A Legal Scholar Overreaches From The Bench

Overworked judges across America try to clear their dockets by encouraging plea bargains in criminal cases and settlements in civil disputes. It's unavoidable in a society that loves to litigate, and one that often prosecutes newly defined, or undefined, crimes.

Some thoughtful observers, such as Northern Illinois University's Jeffrey Parness and Yale Law School's Owen Fiss, have criticized the practice. They note, among other faults in this system, that when parties have greatly unequal resources, as is often the case with people accused of street crimes, pressures on the weaker party to settle can lead to unjust results.

U.S. District Judge Jed Rakoff seems to be persuaded. At least twice now, he has rejected settlements that he believed did not adequately serve the interests of the weaker party in the dispute. But in both cases, the weaker party was the United States of America, as represented by the Securities and Exchange Commission.

So who were the parties that threatened to fleece the globe's last remaining superpower in Rakoff's courtroom? Bank of America and Citigroup, two banking organizations that are regulated by, and not long ago required financial assistance from, that same superpower.

Rakoff rejected a proposed settlement between the SEC and Citigroup earlier this week. He declared in his decision that the proposed agreement was "neither fair, nor reasonable, nor adequate, nor in the public interest." (1) Rakoff scheduled a trial, over which he would preside, for next July. Rakoff rejected a similar settlement with Bank of America in 2009, later approving a revised agreement that was re-drafted to try to penalize the bank without hurting its shareholders.

Like some of the other settlement skeptics, Rakoff has first-rate academic credentials, including degrees from Swarthmore and Oxford, and a J.D. from Harvard Law. He has lectured at Columbia since 1988, and he has served as a federal judge in New York for 15 years.

But unlike full-time academics, who are at liberty to contemplate the legal world as they believe it should be, Rakoff's duties as a sitting judge require him to accept the division of litigious labor as it actually exists. Congress charged the SEC, not Rakoff and other judges, with balancing Citigroup's alleged offenses among the SEC's many other enforcement responsibilities.

Rakoff, whose field of view is limited to the case that is before him, may think the SEC and its attorneys have nothing more pressing to do next July than to present their case against Citigroup to him so he can know "the truth" that he found lacking in the settlement. But the SEC is not an arm of Rakoff's court. For good or ill, it decided that a $285 million check to the government would be adequate recompense for Citigroup's ostensible offenses in the run-up to the 2008 credit crisis. That check, after all, would come without the burden to the SEC of having to prove that Citigroup broke the law, or even that a law was broken, which is a statement that would be very much in dispute at a trial.

For its part, Citigroup concluded that it was worth $285 million to make the case go away, provided the payment is not accompanied by an admission of guilt that can end up costing the bank far more when other prospective plaintiffs step forward to use that admission against it. Rakoff called the $285 million "pocket change." He must have some very big pockets, or else he thinks that a punishment should be proportionate to the wealth of the offender, rather than proportionate to the offense.

"If the allegations of the Complaint are true, this is a very good deal for Citigroup; and, even if they are untrue, it is a mild and modest cost of doing business," Rakoff wrote. Regardless of entity size, I would find - and I think many people would find - an unwarranted $285 million penalty to be neither mild nor modest. Most of us, after all, can afford a $100 speeding ticket. But if a patrolman ticketed you for speeding when you actually were driving at the legal limit, would you just consider this a mild and modest cost of using the public highways?

Rakoff's rejection of this settlement was, simply, a gross overreach. He may disagree with the SEC's settlement policies, but if he wanted to do something about them, he should have asked President Bill Clinton to appoint him to the SEC (a job that has a five-year term) rather than accept the limited policymaking powers that come with a lifetime appointment to the federal bench.

There is a good chance that, as in the Bank of America case, the SEC and Citigroup will try to re-craft their settlement to satisfy Rakoff without exposing Citigroup to additional liability to third-party plaintiffs. Rakoff's desires notwithstanding, neither side is eager to go to trial in this case.

But the SEC could also decide to settle with Citigroup privately. The SEC would withdraw its suit, and Citigroup would pay the agreed penalty. The main difference would be that without a court injunction, the SEC could not claim to have reformed Citigroup's practices on pain of contempt; the monetary penalty would have to suffice. If Rakoff cannot be satisfied, or if other federal judges follow his lead in other cases, I would expect this avenue to become the settlement vehicle of choice.

And if the Citigroup case goes to trial, should Rakoff be the presiding judge? His rejection of the settlement leaves the impression that he has already concluded that Citigroup is guilty of something; he sees the trial's purpose as providing the specifics. I would expect Citigroup to move to have Rakoff recuse himself, and I would further expect Rakoff to refuse to do so. Not only would Citigroup face an unwanted trial before a hostile judge, but the SEC would face that equally unwanted trial in front of a judge whose decisions might well be reversed on appeal.

