WHY DO THE NON-HEATHENS RAGE?*
William K. Black
University of Texas at Austin
Book: The Tyranny of Good Intentions
Authors: Paul Craig Roberts and Lawrence M. Stratton
Publisher: Roseville, CA: Forum, Prima Publishing
INTRODUCTION AND OVERVIEW
The Tyranny of Good Intentions discusses, or at least alludes to, some of
the most important issues about democracy. The authors’ different perspectives
could add important insights to these subjects. The lead author, Paul Craig
Roberts, is an economist who was trained in public choice theory, served in the
Reagan administration as an Assistant Secretary of the Treasury, and was a
leading "supply sider" instrumental in shaping the 1981 Tax Act. Mr.
Stratton is a lawyer. Together, they could have created a synthesis of law and
public choice theory that would improve our understanding of how well-intentioned
officials could produce tyranny. The questions they raise (albeit, often only
implicitly) are the right ones:
- How can nations that value liberty so highly engage in tyranny?1
- What groups are most at risk of being tyrannized?
- How are acts of tyranny ended?
- Do perverse incentives lead prosecutors and regulators to act like
- Can ethical public sector leadership prevent, or at least reduce, tyranny?
Public choice theory could provide a useful lens to view these issues.
Economics is famous for suggesting that public policy has unintended (usually
negative) consequences. The last question raises one of the most interesting
topics that a host of different academic fields are struggling with. The general
topic is trust. Public policy, evolutionary biology, economics, and
management theorists, as well as ethicists, are all coming to appreciate that
one of the most critical factors in a community is the degree of trust among its
members. Altruism turns out to be common in many facets of life. When trust is
eroded, whether by corruption or fraud, the social and political ties weaken and
politics and business suffer. Moreover, as the authors’ note, the ethical tone
a leader sets is disproportionately powerful in influencing the behavior of
subordinates. As they assert, when the leader is corrupt or fraudulent, it is
likely that many followers will also [end page 225] be corrupt or fraudulent. Similarly, the
authors are correct that ethical leadership and ethical training can constrain
people from acting on the basis of perverse incentives.2 It is a
revolutionary change for public choice theorists to modify their models (which
assume that public sector employees simply maximize their self-interest) and
include concepts of altruism, ethical leadership, professional mores, and agency
culture. Thus, the book could have advanced not only our understanding of
tyranny, but also been a breakthrough in advancing the public choice literature.
The jacket has an eye-catching collection of blurbs, with Milton Friedman in
the lead, Alan Dershowitz arguing that the book shows that "government
oppression is not a right-left issue," and G. Gordon Liddy (with no sense
of irony, despite his active role as a tiny tyrant) decrying the "steady
erosion of the rights of U.S. citizens."
I agree with the authors’ nominal thesis that denying groups civil
liberties and a meaningful franchise leads to tyranny. Paternalism has nearly
always failed to prevent tyranny.
So, I found myself reading a book I thought was raising many of the most
important questions, written by authors who seemed to be well placed to make a
dramatic fusion of old-style public choice theory with the modern findings about
trust, and sounding a clarion call for liberty, which is my favorite overture.
The literary theme they adopted, A Man for All Seasons, based on the life
of Sir Thomas More, is one that I use in teaching. I begin my public management
class with the classic film, and use it to introduce the topic of ethics. I
should love the authors’ book. Instead, I found myself ever more mystified.
The first problem was the title; the authors aren’t serious about the phrase
"good intentions." Their opponents are villains, "evil
The second problem also involves the title; there is little or nothing worthy
of the label "tyranny" discussed here. Overwhelmingly, the book
protests white-collar crime cases against super elite Americans, environmental
regulations, and the civil rights laws.
The third problem is that the book ignores all of the difficult issues
because it assumes away all the tensions and tradeoffs in public policy. There
are no real issues. All our decisions are easy. The book is of a genre
that I didn’t know existed until I began teaching at the University of Texas.
Austin has public access channels on cable TV dominated by hard right programs.
One variant attacks non-Protestant faiths. The other is militia programming. The
authors’ message is the militia’s message. Regulations and laws can be done
away with because they accomplish "little of value" (Id., 32).
White-collar crime prosecutions can be eviscerated because they do not involve
"real" crimes (Id., 93). Clean up of toxic waste sites can be
ended because such sites pose no risk to health, the contrary view is "hysteria"
(Id., 79). Anti-discrimination laws can be ended [end page 226] because racism never existed. Slavery
had nothing to do with racism. The KGB is to blame for the belief that Americans
were racists (No, I am not making this up -- Mr. Roberts is.3). The
risk that private criminals, left unchecked, could reduce the society’s
liberty is ignored, as is the possibility of someone like Bill Gates acting like
a private tyrant.
The biggest problem, however, is that the authors systematically remove from
English and U.S. history all major acts of tyranny. Implicitly, the authors
illustrate one of the principal means by which tyrannical systems were sustained
by these two nations most famous for prizing liberty – by studiously ignoring
the victims. The authors go far back into English history to assert the critical
importance of "the Rights of Englishmen" (which became the source of
the rights in our Constitution and our Bill of Rights protecting criminal
defendants). Because they argue that denying these rights leads to tyranny, I
waited for them to describe any of the four classic proofs from English history
of this thesis. England tyrannized blacks, Irish Catholics, colonial natives,
and the poor, and paternalism was the pretext. These groups became "the
other," defined as outside the full protection of the dominant society. An
explosive mixture of hate, bigotry, and fear led to periodic savagery and
pervasive malign neglect and exploitation. Millions of people died and hundreds
of millions of people lost their liberties due to these acts of tyranny. The
authors say not a word about them.
As with England, the classic acts of tyranny in America (e.g., slavery) do
not warrant mention. Why the same failure to use these terrible acts by America,
which show that a denial of individual rights leads to tyranny? Their inclusion
would falsify the authors’ real views, that our super elites (who are
exemplary) are tyrannized while "the other" is the problem. As with
many anti-evolutionists,4 Mr. Roberts is a fervent believer in social
Darwinism. The irony is that this book teaches us almost nothing about tyranny
through what it says, but much about tyranny through what it omits. England and
the U.S. prove that nations can value freedom while enslaving others. It was not
an accident that the word "slave" was not in our Constitution. The
exclusion of the victim from the document made it easier to continue to
tyrannize blacks. Similarly, English law simply ignored slavery in the colonies.5
Roberts and Stratton have unintentionally illustrated how real tyrannies
are maintained. The victims disappear from the tyrants’ histories.
The fifth problem is that the book does not show that tyranny, in
Professor Dershowitz’s phrase, "is not a left-right issue." The
authors’ villains are on the left, their heroes on the right. The heroic
protector of civil liberties was – J. Edgar Hoover. Franklin Roosevelt and
Chief Justice Warren are villains. The book is wholly one-sided in other ways.
For example, prosecutors are evil. Conclusory statements by defense counsel are
treated not as advocacy, but as ultimate fact (requiring neither supporting
analysis nor citation). There are no complex human beings in this book, only
cartoon caricatures drawn with chunky crayons.6
[end page 227]
So, how well do they deal with the important questions their book at least
implicitly raises? As I will show, very poorly by any standard of scholarship.
They aren’t clear in their analysis, or rigorous, and they are relentlessly
one-sided. Many of their facts are wrong and they rarely provide citations. They
rely on ad hominem attacks on their foes and rhetoric replaces reason.
Government workers do not have good intentions; the authors repeatedly liken
them to Nazis.
Thus, the book implicitly raises another question. Why, at their very moment
of triumph, is the raging right becoming overtly hostile to our nation’s
government? Why do the non-heathens rage? Ironically, Mr. Roberts used to
claim that the central problem in America was such pessimism and
hostility towards America on the part of leftist elites (a "denunciatory
The claim that the government is filled with Nazis is important. Attitudes
like this lead to disturbed persons deciding that it would be a good thing to
murder a couple hundred strangers, including their children in a day care
center, because they work for the federal government in Oklahoma City. Instead
of wanting to build trust between the public and government workers, the
authors believe that the only hope for escape from our tyrannical government is
the complete destruction of such trust. As the saying goes, if we believe
absurdities, we will commit atrocities.
ENGLAND AND "THE RIGHTS OF ENGLISHMEN"
The Authors’ Focus on English Elites
The authors’ chapter on English history is meant to convey three central
ideas. First, England was exceptional among all other nations in providing such
individual rights; therefore, it alone escaped tyranny.8 Second,
these rights were won by the heroic sacrifice of her elites. Third, Blackstone
was the great expositor of these individual rights, Bentham their great enemy.
The two victims of tyranny the authors discuss were contemporaries, Sir
Edward Coke and Sir Walter Raleigh (Ralegh). The authors neglect to inform the
reader that Ralegh’s tyrannical prosecutor was – Sir Coke! Ralegh, like
Coke, was persecuted for being on the losing end of a power struggle. Ralegh was
himself a tyrant, as the historian Paul Johnson (1997:13) explained:
[T]he English ... passed a series of laws, in the 14th
century, known as the Statutes of Kilkenny, which constituted an early form
of apartheid. *** [E]ven so English settlers continued to
"degenerate" and intermarry with the Irish and become Irish
themselves.... Ralegh [took] a ruthless part in suppressing [an uprising in
1580]. [end page 228] He had killed hundreds of "Irish savages," as he termed
them, and hanged scores more for treason, and had been handsomely rewarded
with confiscated Irish lands which he was engaged in "planting."
"Planting" meant settling Protestants in Ireland as colonialists on
the confiscated lands. Sirs Coke and Ralegh illustrate how willing elite
Englishmen who cherished (their own) liberty were to deny liberty to others.
Coke and Ralegh were characteristic of English elites in this regard. By
presenting Coke and Ralegh as their only examples of victims of English tyranny
and as champions of liberty, the authors demonstrate either their lack of
knowledge about English history, or their willingness to distort it.
England and Slavery
One of England’s most popular songs, "Rule, Britannia!," makes
clear the abhorrence of slavery felt by this liberty-loving people: "Britains
never, never, never will be slaves!" But this was sung on England’s slave
ships and on its West Indies slave plantations. A million Africans may have died
at English hands through the slave trade. Bizarrely, Blackstone’s Commentaries
cited a case holding that if a slave were brought to England the slave must be
freed, as a testament to the English love of liberty (see Boorstin 1996: 208 n.
111). This right was, obviously, meaningless to English slaves. Slavery was
highly profitable to England (Foner 1998: 32).
Ireland, England’s First Colony
The Irish are a classic example of how easy it is to justify tyranny. For the
English, the Irish were literally and figuratively "beyond the Pale."9
The authors argue that property rights and the right to bear arms are critical
to the protection of civil liberties. Ireland is the best example I know to
support this argument. For centuries, England had a deliberate policy of trying
to end Irish ownership of land and other productive resources. The policy took
time, but was spectacularly successful. The Penal Laws reduced Irish Catholic
land ownership to roughly five percent by the mid-19th century. The
Penal Laws also forbade Irish Catholics to own weapons.10
For centuries, the English viewed Africans and the Irish as subhuman.
Thomas Cahill (1995: 7) explains:
To an educated Englishman of the last century, for instance, the Irish
were by their very nature incapable of civilization. "The Irish"
proclaimed Benjamin Disraeli, Queen Victoria’s beloved Prime Minister,
"hate our order, our civilization, our enterprising industry, our pure
religion.... This wild, reckless, indolent, uncertain and superstitious race
have no sympathy with the English character. Their ideal of human felicity
is an alternation of clannish broils and [end page 229] coarse idolatry [i.e.,
Catholicism]. Their history describes an unbroken circle of bigotry [!] and
blood." The venomous racism and knuckle-headed prejudice of this ...
simply passed for indisputable truth.
Indeed, some English writers made the blacks=Irish=apes equation explicit.
Cahill (1995: 6) quotes the historian Charles Kinglsey’s response to post-famine
I am daunted by the human chimpanzees I saw along that hundred miles of
horrible country. I don’t believe they are our fault [Cahill’s
emphasis]. I believe that there are not only many more of them than of old,
but that they are happier, better and more comfortably fed and lodged under
our rule than they ever were. But to see white chimpanzees is dreadful; if
they were black, one would not feel it so much, but their skins, except
where tanned by exposure are as white as ours.
The Irish were routinely portrayed as drunken simians in English political
cartoons. The Penal Laws made mass starvation of Irish Catholics inevitable by
taking away virtually all of their land and dividing the meager remains into
tiny plots that could (economically) grow only the potato – known to be
subject to periodic blight (Foster 1989: 201). Roughly a million Irish died in An
Gorta Mor (Gaelic for "The Great Hunger") and well over a million
emigrated to escape starvation (many dying in the effort on the "coffin
ships").11 The English response was shaped by bigotry, a
religious devotion to laissez faire12 and the desire to
receive rents from the "planted" Protestant landowners. While Marie
Antoinette never said "let them eat cake," a London Times
editorial essentially said: let them eat steak.
