We’ll Raise Up Our Glasses Against Evil Forces, Singin’ —

There’s an old Toby Keith song that numbers among my guiltiest pleasures. It begins:

Granpappy told my pappy, “Back in my day, suh-uhn,
A man had to answer for the wicked that he done.
They call a rope in Texas, find a tall old tree,
Round up all of them bad boys, hang ’em high in the street.”

For all the people to see.

That Justice is the one thing you should always find,
You gotta saddle up your boys, you gotta draw a hard line…

Has a sort of late Roman Republic ring to it, doesn’t it? Crucify ’em all, and line the Via Appia with their remains?

Catchy song, though — and it stands as an anthem to the conservative notion that Justice should be swift, brutal, and unburdened by a surfeit of procedural protections, pre- or post-conviction. Let’s see how that stacks up against the modern GOP’s anti-populist, neo-Lochner respect for corporate “liberty” above all:

Let’s be honest. The White House meeting with British Petroleum was a shakedown.

The White House threatened criminal prosecution of BP, the President gave a miserably received speech, then he hauled BP into the White House and put the Attorney General in the room with the CEO to stare at him, then the President demanded $20 billion.

It was a shakedown.

Poorly. RedState’s Erick Erickson continues:

Had British Petroleum affiliated with Al Qaeda and tried to blow up an airplane, it would have gotten due process rights, a court appointed lawyer, and miranda warning while avoiding Henry Waxman.

Obviously, this is an unfair characterization. The criminal presumption of innocence is a much stronger shield than the civil fact of, “I saw your company flout safety regulations, flood our shores with oil, and not do a damn thing about it.” And there’s nothing improper about threatening a company with prosecution for crimes and civil wrongs it did in fact commit. In fact, it’s the very definition of fairness: compensate our citizens and our country for what you did to us, or we will gut your company to the fullest extent of the law. The last caveat is key, but Erickson never even attempts to argue that BP hasn’t committed a wrong that would justify prosecution, to the tune of $20 billion or more (including legal fees).

Has the GOP so far abandoned populism, and a decent respect for the dignity of this nation and its people, that we’ll shed tears over the plight of a megacorporation, and not the citizens of the Gulf, whose lives will never be the same? Well, when John Boehner has to remind his ranksunsuccessfully — not to appear “sympathetic” to the oil industry, yes. So much for “draw[ing] a hard line.”

How is this, too, not a homeland security issue?

For your, ah, enjoyment, Toby Keith & Willie Nelson’s music video, below the line:



  1. The reason that many on the Right (myself included) are troubled by this is that it was completely unnecessary. Everyone knows that BP will be spending billions to make all of this right. There will be hundreds of lawsuits (some just and some ridiculous) brought by your colleagues. I can only imagine the level of excited anticipation being felt right now among the legal community of the Gulf Coast. Ambulence chasers could parlay this into early retirement.

    So why bring them to the WH and make a big spectacle of things? One simple word: theater.

    It’s the same motivation that had the President and VP sharing a beer with Professor Gates and the officer who arrested him. This administration likes to put on a good show.

    Where I believe they stepped over the line (other than the basic shame of arranging this ambush) is when they demanded a specific dollar amount. Nobody knows how much this thing is going to cost. I would guess that in the end it will be a much higher pricetag. So picking an arbitrary number of $20 billion and demanding it ‘or else’ seems a bit to Godfather for my tastes. The WH should not be getting involved in the monetary logistics here. That’s what the court system is for. They over-stepped because they don’t want to look weak. Instead they just came across as bullies.

    1. Where you go wrong is here:

      Everyone knows that BP will be spending billions to make all of this right. There will be hundreds of lawsuits (some just and some ridiculous) brought by your colleagues.

      In fact, nobody knows they’ll do that themselves (what could possibly suggest they’d do it on their own?), and lawsuits are expensive, time-consuming, and inefficient means of allocating resources. A large slush fund is the best, and most efficient way to allocate the money, and if it’s strong-arming, it’s what the government’s there for, to make sure that justice is done in the most expedient manner.

      1. Without the courts what criteria will be used to determine a valid claim? How far from the spill would the damage go? can a restaurant in Boston which serves Gulf shrimp file a claim for loss of business? There’s a reason we have the courts and the potential lack of expediency should not be cause for circumvention.

      2. The hidden assumption is that the compensation fund will be utterly uncontrolled, but that’s illogical to the point of being a straw man. We’ve done this sort of thing before, as in the asbestos fund, and the claim structure was (and probably will be) a no-fault claim system (fault is assumed) that nonetheless requires claimants to prove their connection to the operative event.

        1. I’m not saying it won’t be controlled – I am saying what kind of criteria do they use? Use my example – does the restaurant get money? How is that decided?

        2. I feel like I’ve answered this. But the answer is that the master, in cooperation with the defendant and representative claimants, along with government authorities, will probably settle on a standard of causation. I can’t imagine what that will be yet, and speculation that it’ll be too attenuated, like your example, is premature at best.

          1. If the program is so great and so safe from flaws, why not use government money and the government can seek reimbursement from BP? Why force them to pay now? Shouldn’t there be a legal ruling on responsibility before money changes hands?

          2. I’m quite sure BP could sue if they wanted to. This is all taking place with BP’s consent, backed, of course, by the knowledge that unless they provide it they WILL be prosecuted. That they haven’t (and won’t) is either an admission that they wouldn’t win, or proof that they’re just great guys out to do right by the American people. I’m sure it’s the latter.

