Friday, May 27, 2016

Chamberty and barratry -- Josh Marshall takes us through the courts of Ithuvania

One of the things that greatly added to the damage of the Ithuvanian Experiment (giving random subjects of largely average intelligence billions of dollars and telling them that they were super-geniuses) was the twenty or so years of changing attitudes toward the rich. In the Post-War Era, the wealthy were generally viewed with distrust and their power was heavily constrained both by law and social norms. By the time the experiment really got under way, these constraints had been eroding away for about a generation.

We have now reached the point where there is a substantial (or at least highly vocal) group that any attempt to check the power of the wealthy is immoral. If anything, the rich deserve special protection against bigotry and envy directed at them due to their superior character, work ethic and intellect. I'm not going to try to tease out cause and effect here (all the arrows point both ways), but as we've grown more tolerant of concentration of economic power, we've also seen increases in frequency and magnitude and just plain shamelessness of it abuses.

From Josh Marshall:
Indeed, what Thiel is doing used to be illegal. There's even an archaic, Anglo-Norman word for the practice: chamberty, which the dictionary defines as "an illegal agreement in which a person with no previous interest in a lawsuit finances it with a view to sharing the disputed property if the suit succeeds." If, as Thiel claims, he was not looking for any monetary reward but simply pursuing a private grudge, then it is called "maintenance." But both can come under the heading of another hoary word: barratry, defined as "vexatious litigation or incitement to it."

In any case, it was illegal. But it's not anymore (though what Thiel is doing is at least in the proximity of what are called anti-SLAPP laws). But even if these specific torts and laws are no longer in place, it is still a general and needful principle that the civil law exists to provide relief to injured parties and to pursue remedies in the public interest. It's not there to pursue private vengeance by stealth. If we're going to pretend that Thiel's tort jihad might be as much as in the public interest as an ACLU suit, good luck with that. But sure, let the public decided. Do it in public. Don't hide.

What Thiel's actions and The American Interest article both point to this: One of the great trends of our time is not simply to give greater and greater rein for the extremely wealthy to use their wealth in the public square but the claim that they need additional protections from those accorded everyone else or that they need to be allowed to do so in secret. Otherwise, they risk being "villified" or "demonized." In other words, the sheer magnitude of their power and the paucity of their numbers require special rights to protect them against the reputational consequences of their actions.

Free speech goes both ways. It is a modern and questionable innovation to claim that the mere spending of money amounts to speech. But even today in today's era of degraded logic, speech cannot be silent. If something gets the protection of free speech it should, indeed logically must, be out loud. Under current law, Thiel can try to destroy publications because of private vengeance. But he should be required to and should do so openly.

1 comment:

  1. This is a thorny issue. I don't really know much about Gawker, but certainly their most highly publicized activities, and the outing of Thiel back in the 1990's are impossible to defend as "journalism." I think none should mourn the well-deserved demise of Gawker. The concern is the more general prospect of the wealthy using their wealthy to destroy genuine journalistic venues that they dislike for whatever personal reason.

    First, it isn't clear that the courts would support and allow that kind of thing, but let's assume they do. How do you craft a law that stops Thiel from pursuing his grudge but still lets the ACLU support people whose rights are crushed by the state, and still lets environmental groups pursue the public good, etc. Access to the courts is expensive. Perhaps it is possible to write these distinctions into law, but I doubt it.

    Which leads to a more general issue. This is another instance, on top of things like massive donations to political campaigns and PACS, of attempting to restrict the power of the wealthy. I think this is wrong headed. Wealth will always seek power, and it will find its way around any laws. What we need to do is not part the wealthy from their power, but from their wealth. Ultimately, meaningful power equality cannot co-exist with massive wealth inequality. Going back to the post WWII era, wealth disparities were far less than today, and while the wealthy were more influential than the poor, they did not and could not pursue power the way they do now. Ultimately, all of this problem reduces to the decision to stop top-to-bottom wealth transfers and increase bottom-to-top wealth transfers. It is those decisions that must be reversed. Attempting piecemeal restrictions on how the wealthy deploy their wealth is, I believe, a strategy doomed to fail. Redistribution is the answer.