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Saturday, October 23, 2021

A SILVER LINING, SORT OF

Things are so bad politically in the United States right now that I find it difficult getting to sleep at night. The only glimmer of hope that I see is that the possibility of an authoritarian destruction of such democracy as America has is now not the feverish dream of a few on the left but the established view of mainstream liberal commentators. That transformation has really taken a very short time as changes in mainstream opinion go.


I think it is quite likely that the Supreme Court will destroy Roe V Wade sometime in the next seven months, just in time to be a dominant theme of the midterm elections. Furthermore, everybody now seems to understand how important state government elections are.


If I can manage to keep myself alive through the 2024 election cycle, I may live either to see the death of American democracy or some version of its rebirth.

13 comments:

aaall said...

I assume the plan of the majority might be to uphold Mississippi's law but come up with some legalese that explains how Roe isn't actually overruled and then find the Texas law unconstitutional later in the year. Our most learned media will be totally confused by the first and treat the second as an abortion rights victory.

Jerry Brown said...

I often have problems sleeping, but it isn't because of worry about US democracy. Although the composition of the Supreme court does bother me. Hasn't kept me from sleeping so far. But now that I think about it... Well if I can't sleep now because of this- you are going to get a whole lot of stupid comments and maybe a few emails thrown in that might keep you awake also. Cause misery loves company or something like that.

But I'm pretty tired tonight so you're probably safe for now.

Another Anonymous said...

I am posting this comment in order to rectify a prior comment I had posted a few weeks ago relating to an episode of Michael Moore’s youtube blog “Rumble” about attorney Steven Donziger. The episode is titled “Kafka In America” and chronicles the legal travails of Mr. Donziger, an American lawyer who specializes in environmental issues and who had obtained a $16 Billon judgment against the Chevron Oil Co. for allegedly contaminating areas of Ecuador in which indigenous peoples reside. Chevron sued Donziger for fraud and sought an injunction against enforcement of the judgment in the United States District Court of Southern New York. In the episode, Moore reported that Donziger had been sentenced to 800 days of house arrest for contempt of court for refusing to turn over certain computer files to Chevron which Donziger maintained were protected by attorney-client privilege. He was then sentenced to a 6-month jail sentence without a jury. Moore convincingly portrays Donziger’s jail sentence as Kafaesque and an unconstitutional abuse of power by and American corporation and the federal judiciary.

In order to learn more about the case and how such an apparent travesty of jurisprudence could occur, I have read the decision which gave rise to what Moore portrays as a legal outrage and unconscionable injustice. The 65-page decision is titled Chevron Corp. v. Donziger, 768 F. Supp.2d 581 (S.D.N.Y. 2011), written by J. Lewis Kaplan. After reading the decision, I have concluded that things are not quite how Michael Moore portrays them. There are a number of things explained in the decision which Moore either deliberately concealed, or was not aware of. First, none of the pollution was caused by Chevron. The original oil exploration was conducted by Texaco, as part of a consortium with an Ecuadoran oil company, Petroecuador. In 1992, Texaco relinquished all of its interest in the consortium, leaving the oil exploration project entirely in the hands of Petroecuador. The contamination occurred after 1992, and was committed by Petroecuador.

Donziger and several other attorneys sued Texaco in New York representing indigenous peoples in the Amazonian rain forest referred to as the Lago Agrio Plaintiffs, or LAPs. Texaco moved for a change of venue to Ecuador under the doctrine of forum non conveniens – that the location of the court where the litigation has been started is not a suitable venue, because, for example, all of the necessary witnesses are located too far away. Texaco agreed that it would obtain a fair hearing in the Ecuadoran courts.
So the lawsuit was transferred to Ecuador. Texaco proceeded to execute an agreement with the Ecuadoran government to perform specified remedial measures in order to remove the contamination. After Texaco performed the agreed upon pollution remediation (which was actually caused by Petroecuador), Ecuador executed a release of Texaco.

