Can a governmental institution be considered "at-risk" due to low confidence?

According to the Center for Disease Control, at risk behavior in teens is any behavior that puts youth at risk for negative consequences in the areas of health or in the areas of risks to life.  The CDC annually observes and reports on the status of risky behaviors in the Youth Risk Behavior Surveillance System.  

Preventing at-risk behavior is a critical aspect of parenting and of community leadership.  Indeed, most of us care about the future health of our children, and those of our neighbors. As a result, we support efforts to combat at-risk behaviors.  Although there are robust debates in society about what mechanisms are most effective, there is near universal agreement on the idea that we want children to avoid danger to themselves and others. 

Unfortunately, we don't use similar methods when thinking about society at large and the sustainability of our government institutions.  It would be interesting if we did.  

The Gallup Study entitled "Confidence in US Institutions Still Below Historical Norms"  found that confidence in the police is only at 52%. Confidence in the criminal justice system is at 23%.  Confidence in Congress is at 8%.  Confidence in the US Supreme Court is at 32%.

These low rankings are not only reserved for government institutions. Various private sectors share low rankings. Banks get 28%.  Organized labor is 24%.  Big Business is 21%. Organized religion is at 42%.  

Gallup provides the following assertion concerning its ratings: "From a broad perspective, Americans' confidence in all institutions over the last two years has been the lowest since Gallup began systematic updates of a larger set of institutions in 1993."

These results are difficult to discuss.  However, we need to talk about the results--and how to react to them.

It is this writer's belief that a social contract between members of a democratic society and its leaders depend on a trust -- and that is needed for functionality.  For instance, distrust in police can lead to more death and injury if potential victims feel the need to take things in their own hands rather than trust they can get assistance from government police forces. Additionally, if people don't trust banks, its questionable how they will protect their money -- and if people find alternatives to banks, will that make less capital available for loans for people to start small businesses? 

Furthermore, in general, individuals do not defend institutions they don't trust, and if those institutions are not defended, they are at risk of attack by individual with very problematic motivations.

In my opinion, small business ranks high, at 67%, primarily because of transparency. When I do business with an individual, I can discuss with him the basis for his prices. I can negotiate if necessary. Additionally, we're equals. I buy a product or service and he's likely to want to provide an adequate product or service at a reasonable price because he knows that I have the power to take him down. I could tell everyone not to do business with him, and he could tell everyone that I am trying to destroy his business. If we get in a serious dispute, we both can get lawyers or go to small claims court. 

The point is that there is a certain transparency and equality of power between the individual consumer and the small business owner. Thus, there is confidence.  

Large institutions should take major steps to demonstrate their transparency and vulnerability to critique. These steps in my opinion would do wonders for increasing institutional confidence.

I think readers of this blog site will recognize that I am not suggesting that there is an isolated solution to this problem. Instead, I am hoping a conversation will spread concerning how we strengthen confidence in our communal institutions.  

What I Realized About Democracy By Going to the Holocaust Museum

In my last blog post, I posited that for the west to defeat the Islamic State in the hearts and minds of the world citizenry, it must show that being part of western democratic society has a real moral value. My view is even more solidified this weekend after going to the Holocaust Museum and viewing the exhibit "Collaboration and Complicity During the Holocaust."

A viewing of that exhibit will direct one's mind to various moral challenges faced by German and Polish citizens during the time of the Nazi power.  Is it morally acceptable to hold one's to withhold your tongue when government officials appear to be engaging in injustice on the presumption that the government is doing what's right?  Is it right or wrong to cooperate with government officials in their efforts to round up individuals due to their racial or religious identification?  Furthermore, is there ever a case that failing to act is tantamount to endorsing an evil program?

Thus, the core of the exhibit is the stories of those individual Germans and Poles who bravely hid Jews, chose against supporting the regime, and those who were not brave enough to take the heroic step.

In some ways, these questions are easy to discus when studying history. After all, when we in the twenty-first century examine the Holocaust, we are studying a series of events that occurred seventy-five to eighty years ago.  Thus, as we are not faced with the situation, we can easily say, "if I were in that situation, I would do x; if I were in this situation, I would do y."  For sure it is a genuine question, but it is theoretical.  Or is it?

Every news story I read about the Islamic State brings me back to what I know about Hitler's regime. I venture to guess that many of the the subjects of the Islamic State (it wouldn't be right to use the word citizen) are faced with the dilemmas brought to our attention by this exhibit.

As Americans, we sometimes feel divorced from those problems. Our ability to save Jewish Germans then or Iraqis and Syrians now is very limited.  The individual American's role in saving individuals Jews or individual Yazidis and other Iraqis Syrians.

American are never truly divorced from the horrors of the successors of Nazi ideology. This nation has a very powerful military.  As citizens, we have the ability to impact what our government does with the military.

However, the exhibit also demonstrates something else about collaboration with evil courses of action. In society, there are always individuals who seek to bully who seek recognition or power. Like the Nazi's, they often find "the weakest link," attack them, and force members of a group to demonstrate their loyalty to the bully rather than to the individual being bullied.  This does not only happen in third world dictatorships, but happens all over America.  Great numbers of teenagers have killed themselves or attempted to kill themselves as a result of intense bullying.   I believe there are also numerous adults who find themselves requiring medical and psychological assistance as a result of workplace bullying.

The sign of a democracy is a place where individuals can act on his or her own beliefs without harming others or being harmed.  An essential aspect of a true democracy in my opinion is a place where someone's beliefs and views and looks are not limitations in his or her ability to function in society.

The purpose of this essay is not really to advocate for idealism, which is impractical. It is to reflect on the point that we are collaborators when we acknowledge and support mean and cruel behavior, whether or not that behavior stems from the government or our fellow citizen.

To Defeat ISIS, the West Must Make a Moral Case for its Survival

I am continuously reading articles in major newspapers trying to understand why Americans and Europeans would leave the comfort of the West to risk one's life an limb by joining the Islamic State.  The most recent such article came this week as CNN interviewed the sister of one of the bombers in Paris.  The article quotes the sister as saying: "He was generous, someone who loved to laugh and joke, a cheeky little boy," she said. That cheeky little boy turned into a mass murderer after traveling to Syria to join ISIS, where he's thought to have spent the past several years. She then asserts that he was brainwashed after connecting online with Syrian individuals loyal to the Islamic State. Of course, the article fails to discuss why someone in Europe would even be attracted to a murderous regime.  