There are times when it is appropriate for a judge to consider the greater public interest. This is typically the case in class actions, in which a self-selected group of plaintiffs and their attorneys seek to represent other parties who are not present in the courtroom. Those absent parties rely on a judge's finding for redress, and it is only right for a judge to consider their needs.

There are also certain cases where a judge will appropriately find that something is "against public policy." For example, even if two parties agree privately to speculate on the length of someone's life, the court will not enforce that wager.

This is not such a case. Congress has charged the SEC with enforcing the country's securities laws. Citigroup, like all of us, is charged with obeying those laws. It is the SEC's job, not Rakoff's, to evaluate the magnitude of Citgroup's alleged offenses and the SEC's preparedness to prove those offenses in court.

Source:

1) Bloomberg, "Citigroup MBS Settlement Rejected by Judge Who Says Public Deserves Truth"

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The Case For Legal Immigration

The Democrats would have us believe that we need to give amnesty to every illegal immigrant in the United States. Isn't it past time for the Congress to debate the case for legal immigration.

Instead, they have once again begun the drum beat for comprehensive immigration reform. Seven Democrat Senators have joined together to reintroduce the reform bill that failed back in 2007. This appears to be an attempt by the Democrats to prop up their fading support in the Hispanic-American community.

Meanwhile a variation of the Dream Act was passed and signed by Governor Jerry Brown of California. Republicans in near-bankrupt California have complained that after cutting millions in state aid to higher education the state has mysteriously come up with an estimated $40 million in privately funding for the education of illegal immigrants. A similar bill failed in the U.S. Congress in 2010 and there is little chance for its success in 2011 since the Republican-controlled House will vote against it.

This post is not going to rehash the old arguments for various Democrat attempts to create wedge issues for the 2012 election. We've heard all of the sob stories before. Let's be clear: illegal immigration is illegal, even if it's done for the best or most innocent reasons. Crossing the borders of the United States illegally is at the least a misdemeanor and repeated crossings escalate to felonies. Stealing an identity is also a felony.

This brings us to the case for legal immigration into the United States. This country was founded and nurtured by immigrants. Even the native Americans are not really natives. Their ancestors walked across the Bering land bridge from Asia. Whether your ancestors came by boat or plane, they all made the conscious decision to come to America. Most had no intention of returning to their former homelands.

I grew up in Brooklyn, New York. As a young boy all of the candy stores, diners, pizza parlors and soda shoppes were owned by either Jewish or Italian immigrants. Many of the Jews had numbered tattoos on their forearms marking them as survivors of the worst travesty of World War II, the Nazi death camps. All of these people came here for two things: freedom and the opportunity for a better life. Their children mainly went to college and prospered, living the American dream.

In my twenties, many of the same establishments were owned by Greeks. They came for many of the same reasons and prospered in America. South Asians came to America and started buying gas stations and convenience stores. Many of their children moved on to a better life. Today, in central Virginia we have South Koreans owning the very same stores. Their children are engineers and medical students. (I actually know a family whose two children are just that.)

My paternal 2nd great grandfather was an Irish immigrant named Michael Patrick Murphy. He came to this country with his younger brother, Patrick in late 1862 because there was no future for them in their home country. Ten years later he was a defender of his country at Antietam and his brother was a cavalryman in the same Federal army. He later became a successful real estate broker and First Justice of the Peace in Westchester County, New York.

On the same side of the family my great grandfather, Antonino Bisecchia, arrived here from central Sicily with some tools and a dream. He was a boot maker and apparently a good one because by the 1910 census he owned his own shop. By 1916 his entire family Anglicized their names. My grandfather and one of his younger brothers went as far as changing their surnames to Billies. Three of Antonino grandson's served proudly in the United States armed forces. One actually participated in the liberation of his family's homeland, Sicily.

Instead of looking for political gotchas and electoral advantages, isn't it time to discuss the case for legal immigration. America is a big country. We have many economic problems that require solutions. Here are some suggestions.

Stop arguing about the border fence and finish it already. Guard it like we're guarding our own homes because we are.

Create a national identity card and implement it. Enough with the so-called privacy issues. We have Social Security cards, drivers' licences and other forms of identity.

Create tough penalties for companies and their mangers who knowingly hire illegals.

Make sure that our border patrol and the troops that we station have the authority and force to seal the border. Let the rest of the world know that we will no longer countenance illegal crossings.

Beef up the foreign workers program to allow an easier flow back and forth across our borders.

Rework the current quota system to better reflect the current reality.

And finally, here's the big one: gradually encourage illegals currently in the United States to return to their home countries with the promise that they can return when their number is called.

The time has arrived for the politicians in Washington to resolve this vexing national issue and make the case for legal immigration.

