Apropos the analogies in Reihan Salam's defense of Joe Barton, which both Adam and Tim have touched on. There's an additional oddity with his argument, common to Bartonite arguments:
It should go without saying that demanding money from BP is not quite like a playground full of schoolyard bullies kicking a kid when he's down. For one thing, BP isn't terribly sympathetic. But that's precisely the point -- the Muslims who were burned alive in Gujarat in 2002 weren't sympathetic to those who victimized them either. And that's why we've developed long, drawn-out legal processes: to create an orderly society, we at least try to contain and manage our desire for vengeance.
The gaping flaw in this argument is the fact that the vast majority of cases, criminal and civil, in our legal system are resolved by plea bargains, not "long, drawn-out legal processes." The BP settlement is far more typical of how the American legal system actually operates than the Jarndyce and Jarndyce litigation that Salam imagines (or, more likely, pretends to imagine) must characterize most resolutions of legal claims. It's true that people who make agreements in legal cases have the formal right to a full trial -- but then, so did BP.
And there's an instructive difference in this case as well. The ubiquity of plea bargains is potentially disturbing in many cases because of the massive inequalities in bargaining power involved. Some criminal defendants may accept plea bargains not because of the strength of the state's case but because the dubious ability of their legal counsel makes the strength of the state's case largely moot. (And the Supreme Court has upheld some very coercive tactics by the prosecution.) Similarly, some plaintiffs in civil trials agree to relatively paltry settlements with corporations that have injured them not because they have weak cases but because they don't have the resources for protracted litigation. So to the extent that this case isn't typical, it's because the party that made an agreement with the state is much more powerful and has much better access to effective counsel than is typically the case.
Of course, the Joe Burtons of the world would complain about the bargaining asymmetries involving poor people accused of narcotics offenses or people suing corporations when there's a blizzard in hell. The fact that contemporary Republicans worry about this only when a massive corporation that has destroyed ecosystems and countless livelihoods is involved says a lot about contemporary conservatism, and it's all ugly.
-- Scott Lemieux