An article on Vox also discusses this problem.  The author there writes that some people travel thousands of miles to join the Islamic State because they are "excited about religious ideas of a coming end times or about joining in the revival of what they imagine will be a glorious caliphate or they buy into ISIS's prolific internet propaganda portraying it as ever victorious." 

 The Vox article further quotes an exile democracy activist who asserts that ISIS members are often joining for "heroism, meaning, belonging, forgiveness, feeling like they have a purpose, feeling like they belong to something bigger than themselves."  The article further states, "the fact is that rules give structure, and they give meaning.  In the midst of all this chaos around you, there are these rules, and they're defined rules and they make sense."  

The article also discusses the role of feeling that one is "belonging to a marginalize community, especially if that community is overpoliced or treated as a suspect, or if your society expresses hostility towards Islam or religion generally."

The article also discusses the message "if your greatest wish is to commit murder and do it gruesomely, then join up with ISIS an you can do it," not to mention that some are attracted to participate in rape an violent adventure. 

These articles paint a very clear picture to me of men and women who, other than murderous psychopaths,might not have left the West if they found what they were looking for in the West, without having to look elsewhere.  

In other words, we need to promote ourselves!  We in the West need to show ourselves and others that the answers being sought can be found in the world of liberal democracy rather than in theocratic totalitarianism.  

Our Constitution provides for a Congress (Article I) and a Presidency (Article II) chosen by the individuals who exercise their right to vote.  "The right to vote shall not be abridge on account of race, color, or previous conditions of servitude."  Amendment 16, Section I.  It also "shall not be denied or abridged... on account of sex"; (Amendment 19, Section I) "by reason of failure to pay any poll tax or other tax";(Amendment 24, Section I) and "on account of age."  Amendment 26, Section I).

Our Constitution assures that individuals are free to voice their opinions about society in other areas of society as well, not just in the voting arena. The Constitution's First Amendment provides for freedom of religion, freedom of speech, freedom of the press, freedom of assembly, and freedom to petition the government to redress grievances.  

Our Constitution's Article VI specifically prohibits any religious test as a qualification for any office of public trust under the United States. 

Title VII of the 1964 Civil Rights Act prohibits an employer with 15 or more employees from failing or refusing to hire or to discharge any individual, or otherwise to discriminate, on the basis of religion, including religious observance, practice, and belief.  

The Fair Housing Act prohibits discrimination on the basis of religion for landlords an real estate companies.

It is my opinion that these laws, among others, reveal a legal structure well situated to protect all sorts of religious practices.

Societies that fit in the category of being liberal republics are societies where individuals may chose their behavioral practices.  Unlike in repressive regimes, in the United States, one can find churches, synagogues, mosques, and other religious institutions strong and vibrant, strengthened by volunteers and donations, all possible due to personal liberty.

The notion that one should feel the need to leave the United States to live according to one's belief system is a sad state of affairs. The fact that one can find communities almost exclusively of Amish in Pennsylvania and Haredi Jews in New York reflect that if one feels the desire and need to live in a word of religious purity, one should not feel the need to leave the United States, but should instead take advantage of one's liberties and create the community one desires.  Indeed the United States even has a few communes and collectivist communities, although they are not as popular these days.

In writing this, I am not blind to the serious challenges that exist within the United States with respect to the level of respect being afforded various minority beliefs.  Almost every few days, I see a news story of an individual or group who feels bullied due to their expressed viewpoint on a topic of communal importance.  Some of this bullying rises to the level of illegality and some of it is not illegal but makes individuals fear for revealing their true viewpoints.

With regard to this last point, it suggest that the moral case for western-style democratic republicanism must be made not only to those who might choose to leave our way of life, but also to ourselves.  Viewpoint-based bullying is totally inconsistent with the values reflected in the governing documents of the United States.  When our society tolerates viewpoint based bullying, our society embarrasses its values and fails to represent a worldview that is more valuable for human dignity than the world of ISIS. 

Anyone who is considering joining ISIS or another similar regime on the basis of opportunity to live in a state of religious purity should strongly consider the above described Constitutional rights one has here. One should consider that the world of ISIS is one that constitutally endorses bullying those who question and consider viewpoints contrary to ISIS. In the United States, any bullying that exists is inconsistent with the essence of what the United States stands for.

Anyone who is considering joining ISIS because of a desire to stand for a purpose should consider that it is in the United States where one has the freedom to advocate for one's viewpoint.  In the word of ISIS, one has the opportunity only to stand as a slave to their viewpoint.  It has been said that some join ISIS because of the excitement of fighting for a cause, but in this country, the number of charities and organizations advocating on this or that issue means that one can devote themselves to socially-responsible fighting for issues they really care about.

Of course, there are also individuals traveling to ISIS because of sociopathic and violent tendencies.  If one is desirous of being in a society where one can bully all to observe Islam in a particular manner, it is hard to imagine an argument that would encourage that person to chose the life of liberty over ISIS.  For those folks, we must redirect their mindset to the appreciate the value of life and liberty, and for those where that is not possible, we sadly might need to find them in the words of prisons and mental institutions.

In writing this article, in no way did I intend to raise all the arguments or principles that justify favoring democracy over totalitarianism. I mean to start a discussion that is fairly absent in th discussion about ISIS.  Although many discuss moral cases for defeating ISIS, we should also discus moral cases for advancing liberal democratic society.

Is ISIS Due to A Civic Engagement Problem

For the past few years, one the of scariest phenomena on earth has been the development and growth of the Islamic State, known as ISIS, ISIL, and Daesh.  This article will not recount the gruesome things members of that group is doing in the name of religion and nation building.  Needless to say, they are so horrific that numerous Islamic organizations have begun to refer to the organization as Un-Islamic in order to distance themselves from the Islamic State.

