Judge Jed Rakoff Throws Down Gauntlet to Judges on Lack of Due Process in America

In Why You Won’t Get Your Day in Court in the New York Review of Books, judge Jed Rakoff offers a measured yet devastating critique of how all but the richest Americans lack effectively lack access to the courts. Rakoff, a highly regarded securities law expert best known for refusing to rubber-stamp SEC settlements that he deemed provided him with too little information to determine whether they were fair, walks through why Americans are shortchanged:

Over the past few decades, ordinary US citizens have increasingly been denied effective access to their courts. There are many reasons for this. One is the ever greater cost of hiring a lawyer. A second factor is the increased expense, apart from legal fees, that a litigant must pay to pursue a lawsuit to conclusion. A third factor is increased unwillingness of lawyers to take a case on a contingent-fee basis when the anticipated monetary award is modest. A fourth factor is the decline of unions and other institutions that provide their members with free legal representation. A fifth factor is the imposition of mandatory arbitration. A sixth factor is judicial hostility to class action suits. A seventh factor is the increasing diversion of legal disputes to regulatory agencies. An eighth factor, in criminal cases, is the vastly increased risk of a heavy penalty in going to trial.

For these and other reasons, many Americans with ordinary legal disputes never get the day in court that they imagined they were guaranteed by the law. A further result is that most legal disputes are rarely decided by judges, and almost never by juries. And still another result is that the function of the judiciary as a check on the power of the executive and legislative branches and as an independent forum for the resolution of legal disputes has substantially diminished—with the all-too-willing acquiescence of the judiciary itself.

Rakoff goes through all of theses issues and explains the consequences, which include more people attempting to represent themselves in court, where they lose at a much higher rate than parties that have counsel. Readers of this site know how common it was during the foreclosure crisis for homeowners to attempt to defend themselves, with little success. Even now, I regularly have individuals who are trying to keep their homes or overturn a successful foreclosure e-mail me along with a long list of other people which regularly includes prominent officials like Elizabeth Warren. Even when they might have a germ of an argument, these missives are often so screechy and poorly organized that they come off as being the work of cranks rather than those at the end of their ropes. And this is reaction of someone sympathetic to the idea that the servicer done them wrong.

As bad as the situation is in civil cases, it’s worse on the criminal side of the bar. Even though defendants do get representation, court appointed lawyers are rarely a match for prosecutors. And the issue isn’t simply that hiring good counsel is costly. It’s also that the consequences of losing a criminal case are draconian, and even with the best representation, litigation is still a crapshoot. Recall that Aaron Swartz killed himself because the cost of defense in a Federal case starts at $1.5 million, which would have impoverished his parents, and if he lost, he faced up to 35 years in prison and fines of up to $1 million.

Even in my very tame and cloistered social circle, the stories I have heard of encounters with the criminal justice system have been sobering. Someone I met in passing was charged criminally in a southern state for practicing medicine without a license. Even though he was not offering medical services or making medical claims, he’d been licensed as a osteopath in another state and his receptionist called him “Dr. Marty,” which his clients took up. He did hire his own attorney rather than rely on a court defender, and went to trial rather than accept a plea bargain. He was confident he’d win because the prosecution presented no evidence (no witnesses, no documentary evidence) that he was practicing medicine, much the less that he’d done any harm. However, his attorney did not fight the venue being in an itty bitty backwater town, as opposed to the large city in which the defendant worked. As the local who recounted the tale said, judge and juries there are fixed all the time. “Dr. Marty” lost on 16 counts and was sentenced to four years in prison.

Similarly, I know a highly skilled former Wall Street tech expert, and am pretty confident that the professionals in his circle (who are shameless gossips) would not lie for him. The story that several parties independently recounted was that he dumb enough to not move out when a long-standing roommate turned to drug dealing. Mr. IT convinced himself he was not at risk as long as he never touched any illicit substances or handled cash.

