Perhaps we are a litigious people – everyone wants to sue everyone else – but of course hardly anyone does. It’s just too much bother, and it’s damned expensive. And if you deal with your bank or your healthcare plan, or your phone company or cable provider or whatnot, or with most any large employer, when you signed up you probably signed an arbitration agreement, whether you realized it or not. You agreed that should you think you’ve been screwed, and know you can prove it, you will allow an impartial arbitrator, chosen by the other party, decide the matter – you’ve agreed not to sue. That hardly seems fair, but that’s how things are these days, as, more and more, no one wants to deal with you unless you promise not to sue them. And what are you going to do – go without health insurance? You’re stuck, and the only way to override these arbitration agreements is to allege, and prove, criminal behavior – that these folks clearly broke some actual law or another. But most disputes that might arise are not that – they’re just disagreements about billing or whatever. So this isn’t all that bad. It keeps a lot of petty crap out of the court system, which is clogged and underfunded and limping along as it is.
But this erodes faith in the whole justice system in some ways, as everyone comes to see the justice system as something that’s only available to the big boys, those with deep pockets, and maybe a judge in one of those pockets. Everything else, perhaps so important to you personally, is petty and unimportant, really. And the conservative right – the business guys, not the social-family-religious right perpetually apoplectic about abortion and gays and Hollywood movies and smelly Mexicans – has long argued that all the problems with our healthcare system can be fixed by tort reform, making it legally impossible to sue doctors for malpractice, or hospitals for killing your child when they screwed up and administered the wrong medicine. That would bring the cost of healthcare down, immediately. And they have long argued that American businesses would thrive again if consumers were forbidden, by law, from filing frivolous lawsuits – you know, about defective products that end up killing people and that sort of thing. This has been a longstanding and somewhat quixotic quest – people do, for some reason, want justice – so most of their talk for the last decade or two is about capping jury awards. Sure, that shiny new family sedan suddenly and for no reason blew up and killed your wife and kids – but a few thousand dollars should be enough for you. Having to pay multimillion dollar judgments can kill a fine corporation, and maybe kill a whole industry, and thus bring business in America to a halt – and no one wants that. Everyone wants America to be a thriving place, with commerce humming along and prosperity for all. So there’s a reason these guys protect big oil and big tobacco and the giant pharmaceutical corporations – there’s a principle at stake here. Maybe they do wrong now and then, and make mistakes, and stretch the truth now and then about the nature of their products or services – but that sort of thing happens and you don’t kill a corporation or a whole industry over it. Hell, do that and no one would do any business. They’d be afraid of their own shadow.
And tort lawyers are the enemy. Those are the guys who offer the tear-jerking sad stories that have juries awarding twenty-five million dollars a pop to some poor jerk whose kid got her foot caught in a defective pool drain in the back yard. Actually that was one of John Edward’s famous cases – the three-year-old girl was disemboweled. And yes, the right has always hated him – for his career before he got into politics, out there ruining America, by making it impossible for business to, well, do business.
And given all this it’s no wonder we only pay attention to the big court cases – everything else is petty or mysterious, and probably shouldn’t be heard in court anyway, or so we’ve been told. And that’s what makes the case of John Edwards, in court as a defendant of all things, so odd:
John Edwards’ campaign-finance fraud case ended in a mistrial Thursday when jurors acquitted him of one of six charges but were unable to decide whether he misused money from two wealthy donors to hide his pregnant mistress while he ran for president.
Minutes after the mistrial was declared, Edwards delivered a confession and an apology on the courthouse steps with his family at his side.
“While I do not believe I ever did anything illegal … I’ve done an awful, awful lot that was wrong,” he said.
The jury couldn’t decide if he did anything wrong and he got all sleazy-maudlin and everyone went home, and that was that:
The eight men and four women deliberated for more than 50 hours over nine days before telling U.S. District Judge Catherine Eagles on Thursday afternoon that they were deadlocked on five of the charges. Just 20 minutes after the judge asked them to try to reach unanimous verdicts, the jurors returned to report they remained hopelessly deadlocked.