We have great faith in the virtues of good food. Without attributing the
splendid qualities of the British Lion wholly to ... beef steaks, we may
[say] that a people ... reared on solid edibles will struggle long and hard
against the degradation of a poorer sustenance....
For our parts, we regard the potato blight as a blessing. When the Celts
once cease to be potatophagi, they must become carnivorous. With the taste
of meats will grow the appetite for them. With this will come steadiness,
regularity, and perseverance; unless indeed the growth of these qualities be
impeded by ... Government benevolence.13
Tens of thousands of Irish were already near starvation by the time of this
September 22, 1846, editorial. The editorial reflected English ideology and
policies.14 Ireland’s tenant farmers produced large amounts of
meat, eggs, etc. for their Protestant landlords, who in turn often rented the
land from absentee English owners. England’s policy, even when several
thousand Irish were dying from starvation every day, was to continue to export [end
page 230] these foods to England to pay the rents (Id., 5). Ireland was a net exporter
of food during much of the blight. Public choice theory’s favorite
chastisement is to complain that individuals engage in "rent-seeking
behavior," but Ireland in the great starvation is the ultimate example of
rent-seeking behavior gone wrong.
England’s Practice of Tyranny in its Colonies
As badly as the Irish fared, some colonial native populations suffered far
more. Australian aborigines were hunted for sport and for bounty payments to the
brink of extinction. Torture and rape were common before murder. The usual
virulent racism prevailed.15
Even where the natives were Aryans, as in the Punjab, and even into the 20th
century, the English resorted to tyranny. Four hundred peaceful, unarmed
protestors (ironically, protesting the denial of the normal rights of a fair
trial) were murdered at the order of General Dyer in Jallianwala Bagh, India, on
April 13, 1919 (you may remember the scene in the movie Gandhi – it was not exaggerated). Many hundreds more were left by Dyer, without
medical aid, to die of their wounds. The massacre only stopped because Dyer’s
troops ran short on ammunition. Dyer’s infamous explanation for his actions
was: "I fired and continued to fire ... it was no longer a question of
merely dispersing the crowd, but one of producing a sufficient moral
English Tyranny at Home
Poor Anglican Englishmen were also subject to tyranny. Thousands of poor
Englishmen were executed for trivial crimes under the infamous Waltham-Black
Act, hundreds of thousands imprisoned (for the crime of being poor) in
workhouses and debtors’ prisons. Thousands more were press-ganged into the
Royal Navy in circumstances that carried the certainty of being brutalized and
an exceptionally high risk of death. Tens of thousands were transported to
distant colonies. At the time Blackstone wrote, roughly five percent of
adult Anglican males could vote. The vagrancy laws were used to arrest the poor.
Labor contract breaches by workers were crimes. It was a capital crime for a
bankrupt to conceal assets. Intense labor by poor children, particularly
orphans, as young as eight years old was common. The kids worked more than sixty
hours a week and were frequently whipped. Sexual abuse of the young girls by the
managers was a recurrent problem. Young children worked and died in the coal
mines. Only well to do males could serve on juries.17
The Authors’ Thesis that Formal Legal Rights Equalize Power and Insure
These four areas of English tyranny would clinch the authors’ historical
case. [end page 231] None of them is mentioned. To the authors, England, after the
"Glorious Revolution," was just how Blackstone pictured it in his Commentaries,
a legal Eden in which the rights of Englishmen made all English equal. The
authors phrase it this way:
Throughout the ages government rested on power. After centuries of
struggle, culminating in 1688 with the Glorious Revolution in England,
government was relocated in the will of the people (Id., xi-xii).
Before the Rights of Englishmen empowered people, the source of an
individual’s power was the number of armed men he could rally, or the
difficulty of subduing a castle or keep. Because power was unequal, rights
were unequal. The Rights of Englishmen ended the idea that might makes
right. Until then ... [n]othing but the king’s good nature prevented law
from being a means of oppression (Id., 19).
When law resides in the will of the people, the elites, who wish to
proclaim their will from on high, lack power (Id., 37).
I will discuss only three major flaws in the authors’ historical vision.
First, the Glorious Revolution did not make power equal. The authors think that
power did not depend on force after the Dutch Prince was put on the English
throne. Try telling that to blacks, Irish Catholics, the Scots, any native
people colonized by the English or poor Englishmen and women (or Americans
– note the Declaration of Independence and the Revolutionary War). All of
the English abuses intensified after the Glorious Revolution.
Second, it is naive to believe that force will not be used because it is
"disallowed." This point has two parts. Force will not be
disallowed against "the other." I have cited examples of such use of
force. Further, even if force is formally disallowed, private or public
enforcers may have de facto immunity from prosecution as long as they
direct their force against "the other." Murder was a crime in the
United States, but blacks were lynched with impunity.
Third, it is illogical to think that power must be equal if force is
disallowed. The claim that English "elites" "lack[ed] power"
after the Glorious Revolution is staggering. No country approaches England’s
fame for its class distinctions. The English are obsessed with the role of their
elites; the BBC exports watched here often make class distinctions a key plot
Obviously, the King and the House of Lords were elites with considerable
power [end page 232] in Blackstone’s day. The "House of Commons" has been a
misnomer through most of its history. The members were invariably from the
elites in the time period the authors focus on. As Barbara Tuchman (1984:
the Common’s leadership was the province of nobility in Blackstone’s day:18
This was the pattern of the British minister. They came from some 200
families inclusive of 174 peerages in 1760, knew each other from school and
university, were related through chains of cousins, in-laws, stepparents and
siblings of second and third marriages, married each other’s sisters,
daughters and widows and consistently exchanged mistresses.... Of some 27
persons who filled high office in the period 1760-80, twenty had attended
either Eton or Westminster, went on either to Christ Church or Trinity
College at Oxford or to Trinity or Kings at Cambridge.... Two of the 27 were
dukes, two marquises, ten earls, one a Scottish and one an Irish peer; six
were younger sons of peers and only five were commoners [including] three
who through the avenue of law became Lords Chancellor.
The "new blood" in the House of Commons was pure blue:
In the election of 1761, 23 eldest sons of peers entered the House of
Commons at their first opportunity after reaching 21.... (Id., 135)
Nor was democracy a remotely accurate description for the selection of
members of the House:
It had settled into a ... static body of members who owed their seats to
"connexions" and family-controlled "rotten" boroughs and
bought elections, and gave their votes in return for ... positions, favors
and direct money payments (Id., 140).
As I have noted, only about five percent of adult males could vote, but that
greatly overstates the scope of democracy because rural gerrymandering
meant that rural lords had vastly more representation in parliament than did
urban residents (Id., 141). This is the system in which the authors assert
the elites had no power. Blackstone, who was elitist and proud of it, would have
been horrified by a system in which the elites lacked all power (Boorstin 1996:
The Authors’ Confusion about the Roles and Views of Blackstone and Bentham
Another major flaw lies in the authors’ lack of understanding of why these
forms of English tyranny eventually declined, albeit, not until well after the
Glorious Revolution. Among those most responsible for reducing that tyranny is
Jeremy Bentham, [end page 233] who provided the intellectual impetus to the reform movement.
Their attack on Bentham gets the facts exactly reversed:
Young Jeremy Bentham wanted to remake the world. Sitting in Blackstone’s
Oxford classroom he quickly grasped that English law was a barrier. Liberty
– what Blackstonian law secured – has always been a barrier to those who
want to remake society. When law resides in the will of the people, the
elites, who wish to proclaim their will from on high, lack power (Id.,
But, law did not reside in the will of the people in Blackstone and
Bentham’s day. The people did not elect Parliament. Blackstone, in his Commentaries,
supported denying the right to vote to all but the elites (Boorstin 1996:
and all non-Anglicans (Id., 78-79). As a member of the House of Commons,
he voted to exclude the reformer John Wilkes from Parliament (Boorstin 1996:
xiv). Power also resided in the King, and Blackstone’s views on kings are one
of the reasons Bentham dismissed him as intellectually dishonest. Blackstone
argued that the law provided a remedy for every legal wrong. Faced with the
problem that, due to sovereign immunity, there was no remedy against the King,
Blackstone claimed that the King could do no wrong, and went on to rhapsodize
about how the King could not even be imperfect in his thoughts (Id., 125).
Blackstone, of course, knew this was absurd. Perhaps fortunately, King George
III did not. He read Blackstone’s Commentaries on royal rights while
still in manuscript, which helped shape his determination to rule England
and its colonies (Smith 1966: 467-68). He ruled so poorly that America declared
its independence. Blackstone also gave a nudge toward our revolution by voting
with fellow Tory hard-liners against repeal of the Stamp Act.
Bentham, by contrast, pushed reform bills to extend the right to vote to
non-elites and non-Anglicans and opposed colonialism. His influence on Prime
Minister Peel led to a dramatic reduction in crimes calling for capital
punishment (Id., 553, 594, 564). Bentham’s policies changed over time,
and were often complex, but the authors’ disdain for him seems particularly
strange given the fact that Bentham generally opposed governmental
intervention in the markets (Rodgers 1987: 22-23).
Further, most law in that era was not made by Parliament, but by judges. This
"common law" was the focus of the Commentaries. English judges
of that era were elites and they assuredly did not reflect "the will of the
people." Blackstone argued that Parliament (which the authors implicitly
assume did reflect that will) should virtually never change the common
law (Boorstin 1996: 71, 74, 83, 105), while Bentham called for Parliament to
pass statutes establishing the law.
So, if the authors support systems of government that insure that law
reflects the will of the people, Bentham should be their patron saint.
Blackstone’s efforts to portray an undemocratic, religiously prejudiced system
as an Eden and to keep the formulation [end page 234] of law wholly within the power of English
elites should be repugnant to the authors.
AMERICAN HISTORY AND TYRANNY
Having ignored or reversed the facts of English history, the authors turn to
Eden II, America. The story on this side of the Atlantic is that we inherited
"the Rights of Englishmen" and became the only other non-tyrannical
nation in the world. Bentham’s poison, however, the willingness to limit
individual rights for some public official’s notion of the greater good,
slowly eroded those rights until our Constitution became as "dead as a
doornail" and our nation a tyranny (Id., 180).
The authors follow the same pattern in eliminating from U.S. history every
major act of tyranny, even though each act would provide superb support for
their purported thesis that denial of individual rights leads to tyranny. While
it is possible that the authors simply did not know that England had frequently
acted tyrannically after the Glorious Revolution, no adult American is unaware
of slavery, and Mr. Roberts lived during the time period when several of these
acts of American tyranny occurred. Thus, the exclusion of these acts from the
book was intentional.
After reading a large number of Mr. Roberts’ "e" columns, three
reasons for excluding the major acts of American tyranny emerged, which I
summarize here and then discuss briefly below. First, as with the English
examples of tyranny, including the major examples of American tyranny would ruin
the authors’ timeline. America is supposed to begin as a bastion of liberty
and only succumb to tyranny after Bentham’s evil influence slowly erodes
respect for individual rights. In fact, the worst forms of tyranny, against
blacks and Native Americans, occurred earlier in our history.
Second, discussing the major acts of tyranny would turn the authors’
purported hero, J. Edgar Hoover, into a villain and one of their major villains,
Chief Justice Warren, into a (flawed) hero. Worse, many conservative politicians
(e.g., Nixon and McCarthy) contributed to tyranny.
The principal reason for excluding the real acts of tyranny, however, is that
the victims are politically incorrect from the authors’ perspective. No one, I
had thought, disputed that various minorities had been the primary victims of
American tyranny. The authors not only dispute that; they view such minorities
as the problem and "white, heterosexual, able-bodied males (WHAMs)
as the real victims in our society. Indeed, the most oppressed people in America
are overwhelmingly WHAMs – they are the richest people in America." [end
A Timeline of Major American Acts of Tyranny
Your list will differ from mine, but I’m confident that we would have a
broad overlap on the key aspects of tyranny in the United States.20
Most of us would start with the treatment of Native Americans and slavery,
including the horrific Fugitive Slave Acts, which sought to force the entire
nation to assist slavers. These were the earliest in time, longest lasting and
most violent forms of tyranny. Then, in rough historical order:
- The Alien and Sedition Acts of John Adam’s presidency. The latter made
virtually any criticism of the government a crime (Foner 1998:
- Barring Asian-Americans from citizenship and land ownership, and periodic
- Civil War suspensions (by both the Union and the Confederacy) of habeas
corpus and arrests (in the Confederacy, even summary execution) for
public dissent (Foner 1998: 98)
- General Forrest’s massacre of black POWs after the surrender of Fort
- The "Black Codes" (which essentially sought to recreate slavery)
- The KKK’s reign of terror that was so instrumental in bringing an end to
- "Jim Crow" laws, lynching, and disenfranchisement of blacks in
- The public and "privatized" war against unions21
- The tactics used by the U.S. in fighting the Philippine guerillas (Zinn
- The World War I Sedition Act and the mass street sweep arrests in search
of draft "slackers"
- Attorney General Palmer’s raids and the "Red Scare"
- The compelled sterilization of roughly 60,000 Americans (Associated
- The internment of Japanese-Americans during World War II
- Hoover’s files on government officials and COINTELPRO. The acronym stood
for "Counter Intelligence Program" (the series of illegal FBI
operations to destroy the effectiveness of groups that Hoover hated, mostly
leftist, but also the KKK and civil rights leaders such as the Reverend
Martin Luther King, Jr.) (Gentry 1993)
- Nixon’s presidency. The "enemies list," the
"Plumbers," Watergate, the Huston Plan, the use of the IRS against
political enemies (Id).
