Can Rule of Law Survive in America?
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terikanefield.com
Here's what the American Bar Association has to say about "rule of law." It is a bit more measured and nuanced than the partisan OP.
https://www.americanbar.org/advocacy/rule_of_law/what-is-the...
Why was this not downvoted to hell?
Briefly and at a high level, I suspect it's ALL farce, on both "sides", and intended to keep everyone frantically over-stimulated while the Administrative State Superiors (ASS) do the actual work of replacing any Rule of Law to which one might point with a quasi-aristocrASSy.
Whether the Kumquat Pol Pot, that Tangerine Tamerlane, that Citrus Caesar, Donal Trump is a sinner or Saint remains to be seen.
Are there consequences for billionaires or politicians who break the law or violate ethics.
That answer is clearly no. The fact Nancy Pelosi can shout on a loudspeaker that she has a right to trade the stock of companies she regulates is clear evidence that we do not have rule of law. Equally clear evidence is that a former president was able to attempt to overthrow the government and neither him nor his apparatus/enablers (Fox/McConnell) are experiencing meaningful consequences, only his foot soldiers.
When peasants get plea bargains and the rich and powerful get "due process," that is how you know that there is no rule of law.
The only reason it looks remotely like we have rule of law is because the power of our billionaires and politicians is fairly diffuse. As that power becomes more concentrated (and it seems clear that our policies concentrate wealth and power) it will be more and more clear that what we perceive as rule of law is the powerful vying for power. It is not the law that provides consequences to powerful people, but other powerful people exercising their own power.
Which law is she breaking?
Rule of law means following the law. Not making up new laws that you think are good and just following them before they're written down.
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Rule of law doesn't mean our laws are perfect. It just means that people follow the laws. Eventually, we work to improve our laws and make them better, but this is a second issue to simply rule of law in the first place.
We cannot improve our laws if we do not follow them first. The fundamental step here is following the law.
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> Equally clear evidence is that a former president was able to attempt to overthrow the government and neither him nor his apparatus/enablers (Fox/McConnell) are experiencing meaningful consequences, only his foot soldiers.
Which law did Trump break? Well, the answer is possibly a lot, but its going through the courts right now. As well as Jan. 6th Committee. There is due-process in our laws. We don't just punish people before their trial.
A country can say our emperor makes all the laws, the emperor could write them down. Would you say they have rule of law because there is a written law?
There could be a law that the empreror can selectively enforce the laws, would they have rule of law?
Just because there are laws in books with an apparatus to enforce them does not mean there is rule of law.
EDIT: Cool. But which _law_ is she breaking?
That apparatus cannot operate unless there is a law written down first describing that ethic. One of the most important principles of legal theory is that you cannot retroactively punish someone for breaking a law before the law was written down.
You can only punish people _AFTER_ writing down a law. Punishing people _before_ the law is written is blatant tyranny.
Just because YOU disagree with the law doesn't mean that the law isn't working, or that the "rule of law" is failing. It just means that you disagree with the law and want to change it.
Yes. So I have any from a set of simple laws. "Hayst4ck can decide when people have broken the law," or alternatively "Hayst4ck can punish people he deems likely to break the law" or alternatively "It is against the law to make hayst4ck feel questioned." "It is against the law to cause disharmony in Hayst4ck-topia as decided by hayst4ck."
If those laws are written down, is there rule of law?
Just because there are laws written down in books is irrelevant to the status of rule of law. Rule of law is about more than written down and enforced laws.
I cant insider trade, but Pelosi coordinates non public decisions that have great consequence to companies, sometimes directly giving them money and she can trade their stocks. To me that is clearly a situation of "rules for thee but not for me," which is the antithesis of rule of law.
The article itself lays down a definition: "the restriction of the arbitrary exercise of power by subordinating it to well-defined and established laws."
That means you have to ask if she is arbitrarily exercising power. I would say restricting other people from self enriching in a way that she herself is self enriching is an arbitrary exercise of power. So from my point of view that is an egregious violation of the idea of rule of law.
https://www.sec.gov/rules/final/33-7881.htm
Is Nancy Pelosi an "Officer, director, employee, agent of an issuer" to the stocks that she's trading?
Have you read the law that you're complaining about? At all?
