Supreme Court: No Right to Class Action

The gruel of law is getting ever thinner for poor consumers. The Supreme Court of the United States ruled on April 27, 2011, in AT&T Mobility LLC v. Conception et ux., that businesses (mostly corporations) can protect themselves from class action lawsuits and arbitration by simply including a clause to that effect in contracts they force consumers to sign.

Justices Scalia, Roberts, Kennedy, Thomas and Alito voted for AT&T, while Justices Breyer, Ginsburg, Sotomayor and Kagan sided with consumers on this issue (5 to 4 in favor of corporations v. real people).

What does this mean? It amounts to a license to steal, if by "steal" one means to take unjustly, rather than to take illegally.

Here's how it works. You want to buy a product or service, but Xample Corporation, like all corporations, requires you to sign a Supreme-Court approved contract to make the purchase. The contract says you cannot sue, you must arbitrate if you have a complaint, and you must arbitrate alone. You cannot join in a class action arbitration to spread the costs of an attorney over a large number of your fellow customers of the Xample Corporation.

Xample has your credit card, and you discover that Xample has charged it $30 more than you thought you were supposed to be charged. You complain to Xample, but they refuse to refund the $30. Your option under the gruel of law? You can call the police, but they will judge this a civil, contractual matter, because the criminals at Xample got incorporated before they over charged you.

You can fire bomb Xample corporate headquarters, but that seems extreme over $30, it does not get your money back, makes you a criminal (the police react differently when they get a call from Xample about trouble makers), and could get you killed.

You can report it to the Better Business Bureau, who will listen to you and then find Xample is in the right. When other people look up Xample at BBB, they will see that "all complaints have been resolved" and Xample gets their highest rating.

You can hire a lawyer. Hundreds of thousands of dollars in legal expenses later, you might get your $30 back. On the other hand, you might lose in court (after all, its the same court system headed by the Supremes), and be ordered to pay for Xample's army of lawyers, which almost certainly include former DA's who should have protected you in the first place.

Or you can eat it. 99.9% of consumers will eat it. A smallish local business that rips off 1000 customers this way will net $30,000. They might be held in check by the idea of 1000 local people angry at them.

But suppose you are a cellular telephone company and you did this to say, 10 million people during the course of a fiscal year (maybe tucking in $3 or so per monthly bill). That is a tidy $300 million in profits handed to you by Scalia, Roberts, Kennedy, Thomas and Alito. Send the boys a gift basket. Xample stockholders will be happy, and the CEO will get a $45 million bonus for his efforts.

What should be the rule of law is really the gruel of law, and it is getting thinner all the time.

So be careful what you buy, and what contracts you sign, and if you want the full protection of the Law, and something better than gruel to eat, be sure to be born into the ruling class of these United States of America.

See also:

Supreme Court Allows Contracts that Prohibit Class-Action Arbitration [by Adam Liptak, New York Times]

Coffin Ships, Deregulation, and Al Gore

Samuel Plimsoll was born in Bristol, England, on February 10, 1824. He became a businessman, but of the sort who cared about his fellow humans. In his business, the coal trade, there was a dark secret. Ship owners found they could maximize their profits on their oldest vessels by stopping maintenance, overloading them with goods, using fewer sailors than was safe, and over-insuring them. A ship that made its voyage was profitable. A ship that sank was profitable too, because of the insurance payment. Never mind the dead sailors. Such ships were known as coffin or death ships. Plimsoll pleaded with the British Parliament to outlaw these practices. Parliament did nothing. Plimsoll ran for and was seated in Parliament in 1868. It took him until 1876 to get his Merchant Shipping Act passed. He is known to history as "the sailor's friend."

Regulation good, de-regulation bad? Democrats good, Republicans bad? Not so fast.

Regulations can be bad, often depending on your point of view. The devil is in the details, and the details, all too often in modern times, are written by corporate lawyers. Laws and regulations about business practices are yet more grist for the gruel of law.

Regulations can make people safer, but they can also kill beneficial industries by failing to take into account that a degree of danger is inherent when any human wakes up in the morning, and to some extent even when they sleep at night. Many regulations, however, are not about safety, but about some other government set goal. Regulating fishing, for instance, is (supposed to be) about preserving enough breeding fish each year so that fishing will be just as good next year, or ten years from now. Thus they should benefit business and workers alike.

Laws and regulations, like cholesterol, tend to accumulate and choke the life out of things at times, even if they are well-intentioned. As a public school board member in California I saw this effect. Over the decades whenever something went wrong at a public school the state legislature, or the office of education, or even the Federal government, wrote a law (usually added to the Education Code) in response. Often, to ensure compliance, some paperwork was added: an annual certification that the school complied with the regulation. Over the decades, to ensure compliance, which is necessary to get funding, the ratio of administrative support staff to teachers grew.