One evening, someone came and kept pounding on the door, threatening to (and sounding as if he could) knock it down. After increasingly loud efforts at breaking into the apartment to get his drugs, Mr. IT relented, and found and handed him the envelope and took money. Unbeknownst to him, his roommate had just been busted and told he needed to turn other people, and as a result, the buyer was wearing a wire. And the amount in the envelope was only a misdemeanor dealing amount but was marked up in the evidence room to a felony quantity.

Mr. IT pled guilty and expected to go to prison. But because he was HIV positive and had spots on his face at his sentencing hearing, the prosecutor and judge figured he has Kaposi’s sarcoma, and they’d rather have him die on his own nickel rather than get state support. So he got probation instead. It turned out that whatever he had wasn’t that, and he’s still alive. But the prosecution and felony conviction deeply traumatized him, as well as making it very difficult for him to find employment.

I strongly urge you to read this important article in full. From its close:

But while the larger solutions to this denial of access must await a change in the legislative climate, there is, I am convinced, no reason short of ignorance or ideology for judges to continue to give their approval to devices that effectively deny Americans access to their courts. The Supreme Court, for example, could easily overrule or at least narrow decisions like Concepcion and Chevron, on the ground that they deprive Americans of meaningful access to their courts. And lower court judges, state and federal, could take a harder look at some of the practices described here that have the same effect.

This would require a considerable change of thought on the part of many judges. Indeed, it is hardly surprising that judges who often have substantial dockets tend to look favorably on arrangements that will lessen their work burden, whether by mandatory arbitration, denial of jurisdiction, reliance on prosecutors and administrators, or similar measures. Too often, however, such relief morphs into an effective reduction of judicial responsibility, with dire consequences for the long-term ability of the courts to serve as an effective check on the power of the legislature and the executive. Arguably even worse, the situation I’ve described reinforces the belief of citizens that the courts are not an institution to which they can turn for justice, but are simply a remote and expensive luxury reserved for the rich and powerful. If the judges themselves do not take steps to counter this insidious trend, who will?

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52 comments

  1. diptherio

    So far as I can tell, our legal system, like our political system, has been illegitimate since its inception. I read in a 100 year old history text about the same judicial double-standards, about courts retained for those who can afford them, of trials fixed and justice mocked and denied to the working stiff. Like the old man said, there ain’t nothing new under the sun.

    Will average citizens ever figure this out? — that the law was not written for them, that the courtroom is a place of sorting by wealth, not by rightness or wrongness. And what will they do if they ever do figure it out? Is the Bundy verdict a sign of things to come?

    1. Katharine

      Our legal system, despite its economic biases, had a lot of strong features built in which the establishment has been trying to undermine for decades with too little opposition from inattentive citizens. The power of juries, both grand and petit, has been undermined, the right to a jury trial has been unconstitutionally restricted, and perhaps most infamously, the Congress has unconstitutionally limited access to the writ of habeas corpus (which they may lawfully suspend in time of insurrection or invasion but not otherwise restrict). All these insidious changes ought to be reversed, and the Ninth Amendment posted in every schoolroom:

      “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

      1. hunkerdown

        And who, exactly, does that bind, and how, exactly, do we get made whole?

        All this liberal fiddling is like lipstick on a pig.

      2. Carla

        @Katherine: “with too little opposition from inattentive citizens” — yeah, blame it on the people once more. It’s worked for decades–nay, for centuries. Why not trot out it again?

  2. allan

    Props for mentioning the Aaron Swartz persecution, yet another piece of O’s legacy
    that won’t have an exhibit in the presidential library.

    1. Procopius

      I don’t see how you can blame that on O. The responsible person is Carmen Ortiz. The culture of prosecurotial overreach has been with us for decades, if not centuries. I find myself thinking of the vicious prosecution of Clarence Darrow for subornation of perjury, with the Bureau of Investigation fabricating evidence and prosecutors pressuring witnesses. Go back to the treason trials in England under the Tudors for some really vicious corruption of the legal system. I am not a scholar, so I am sure a historian of the legal system would know of a great deal more.

