We’ve already seen a dangerous growing trend – large corporate interests using the power of government to subvert the legal system. In the world of economics, it’s called rent seeking. It’s what I’ve written about several times concerning how Monsanto has succeeded in gaining immunity by back-dooring provision into legislation.
While rent seeking is generally accomplished legislatively, it occasionally occurs judicially. One of the more egregious cases was the Alabama Supreme Court’s 2011 decision in Health Care Auth. for Baptist Health v. Davis, were the Court extended state immunity to a private hospital which had entered into an affiliation agreement with University of Alabama Board of Trustees and the University of Alabama at Birmingham Health System. Thankfully, last month the Alabama Supreme Court reversed itself after rehearing on the issue – one of the few occasions where the general trend has been bucked.
While we are growing in awareness of corporate abuse of the levers of government, there is also the other side of the equation – government (mis)use of corporate resources and partnerships. For instance, it has recently been reported that the Government Accountability Office cannot say exactly what 108,000 contractors are doing in Afghanistan. While the majority of American military serving in Afghanistan are slated to come home – the taxpayer-funded, seemingly under-monitored, private army will remain. Whatever those contractors left behind will be doing, they will be de facto representing America in the eyes of the Afghan people, for better or worse.
The trend we are talking about also has its fingerprints on the breaking illegal wiretapping news. The Prism scandal seemingly has a connection to corporations acting as state proxies to skirt the Fourth Amendment. As an attorney, it is immensely troubling to realize that electronic communications with your client have likely been intercepted and stored somewhere. Unlike the popular mantra of those who care little about privacy rights – “Let them look at my stuff, I’ve got nothing to hide” – attorney/client communications may very well be hiding something and the violation of that privilege is unacceptable under any conditions. If the Pentagon cannot keep track of exactly what its 108,000 private contractors are doing on the ground in Afghanistan, can anyone truly give assurances that the privileged attorney/client communications in the millions of electronic communications that have been intercepted by either government or corporate entities are not subject to abuse and misuse? I don't think anyone can.
Demanding protection for the pillars of our legal system, concepts like due process and attorney/client privilege, is not a partisan issue and we should refrain from falling for any rhetoric that frames it as such. The profession needs to stand opposed to any and all forces which work to undermine the rule of law.