I have no problem with the idea of periodically purging unnecessary regulations. The problem is, who picks? Too often, business lobbyists choose to leave in regulations that help them fend off ruinous competition, while getting rid of regulations that protect workers, consumers, and the environment.

Which brings us to Al Gore, former Vice-president of the United States of America, now known as a flaming liberal because of his anti-global warming posturing. For no particular reason I started reading Alexander Cockburn and Jeffrey St. Clair's Al Gore: A User's Manual, printed back in 2000. The section I am in is how Gore led the deregulators when he was vice-president. He pushed the Clinton administration for REGO, his reinventing government program. It would please any Tea Party activist or corporate Republican. It was sold to the public as a waste-eliminator, but in fact opened the doors of government to business predators, while gutting departments that did useful public service [pages 172-187]. Gore topped this with his attack on the federal welfare system [pages 188-209]. Gore's ability to completely alienate any Democratic Party politician or voter who still believed in the New Deal or Great Society was the reason he lost his campaign to become President in 2000.

But people have short memories. Particularly, apparently, do voters. And journalists. So raise a glass to Samuel Plimsoll, one of the rare good politicians.

Remember, too, the glory that was Imperialist America, but don't expect the paychecks to be as good during our post-imperial decline and fall.

Speedy Trials and the Gruel of Law

What would the Constitutional Fundamentalists at the Tea Party think?

On July 12, 2010, Judge Lewis A. Kaplan of the Southern District of New York United States District Court in Manhattan ruled that suspects can be held over six years and still get a speedy trial.

You may remember the U.S. Constitution has a Sixth (VI) Amendment stating: "In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial."

Apparently Judge Kaplan can't read at grade level, or thinks he is not obligated by the U.S. Constitution, or is just plain corrupt. Or maybe he believes in "judge made law." He appears to have set a new standard for speedy trial. "Speedy" does not mean in a short period of time. It is all about the alleged criminal's ability to defend himself. If that does not decrease in the pre-trial period of time, then the trial is speedy. Even if it takes six years to get around to it. Or, as Kaplan wrote in his opinion "There is no persuasive evidence that the delay in this prosecution has impaired Ghailani’s ability to defend himself in any respect or significantly prejudiced him in any other way pertinent to the speedy trial analysis."

Get prepared, America. Forget the assumption you are not guilty until proven to be. You can be held in jail for six years. And apparently interogated (aka tortured) by the CIA. Then, you get a trial.

The suspect, Ahmed Khalfan Ghailani, is accused of having some role in bombing American embassies in Kenya and Tanzania in 1998. Maybe he deserved a long prison sentence. On the other hand, the case is one of many that brings to the forefront the United States government's extending of its legal arm to foreign soils. Should not Mr. Ghailani be tried in Kenya and Tanzania? Or perhaps President Obama and Secretary of State Clinton should be tried in Afghanistan for all the Afghans they have killed?

This is how liberty is engineered into oblivion. The government picks a case where the alleged criminal will have no public sympathy. It uses collaborating judges like Kaplan, and often arranges for a weak defense attorney for the victim. Maybe the ruling is appealed to the U.S. Supreme Court, where if upheld it sets a precedent for the entire nation.

Once the precedent is set, the old interpretation of the word "speedy" is erased from the U.S. Constitution. It is replaced by the right of the government to delay trial as long as a judge can be persuaded that the defendant has not had his defense capability impaired. In the case of the majority of poor people, they have little ability to defend themselves as it is, so there can't be much erosion.

Or, again quoting Kaplan: "The Sixth Amendment guarantees "a speedy ... trial," but it nowhere defines speedy."

I did not know the U.S. Constitution included a dictionary. Most of the words in the Constitution are not defined in the Constitution. So words means whatever judges say they mean?

Today a guy who is labeled an Islamic terrorist. Tomorrow, a Tea Party or militia guy, or perhaps a Socialist or environmentalist trouble maker. Maybe just a whistleblower. Once a precedent is set, whoever controls the apparatus of state and judicial power has a mighty weapon against their enemies.

Again, we have a good illustration that we are subject to the Gruel of Law. Rich people will doubtless continue to get speedy trials, and acquittals if there is any doubt as to their guilt. The poor, and especially those who oppose the U.S. government's attempt to boss everyone in the world around, will get whatever swill American judges dish out.