The authors note only, and very briefly, that the FBI "infiltrated"
the KKK and "wiretapped" Reverend King and that Palmer’s raids were
criticized (Id., 145-46). The context is an effort to establish FBI Director J.
Edgar Hoover as the 20th Century’s greatest protector of civil
liberties. [end page 236]
Ideological Selectivity in Identifying Villains and Heroes
Mr. Roberts regularly denounces "political correctness" and claims
that liberals won’t criticize other liberals. "What’s important to a
liberal depends on whose ox is being gored."22 Mr. Roberts also
emphasizes how critical it is to hold government officials accountable for their
In The Tyranny of Good Intentions, however, the authors show a slavish
adherence to political correctness. Their heroes can commit horrific acts of
tyranny without accountability. Only a left-leaning ox (a "lox"?) is
in danger of being gored. The authors discuss Mr. Hoover under the subtitle:
"The Lost Ethics of J. Edgar Hoover."24 They say that
Hoover had a "firm rule against practices that might taint law enforcement
with unscrupulous behavior" (Id., 145). What they don’t tell the reader is
that the firm rule was a cynical cover. Yes, Hoover, at various times, had many
written rules about unscrupulous practices, and his publicity machine pointed
out those rules. However, Hoover also routinely ordered his agents to break
those rules and engage not simply in "unscrupulous" but outright
illegal practices (Gentry 1993). The authors also leave the impression that
Hoover opposed the Palmer raids and wanted to ensure that the bureau never again
engaged in such abuses (Id., 145-46). In fact, Hoover was an active supporter of
the Palmer raids and an advocate of mass arrests (Gentry 1993:
authors then cite a 1932 memorandum from Hoover opposing the investigation of
the communists. Hoover hated communists, investigated them continuously,
saturated the party with informers, bugged and wiretapped them and their
friends, families and acquaintances, and had a COINTELPRO program of illegal
tactics devoted to communists for well over a decade (Id., 442). He also
constantly smeared people who were not communists by asserting they were
communists. The memorandum the authors cite does show how Hoover’s written
positions often failed to reflect his real views and practices.
While omitting any express reference to COINTELPRO, the authors do obliquely
mention two examples of such efforts, those against the KKK and Reverend King.
The FBI finally took on the Klan, at the insistence of the Kennedy
Administration, in the wake of the murder of three civil rights workers. Hoover
was a racist, and ignored Klan murders for decades (Id., 441-42). In
Hoover’s case, the authors cite good intentions as an excuse for tyranny:
The FBI’s wiretaps of Martin Luther King, Jr., and infiltration of the
... Klan ... tainted Hoover’s reputation with civil libertarians. *** [T]he
... Klan was suspected of being capable of organizing violent acts against
civil rights agitators, and Martin Luther King, Jr., was suspected of having
communist ties. These suspicions may have been poorly based, but they do not
appear to have been concocted in order to target anyone (Id., 145). [end
Really? The Klan was not "suspected" of "being capable"
of "violent acts." The Klan was known to engage in terror and murder.
Who, but these authors, would write a sentence today that termed civil rights
workers as "agitators?" Who but these authors could write that the
"suspicion" that the Klan was violent towards "agitators"
"may have been poorly based?"
Now take the case of Reverend King. The claims of communist
"influence" most assuredly were "concocted in order to
target" him. The illegal "investigation" of Dr. King had no
pretense of being related to a crime. He was targeted because Hoover was a
racist and viewed Dr. King as the strongest black leader. The FBI’s express
goal was to remove King from leadership. Its tactics were reprehensible. Perhaps
most revealing, however, is the FBI’s reaction to King’s "I Have a
Dream" speech. This famous exhortation of love and patriotism sent shock
waves through the FBI’s senior leadership precisely because it was so
effective, convincing Hoover to spur his illegal efforts to smear King and get
him to resign or commit suicide (Id., 527-29).
The authors’ best lines on Hoover, however, (indeed, the funniest lines in
the whole book) are:
The purpose of Hoover’s files on politicians was to protect the bureau
from political misuse. The files were a defensive weapon (Id., 145).
This remarkable claim is made without any supporting citation. The logic is
fascinating. Yes, Hoover kept voluminous, secret files on politicians’ sex
lives, personal habits, and disreputable associates. Yes, Hoover made it known
to politicians that he had dirt on them (a defensive weapon is no good as a
deterrent if no one knows you have it – as we know from Dr. Strangelove).
But Hoover broke the law with good intentions. Untrue, Hoover used the files as
blackmail to ensure generous appropriations, life tenure, and to intimidate
critics (Gentry 1993).
Mr. Roberts is quick to rely on good intentions as an excuse for tyranny by
folks who share his ideology or fight his ideological foes. Where would a
defender of the absolute right to individual liberty and the sanctity of
democracy stand on Pinochet’s coup against Chile’s democratically elected
president, Salvador Allende, and the subsequent disappearances, tortures, and
murders of leftists? Pinochet is dear to Mr. Roberts’ heart because he placed
"Chicago school" economists in charge of the economy and fought
communists. Therefore, Pinochet is not a tyrant, but a hero, and those trying to
bring him to trial are – tyrants!25
Or take Kosovo, the Albanians are Moslems, the Serbs are Christians. In the
midst of the Serb campaign of "ethnic cleansing" (via mass rape and
murder) of these Moslems, Mr. Roberts claimed: "The Albanians in Kosovo
brought their suffering on [end page 238] themselves." In the context of whites,
Mr. Roberts warned that "once a race or class is assigned collective guilt,
all protections fall away."26 Yet, he claims that Albanian
females "brought [rape] on themselves."
Similarly, Nixon, our President who was most eager to deny rights to anyone
not on the right, gets a pass (Kutler 1997). Watergate, the Plumbers, the
enemies list, the use of the IRS to attack political opponents, and the Huston
plan authorizing illegal break-ins, none of this is worthy of mention in a book
about American tyranny.27
In addition to their heroes getting a pass on their acts of tyranny, the
authors’ villains get their positive contributions to liberty scrubbed from
history. Chief Justice Warren increased liberty. The authors laud the right
against self-incrimination, but before Escobedo v Illinois and Miranda
v Arizona, poor defendants’ rights were ignored. The authors praise the
right to counsel, but poor people had no meaningful right to counsel before Gideon
v. Wainwright. The Warren Court made America far more democratic by
insisting on "one man, one vote" in Baker v Carr and Reynolds v
Sims. Warren expanded rights against unreasonable searches, particularly
bugging. Indeed, conservatives abused him because he expanded liberty.
Viewing Minorities as the Problem, Not the Victim
Mr. Roberts’ "e" columns, and a prior book by the authors
attacking the Brown v Board of Education decision, provide the principal
reason for their otherwise inexplicable failure to discuss any of the worst acts
of American tyranny. These acts would prove the authors’ nominal thesis, that
denial of liberty leads to tyranny, and would also allow far more effective
attacks on the authors’ villains (i.e., FDR and Earl Warren’s culpability
for the internment of Japanese-Americans28). The problem is that the
examples would undercut the author’s real thesis, that rich, white American
elites are the primary victim of tyranny.
Mr. Roberts’s most intense views come in describing the contribution he
believes the civil rights laws and immigration of non-Europeans make to tyranny.
First, it is critical to understand his starting position (which also appears to
be shared by his co-author): slavery had nothing to do with racism, and the
Civil War had nothing to do with slavery. Indeed, the belief that white racism
was ever common in the United States is a product of a successful KGB
disinformation campaign and bias against the South.29 In a May 10,
2000, column entitled "Anti-South Prejudice," Mr. Roberts argued:
The South wanted out of the Union because [of] tariffs.... [end page
Our education system has produced a generation of students who believe
that slavery was invented by Southern racists for no other reason than to
deny blacks self-esteem.
For their self-esteem, blacks need to understand that every race has been
held in slavery.
Slavery in the Southern colonies was not born of racial animosities but
of the need for a work force. It was an economic institution that provided
labor so that land could be exploited where there was no indigenous
population. Slavery was on its way out in the South as population density
increased and a free labor market developed.
Slaves happened to be black in that historical period because it was
black slavers who were the suppliers of slaves. *** Black political
activists should get their own history straight and stop trying to rewrite
This quotation is remarkable for many reasons, but four stand out. First,
black slavery is justified on the astonishing grounds that our genocidal impact
on Native Americans was so great that there was "no indigenous
population" (to enslave???). Second, every factual assertion, other than
the fact that every race has known slavery, is false.31 Third, Mr.
Roberts doesn’t think that the two southern "black political
activists" he criticizes in the column are part of "the South’s"
history – they should "get their own history straight." Fourth, the
passages are also eerily similar to one of the most infamous Supreme Court
decisions, Plessy v Ferguson (upholding segregation of rail cars). Kluger
quotes the passage from Plessy in his book, Simple Justice:
We consider the underlying fallacy of the plaintiff’s argument to
consist in the assumption that the enforced separation of the two races
stamps the colored race with a badge of inferiority. If this be so, it is
not by reason of anything found in the act, but solely because the colored
race chooses to put that construction upon it.
Kluger (1976: 80) then comments:
Of all the words ever written in assessment of the Plessy opinion,
none have been more withering than those ... [of] Yale law professor Charles
L. Black, Jr., who [said that in] ... the two sentences... "The curves
of callousness and stupidity intersect at their respective maxima. [end
It is clear from their prior book that the authors of The Tyranny of Good
Intentions think that Plessy was properly decided – which makes
them very close to unique.32
Second, Mr. Roberts believes that non-whites and non-Christians endanger our
country. In "Giving the Gift of Christ," a December 17, 1999,
editorial in the Naples Daily News, he wrote:
There is plenty of room for cultural diversity in the world, but not
within a single country. ... A hodgepodge of cultural and religious values
provides no basis for law – except the raw power of the pre-Christian
Mr. Roberts has written that whites are being "ethnically cleansed"
by non-white immigrants:
When I first came to Washington, D.C., 25 years ago, the only
international-looking people one saw were in the diplomatic community. Now,
it is every third person. *** In 1965, the Democrats, who lost the South,
changed the immigration rules in order to build African, Asian, and Hispanic
constituencies that would vote Democratic. *** The formerly all-white ...
Cupertino, Calif., [was] ... overrun by Chinese immigrants.... 34
It’s not clear what an "international-looking" person is, but
having lived in the Washington, D.C., area for many years, I can confirm that
few residents are Native Americans. I now live near Cupertino; its web site
shows that as of 1990, roughly one-quarter of its citizens are of Asian origins.
It remains a wealthy Silicon Valley community. In another part of this same
column, he bemoans fights between Arab-Americans and European-Americans in
Dearborn, Michigan – the town I grew up in. It is a very small, but diverse,
world. The Democratic Party, which Mr. Roberts refers to as "aka the Nazi
party" (Id.), is bad because (unlike the Nazi party!) it has diverse
supporters. Mr. Roberts’ April 24, 2000, column "Genocide in the
Whatever the Democratic Party has become, it is no Camelot. Voter
profiles show that essentially 100 percent of homosexuals,35
lesbians, feminists, and class action lawyers vote Democrat, as do 90
percent of professors, media, Hollywood, public employee unions and
handicapped persons, 85 percent of blacks, 70 percent of Hispanics, and
businessmen seeking protection against a government shakedown. It is a party
of disgruntled intellectuals, victims groups, thugs, haters, and crass
opportunists who are united by a shared sense of moral superiority.36
The recent vote for Gore confirms the Democratic party’s ethnic ties:
A map ... of the vote by county shows a tiny Gore presence. Gore’s vote
is [end page 241] confined to Hispanic counties in the Southwest, the California coastal
counties, Portland, Oregon, the counties bordering Puget Sound in
Washington, Minnesota and urban areas of Great Lakes states, Jewish counties
in Florida, heavily black counties in the Southeast and heavily urbanized
areas of the Northeast....
The Democratic Party is a ... revolutionary party, committed to
overthrowing ... traditional American morality, principles, institutions and
Democrats favor open borders because the millions of Third World
immigrants pouring into the United States have no tradition of
constitutional government and a rule of law.
The longer the borders stay open, the sooner the country will be lost.37
Then, reminiscent of Disraeli’s attack on the Irish as being
"bigoted," and with a similar lack of self-examination or irony,
Roberts says "Democrats have the advantage of the fanatic’s belief in the
moral righteousness of their issues. Like Communists, Democrats can muster the
power of hate."38
Elsewhere, he complains of "white genocide" through immigration in
Europe and the United States. He asks the following question:
Our current immigration policy means that by the year 2050 Americans of
European descent, a group that comprised 90 percent of the population in
1960, will be in the minority and will have lost control over their
How does this differ from being overrun by the Chinese Army?39
I will leave the reader to answer this question.
