Lawyers Against Myths

 “Mythologies of State and Monopoly Power” by Michael Tigar, 2018

If you’ve been wary of the ‘justice’ system in the U.S., so is the author. And he’s a lawyer!  Tigar is a criminal defense and human rights attorney and also professor emeritus at Duke and American University. This book concerns 5 areas of U.S. law:  civil rights, criminal behavior, speech, labor activity and international crime.  His focus is on how laws reflect backward ‘mythologies’ – borrowing this concept from Roland Barthes – in every area.  You might also call them stereotypes, clichés, conspiracies, capitalist ‘realism’ or lies. He maintains that lawyers should deal with the facts, not mainly procedure, precedent or assumptions. He doesn’t address the embedded class and economic basis for law in the U.S. which colors all these issues, though he’s aware of it.  His angle is a rights’ argument only, based on specific cases, obvious history and judicial writings, first inspired by Clarence Darrow. 

Let’s look at the 5 areas of concern according to Tigar.  What is most interesting is that unlike the liberal myth that everything is always getting better, Tigar shows that U.S. law goes backwards in some areas and in others it never changes. Could it be that the economic system requires this kind of stability or retrogression?

MYTH 1

The first area is the role of racism as a mythological understanding which substitutes for actual knowledge. It’s a flawed shorthand for actual thinking.  In his time as a criminal defense attorney he identifies these subtle versions of racist ‘dog whistles’ used in the judicial system:  1) Ethnic Fear – Japanese Internment; 2) Separate But Equal; 3) Private property rights; 4) Free Association; 5) Neighborhood Schools; 6) Racism is Over: 7) Stand Your Ground; 8) “To Protect and Serve” police slogan; 9) Honoring Confederate History.  All of these attitudes are or have been used as legal arguments to protect racist practices.  I’ll get back to the one on ‘private property’ because it unsurprisingly pops up regularly. 

MYTH 2

Mass incarceration is a form of social control exercised over people of more color, but also on the working-class as a whole.  The death penalty is justified by the courts because of the alleged vast array of ‘rights’ given to defendants.  Tigar eviscerates these rights as they are put into practice.  As he says, “Law is not what it says, but what it does.”  Myths are: 1) A fair trial; 2) Appointed counsel; 3) Plea bargaining; 4) the existence of bail.

A great part of #2 are defense counsel appointees who are incompetent, indifferent, overworked or sleeping.  #3, plea deals, are notorious for basically forcing a defendant to agree, even though they have to swear they were not coerced in any way.  Who can ignore the heavy sentences hanging over them if convicted?  The ability to hire a qualified attorney, i.e. having money or property - runs through the whole issue of indigent defendants. As Tigar notes, 3% of law school grads go into public-interest law and every state spends millions more on the incarceration system than the pittance on public defenders.

In discussing criminal myths, he references the book L’Étranger (The Stranger) by Albert Camus.  Instead of the standard view that this book is some kind of ‘existential’ look at a ‘deep,’ indifferent loner, it is about a Frenchman named Meursault who kills an unarmed Algerian and shows no remorse.  This is really based on his racism, not some grand philosophy.  Nor is it the behavior of a so-called ‘stranger.’  This book was another reactionary misstep by Camus.  You will note Tigar uses literary references when applicable.  

MYTH 3

Tigar tracks free speech fights concerning the ‘marketplace of ideas.’  If you spend a whole second equating the idea of the ‘free market’ with this ‘marketplace’ it is obvious oligopoly, monopoly and wealth rule both.  The Supreme Court has gone back and forth on this issue and has now refuted the ‘fairness doctrine,’ given non-human corporations free speech rights; sold the public airwaves for a pittance; treat information as property and forbid political activity in ‘private’ spaces like socially-used malls.  The latter is significant. At one time because of their quasi-public nature, it was allowed but now property rights rule.  This relates to workplaces and factories too, as Marxists have always claimed that workplaces, while ‘privately owned,’ are actually socially dominated by those who work there.  This opens the door to sit-downs and occupations of work sites…which in the U.S. are also illegal.     