Richard Billies
http://allthingspoliticaltoday.com/
I am a writer and a blogger who lives in central Virginia. I usually blog about politics and current events.

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Iraq war logs: British legal threat as UN calls on Obama to look at torture claims - The Guardian

WikiLeaks founder Julian Assange defended the decision to release the Iraq logs at a press conference in London today. Photograph: Andrew Winning/Reuters

Britain's role in the alleged torture and unlawful killing of Iraqi civilians may be the subject of legal action following the publication of nearly 400,000 leaked military documents by the website WikiLeaks.

British lawyers said the classified US army field reports embroiled British as well as American forces in an alleged culture of abuse and extrajudicial killings in Iraq. Solicitor Phil Shiner of Public Interest Lawyers, appearing alongside WikiLeaks founder Julian Assange at a press conference in London today, said some of the deaths documented in the reports may have involved British forces and could now go through the UK courts.

The Iraq logs, Shiner said, indicated that UK as well as US commanders were likely to have ignored evidence of torture by the Iraqi authorities, contrary to international law. He said: "Some of these deaths will be in circumstances where the UK have a very clear legal responsibility. This may be because the Iraqis died while under the effective control of UK forces – under arrest, in vehicles, helicopters or detention facilities."

A number of the documents detail allegations of abuse by UK soldiers. Two reports dated 23 June 2008 describe claims by two Iraqi men – both Shias – that they were punched and kicked by unidentified British soldiers. Both men, according to the reports on the WikiLeaks website, suffered injuries that would have been consistent with their claims. There is no apparent record of an investigation of the allegations.

The Ministry of Defence condemned the actions of WikiLeaks, adding that it investigated any allegations made against British troops. It said: "There is no place for mistreatment of detainees. Any civilian casualty is a matter of deep regret and we take any incidents extremely seriously."

As Assange defended the decision to disclose the documents – saying it was of "immense importance" to reveal the truth about the conflict – the UN warned that if the logs pointed to clear violations of the UN convention against torture, Barack Obama's administration had a clear obligation to investigate them.

Manfred Novak, the UN special rapporteur on torture, said: "President Obama came to power with a moral agenda, saying we don't want to be seen to be a nation responsible for major human rights violations."

A failure to investigate credible claims of complicity in torture, Novak suggested, would be a failure of the Obama government to recognise US obligations under international law.

He said that states were prohibited from transferring detainees to other countries that could pose a risk to their personal safety. Experts who studied the documents said this principle appeared to have been breached.

Novak said it was not enough for Obama's administration to suggest the alleged crimes took place before it came to power. But the Pentagon dismissed Novak's concerns. It said: "We have fulfilled our obligations to report it [torture]."

The US Defence Department condemned the WikiLeaks release, describing the documents as raw observations by tactical units, which were only snapshots of tragic, mundane events. Assange said the snapshots of everyday events offered a glimpse at the "human scale" of the conflict. He told the news conference his motive for the disclosure was "about the truth".

Iraq Body Count, a private British-based group that has tracked the number of Iraqi civilians killed since the war began in 2003, said its analysis of the logs had raised its total of civilian deaths from 107,369 to more than 122,000. IBC, which worked with WikiLeaks, said the war logs showed there were more than 109,000 violent deaths between 2004 and the end of 2009. They included 66,081 civilians, 23,984 people classed as "enemy", 15,196 members of the Iraqi security forces, and 3,771 coalition troops.

John Sloboda of IBC said: "They [the documents] show the relentless grind of daily killings in almost every town or village in every province."

While many Iraqi civilians welcome the release of the documents, the country's prime minister accused WikiLeaks of an attempt to sabotage his re-election hopes. Nouri al-Maliki, a Shiite, has been fighting for more than seven months to keep his job after national elections in March failed to produce a clear winner.

The release was also roundly condemned by the American authorities. Hillary Clinton, the US secretary of state, attacked the disclosure of any classified information that threatened national security, or put at risk the lives of coalition forces or civilians. Pentagon press secretary Geoff Morrell called the release "shameful" and said it "could potentially undermine our nation's security".

However, Assange said the Pentagon allegations were "simply not true" and that he was confident Iraqis were not named in the documents. He said the documents, published in a heavily censored form, contained "no information that could be harmful to any individual".

Undeterred by the Pentagon's reaction, WikiLeaks promised today to publish 15,000 more documents about the war in Afghanistan.

Daniel Ellsberg, the former US military analyst who leaked documents in 1971 revealing how the American public was misled about the Vietnam war, made a surprise appearance at today's news conference and accused President Obama of attempting to stem the flow of military information.

Ellsberg, 79, also criticised Obama for playing a legal "experiment" with the arrest of US army whistleblower Bradley Manning, who is suspected of leaking a previous cache of war documents to WikiLeaks. Manning is in US military custody and faces a court martial next year.

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