He believes that non-European immigrants offer only one advantage – they
are corrupt. "In the end, the live-and-let-live Third World culture of
bribery might be what saves us from intrusive government."40
(Putting aside the accuracy of the assumption that bribery is a universal
attribute of the third world, Mr. Roberts has not experienced pervasive
corruption if he thinks it makes government better. In fact, economic theory
suggests that corrupt government officials would deliberately make government unresponsive
in order to increase opportunities to extort bribes.)
The Real Victims of U.S. Tyranny: Elite Whites
"Tyranny" takes four forms: progressive taxation, regulation that
interferes with property interests, anti-discrimination laws and affirmative
action, and white-collar crime [end page 242] prosecutions. According to Mr. Roberts, the 1990s
were a period of utmost repression of super elite Americans.
"In our time hatred of ‘the rich’ is a political phenomenon, much
like hatred of the Jews in National Socialist Germany...." "We crush
the rich with taxation because of envy. Government is our instrument for
oppressing the rich.."41 (The April 15 crush produces such rich
white whines!). Roberts continues:
Successful Americans are chattel of government. They are required to
deliver between one-third and one-half of their annual incomes to government
as the price for not being hauled off to prison. [They are like] feudal
serfs and 19th century slaves. Successful Americans are among the
most exploited people in world history, and the demagogy they endure is
Regulation compounds the oppression of taxation. Mr. Roberts states that:
Americans loathe their government – federal, state, and local,
legislative, regulatory and judicial – for many reasons. No aspect of our
lives has escaped assault by government determined to force ideological
doctrines down our throats. *** The Constitution of the United States has
been reduced to a scrap of paper.
The regulatory bureaucracies have ammassed [sic] unimaginable powers, ...
and these powers are used to serve ideologies at the expense of the people
just as happened in [Nazi] Germany and Communist Russia. (Id.)
Not all whites are equally under assault. Straight, white males are the
principal victims of bias:
If you are a white heterosexual able-bodied male (WHAM), you need to
understand that affirmative action is not about leveling a playing field. It
is about leveling you.
Homosexual and disabled white males also vote against you. The latter
have achieved preferred status and homosexuals are demanding it.
Feminists have split many white heterosexual women from you. It has
become dangerous for a WHAM to marry. .... You can be blameless, but your
wife can walk away with another man, your children, half of your property
and pension and a good chunk of your earning for many years to come. If you
resist, your wife may hit you with child abuse charges. You will not get a
You are losing the ability to reproduce as your women influenced by
feminists [end page 243] increasingly eschew procreation.43
White males who try to fight back at their loss of power are demonized:
You have no leaders, no organization, and no spokesmen. Anyone who
attempts to rouse you immediately becomes an outcast. They are slandered and
called names. They lose their job and their voice. You have nowhere to go
and no way of protecting yourself from the vicious propaganda that is
targeted against you. You are too politically weak to cap the immigration
that is making you into a minority in your homeland.44
This phenomenon exists throughout Europe:
The European political establishment has dealt with the problem by
attempting to brand anyone who raises the immigration question a Nazi.
England’s Enoch Powell, Denmark’s Pia Kjaersgaard, Austria’s Jorge
Haider, France’s ... Le Pen have each suffered this fate.45
The problem is not that "the other" (e.g., blacks) is abused; the
problem is that modern Americans worry too much about others. In
an April 26, 2000, article entitled "Welfare State Causes Genocide in
Europe," Mr. Roberts said:
The "compassionate" welfare state is proving to be an effective
method of exterminating European peoples and their cultures. *** This has
become a political question that scares the politicians who have chosen
welfare over cultural integrity. *** So much is in the way: sexual
promiscuity, the feminist pursuit of a masculine role for women, the
security of an old age provided by taxpayers, and an
"other-directedness" that diverts attention away from family
toward the unfortunate. In small towns in the South of the United States,
high school students are bagging groceries for donations to finance their
travel to distant towns where, they explain, they are going "to build
houses for the poor." Shouldn’t these kids be painting their
grandmother’s house or helping an aunt with a garden? But this is not seen
as rewarding. Our "other-directed" culture teaches them that their
duties are to unknown persons in far away locations. This is not a culture
built to last.46
Mr. Roberts appears to be attacking the efforts of a fellow Georgia native,
former President Carter’s "Habitat for Humanity" program. A culture
that teaches its children to help the stranger and the poor cannot last? Coming
from one who stresses his Christianity, this seems heretical. Perhaps I
misconstrue the parable of the Good Samaritan (Luke 10: 25-37). [end
These writings make clear why the authors of The Tyranny of Good
Intentions ignore acts of tyranny against "the other," indeed,
deny that such acts occurred. It also becomes clear why their examples of
tyranny will overwhelmingly focus on the super elite.
WHITE-COLLAR PROSECUTIONS AS TYRANNY
The authors do not expressly limit themselves to elites; there are some
examples of non-elites’ persecution in the book. However, by weight and
passion, the book focuses on super elites: the cases against Microsoft and
Archer-Daniels-Midland (ADM), Michael Milken (Drexel’s "junk bond
king"), Charles Keating (of Lincoln Savings & Loan) and a related case
against one of Lincoln’s myriad law firms (known as "Kaye, Scholer").
I have some personal knowledge of the cases against Charles Keating, Kaye,
Scholer, and Milken (though my personal knowledge of the latter is tangential)
because I served in several different, fairly senior capacities in the agencies
that regulated S&Ls. Milken had substantial involvement with roughly ten
S&Ls, and Lincoln Savings was one of them.47
In their prior book, The New Color Line, the authors
(1995: 143) complained that:
The increased emphasis on prosecuting nebulous "white-collar"
crime, rather than following criminal evidence wherever it leads, reflects a
growing pressure for racial balance in criminal prosecutions.
Race goes virtually unmentioned in The Tyranny of Good Intentions. The
book complains that "inner city" juries are letting (black) criminals
off (Id., x). It also complains about a movie on Rubin ("Hurricane")
Carter’s legal problems:
This movie provided an opportunity to educate the public about corruption
in the criminal justice system, but in our politically correct era most
viewers will conclude that Hurricane Carter was the victim of racism. The
emphasis on racist "white justice" – as if whites are any safer
– blinds the public to the real problem with the criminal justice system:
the erosion of the Rights of Englishmen....(Id., 173).
But, whites are safer; they do not get stopped for "driving while
white," they are less likely to be assaulted by police, and even if they
are druggies they are less likely to be arrested and to do hard time than is the
case for Latinos and blacks. Moreover, there is compelling evidence that Carter’s
legal problems were partially due to his race (Hirsch 2000: 54-55, 114-17, 126,
147-51, 264-73). In sum, the authors’ strong views on race underlie their
skepticism of white-collar crime cases. [end page 245]
The authors’ sentence about white-collar crime in their prior book also
provides evidence of the "priors" they brought to the book I am
reviewing. White-collar crime goes in quotation marks, suggesting it is a
misnomer. White-collar crime is "nebulous." They do not believe
that white-collar, as opposed to blue-collar, crime investigations come from
"following criminal evidence wherever it leads." Unfortunately, the
authors do not acknowledge their priors.
The authors’ treatment of the antitrust case against Microsoft is
illustrative of the way the authors try to make their case. It is one (very
large) part ad hominem attack on political opponents, one part
conservative "law and economics" theory, and one Emeril Lagasse-like
"BAM!!!!" of rhetoric hurled onto the tyranny de jour.48
The personal nasties start in the third sentence of the authors’ complaints
about the Microsoft case. We are told that the Assistant Attorney General in
charge of the Antitrust Division was "ambitious and previously
unknown" (Id., 174). Putting aside the fact that these authors normally think
ambition is a virtue, how do the authors know this? They present no examples, no
citations. Joel Klein is simply declared guilty of bringing a baseless case
because he was a nonentity who wanted fame. As Mr. Roberts phrases it in an
"e" column (which calls for Klein to be "impeached" because
he sued Microsoft):
Ayn Rand is scathing in her comparisons of the government class with the
entrepreneurial class. She could rewrite her story today using real
Microsoft’s Bill Gates, a genius who has done more good for mankind
than any government ever has; Bill Clinton, a scumbag...; Assistant Attorney
General Joel Klein, a third-rate bureaucrat who advances his lackluster
career by attacking America’s most famous businessman; Judge Penfield
Jackson, a disgraceful tool who issues whatever rulings the government needs
to attack Microsoft.49
If Roberts is correct that Klein is a "third-rate bureaucrat," then
we have the most extraordinary public servants in history. I don’t know Joel
Klein, but I took an hour on the web to find out about him. He was born in
Queens into a working-class family and grew up in public housing. He graduated
from Harvard Law School. He did so well there that he made law review, went on
to clerk for a famous federal appellate judge, then for Supreme Court Justice
Powell. This means that he was one of the smartest lawyers of his generation.
Many smart people make poor lawyers. So, what kind of a lawyer is Klein? A
hedge fund analyst wrote an "e" column that proved prescient. He
warned that "the Street" characteristically underestimated government
lawyers: [end page 246]
When I was in law school at Harvard, I would hear periodically about how
the smartest guys at the school were trying to work for this red-hot
boutique firm in Washington with a lead litigator who had a record for
brilliance in front of the Supremes.50
The litigator was Klein. So, if he’s third-rate, our public sector
"A" team must be awesome. You know what really happened though; the
authors do not know Klein and made no effort to learn about him. He brought the
antitrust case they didn’t like, and he worked for the government. It followed
inexorably that Klein must be incompetent. Further, because it is inconceivable
to the authors that people who take actions they oppose could be motivated by
"good intentions," it also follows that Klein must be acting
improperly. Because Klein won, it follows that the government lawyers and judge
must have been abusive. Facts cannot penetrate these ideological givens.51
Far from being some antitrust tyrant, cloture had to be invoked to break a
filibuster against Klein’s nomination to head the Antitrust Division. His
opponents were concerned that he was too weak in enforcing the antitrust
laws. Once he brought the action against Microsoft, its political supporters
bragged to Mr. Gate’s local paper how they had sent a message to Klein to back
off the case by attacking the Antitrust Division’s budgetary request (Grimaldi
The authors’ smear of Klein isn’t even internally coherent. It requires
Klein, for the purpose of aiding his reputation, to knowingly
bring a baseless lawsuit in front of a conservative judge appointed by Reagan.
Bringing a baseless lawsuit in front of a judge who is likely to be hostile to
your position is a great way to destroy your reputation.52
The attack on Judge Jackson is equally incoherent. Why has this
conservative, Republican Reagan-appointee ruled against Microsoft? Even the
authors’ penchant for conspiracy theories fails them at this point, so they
substitute pure bile – the judge is a "disgraceful tool" of Klein.
But Klein is only an appetizer; David Boies is the main course. One would
think Boies would present a few problems for the authors; he is widely
considered the best civil trial lawyer in the country and Klein (the ambitious)
had Boies (a private lawyer) take the lead and gain the extraordinarily
favorable publicity. Moreover, why did Boies get such favorable publicity?
Because he greatly out-lawyered Microsoft’s counsel and repeatedly destroyed
the credibility of Microsoft’s witnesses and counsel. This is how the authors
deal with these facts:
[Boies is] famous for eating with his hands in Washington, D.C.,
restaurants and gambling in Las Vegas. Boies’s legal hallmark is an
ability to manipulate [end page 247] witnesses and lure them into indefensible positions.
... Boies recognized that Microsoft was a high-profile case that could be
tried in the media and that Bill Gate’s childlike personality would make
him a poor witness (Id., 175).
With defenders like this, Gates needs no enemies. The first quoted sentence
is typical of the ad hominem attack the authors launch on anyone they
oppose. It is also characteristic in terms of quality; they get an "A"
for rancor, but they don’t have any good dirt on the people they hate.
The second sentence is equally silly. Remember that the authors stressed in
their discussion of Sir Walter Ralegh’s prosecution (on the basis of a written
statement) that the outrage was the denial of the right to "confront"
(cross-examine) the witness. Suddenly, cross-examination becomes "manipulat[ion]"
if conducted by a lawyer they oppose. Honest witnesses do not get "lure[d]"
into "indefensible positions." Boies destroyed the credibility of a
whole series of Microsoft witnesses because they decided, in consultation with
their counsel, to stake out indefensible positions that were contradicted by
their own records.
But the argument becomes a self-parody in the second quoted paragraph. Gates
did destroy his credibility in his deposition. This happened not because he was
"childlike" (unless the authors mean what most of us have seen as
parents when our four year old tries to tell a fib, but does it so badly that
you have to suppress the urge to laugh). Gates got in trouble for the most
common reason any adult witness looks bad – trying to be too clever by half.
He couldn’t understand common questions; he couldn’t remember things no
trier of fact would believe he couldn’t remember. He ended up looking evasive.
