I fought the law....and the law won. I have a scoreboard hanging in my office, showing all the shipwrecks in Florida, some old Spanish galleons laden with gold, some just freighters carrying rum or slaves, some old U-boats in hazard of wartime activity, some little lobster fishermen, a wide gamut of seafarers who finally found their end at Lat xxx.xxx, Long xx.xxx. I mark up my court cases as we go, in the W/L columns. I lost in 447 court, here in Burnet County. I went bankrupt, and my Federal Trustee made an equitable division of spoils. We had some loose ends, and after the bankruptcy my worthy opponents removed our proceedings to Texas Western District Court. I appealed Judge Yeakel’s decision, or indecision, to 5th USCA. After some study by the panel, my appeal was dismissed as implausible. I had prepared a draft Writ of Certiorari, but I’ve decided I’m not going before SCOTUS. I’m retired, and my daily routine is heavily overscheduled.
I’m now a law student, and have been reading the law for four years. In some jurisdictions, I am able to take the bar exam, and widen my activity. I’ve been through Blackstone, and I’m now working my way through Oliver Wendell Holmes Common Law, and looking at how we have developed over the past 200 years. I’m looking over theory of torts today. I think I might go into white-collar crime. I haven’t decided which side.
“Since the ancient forms of action have disappeared, a broader treatment of the subject ought to be possible. Ignorance is the best of law reformers. People are glad to discuss a question on general principles, when they have forgotten the special knowledge necessary for technical reasoning. But the present willingness to generalize is founded on more than merely negative grounds. The philosophical habit of the day, the frequency of legislation, and the ease with which the law may be changed to meet the opinions and wishes of the public [currently RESPA-TILA 2015, ~2300pp. of regulation, clarification and comment, and widespread ongoing litigation], all make it natural and unavoidable that judges as well as others should openly discuss the legislative principles upon which their decisions must always rest in the end, and should base their judgments on broad considerations of policy to which the traditions of the bench would hardly have tolerated a reference fifty years ago.” -Holmes, Common Law Ch. III
Fifty years ago, it was springtime in 1966. America was a great place, though Jimmy Hoffa (before he disappeared) had shot John Kennedy three years prior. LBJ was up. Bankers were well respected members of the community, there were no quants, I was operating my computer by feeding in punch cards, and we certainly had not incarcerated the Keating Five or legislated the Financial Institution Reform, Recovery, and Enforcement Act of 1987. FIRREA led to deregulation, a resultant depression with much wailing and gnashing of teeth, and then the Blue Collar Report of Financial Catastrophe to the President of 2008, the Warren-Dodd Act of 2012 and the CFPB of 2014. My own litigation predated the CFPB, but I was still acting qui tam the USAG, and attempting to reform, recover, and enforce the bankers in our little corner of Texas. My faithful gentle reader is knowledgeable of our pursuant litigation of the matter. To return to Holmes:
“The business of the law of torts is to fix the dividing lines between those cases in which a man [or corporation acting as a man, today] is liable for harm which he has done, and those in which he is not. But it cannot enable him to predict with certainty whether a given act under given circumstances will make him liable, because an act will rarely have that effect unless followed by damage, and for the most part, if not always, the consequences of an act are not known, but only guessed at as more or less probable. All the rules that the law can lay down beforehand are rules for determining the conduct which will be followed by liability if it is followed by harm, -that is, the conduct which a man [or corporation acting as a man, today] pursues at his peril. The only guide for the future to be drawn from a decision against a defendant in an action of tort is that similar acts, under circumstances which cannot be distinguished except by the result from those of the defendant, are done at the peril of the actor [or corporation acting as an actor, today]; that if he escapes liability, it is simply because by good fortune no harm comes of his conduct in the particular event.” - Holmes, Common Law, Ch. III
We’ve been exploring those dividing lines for the past four years, in our own little courtrooms, and in America in our legislative chambers. The lines are as confused today as in Holmes’ time, or Blackstone’s time, or in Mosaic times of the Decalogue. Thou shalt not steal. Even if you’re not really stealing. Even if stealing is just a normal business activity. Even if it’s normal in Texas, though frowned on elsewhere. Even if your theft is just a regrettable clerical mistake, and stays below the Acceptable Error Value of 0.005 or 12 houses per 2446, and even though the error seems always in the bank’s favor, and never in the client’s. A ‘Bank Error In Your Favour’ of $200 is for children’s board games, after all.
More after the break....