What's the point of a "nation of laws"?

By Conor Clarke

As Marc and Megan note, Obama has ordered the Treasury to try to block AIG's bonuses. I have no doubt they'll come up with something, since plenty of clever theories for stopping the bonuses are already bouncing around the blogosphere. One writer at the Huffington Post suggests Geithner order the IRS commissioner to challenge AIG's bonuses as "unreasonable compensation." Glenn Greenwald suggests that we look back to the UAW's contractual concessionsĀ  -- ignoring the fact that one case is ex ante while the other is ex post -- and then tips his hat to a second suggestion: Why not offer AIG immunity from lawsuits? That way the insurer can stop paying its employees without worrying about being taken to court.

Indeed, Greenwald asks: "If Congress (with Obama's support) was willing to immunize lawbreaking telecoms from lawsuits brought by their illegally-spied-upon customers, shouldn't Congress be willing to immunize AIG from bonus-seeking lawsuits brought by their executives who helped spawn the financial crisis?"

Well, okay. I confess that I'm a little surprised at Greenwald's newfound enthusiasm for legal Machiavellianism. After all, Greenwald opposed granting immunity to the telecom industry. He wrote a post castigating supporters of the bill for advocating an egregious violation of the rule of law. And he spent the last eight years arguing that the Bush administration had a rather undernourished appreciation for that very concept. Does all cease to matter now that the shoe is on the other foot?


The rule of law is supposed to be a system in which laws are predictable, generally applicable, and procedurally fair. This doesn't just mean that you "obey the law." It means you're willing to subject your political preferences to an understanding of the legal structure that is general. You're supposed to fit your preferences to the law, not the law to your preferences. I though Greenwald agreed.

To be clear: my political preferences are that AIG's executives not receive large bonuses. (Although I still want more information, and what counts as "large" still seems like a matter of interpretation.) But there is nothing mutually exclusive about expressing a preference while confessing that I don't want hell or high water to see it satisfied. My preference for the rule of law can trump my preference for AIG-based schadenfreude.

As Obama said today: "This isn't just a matter of dollars and cents. It's about our fundamental values." I agree. And I happen to think one of those fundamental values is the rule of law.

This article available online at:

http://www.theatlantic.com/politics/archive/2009/03/whats-the-point-of-a-nation-of-laws/1549/