See also United States of America vs. Ahmed Khalfan Ghailani

Envision Spokane and the Gruel of Law

Thursday night, November 19th, Chad Nicholson of Envision Spokane spoke to a group of about 25 citizens near the Garcia River and Point Arena, California. The audience came from as far south as Sea Ranch and as far north as Fort Bragg. The event was organized by Jan Edwards and Joel Chaban, and hosted by Anne Kessler.

Chad was a very good speaker, injecting just enough humor into his report on a political subject to keep the audience on its toes. Envision Spokane put together an extensive amendment to the charter of the City of Spokane (Washington State), which was put on the ballot as Proposition 4. The amendment amounts to a bill of rights. People's rights listed include the right to a locally-based economy; to affordable preventative healthcare; to safe and affordable housing; to determine the futures of their neighborhoods; to be paid prevailing wages; to and unionize. In addition "the natural environment has the right to exist and flourish." To ensure the rights of the citizens and of nature, "Corporations and other business entities shall not be deemed to possess any legal rights, privileges, powers, or protections which would enable those entities to avoid the enforcement of these rights, or which would enable them to nullify these rights."

Well, that is a very big dose of reform in one package. The Envision Spokane organization grew largely out of the frustrations of neighborhood groups. In Spokane the city has set up a neighborhood structure. The neighbors are supposed to get together and decide what they think about things like rezoning real estate. If they agree with the schemes of developers and the City Council, it looks very nice and democratic. But if they disagree, the City Council listens politely and does whatever the developers want, probably after extracting political donations if not bribes. This happened enough times that many of the neighborhood council people wanted to try something different. They joined together with a number of other advocacy groups, notably low-cost housing advocates and unions. They spent years getting input from citizens to write Proposition 4.

As you might expect, business interests poured vast sums of money into defeating Prop 4. They also used scare tactics, claiming taxes would rise and the economy would collapse if Proposition 4 passed. It failed, garnering only about a quarter of the vote.

Yet Chad did not seem discouraged. Given that it was new and the array of power attacking it, he felt a quarter of the voters was pretty substantial.

Because there were some pretty sophisticated people in the audience, including former Congressman Dan Hamburg and other local activists, much of the question and answer discussion concerned what I like to call the Gruel of Law [See also The Gruel of Law (September 12, 2009)]. In real life the Rule of Law is that the rich get legal caviar, the poor get legal gruel. At the scale of trying to reform something like a city charter, you see this in the different realities confronting say, the real estate industry trying to amend the charter and ordinary citizens trying to amend the charter.

One of the big arguments against Prop 4 and similar citizen initiatives is that they will simply be knocked down by the courts even if they are passed. I hear this all the time; often it is sufficient to keep good law from even being submitted by the citizens. In Spokane the City Council tried to keep Prop. 4 off the ballot. Feeling the could not, instead they put two bogus Props on the ballot ahead of Prop 4, asking citizens it they would be willing to pay new, higher taxes to finance the measure, even though no new taxes would be required for Prop 4.

We know that the Supreme Court of the United States backs the doctrine of Corporate Personhood and therefore will not allow citizens to take away "rights" of corporations in Spokane or anywhere else. That is a major cornerstone of the Gruel of Law. But the courts seldom need to deal in absolutes. They pick and choose from a large number of variables, including various rights, to get the outcome that (almost always) favors the ruling class, if any ruling class interest is affected by a case. Thus you have the right to private property, and the right to free speech; which one is the trump card in a case involving both? If you give nature rights, can you be explicit when they trump the rights of developers?

Law, in the United States, is a battlefield where the ruling class is eternally strengthening its base areas and trying to mop up little remnants of justice for the "little people." True, we little people win from time to time, often after great effort. The rich lounge in their castles, making no effort except perhaps diverting some money a tiny fraction of their money to pay politicians and lawyers, and let's face it, judges to do their work for them.

On the other hand, as Michael Moore reminds us in Capitalism: A Love Story, the ruling class still allows us to vote. That is their soft underbelly. But as they say in my profession, garbage in, garbage out: as long as they control the information the voters receive (and even the information that elected officials receive), our votes might as well be their votes.

Envision Spokane's efforts impressed me as a way to reclaim the voting power of the ordinary citizen. I hope they keep up their efforts.

The Gruel of Law (on the Rule of Law)

The "rule of law" is usually portrayed in the United States of America (and in Great Britain and many other nations) as a lofty ideal, to be treated with the reverence due the Constitution, Democracy, the Founding Fathers, and the automobile. Some of us, however, may want to look at what ideas we are being fed before let them poison our lives.

The rule of law in the United States does not feed all people equally. The rule of law for wealthy Americans is a smorgasbord of delights. For the upper middle class it has some variety and is wholesome enough as long there is no attempt to sneak over to the table of the rich. For working and middle class families, it is poor fare indeed. At the lower end of the economy, where the "middle class" starts looking suspiciously like slightly modernized serfs, what you get fed as the rule of law is a thin gruel, with nasty tidbits floating in it.

