The Law in Crisis
In case you did not know, May 1 is Law Day! Initiated by the American Bar Association (ABA), established by President Dwight D. Eisenhower and made official by Congress in 1961, Law Day was seen as a counterweight to May Day which celebrates the workers of the world within socialist and communist countries.
For Law Day, the ABA prepares materials and encourages events in communities and schools to give “us the opportunity to reflect upon the importance of equality under the law and of our nation’s guaranty of freedom for all.”
Local Bar Associations are urged to observe Law Day “to commemorate the rule of law, the judiciary and its place in American society.”
These are obviously important generalities. But unless they are tested in the realities of our times, they become important delusions. Bringing these legal values down their abstraction ladder provides a jolting reminder that our country is in the grips of chronic law-breaking from government officials, starting with the President, to managers of giant corporations whose dedicated goal is either to write the laws for themselves, via the corporate government in Washington and state capitals, or violate the laws with impunity due to their raw power and wealth.
One only needs to read the leading newspapers and see the regular documentation of the scofflaws that have turned the rule of law into an instrument of oppression directed at the weak and for the advantage of the strong. Whether in the pages of the New York Times, the Washington Post, the Wall Street Journal or in Associated Press stories, big corporations such as the banks, oil companies, and drug firms are shown to be, in the words of one concise prosecutor, “lying, cheating and stealing.”
A corporate crime wave is running amuck erroding people’s savings, pensions, jobs, health and safety! Corporatism is becoming the law of the land as enforcement budgets and political will shrink before the torrent of abuses.
Freedom is, partly, being left alone. But pollution doesn’t leave you alone, invasion of your privacy in an internet-credit/debit-economy does not leave you alone, rip-offs do not leave you alone.
Official lawlessness has reached new depths of decay. It is no longer just the usual graft of public officials, the violations of the prison-corporate complex, the arrogant greed of many government contractors, especially in the areas of militarism, natural resource grabs, corporate welfare subsidies or the various ways of bribing elected officials. Increasingly, presidents of the U.S. regularly violate our constitution, laws and treaties under the pretext of their own definition of national security and their own role as prosecutor, judge, jury and executioner.
After all, it was the ABA itself, in a rare and great expression of professional duty, which sent three reports in 2005-2006 to President George W. Bush concluding that he was violating the constitution. Then ABA President, Michael Greco, called those years a period of very dangerous legal crisis for our Republic.
Welcome to the encore under President Obama and his “rule of man” superseding the rule of law. His tenure has marked the most extreme and chronic violations of separations of powers, of seizing the exclusive war declaring power (Article 1, Section 8, Clause 11) from Congress, and in the case of the Libyan war, even dispensing with the authorization and appropriations authority of the Congress.
Freedom must include, as Marcus Cicero wrote, “participation in power.” Do people have any of that in the way our government makes major decisions? People can’t even have their day in court as long delays and court budget cutbacks nullify, in practice, constitutional rights for the accused.
Shut out as citizens, people are finding ever greater obstacles in gaining access to justice for their civil grievances. Former Supreme Court Justice, conservative Sandra Day O’Connor, has written eloquently on the absence of legal representation for tens of millions of low income Americans. She described the real effects this has on their lives, health, safety and property, as well as the basic problem of not being told of their rights.
The ABA knows all this and more about the failing rule of law, worsening inequality and shredded freedoms. But the largest organization of lawyers in the world is heavily populated by corporate attorneys whose clients in the plutocracy reward them generously.
As Wesley Smith and I noted in our book No Contest: Corporate Lawyers and the Perversion of Justice in America, they, as “officers of the court,” (as are all licensed attorneys) have difficulty dropping their attorney-corporate client hats and donning their “lawyer/professional” hats while on duty at the ABA’s far flung network of committees.
Given their embedded retainer/astigmatism, these big firm lawyers have aggressively fostered regimes over the people of one-sided fine print contracts (see faircontracts.org), weakened tort law for wrongfully injured persons and, most brazenly, even lobbied and litigated to place insuperable procedural obstructions before real peoples’ access to the courts. (See Arthur Miller’s Simplified Pleading, Meaningful Days in Court, and Trials on the Merits: Reflections on the Deformation of Federal Procedure .)
So, here is my advice to the ABA for future Law Days. Get a grip on the real crises in the law, its uses, misuses and hypocrisies. Convey that to the folks on Main Street so that lawyers and laborers, students and scholars can be given real reforms to ponder instead of deceptive illusions highlighted by annual presidential proclamations (See Obama’s Law Day Proclamation).
Ralph Nader is a consumer advocate, lawyer and author of Only the Super-Rich Can Save Us! He is a contributor to Hopeless: Barack Obama and the Politics of Illusion, published by AK Press. Hopeless is also available in a Kindle edition.