      1. allan

        Who appointed her? Who appointed her bosses at DoJ central? The Cossacks work for the czar.

        Ortiz is Exhibit A for the train wreck that is identity politics.
        Yes she is female, and Puerto Rican. Great.
        Did that ensure that Aaron Swartz (yes, a privileged white male) received fair treatment?
        What he did was stupid and criminal, but he didn’t deserve the full weight of the Federal government
        coming down on his head with tragic consequences.

  3. TheCatSaid

    In a recent conversation with someone investigating election fraud, the races showing tampering in one specific location over a ten-year period were exclusively elections for judges and prosecutor.

  4. sd

    Asset forfeiture requires money to go to court just to fight to get back personal belongings that the police can seize without charges. That pretty much sums up the American “justice” system today.

    1. cyclist

      Ah, the goode, olde days:

      Chapter 28, Magna Carta: No constable or other royal official shall take corn or other movable goods from any man without immediate payment, unless the seller voluntarily offers postponement of this.

      Chapter 30: No sheriff, royal official, or other person shall take horses or carts for transport from any free man, without his consent.

  5. john gleason

    Why not incorporate defense attorneys into the Department of Justice equally supported by the state as the prosecution? It is justice that we seek!

    1. BecauseTradition

      Why not incorporate defense attorneys into the Department of Justice equally supported by the state as the prosecution? john gleason

      Equal protection under the law would seem to dictate that equal amounts be spent for both prosecution and defense. This would have the interesting effect that a rich defendant would have to pay some of the cost of his own prosecution if his lawyers were more expense than the State’s – regardless of the outcome of the trial.

      Civil suits might work similarly with both parties contributing (not necessarily equally or at all) to a Legal Costs Fund that would then be split equally between them for legal costs.

      It is justice that we seek!

      Then why do we have government privileges for depository institutions since the richer are more so-called creditworthy than the poorer?

      1. Procopius

        This is an excellent idea. In fact, the UCMJ (Universal Code of Military Justice, the military legal system) contains just this provision. Attorneys switch back and forth between prosecuting and defending, which I think is a good way to prevent the development of draconian prosecutorial attitudes such as we have in the civilian system. Prosecutors are less likely to come to see their role as getting convictions at any cost. I’m not sure if it works, but it seems plausible, and at least it makes sure every accused has as good a lawyer as the prosecution. Free.

  6. HotFlash

    Judge Jed Rakoff, now there’s a guy I’d love to see on the Supreme Court. What’s the chances?

    1. Vatch

      I had the same thought. He’s 73 years old, having been born in August, 1943, so he might not be interested in moving to a new city. However, it’s a real shame that Obama apparently didn’t even consider nominating Jed Rakoff for the high court.

      1. Yves Smith Post author

        I met him briefly when I was on a New York Bar Council panel on foreclosures that he was moderating. He mentioned that he couldn’t get appointed as an appellate judge, and in an understated way, made it clear that it was because he was seen as being too forthright. He consoled himself with the thought that district cases were more interesting.

        If he can’t even get on the appellate bench, no way would he ever be considered for the Supreme Court.

        1. bobh

          Rakoff had another long essay in the NYRB, some months back, a look at the criminal side of this and the pressure on defendants to settle for a plea deal rather than risk a long sentence that would be, in part, a punishment for wasting the court’s time by demanding a trial. I suspect when he said “too forthright” we can read it as “displays signs of being burdened with principles, intellect, and ideals.” A judge with too much of those tendencies might do crazy things, things that would reduce the power and wealth of the kind of people who get to blackball nominees for the courts.

  7. Carolinian

    “Dr. Marty” lost on 16 counts and was sentenced to four years in prison.

