Law as a Political Instrument

New Round of Court Cases Raises an Old Fear

WASHINGTON, D.C., JUNE 29, 2002 ( Recent court decisions in the United States have rekindled arguments over the judicial system and the use of the legal process as a remedy for social ills.

Helping to set the stage for those decisions was a move by lawyers last week to initiate proceedings in a $51 billion suit against Swiss banks for their support of the apartheid regime in South Africa.

The action is led by Ed Fagan, the American lawyer who won $1.25 billion compensation for Holocaust survivors, the London Times reported June 18. His latest claim was lodged in a Manhattan courtroom against the Swiss banks UBS and Credit Suisse.

Documents submitted to the court allege that the banks helped keep the white regime in power by rescheduling its debts when other banks had already started to pull out of the country after the imposition of U.N. trade sanctions. Fagan has filed an identical claim against the two banks in a Zurich courtroom.

Reuters on June 26 reported the Swiss government’s first official reaction to the lawsuit. “The government believes that this kind of class-action suit before a U.S. court is not the right way to resolve the political problems of other countries,” said government spokesman Achille Casanova.

Another recent legal action, reaching further back in history, seeks compensation for slavery in the United States. The petition for some form of monetary reparation goes back more than three decades, according to an analysis published April 4 in the Boston Globe. Days earlier the drive received new momentum when three class-action lawsuits were filed. More suits are expected in the coming months.

Supporters of the claims affirm that their action is designed to generate public pressure, possibly leading to negotiated settlements that would create humanitarian funds for the most disadvantaged African-Americans. But critics point out the long period elapsed since the end of slavery, and note that any direct victims of slavery are long dead.

Leading the class-action suits, as well as the apartheid case, are lawyers from the same New York group that helped Holocaust victims win multibillion-dollar settlements against European companies.

The lawsuits already filed name companies such as FleetBoston Financial Corporation, insurer Aetna Inc. and railroad giant CSX Corporation as defendants.

In the past, courts have denied legal actions seeking reparations for slavery. In 1995, a federal appeals court in California cited sovereign immunity and the lapse of the statute of limitations in upholding the dismissal of a $100 million lawsuit against the federal government.

An April 9 opinion article by Juan Williams in the Wall Street Journal argued that a once-legitimate effort to hand out small parcels of land to liberated slaves to help them get a start in life as free men “has now been twisted into a strange scheme to squeeze money out of any company with distant ties to the bitter business of slavery.”

Williams rejected the idea of reparations, saying they “would only hurt race relations by encouraging negative stereotypes about African-Americans at a time when the nation is more diverse and the need for interracial understanding is at its greatest.”

Peter Flaherty, writing in the Los Angeles Times of April 22, focused on some of the legal drawbacks of the cases. At the same time, the president of the Washington, D.C.-based National Legal and Policy Center warned it would be dangerous to assume that the reparations lawsuits are destined to fail.

“During the past few decades, it has become possible to win meritless lawsuits, especially against corporations,” Flaherty said. Another factor encouraging litigants was the $246 billion tobacco settlement. In that case the prospect of billions of dollars in tobacco money prompted state governments to abandon legal precedent and rewrite statutes to make it easier to sue.

Flaherty complained that the claim “is an attempt at easy money, either by litigation or by shakedown.” Instead of wasting time on these claims, he contended, we would be better off facing up to the real problems affecting African-Americans, such as failing schools, crumbling inner cities and family disunity.

Death penalty decisions

Concern over the use of legal processes to solve social problems also arose in the recent U.S. Supreme Court decisions on the death penalty. In the first of two decisions the court banned the execution of mentally retarded criminals. The court, in a 6-3 ruling, concluded that the banning of this practice in 18 of 38 states was sufficient to show that a national consensus had formed against the death penalty in such instances.

In a dissenting opinion Justice Antonin Scalia argued, “Seldom has an opinion of this court rested so obviously upon nothing but the personal views of its members.” His comments appeared in the Washington Post on June 21. A commentary June 27 in the Washington Times said that the majority decision cites “public opinion” as one of the reasons for its position, as well as the opinion of the “world community.”

The second decision on capital punishment, handed down this week, stipulated that juries rather than judges should decide when to impose capital punishment. The Supreme Court ruling invalidated the death penalty laws of five states and cast doubt on the laws of four others.

Once more the Washington Post, on June 25, reported Justice Scalia’s doubts. He blamed his discomfort on a 30-year effort by the court to strictly regulate the way states impose the death penalty. “In my view,” he wrote, “that line of decisions had no proper foundation in the Constitution.”

Scalia is well known for his support of the death penalty (and his opposition to the Catholic Church’s stance that capital punishment is justifiable nowadays only under the most dire circumstances). But here his doubts concern the basis on which the recent decisions were made. Scalia is a proponent of a more restricted role for the Supreme Court, arguing that social policy is a matter more appropriate for legislatures, which more clearly represent the opinions of electors.

Concern over how the legal system is functioning in the United States led to the recent foundation of a group, Common Good, a self-described “bipartisan initiative to overhaul America’s lawsuit culture.” Its Web site explains: “Our system of justice, long America’s greatest pride, is now considered a tool for extortion, not balance.”

The founders of this group include George McGovern, former U.S. Senator and a permanent representative to the U.N. Food and Agriculture Organization; Mary Ann Glendon, Harvard law professor; and Christopher DeMuth, president of the American Enterprise Institute.

The chairman of Common Good is Philip K. Howard, a New York lawyer and author of a popular 1994 book on the shortcomings of the legal system, “The Death of Common Sense.” Howard has just published another book on the subject, titled, “The Collapse of the Common Good.”

Whatever the merits of the death-penalty and reparations cases may be, a deep concern lingers. The rise of the courts as arbiters of social policy may come at the expense of the legislatures. And that could debilitate the democratic process in the long run.

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