If I were an emperor and I wrote a law that said: "Nobody can trade with privileged information but me."
Would there be rule of law?
And you need to answer one question to me because its all that matters.
Which law did Nancy Pelosi break in your example?
That's all that matters for rule of law. Whether or not people follow the law. If people are following the law, then we have rule of law. Your hypotheticals are distractions that should be ignored.
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Maybe your set of crappy laws are bad and awful. But they don't describe the US Code. If you want to criticize US Code, you need to do a better job at understanding it.
https://www.law.cornell.edu/uscode/text
As it turns out, it is written far better than you seem to think. Yes, there's always contradictions and edge cases that get funny. But for the most part, the USA's laws are clear (if a bit arcane and verbose).
The law, as written, is that "Insiders" (aka: Officers, Board Members, etc. etc.), and those who those insiders talk to (ie: employees, family members, etc. etc.), are not allowed to trade on the information they know about.
The law never considered Congressmen, who might know something because of their position.
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The law, as written, is "X people, and people who talk to those X people, are not allowed to trade securities based on information they know about".
Your characterization of "X people except the emperor" is blatantly wrong and fundamentally misunderstands how the law is written.
Is Nancy Pelosi part of those companies she's trading?
Yes? No?
Answer: No. She's not an insider.
Insider Trading laws are about employees, or executives, trading stocks in the companies they work for. It does not apply to Congressmen, because Congressmen are _NOT_ employees or executives to those companies.
Following the rules as written (even if you disagree with it), is fundamental to the rule of law.
Insider trading is trading on material, non public information.
> Federal law defines an “insider” as a company’s officers, directors, or someone in control of at least 10% of a company’s equity securities.
Literally the legal definition of "insider" here...
You don't just "change" the definition of an "insider trade" just because you don't like Congressmen.
The actual law seems to be 10b5-1: https://www.sec.gov/rules/final/33-7881.htm
EDIT: Wrong link first.
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Now sure, morally I'd agree with you that we should change our laws an punish Congressmen who trade stocks on information they know (ie: changes to upcoming laws and such). But its clearly not a law that's part of the books yet.
“Insider trading is the trading of a company’s securities by individuals with access to confidential or material non-public information about the company.”
Where in that definition does it limit to insiders? Hint: it doesn’t.
> (c) Person acting on behalf of an issuer. "Person acting on behalf of an issuer" means any senior official of the issuer (or, in the case of a closed-end investment company, a senior official of the issuer's investment adviser), or any other officer, employee, or agent of an issuer who regularly communicates with any person described in § 243.100(b)(1)(i), (ii), or (iii), or with holders of the issuer's securities. An officer, director, employee, or agent of an issuer who discloses material nonpublic information in breach of a duty of trust or confidence to the issuer shall not be considered to be acting on behalf of the issuer.
Its literally written in the law. Just because you don't like this law doesn't mean it just... changes to your whims.
This law is limited to insiders, and people who directly communicate with those insiders.
I can do this all night if you want. I have a law degree (never practiced as I found other ways to make significantly more money) and my focus in law school was securities law. I am 100% certain of the law on this, regardless of how many times you cherry-pick sections out of context to try to make a point. But here’s my response to your latest: This regulation refines the fair disclosure regulation when issuers (and people acting on their behalf, the definition of which you quoted), are required to make fair disclosure to the broad market of certain material, non-public information. This regulation does not imply that insider trading can only be perpetrated by insiders of an issuer. This is simply incorrect.
I was pretty sure it was about insiders only. But I'll give it more work if this really is your "expert opinion" so to speak (or at least, more expert than mine). I'm just a programmer who has on occasion, received training on this subject due to working for a public company.
Most of these regulations I'm aware of, imply that the "insiders" have an out as long as they properly file this information in the various schedules / public disclosure forms. There are no such forms for Congressmen since they're not executives (or other kinds of insiders). Etc. etc.
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I'll say that the turning point in my research / opinion is a link I have for investment bankers who come across Material Non-public Information. Investment Bankers aren't insiders, but seem to be subject to these rules anyway. So I see that my previous understanding was too narrow a definition.
I can’t reply to your response down thread as HN limits the depth of nested comments, so I’ll post here to your previous response.
