July 29, 2009

Before the Law

“Before the Law”
is the title of a parable from Franz Kafka’s The Trial . A common man has come to gain access to the law, but is forbidden by the gatekeeper to enter. No reason for this is forthcoming. The gatekeeper tells him he may someday be admitted, but not now. The man waits and waits, waits out the rest of his life, grows old and weak. Finally, on the verge of dying, he is told that this particular door to the law had been his alone, and now it shall be shut upon him forever.
I’m not here today to discuss the profound literary and existential implications of this remarkable piece. Unfortunately, business intrudes, and this passage, which Kafka wrote while pondering not only the philosophical absurdity and psychological dislocation of modern times, but also its political malevolence, has an all too pressing real life relevance for us today.
In fact there is a ruthless, radical political program at work, seeking to bar access to the law for everyone but the rich and big corporations. Just as in all other realms, so here the goal is to fully privatize the law for the benefit of economic elites and the detriment of the public interest.
(There is also the fact of the corruption and weaponization of the law itself, how it’s written and enforced, on behalf of right wing ideology and wealth. I intend to discuss this in the future; for today I’ll focus on access itself.)
There are three basic ways to limit access to the law. The most obvious is money. Another is restriction of “standing” – simply declaring certain parties to be unpersons from the law’s point of view. And then, perhaps the most insidious, is the use of contracts to nullify the constitution and the law to force less powerful parties into a privatized law system where (monetary) might makes right.
In theory the concept of standing makes sense. For many kinds of cases it would be chaos to let anyone sue anyone over anything, regardless of whether or not it was in any way the plaintiff’s business.
But this only makes sense where the case is not primarily a matter of the public interest. Where it is not just a specific tort but even more a tort vs. the public interest, it’s obvious that the stake held in the matter by any citizen and any public interest group is of prime importance.
This truth is dangerous to the enemies of the public interest, sociopathic profit-seekers. So one of their weapons has been to use judicial activism to restrict the public’s right to sue over corporate activity that harms the public. Corporate defendants, as a matter of course, ask that plaintiffs be defined out of juridical existence by a finding that they lack standing to sue. As per this strategy, right wing judges consistently find that unions, consumer groups, environmental groups, advocates for the poor, and others have no right to a day in court since such a group allegedly suffered no actionably concentrated harm. The same argument is made to prevent individual plaintiffs from being allowed to be collected into classes.
In both cases, the tort is alleged to be so broad that no particular plaintiff suffered enough harm to make a case. Then, this harm level, while not zero but supposedly too low to be actionable, is fraudulently conceptualized as zero, so that aggregating these stakeholders would still result in a harm finding of zero. So any amalgamation of them, either as a class or through an NGO, is said also to have no “interest” in the case. It’s a perfect catch-22, Kafka’s vision realized. When as a group the people seek entry to The Law,  when they try to go through the public door, they are told no public affair exists, and are denied access.
Each man is forced to go alone to his individual door, where he is then refused entry on the grounds his individual case is not sufficient to get him in.
This does not apply to corporate litigants, “property” litigants, any profit seeker or crapulence indulger. Where the plaintiff is the economic aggressor, the tort inflicter, the psychopathic profit-seeker, every aspect of the law is set up to smooth his way. The corporate “person” always has the same door to the law flung wide open to him, which is barred to flesh-and-blood human beings.
This not the constitutional or the human way of doing things. In fact, the state of the art in the jurisprudence of standing remains the 1973 SCRAP case (in which the Students Challenging Regulatory Agency Procedures sued the ICC over its permission of rigged railroad rates which discriminated against recycled materials and privileged raw materials) . This precedent rightly enshrined a broad public interest right to seek justice in the courts. Ever since, one of the right’s legal projects has been to reverse the SCRAP precedent. So far they’ve only been able to chip away at it.
In 2007 they sustained a major legal defeat when in EPA vs. Massachusetts; they failed to have the case thrown out on the alleged grounds that the harm from climate change is so diffuse that no state or environmental group has standing to sue over it. Massachusetts went on to win what should have been* a milestone legal and political victory in the fight for a carbon mitigation policy, while in his dissent John Roberts whined about SCRAP.
[* Unfortunately, the opportunity this opened up to directly regulate carbon through simple enforcement of the Clean Air Act has remained as void as if the case had never been litigated. While the Bush administration’s delay tactics were completely in character, it’s disgraceful how, after all his grandiose promises, Obama has not only punted on his executive regulatory authority, but now embraces a treasonous bill which, among many other betrayals, would explicitly disallow EPA from enforcing the CAA. It’s as if Bush is belatedly winning the court case. Despicably, many mainstream environmentalists are collaborators in this.] 
In the next post I’ll discuss forced arbitration indenture and the gutting of public legal services as part of the general assault on the safety net and on the very existence of the poor as citizens of society.