One of the most unique and puzzling phenomenon have been the number of Westerners who have voluntarily moved to lands controlled by the Islamic State. In passing by the major cable news networks over the past few years, I have seen no shortage of news articles and talking heads covering this question: why would an average American, European, or Australian leave the comforts of the west to join a fight that has a likelihood of leading to death.  

The news reports constantly report on Islamic State recruits and participants lamenting the immorality and licentiousness of the west. It appears as if they feel lost in the west and are moving to Islamic State lands for a sense of belonging.

An article in Change Magazine refers to "the threat of a 'Citizensless Democracy," recounting ten indicators of America's "Anemic Civic Health." The indicators mentioned in that article are: 

1. In 2007, the US ranked 139th of 172 democracies in voter participation.
2. Only 10 percent of citizens contacted a public official in 2009–10.
3. Only 24 percent of graduating high school seniors scored at the proficient or advanced level in civics in 2010, fewer than in 2006 or in 1998.
4. Less than one-half of 12th graders reported studying international topics as part of a civics education.
5. Half of the states no longer require civics education for high school graduation.
6. Among 14,000 college seniors surveyed in 2006 and 2007, the average score on a civic literacy exam was just over 50 percent, an “F.”
7. Opportunities to develop civic skills in high school through community service, school government, or service clubs are disproportionately available to wealthier students.
8. Just over one-third of college faculty surveyed in 2007 strongly agreed that their campus actively promotes awareness of US or global social, political, and economic issues.
9. A similar percentage (35.8 percent) of college students surveyed strongly agreed that faculty publicly advocate the need for students to become active and involved citizens.
10. Only one-third of college students surveyed strongly agreed that their college education resulted in increased civic capacities.

I believe I have read articles that similarly describe declining civic health throughout Europe, and other western democracies.  

The terminology of "citizenless democracy" says it all.  We are creating a society where individuals are in theory members of a free society, but in practice, they don't care about their freedom or society.

In The Politics, Aristotle wrote "Hence it is evident that the state is a creation of nature, and that man is by nature a political animal. And he who by nature and not by mere accident is without a state, is either a bad man or above humanity; he is like the '"Tribeless, lawless, hearthless one,' "

These words of Aristotle indicate that it is an essential part of nature to want to cling to a society. The Islamic State is offering potential recruits with the "opportunity" to join a group that stands for something, to be part of a group.

When I was growing up in the Chicago area, I remember that there was a high school not far from where I lived where 85-95 percent of male teen there joined street gangs. Those gangs provided their members with protection and a sense of belonging not available in society in general. That particular neighborhood had a huge rate of single mothers and other problems that made the average youth feel disaffiliated from society as a whole and thus join a street gang to belong.

I hope psychologists and sociologists are studying the similarities of those individuals who join gangs and those individuals who join the Islamic State. I believe there are similarities, namely the feeling that mainstream society is not protecting them nor providing them something with which to belong.

If I am right, then the key to defeating the Islamic State may very well be for the West to stand for something, to show that being part of western society means being part of something grander and more meaningful than the moral and intellectual poverty of the Islamic State.

Why I like "Shark Tank" from a Civic Engagement Perspective

I hope I am not simply drinking cool aid, but I believe that the TV show "Shark Tank" is correctly hyped to reflect America's interest in entrepreneurship.  Indeed I have read articles in Forbes and Fast Company --and in other publications-- about how the show effectively provides critical lessons to those in the viewing public interested in starting businesses.  I am personally addicted to the show because of my own interest in learning about entrepreneurship.

When I first watched the show, my initial instinct was to think that if the show advances the public's interest in entrepreneurship and financial betterment, it would take the public's attention off of civic engagement and issues of public concern.  However, upon further though, I have a new perspective: entrepreneurship can advance civic engagement and engagement.

Entrepreneurship is effectively creating and selling a product or service.To do so, one must identify a marketplace for that product or service, which means one must become familiar with the needs and desires of his or her fellow. Then, one must convinced his or her fellow of a creation that addresses that need or desire. This is a critical communication process, and in some sense, may be similar to the communication process of the candidate for electoral office selling his or her ability to address those concerns in the community. An entrepreneur in consumer goods must show how his or her product addresses needs of the consumer, and an entrepreneur in electoral office  must show how his or her placement in public office should address the needs of the consumer.

The civic engagement side is two-fold. First, good entrepreneurs learn about their potential customer's needs. They are focused on understanding legitimate ways to make the lives of others easier in an affordable manner.  Second, through the process of developing a relationship around the value of particular type of product, valuable interactions occur. From the show, I have the perspective that the most skilled entrepreneurs are not those whose communication about community needs is not exclusively focused on the product and services in hand, but in the course of marketing communications, do indeed communicate about community needs as a whole, thus advancing the social bonds needed for community engagement in a host of arenas.

As an aside, we often don't think about the ways that entrepreneurship advances the goals of democracy, but the pitches on Shark Tank make it quite evident that the interactions that are part of the development of family businesses are the same interactions that connect neighbors to address emergencies. The entrepreneur needs to understand the marketplace and in doing so, needs to understand the legal scheme and in doing so, needs to think about the impact of certain kinds of laws on his or her business.

The proof will be in the pudding. If the show's audience decides to sit at home and watch endless reruns, and then there are spin-offs that focus attention on making fun of bad products and how to screw up in business, the show will be useless. I believe the show will continue to inspire folks to build businesses and interact as a result.

ps: if nothing else, it is great that there is an ability for a show like this to shine, rather than another show making fun of people.

11th Circuit Confirms A Settlement is a Settlement

On January 23, 2011, I wrote Advisory to the Pro Se Litigant #12: Yes, You Have A Right to Resolve Your Case, in which I wrote that pointed out that one cannot sign an agreement now and reopen a case when new information arises.

Rarely is there a case that highlights the proposition more than the recently decided 11th circuit case of Sherrod v. School Board of Palm Beach County.  In this case, Curtis Sherrod settled First Amendment claims against the School Board for $272,425.  He has now brought a cause of action claiming that the employer discriminated against him, in violation of 42 USC Sec. 1981, a critical anti-discrimination statute, by entering into a more favorable settlement, namely $490,000, with a white male, Dr. Elfers, who also alleged violations of his First Amendment Rights.

