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Above: Lake Geneva, Switzerland. At Montreux.

Fodderize v.t. 1. To break down individual components; to make fungible; to disregard difference; to render one easily substituted for another 2. To impose sub-quality goods or services upon, with little recourse 3. To cap role choices, hinder access to resources regardless of merit, and so avoid competition 4. To manage perception by propaganda-spin techniques, while concealing dispositive facts 5. To manipulate, lure, exploit, deceive


Sunday, June 6, 2010

BP Laws. Flaws Squelch Equity. Sue in Mississippi?

Laws for Corporations.  
Heavy on the Nit-Pick Legal; Light on Equity.

Sue in Mississippi.

The People vs. BP
Get Some Recourse for the Busted Pelican

There are too many escape hatches in law.  The wording, which judge interprets, spin in legislative intent, and money, money buying the ability to stay the course, wear out the little guy.

We used to separate "law" and "equity" -- the fairness side -- in Western systems.  Someone aggrieved by a cruel result in law, could still apply in equity for consideration of softer issues of fairness, clean hands, laches, remedies tailored to meet a need, not just counted in money damages.

Combining the two led to law taking over, and nobody even knows equity any more.

So:  Where to sue?  An answer is counter-intuitive.  Yet, states with historically disastrous insensitivities to the common good (that is, weighing in for the individual in a commercial activity as opposed to the public interest) may hold a key to forcing our latest incarnation of disastrous insensivities -- BP -- to heel.

Sue in a state that has maintained a separate identity for equity.

Look at Delaware - a border state that, we think, was the last to free its slaves - is that so? and South Carolina and Mississippi,* with their slavery traditions; and New Jersey, with its corruption traditions (sorry); meet Big Oil, through BP of Busted Pelican fame. All heavy in economic implication. Yet, those states have technically separate equity courts, a mindset that draws a distinction. 

Of those, bring the BP cases in Mississippi. The BP matter is appropriate for hearing in a state valuing fairness. It involves as much equity as it does law. We see that BP is already making waiver of future claims a condition of receiving that first $5,000 to fisherfolk on the Gulf. Is that equitable? Like the mortgage fine print?

What is equity?  See an overview of the parameters of equity at Puttin' On The Writs: Equity.  Then ask, can or should we restore equity in contracts law, in anything, including statutory construction.  Now equity gets short shrift.  Yet, reforms are moving to put equity back in human matters, even contract, in banking, mortgages, fair dealing to people, and that is Good. How, though, to get equity for the voiceless - the Busted Pelicans of the world. To kill a pelican.  No matter. Is that so?

Suggestion:  Bring the lawsuits where equity will be heard on a par with law. That may mean Mississippi, with the consult of New Jersey, South Carolina, and - yes - Delaware.  If Mississippi's corporate law framework is amenable (experts, this is your area - look that up at://, sue BP in Mississippi.  Promote equity jurisdiction. Corporate malfeasance requires it.

I.  Mississippi as a forum of choice

Sue BP in Mississippi.  That forum would invoke more clearly the equitable issues at stake here, and we all know that outside counsel will run whatever cases are brought where. They need not be limited to Mississippi-ans. We need far more for these cases than just which laws were broken; Mississippi can use the income that these cases would bring; so let's get the suits out of their comfort zone, back with natural American pop-u-lism as a counterweight to corporate greed.

Mississippi has separate equity jurisdiction that probably would not incorporate the issues here totally, but the fact of two ideas out there and one being equity, counts.  At the Mississippi courtreference site, see all the court systems there, including Chancery Court.

See the headlines: To kill a pelican. Equity jurisdiction for corporate malfeasance.

In that, equity matters. conservatives can't miss the crucifixion-recollecting outline of a goo-coated victim, wings outspread, beak wide, side view. That was on Rachel Maddow. And now lots of such.

We have found four states so far that still retain separate equity courts, at least useful as educational support for the people who are used to the idea of "fairness" as a legitimate inquiry, even if it does not work.

This means stay out of Texas. Out. No cases.  Not one. Keep BP cases out of Texas.

A.  Mississippi is one of Equity's Hot Quartet

1.  Mississippi.  Why Mississippi? It sounds odd as a choice, but it is already making the acquaintance, getting a first-goo look-taste-revulsion experience. Mississippi.  M-i-crookaletter-crookaletter-i-humpback-humpback-i. Deep South. 

