“Rise, you sons of bitches”

Epigrues


Federal Judge Miles Lord preparing his closing statement on the Dalkon shield case (as reported by his secretary):

He meets me in chambers Saturday morning to work on the draft. I listen to his recording: “Rise, you sons of bitches….” The judge looks at me. “Maybe we should tone it down a bit”, I offer.

Judge Lord hammered away at the Dalkon shield defendants week after week and month after month. His behavior was highly unusual for a judge even then, and in the end he was formally reprimanded for “taking the plaintiff’s side”, etc. The final settlement gave the corporation’s victims a couple billion dollars, and the corporation declared bankruptcy. But the judge regretted not being able to shake loose the documents which would have made it possible to send the main corporate players to jail on criminal charges, and he regretted that the bankruptcy settlement allowed the corporate owners to keep hundreds of millions of dollars of blood money (just as the recent Sackler settlement did).

There’s no one around like that any more. For 40+ years the Federalist Society creeps have been broadcasting a fraudulent legal theory holding that judges must be apolitical and above the battle and just mechanically apply the rules, and right-thinking liberals have accepted this theory. (A theory that Federalist Society conservatives will themselves violate when convenient). This theory culminates with Scalia’s assertion that when an innocent man is executed, there is no legal problem as long as proper procedures had been followed.

Guys like Miles Lord were normal when I was growing up in Minnesota. Lord held statewide office more than once, and both Minnesota Senators (his good friends and political allies Eugene McCarthy and Hubert Humphrey) supported his appointment to the Federal court. You could always find someone around who thought the way he did, but that time is gone forever. This book literally made me cry.

One of his adversaries in this fight was Griffin Bell, the courtly southern gentleman who had served as Jimmy Carter’s Attorney General.

Lord had failed by his own standards. He really thought that there should be justice. But he came closer to justice than 99.9% of American judges before or since. American law is shit.

Everyone has to read this book.

More on law:

The Code of Capital

Contracts and property rights support free markets, but capitalism requires more – the legal privileging of some assets, which gives their holders a comparative advantage in accumulating wealth over others. Not all assets are equal; the ones with superior legal coding tend to be “more equal” than others.

Not the asset itself, but its legal coding, protects the asset holder from the headwinds of ordinary business cycles and gives his wealth longevity, therefore setting the stage for sustained inequality. Fortunes can be made or lost by altering an asset’s legal coding.

Today’s entrepreneurs no longer need to seek redress at home, and the fate of their wealth is no longer tied to the communities they have left behind. Instead, they can choose among many legal systems whichever one they prefer, and can enjoy its benefits even without physically moving themselves.

(All citations from Pistor.)

Liberalizing Lynching

But this subtlety of accommodating something that was anything but subtle reveals the dark side of constitutional flexibility. If it is the case that “Our Constitution is so simple and practical that it is possible always to meet extraordinary needs by changes of emphasis and arrangement without loss of essential form”, then what exactly is the point of having a Constitution?”

Daniel Kato’s book Liberalizing Lynching describes the way the Supreme Court allowed the Fourteenth Amendment (1866) to be suspended in the Southern states for the greater part of a century (1877-1965). Lynch-mob justice came to be accepted as normal in about a third of the US, and black Americans in the old Confederacy lost their voting rights, their right to the protection of the laws, their right to a fair trial, and their access to education.

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