(Continued)

Another Anonymous said...

In the meantime, Chevron purchased all of the common stock of Texaco. Chevron had never done any oil exploration in Ecuador. Donziger argued that by purchasing all of Texaco’s common stock, Chevron became liable for any and all liabilities for which Texaco was responsible. In his decision, J. Kaplan sets forth a detailed history of the litigation which indicates that Donziger engaged in multiple instances of fraudulent misrepresentation and manipulation of the Ecuadoran judicial system. For example, an expert in environmental pollution remediation was appointed by the Ecuadoran court. Donziger arranged to have the expert’s report written by other experts who claimed that significant amounts of pollution had not been remediated. Donziger then urged the court-appointed expert to agree to sign the report which he had not written. The court-appointed expert later testified that he did not write the report and did not agree with its conclusions. He testified that Donziger “wanted the answer to be that there was contamination and people had been injured … [b]ecause it makes money. That’s what wins is case.”

The decision chronicles other instances in which Donziger manipulated the Ecuadoran legal system. In one instance, for example, he threatened to file a complaint against a judge, accusing him of sexual misconduct, unless he canceled a plan to appoint another expert to review the first expert’s conclusions. Based on the evidence, J. Kaplan issued an injunction precluding enforcement of the $16 Billion judgment. When Chevron sought to obtain evidence from Donziger’s computer to support their allegations of fraud, and he refused to obey a court order to provide the computer files, the court held him in contempt.

In sum, Moore’s portrayal of an innocent environmental crusader being harassed by a corrupt corporation and a complicit legal system is specious, and I am disappointed to learn that he would engage in such propaganda.

Jerry Brown said...

So AA, what is your view about the justice of the ongoing house arrest and six month criminal sentence imposed by the judge without a jury? What about the private prosecution ordered by the judge? Is this kind of thing normal? Why would the Manhattan D.A. decide not to prosecute? And having declined to prosecute, why would the judge hire a private law firm to prosecute?

I had listened to that podcast also and got the impression that there might be more to the story than what they were saying. But there is certainly some weird stuff going on with the situation.

Another Anonymous said...

Jerry Brown,

Given the inaccuracy of Moore's description of the genesis of the dispute, I would question the accuracy of the claims he made as characterized in your comment, and indeed will from here on in question the accuracy of all of Moore's pronouncements.

Unusual Suspect said...

This may be behind a paywall, not sure:
https://www.washingtonpost.com/opinions/2021/09/23/robert-kagan-constitutional-crisis/

Eric said...

(I apologize if I have posted the same content twice. It does not seem to be sticking to the page.)

aaall said...

-Sounds like intern work that Moore accepted because confirmation bias. Past a certain point in ones career, one often just signs off.

Eric said...

I have not really followed the Donziger case, but it has been discussed in progressive and lefty media for months (Katie Halper, Democracy Now, The Intercept, Jacobin, The Nation, Ralph Nader Radio Hour, etc). Michael Moore apparently has only now gotten around to it.

The impartiality of the judges in the case(s) against Donziger (Kaplan and Preska), and of the special counsel (Rita Glavin), has been challenged.

Can you really get a fair reading of the case based on reading only from Kaplan's decision?

See, for instance, the editorial by Charles Nesson in Harvard Law Record 12-9-2019 and the ruling by UN High Commission on Human Rights Working Group on Arbitrary Detention, 91st Session (Sep 2021), #24 (United States).

Eric said...

Speaking of Kafka,
I tried to post a version of the above (10:51 AM) multiple times over the past day. It seems that the platform does not permit certain types of links, or maybe a certain number of links, to be included in posts. The post was only allowed to appear in the comments after I edited out all the links.

Another Anonymous said...

Eric,

I suggest you read Judge Kaplan's decision for yourself and evaluate his recitation of what he deems to be the facts, with multiple references to the documentary record. A lot of the information comes from a documentary film which Donziger himself commissioned.

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