He was snide, even rude. Adam Liptak’s (2001) recent review of the two books
out on the trial53 notes that they show that:
Bill Gate’s disastrous deposition, which played a central role in the
trial, was a comic masterpiece of evasion and obfuscation.
The side dish of law and economics theory comes in this passage:
Microsoft was hauled into court because defeated competitors sought to
regain through ... campaign contributions and government lobbying what they
had lost in the marketplace. The political agitation against Microsoft
created Klein’s opportunity (Id., 175).
This claim that the Justice Department brought the case because of
"political contributions" is not supported by any citation or example.
While some of the victims of [end page 248] anticompetitive actions by Microsoft did urge suit,
their substantive arguments in an excellent legal memorandum were what
proved influential within the government.54
The authors’ treatment of the merits of the case is wholly one-sided and
often inaccurate in such fundamental ways as to undercut their credibility. For
example, they lament that the substantive issues in the case were over the head
of the "jurors, reporters, and the judge himself" (Id., 176). But there
were no jurors; the case was tried to the Judge Jackson. The authors’ claim
that the Jackson’s action in bringing Judge Posner into the settlement
discussions proves that the case was over his head is nonsensical. If anything,
using a more senior judge to seek a settlement is the mark of a self-confident
The rhetoric of tyranny comes in the final paragraph of the authors’
section on Microsoft:
Klein and Boies succeeded with their plan to substitute a personal attack
on Bill Gates in the place of anticompetitive conduct by Microsoft. Their
success, in full view of the public and the legal profession, in using law
as a weapon against Microsoft is a clear indication that our legal system
has degenerated into tyranny (Id., 176).
I think what has degenerated is our use of terms for terrible acts. We
devalue words like tyranny, and real victims of tyranny, when we apply it to
acts we simply disapprove of. Deposing a witness (particularly a brilliant one
represented by able counsel) is not "tyranny." It is an utterly
normal, proper action. The credibility of the lead witness for a party is often
decisive, and those who come off looking evasive have, for thousands of years,
lost credibility. But it is good to know that the authors disapprove of personal
Another super elite victim of tyranny is Michael Milken, the former
"junk bond king" who brought Drexel, Burnham Lambert from raglan to
riches to rags. The recipe is the same: smear the prosecutor, explain why the
defendant is a candidate for sainthood, throw in a dash of law and economics,
and finish with a jolt of rhetoric about tyranny. Milken’s prosecutor was
One of the masters of this art [of plea-bargaining], Rudolph Giuliani,
rode it to the mayoralty of New York City. *** While U.S. Attorney ... he
boasted ... that in his experience the major difference between so-called
white-collar criminals and real ones is that the former "roll a lot
easier." The criminal charges create "a conflict between what they
appear to families, friends, co-workers, and what they’re doing in the
secret part of their life. It tends to move them toward confessing, putting
it [end page 249] all behind them."
Giuliani’s chilling words echo the belief of Cesare Beccaria ... that
torture measures an individual’s sensitivity to pain, not his guilt. Just
as a medieval torturer assessed "the muscular force and nervous
sensibility of an innocent person" in order to "find the degree of
pain that will make him confess himself guilty of a given crime," the
modern prosecutor wields the instrument of psychological torture (Id.,
Think how much fun a deconstructionist could have with these two paragraphs
of bile. First note the words that the authors put in Giuliani’s testimony:
"so-called white-collar criminals and real ones." No, they didn’t
put that phrase in quotation marks, but they tried to give readers the
impression that this was the substance of Giuliani’s testimony. Giuliani did not
testify that "so-called" white-collar criminals are not
"real" criminals. What the authors reveal, unintentionally, is their own
view – a hidden presumption that underlies their book.
Giuliani’s analysis of why such criminals might plea bargain is coherent
and unobjectionable. The second paragraph is so over the top that it again
undercuts the authors’ credibility. This is their "logical" chain:
Giuliani believes that guilty white-collar defendants feel a
psychological conflict that pushes them to confess, medieval torturers were
expert at getting innocent people to confess, therefore, Giuliani is like
a medieval torturer. Q.E.D.?!?
Next, Milken as hero. "Milken was a hugely successful innovator who
single-handedly revolutionized financial markets" (Id., 94). He was a
"genius" with "extraordinary vision" (Id., 94, 99). He was
dedicated to his family and "philanthropy" (Id., 95). The authors
neither inform the reader that other writers have much more negative views of
Milken’s skills and character nor do they respond to these critics.55
The law and economics spin to Milken is brought in by the authors’ reliance
on Dean Fishcel’s (1995) book Payback: The Conspiracy to Destroy Michael
Milken and his Financial Revolution. The title shows the passion he feels
about the downfall of his former client. Dean Fishcel is a leading conservative
law and economics scholar. He is skeptical that insider trading should be
criminal. He acknowledges several of Milken’s violations the law, but views
them as "technical." The authors do not tell the reader that Milken
was Fischel’s client. Rather than discussing the merits of the case, they
simply rely on Fischel’s conclusion that Milken was a hero.
The authors do make an interesting point about the prosecution’s tactics in
an attempt to explain away the fact that Michael Milken, despite hiring some of
the world’s best criminal lawyers and being confronted with what the authors
claim was zero [end page 250] evidence of criminality, decided to plead guilty to a whole range
of felonies. The irony is that the explanation underscores their unwillingness
to inform the readers about cases that would better prove their point, but which
they find politically incorrect because the facts would harm their ideological
Resorting to a tactic that has never been approved by the U.S. Supreme
Court, [they] threatened to indict Milken’s ... brother Lowell unless
Milken pled guilty (Id., 97-98).
The phrase "never been approved by the U.S. Supreme Court" is an
interesting one. It is crafted to make it appear that the Court does not approve
of such tactics. In fact, the Supreme Court has permitted a mother of two small
children to be executed when the sole purpose of charging her with
crimes was to put pressure on her husband to confess. The name of the mother, of
course, was Ethel Rosenberg. Worse, the decision to prosecute Ethel was made at
a time when the government had no evidence she had committed any crime, much
less treason. Moreover, the trial denied them "the Rights of
Englishmen." Among the abuses was a series of ex parte meetings
between the trial judge and the prosecutors as to whether both Ethel and Julius
should receive the death penalty. The case rested entirely on co-conspirator
testimony secured by plea-bargaining. Prior inconsistent statements by these
witnesses were suppressed. Eventually (and contrary to their earlier sworn
testimony), these witnesses would claim that Ethel had served as Julius’
typist. The FBI sent three agents to Sing Sing the day of the execution in the
hopes that Julius would crack. They had prepared questions to interrogate
In the thirteen pages of questions [the FBI] had intended to ask Julius
Rosenberg, only one concerned Ethel. Yet nothing more chillingly sums up the
Bureau’s whole case than that single query: "Was your wife cognizant
of your activities?" (Gentry 1991: 429).
Thus were two young kids orphaned.
By way of contrast, Lowell was Michael’s right hand man at Drexel, and the
prosecutors could prove he was intimately involved in Michael’s felonies.
Still, I disagree with such tactics. Both the left and the right have a tendency
to overlook prosecutorial overcharging when the victim is a political opponent.
If we want to build liberty, we need to provide it to our political foes.
The rhetoric about tyranny in the Milken case is unintentionally revealing:
If government coercion can "roll" a billionaire, Democrat,
Jewish financier who was one of the country’s most productive economic
resources, what can’t it do to a poor, black, inner-city youth or a
middle-class citizen (Id., 99)? [end page 251]
Why is it relevant that Milken was a "Democrat" and
"Jewish?" The implication is that it was harder under the Reagan
administration (the entity that investigated and secured a guilty plea from
Milken) to prosecute Milken because he was a Democrat and Jewish. The only
logical inference is that the authors think that Jews are less likely to be
prosecuted for white-collar crimes than non-Jews. This puts them at odds with
Dean Fishcel (1995: 5, 184), who hints that Milken may have been prosecuted because he
was Jewish. There is no evidence that Giuliani’s decision to
prosecute Milken had anything to do with his religious or party affiliation.
Once more, I think the case for "tyranny" against Milken is
nonexistent. Plea-bargaining is not like medieval torture.
ADM -- Price Fixer to the World
The antitrust case against ADM is perhaps the most bizarre antitrust case in
history, but the authors’ formula remains the same. The authors complain of
"the government’s own dirty hands in fabricating a case" (Id.,
But the authors present no evidence that the government sought to "fabricat[e]"
a case against ADM. Characteristically, they ignore the evidence, though there
is an unusually good public record of the facts in the white-collar cases they
The authors then cite law and economics theory to suggest that ADM couldn’t
have been engaged in effective price-fixing because the price of its products
fell. Further, as a low-cost producer it would have been unprofitable for ADM to
limit its market share, which is what the antitrust suit alleged. "Facts,
however, had nothing to do with the case" (Id., 101). But this is really bad
economics. The fact that prices for ADM’s products were (at times) falling and
that it faced buyers with substantial monopsony power would provide a powerful
incentive to restrict quantity (Simpson & Piquero 2000:
177). ADM had an
incentive to restrict quantity because that was the only way to get its rivals
to agree to do the same. In fact, as tapes prove, ADM agreed with its
competitors to restrict output for the purposes of raising prices. Further, the
cartel did restrict supply and raise prices (Eichenwald 2000:
What is bizarre about the case is Mark Whitacre, a senior ADM official, who
told the FBI that ADM was engaged in price fixing and who became an undercover
agent for the FBI, taping a series of price fixing meetings. Whitacre was a liar
and a thief. He lied to the FBI on many occasions, and he embezzled substantial
amounts of money from ADM while he was secretly working for the FBI. In short,
he was an FBI agent’s and prosecutor’s worst nightmare. At the very moment
when they intended to bring down a massive, international price fixing
conspiracy, their star witness turned out to be a liar and an active thief. The
prosecutors had to revoke his immunity agreement and prosecute him, which they
did successfully (he received a much more severe sentence than the more senior
ADM executives who were caught on tape negotiating the cartel’s terms). [end
page 252] Whitacre’s worthlessness as a witness doubtless greatly diminished the size of
the fine ultimately negotiated with ADM for its antitrust violations. The fact
that it still ended up as one of the largest in history, $100 million, gives a
former litigator like me good evidence of the strength of the case against ADM
(as did reading extensive excerpts from the tapes in Eichenwald’s book). The
tapes also make clear that Whitacre did not create the cartels. Instead, they
were ADM’s customary means of doing business in product lines Whitacre had no
control over. Indeed, the international cartel Whitacre was involved in, lysine,
was formed years before Whitacre joined ADM. In fact, the conspiracy was formed
before either ADM or Whitacre was involved in lysine production (Id., 76-78, 108-111, 243-45). Further, the ADM investigation led to the discovery of
massive price fixing in other areas, particularly vitamins, which were costing
consumers hundreds of millions of dollars (Id., 559).
The authors conclude: "With the ubiquitous plea bargain, prosecutors
have reinvented torture" (Id., 104). The facts of the case show that ADM
pleaded guilty to real crimes it committed.
Charles Keating and Lincoln Savings
The authors discuss what was admittedly the weakest case against Charles
Keating, California’s prosecution of him for aiding and abetting securities
fraud. They ignore the stronger cases in which Keating’s direct, personal
culpability was established. Keating ultimately pleaded guilty in the federal
case. The state case against Keating was controversial among prosecutors.
It occurred because the L.A. District Attorney wanted to get credit for being
the first to indict the most notorious felon in the S&L debacle. The U.S.
Attorney was opposed to the state case going forward, afraid that it would
interfere with his prosecution (he proved correct). The authors’ factual
presentation about Keating is fictional.
They picture Keating as the owner of a "prosperous" real estate
company (ACC) whose purchase of Lincoln Savings was supported with
"favorable financial terms" by the federal regulatory agency (the
"Bank Board"). This is not accurate. ACC was a deeply troubled company
when it acquired Lincoln Savings. Further, Keating did not receive any support,
financial or otherwise, from the government in acquiring Lincoln Savings (Black
Keating did not put up a penny of his own money to buy Lincoln Savings –
his purchase was funded entirely by Milken. Characteristically, Milken caused
ACC to issue many more junk bonds than were necessary to buy Lincoln Savings.
This met three of Milken’s goals simultaneously. It maximized Drexel’s fees
for both issuance and sale. It left ACC grotesquely overleveraged (fancy words
for being deeply in debt), which meant that Milken had great leverage over
Keating. Most importantly, it turned Lincoln Savings [end page 253] into what became known in
the trade as a "captive." Soon, Lincoln Savings would buy a billion
dollars in junk bonds (overwhelmingly from Drexel). Milken "churned"
the junk bond pool to build fees. When junk bonds began to lose value, Milken
increasingly stuffed Lincoln Savings with the junkiest of the junk bond issues,
magnifying losses to the taxpayers. Milken had direct control over Lincoln’s
junk bond portfolio, trading it at will. Lincoln Savings learned at the end of
each day in a telex from Drexel what bonds it now owned, and at what price it
had sold prior bonds. Having captives like Lincoln Savings allowed Drexel to
manipulate its reported default rate and sustain junk bond prices at an
artificially high level.56
Lincoln Savings was a nest of nepotism, and the high salaries were paid
primarily by ACC, not Lincoln Savings. This posed two problems for Keating and
family. ACC, on a stand-alone basis, was insolvent and losing money. ACC lost
money because it was not a good home builder, it had enormous interest expense
due to the very high cost junk bonds it had issued, and the Keating family
salaries were exorbitant (Id; Black
1989; Mayer 1990: 172-73).