            1. Or choice #3 which is that they were intimidated into doing it by the President of the United States…which is the point of dispute by the Right.

            2. Your concern for the Big Bad Foreign Polluter is touching, but confusing. Obama’s only able to intimidate BP to the extent that he could make their lives hell through lawful prosecution. BP’s a big boy, and if they thought it was in their interest to resist, I’m quite sure they would. In the meantime, those actually wronged will be paid faster, which I see is not really something you care about?

              1. I’m saying the fastest way to distribute money is through the federal government in the form of direct payments. We can afford it, we already have FEMA, why not use it?

              2. First, FEMA’s purpose is not to indemnify a corporate tortfeasor. Second, do we have $20bn to spare? Where’s the conservative whining about fiscal responsibility? Does that fall by the wayside because you’d rather hurt this country than a foreign corporation? Third, so THEN we would “strongarm” BP out of the money the government’s already spent? How does that avoid your harm?

                It doesn’t. It’s just an alternative that’s not Obama’s plan, and lets you claim to have come up with a plausible alternative with superficial benefits.

                1. Yeah – we DO have $20b to spare. And I think the government would have no problem recouping the money so long as it was distributed in accordance with state liability laws. Why the fear of that process?

                2. I don’t know what you mean by “in accordance with state liability laws” and I don’t think you do either. And it’s not clear why it’s good for the US government to be holding the bag for a foreign company.

                  It’s also not clear why this is a more “conservative” idea, and not just a smokescreen being thrown up by you to obscure the fact that your objections to the actual plan don’t really play out well.

                  1. It’s already been announced that claims will be evaluated based on the liability laws of the states where they are made. So in my example the claim of the restaurant would be evaluated using MA laws. This is in-line with how the 9/11 fund was managed.

                  2. Ok… sure :). I still don’t see where this is going.

                    1. Let’s try it this way: Your apartment building burns down. The initial fire department findings are that it started in your apartment. You seem to remember having a hotplate with faulty wiring that you neglected to unplug after making your Sunday waffles. Would you be supportive of the mayor of NYC demanding you write a check for $1 million to cover all potential damages to your neighbors’ lives, letting a ‘neutral’ third party decide on the validity of those claims? Wouldn’t you see some potential for abuse of that system?

  2. As the resident proponent of swift and brutal justice, I feel I should point out that pre-conviction procedural protections are good things. People who aren’t aghast at the minimalism of 4th Amendment protection, for instance, well I can’t agree with that. There’s no reason we can’t strengthen the procedural protection provided by Amendments 4 through 7 while eliminating the error of #8. Frankly, I believe that’s what we should do.

  3. Really? That song has always made me rather uncomfortable. I prefer to call it The Lynching Song.

    1. It’s weird, it is. But it’s SO CATCHY. And I choose to construe it to apply to my legal enemies. So the lynching is only metaphorical.

  4. Mike, to make the analogy stick you’d also have to assume that there was a history of safety violations on my part leading up to the crisis, and that the sum total of my actions potentially exposed me to in excess of $1M in civil damages, or criminal sanctions, or administrative fines. Otherwise you’re building a deliberately inflammatory counterfactual.

    Now, assuming all that, I would be concerned for the potential abuse, but also recognize the potential for savings. What’s been accomplished here is the informal equivalent of statutory interpleader — an arbiter (instead of a court) takes the money and doles it out accordingly, thus capping damages (at a high level) and making everything predictable. If I thought the balance weighed against me I probably would fight it. But, if I decided not to and instead pay into the fund without a fight, I’d scratch my head and wonder why some random bloggers were rushing to my defense, and probably conclude that they were using my “interest” to try to score a cheap political point, against my wishes, and further pollute the national discourse.

    Also, note that Mike’s point puts him to the right of O’Reilly, and somewhere alongside Bachmann. http://www.talkingpointsmemo.com/archives/2010/06/oreilly_grills_bachmann.php?ref=fpblg

    1. Are you suggesting that BP won’t have to pay more than $20 billion? Are you also saying that the federal government will force everyone seeking damages to apply for aid through the fund? Does this fund kill any potential lawsuits? What if someone applies for money from the fund and doesn’t like the amount they are given? Can they then sue BP for the balance?

    2. My assumption is that this is a fund from which the White House and BP estimate all private claims can be paid, but by their own assertion it’s not a ceiling (read the rest of that for more answers to your questions about process).

      1. Ahhh…there was the line I was looking for:

        “Dissatisfied claimants maintain all current rights under law, including the right to go to court or to the Oil Spill Liability Trust Fund.”

        So basically you can go to the fund and if you want more, you can then sue BP. So again, why have the fund in the first place? It doesn’t protect BP from lawsuits at it doesn’t cap their liability? The only reason I can see for their participation is that they were intimidated into participating.

        1. But it’s also an easier route for the claimants. It’ll certainly cost less in court and attorney fees. And then maybe you get $100k. Yeah, you can then sue if you think you should’ve gotten $200k, but then that judge gets to ask exactly why $100k wasn’t enough, when the independent arbiter of the fund said it was, plus you’re adding more cost for yourself. It’s a different situation from setting out to sue for $200k in the first place, but still many people will take the easier, faster, cheaper route, even if it means a potentially smaller payout.

        2. Exactly. I didn’t add that earlier because claimants’ interests seem to be beside the point for Mike…

      2. This is becoming ridiculous. You might as well ask “why have administrative law judges, if you can just appeal from the judgment?” Because not everyone appeals, and those that don’t are removed from the system and gain satisfaction quicker.

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