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Jewish World Review
August 22, 2006
/ 28 Menachem-Av, 5766
Don't practice legal terrorism
Eager as he is to keep America's free-enterprise economy healthy, President Bush should take a close look at what's going on at the Department of Justice. Is an antibusiness culture developing there? In the aftermath of the Enron scandal has America's law enforcement machinery begun to display a systematic animus toward big business and corporate bosses?
Looking at this from the outside, I've certainly gotten the impression that government lawyers are becoming too enthusiastic in bringing dodgy businessmen to justice or at least in setting the legal process in motion. But the delays in bringing these cases to trial are in and of themselves becoming scandalous.
What's happened to the spirit of habeas corpus? Do big businessmen no longer enjoy its protection in the U.S.? Savvy legal friends in America tell me that these delays are not accidental. Government lawyers have a vested interest in exhausting the financial resources of defendants before they even get to trial.
Behind all this appears to be a suspicion, a hatred even, of the way big business operates and of the whole process of earning big profits and commanding large salaries. I get the feeling Justice officials think it is morally wrong to make a lot of money unless, of course, the person making the money is a lawyer.
This attitude is something new in the philosophy of American government. One of the reasons America has been able to create the world's most successful economy, with its spectacular expansion for more than two centuries, is that its government state and federal has created a sympathetic climate for business.
Next to Alexander Hamilton's work in giving the U.S. a sound currency, the man who contributed most to making the country prosperous was Supreme Court Chief Justice John Marshall. The judgments he made and inspired during his long tenure [1801 35] formed a firm legal basis on which entrepreneurial capitalism could flourish mightily. There has been nothing to rival Marshall's creative work in the entire world history of jurisprudence countless millions of ordinary Americans enjoy affluence today because Marshall gave capitalism the legal green light.
Because of this grounding Americans have never been made to feel ashamed of making vast sums of money through their enterprise and industry. And that in turn has led to a philanthropic generosity unique in the world, which has given America galleries and libraries, universities, parks and cultural institutions that have no parallel in number and quality elsewhere. Andrew Carnegie summed it up when he said that there was nothing wrong in becoming rich but that a "man who dies rich dies disgraced." Carnegie became one of the richest men of his time and he gave the bulk of it away.
But philanthropy requires there to be accumulation in the first place. As Margaret Thatcher never tired of explaining, the Good Samaritan was able to look after the distressed traveler precisely because he was well-to-do. Pontius Pilate's Justice Department hadn't harassed him out of his wealth.
Modern business is infinitely complicated and becoming more so by the hour. The opportunities for putting one's hand in the till and defrauding the public and shareholders remain ample, despite continual attempts to tighten the laws. Law enforcement must remain vigilant in scrutinizing the whole business of moneymaking and must bring the occasional villains to justice. But it mustn't develop attitudes of suspicion that imply that business itself is a fundamentally unethical activity and that the typical businessman is a person who operates close to illegality.
In fact, the complexities of modern business especially the speed at which difficult financial decisions must be made often create gray areas in which the law is unclear, and any legal advice may turn out to be wrong. In the end it is often a matter of opinion as to whether the law has been broken or not. That, of course, is precisely what a jury has to decide. But in complicated cases jury verdicts can be swayed by the aggressive tactics of law enforcement and by the weakening of the defense through long delays before the case is brought to trial.
Businessmen, of course, can always play it safe. But that is contrary to the spirit of capitalism, which, in the pursuit of success, depends on taking risks often huge ones.
The future of free-market enterprise depends on the continued willingness of rank-and-file entrepreneurs and executives to take risks to launch and expand businesses, as well as to retain their businesses' competitiveness in increasingly crowded world markets.
If businessmen and -women become scared of breaking laws they imperfectly understand, or if they fear becoming victims of the Department of Justice's legal terrorism, they'll cease making the kinds of decisions that keep the U.S. economy energetic and pushing forward.
That would be tragic for the U.S. and the world. So let's keep the legal bloodhounds active but on a sensible leash.
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© 2006, Paul Johnson