I can do this all night if you want. I have a law degree (never practiced as I found other ways to make significantly more money) and my focus in law school was securities law. I am 100% certain of the law on this, regardless of how many times you cherry-pick sections out of context to try to make a point. But here’s my response to your latest:
This regulation refines the fair disclosure regulation when issuers (and people acting on their behalf, the definition of which you quoted), are required to make fair disclosure to the broad market of certain material, non-public information.
This regulation does not imply that insider trading can only be perpetrated by insiders of an issuer. This is simply incorrect.
None any more, it turns out.
https://www.npr.org/sections/itsallpolitics/2013/04/16/17749...
“It is better for ten guilty people to found innocent than for one innocent person to be found guilty” - is one of the our bedrock principles.
The wealthy and powerful are regularly charged with crimes in America - Epstein, Bannon, etc.
The poor face the brunt of legal prosecution more often, but he wealthy and powerful are far from immune.
When it comes to politicians do you think due process leads to more justice or less justice?
When it comes to police officers do you think due process leads to more justice or less justice?
When it comes to poor people do you think they get due process?
When it comes to poor people do you think due process leads to more justice or less justice?
I think when powerful people get "due process" (as it exists) that leads to less justice. I think poor people are often robbed of their due process, but when they receive it, it likely leads to more justice.
I think the ten guilty to one innocent statement denies the quite literal economics of our justice system. If you have resources you can be treated "more fairly" than others.
It wouldn't surprise me one bit if for every 10 guilty billionaires 9 were found innocent, while for every 10 guilty poor people, 11 were found guilty.
I guess the question is how could we falsify this (my and probably others) belief, since this is an intuition rather than a well informed stance?
With respect to the rule of law, wouldn't it be more like:
Can the freedom/rights of a person be solely determined by a billionaire or politician or by the law?
Regardless of the truth of that sentence, I think it muddies the idea of where the authority lies.
That's why I think a rather agnostic way to look at it is more interesting. Who do laws apply to and how are they applied? Laws always apply to those without power no matter the society, so it's only interesting how laws apply to those with power or if laws that apply to those in power are written at all.
But the people the laws are applied to have due process and can appeal to a court.
There is no such thing as law, there is only whether the people who control the law-machine are on your side or the opposing side in the war.
I admit that there is plenty of data in favor of your position. But there is significant data against it, too, and you're not seeing it. So far, team "law" is winning - though by much less of a margin than I'd like.
I’m proud to say that the Republican government in GA stood strong against the stupidity. But many state officials didn’t in other states.
edit: fix date
Gerrymander might be an example. I'm pretty sure both major parties exploit it shamelessly.
That removes issues from voters and places it in the hands of sympathetic elites.
No other country does this. The Republicans do it for some issues, but not nearly on the scale of Democrats - and usually because something in the Constitution is pretty direct.
Leftists promoted the Equal Rights Amendment in the 1970s - only to find that it’s all contained in the 14th amendment, and not really necessary.
After Roe was overturned, lawyers in every state have argued that the state constitution protects abortion, even in states whose constitutions explicitly say “abortion is not protected.”
Democrats regularly see most good things as “beyond politics” (some exceptions) while Republicans reject court control of most good things (some exceptions, too).
The ERA story is quite complicated. I think you're eliding over some history here. Opposition was tactical, not foundational for Democrat women, the principle of equality was a given. It was backed heavily by Republican women before the 70s as I understand it, the modern states-rights/constitution thing is really just that: a modern hot take on something.
Basically, I can't see how these things actually address the topic.
I'm not an American, so I don't have direct affiliation with D or R.
> Can you give some each side examples? I am obviously partisan, I want to understand what things done by "my side" are seen as having equivalence to ones done by the other side.
> Gerrymander might be an example. I'm pretty sure both major parties exploit it shamelessly.
You talk about “both major parties” and imply they both gerrymandering - but then you say you’re not American.
Which country are you from that has two major parties and systematic gerrymandering, but isn’t America?
I don’t think anyone can give you examples about “your side” without knowing your country and political affiliation.
My understanding is that both major parties exploit gerrymandering, is an example of a posed equality of abuse of law. The shitlist above appears both to be not about illegality and failure to respect law, and, not really cohesive as a narrative of equality or difference between R and D.