The Eleventh Circuit reviewed the language of the settlement entered into by the parties and determined that it bars the claims Mr. Sherrod seeks to pursue. According to the Eleventh Circuit, the alleged discriminatory actions of the school board in offering a lower amount for settlement than was offered to a similarly situated individual of a different race, occurred prior to the parties' entering into a settlement agreement, and are therefore implicitly settled.  By entering into the agreement, and accepting the benefit of the bargain, Mr. Sherrod is not allowed to reopen litigation because he now doesn't like the terms.

This case offers two important lessons for those settling cases. First, one cannot re-open a case merely because new information comes available later that suggests that settlement is not all that can be achieved.Two, a written settlement agreement of claims often covers any claims that might arise during the negotiations themselves. A party anticipating a need to preserve rights to engage in post-settlement litigation along these lines will need to craft a settlement agreement reflecting these rights--although it is highly unlikely any represented entity would contemplate entering into a settlement agreement giving the plaintiff rights to reopen a case if he is later unhappy with the settlement.

PS: As an aside, note that this case does not deal with the case where a settlement is achieved through fraud or unlawful coercion.  In this case, the 11th circuit recorded no allegation that the School Board engaged in either of these wrongs in order to get Mr. Sherrod to settle his case. If the School Board had, I am certain the result of the case would have been entirely different.

Response to Delaware Governor Markell Civic Engagement Message:Its Engagement, not Just Elections

This week Delaware Governor Markell's weekly weekly message relates to civic engagement.  He is specifically concerned about " attracting a new generation of our best and brightest to be involved in public service and engaged in shaping public policy." He said that in his recent visits to schools, he has " emphasized that civic engagement is one of the most powerful ways to give back to your community." 

This address mirrors comments I have heard from a number of politicians, including from President Obama and Vice President Biden, namely encouraging young folks to appreciate the value of running for office.and pursuing political careers.

I think politicians feel the need to motivate folks to engage in electoral politics because so many bright young people are scared off due what appears to be a very bitter partisan nasty environment.  I, for instance, always envisioned myself running for office.  However, the notion that an opponent would devote immense energy examining my experiences looking for contradictions or something with which to embarrass me is almost enough to make me run in a cave. Indeed, many don't want the scrutiny.

However, having floated in an out of political arenas for the past twenty years, usually in the context of some sort of involvement in a campaign or advocacy for legislation or other government action, I have not found much need to worry that we lack members of the public motivated to serve in public service roles.  My observation is that even school board elections remain competitive races.

Our state and federal Constitutions (structure of governing bodies) function properly only when the constitution of our body politic involves citizen involvement.

The term "civic engagement" embraces a number of activities.  If I recall his work correctly, Robert Putnam's famous "Bowling Alone" argues that true civic engagement comes when members of society are actively involved with their neighbors discussing issues of public concerns and, when necessary, collectively organizing on issues of common concern.

Many, including Fareed Zakaria in The Future of Freedom have pointed out that the term democracy is often used to refer only to whether members of society vote for their political leaders, such that a government could conceivably be a democracy (at least technically) while also being repressive.

The American constitution, however, does not limit the citizens' role to voting. The First Amendment promises us the freedom of religion, speech, press, and assembly. Technically a country could be a democracy without these freedoms, but not our type of democracy.

Supreme Court precedent involves a plethora of disputes surrounding how to interpret these freedoms and their limits. In other words, we wouldn't be America if citizens weren't actively engaged in exercising these rights.

In America's Civic Health Index of 2006, drafted by the National Conference on Citizenship, only 26.7 of Delaware residents engaged in volunteering regularly, and voter turnout was 43% in 2002 and 62% in 2004. These are not good numbers.

In 2012, the Corporation for National and Community Service released revised numbers, finding 24.8% of residents engaged in volunteer service and only 8.9% of residents attended public meetings.

These findings tell me that Governor Markell should be less concerned about whether his citizens will run for his job when he retires, and more concerned about strengthening the democracy and democractic republican character of his population.

In no way is this article directed solely at Governor Markell. As I have said, advocacy towards encouraging young folks towards government service has been made by the likes of Presidents Clinton and Obama as well. And indeed, I don't mean to dismiss the remarks of these politicians, as they are often comments following questions about young folks being scared off by the rough political climate. However, I believe strongly that the a legitimate reversal of the Bowling Alone phenomenon will inherently lead to further interest in government service, and indeed may expand  the interest in those positions among individuals of a whole variety of political perspectives. 

Can I Get a Lawyer -- or Some Legal Information, Please? (Some Comments on Gideon v. Wainwright and the Civil Gideon Movement)

 March 18, 2013 was the 50th anniversary of the decision of Gideon v. Wainwright, the Supreme Court decision that ruled that under the Sixth Amendment to the Constitution, individuals who are indigent and charge with criminal offenses have a Constitutional right to appointed counsel.   Various jurisdictions have extended this right to certain additional offenses. and there have been cases extending to certain family law proceedings.  There is now afoot a "Civil Gideon" movement, designed to expand the right of access to counsel to indigent individuals involved in adversarial civil proceedings involving "basic human needs."

I had the opportunity to learn a little about the Civil Gideon movement when I attended on April 19, 2013 a DC Judicial and Bar Conference session entitled "Implementing a Civil Right to Counsel: What it Would Look Like?" As I explain, this discussion and implications are critical to evaluating the protection of individual rights and the success of our judicial system.

A. Background

In Gideon v. Wainwright, the Court was asked to determine whether the defendant to criminal charges in a Florida state court has a right (under the Sixth amendment) to appointed counsel if he or she can not afford one.   The Sixth Amendment states, in part, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial...  ....and to have the assistance of counsel for his defense."  In an earlier case, as explained in the Gideon decision, Betts v Brady, 16 US 455 (1942), the Supreme Court determined that the Sixth Amendment Constitutional right to counsel applied only to cases in federal courts, as a right to counsel was not a fundamental right essential to the Constitutional right to a fair trial.  In Gideon, the Court reconsidered that and determined that the right to counsel is indeed a right in cases at both the state and federal level.