In the U.K. Burger King won a judgement for libel against accurate claims by food and environmental campaigners.  Greenpeace has been sued for ‘restraint of trade’ for their environmentalist speech.  As can be seen private property is a keystone concept of capitalist laws as represented by our Constitution, case law and courts, even related to speech.

MYTH 4

Tigar looks at lawsuits involving the CAFO giant Smithfield Foods, which used a RICO claim to sue the UFCW for attempting to organize their slaughter houses in North Carolina, mostly worked by new immigrants. Corporate RICO and SLAPP charges against activists and unions like this, while eventually denied, echo the 17^th and 18^th century claims that trade unions or any labor ‘combination’ in British law was illegal because it damaged trade and profits.  The real purpose is to delay and bankrupt opponents with legal fees. In the same vein the Sherman Act was used against rail strikers in the 1890s for ‘restraint of trade.’  In the 1920s court injunctions were issued more than a thousand times against labor action, though that was blunted in the 1930s with the Norris-LaGuardia and Wagner acts.  Yet recent lawsuits were filed against corporate campaigns run by SEIU against CINTAS laundries, alleging a similar claim, ‘extortion.’  One hospital chain, Prime Healthcare, sued Kaiser Permanente and the SEIU for its partly union-friendly policies as damaging to its profits, using RICO again.  RICO is the new legal iteration about labor ‘conspiracies,’ carrying on the same legal logic in the late 1700s in England.

MYTH 5

Tigar takes on legal cases with international reach against Shell Oil in Nigeria and Mercedes Benz in Argentina.  In the first case in 2013 Shell used thugs to attack and kill opponents of their polluting oil operations along the Nigerian coast.  In the latter case, Mercedes Benz fingered auto union activists for death by the Argentine junta and its paramilitaries in the 1970s-‘80s.  Several laws, like the Alien Torts Claims Act and the Due Process clause of the Constitution, narrowly specify what can be an international cause of action in a U.S. court.  The Supreme Court has ruled that the U.S. ‘does not rule the world,’ thus avoiding international lawsuits about corporations that are domiciled or do business in the U.S.  Liberals like Justice Ginsburg chimed in with the same logic.

Given society is now a world economy and the U.S. military spans national borders too, the increasing obsolescence of this form of venue-blocking legalism is apparent.  Internationalism is the order of the day, not nationalism, even on the legal front. Tigar lists his legal objections. 

Regarding the property issue central to capital, socialists are not intent on privatizing toothbrushes, beds, clothing or small assets like houses or cars, etc. as the stereotype goes.  It relates to large property, to large capitalist and landlord property.  The myth of property rights as prevailing over everything is the heart of libertarian and capitalist thinking and law and can be seen in these 5 areas, even though each only deals with ‘rights.’  The social reality of capitalist private property reflects the U.S. economic system, something upon which every legal system, even in the past, has been based.  Large property has the most rights, period. 

This short book is a good introduction to legal issues surrounding real freedom in the U.S., i.e. freedom for the majority of people, not the capitalists, bankers and large landowners.  Not sure if the word ‘myth’ is appropriate for everything here, but certainly it refers to basic, sometimes unsaid, assumptions embedded in the law.

For prior blogspot reviews on this subject, use blog search box in the upper left, using these terms to investigate our 17 year archive: “On the Line” (Pitkin); “The Cult of the Constitution,” “The Prosecution of Professor Chandler Davis,” “Professional Degrees in Recent Democratic Party Politics,” “With Liberty and Justice for Some” (Greenwald); “Legal Logic Behind Raids,”  “The Trial Before the Trial,” “Painkiller,” “Junk Science and the Criminal Justice System,” “The Appeal” (Grisham); “Dirty Waters,” “Missoula – Rape and Justice in a College Town” (Krakauer), “Goliath,” “Slave States – the Practice of Kafala,” “The Making of the English Working Class” (Thompson).

And I bought it at May Day Books!

Red Frog / September 18, 2024