Clicking on banner ads enables JWR to constantly improve
Jewish World Review Oct. 31, 2002 / 26 Mar-Cheshvan, 5763

Amity Shlaes

Amity Shlaes
JWR's Pundits
World Editorial
Cartoon Showcase

Mallard Fillmore

Michael Barone
Mona Charen
Linda Chavez
Ann Coulter
Greg Crosby
Larry Elder
Don Feder
Suzanne Fields
Paul Greenberg
Bob Greene
Betsy Hart
Nat Hentoff
David Horowitz
Marianne Jennings
Michael Kelly
Mort Kondracke
Ch. Krauthammer
Lawrence Kudlow
Dr. Laura
John Leo
David Limbaugh
Michelle Malkin
Chris Matthews
Michael Medved
MUGGER
Kathleen Parker
Wes Pruden
Sam Schulman
Amity Shlaes
Tony Snow
Thomas Sowell
Cal Thomas
Jonathan S. Tobin
Ben Wattenberg
George Will
Bruce Williams
Walter Williams
Mort Zuckerman

Consumer Reports

Local enforcer who has changed national laws


http://www.NewsAndOpinion.com | Four years ago, Eliot Spitzer was a lowly candidate in a tight five-way contest for not-the-top job in New York. Today he is Eliot Spitzer, superstar, feared and revered. Even as markets from New York to Tokyo monitor his every step, he guides the rewriting of the securities law of the world's largest economy. Just this week, he is working on a deal with federal regulators to extract billions in settlements from securities industries for conflicts over stock analysts. His future? It has no limits.

Spitzer is a talented fellow; his legal focus, nailing corporate wrongdoers, fits perfectly with America's new business Puritanism. But his rise is also due to the rising national status of his job, state attorney general. In recent years, states' attorneys general have used the weapon of litigation to become players on the national stage. There they are successfully battling with regulators and Congress for the power to make U.S. policy in crucial areas.

The attorneys general derive their might from a legitimate source: America's federalist system, which respects the laws and powers of the states. But one can also argue that the new national policy-setting aspect of the attorneys general work is an undemocratic abuse of federalism and as much about garnering power as it is about meting out justice. In the attorneys general and their class-action lawyer allies, the U.S. is acquiring "an unelected fourth branch of government," says Walter Olson, author of a forthcoming book, "The Rule of Lawyers."

Traditionally, the state attorney general was a glorified version of a sheriff. But then attorneys general started to band together and pursue companies for alleged wrongdoing. Companies that might quarrel with one state could ill afford to fight dozens. A joint action by states against tobacco brought a $246 billion settlement, with the cash going to outside lawyers and state coffers. There was the states' case against Microsoft; and the action against Smith & Wesson and other gunmakers, led by mayors but supported by Richard Blumenthal, attorney general of Connecticut, and Spitzer.

The attorneys general were not only enforcing state law but also changing national law sometimes in ways that Congress or the U.S. Supreme Court had declined to do.

Congress, whose job it is to write tax law, has never levied a broad national tax on tobacco to compensate specifically for smokers' health bills. But the attorneys general, through their settlement, in effect, did so. In the 1990s, the Supreme Court and a Republican-led Congress rejected some forms of gun control; attorneys general, with White House support, attempted to make that same gun control the national rule.

And so the trend has been with investment banking and corporate reform.

Enter Spitzer. As usual, his power started with federalism: He dusted off New York state's Martin Act, an obscure document passed well before federal securities law and, in some ways, more aggressive in its definition of wrongdoing. He extracted a $100 million settlement from Merrill Lynch for the abuses of its investment bankers and analysts. The money went to the coffers of New York and other states; the effect was felt nationwide, by all securities investors.

Similarly aggressive has been his IPO campaign. Never mind that some of the behavior involved was deemed illegal. In Spitzer's view, it was actionable even retrospectively.

Lately, the matter of state versus federal power has become the explicit topic of debate. Rep. Richard Baker of Louisiana, a Republican, has assailed Spitzer for aggressive litigation; recently he complained that in the Merrill Lynch settlement, "not one penny went to a defrauded investor." Spitzer struck back, saying he acted because of a "federal enforcement vacuum" in Washington.

