Judge Jed Rakoff Throws Down Gauntlet to Judges on Lack of Due Process in America

["Dave Farber" <farber () gmail com>]

Begin forwarded message:

> From: Dewayne Hendricks <dewayne () warpspeed com>
> Date: November 8, 2016 at 12:21:44 PM EST
> To: Multiple recipients of Dewayne-Net <dewayne-net () warpspeed com>
> Subject: [Dewayne-Net] Judge Jed Rakoff Throws Down Gauntlet to Judges on Lack of Due Process in America
> Reply-To: dewayne-net () warpspeed com
>
> [Note:  This item comes from friend David Rosenthal.  DLH]
>
> Judge Jed Rakoff Throws Down Gauntlet to Judges on Lack of Due Process in America
> By Yves Smith
> Nov 8 2016
> <http://www.nakedcapitalism.com/2016/11/judge-jed-rakoff-throws-down-gauntlet-to-judges-on-lack-of-due-process-in-america.html>
>
> In Why You Won’t Get Your Day in Court in the New York Review of Books, judge Jed Rakoff offers a measured yet 
> devastating critique of how all but the richest Americans lack effectively lack access to the courts. Rakoff, a 
> highly regarded securities law expert best known for refusing to rubber-stamp SEC settlements that he deemed provided 
> him with too little information to determine whether they were fair, walks through why Americans are shortchanged:
>
> Over the past few decades, ordinary US citizens have increasingly been denied effective access to their courts. There 
> are many reasons for this. One is the ever greater cost of hiring a lawyer. A second factor is the increased expense, 
> apart from legal fees, that a litigant must pay to pursue a lawsuit to conclusion. A third factor is increased 
> unwillingness of lawyers to take a case on a contingent-fee basis when the anticipated monetary award is modest. A 
> fourth factor is the decline of unions and other institutions that provide their members with free legal 
> representation. A fifth factor is the imposition of mandatory arbitration. A sixth factor is judicial hostility to 
> class action suits. A seventh factor is the increasing diversion of legal disputes to regulatory agencies. An eighth 
> factor, in criminal cases, is the vastly increased risk of a heavy penalty in going to trial.
>
> For these and other reasons, many Americans with ordinary legal disputes never get the day in court that they 
> imagined they were guaranteed by the law. A further result is that most legal disputes are rarely decided by judges, 
> and almost never by juries. And still another result is that the function of the judiciary as a check on the power of 
> the executive and legislative branches and as an independent forum for the resolution of legal disputes has 
> substantially diminished—with the all-too-willing acquiescence of the judiciary itself.
>
> Rakoff goes through all of theses issues and explains the consequences, which include more people attempting to 
> represent themselves in court, where they lose at a much higher rate than parties that have counsel. Readers of this 
> site know how common it was during the foreclosure crisis for homeowners to attempt to defend themselves, with little 
> success. Even now, I regularly have individuals who are trying to keep their homes or overturn a successful 
> foreclosure e-mail me along with a long list of other people which regularly includes prominent officials like 
> Elizabeth Warren. Even when they might have a germ of an argument, these missives are often so screechy and poorly 
> organized that they come off as being the work of cranks rather than those at the end of their ropes. And this is 
> reaction of someone sympathetic to the idea that the servicer done them wrong.
>
> As bad as the situation is in civil cases, it’s worse on the criminal side of the bar. Even though defendants do get 
> representation, court appointed lawyers are rarely a match for prosecutors. And the issue isn’t simply that hiring 
> good counsel is costly. It’s also that the consequences of losing a criminal case are draconian, and even with the 
> best representation, litigation is still a crapshoot. Recall that Aaron Swartz killed himself because the cost of 
> defense in a Federal case starts at $1.5 million, which would have impoverished his parents, and if he lost, he faced 
> up to 35 years in prison and fines of up to $1 million.
>
> [snip]
>
>
> Dewayne-Net RSS Feed: <http://dewaynenet.wordpress.com/feed/>



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