And this will probably go no further:
The Justice Department must now decide whether to retry Edwards on the five counts. A spokeswoman said the department had no immediate comment. But one law-enforcement official, speaking on condition of anonymity, said federal prosecutors are unlikely to retry the case.
Edwards, 58, the 2004 Democratic vice-presidential nominee, was charged with “knowingly and willingly” accepting illegal campaign contributions from two wealthy donors to help hide the affair and save his campaign for the 2008 nomination from collapsing in scandal. He had faced up to 30 years in jail and $1.5 million in fines if convicted on all counts.
Edwards’ lawyers conceded he was a philandering husband who had lied to his cancer-stricken wife and to voters. But they said the payments were private gifts intended to hide the affair – and Frances Quinn Hunter, his daughter with Rielle Hunter – from Elizabeth Edwards, who was in failing health. She died of cancer in December 2010.
So it was sensational, and tawdry, and pathetic – and useless. It’s no wonder people see the justice system as something remote and surreal. And Slate’s Emily Bazelon argues that the trial was really about the wrong thing:
Loathsome but not a criminal – that’s the glorious tagline John Edwards can write for his obituary now that the jury has found him not guilty on one of the six counts of violating campaign finance law that he faced, and hung on the rest. I suppose I should cheer the sputtering end to this trial, since charging Edwards always meant stretching the law. Yet somewhere along the way, I lost my appetite for railing against overzealous prosecutors. Not because Edwards behaved like an utter cad, though he did. But because in this election season in which politics is awash in money as never before, it was a small relief to imagine that someone, somewhere, could still get smacked for crossing the legal line.
And maybe he did cross the line:
Edwards was accused of violating campaign finance laws by taking nearly one million dollars from two rich pals, Bunny Mellon and Fred Baron, to keep his mistress, Rielle Hunter, from going off the reservation. Much of the money was spent after he dropped out of the race to be the Democratic candidate for president, but some of it came in while he was still in the running – Hunter, for example, moved into a home Mellon’s funds paid for in the fall of 2007 and got a BMW and credit cards. She also flew on Baron’s private jet in December to escape the wrath of Elizabeth Edwards, who by then knew about the affair. John Edwards dropped out of the presidential race in January 2008, and, as we all now know, he and Hunter had a baby a month later.
But were the gifts campaign donations, miles above the individual contribution limit? Maybe, maybe not:
OK, fine, Mellon and Baron were friends, not donors – or friends as well as donors – and that was good enough for the FEC. An agency audit, issued after Edwards was indicted, treated the money Mellon and Baron gave as though it were for Edwards’ personal use, rather than requiring him to report it as a contribution. This meant that at the trial the prosecutors were forced to argue, “Whatever the FEC determined is not relevant to the criminal charges.” Never mind that they were talking about a fellow federal agency’s determination on exactly the point crucial to deciding Edwards’ guilt.
Bazelon finds this just absurd:
I am so frustrated by the mockery that is campaign finance law in the wake of Citizens United and a key lower-court opinion that followed it that I’m having trouble remembering why we want to ensure that everyone can contribute freely to every campaign. Super PACs, Sheldon Adelson, Donald Trump – it’s these images that loom large at the moment, not disenfranchised voters trying to write their checks for $50. Against that backdrop, it is just hard to care about sparing John Edwards from strict enforcement of a confusing law. Maybe the FEC is wrong to exempt gifts from being campaign donations because of a past pattern of giving. Maybe we should have an individual contribution limit and stick to it.
On the other hand, when people and corporations and unions are spending hundreds of millions on elections through super PACs and issue-advocacy groups, that sounds quaint. So if I’m not cheering for John Edwards and his defense, I’m also not eager for the unlikely possibility that the prosecution will try again to convict him of the remaining five counts. He has suffered enough for our campaign finance sins. It’s time to move on from 2007 and his $900,000, and worry about the hundreds of millions pouring into this November’s election instead.
