I’ve mentioned many times that in my view the modern conservative political program can be (simplistically, of course) described as in three words: Cut, deregulate, and privatize. Cut taxes, especially on investment. Deregulate industry, especially President Obamas new ones on Big Finance and the health care industries. Privatize public services at all levels of government. This week John S. wants us to talk about a little-understood but very important part of the last part of this three-pronged agenda: The growing privatization of our legal system, especially of the right to sue.
We’re all familiar with the growing private control over the making of our laws, due to lobbying and loosened campaign finance rules. John’s idea should spur us to talk about the increasing private control over the enforcement of our laws. This is true of both civil and criminal law.
In civil law, tort reform (a major conservative political priority) and the now-ubiquitous use by big corporations of binding arbitration clauses in consumer agreements and even employment contracts has severely limited your ability to sue for damages when you are wronged by a big company. Use of class action lawsuits, another check on corporate power, also have been curtailed. I suppose you also could add the rise of secretive investor dispute settlement panels in international trade agreements to this list, since they basically privatize a part of what used to be strictly government-to-government trade law enforcement.
In criminal law, we have privately-owned and operated prisons housing almost 10 percent of all prisoners, and outsourced probation enforcement. The incentives built into this privatizing of legal punishments can lead to sometimes disastrous results (see links). I’m sure I’m missing some of the ways our penal system has been turned over to private contractors.
Finally, and analogous to what is happening with corporations, we have seen our right to sue government when it harms us restricted. Government officials have always had qualified immunity from lawsuits when they are performing their statutorily-mandated duties. But, recent court decision have expanded this type of immunity, as well.
I don’t want to exaggerate these trends. Our entire legal system has not been handed over to corporations and private interests. Yet. Nor, of course, should they all be automatically condemned nor laid at the feet of political conservatives. The public good may benefit from some of these developments. But, I think you will learn some unsettling things about the bowels of our legal system on Monday.
Since I’m low on time this weekend, my research (and the readings, below) will focus on the binding arbitration and class action issues. My intro on Monday night will emphasize them. In addition, you may want to read one of the articles on the consequences of state/local governments privatizing the enforcement of probation.
SUGGESTED BACKGROUND READING –
- Q: Why do Americans sue so much?
A: Many reasons, including that – unlike other countries – we rely on litigation to enforce govt regulation.
- Civil law privatization:
- Criminal law privatization:
Next Week: What Are the Sources of Islamist Radicalism?