I'll call it the gruel of law. Gruel is an old-fashioned word. My dictionary gives its primary as: "thin easily digested porridge," essentially oat, barley, or corn meal cooked in water. As a secondary British meaning we have "punishment." Grueling means "exhausting." Meals of gruel are associated with prisons, orphanages, work camps, and the kind of pay that leads to the slow starvation of working families.

Ah, but the rule of law is supposed a fine thing, because it is opposed the the "rule of persons," (and lawlessness, which I won't discuss here). The rule of persons refers to systems of government where officials have the authority to make decisions without reference to written laws. So that a policeman might choose to arrest one person for almost any action, while other people are allowed to act with impunity. Taxes might be waved for members of a senior official's extended family; government land might be sold to some speculators for pennies, while not being for sale to others (like indigenous people who once lived there) at any price.

The rule of persons is not, however, always a bad thing. The Chinese, over a long period of time, worked out an elaborate system that tried to ensure that the rule of persons was carried out only by persons who were just in their judgments. However, for the purposes of this essay, I will allow that the rule of persons has usually proved to be an undesirable system of government.

Still, we should take a look at the gruel we are being served. In American law the gruel comes it two big varieties. One is called criminal law, the other civil. Don't be fooled by the names of the gruel. What is really meant by this division is that the government pays for lawyers to prosecute, and police (with jails and electric chairs) to enforce the criminal law, or criminal gruel. Civil law, or gruel, is brought before government courts, but each party must pay for its own lawyers.

Take a currently talked about example where the gruel is about to be improved. Consider an insurance company that accepts health insurance payments from a well person for a period of years, promising to pay for medical services when the insured becomes sick. Instead, when the insured needs an expensive or chronic therapy, the insurer "drops the policy." What has happened here is fraud, a form of theft. But it does no good to call the police, or prosecutors. They will say this is a bad thing, but what you have is a contract problem. Civil gruel. You must hire an attorney to make the insurer pay you what is due. And the courts may rule that the insurer did nothing wrong in taking tens or hundreds of thousands of dollars from you, and in returning insuring you as long as you did not get sick.

But if the same amount of money were stolen in only a slightly different fashion, by different persons, it would be theft. Suppose, for instance, that you had put the equivalent of the medical insurance payments in a safe. When you finally need the cash, and are counting it out to take to the hospital to pay your bills, a crooked relative steals the money. Now, strangely, you can call the police, and your cousin will probably be sent to jail if you press charges. At no expense to you; you won't need to hire the lawyer.

In this example (and I could give a thousand more) the gruel of law looks astonishingly similar to the gruel of people. Why is the insurance company treated as a privileged person?

I am not just talking about the kinds of defects in the system that at times send an innocent man to jail and set a guilty man free. People lie, and the crime detection process is fallible. Even in the most just, least corrupt systems errors will be made.

The gruel of law is not errors in a basically just system. It is a system constructed to be unjust. It is a set of sieves that sifts the good things in life away from some people and piles those things up for the rich people to hoard.

The gruel of law has both evolved and been designed, in its large and small scales, over the centuries to suit the needs of the law-giving class. The law-giving class corresponds closely, most of the time, to those who are able to fund political campaigns, lobbyists, and lawyers. In America anyone can play, but it is rare that a political candidate can convince a hundred thousand people to donate $10 each to his campaign so that he can defeat a candidate who really represents a hundred people who gladly give $10,000 each to their candidate. For the rich political contributions are an investment. They like the rule of law. They are happy to pay for laws that work to their advantage. And if the rule of law happens to go against them, they can use their wealth for a tempory bit of rule of persons. The rich are only in danger from the law when they are fighting with other rich people.

Occasionally ordinary people get tired of the gruel they are being served and revolt. Women were once served different gruel than men. Now they are served the same gruel, which has worked out nicely for rich and upper-middle-class women. For middle class and poor women, it has simply allowed them to fight over the poor gruel served to the men of their class. The same has come true for African-Americans in the last half-century.

Some people and organizations (Ralph Nader, etc.) work tirelessly to improve the gruel of law served to the lower classes in the United States. In my lifetime I have seen no overall improvement in the gruel. For every reformer there are a hundred paid lobbyists seeking better gruel for their employers, which means worse gruel for the rest of us.

Before suggesting how to change the gruel of law to something more resembling justice for all, we need to understand both the law and the system that produces it better. While not the main focus of this Natural Liberation blog, it is an important issue which I will return to in future essays.

More:

The standard rap on the rule of law at Wikipedia