All of this meant that Lincoln Savings’s strategic plan under Keating was
always quite simple: it had to funnel large amounts of cash up to ACC to
forestall ACC’s bankruptcy and maintain the Keating family’s lavish life
style. Keating used three tactics to fulfill that strategic plan. First, he used
fraud to create fictional profits at Lincoln Savings, which were used to justify
making dividend payment to ACC. When the Bank Board ordered an end to the
dividend payments, he continued to use fraud to create fictional profits, then
used fictional income tax liability to upstream roughly $100 million to ACC.
When the Bank Board discovered the tax scam and ordered it halted, Keating
ordered ACC to do the thing that finally made an arcane S&L crisis into a
national scandal: he had ACC sell uninsured junk bonds to Lincoln Savings
depositors, in Lincoln’s branch offices.57 ACC decided that the
best place to sell these bonds was in branches serving retirement communities.
Keating had turned from defrauding the federal government generally to
defrauding individuals – and the individuals he picked were overwhelmingly widows.
For the first time, an S&L failure would leave tens of thousands of
victims uninsured, with individual losses totaling $250 million. The S&L
debacle now had a human face – and it was your grandmother’s face you saw
when you turned on the television. One widow, in her 70s had lost all her
savings. It turned out that she was saving to purchase a special van – to
transport her quadriplegic daughter. She was the sole means of support for the
daughter, who was in her 40s. A widower, distraught at the loss of his savings,
committed suicide. As humans, we empathize with the plight of individuals, not
All truly great disasters involve many factors coming together at the same
time, [end page 254] and Lincoln Savings fits that pattern. It was the most expensive failure
of all time, $3 billion. Many of the top law firms and audit firms in the
country had aided Keating in looting Lincoln Savings. Keating, who had more
political muscle than any other CEO, had enlisted five U.S. Senators (the
"Keating Five") to try to get the regulators to go easy on Keating’s
violations (I took the notes of that meeting that led to the Senate ethics
investigation [Calavita, Pontell, & Tillman 1997: 1996]). Keating had also
achieved something unprecedented in U.S. financial regulation; he had used his
political muscle and threats to sue the Bank Board to secure the removal of his
regulators (me and my colleagues – who were warning of Keating’s crimes and
the likely, catastrophic failure of Lincoln Savings). Our memoranda were
thorough and hard hitting, not bureaucratic mush, and made it clear that the
Bank Board’s cave-in to Keating was a scandal. We also made powerful witnesses
in the congressional hearings after Lincoln Savings’s failure (which led to
the resignation of the top S&L regulator, Danny Wall [Black
Moreover, Lincoln Savings collapsed at the same time as the newly elected Bush
Administration finally ended the cover-up of the scale of the debacle and the
public began to be told that it would cost the taxpayers well over a hundred
billion dollars to fix it. Keating promptly compounded his problems by holding a
"press conference" (a misnomer, for Keating read questions he
had written, read answers to his own questions, and refused to take questions
from the press):
One question ... has to do with whether any financial support in any way
influenced several political figures to take up my cause. I want to say in
the most forceful way I can: I certainly hope so (Mayer 1990:
The authors ignore the evidence of Keating’s fraud, and portray him as a
great businessman. "Lincoln, listed by Forbes as the nation’s
second most prosperous thrift in 1987, became the symbol of the S&L crisis
two years later" (Id., 52). The type of fraud engaged in by those who
controlled S&Ls (what I term "control fraud") routinely created
massive fictional profits (NCFIRRE 1993:
3-4; Black, Calavita & Pontell
1995). Lincoln was already insolvent in 1987, and it continued to lose money
until it closed.
Keating is pictured as a scapegoat. "The real estate collapse, which
decimated both ACC and Lincoln, was caused by negligent U.S. policymakers. Most
economists attribute the fall in real estate values to ill-conceived monetary
and tax policies" (Id.). Coming from a lead author who was an
Assistant Secretary of the Treasury under Reagan, and who claims to have been a
"supply side" leader in formulating those "ill-conceived ... tax
policies," this argument is surprising. It is certainly correct that the
1981 tax act, which Roberts influenced, created strong economic incentives to
make real estate investments that made no economic sense, by creating abusive
"tax shelters." These perverse incentives contributed to regional real
estate "bubbles." Keating, far from being an innocent victim of the
collapse of this bubble, was a leading contributor to it. Lincoln Savings’s
massive, uneconomic real estate investments in a regional market that was [end
page 255] already glutted increased real estate losses.58 Still, Mr. Roberts is
correct that his "negligent" and "ill-conceived" policies
did much to harm the economy.59
The Kaye, Scholer Case
The authors' discussion of the successful enforcement action brought by the
federal S&L regulatory agency, the Office of Thrift Supervision (OTS),
against one of Keating’s most prominent law firms, Kaye, Scholer, Fierman,
Hays & Handler, is full of factual errors. The authors’ primary criticism
is that the OTS required Kaye, Scholer to inform on its clients. That is false;
the OTS position is that Kaye, Scholer made false statements to the regulators
on behalf of Charles Keating. The OTS would have loved it if Kaye,
Scholer had been a "zealous advocate" on behalf of its client’s
interests. Instead, Kaye, Scholer assisted Charles Keating (who was not
its client) in looting Lincoln Savings (the client). The OTS had a very
strong case against Kaye, Scholer – which is why it settled the claim for over
$40 million (Simon 1998: 253).
The authors’ secondary criticism is the way the OTS brought its
action, which is controversial. The authors claim that the OTS "froze"
the firm’s and the partners’ assets. That is not correct. The OTS had
extensive settlement discussions with Kaye, Scholer prior to bringing the
enforcement action. In those discussions (and in comments its counsel made after
the OTS brought its action), Kaye, Scholer’s position was that bringing suit
against it would destroy the firm. Specifically, it claimed that its creditors
would refuse to loan it new funds and would demand immediate repayment of
existing loans and that many partners would withdraw from the firm and take
their capital with them. The result would bankrupt the firm and make it
impossible for OTS to collect even if it won a large judgment. That may have
been a scare tactic on Kaye, Scholer’s part to try to get the OTS to accept a
smaller settlement, or it may have been accurate based on the firm’s knowledge
of its creditors and partners. The impact on the OTS was to spark thought of how
to sue Kaye, Scholer without ruining the agency’s ability to collect a large
judgment. The result was the "asset preservation order" that OTS
issued. This deliberately did not freeze the firm’s or its over one
hundred partners’ assets. Instead, it prevented abnormal withdrawals of firm capital
– it allowed normal firm payments to keep it operating.
The non-Draconian nature of the OTS order is what posed the greatest
litigation headache for Kaye, Scholer. The statute allows such OTS orders to be
issued ex parte with no prior notice to the defendant. That is an
extraordinary power, and one that can be abused. Recognizing the risk of abuse
(or mistake), Congress has provided that the party subjected to such an order
can immediately challenge it – not before the OTS, but before an independent
entity, a federal district court. Kaye, Scholer could have gotten an immediate
hearing before the court attacking the order. Due to the lengthy settlement
discussions, in which the OTS had laid out its claims, Kaye, Scholer was
prepared to [end page 256] bring such a challenge. Kaye, Scholer even had one of the country’s
leading legal ethics scholars, Geoffrey Hazard, lined up with a draft opinion.
(Characteristically, the authors cite Professor Hazard without informing the
reader that he was retained by Kaye, Scholer – or that he authorized release
of his opinion without ever reading OTS’ complaint!) Kaye, Scholer settled
instead of filing because it knew that its legal position was weak.
THE AUTHORS’ SUGGESTED REMEDIES
The authors’ hearts clearly aren’t in their final chapter "What is
to be Done?" They say they’re including it because "Authors who
expose such a deplorable state of affairs are expected to provide proposals for
reform" (Id., 176). They approach reforms with the zeal of a dutiful
16-year-old taking calculus (which he detests) because his Dad expects him to do
so. The chapter is notable in several respects. First, instead of discussing
reforms, much of the chapter presents their claim that Microsoft and tobacco
companies are the victims of tyranny, then detours to attack gays. Second, while
the book suggests a number of reforms, none is discussed in the final chapter
because the "plight of American democracy is beyond the reach of legal
reform alone" (Id.).
The Reforms that the Authors Raise, but Later Ignore
The reforms suggested by the authors to the criminal justice system would
eviscerate white-collar crime prosecutions of elites and reduce blue-collar
prosecutions. The authors call for an end to all plea bargaining, all use of
"stings," all use of informers and undercover operations, and suggest
that prosecutors bear a risk "similar to medical malpractice for bringing
unjustified cases" and that juries that acquit defendants should be
permitted to indict the prosecutor for bringing unjustified cases (Id.,
60, 84-85). Street criminals can frequently be caught in the act or identified
through witnesses or physical evidence. Non-elite white-collar criminals (e.g.,
small embezzlers) can be caught by internal firm controls and frequently confess
Control frauds, which cause vastly greater losses, involve elite white-collar
criminals. They can "turn off" or avoid internal controls and use the
firm both as a "weapon" to commit fraud and as a shield against
prosecution. They hire the top law firms and auditors in the country with firm
resources to "bless" their frauds. Absent cooperating witnesses, which
means plea-bargaining, convicting elite white-collar criminals would be
extremely unlikely. I can attest from substantial personal experience how
reluctant prosecutors are to bring complex fraud cases against control frauds.
If the prosecutors could not make plea bargain and faced indictment if they lost
a case, elites would be untouchable. Because the authors believe that these
elites are the most oppressed Americans, and because they believe white-collar
crime is not "real" crime, they view this immunity as desirable. I
believe it is the primary goal of these suggested "reforms." [end
The Authors’ Ultimate View -- Only a Revolution will Do
The authors’ "one hope" for the ideological revolution they
believe essential is "the universal failure of government" (Id.,
This failure, they hope, could lead people to reject the legitimacy of the U.S.
government. "The American republic established by the Founding Fathers is
long gone, destroyed by the Civil War and the New Deal" (Id., 182):
Today Americans increasingly feel defenseless in the face of the
government that they supposedly control. What was formerly a patriotic,
flag-waving element of the population has been organizing itself for the
past few years into private militias (Id., 177).
In short, the authors offer a useful insight into the mind of the militia,
put into a seemingly respectable book endorsed by Milton Friedman and Alan
Dershowitz. Government has never done anything useful; if not hamstrung it will
leap into tyranny. The Civil War – which led to constitutional amendments
prohibiting slavery, providing the right to due process and equal protection of
the law, and granting the right to vote to black males – somehow destroyed the
American republic. Apparently the republic, which enslaved blacks, was not
tyrannical, while freeing blacks was tyrannical. How the New Deal destroyed the
republic is even less clear.
Was the country a republic, and non-tyrannical, when its racist and religious
bigots were "patriotic, flag wav[ers]?" The militias do not control
government in the United States, which enrages them, but was the nation less
tyrannical when their predecessors in the Klan controlled many local
By the close of the book, which you may recall was supposed to be about
"good intentions," the authors’ have "locked and loaded"
and unleash this militia-mode burst at government workers:
Homogenous bureaucracies staffed with ideological zealots will devour the
rights of the American people in the name of their causes, just as German
Nazis and Soviet communists devoured the rights of their subjects (Id.,
At a time of surging budget surpluses, full employment, ever lower federal
income tax rates for the rich, ever higher percentages of national income and
wealth going to the richest of the rich, the turning of the word
"liberal" into a label a politician must avoid at all cost, the
collapse of communism, the triumph of neo-classical economics, a consensus on
the need to "reinvent" government, lower crime rates, and reduced
rates of out-of-wedlock births, why has pessimism captured the raging right?
Why, with the death of J. Edgar Hoover [end page 258] and the resignation in disgrace of
President Nixon leading to a dramatic reduction in abuses by the FBI,
does the raging right see "Nazis" (or is it communists?, since we’re
"homogenous ... ideological zealots," we bureaucrats must all belong
to the same dictatorial movement, but which one?) and "black
helicopters" (filled with third world UN troops) everywhere?
The ragin’ right is living in an America they no longer understand or
appreciate. It is no longer a white, Protestant country. It is no longer a
country in which men rule absolutely the home, the office, and the government
(though men remain extremely dominant in the latter two spheres). Because women
normally work outside the home, they have far more independence than at any time
in our history. It is no longer a country in which bigotry is respectable. It is
no longer a country in which it is fine to despoil nature. Worst of all, the
right senses that there is no way to go back. The Republicans can control the
Presidency, both houses of Congress and the Supreme Court, but the country will
continue to become more diverse and women will not withdraw from the workforce.