The Gideon Court thus reinforced the notion that that which is fundamental and essential to a fair trial must be provided to all citizens regardless of whether the case is in federal court or state court--and critical to our present discussion, it reinforced the notion that "right to the aid of counsel is of this fundamental character"--namely fundamental to a fair trial.  Therefore, "one who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him."  A series of subsequent cases at the Supreme Court and lower level have specified further which types of cases qualify in the Sixth Amendment right to counsel, and which don't. For instance, in 1981, in Lassiter v. Department of Social Services, 452 US 18, the Supreme Court determined that the Fourteenth Amendment did not require a state to appoint counsel to represent a mother in a termination of parental rights proceeding.  In 2011, the Supreme Court determined in Turner v. Rogers that a civil contempt proceeding is one category of case in which no right to appointed counsel necessarily attaches.

B. The Civil Gideon Movement

As is clear from the progeny of Gideon and Lassiter, the Constitution does not require representation in all litigation that affects basic human needs. The Civil Gideon Movement is designed to legally and administratively provide remedies not required under the Constitution.  For instance, in California, under the Sargent Shriver Civil Counsel Act, a variety of pilot projects have begun to provide low-income litigants with  legal issues affecting basic human need, such as evictions or termination of parental rights, with access to appointed counsel.  Specified in the statute are the following examples of human needs: housing-related matters, domestic violence, civil harassment restraining orders, probate conservatorships.  Some pilots cover all of these issues and some do not.  As was indicated in the March program, much of the success or failure of these pilot projects depend on the ability to provide such counsel in a manner that is politically affordable.

In the March program, we learned that the housing court pilot has caused courts to grant landlords the right to evict tenants in 2/3 fewer occasions, thus suggesting that the presence of counsel can in some cases assist with the amicable resolution of landlord-tenant disputes and in other cases prevent abusive evictions.

Although I have not studied the situation in California, based on my observations in Baltimore, I can provide an illustration that I highly suspect to be fairly routine. A tenant has a complaint about the landlord's failure to properly address a critical issue such as heat, roaches, or faulty plumbing.  The tenant,not knowing the protocols regarding rent escrow, unilaterally withholds rent to send a message to the landlord. The landlord then seeks eviction on the basis of failure to pay rent.  Had the tenant had a lawyer, he or she would have learned that the proper protocol, at least in Baltimore, is to file a complaint at housing court and thus be permitted to put rent in rent escrow until the problem is remedied.  Simply failing to pay rent entirely is referred to as an illegal self-help measure that is not legally acceptable.  Not having studied California law, I am unaware if this precise situation is what is to account for the decrease in evictions, but I highly suspect that this analogy is probably a useful one.

The conference session also discussed the obvious policy issues that are being considered by the California and other legislatures. For instance, is 200% of poverty the correct income level under which the right to counsel applies? What about someone who is not poor but clearly can't afford private counsel?  Also, what about the 1/3 of California landlord tenant cases where the landlord is not represented? Is it fair to have a tenant represented when the landlord is not? Catherine Carr of the Philadelphia Bar Association pointed out in the session that a civil right to counsel could simply overburden Legal Aid and the Public Defenders offices, which are already overburdened.  These problems are elucidated will in Karen Houppert's 2013 book, Chasing Gideon: The Elusive Quest for Poor People's Justice, which illustrates the numerous ways in which our criminal justice system is failing to provide individuals accused of criminal activity with speedy and fair trials or adequate representation, notwithstanding the good intentions of a well intentioned public defender system that is simply overburdened and underfunded. (Of course, that is an over-simplification.). 

C.Clarifying that the Civil Gideon Movement is not a Movement to Amend Our Constitution  

It has been three months since the conference and in numerous discussions concerning the Civil Gideon  movement and my interest in it, I have been confronted with skeptical questions, mostly along these lines, "with this conservative court, how do you anticipate convincing the Court that there is a Constitutional right to counsel in civil cases?"  This question belies a misunderstanding of the movement, and of our legal system.

The Sixth Amendment to the Constitution specifies in its opening line that it relates to criminal  prosecutions. Thus, the Sixth Amendment to the Constitution only provides accused individuals with the right to the assistance of counsel in criminal prosecutions. Thus, any case not deemed a criminal prosecution would not be one in which a litigant would have rights under this Amendment.  I am not aware of anyone arguing that all state action affecting a person's rights falls under the context criminal.

I am also not aware of any efforts to amend the Constitution on this issue.

I clarify this because some of the level of surprise I get when I reference a civil right to counsel comes from the misunderstanding that civil rights stem only from our Constitution.  Although it is theoretically accurate to say this, it is such an oversimplification that it is actually untrue. As I see it, in our Republic, rights stem from (1) the Constitution, (2)laws instituted by Congress and State legislatures, and (3) administrative practices by government agencies, such as courts.

For instance, rights to be free from certain forms of discrimination and harassment in the workplace do not stem from the Constitution, but from laws enacted by federal and state legislatures.  Additionally, various state, county, and municipal laws and procedures provide citizens formal mechanisms, such as a public comment period, within which to publicize their position on various courses of government conduct--issues ranging from statewide legislation to variances (exceptions to a zoning ordinance often granted to an isolated dwelling or establishment.)

Thus, these rights only stem from the Constitution in so far as the Constitution does not prohibit federal, state, and municipal legislatures from enacting laws on these matters.

This clarification is crucial to understand that the Civil Gideon movement is one that must be seen as radical. Although there may be some who seek to drastically alter the social contract between the legal community and the population at large, most in the movement simply want to expand the right to counsel to situations where counsel can make a difference in one's essential rights.