    Well that just says it all doesn’t it. We have a legal system designed to protect the interests of certain groups (in this case doctors) with the results you see. I was on a civil jury a couple of years ago and the plaintiff bringing the tissue thin case kept talking about the sanctity of the law when it was clear the entire trial was an abuse of process (his case was so bad the defendants refused to settle). Maybe it’s time for the US to have a constitutional convention and give the whole thing a rethink. But of course that won’t happen because wealthy financial interests would be threatened.

    1. Pespi

      I have a similar jury experience. The prosecutors and cops are great at creating an air of authority that must be obeyed, so that even if their case is thin, the jury will tend to convict. I was the foreman and I pushed like 5 reluctant people to convict a guy for something he was technically guilty of but the prosecution didn’t make a strong case for. Luckily it turned out he’d been convicted for something much worse in the past so I didn’t completely screw that up, but I was operating on thin testimony and gut feeling. I don’t think that’s an exception to the rule

  8. 2Little 2Late

    I’m confused about one of the examples above, specifically where it states, “licensed as a osteopath in another state…..”. Unless I’m reading this wrong, in the U.S., an osteopath is legal tender for M.D. My physician is a D.O., as in a doctor of osteopathic medicine, or for short, an osteopath.

    While it’s not my intention to start a mud wrestle match over the values of M.D. over D.O., I happen to fall into a category of patients who believe that D.O.’s in general have a more rounded view of the practice of medicine in general, as it’s been my experience that my guy typically considers the whole patient view before an auto-pharmaceutical route. Works for me.

      1. John Zelnicker

        @Vatch – Osteopaths have much more education and training than chiropractors. They receive the same medical training as M.D.’s along with osteopathic training in musculo-skeletal manipulation.

    1. John Zelnicker

      @2Little 2Late – I agree that D.O.’s are generally better than M.D.’s for the reason you state.

      In the referenced case, the man was prosecuted for practicing without a license. Medical licensing is provided at the state level, so it doesn’t matter where he might have been licensed before, he needed one for that state (at least to avoid prosecution). Perhaps he didn’t apply for a license because he had no intention of “practicing medicine” and didn’t feel the need for one. Apparently the prosecutors disagreed.

  9. dee

    Foreclosures were briefly mentioned. I have witness judges who are simply disgusted with the homeowner without even reading the case. They just tossed the file to their ja and said next……..
    Why is it acceptable that they won’t even look at all the fraud? They have rejected counter claims and even refused to let both sides agree?? It is so sick and wrong on every level. Now the Supreme court in FL even said banks can just refile over and over again, making the statutue of limitations almost mute? You don’t think that was fixed?! Enough is enough. Its sickening and if we the people have no choice but to turn over our homes to criminals with no standing? Something has to give!
    Everyone knows about the fraud and they still let the banks win using more fraudulent paperwork! . The robo signng settlement made me throw up. WHY are they not in jail!? We all would be. This is the best example of fraud and criminal activity ever!!

    1. Procopius

      The most infuriating cases I remember reading about here were the judges who, after the debtor pointed out that the documents showed transfers to companies that were not in business at the time or were signed by people who worked at an entirely different company, told the bank to take the papers back and return next week with “the correct” papers.

  10. crittermom

    Great article, Yves, which I know firsthand only too well.
    However, this statement bothered me:
    “Readers of this site know how common it was during the foreclosure crisis…”

    Please, Yves, don’t insinuate that the ‘foreclosure crisis’ is over.
    https://livinglies.wordpress.com/2016/10/26/bank-media-blitz-end-of-foreclosure-era-false/