Because the ragin’ right cannot embrace Latinos, they see demographics as
destiny and know that things will get (from their perspective) much worse.
ALIENATION AND TRUST
While the authors purport to decry the alienation of Americans from
government, they are contributors to that alienation. Indeed, that is reason for
the book. They want the reader to believe that government officials are tyrants.
They want whites, particularly straight, able-bodied, rich, Republican males to
view themselves as being oppressed by the government, feminists, Democrats, and
minorities. They routinely demonize their opponents.
All of this is corrosive of what other scholars, of all mainstream
ideological varieties, have been arriving at a consensus on – the immense
value of trust to civil society.60 Adam Smith was half-right about
the butcher when he observed that we rely not on his altruism but his
self-interest to provide us with good meats. Self-interest is helpful, but
insufficient in many instances. What happens when the butcher has sold his
business, with the deal closing in two weeks? We want a butcher who will not
sell us cheaper, unsafe meats during that two weeks. When we are a stranger
passing through a town we will never visit again, we want to be able to go to
butcher without being sold unsafe meats. If safety regulations are expensive to
comply with and if compliance is hard to observe, and some disreputable butchers
violate the rules and gain a competitive advantage, we want our butcher not to
cheat, even if he could get away with it and profit. When cheating is widespread
and trust erodes, transaction costs go up in the private sector. In the public
sector, something far worse happens. When the government responds to widespread
cheating with rules designed to prevent abuses, bureaucratic delays to honest
citizens increase and trust in the government erodes. The stage is set for [end
page 259] a
perverse spiral. The authors, of course, view Americans’ remaining trust in
government as misplaced and a problem.
This attack on trust and the U.S. government represents a radical shift in
Mr. Roberts’ views. He (1984: 255) had identified the central U.S. problem as a
"denunciatory" ethic on the part of liberal elites.
Similarly, in their book attacking the Brown decision, civil rights laws,
and affirmative action, these co-authors argued that the flaw in all such
measures is that they displaced that which was essential to community:
"goodwill" (Roberts & Stratton 1995:
170). Now, they relentlessly
attack goodwill, arguing that groups they disfavor will destroy America,
demonizing all who disagree with them, and conclusively presuming that
government actions are evil.
ETHICAL TRAINING, LEADERSHIP AND AGENCY CULTURE
In scattered instances, the authors hint at the importance of ethical
training and leadership and professional mores in preventing tyranny. They note
that in nations controlled by corrupt leaders, the government is likely to be
pervasively corrupt (Id., 140). They argue, though I believe the facts prove the
opposite, that J. Edgar Hoover set such a firm moral tone at the FBI that
individual agents rarely engaged in abuses (Id., 145). They note that
prosecutorial ethics have long required the prosecutor not simply to seek
convictions, but to seek justice (Id., 63). They also argue that the rapid
expansion of the ranks of prosecutors in response to the war on drugs weakened
prosecutorial cultures that emphasized restraint and the importance of seeking
justice (Id., 137).
All of these arguments are a cause for joy, for they come from believers in
"public choice" theory, which attempts to explain governmental
behavior as a simple exercise of maximization of individual self-interest by the
governmental decision-makers.61 Understanding that ethical norms are
critical, that the training government officials receive and their ideological
views may be decisive, that agencies develop cultures that constrain individual
actor’s choices – all of these aspects would make public choice theory far
more nuanced if the theory were broadened to include them. Unfortunately, the
authors do not analyze these issues, and by the time they get to their
recommendations chapter, they ignore all of these matters.
Because the book is designed as a collection of purported horror stories, and
because they come to bury government, not to praise or save it, the authors do
not examine any success stories and attempt to explain why they believe a
particular agency has not engaged in tyranny. They also ignore agency
effectiveness; we need agencies that fulfill their missions effectively,
efficiently, and fairly (and those missions have to be appropriate). The failure
to examine success stories and agency effectiveness helped produce a book that
ends with bile instead of reforms. [end page 260]
WHAT REFORMS FOLLOW FROM THE AUTHORS’ LOGIC?
The authors’ logic would suggest the need for reforms that are often the
opposite of the reforms they actually allude to. For example, their analysis is
that it is critical to attract superb individuals to the public service (e.g.,
they repeatedly decry "third rate" bureaucrats) and train and lead
them in a highly ethical fashion. However, one of the reforms they suggest is
the reinvigoration of the "delegation" doctrine. Few things would be
more effective in maximizing the difficulty of recruiting and retaining the best
government officials than the delegation doctrine. Under the delegation
doctrine, appointed officials would have very little opportunity to make
judgments based on expertise. Their function would be to mechanically implement
extraordinarily detailed statutes (because making substantive rules would be
largely made illegal). The type of people we want as government officials would
not do so if the job were reduced to the level of mindless functionaries who
could not even stop clear evasions of such statutes. Some elected officials
might welcome the return of the delegation doctrine – until it happened. Then,
faced with the need to become experts on exotic details of hundreds of different
fields, they would rue the day that the delegation doctrine was reanimated.
What is needed is a fusion of some of the authors’ timely emphasis on
fairness with the stress on efficiency and effectiveness coming out of the
"reinventing" government movement. That movement sees citizens as
"customers." That may be a useful conceptualization for many purposes,
but it breaks down when applied to involuntary spheres (e.g., prosecutions).
Efficiency and effectiveness in the context of criminal justice is not enough;
it can come at the expense of fairness, and abuses can cause monstrous harm to
individuals and society.
We want something very special from prosecutors, something far different than
what their educational preparation has stressed. Prosecutors are litigators, and
the fundamental thing one is taught in litigation is zealous advocacy on behalf
of your client. Coupled with the universal desire to win, the need to win to
advance in the job, and the fact that the folks one prosecutes are
overwhelmingly people who arouse one’s disgust rather than compassion, it is
not hard to slip from prosecutor to persecutor. It takes a strong ethical
culture to counteract these tendencies. Training alone cannot build such a
culture; the bosses must demonstrate through their own actions that they are
serious that the prosecutor’s duty is not simply to win convictions, but to
seek justice. This is not a war that can be "won." Rather, it is a
process that has to be maintained for all time. There will be lead prosecutors
who are unethical or merely pathetic managers. A well-developed ethical culture
is the best first line of defense (the courts and legislature are the second and
third lines) against such lead prosecutors.
It will never be perfect, but generally speaking, prosecutorial and police
abuses in the U.S. are vastly reduced from earlier in our history. Prior
generations have improved [end page 261] the system greatly, making the "Rights of
Englishmen" effective for far more people than ever in our history.
Each generation has the responsibility to continue that improvement.
I agree with the authors that the drug war, the rapid expansion of criminal
justice system personnel, and hysteria are causing serious problems of fairness.
Contrary to the authors’ position, the burden of the drug war clearly does
fall much more heavily on blacks and Latinos than whites. There is a
strong suspicion that police testimony in drug cases often involves perjury
(e.g., about "plain sight"). This is intolerable; it creates a rot
that cannot be contained. Similarly, it has now become routine for there to be
press leaks from some prosecutors’ offices in major cases. This is illegal and
unjust. It can only persist in offices where the lead prosecutor permits it to
continue. Strong ethical leadership could promptly end most of these abuses.
We should also build trust. The love of liberty is one of the things that
many Americans of every political persuasion and background share. As Myrdal (1944) understood, it is our national creed. We often fail to live up to that
creed, but our nation has returned over and over to it as we have progressed and
realized that none of us is truly free while we deny freedom to others because
of our all-too-human flaws. Emphasizing that creed is one way to rebuild trust.
Prosecutors who seek to convict the innocent, or are indifferent to whether they
convict the innocent, are unethical. This is something all Americans can agree
on and work to reduce.
There are practical ways to achieve this goal. We need to be careful in
picking our lead prosecutors. We are not. Getting the job of top prosecutor is
almost always a product of politics. We need to pick leaders who care
passionately about justice as our top prosecutors. They can, and usually will,
set and reinforce the proper ethical tone. We also need to preserve the
exclusionary rule. Finally, we need to prosecute prosecutors if they do suborn
I noted that the authors implicitly raise five important questions:
- How can nations that value liberty so highly engage in tyranny?
- What groups are most at risk of being tyrannized?
- How are acts of tyranny ended?
- Do perverse incentives lead prosecutors and regulators to act like
- Can ethical public sector leadership prevent, or at least reduce, tyranny?
The authors suggest answers to all but the third question. Had they addressed
the third question, and examined the history surrounding the first, I think
their analysis and recommendations would have changed. We have a long history in
the United States, [end page 262] England, and other "Western" (speaking culturally
rather than geographically) democracies that were former English colonies with
"the Rights of Englishmen." We know how valuable those rights are, and
how highly our ancestors’ prized them. We also know this paradox; it was
precisely that knowledge and appreciation that led to the pervasive denial of
such rights to "the other" through much of our collective history. For
example, whites knew that these rights were the keys to power, freedom, and
safety, which is why blacks were stripped of these rights. These acts of
tyranny ended because our ancestors gradually defined more and more residents as
part of the community: the "us" rather than "the other."
No honest appraisal of our history can make rich, white, straight,
able-bodied, Christian males the principal victims of tyranny. The principal
victims have been those who look different from the English, believed in a
disfavored religion, or opposed the interests of the dominant society (e.g.,
labor movements and radicals). As bigotry has declined and tolerance increased,
tyranny has been greatly reduced. The authors’ spread intolerance, a
"cure" that makes the disease worse.
* Direct correspondence to Professor William K. Black, University of Texas at
Austin, Lyndon B. Johnson School of Public Affairs, Campus Mail Code: E2700,
Austin, TX 78712 (email: firstname.lastname@example.org). This work was made possible
in part by The Elspeth Rostow Fellowship. I thank her for her aid and
unparalleled sense of humor.
1. I use the word in its conventional senses as involving either (or both)
exercising pervasive political power by denying any meaningful right of
political participation to the polity and using that political power to
seriously oppress others through extra legal or sham legal (e.g., "show
2. Roberts & Stratton 2000:140,
3. "The GOP and the White Vote" (www.vdare.com/pcr_gop_whitevote.htm; accessed 1/15/01);
(www.newsmax.com/commetarchive.shtml?a=2000/5/10/170132; accessed 12/6/00).
4. (http://www.newsmax.com/commentmax/print.shtml?a=1999/8/18/075417; accessed
5. England had widespread slavery ("villeins") for hundreds of
years and even penal and gallery slavery for a time in the 16th
century, but thereafter, English laws prohibited slavery -- even as
England became one of the major slave nations in the 18th and 19th
centuries (Bush 1996). English law ignored slavery in the colonies until it
first banned [end page 263] the slave trade and then provided compensation to free slaves in
the West Indies in the 19th century.
6. And no lavender in that box of crayons! As their score-settling spins out
of control, the authors detour to attack gays, who they none too subtly compare
to pedophiles and practitioners of bestiality (Id., 180-81). No, it has nothing
to do with their thesis, they just wanted to share their hate with us before
closing their book two pages later. The authors’ love of liberty doesn’t
extend to gays. Though they quote with approval the common law’s enshrinement
of a man’s home as his castle (Id., 12), they think it a good thing to
arrest gay adults engaging in consensual sex in the privacy of their own homes (Id.,
7. Roberts 1984:
8. They adopt the English national myth that they were the new "chosen
people," (Johnson 1997: 19-21; Shakespeare, Richard II, II.i.
["This other Eden, demi-paradise"]) -- then improve upon it.
Eighteenth century England becomes Eden (and Eire is ejected), complete with a
serpent (the father of utilitarianism, Jeremy Bentham) and a sage, Sir William
Blackstone (author of the Commentaries on the Laws of England). The
standard English myth embraces the Whig reforms (expanding the franchise, ending
slavery, reducing discrimination against non-Anglicans and limiting child
labor). The authors ignore those reforms. The authors’ views strongly resemble
those of 18th century Tories who, like Blackstone, opposed most
reforms. The intellectual most identified with these reforms was -- Jeremy
Bentham (Smith 1966: 584; Rodgers 1987:
9. The "Pale" was the area of Ireland (Ulster) under Protestant
10. The Penal Laws were an outgrowth of the "Glorious Revolution"
(in which English Protestants invited William of Orange to depose the Catholic
king of England, James II). Irish Catholics supporting James II were defeated at
the Battle of the Boyne. Parliament breached the peace treaty that William
signed with the Irish and further suppressed Irish Catholics by means of the
Penal Laws. The authors discuss the Glorious Revolution as the culmination of
England’s road to liberty, ignoring its effects on non-Anglicans. All
non-Anglicans were deprived of some critical rights, but the repression of Irish
Catholics was much more severe (Smith 1966: 370-71). Edmund Burke ... described
the Penal laws as [being as] "well fitted for the oppression,
impoverishment and degradation of a people, and the debasement in them of human
nature itself, as ever proceeded from the perverted ingenuity of man." The
Lord Chancellor was able to say: "The law does not suppose any such person
to exist as an Irish Roman Catholic" (Irish Famine Curriculum Committee
11. Golway & Coffey 1997: 4; Takaki 1993: 143-45.
[end page 264]
12. Actually, English law limited market rights severely. The infamous
"Corn Laws" were one example of this. These laws worked systematically
to harm the Irish economy, with the goal of helping the English economy. As with
the ability of English and U.S. elites to have slavery and devotion to freedom
coexist, many English felt no qualms in insisting on laissez faire when
it came to responding to mass starvation in Ireland, even though government
interference with the markets was decisive in producing that starvation.