 D. The Right to Counsel v. the Right to Legal Information

Elsewhere in this blog I have spoken about my view that the availability of legal education and information for public consumption can drastically reduce the burden on the need for counsel.  Indeed, advocates of unbundled legal services point out that it is sometimes the case that a litigant has the ability to act in a pro se mater but may still need the periodic consultation to get his or her bearings or obtain certain legal information.   Recent articles on unbundled legal services have illustrated ways in which litigants in certain cases can save thousands of dollars in legal fees by getting legal guidance on discrete aspects of their case, such as the filing of a complaint or the proper guidance as to what is legally actionable and what is not.  I am certainly hopeful that the Civil Gideon Movement will advocate for educational programming or discrete assistance programs that provide assistance to folks when it is fiscally impossible to provide full legal assistance in all matters so desired.  Additionally, unbundled legal services will allow the legal community to provide affordable assistance to those individuals not impoverished enough for free legal help but not wealthy enough for full representation.

Compliments to the Quality TV Debate Show; Hope the Rest Will Learn

Sunday night on C-Span, for the first time in a long time, I watched a debate show that was worthwhile to watch, namely, The Munk Debates.It involved a debate on he subject of progressive taxation with debaters George Papandreou and Paul Krugman advocating for the motion and Newt Gingrich and Arthur B Laffer arguing against the motion.  The presentations were fairly reasoned, thoughtful, and challenging.  Also, familiar with seeing Krugman and Gingrich in various televised interviews, I was particularly interested to hear whaat Papandreou and Laffer might bring to the table, both of whom I had some general familiarity but no direct exposure to their commentaries.  More importantly, the structured interview format involving these latter gentleman required, in my opinion, Krugman and Gingrich to resort to much more intelligent and thoughtful arguments than might be found on the poor excuse for debate programs often found on cable news.

The Munk Debates reminded me of The Doha Debates, which I thoroughly enjoyed, which in turn reminded me of  Firing Line.  I am not holding my breath, but I am still praying that The Munk Debates might lead to other high quality debate shows.  I have sadly observed a lack of inspired action following the public's interest in Firing Line and Doha.

I don't know if Firing Line was the first debate show, but I am pretty sure it is the most prominent one.  It had various formats, including William Buckley interviewing and debating an individual whose views with which he vehemently disagreed, and debate panels in which teams stood for or against propositions, such as proposed legislative ideas. An example might be, "Resolved: students wishing to send their students to non-public schools should be given vouchers" or "Resolved: Intelligent Design should be taught in biology class alongside evolution."

Sadly, despite hours each day over numerous networks devoted to debate on issues of public concern, most debate shows I have seen resemble the infamous Crossfire in which partisans simply politely yelled at each other. Ironically, despite the fact that the show was taken off the air after this very criticism was highlighted on the show by Jon Stewart, most debate shows on tv seem to resemble the Crossfire, and are even worse.  Too often serious thinkers and politicians are asked to debate their subject area over the course of six minute segments, leaving aside any options for thoughtfulness. Countless segments end with hosts asserting, "these issues deserve more time and we hope you guys will come back to continue the conversation."  After years of watching these debate shows, I have yet to observe the continuation of any of those conversations.

This is an extremely serious problem.  These shows give the impression that reasonable debate and analysis is represented by the assertion of a grandiose theory, a few factual assertions that are in keeping with the theory, and an insulting characterization of the opposing perspective.  This shouldn't be par for the course in candidate debates, but it is even more insulting when non-politician "experts" are asked to engage in such nonsense.

In the interest of advancing thought in our republic, it is critical we recognize the distinction between the two kinds of programs.  After all, William Buckley did not shy away from expressing his outrage at the views of his opponents, and often would say things to give the impression that he desired to belittle his adversary. However, in each program I watched, each comment of this sort was followed by an opportunity for his opponent to express his views, and with probing questions by Buckley that indicated a genuine attempt to understand his opponent's position and/or argument.  Also, whether genuine or not, Buckley suggested that  offered his guests the opportunity to alter his own perspective.

This approach, over that of the Crossfire approach, teaches critical moral lessons needed in a democracy. First, it teaches that those holding opposing political views deserve one's attention, as their viewpoint is not as simplistic and thoughtless as might be initially thought but often come from a moral center deserving of some recognition.  Second, it teaches that one can learn from one's political opponents. Third, it teaches that legitimate political decisions are not simplistic applications of global concepts, but require thinking through the complex and sometimes competing values.  Finally, for the public, these shows illustrate that public policy involves complex analysis and is not made up of compiling right opinion, or transmission of revelation.

PS: Although this essay is about the debate show, I can't help but mention the very useful related category, the panel discussion.  One of my favorite series is Ethics in America, which was a ten part series aired on PBS between 1988 and 1989 featuring panel discussions of various professionals discussing the ethical implications of various hypothetical. Indeed the website on which one can purchase the the videos asserts that the discourse qualify as Socratic.  Panelists have included legal experts such as Floyd Abrams and Joseph Califano, business experts such as Warren Buffet and  T Boone Pickens, journalist experts such as Dan Rather and Peter Jennings, and members of the legal community such as Rudy Giuliani and Justice Antonin Scalia.  Shows like these reveal to the public the complexity of thought required for public policy and even decision-making in the worlds of business, journalism, and law.  Most importantly, as with the extensive debates described above, the audience effectively participates (through observation) the analytical process discussed, and is thus made to appreciate how non-foreign it is.

What Every Law Student Really Needs to Know is what Everyone Needs to Read

In What Every Law Student Really Needs to Know: An Introduction to the Study of Law (Aspen Publishers, 2009), Tracey E. George and Suzanna Sherry have written an excellent introduction to the American legal system. Although the book is designed to be read by individuals seeking to succeed in law school, I believe the text would be valuable for anyone looking to obtain a relatively quick introduction to our legal system.

The six chapters of this text total only 200 pages, but yet I would encourage every reader to read this book.  Reading it over the course of a six week period rather than in a speedy fashion would allow the principles in each chapter to sink in--mostly because each chapter covers a distinct category of ideas worthy of mastery.

I am particularly attracted to this book because I think it can be used by various types of participants in the life cycle of our legal system, and through making this point, I will come to reveal the content of this text.