    From the article: (my emphasis)
    For years the banks having been gradually ramping up a PR campaign that carries the message: the foreclosure crisis is over. “Institutions” like Black Knight (formerly known as the infamous Lender Processing Services —LPS) have been issuing statements that foreclosures are essentially over. The newest round of these false pronouncements is that foreclosures have sunk to a 9 year low.
    The truth is more nuanced and “counter-intuitive” as Reynaldo Reyes, VP of Deutsch Bank “asset management” said many years ago. What the banks have done (using LPS/Black Knight) is play Wackamo with the states and counties. They ramp up foreclosures to an all time high and then switch to another county. Then the report is that the county with the all time high is now declining — because the banks have moved on to another county or state.
    After the decline, they come back again and ramp it back up, sometimes stopping short of another all time high.
    The facts are that there have been some 9 million foreclosures since the mortgage crisis began and there will be at least another 6 million foreclosures under cover of what is being reported as a crisis that is over. There are hundreds of thousands of foreclosures that were put on hold in cases where the homeowner put up a fight. Some of them are over ten years old — and courts, rather than dismissing them for lack of prosecution or adequate prosecution have (a) let them continue and (b) blamed the homeowner for the delays. Those cases are also coming to a head now and the banks are starting to show losses in court that were never reported before because they were only pursuing cases that were uncontested.
    The truth is that the banks were playing the odds. The number of homeowners who put up a fight is only around 4-6%. By putting the contested foreclosures on hold, the banks were able to get millions of fraudulent foreclosures completed at a rate of 100%. Out of the contested ones, they still have the advantage much there record of success is much lower and getting lower every day as courts wake up to the fact that the banks are not being truthful in court nor with borrowers.

    I am one of those now 9 million who lost their home, and more continue to lose theirs every day.
    It’s just ‘old news’ now and many think those ‘hefty fines’ made the banks clean up their acts, so folks think it’s over.
    It’s not. Not at all.

    I have lost all faith in ‘our’ judicial system and remain mad as hell. (I never even got a day in court, despite my two year battle)

    I’m beginning to believe that perhaps the best ‘justice’ is what I had an old rancher in Idaho tell me years ago regarding the protected wolves that were claiming some of his cattle: “Shoot, shovel, and shut up”.

    That’s pretty radical coming from this 65 yr old woman who was always a gentle soul—until I was robbed through the courts.

    It’s become sadly apparent we can no longer find justice through the court system. It’s broken and shattered.

    Note: I love wildlife and would never shoot a wolf. If banksters were hanging around livestock, however…..

    1. DolleyMadison

      Yes. Having beat Ocwen with Prejudice, (AS A PRO SE, YVES) and again on appeal, 4 years later they just filed again as if it never happened. Though we never defaulted, and they were found (twice) to not be the holder or owner of the obligation, and the judge, interestingly enough told them as we departed the courtroom that they were lucky not to be in jail. (But of course he never reported them to the bar. I guess a stern talking to is all that is required for committing fraud these days.) I have a lawyer this time though its hard to trust he will actually defend. We will see.

      1. readerOfTeaLeaves

        Fantastic post, and profoundly related to some of the alienation and disgust that I have observed.

        A neighborhood south of me sued the local government over land use policies, and 10 years later they are still holding garage sales to pay for it. My neighborhood sued the local government over their craven, gutless, sprawl-enabling policies and in the end, the judge did not have enough guts to tell the local officials to clean up their act. It cost us upwards of $60,000. The disgust and antipathy toward government has only escalated. I was not completely surprised by Trump; I think there is a real frustration with corruption, and the costs of going to court are one aspect of this problem. In my neighborhood, we citizens had to band together and toss money in a pot; the housing developers get to write off their legal bills on their taxes. We didn’t.

        When people try to be good citizens, follow the process, and then get screwed in court — and realize they can’t afford to appeal — things go seriously sidewise.

        Rakoff seems to be our contemporary Solomon.

    2. Yves Smith Post author

      Sorry, this is simply false. There are regularly reports of bank and servicer inventory. The six million figure you cite is an abject fabrication There are only about 53 million homes in the US with mortgages, about 40% of the market was subprime at the peak, and about 40% of that defaulted. That’s 8 million total mortgages. Over 7 million have already lost their homes. “Only” 4.3 million homes are underwater now. Housing inventories are actually tight in most of the country.

