Friday, November 26, 2021

Not Even an Ounce of Prevention

I've been thinking for a long time that the civil side of our legal system is not up to the assumptions it is ostensibly premised on.

  • It's breaking down under its own weight and particularly lack of funding.
  • Civil cases take multiple years or even decades.
  • The quasi-threat of being sued is not enough to prevent bad actors like Purdue Pharma and other vastly wealthy corporations.

The old adage "an ounce of prevention is worth a pound of cure" applies, as the writers of the Voting Rights Act knew. That's why preclearance was required in the act, and it's also why John Roberts spent his career positioning himself to be able to get rid of it, so that Republicans could carry out the voter suppression rules and gerrymanders they're now enacting without consequences across the states.

Another example is the exclusionary rule applied to evidence (discussed here). Having cops know that all evidence they take without a warrant will be excluded means they will get warrants. Leaving it up to some weird "system" where the person whose home they violate can supposedly sue them for damages is a joke.

Lack of prevention was on display during the Trump years. The emoluments case moved so slowly that it became moot, since he was no longer president. The Justice Department is still looking at the inauguration illegalities from more than four years ago. And who knows how many other criminal proceedings are wandering around somewhere in some part of an attorney's office or judicial branch, or how many civil suits there are against him? He made his career by suing people to prevent things and slow things down, and it works.

The thing that made me write this today of all days was a Marketplace report called Congratulations! You're an Entrepreneur Now about a class action suit filed in 2008 that has yet to be decided. Yes, that's 13 years ago, before Uber and Lyft were even a thing. The suit was brought by people classified as contractors and franchisees by Jan-Pro, a company that outsources janitorial services to companies like stores and offices. The mostly Latino and Black workers suing Jan-Pro ended up doing grinding working for sub-minimum wages, after paying franchise fees to the company for the privilege of working. It's a classic multi-level marketing scheme.

Since that suit was filed, janitorial outsourcing has become almost the only way the work is done (though not usually with franchises), and many other types of work have been converted into contract labor that clearly violate the definitions within the Federal Labor Standards Act, including warehouse work at Amazon (how can they have contractors for that kind of job, which is essential to their business?).

But it takes years or decades to challenge things, and individuals usually don't know what the law is or realize it will take forever to change anything. They feel powerless, and who can blame them?

Organizations like CTUL help, but it would be even better if there were ways to prevent this kind of exploitation, and I'm sure there could be. It would take a reinvigorated Department of Labor, more unions, and other things we can't have, given the way Republicans are bent on creating nirvana for billionaires.

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