Chapter 3 the chapter most valuable to all. It is properly titled "the Structure of Our Legal System," explaining the nature of our adversarial system and the various layers of our court system. There are numerous critical facts presented in this chapter that remain relatively unknown and under-appreciated by law students. For one, many law students spend numerous hours studying the intricacies of federal civil procedure necessary to maintain the fairness of our adversarial court system, without thinking at all about any alternative systems, such as inquisitorial system, in place in many countries of the world.  The chapter also illustrates the distinction between common law, often referred to a judge-made law, and civil law, which concentrates on statutory interpretation more than precedent.

Understanding these distinctions is critical to all participants in our legal system, and our legal system is often injured when participants don't fully appreciate them.  The first set of participants who should read this chapter is the class of folks for whom this text is written, namely soon-to-be law students., whose understanding of the context within which substantive legal decision are made will shape their ability to manipulate the information provided them.  Analogously, the owner of the firm for which I work has long held that law students should be made to read dissenting decisions and the legal briefs of the arguing parties. This would allow students to better appreciate the decisions judges must make, and the alternative legal approaches available to them. In short, it is hard to understand why methodologies and systems are as they are without examining alternatives.

Chapter 2,Government and Law discusses the structure of our government in a way that replicates what some of us learn in middle and high school, namely presenting the three branches of government, along with the role of administrative agencies and restatements of law,thus placing the judicial process in its greater context. Although the facts presented in chapter 2 replicate what might be taught at a younger age, the author's motivation to educate law students gives the reader the context needed to consider the structure of our government, as its relevant to case law.

Chapter 5, Legal Toolbox: Concepts serves as both a critical vocabulary lesson and a short introduction to various doctrines that affect how courts interpret facts and law, such as precedent, burdens of proof, and standards of review.  I would advocate all individuals contemplating any more-than-isolated interaction with a judicial decision to review this chapter.  Much of the chapter is devoted to explaining what it means for litigants and judges to consider what rules apply to a specific case and by what standard those rules will be judged. Appreciating the analytic process allows readers to agree and disagree with judicial opinions in a more nuanced way.  Chapter 4 demonstrates how to review cases, and may be much more illuminating after reviewing chapter 5. Chapters 1 and 6 demonstrates how these concepts are applied during the law school experience, but anyone regularly interacting with lawyers might find both extremely illuminating.

In reviewing what I just wrote, I must now wonder what percentage of my readers are bored away by the content of this article. Indeed, the process of studying law, reviewing cases, and choosing which doctrines are relevant to a set of facts can seem particularly frustrating and unexciting, and perhaps completely removed from the original attraction to the legal process: to seek a moral and just resolution to problems.  However, it would be impossible to establish a rule of law that could  be applied fairly to millions without such a developed structure. Indeed, I invite any reader to consider how they would devise such a system.  I venture to guess that any system devised will establish rules and standards for where the parties present their disputes, how they present their disputes, what standards will be used in evaluating the positions of the parties, and to what extent other judicial decisions would or would not impact the approach taken by the judge.

Most of us are cognizant of certain sets of participants in our legal process, namely litigants, attorneys, and judges, but the general public participates as well. The general public serves as jurors and potential litigants who must decide whether to employ the courts in their efforts to resolve disputes in which they find themselves. Trust in and knowledge of the courts greatly affect the priority individuals place in using the courts to resolve their disputes, over less noble and sometimes violent means.

Even when not litigants, lawyers, judges, or jurors, citizens play numerous roles essential to the system,which makes knowledge of the system critical for citizenship.  Citizens influence the court system when they vote. In many jurisdictions, they vote for judges directly and in other jurisdictions, like in the federal system, they vote for executives and legislators that select the judges.  Voters have similar influence over those who serve as Attorney Generals at the state and federal level, and thus effectively have a say over what approach the government takes to prosecuting criminal complaints.

Beyond this, voters impact what laws are passed either through direct referendum or through their selection of legislators and chief executives. Indeed, citizens greatly impact the judicial system when they lobby for certain policies, vote for particular candidates, and even when they engage in discourse about the legal process to their fellow citizens.

Elsewhere on this blog have I discussed the critical role a robust and trusted judiciary plays in a civil and trusted society.  Indeed, we can only trust what we understand.

Furthermore, in a representative democracy, as earlier discussed, the citizens have a critical role in shaping policy and protocol. Therefore, understanding the judicial system is necessary for citizens to reasonable shape the judicial process. I have had many occasions to witness public opinion shaped by incorrect assertions or misunderstanding about the legal system, thus causing popular support for or against an unnecessary cause.  A recent example might be the flurry of legislative support a few years ago for laws prohibiting the judiciary from relying on sharia law or other foreign law in deciding cases notwithstanding the lack of real world cases of American Judges making decisions contrary to the American legal system. I am suspect that there are many cases where the American public was up in arms over erringly alleged infractions by our judiciary.  Such mistakes can only be addressed by substantive public education over our legal system and how it works.

DC readers: Come to Our "Know Your Rights" Seminar at the Southwest Library

How to Expand Access to Legal Practice: A Response to An Article in the Economist

On February 2nd, The Economist published a series of articles, including Guilty as Charged and The two-year itch regarding ways in which the cost of legal advice has increased greatly as a factor of the increased cost of admission to the practice of law, along with the limitations placed on the access to the right to practice law.  I was asked to comment. 

The Economist articles implicitly raise very serious concerns about access to justice, namely that various limitations on the practice of law make access to legal representation and thus legal assistance excessively expensive.  I agree with the articles' articulation of the problems needing confronting, but have slightly different proposed solutions.

 The Economist points out that "America has more lawyers per person of its population than any of 29 countries studied (except Greece), and it spends two to three times as much on its tort system, as a percentage of GDP, as other big economies (except Italy, where things are nearly as bad)."  While these statistics might suggest an overspending and overlawyering problem, coupled with too large a legal community, it is also true that according to the Legal Service Corporation’s  October 2005 study, “Documenting the Justice Gap in America," 50% of those who qualify for LSC funded programs are turned away due to lack of resources and 80% of the legal needs of the poo go unaddressed.  At a recent conference of the DC Bar, I heard the Executive Director of Philadelphia's Community Legal Services proclaim the continued validity of these percentages. 

