Drug Industry Immunity
Drug Industry Immunity

TORT REFORM...? REFORM THYSELF!
(Part one of Three)

     "Federal judges are a worse threat than Al Queda or the bearded terrorists of 9ll. They represent a greater threat to America than the Nazis  and are more destructive to our culture than was the Civil War."
--Pat Robertson, on This Week with George Stephanopolis


"It's an arrogant, out-of-control, unaccountable judiciary. The time will come when the men responsible for this will answer for their behavior."

 --House Majority Leader Tom DeLay, discussing the Terri Schiavo rulings

 

Through a Dusty Mirror, We See Ourselves
     On May 9, U.S. President sat on a dais beside Russian president Vladimir Putin in Red Square to review columns of tanks and thousands of marching Russian soldiers to help celebrate VE day. It was the 60th anniversary of the fall of the Nazis and marked the first time an American leader ever attended one of these functions, much less sat on the dais.

     President Bush suffered hard and furious criticism by some of the hard right in his own party. He was also criticized by leaders of some of the Baltic countries for attending this event because of the post World War II Soviet occupation and domination most of Eastern Europe. Mr. Bush was compelled to criticize the Soviets for this, and went so far as to apologize for President Roosevelt's agreement to the Yalta Pact which allowed the Soviets to do this. Continuing with this theme during his subsequent visit to Georgia along the Black Sea, he also attacked Russia's backsliding in its march to "Democracy." Not to be outdone on this dour occasion, Mr. Putin responded on 60 Minutes that the U.S. has its own problems in the struggle for democracy and reminded us of our 2000 election that had to be decided in the courts.

"It's a Beautiful Day in the Neighborhood"
     Through all of this historical drama trading barbs back and forth, Mssrs. Bush and Putin never-the-less got on quite strongly, with our President riding around in Putin's collector 1956 Volga automobile, laughing and cracking jokes. It's as if the two gentlemen are quite aware that they are playing parts on a stage and there's really nothing to be excited about. And there really is nothing to be excited about, at least among these two peas in a pod. Both are leaders of systems in which, unlike church and state, there is little separation between industry and government. Functionally, one major difference between the two countries is apparent--the U.S. has an independent judiciary...for now.
 
     While much was made of the Yukos oil company case in Russia, there is another way of looking at those court proceedings should we choose to be a bit objective. When Mikhail Khodorkovsky, the Russian oil giant and "founder" of Yukos was doing splendidly until he started dabbling in politics--by which we mean that he tried to buy off huge chunks of the Russian Parliament. After that, he languished in a Russian jail, awaiting trial on fraud and tax-evasion. In respect to this case of a Russian oil company that is owned in part by American and British investors, Secretary of State Condoleezza Rice was prompted to say, "Washington [is] watching the trial closely to see what it said about the rule of law in Russia." ("Verdict is delayed In the Fraud Case of Yukos Founder," the Wall Street Journal, 2005)

     However, it appears that the Russian government was more concerned with the problem of eanings from Yukos leaking out of the Russian economy because in the aftermath of this case, Putin offered amnesty to "Russians willing to bring back money hidden abroad and promised to rein in tax inspectors who have slapped hundreds of businesses with massive back-tax claims." In a similar vein, the Bush administration just offered its own version of amnesty for American companies that hide their money abroad; bring your profits back to the states, they say, and we will only tax you at the rate of 5%. That's it, 5%.

Le Affair Enron Redux
     As if there were an orchestrated movement by persons in certain religious, political and business persuasions to chip away at the Judiciary, it was reported in the Wall Street Journal (ABusiness World Tells Government: Back Off;@ WSJ; 4-21-05) that the U.S. Chamber of Commerce Ais challenging the Justice Department=s efforts to secure long prison terms for five individuals convicted of conspiracy and fraud in the Enron Corp. scandal.@ The Chamber filed an amicus brief in the so-called Nigerian barge case, in which four former Merrill Lynch & Co. officials and a former Enron vice president were convicted last fall. The arguments put forth by the chamber, the article says, could affect the sentences in the barge case as well as other corporate fraud trials.

      The Chamber has been particularly active, challenging moves by the Securities and Exchange Commission and Justice Department and it is supporting Arthur Anderson LLP=s pending Supreme Court appeal of the account firm=s obstruction-of-justice conviction for destroying documents related to longtime client Enron.

     AThe Chamber=s brief,@ says the article, Ais the latest example, observers say, of a feeling within the business community that the government=s crackdown on corporate behavior may have gone too far in the wake of the scandals at Enron and other giant companies. With the passage of time, >perhaps the business community feels the climate is a bit better for them to push back= against some of the initiatives,= says Robert Litt, a former senior Justice Dept. official and now a partner at the Arnold & Porter law firm in Washington.@

     Significantly, the article was buried in section c of the journal, which supports the administration=s social security initiatives which would involve investing SS payments in the stock market. The Wall Street Journal, of course, notably supports the interests of its main advertisers-the investment bankers, market funds and major corporations that might be slightly concerned with a Ahostile judiciary.@ It goes without saying that the journal and the various entities it represents regard trial lawyers with as little warmth as the Russians in Red Square might regard Nazis. Tort reform has always been one of the biggest issues with their editorial staff, though it has always been the case that, while most lawsuits in this country involve businesses suing other businesses, the only Agreedy trial lawyers@ seem to be those whom represent consumers, though the WSJ itself has probably employed as many attorneys at one time or other as will ever read this article.
 
    If we have used Russia in this article it was as a somewhat rusty mirror for purposes of self-examination, and certainly not as any model for future developments. As our future articles get into more detailed discussions of tort reform we felt it necessary to see this movement in the context of a broader movement to first humble, intimidate and otherwise gain control of the judicial branch of government by special interests, which already seem to have disproportionate influence on the legislative and executive branches.

     It would be possible, for persons perhaps more cynical to suggest that lobbyists maybe even comprise a fourth branch of government. That being said, let us also lament the fact that they pull both Democrats and Republicans, always have-but we must say that we are most alarmed by those interests who finance and benefit by such influences as Grover Norquist of the AClub for Growth@ who has often been applauded for saying Awe want to shrink the federal government to the size where we can drown it in a bathtub.@

     He could do that, of course, in Iraq, but he would have a hard time finding running water.