With the news of Karl Rove crowing about how he intends to spend $1 billion in untraceable funds to beat Obama in 2012, it looks particularly ridiculous for the government to waste resources on a showboat prosecution. Even the conservative news magazine National Review had to denounce the prosecution as a waste. John Edwards has been disgraced, humiliated and run out of politics. Bringing the full force of the law down on him on top of it all just seems greedy.
And Digby (Heather Digby Parton) piles on:
In my opinion it was a witch trial, done more to exorcise society’s demons than to serve as a rational application of the law. Edwards behaved abominably and his life is ruined because of it. But I long ago stopped being shocked by people who, in the midst of personal crisis, behave with a lack of character and morals. I’m afraid that at this stage in my life I’ve seen too much of it to be so very, very sure that I can sit in judgment from afar.
But there’s more to it:
Arcane federal election law is flouted every single day in ways that seriously threaten our democracy; using it merely to further humiliate an unpopular cad is a serious misuse of resources. But I suppose we have to give credit where credit is due. Wall Street gamblers and high flying bankers have so far been smart enough not to do the one thing that can get important, high-profile, white males in trouble with the law: get caught paying for unauthorized sex.
Other than that, it’s clear that pretty much anything goes.
No one has faith in the law.
But sometimes things do work out. And it seems the Defense of Marriage Act (DOMA) is on its last legs. As you recall, that was signed into law by Bill Clinton – the states could define marriage anyway they liked, but the federal government, by law, would only recognize marriages between a man and woman, no matter what any flaky state did – which had all sorts of implications in terms of tax law and personal rights. The Obama administration decided the thing was clearly unconstitutional – just in terms of basic rights – and they would make no effort to defend it in court when it would surely be challenged. The right was appalled and there was a bit of talk about impeaching Obama over this – his job description involves defending and upholding the law after all. But it turns out that Obama, who taught constitutional law at the University of Chicago, got it right:
A federal appeals court ruled unanimously Thursday that the federal law declaring marriage to be a union solely between a man and a woman discriminates against married same-sex couples by denying them the same benefits afforded to heterosexual couples – a ruling that could set the stage for the Supreme Court to review the issue as early as next year.
The decision, from the United States Court of Appeals for the First Circuit, in Boston, will have no immediate effect because the court stayed its ruling in anticipation of an appeal to the Supreme Court. Legal experts said the justices could agree as early as this fall to hear the case and arguments could come next spring, making it the first case involving the same-sex marriage law to be decided by the court.
While the case dealt narrowly with the question of federal benefits for same-sex couples – not with the legality of same-sex marriage itself – many scholars said it was a significant moment in civil rights.
“It is another illustration of the growing consensus of the judiciary about the unconstitutionality of discriminating against gays and lesbians in the realm of marriage,” said Geoffrey Stone, a professor of law at the University of Chicago.
The law may be remote and surreal at times, but sometimes it’s useful. And Ian Millhiser in this item comments on the key judge in this matter:
Boudin goes to great pains to deny that a law that systematically excludes gay couples from the dignity of full marriage rights is motivated by “hostility to homosexuality.” … Ultimately, however, Boudin’s opinion is a cause for optimism. The last federal appeals judge to strike a blow for marriage equality, Judge Stephen Reinhardt, is a well-known liberal crusader with little influence over the conservative justices. Boudin, by contrast, is a Republican appointee who’s clearly still uncomfortable with Constitution’s promise of equality throughout America. And yet he just published an opinion striking down the Defense of Marriage Act. This bodes well for gay couples when DOMA comes before the Supreme Court.
And Scott Lemieux likes this slow and steady rather conservative approach:
Like Judge Reinhardt’s opinion ruling Proposition 8 unconstitutional, Boudin’s opinion tries to work within the framework of existing Supreme Court precedent rather than pushing the envelope. But this is more likely to appeal to a Supreme Court with a conservative median vote, and the fact that it comes from a respected Republican jurist is even more promising. The chances of DOMA surviving its date with the Supreme Court have just gotten worse, and for people who care about justice and equality this is unequivocally good news.