2.  Delaware not so much, but Delaware knows corporations. Little Delaware. Border South.  It was among the last states to free its slaves.*

3.  South Carolina knows sleaze, and so does

4.  New Jersey, so put them on the pro hac vice list. Ha.  Pro hac vice here means for this vice.
B.  Mississippi would be a fresh place to start for the Need to Legitimize Equity - literally, make it legitimate, more a part of Law.

Get out of Texas.  Equity gets nowhere there.  Texas is winner take all. It is time to beef back on the equity ideas.

Back in 1938, the Federal Rules of Civil Procedure combined law and equity in one system, one judge or jury to hear all issues.  Most states followed suit, a pun upon it. And, in the process, the emphasis went on Law, not fairness.  That is the essential difference, and each has equal stature - or should - if we are talking justice and not robo-jailings.

Retaining equity jurisdiction:  Chancery courts separately hearing some things. Can those be made to work well with corporate malfeasance.  Delaware and Mississippi have stubbornness in their favor.  They are true to their entrenchednesses, which also makes them very lovable, and we mean that.  Delaware's states-rights beliefs led to its wealth in corporation matters.  They wooed and got corporations to incorporate there, by giving nice laws to them.  It knows the ropes. 

Benefit to suing in an equity state:  The people learned the difference, probably.  Since the words are familiar - Chancery Court in Delaware, for example - people are used to thinking of law and equity as separate matters.  Divorce, wills, trusts, corporate sometimes, they have strong equity jurisdiction and may well even be separate physically from the law courts (that also do hear equity in their matters, but it isn't given the same Naming, so slides under as damages, or sentencing stage.  Equity has regard in Delaware, and probably in Mississippi. Unless Jim Crow gets in the way. Or corporate or megamillionaires. You find out. In theory, equity is supposed to get respect. Is that so?

C.  Offer Mississippi its opportunity to be at the forefront of modern thinking.

An equity focus has broad reach?

In states that do not keep the equity words in the forefront, all people know is "law".  Make them obey the law!  They are illegal!  This zygote supersedes the hostess, and don't let her forget it. So give her child support. Laws without equity are like _____________ without __________.

Law never in itself ends the matter.  There remain others responsible.

Law without equity as equal focus is wrong. In our tradition, law may come up with a terrible result but still be legal - and that is why equity arose with the ability to correct the course.  See://  Have we lost that flexibility just by letting words fall away since 1938.  Illegal immigrants may have come in because we condoned it for years, estoppel? with doors open, using the labor, we waited too long to fuss - laches. No clean hands. Etc.

Think of Law as the chopping off of the hand for theft of an apple.  Do the deed? Pay the price.

This is what we have lost:  Equity in our tradition comes in and says, yes, but:  Yes, to the theft.  But look at circumstances both sides, clean hands, laches, estoppel, in extremis, etc;  to feed a starving brother:  He keeps the hand but works for the shopkeeper squaring away the fruit at the stand (no whippings) for two months.

Theoretically, we blend law and equity appropriately by using law to prove what was done, and who did it, and what law was broken thereby.  The trial.  The sentencing (think criminal), or damages (think civil) is supposed to come after the deed, the doer and the law are identified and match. But on the rise are automatic sentences - limits on liability, three strikes, mandatory this and that.

We lose.

D.  Mississippi is on site.  And in situ.

Its people have the idea already, because there are Chancery Courts already: that equity is important and different.  What do the combined mindsets of Mississippi, New Jersey, South Carolina and Delawarecontribute to pending BP litigation.  They say, do equity.  Not just law.  We are looking at colonizers here, "">Big Oil as colonizer", and that extreme view is close to target.

Bring your case in Mississippi. Sue BP in Mississippi. Equity jurisdiction is familiar in Chancery states. Fairness. Can it be made to count?  How to restore lives, literally; lifestyles; value the pelican with the only life it had, also. For some of us, that counts.

And Mississippi is 50th of the 50 states in median income *.  These cases bring money in.  Where they are held does not matter to media or anything else.  Just don't go to Crawford, Texas.  Even media would be happier in Mississippi.


Stop!  We have not done the needed research on Mississippi, and have doubts as to its experience in these matters.  Still, Federal law would bow to Mississippi only in some areas, and any case will bring in experts and specialists to litigate etc, as needed or just to run up the bills.  This is just an idea from folks who believe human progress results from law and equity both; never law on its own. If we must choose, choose equity.  Or is Mississippi also in the mire? Of its own making. Pro Hac Vice.  For this vice.  Excellent.