The old joke about how to answer the question: “what does chutzpah mean?” – has been rendered woefully inadequate by events. The old answer was: “Chutzpah is when a son kills his mother and father and asks the court at sentencing to show him mercy because he is an orphan.” The two variants of the new answer to the question of what chutzpah means are:
- “Chutzpah is when a foreign corporation that commits tens of thousands of criminal acts that sicken and kill humans and animals and pollute the environment demands that a Kangaroo (faux) court order the government of the nation whose citizens were ravaged by those crimes issue an unconstitutional order to its courts ordering them not to hear the victims’ lawsuits seeking compensation for those crimes and demands that fines for billions of dollars be issues against the Nation (i.e., the victims) for refusing to implement that unconstitutional and unconscionable demand of the Kangaroos.”
- “Chutzpah is when a foreign corporation selling cigarettes to the citizens of another nation – for the banal and grotesque purpose of becoming wealthy through the sale of a product it knows to be lethal and addictive – demands that the Kangaroos fine the Nation for the high crime of trying to protect the life and health of its citizens by discoursing smoking.”
(An “also ran” update of the old joke is: “Chutzpah is when the financial elites who grow wealthy through leading the ‘control frauds’ that drove the financial crisis that cost us $21 trillion in lost GDP and 10 million American jobs compare any criticism of them – much less suing or prosecuting them – to Kristallnacht.”)
The murderer in the old joke was trying to reduce the length of his imprisonment through an absurd injury of his own making. In the new joke the murderer killed for profit and he doesn’t simply want to reduce his sanction – he wants complete immunity for his crimes and a massive penalty to be forced on (in economic substance) the victims of its crimes. That’s chutzpah supercharged by a chazerei high.
But we are in danger of missing the reason the joke is funny and what it tells us about the new original joke’s definition of chutzpah. The joke is the gall and insolence of the son. He is willing to make an absurd and outrageous appeal to the judge. Any defendant who made the “orphan” defense after killing his parents knows he would trigger rage from the judge and the imposition of the maximum penalty. No defendant has ever made or will make such a defense. The old joke’s definition of chutzpah is a fictional tale exaggerating the characteristic for comic effect.
The two new definitions of chutzpah are vastly more absurd and outrageous than the old definition. The son could have killed his parents because they were abusing him or because he was mentally ill. The son “only” killed two people. Real lawyers get real reductions in sentences for such defendants.
The new definitions have no such mitigating defenses. The corporations are alleged to have engaged in the equivalent of murder for profit because they knew what cigarettes and toxic waste would do to large numbers of people and the environment. Their CEOs may have been sociopaths, but they were not in the grip of deadly delusions and they were not abused by their customers who smoked or the peoples, plants, and animals harmed by toxic waste.
Here’s the kicker: the two new definitions are based on reality. The corporations are alleged to have committed vastly worse crimes and tortious acts than the fictional son. They committed their crimes and torts for far worse reasons than the (most likely) motivations of the fictional son. They made a vastly more absurd and outrageous demand – not for a reduced sentence but total immunity for their crimes and torts. And then they transcended the old joke’s concept of chutzpah by orders of magnitude by demanding that a government (and in economic substance that means the victims) pay an enormous fine for a bizarrely invented “wrong.” The Nation is accused of refusing to violate its constitution and any concept of justice by issuing an illegal order to its courts. The unconstitutional order that the Nation was ordered to commit would have forbidden the victims from raising their legal claims against the foreign corporation. This would immunize the foreign corporation for any crimes and torts that it committed. The new definitions of chutzpah involve alleged acts that are vastly worse in terms of the harm and motive, and demands by the alleged criminal that are vastly more absurd and vastly more outrageous than the old definition.
The tobacco corporation, a true merchant of death, is suing a government for the outrageous act of trying to minimize the number of its citizens who leave their health and lives in order that the foreign corporation’s controlling officers could become ever wealthier by crafting the most effective advertising campaign to induce the (primarily) poor citizens to buy a toxic and addictive product.
An oil company received an order from a Kangaroo (non) court that a Nation issue an unconstitutional order to its courts not to hear the claims of victims of the oil company’s toxic waste. The oil company is seeking a huge damage award from the Kangaroo (non) court against the Nation for the “wrong” of not complying with an unconstitutional and unconscionable order.
We laughed at the old chutzpah joke because it was outrageously immoral. It was a harmless joke about a fiction. The law firms representing the tobacco and oil corporations – two of the worst corporations in existence – presented vastly more absurd and outrageously immoral demands to the Kangaroo (non) court. Even the stupidest felon has never made the mistake required to make the first joke real because they knew that it would lead the judge to hammer him in the sentencing.