      In the judicial foreclosure states where banks have had trouble foreclosing, they are making a more aggressive push, but even there, the resulting level of foreclosures is well below crisis peaks.

      http://www.mortgageorb.com/online/issues/SVM1601/FEAT_05_As-Foreclosures-Recede-Focus-Will-Shift-In-2016.html

      In other words, while facing the loss of a home is a crisis for individuals and families, foreclosures are no longer a threat to the economy or the banking system, and hence no longer a crisis.

      1. Soulipsis

        The lost standard of living, the lost hopes and plans, have accumulated into a political crisis not limited to Trump voters, and the pred lending/foreclosure wealth transfer is only one vector in the predatory array prompting it. All the shit that has been shoved down our throats, including the NDAA indefinite detention without trial, implications of Al Awlaki execution, GMO labeling preemption, surveillance and general Fourth Amendment and more of Bill of Rights attrition — it’s all been shoved so far and so violently down our throats that the massive national gag reflex has seized how many of us — 80%? All of that is what is behind both the Sanders and Trump phenomena — which I believe are two segments of the same movement — and the gagging is not over because the shit has not even started back up from our stomachs.

        Unfortunately the Sanders and Trump constituencies do not recognize themselves as an integrated body politic, and the PTB are auguring against that recognition as hard as they can, because they know that the gun owners are the ones acting as the last levee against their tyrannical slave-state ambitions. That’s the meaning of the kid gloves and acquittal of the Malheur occupiers counterposed with the violent repression against the DAPL protests. The difference between the two is a strategic wedge to keep Left/Right, Sanders/Trump populations from uniting against the PTB.

        The Sanders constituents have failed to recognize the false flags at Sandy Hook and Aurora and the Boston Marathon for what they are because of the obsolete assumption that guns are not needed to get justice. Until this incorrect assumption is remedied, the Left will think it doesn’t need the Right, those hairy, smelly, undereducated Trump voters, and the Trumpers will continue to feel insulted by and uninterested in a bunch of ivory tower snobs. The PTB are taking advantage of this assumption to drive in their wedge, and at the moment it sure looks likely that they could succeed. This is why neoliberals support gun control.

        In essence, the Left still sees the government as our allies, when it has been usurped to the extent that Judge Rakoff is in the minority. This usurpation can only be remedied if the Sanders and Trump voters unite in some way that overwhelms the intimidation from the militarization of police. I think perhaps what we need is a national gun ownership drive, ironically enough. I’m a peace guy myself, but it’s not the right time for gun control now AT ALL.

        I really appreciate my freedom that remains enabled, for however long that it does, significantly due to the robust stand on citizen armaments by all my RedState fellow Americans. I just hope we can learn really quickly to see that we all need each other, and we will all fight back hard enough on enough fronts to turn back the tide of horror that the PTB are trying to put on us. This, of course, is also why I appreciate NakedCapitalism.com so much.

  11. washunate

    Yep.

    This is a must read for people claiming to offer specific economic solutions. Deficit spending, jobs programs, manufacturing, and so forth are largely irrelevant unless the systemic breakdown of rule of law is addressed.

  12. Enquiring Mind

    As one who saw the pathetic manipulation of the court process first hand, and witnessed the defendant that managed to survive, I offer the following: That particular court was so driven to push settlements, perhaps to clear dockets, regardless of the likely outcomes, that there seemed to many to be a presumed guilt instead of innocence.

    When the so-called Special Master rushes in, tells the parties loudly Let’s Settle This and then doesn’t attempt to understand that the plaintiff’s case evidence was, as initially described and later proven to be non-existent, that sets a bad tone prior to proceeding to a travesty of a trial.