13. The editorial also contains these classics:
There was but one way [holding public work wages to subsistence levels]
to avoid a calamity [dependency on English relief] compared with which the
potato blight is trivial.
[T]he Irish peasant had tasted of famine and found that it was good
[because of the dole].
Extended suffrage ... for a peasantry who have for six centuries
consented to alternate between starvation on a potato and the dole...! You
might as well give them bonbons....
(www.people.Virginia.EDU?~eas5e/Irish/Notfamine.html; accessed 1/25/01).
14. Many English tried to prevent starvation, including Prime Minister Peel,
whose efforts cost him control of the government and split the Tory party, and
the remarkable Quakers.
15. Some of these atrocities were committed by the Irish.
"Transportation" to Australia was a common sentence for both Irish
common criminals and political prisoners (Hughes 1998: 181).
16. Indian Express Newspapers
1997 (quoting from Dyer’s August 25,
1919 report to the General Staff Division). Later, when Gandhi was asked what he
thought about "English civilization," he replied that he thought it
was a good idea.
17. Executions for minor crimes (Smith 1966:
563-64); press gangs (Boorstin
1996: 198 n. 53); transportation (Hughes 1998); limited franchise (Tuchman 1984:
141); workhouses and debtors’ prisons (Rooke 1970: 22,
66); child labor (Smith
1966: 587-88; Rooke 1970: 42-45); property requirements for jurors (Boorstin
1996: 231 n. 19). [end page 265]
18. And beyond. Things were no better 70 years later (Smith 1966:
19. His logic was that non-elites lacked the independent will requisite to be
a responsible voter. Non-elites would fall under the influence of the rich if
allowed to vote. The franchise was limited to the rich to protect the non-elites
from falling under the influence of the rich.
20. My list does not include the treatment of indentured servants, Latinos,
women, homosexuals, Jews, Catholics, or the Irish, all groups that experienced
substantial repression. German-Americans faced substantial oppression during
World War I. Others see abortion, the U.S. use of atomic weapons against Japan,
the Vietnamese War and the sanctions on Iraq as acts of tyranny. Clearly, much
broader lists are possible. As the reader will see, all-inclusiveness is not
necessary for my purposes here, for the authors ignore all of these acts.
21. (Then) Judge William Taft wrote his wife about the 1894 Pullman strike:
"It will be necessary for the military to kill some of the mob before the
trouble can be stayed. They have only killed six ... as yet. This is hardly
enough to make an impression" (Tuchman
22. (www.newsmax.com/commetarchive.shtml?a=1999/6/2/071408; accessed
23. In a column entitled "Shame on Us" he wrote: "It is no
favor to a person to refuse to hold him or her accountable. By refusing to hold
the Clintons accountable, we enabled further misdeeds ...." (http://www.townhall.com/thcc/content/roberts/robe082098.html; accessed
24. "Ethics" is an ironic term when applied to J. Edgar Hoover, for
he "lost" them early in his career and was a petty thief stealing from
the taxpayers (Gentry 1991: 740-46; Summers 1993: 186-88,
25. "A Political Kidnapping" 12/9/98 Investor’s Business Daily
26. (http://www.newsmax.com/commentarchive.shtml?a=1999/6/3/070115; accessed
9/9/01); (www.newsmax.com/commetarchive.shtml?a=2000/4/24/100319; accessed
27. Huston was the former head of the ironically named, "Young Americans
for Freedom." The further irony is that when Hoover’s objections scuttled
the Huston plan, the White House responded by having Krogh and Liddy (an ex-FBI
agent) create "the Plumbers." [end page 266] The Plumbers did the illegal break-in of
Ellsberg’s psychiatrist’s office. Liddy then joined "CREEP" and
planned the Watergate break-ins and buggings (Gentry 1993).
28. As California’s Attorney General, Warren was a strong advocate of the
internment, while J. Edgar Hoover opposed it (Kluger 1976:
661-62; Takaki 1993: 378-82). The contrast should have made the internment one of the authors’
leading examples of tyranny, but their refusal to admit to the existence of
prejudice and its role in producing tyranny disqualified its use.
29. "The GOP and the White Vote" (www.vdare.com/pcr_gop_whitevote.htm; accessed 1/15/01).
30. (www.newsmax.com/commetarchive.shtml?a=2000/5/10/170132; accessed
31. The Civil War was fought over the South’s fear that the Republicans
would restrict the spread of slavery to new states and not enforce the Fugitive
Slave Act, reducing the slave states’s political power. The South did not
secede because of tariffs. There was, of course, an indigenous population in the
South before the arrival of Europeans. Slaves did not just happen to be black;
European laws and customs after the 1600s ended the practice of enslaving
whites. Slavery was not fading out in the 1860s; it was highly profitable and
growing. Racism most assuredly was the norm in the United States, and not just
the South, and not just prior to the Civil War. Indeed, the heyday of
"scientific racism" and racist histories continued well into the 20th
century (Kluger 1976: 305-08; Rodgers 1987:
164; Gould 1981; Foner 1998).
32. As with Roberts’s spurious claim that Southern slavery was fading
out before the Civil War, Roberts and Stratton (1995:
30) claim that segregation was fading
out in the South before the NAACP began bringing legal challenges.
The problem was that blacks were "impatient" (Id., 31). Their
response to the old question: "If not now, when?" is:
33. (http://www.insidenaples.com/today/editorial/a50641q.htm; accessed
34. (www.newsmax.com/commetarchive.shtml?a=1999/6/16/072949; accessed
35. Mr. Roberts has intense feelings about gays. In his column "Cultural
Destruction in the Military" (11/17/98) he blames feminists and gays:
Hillary’s appointees have succeeded in their assault on the last
bastion of heterosexual males. *** The destruction of our military’s
culture is intentional [end page 267] (http://www.newsmax.com/commentmax/print.shtml?a=1998/11/19/080332; accessed
Confusingly, in his column "Our Homeless Future" (2/12/99) he wrote:
Not even U.S. Marines could meet the demands of Sparta’s training. If
confronted with Spartan standards, the personnel in our feminized Army and
navy would drop like flies (http://www.newsmax.com/commentmax/print.shtml?a=1999/2/12/083513; accessed
However, Sparta’s version of "male-bonding" should be problematic
for one who wants to preserve the military as "a last bastion of
36. (www.newsmax.com/commetarchive.shtml?a=2000/4/24/100319; accessed
37. (www.newsmax.com/commetarchive.shtml?a=2000/11/15/221856; accessed
38. (www.newsmax.com/commetarchive.shtml?a=1998/12/23/093310; accessed
39. (www.newsmax.com/commetarchive.shtml?a=2000/6/12/193700; accessed
40. (www.newsmax.com/commetarchive.shtml?a=1999/6/16/072949; accessed
41. (www.newsmax.com/commetarchive.shtml?a=1999/1/20/090540; accessed
42. (http://Members.aol.com/CallGuy190/roberts.html; accessed
43. (www.vdare.com/whams.htm; accessed 12/6/00) Mr. Roberts is very upset
about feminists. Women are perpetrators, not victims. For example, in
"Marines Under Feminist Attack" (11/14/97), he wrote:
Ever since the Tailgate [sic] scandal, which was orchestrated by
feminists and destroyed naval aviation, the military brass have been
running, in fear of their careers, from the feminists that Clinton unleashed
on the military. (http://townhall.com/thcc/content/roberts/robe111797.html;
The reader may have shared my misapprehension that drunken naval aviators
orchestrated the sexual assaults on women. In language that brought to my mind
the Jack D. Ripper character in Dr. Strangelove (who obsessed about
"precious bodily fluids"), Mr. Roberts [end page 268] tells us that the male is more
likely to philander. Nature gave him the stronger urge, because he has the
fertilizer. If he is indifferent to spreading it, life could die out. The
stronger urge is the male’s burden
(www.newsmax.com/commetarchive.shtml?a=1999/7/28/073331; accessed 12/6/00).
(Many women agree that some males spread a lot of fertilizer.) In this same
column he says that women have become "unpaid prostitutes" and
reaffirms the old double standard based on his belief that promiscuity impairs
women’s, but not men’s, ability to attain emotional intimacy.
44. (www.vdare.com/whams.htm; accessed 12/6/00).
45. (www.newsmax.com/commetarchive.shtml?a=2000/4/26/090855; accessed
46. (www.newsmax.com/commetarchive.shtml?a=2000/4/26/090855; accessed
47. My 15 minutes of fame came from discovery of Keating’s memorandum:
"Highest priority. Get Black ... kill him dead...." and his Bivens
suit (a case that allows suits against government employees in their individual
capacities for breach of constitutional rights) against me for $400 million. The
suit was dismissed with prejudice after our "Rule 11" letter to his
lawyers. (Rule 11 allows sanctions against attorneys for pressing a case they
know has no legal merit.)
48. Other characteristics include excluding all information inconvenient to
the authors’ claims, not identifying seemingly neutral sources as being on the
defendants’ payrolls, innuendo, and unsupported assertions. For example, they
discuss the criminal case against Messrs. Altman and Clifford without ever
mentioning that the case was about them fronting for BCCI (informally known as
the "Bank of Crooks and Criminals, International") -- the most
notorious banking fraud in world history, or that criminologists who have
studied the case think that they did in fact serve in that role (Griffin &
Block 2000). The prosecutor, Robert Morgenthau lost the
case, which leads to this classic innuendo: "how many other defendants did
Robert Morgenthau successfully frame" (Id., 59-60)? No citations are offered
to support rhetorical bombs such as the claim that prosecutors "routine[ly]
suborn perjury" (Id., 136) and "if prosecutors need to fill a quota of
white-collar criminals, they must find businessmen to frame" (Id., 60).
First, they do not establish that there are such quotas. Second, if there were
quotas, they could be met without framing anyone. In my experience, the number
of worthy white-collar crime cases against elites (not including petty
embezzlements, etc.) always greatly exceeded white-collar crime prosecutorial
and investigative resources. Every time I made a high priority criminal referral
against a fraudulent S&L CEO, I knew that I was implicitly letting a lower
priority white-collar criminal off the hook. [end page 269]
49. (www.newsmax.com/commentarchive.shtml?a--2000/4/12/081714; accessed
50. (Cramer, abcnews.go.com/sections/business/street/cramer_1218/index.html;
51. As Mr. Roberts has urged: "Only propagandists insist on lying in the
face of facts"
(www.newsmax.com/commetarchive.shtml?a=1999/1/20/090540; accessed 12/7/00).
52. Klein was reluctant to bring a broad antitrust case and tried to settle
the case (on terms Microsoft could have easily lived with) prior to bringing
suit (Auletta 2001; Heilemann 2001).
53. Auletta (2001); Heilemann
54. Auletta (2001); Heilemann
55. Stewart (1992); Bruck
(1989); Mayer (1990).
56. Akerlof & Romer (1993).
57. The authors claim that such arrangements were "common"
They were rare.
58. (Black 1998: 219-24,
234; Akerlof & Romer 1993; NCFIRRE 1993:
But for the passage of the 1986 Tax Reform Act which ended most of these abusive
tax shelters, and Bank Board Chairman Gray’s "re-regulation" of the
S&L industry beginning in late 1983, these real estate bubbles would have
grown much larger, perhaps to levels similar to Japan. The Japanese economy, a
full decade later, has still not recovered from its bubbles.
59. Conversely, their claim that the 1989 Act that finally ended the S&L
debacle "ruined" many "successful thrifts" by showing
"bad economic sense" in requiring phony "goodwill" to
be removed from S&L balance sheets is wrong and preposterous in terms of
economics. Everyone admits that the goodwill was an accounting fiction that was
devoid of economic substance (NCFIRRE 1993:
38-39). For an S&L that was truly
"successful" (i.e., profitable on a real economic basis, as opposed to
a phony accounting basis), the removal of the fictional goodwill would have been
60. For a conservative perspective, see Fukuyama
(1995); for a communitarian
view, see Fisse and Braithwaite (1994), for Gore’s
(1993) perspective, see the report of the National Performance Review. [end
61. The book demonstrates the weakness of conventional public choice theory.
The authors state explicitly the function which they claim prosecutors seek to
maximize: "their conviction rate is their performance indicator" (Id.,
89). That is a plausible (if reductionist) claim, but it is wholly inconsistent
with the authors’ thesis in the book. If a prosecutor wants to maximize a conviction rate, she should 1) go after clearly guilty people; 2) avoid novel
theories; 3) avoid complex cases; and 4) avoid defendants who have huge
resources to spend on defense. The book claims that prosecutors do the opposite
of each of these four factors, and ignores the inconsistency.
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