It’s unlikely that Trump would strip Americans of the right to elect their leaders. It’s more likely that he’d undermine those institutions that restrain the power of the leaders Americans elect. He’d undermine the institutions that limit presidential power and safeguard individual rights and equality under the law.
.. Trump’s close ally, Roger Stone, has said that, “when Donald Trump is president, he should turn off” CNN’s “FCC license.” Trump has repeatedly calledthe journalists who cover him “scum” and barred news organizations that cover him critically from attending his public events.
.. It’s easy to imagine what will happen to Curiel now. Like the journalists Trump has publicly slammed, he’ll receive an avalanche of personal, bigoted abuse from Trump’s supporters, including, quite possibly, death threats. This may, in and of itself, give future judges second thoughts about incurring The Donald’s wrath.
.. But the more Americans think the courts are rigged, the stronger Trump’s position. The more he convinces his supporters that judges, like reporters, are corrupt and self-interested, the less public legitimacy they enjoy. And the less public legitimacy they enjoy, the less they can check Trump’s power.
.. Where he’s been more consistent is in his willingness to denigrate anyone who gets in his way. He’s less likely to the challenge federal judiciary’s progressivism than to challenge its independence. Gonzalo Curiel may be the first judge he’s threatened on his way to the White House. But he’s unlikely to be the last.
Donald Trump and the Judge
One would think Mr. Trump, whose sister is a federal appellate judge, would know how self-destructive it is for any litigant anywhere to attack the judge hearing his or her case. But Mr. Trump is not any litigant; he is running to be president of the United States — a job that requires at least a glancing understanding of the American system of government, in particular a respect for the separation of powers. When Mr. Trump complains that he is “getting railroaded” by a “rigged” legal system, he is saying in effect that an entire branch of government is corrupt.
The special danger of comments like these — however off the cuff they may sound — is that they embolden Mr. Trump’s many followers to feel, and act, the same way.
.. So it is particularly important to note when Mr. Trump’s statements go beyond the merely provocative or absurd and instead represent a threat to America’s carefully balanced political system.
Trump Attacks Federal Judge in Trump U Case
The presumptive GOP nominee devotes 12 minutes of a 58-minute address to the suit
.. To the San Diego crowd, Mr. Trump argued that Judge Curiel should be removed from the case because he is biased against him. The evidence Mr. Trump presented: Rulings against him and the fact that Judge Curial was appointed to the bench by President Barack Obama. The Senate confirmed Judge Curiel by a voice vote in September 2012.
.. “The judge was appointed by Barack Obama, federal judge. Frankly, he should recuse himself because he’s given us ruling after ruling after ruling, negative, negative, negative.”
.. “I think Judge Curiel should be ashamed of himself,” Mr. Trump said. “I’m telling you, this court system, judges in this court system, federal court, they ought to look into Judge Curiel. Because what Judge Curiel is doing is a total disgrace, OK? But we’ll come back in November. Wouldn’t that be wild if I’m president and I come back to do a civil case? Where everybody likes it. OK. This is called life, folks.”
The Cure for Corporate Wrongdoing: Class Actions vs. Individual Prosecutions
But the story is not quite that simple. In most such class action suits, the monies awarded to the victim shareholders are paid not by the executives responsible for the frauds, but by the companies themselves—which means, in effect, by the current shareholders (or, if the company is in bankruptcy, by its secured creditors).
These current shareholders (or other stakeholders) are as blameless for the fraud as the shareholders they are paying. Indeed, in many instances they are classic small shareholders who purchased their shares before the fraud (and are therefore not part of the plaintiff class) and held on to their shares not only throughout the period of the fraud but thereafter. Unlike hedge funds, which are more adept at getting in and out of an investment, these “retail” investors are now punished twice for the fraud they had no role in committing, first by the decline in the value of their shares upon the fraud’s exposure and second by the large payments subsequently made by the company they own to settle the class action.
.. While there were vague precedents going back to medieval times, and more specific US provisions dating from 1842, a real need for class actions was not perceived until the rise of large corporations and mass production. A mass-produced product with a hidden defect, for example, might not be worth the price paid for it, but no reasonable purchaser was about to spend hundreds of dollars in legal fees to recover the few dollars she had been, in effect, overcharged. She had what Coffee terms a “negative value” claim. Yet if the defective product had been sold to several million purchasers, the collective economic injury was considerable.
.. The driving force was that most intractable of all US problems: combating racial prejudice. In particular, the civil rights movement of the 1960s, to the extent that it sought reform by means of judicial rulings, could be effective only if those rulings benefited similarly situated black persons, i.e., the class of those affected by the racism the litigation was intended to correct, such as segregation in schools or exclusion from obtaining mortgages.
.. For example, class actions against employment discrimination appear to have led to a considerable increase in minority hiring and promotion well beyond what would have likely occurred in their absence.
.. It is hard to believe that the settlements in such cases have much of a deterrent effect on the individual executives who actually committed the alleged misconduct. This is why, in my view, class actions are no real substitute for criminal and regulatory prosecution of the individuals actually responsible for corporate misconduct.
.. In Canada, if the plaintiff loses the case, he must pay the defendant’s often considerable legal fees. And in Australia—which has the most robust class action bar outside the US—contingent fees are prohibited, but private companies, though not themselves plaintiffs, are permitted to fund such actions and thereby absorb the risk.