So I was never a huge Who fan, but they had a way of crafting a phrase or a riff that invariably resonated far beyond the tune. The rauccous revolutionary anthem ends the refrain with this staunch declaration, “We don’t get fooled again!” That line sprang to mind as I learned more about the proposed Bush administration bailout of Wall Street.

It’s a short proposal. Text is here, courtesy of the New York Times.  Buried in the middle is this short ditty in Section 8: “Decisions by the Secretary pursuant to the authority of this Act are non-reviewable and committed to agency discretion, and may not be reviewed by any court of law or any administrative agency.”

Seems to me that the very same Secretary who steered the boat into the current ice berg is a poor choice for being the guy who makes “non-reviewable” decisions.  The current administration says we’re in a crisis, but doesn’t want to provide relief to mortgage holders. They claim that immediate and bold action is necessary, but they aren’t willing to consider limits on CEO compensation. And they want no one to question their decisions?

This is the same administration that got us into this mess. It’s the same administration that sent us off to an ill-considered war based on juiced up intelligence. It’s the same one that has presided over the destruction of the Bill of Rights.  The one that corrupted the Department of Justice. They have demonstrated time and again contempt for the rule of law. No wonder they propose no review by Congress or the courts.

With a track record like that, they want no oversight as they spend $700 billion of our money?

The Who had it right. No way.

David Sugerman

Sounds like it’s a long opinion–93(!) pages–but it looks like the Bush administration suffered a serious smack down in federal district court. Here’s the media report on the court’s ruling that President Bush’s aids must in fact honor Congressional subpoenas and appear and testify in response.

The district court’s ruling by Judge John Bates is a major blow to the Bush administration’s unprecedented claims of executive power. According to the MSNBC report, Judge Bates found that the assertion of immunity was entirely unsupported by existing law.  I have not yet read the opinion, so I can’t confirm the accuracy.

Side note and a bit of a digression: President Bush appointed Judge Bates.  This is of no import to most of us who work in the justice system. My experience is that most judges–especially those on the federal bench–highly value judicial independence.  It’s a core value of great importance, as we want judges to decide hard questions without political calculations.  While I frequently disagree with how a judge decides a particular case or issue, the value of judicial independence remains important. Nice to know that Judge Bates is not reluctant to find against the man who appointed him. To me, that’s the essence of judicial integrity and independence.

Bad week for the Bush administration. We got a re-run of the hack job done by Monica Goodling earlier this week. And now this slap down.

David Sugerman

On the political side, it’s a bit interesting to see President Bush cave and sign the housing rescue bill that he threatened to veto.  The president had little choice.  From what the experts say, if Freddie Mac and Fannie Mae go down, we would be looking at a profound financial crisis.

And of course, this means a taxpayer bailout.  I’ve got precious little math talent, so you should take my rough calculations with a grain of salt. But according to my pencil, when you add this bailout in the cost of the Iraq war and subtract revenue from tax cuts, we’ll be paying for this for…looks like about 407 years.  (Like I say, rough reckoning; you may get different numbers if you check my math.)

The sad truth is that this collision was brought to bear by very simple human forces. The truth is that people tend to be greedy.  And when you have a complex market, that tendency toward greed can go off in different directions. It will motivate lenders to loan money they should never loan. It will push borrowers to sign deals that are too good to be true. It will drive investors to buy junk securities that are nothing more than piles of bad debt. Everyone who gets a cut has an incentive to push and grab.

That’s where regulation comes in.  While market regulation isn’t perfect, it is the best way of controlling unchecked greed that gets you down into the multi-trillion hole that we will now bequeath to our children and grandchildren. I wonder if the president understands this now? Or is this profoundly expensive rescue going to be nothing more than the cost of doing future business?

I’m curious how the free market purists are reacting to this deal. I imagine that most concede that this rescue was inevitable. Regardless of whether they think the rescue was inevitable, I hope that a few have come to understand that unregulated markets don’t work in a complex world.

This issue of unregulated commerce is actually important to the work that I do.  Here’s how.

When a manufacturer sells an unsafe product that causes a profound injury, I have to come try to put the pieces back together.  That’s a claim and/or lawsuit process.

The purpose of that process is to assign responsibility for unlawful conduct and pay the injured person for his or her harms and losses.  Of course, we would all be better off if the injury didn’t happen. Reasonable regulation of product safety is the best way to prevent injury. And for those who really dislike trial lawyers, there is an added incentive: when regulations promote safety and injuries decrease, people like me have less work. That’s an outcome I’m ready to embrace.

I would really like to hear from free market advocates about whether this rescue was essential and whether this costly stain doesn’t undermine the argument that unregulated markets are essential.

David Sugerman

Here’s some good news in what is something of a sleeper. Measure 51, a one-sided and unnecessary ballot measure that would limit consumers rights failed to qualify for the November ballot.  The measure would have limited attorney fees to 10 percent in most contingent fee cases.