And the gay activist, Dan Savage, imagines some interesting consequences:
You would think that opponents of marriage equality in states like, say, North Carolina (which recently passed an anti-gay marriage amendment to its state constitution), or Kansas (where loving Christian ministers are calling on the federal government to execute gay men and lesbians), would be delighted at the prospect of a DOMA stripped of Section Three. A Section-Three-free DOMA would create a huge incentive for same-sex couples to leave shitholes like Kansas and Mississippi for saner places like Massachusetts, New York, Iowa, Connecticut, Vermont, New Hampshire, and Washington D.C. – and soon (fingers crossed) Washington state, Maine, and Maryland.
Well, you have to read the whole thing for the details, but this was a day that, in spite of that absurd Edwards trial, the courts weren’t entirely useless.
But that wasn’t all:
A federal judge on Thursday blocked a controversial Florida law signed by Gov. Rick Scott that sharply curtailed third-party groups’ ability to register voters and forced many of them to discontinue their voter-registration drives.
In a 27-page ruling, U.S. District Judge Robert L. Hinkle said there was little justification for a “harsh and impractical” 48-hour deadline for organizations to deliver applications to voter-registration offices. Granting a preliminary injunction, Hinkle said such restrictions “effectively prohibit an organization from mailing applications in” and “impose burdensome record-keeping and reporting requirements that serve little if any purpose.”
“The short deadline, coupled with substantial penalties for noncompliance, make voter-registration drives a risky business,” Hinkle wrote. “If the goal is to discourage voter-registration drives and thus also to make it harder for new voters to register, the 48-hour deadline may succeed. But if the goal is to further the state’s legitimate interests without unduly burdening the rights of voters and voter registration organizations, 48 hours is a bad choice.”
So the little old ladies of the League of Women voters can continue to do their thing – trying to get as many people as possible to vote, so everyone has a say in things. And Rick Scott is very unhappy – that means more of the elderly and the poor and those black and brown people will be voting – far too many of them likely to vote for Democrats. Rats! Foiled again!
And then there was Scott’s decision to purge the state’s voter rolls of eligible voters – lists of tens of thousands of people who were told they could never vote again, unless the showed up at a court hearing where they could attempt to prove they were really citizens – a burden those elderly and the poor and black and brown people would surely not want to face, as we’re talking time and money, and perhaps finding a lawyer to represent them in the hearing. You may have voted all your life, but if you had a funny-sounding last name this was just not worth the effort. That Scott fellow is pretty clever. Sure the lists he used were flawed – that elderly Brooklyn-born WWII hero with the Bronze Star and Purple Heart was pretty miffed when he was told he could never vote again unless he showed up for a hearing, with the proper notarized documentation. But it was a brilliant political move that had every Republican in the country smiling ear-to-ear.
But it turns out that it was illegal:
The Justice Department sent a letter to Florida Secretary of State Ken Detzner Thursday evening demanding the state cease purging its voting rolls because the process it is using has not been cleared under the Voting Rights Act…
DOJ also said that Florida’s voter roll purge violated the National Voter Registration Act, which stipulates that voter roll maintenance should have ceased 90 days before an election, which given Florida’s August 14 primary, meant May 16.
Oops. But then a number of local election commissions were already refusing to purge their voter rolls using the Scott lists anyway – they smelled a rat. So the Department of Justice was a bit late on this, but at least members of those local election commissions won’t have to worry about being taken out back and shot or anything. And Rick Scott was unhappy times two, all in one day.
And yes, all this happened in one day – the surreal Edwards acquittal on one count and the mistrial on all the others, the Defense of Marriage Act declared unconstitutional by a panel of Republican-appointed judges, the injunction against Rick’s Scott’s move to end voter registration and then the Department of Justice telling him he simply could not purge potentially pesky voters from the rolls. Except for the Edwards thing, maybe the law and the courts aren’t useless after all.
But you still can’t sue your health plan. You did sign that waiver.