Matt Yglesias

A State Prosecutor for Bush?

Jonathan Zasloff speculates about the idea that an ambitious state attorney general might be able to find a way to indict Bush administration officials for crimes related to torture and so forth. My guess is that an effort along those lines would ultimately fail, but it might well be a useful exercise for the country. Among other things, it would make it difficult for the Obama administration to do the expedient thing and just kind of ignore the issue for a few months and hope everyone forgets about it.

The Fitzgerald Factor

People talk about political corruption in Illinois as being unusually bad. And perhaps it is. But part of the story in Illinois has been that the local US Attorney is unusually good. And that itself was part of a weird confluence of circumstances. The tradition in the United States is to treat US Attorney jobs as a kind of patronage appointment. Basically, under a Republican administration states that have a Republican Senator have their US Attorneys picked by the local Senator or Senators. And under a Democratic administration it’s the Democratic Senators. In 2001, we had a Republican President and there was a Republican Senator from Illinois, Peter Fitzgerald. If Fitzgerald were doing his job in the usual way, he would have picked a lawyer who was somewhat respected and also tied into the local party machine. The kind of guy who wouldn’t launch a major corruption investigation of the incumbent Republican governor.

Instead, Fitzgerald insisted on appointing an out-of-state professional prosecutor from New York named Patrick Fitzgerald who had no ties to the GOP or Illinois or especially the Illinois GOP. Senator Fitzgerald was under no particular pressure to do this. In fact, he was under pressure from within his own party to do the reverse. But he went with the other Fitzgerald, and then he decided not to run for re-election and cited the lack of support from his own party as one of the reasons. That lack of support was especially bad for Senator Fitzgerald since on the issue he was a pretty hard-core conservative.

A ton of consequential things have sprung out from Fitzgerald’s decision to bring in Fitzgerald for basically quirky reasons. But it’s a reminder, I think, that the usual way of doing these appointments is pretty inadequate. Much better to look for serious professionals and see what kinds of corruption turn up elsewhere.

Loser Pays

Marie Gryphon has a paper out from the Manhattan Institute advocating the adoption of a “loser pays” model for civil litigation:

The United States struggles with a uniquely costly civil justice system. The direct costs of tort litigation, in particular, reached $247 billion in 2006, or $825 per person in the United States. Moreover, tort costs in the U.S. as a percentage of gross domestic product are far higher than those in the rest of the developed world—double the cost in Germany and more than three times the cost in France or the United Kingdom. The amount that is spent on tort litigation every year is greater than what Americans spend every year on new automobiles. [...]

This study explores the likely effects of adopting a “loser pays” rule for attorneys’ fees in the United States. Loser pays, sometimes called the “English rule” but actually, in essence, the rule in place in the rest of the world, refers to the policy of reimbursement by the parties who lose in litigation of the winners’ legal expenses, including attorneys’ fees. This study argues that loser pays could be an important part of a larger effort to reduce litigation costs, better compensate prevailing litigants, and better align tort law with its goal of deterring socially harmful conduct.

The whole thing seems plausible to me. And certainly the litigation-heavy nature of American society and the American economy seems problematic especially because it’s difficult to make the case that this boatload of litigation is really doing a great job of delivering just outcomes. But of course other countries don’t merely have things like the “loser pays” rule, they also have less structural dependence on litigation to remediate harms. They rely more on things like prophylactic regulation and collective bargaining agreements to handle things that in the United States are handled by lawsuits or fear of lawsuits.

Business types would tell you that things like regulations and unions put an intolerable burden on the economy. But it turns out that run-amok litigation also puts an intolerable burden on the economy and does so in a more arbitrary, less fair manner. Making the switch would be a good idea. But what the business world seems to want is neither preemption regulation nor post hoc litigation . . . instead they just want to be able to get away with malfeasance.