Contingent fees are those paid as a percentage of what a lawyer recovers for an injured person.  They are an equalizer. While the wealthy and big businesses can afford to pay lawyers by the hour, the rest of us don’t have the means to do so. The contingent fee system levels the playing field, allowing middle income Oregonians and small businesses the ability to hire skilled lawyers who will work for a percentage of what they obtain for the client.

The measure limited only contingent fees; it didn’t limit what those who afford to pay by the hour could pay. Had it passed, the measure would have limited consumers’ access to the best legal talent by artificially limiting fees.

My son–a somewhat sardonic 18 year old–saw through it immediately. “Wouldn’t limiting fees actually encourage lawyers to file more frivolous lawsuits?” (He’s  smarter than his dad; I never thought of that…thanks kiddo, you’re doing the old gray fart proud.)

Here’s the thing. At bottom the one-sided measure would favor insurance companies, HMOs, and manufacturers of dangerous products. They don’t want consumers to have access to the courts. They know that the best way to close the courthouse doors is to make sure that injured consumers can’t afford to hire lawyers. This, by the way, is part of the Bush/Cheney/Rove agenda. And as with many other things they failed.

Thankfully, Oregon consumers knew better. We’ve come to realize that the initiative process is one that is used by special interests to advance a radical agenda. It’s getting harder to qualify measures, and Oregonians are getting more skeptical about the unintended consequences of poorly drafted initiatives.

That’s great news.

David Sugerman

Must be the summer heat, but today’s news annoys me to no end. Congress gave in to the Bush White House by providing it the coveted immunity to phone companies that participated in illegal wiretapping. Gutless surrender monkeys.

I’m particularly annoyed by Senator Obama’s vote with the majority. As a former constitutional law professor, he knows better. Guess he couldn’t stand up to the FOX news critique if he stood for civil liberties and protection of privacy.

I don’t know about you, but I get pretty nervous when we make it easier for the government to spy on its own citizens. Seems like it’s a quick few steps from there to really bad news. If you have doubts about the importance of civil liberties, consider the case of Brandon Mayfield, a gentle soul who was caught in the horror-net of the Patriot Act when investigators mistakenly interpreted fingerprints left at the site of the Madrid train bombing.

I know, I know. Al Queda presents a very real threat. I’m not being snarky. Daniel Perl’s horrible death and 9/11 and Madrid trains were very real terror events. But the specter of terrorist attack can’t give the government license to spy us, to torture our prisoners, and to lie about weapons of mass destruction.

Immunity means that no jury will ever consider what these people have done. No one will ever have to explain. Immunity leaves the actors free to do whatever they choose. And that is a very scary thought.

David Sugerman

By the narrowest of margins, the U.S. Supreme Court reportedly recognized that the right of habeas corpus applies to detainees at Guantanmo Bay. The opinion is not yet up on the Supreme Court’s website, so I haven’t been able to look at it first hand.

Maybe this seems distant and esoteric. While many of us question the conditions and circumstances of detentions of so-called enemy combatants, it seems like this may have little to do with our day-to-day lives. I beg to differ. When the Bush administration and Congress suspended the rights of habeas corpus, they chose expedience over a long-run vision of how our country should function.

The right of habeas corpus simply means that someone jailed has a right to have an independent  judge determine whether he or she was illegally imprisoned. This is especially important in situations–like Gitmo–where some of the prisoners reportedly have been jailed for six years without a trial.  For those of us who believe in the rule of law and the constitution, this is intolerable. Because when constitutional rights are suspended, there is no line that limits that suspension. Today it’s “enemy combatants” a new category that didn’t exist before the “war on terror.”

And for those who are critical of this ruling, I can only ask a simple question: Where does the “enemy combatants” line end? Does it include those of us who are critics of the current administration? The whole “war on terror” and “enemy combatants” things are right up there on my personal bill of particulars–along with “We don’t torture” (wrong!) and “Mission accomplished” (oops!)–as to why the current occupant of the White House really pisses me off.  But enough about me.

In the film, Life is Beautiful, Roberto Benigni plays an Italian Jewish guy who goes from carefree clown to Holocaust statistic. The story is told from the point of view of his young son who survives the camp, because of his father’s wily antics. The movie is so damned poignant and beautiful.

Toward the end, the camp is liberated by the allies–Americans, as I recall–and the survivors slowly begin walking up a sunny road into freedom. The end is filled with hope and tears and laughter. While there is no comparing our current situation to that of post-World War II Europe, I sometimes think about the last scene of that movie and hope that we walk out of these dark times in a similar moment soon.

I have been extremely critical of the Supreme Court in the past. I imagine that won’t end, as they often do the wrong thing. The reported vote here–the narrowest 5-4–doesn’t give much comfort. Still, it’s a good day and a good thing because our constitution means something, even in the hard times.

I’m looking forward to reading this opinion, as it sounds like those who would suspend constitutional rights got slapped down. And that is good news.

David Sugerman