What the S.Ct has done to ERISA is disgusting, ERISA itself is a depressingly limited piece of legislation -- it's really not that hard to draft an ERISA plan than is virtually immune from judicial review (all you need is a clause saying that benefits decisions are made at the discretion of the plan administrator, I'm astounded that every plan does not contain this clause, but some lawyers drop the ball), and the further protection from lawsuits the S.Ct has afforded employers is frightening and leads to these dreadful results. Never mind the tie of benefits to employment and the virtual abolition of pensions and their replacement by 401(k) and 403(b) plans.
So things are fucked up enough without the kind of dumb comment that Woj makes here. The Volksgerichten were malign instruments of a fascist state run by compliant judges who _did not have to do what they did_ in the most part, which was to ignore the law -- the Nazis didn't actually tinker much with Weimar law, and Weimar law was fairly decent, a pretty good European Code system. The judges in the "People's Court" appled the principle that the Fuehrer's Will Is Law, the Fuehrerprinzip, but mostly they had to just guess at what that was, since the Fuehrer was too busy to make his Will clear in a lot of instances.
The consequences of mass civil obedience, that is, following the law, would have probably been to help cripple the Nazi state at least at home. It is at least plausible that the judges would have faced no serious sanctions. In the one case I know of where a judge did something that sounds kind of extreme and scary in a fascist state, in this case issuing an injunction barring a hospital in his jurisdiction from murdering the disabled, he was, after some deliberation, retired with a full pension. He had strong connections to the Lutheran Church, which the Nazis could not afford to offend too much, but all judges have Connections, even in civil law continental systems. All they had to do to throw a wrench in the works was follow the law.
Our federal courts, in which I have worked and in which I litigate, have their limitations and real problems. I will talk about them until you tell me to shut up. But to compare them to the Nazi People's Courts is just foolish. Here in this case, the judges are reluctantly following the law, being dragged over a harrow to do things they hate because the law established by the Congress and interpreted by the S.Ct is clear and horrible. They face the opposite problem of the judges in the People's Courts, who had to disregard the law to please the government, as they saw it, and apparently did so without reluctance. The federal judges in these ERISA cases have to follow the law they did not make despite their sense of personal ethics. I've been there and I hated it, but I think that as judges they are doing the right thing. What sucks here is not the federal courts but the law as enacted and interpreted.
There's a lot that's awful in the federal courts. Don't start me talking, as I said. But People's Courts they ain't. And mostly even right wing federal judges try to do the right thing; 85-90% of cases would come out pretty much the same way no matter what the political orientation of the judge. Of course the remaining 10-15% of the cases where the politics matters are mainly the important ones, whch is why it matters who appoints and confirms these guys and gals. But let's get clear on the real problems. Right now, fascist lawless lower courts are not among them.
--- On Sun, 7/6/08, Wojtek Sokolowski <swsokolowski at yahoo.com> wrote:
> From: Wojtek Sokolowski <swsokolowski at yahoo.com>
> Subject: [lbo-talk] Employers use federal law to deny benefits
> To: "lbo-talk" <lbo-talk at lbo-talk.org>
> Date: Sunday, July 6, 2008, 8:42 AM
> http://biz.yahoo.com/ap/080705/benefit_battles.html
>
> [WS:] Here is anoher example of the Amerikan
> "justice" system at work. Honestly, I do not see
> how the Amerikan legal system is different from the Nazi
> "people's courts" that provided legal window
> dressing to state policies.
>
> Wojtek
>
>
>
>
>
> ___________________________________
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