One can argue, of course, that Republicans are normally pro-states' rights, so it is hypocritical for them to complain about attorneys general. The reply is that the constitution's framers did not, in general, intend one state to write law for the citizens of others. So even if you agree to the aims of the attorneys general's various campaigns, you can still take issue with their being involved at all. Different in personality or moral character as they and their corporate targets may be, the two resemble each other in one way: Both sides recognize that this is about power.

Enjoy this writer's work? Why not sign-up for the daily JWR update. It's free. Just click here.


JWR contributor Amity Shlaes is a columnist for Financial Times . Her latest book is The Greedy Hand: How Taxes Drive Americans Crazy and What to Do About It. Send your comments by clicking here.

Up

10/12/02: No Mirror for Europe; US is a picture of unity
08/14/02: Keeping your financial eggs at home
07/24/02: New Democrats' unaffordable luxury
06/26/02: The evolution of eminent domain is the story of the lasting power of Supreme Court decisions to alter the American cultural fabric
06/20/02: The distinction between known risk and uncertainty: What was lost in the Martha Stewart flap
06/11/02: Europe, long waiting for a chance to assert itself as independent from the US on the world stage, is clueless to terror's threat
06/04/02: A Cold Warrior's lessons for the Middle East
05/21/02: Geography does matter when it comes to development, but aid must nonetheless be linked to good governance
05/14/02: The increasing number of new claims is hurting innocent companies and making a mockery of the Common Law system
05/09/02: Aid, development and guilt in our times of terror
04/30/02: Wine lovers may at last be able to stray across state borders. The Internet is coming to the aide of free trade
04/23/02: Taxation by way of Madison Avenue
04/17/02: Special relationships and free trade do not mix
04/08/02: Is terror the flip side of globalization?
03/20/02 Bush gives aid but seeks results
03/13/02 The Danger in policy by numbers
02/26/02: States' smokescreen for tax hypocrisy
02/20/02: Echoes of leadership against a global threat
02/13/02: Jackson Vanik May be a Useful Analogy When Thinking About the Middle East
02/07/02: Budgeting for victory: Requiem for a peace dividend
02/05/02: The detectives of 1930s pulp fiction had a nose for clients bearing gifts. Sadly, those consulted by Enron did not
01/22/02: Allow all American children a decent chance
01/15/02: Do not disturb the profit-sharing revolution
01/09/02: It is dangerous to elevate a currency as a political emblem if the need for other economic reforms is obscured
01/03/02: There is only one way for a free thinker to bring up children
12/20/01: Why America's economy always bounces back
12/18/01: When it comes to taxes, Washington lawmakers can learn a thing or two from The Honeymooners
12/13/01: Bush opens a new era
12/12/01: A flamboyant reversal for the Democratic party
12/06/01: Threat of an oil embargo on the U.S. is a bluff
11/29/01: Which is more important--the war or diplomatic comity?
11/20/01: Unbalanced by a wealth of oil and diamonds
10/17/01: Afghanistan Needs a General MacArthur
09/27/01: The US has gained an understanding of the costs of war for which its European allies have hitherto wished in vain
09/13/01: War against terrorism will rise from the ashes
08/15/01: Geography is no excuse for the state's economic stagnation. Its policymakers should take a leaf from Ireland's book
08/07/01: Teamsters may pay a heavy price for winning its batle in Congress
07/25/01: Towards a patent-free nirvana?
07/17/01: History proves the lasting value of tax cuts
07/10/01: Stem cell research has awakened a bitter debate in Washington but voters care more about other electoral issues
07/03/01: America foots the bill for Europe's largesse
06/26/01: America the litigious, land of the lawyer's fee
06/20/01: Five reasons for gloom about global growth 06/18/01: Show pity for Alice in Tax Wonderland