    Combine that with a gold-digging plaintiff represented by a now-deceased and disgraced attorney who used many tricks to attempt to distract (the old spill the water from the pitcher trick during a key defendant testimony, supplemented by the rustle the papers loudly ploy, that impeached the plaintiff’s credibility, without notice or censure by the Judge but certainly noticed by the audience) or mislead the jury and that undermines what should have been a transparent and objective system.

    The end result was simply a transfer of money from the defendant to her attorney for fees, along with wasted time all around.

    1. flora

      With an increase in population size should come an increase in the number of courts or court judges, at least in my opinion. Just as increased city populations should result in an increased number of polling stations, and increased number of health inspectors and CDC labs, etc. The “make govt small enough to drown in a bathtub” crowd has been winning the day for far too long. It keeps taxes low for the 1% without eliminating their access to necessary govt services. Backed-up dockets for the little people is a feature, not a bug.

      1. flora

        adding: maybe if they “starve the beast” long enough they can convince people that public/private partnerships are the only alternative. In the name of “efficiency.” yippee….

    2. beth

      The end result was simply a transfer of money from the defendant to her attorney for fees, along with wasted time all around.

      Yes, I have seen that. An educational experience.

      I tell people w/o money that you don’t have a chance in court even if your attorney likes you & believes in your case very much. Only, only if your attorney is up and coming and wants for win your case to further his/her reputation do you have a chance.

      I once experienced this but the attorney already had been hired by a judge to represent him in another case. My attorney used that to impress the judge in my case(outside of court), so that reluctantly I was given some limited justice in mine. Not something that could be repeated. Ever.

  13. Picador

    From the Rakoff piece:

    “Thus, between 1985 and 2012 the average billing rate for law firm partners in the US increased from $112 per hour to $536 per hour, and for associate lawyers from $79 per hour to $370 per hour. These billing rates increased at more than three times the rate of inflation during the same period.”

    Yes, and during the same period as this ~300% increase (1985-2013), college tuition went up 500%:

    http://www.bloomberg.com/news/articles/2013-08-26/college-costs-surge-500-in-u-s-since-1985-chart-of-the-day

    If you want to know why lawyers charge what they do, look at the debt load of the average law school grad, all of which is non-dischargeable for the student but guaranteed for the lender thanks to government regulation.

    1. Vatch

      non-dischargeable for the student but guaranteed for the lender thanks to government regulation.

      One could also say that student debt is non-dischargeable due to the absence of the right form of law and regulation, and that other forms of debt are dischargeable due to the presence such law and regulation.

  14. barefoot charley

    You’re describing features, not bugs, of a system created to mediate the property disputes of the rich. As the great Victorian jurist Blackstone explained, “Justice, like the Ritz Hotel, is open to all.” We need some new fangles.

  15. armchair

    I’d like to throw another point in here. I have the privilege of hanging out with several lawyers who receive government funds to represent low income clients in civil matters. If you spend just one hour with one of these advocates you can learn more about the mechanics of poverty, the huge advantages the legal system gives to megalomaniac landlords, impound lots, payday lenders, creditors, violent spouses and misguided state agencies, then from watching cable news for 5 years straight. These attorneys spend every working day addressing these issues, but guess what? They aren’t allowed to “lobby” government offices, agencies or legislative bodies, except for limited situations.

    So, the people with the best information about how the laws operate to cause misery, and how the laws are used to by petty-tyrants and grand-tyrants alike to get their way against vulnerable people, are sealed off from telling lawmakers about it. Isn’t that grand? When these restrictions were put into law in 1996, I’m sure there was a lot of concern that bleeding heart attorneys mind brainwash our legislatures into taking action against things like payday lending.

    It’s just amazing and depressing to me that we live in a society where Kochs and Mercers and spray their money hoses on our legislatures with impunity, but if some bedraggled advocate tries to bend the ear of a state senator about payday lending, then the majesty of the law will kick the advocate out onto the curb. Some of our best voices with the most experience are totally locked out of the policy making arena. Convenient.