The Lawyers for the Worst CEOs recognize and exploit a stacked system
The fact that corporate lawyers are willing to make these outrageous demands before the Kangaroo (non) courts tells us that the lawyers realize there is virtually no risk that the Kangaroos will hammer the corporation for making grotesque demands. Any honest judge would sanction the corporate attorneys, dismiss their complaint, and order the corporation to pay the Nation’s attorneys’ fees for making such a bad faith claim. The actions of the corporate attorneys in making the new supercharged version of the old joke about chutzpah a grotesque reality tells us that they know the Kangaroo (non) courts are not only stacked in their favor, but so unconstrained by law or ethics that they are willing to make a mockery of the law and justice in their services to the corporations. The Kangaroos are well compensated for this service. Their fees typically are paid by the nations whose citizens are the victims of the corporations’ crimes and torts. The Kangaroos call themselves “arbitrators” but that term traduces the concept for reasons I’ll explore in future columns. I call them “Arbitrary Panels,” but that phrase is inadequate because their decisions are not random. Their decisions are driven by crippling, institutionalized conflicts of interest. The corporate attorneys’ willingness to make their supercharged chutzpah demands to the Kangaroos demonstrates that the corporate attorneys realize the game is so completely rigged that they and their corporate clients will be rewarded for making even the most absurd, unjust, and immoral demands.
In economic substance, the Kangaroos fine the victims in order to compensate the perpetrators for the “outrage” of the victims daring to seek redress in their Nation’s courts. This mimics the depravity of the police states that murder their political opponents – and then refuse to return the corpse to the victim’s family for burial until they pay the police for the bullets used to murder their loved ones.
When the Kangaroos (unconstitutionally) order the Nation to forbid its citizens from seeking relief in their courts for the torts and crimes that the foreign corporation committed against them in their Nation the result is total corporate impunity for those crimes – not an “alternative dispute resolution” (ADR) mechanism. Two powerful corporations are free to resolve a commercial dispute that typically does not threaten either firm’s balance sheet through arbitration. That really is an alternative means of resolving a dispute in which there is zero institutional bias against either corporation. Arbitrators frequently “split the difference” and aim to get the disputants quickly back to cooperative terms.
The Kangaroos are a completely different species. They are the modern version of Pinkerton goons hired to crush strikes (and strikers). They protect wealthy and powerful foreign corporations and their CEOs from being required to provide justice to their weak and poor victims and as the next installment explains, to punish governments of integrity that seek to end crony capitalism and establish the rule of law and justice. They are a disgrace to the legal profession designed to justify and cover up monstrous crimes. They are Fraud Enabler Organizations (FEO).
The foreign corporations’ CEOs use the FEOs as a shield to block the victims’ legal rights to a remedy against the corporation’s crimes and torts and as a sword to inflict catastrophic fines on the Nation that dares to refuse even the most unconstitutional and unconscionable order by the FEOs.
More unintentional self-parody
The FEOs’ orders (issued at the foreign corporation’s bidding) are purportedly premised on the absence of a “rule of law” and justice in the Nation’s courts. The orders demand that the Nation’s government and courts act unconstitutionally, which would destroy the rule of law and work an immense injustice. Again, it is impossible to compete with unintentional self-parody.
The de facto immunity from being prosecuted, sued, or being the subject of an enforcement action for crimes and torts extends to the corporation and its officials who grew wealthy by leading the crimes and torts. The FEOs even forbid foreign corporations from being effectively regulated in a manner that will reduce future crimes and torts led by its CEO.
I will explain in future columns how the FEOs and corporations extort this de facto immunity through the threat and use of the FEOs issuing unconstitutional orders to the Nation that expose it to fines that can run into the billions of dollars.
The FEOs Destroy the Rights of the Weak and Enrich the Wealthiest, Most Powerful, and Least Ethical CEOs
The FEOs do not simply forbid the victims of the foreign corporations to present their claims for relief to their Nation’s courts. The FEOs forbid the victims to present their claims in the courts of every nation – even the corporation’s home country. The FEOs forbid the victims to present their claims to the FEOs. Their Nation is also typically forbidden to present its citizens’ claims to the FEO.
The FEOs are designed to allow foreign corporations and their CEOs to be able to commit crimes and torts – even those that maim and kill – with impunity. On reflection, I need to apologize for using the term “Kangaroo court” – it is a vile slander of marsupials to compare them to the FEOs that enable the most powerful and least ethical foreign corporations to maim, sicken, and kill tens of thousands of people with impunity.
The next installment: The Worst CEOs’ Greatest Fear is the Rule of Law
In the next installment I will explain how and why the CEOs of the world’s worst corporations use the FEOs to punish nations that elect leaders of integrity who seek to end the crony capitalism in their Nations that has historically allowed the CEOs of the world’s worst corporations to cause terrible harm in other nations with impunity.