06/13/01: America must take a French lesson in trade
06/11/01: Time to dream the impossible dream for Iraq
06/07/01: Whatever happened to simple?
06/04/01: When the relationship between companies becomes as close as a marriage, the eventual break-up is often very painful
06/01/01: Loving and hating the Bush tax bill
05/30/01: Will Grisham soon be unemployed? In America's courts these days, there's no room left over for legal fiction
05/22/01: Republicans sample the rhetoric of confidence
05/16/01: Boeing has been promised $60m to site its headquarters in Illinois. The deal looks a poor one for taxpayers
05/14/01: Adam Smith in love
05/09/01: Those rotten Russian capitalists
05/07/01: Why tax havens provide shelter for everyone
05/04/01: Middle classes pay for get-the-rich folly
05/01/01: Money can't buy happiness? Think again.
04/26/01: Calling America's rogues and entrepreneurs
04/19/01: High earners right to feel lonely at the top
04/11/01: The right must learn the comfort of strangers
04/04/01: When domestic law arrives by the back door
03/30/01: A Lexus tax cut suits the jalopy driver
03/27/01: The unchallenged dominance of King Dollar
03/20/01: Natural selection of an intellectual aristocracy
03/16/01: The hidden danger of a regulatory recession
03/14/01: Is the American condition that boring? Why so many Oscar nominated movies aren't set in America
03/07/01: Trampling on the theory of path dependence
03/05/01: Fighting the good fight
03/01/01: It is time for Fannie and Freddie to grow up
02/27/01: IT's important
02/22/01: The guilty conscience of America's millionaires
02/14/01: The benefits of helping the 'rich'
02/09/01: The Danger and Promise of the Bush Schools Plan
02/05/01: Crack and Compassion
01/31/01: Debt is good
01/29/01: Clueless
01/24/01: A gloomy end for a half-hearted undertaking
01/17/01: The challenge of an ally with its own mind
01/15/01: An unexpected American family portrait
01/10/01: A fitting legacy for America's beloved dictator
01/08/01: The trick of tax 'convenience'
01/03/01: Time to stop blaming Greenspan over taxes
12/11/00: So smart they're dumb
12/06/00: How economic bad news came good for Bush
12/04/00: The Boies factor
11/30/00: "The inevitable demands for recounts erupted like acne…"
11/28/00: Fair play and the rules of the electoral game
11/23/00: The shining prospect beyond a cloudy election
11/21/00: Try the Cleveland model
11/16/00: A surprising winner emerges in the US election
11/09/00: Those powerful expats
11/07/00: What's right for America versus what works
11/02/00: Time to turn off big government's autopilot
10/30/00: Canada beating America in financial sensibility
10/26/00: When progressiveness leads to backwardness
10/24/00: The most accurate poll
10/19/00: The Middle East tells us the hawks were right
10/17/00: The split personalities of America's super rich
10/10/00: 'Equity Rights' or Wake up and Smell the Starbucks
10/04/00: Trapped in the basement of global capitalism
09/21/00: The final act of a grand presidential tragedy
09/21/00: Europeans strike back at the fuel tax monster. Should Americans follow?
09/18/00: First steps to success
09/13/00: America rejects the human rights transplant
09/07/00: Minimum wage, maximum cost
09/05/00: Prudent Al Gore plans some serious spending
08/31/00: A revolution fails to bring power to the people
08/28/00: A reali$tic poll
08/21/00: "I Goofed"
08/16/00: Part of the union, but not part of the party
08/09/00: Silicon Alley Secrets
08/02/00: Radical Republicans warm up for Philadelphia
07/31/00: I'll Cry if I Want To
07/27/00: Cold warrior of the new world
07/25/00: The Estate Tax will drop dead
07/18/00: Shooting down the anti-missile defence myths
07/14/00: A convenient punchbag for America's leaders
07/07/00: How to destroy the pharmaceutical industry
07/05/00: Patriots and bleeding hearts
06/30/00: Candidates beware: New Washington consensus on robust growth stands the old wisdom on its head
06/28/00: White America's flight to educational quality
06/26/00: How Hillary inspired the feminist infobabes

© 2001, Financial Times