    Just a side note, when I started making this point, I assumed the restriction on lobbying for the LSC was a Reagan era innovation. Wrong, it was in 1996 . . .

    1. philnc

      Right, although the pressure on LSC to limit political advocacy by its attorneys was certainly there in the 80’s undoubtedly things got really bad in the 90’s for those who were left after several waves of draconian cuts in funding, and shifts in program focus, occurred. Reagan just got the race to the bottom started, Clinton put it into full gear. Always admired those who stuck with it even in the face of ever increasingly crushing case loads, mixed signals and stagnant pay. Of course cutbacks in funding the courts didn’t help: there were never enough judges, clerks, courtrooms or jury pools to give even a tiny fraction of litigants their “day in court”.

  16. sunny129

    After this excellent article, my respect for Judge Rakoff has increased, more than ever. Being ‘forthright’ is NOT a quality for success in this Country either in Public or Private section!

    Hypocrisy, intellectual DISHONESTY and their integrity for sale are the hall marks of leadership either in Political or business fields!

    I am just disgusted and depressed about the status of Justice in AmericA!

  17. RMO

    Well since it looks like HRC will win the presidency I’m sure all this will stop being a problem soon enough. After she finishes putting all those progressives on the Supreme Court things will be wonderful again right?

  18. Sluggeaux

    What isn’t addressed by Judge Rakoff or directly by the commentariat is the rise of credentialism and the “Basket of Deplorables.”

    I’ve spent 32 years as a lawyer and 5 as a Judge pro tem in Small Claims Court, where “real” judges don’t deign to tread. The entire neo-liberal/libertarian orthodoxy is driven by the view that some are “deserving” of access to justice, but that most aren’t. I suspect that this view of the “Basket of Deplorables” is behind Scalia’s thinking in Concepcion, where the invalidation of mandatory arbitration agreements that the California Supreme Court’s Republican-appointed majority found to be “contracts of adhesion” was found to be too much of a burden on AT&T’s ability to engage in small cheats on huge numbers of customers.

    To the credientialled class, these small litigants don’t “deserve” to have their day in court or to form a class that might generate enough of a fee that a lawyer might take their case. They are simply there to pay rents over and over again, even if merely to smoke a cigarette on their stoop after work (an example from Matt Taibbi’s brilliant book The Divide).

    1. flora

      Thanks for this comment. The new/old theory of fitness to govern, fitness for citizenship, fitness to receive the full benefits of the state is as old as time. If you told the credentialed class they were practicing social Darwinism they would object that they aren’t racist, and therefore, not social Darwinists.

  19. The Infamous Oregon Lawhobbit

    @Sluggeaux:

    I’m not sure how you’re tarring libertarians with your bit about some people not “deserving” access to justice, though that may well be a neo-liberal concept. Not being one, I couldn’t say – but I *can* say that no libertarian (see “No true Scot”) would ever suggest that people don’t deserve access to justice. If that’s what is being claimed, than that person is hardly a libertarian.

    I’d also point out that here in Oregon we have “real” judges in small claims court and I am amused at the concept that a small claims court judge (pro tem or not) is not a “real” judge.

    For further insight on what the thoughtful courts out here are doing (and those are some of the ones I work in and with), check out http://www.courtinnovation.org/ and the whole “community court” concept. Not everybody gets denied access to justice… :-)

  20. David

    I used to think that our Institutions were efficient for themselves.
    Now I know our Institutions predatory towards all who come in contact with them.

  21. Curry 2.5 "49ers"

    “People don’t know what they like; they like what they know “I don’t think I’m Curry 2.5 “49ers” misrepresenting the past,” Van Tassel says Written and performed almost entirely by James, Regions of Light and Sound of God is nine flamboyantly spiritual songs wrapped in creamy electronics and set to funk and hip-hop beatsMeanwhile, the Labor Department’s Occupational Safety and Health Administration, one of the most detested bureaucracies in government, is busy trying to reinvent itself They want

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