on the same set of facts and circumstances, the same constitution, the same statutes and the same legal precedents is that United States Supreme Court opinions are seldom unanimous.

    Then there is TARP. An unpunished crime I see is that banks who received government life preservers have not been willing to put that money back into circulation. On a macro level that is bad for GDP. On a micro level it is a crime because those who were loaned money at unrealistic margins and have lost their homes at least in part on bank culpability cannot borrow to restart their lives. The banker’s tragic lament: “We were nice enough to loan you what you requested, and you read the fine print.” And righting oneself today is not just an issue of creditworthiness — the banks are just keeping the money and making more money with the taxpayer dollars through daily sweeps and currency arbitrage.

    My remarks are meant solely as a reaction to what I see in the real world — not a criticism of the system, but more appropriately a criticism of understanding the system. It is up to those of us who make our living in the courts to uphold and maintain the integrity of the law, but to understand that the rule of law is not a static, computerized and predictable science. It is also an applied art. As Underhill Moore, a legendary law professor at Columbia in the mid-20’s, put it, the law is not just a body of rules, regulations and principles found in law books, but rather the result of what legal actors do in the real world, influenced by economic, social and pyschological factors. It is critical for all citizens to keep that in mind.

Leave a Reply

Your email address will not be published. Required fields are marked *