One of the Economist articles correctly points out that the high cost of legal education and bar admission makes offering low-cost legal services at affordable prices a near-impossibility for new lawyers who have large loans to repay, coupled with existing living and family expenses.  The article effectively recommends that students be allowed to sit for the bar after two years of law school, rather than three—which is currently the case. Another Economist article recommends that non-lawyers be allowed own shares of law firms, claiming that the current prohibition of non-lawyer investment "keeps fees high and innovation slow."

Both of these proposals are deserving of our attention.  Legal education today is outrageously expensive and time-consuming. It is particularly expensive for individuals with family obligations and without financial resources to attend law school.  In the past few months, I have read numerous articles about the sizable debt confronted by law school graduates.  These articles have been included in diverse publications as the magazine of the DC Bar, the New York Times, and the Huffington Post.

It is worth noting that neither of these articles references the suggestion by Milton Friedman in Capitalism and Freedom, that occupational licensure as a whole be discarded.  Although the book was written in a prior generation, its points are worthy of our attention.

In Chapter 9 of Capitalism and Freedom, Milton Friedman argues that professional licensure does not fulfill its intent to protect the public, but instead creates barriers for individuals to engage in the professions they wish, serving as a barrier to the public’s right to voluntarily engage economically with whom they wish.

Friedman argues that although licensure regimes are designed to protect the public, the process inevitably creates barriers to practice that are not relevant to professional competence or the public’s legitimate concerns for safety, and thus merely serves to restrict competition. He gives the example of professionals in the early 1950s that required members assure that they were not communists before being authorized to practice their craft.   

Friedman argues that the medical and law professions’ professional associations limit access to participation by preventing practitioners who did not graduate from an accredited professional school, an option only available to those who are accepted into an accredited professional school, which thus requires graduation from a recognized four year college.  This problem is illustrated by adults with requisite knowledge and sophistication to practice medicine or law whose academic background prevents their admission into graduate school.

Friedman’s text gives the example of political refugees who were experienced trained medical professionals in their home countries, yet unable to practice their craft and expertise here. Friedman additionally argues that there are restrictions placed on doctors on how they may structure their practice, making it harder to offer affordable medical care.

Friedman raises some compelling concerns, but proposes an impractical solution. I’m sure we all can think of examples of individuals suffering professionally due to these restrictions.  For instance, I know someone whose legal understanding is superb but he is forever restricted in his ability to practice law because he has not passed a bar examination, mostly due to test tensions that are irrelevant to his desired transactional law practice. He then sought to open a paralegal practice that sought to assist practitioners with writing, research, and administrative matters, but found that he ran the risk of being accused of practicing law without a license. Someone else I know is extremely knowledgeable about law but the prohibitions against practicing law without a license prohibit him from serving as counsel for those friends of his who need legal help but don’t qualify for assistance from Legal Service Corporation entities but yet can’t afford licensed counsel.

Friedman’s proposal to discard law licensure altogether is extremely risky, as it would provide an avenue for non-lawyers to parade around as lawyers.  Friedman argues that malpractice and fraud law are sufficient to protect the public, but he fails to consider that tort law can only provide a remedy after a course of bad conduct and damage, it can’t prevent bad conduct. Licensure, however, has the power to interfere with the faulty economic relationship in advance. For instance, absent a licensure system, what would be illegal about my opening a doctor’s office and pretending to practice medicine based on folk cures and untested hypothesis I might have about various healing methods? Recently I learned of a case of a trained lawyer who repeatedly collected fees for services he did not perform.  Removal of his law license is a fairly effective means of alerting the court and the public that he may not be trusted.  Without law licensure, a successful criminal fraud prosecution would be the only mechanism available to arrest this person’s fraudulent behavior.

Friedman does, however, make a great point that only modest corrective measures might not achieve a sufficient result.  I believe Friedman would argue that decreasing the cost of law school by one-third would only decrease the severity of the problem, not address it.  While a one-third cost reduction would certainly assist any individual student, failing to address the larger problem of the hyper-inflation of the cost of law school would require us to repeatedly revisit this problem very shortly.

Although I would be uncomfortable with abolishing state-recognized licensure altogether, I would be comfortable with the reintroduction of the practice of allowing individuals who did not attend law school to sit for the written bar exam or be examined orally by senior members of the profession, much as President Lincoln received his law license in September 1836 after an oral examination by a panel of practicing lawyers. I would also be comfortable with an expanded use of the pro hac vice process to allow non-lawyers to serve as legal representatives on a case-by-case basis. My proposal has the benefit of retaining our trustworthy bar admission methodology, retaining our rules against nonlawyers advertising as lawyers, while allowing for individuals to obtain legal assistance from more educated non-lawyers. By making the standard law school optional, yet requiring potential  legal practitioners obligations to obtain certain knowledge before practicing commercially, this would open the door to diverse legal education options in addition to the existing 3 year model. I personally would like to see a reintroduction of law school options that revolve around training in the context of a series of public interest fellowships, analogous to the former Antioch College, or a program revolving around the discussion of great cases, which is what I imagine would be the case in St. John’s College (Maryland/New Mexico) had a law school.   

A third Economist article The case against clones, references a lawsuit by a Jacoby &Meyers, LLP (Jacoby & Myers Law Offices, LLP v. The Presiding Justices of the First, Second, Third, and Fourth Departments et al., 11:11-cv03387)  designed to permit itself to obtain outside capital "to upgrade technology and take advantage of scale." The lawsuit seeks a ruling that the First Amendment (incorporated to the States through the Fourteenth Amendment) protects the rights of non-lawyers and lawyers to partner or invest together in the formation of a law firm.  Currently, most States' Rules of Professional Conduct prohibits sharing legal fees with non-lawyers, and effectively prohibits any professional partnership with a non-lawyer.   On January 9, 2013, the Second Circuit Court of Appeals remanded the case to the lower court for a determination on the Constitutionality of the relevant provisions of the Rules of Professional Conduct.  To the best of my knowledge, this case is still pending at the lower court.

 I believe a ruling favoring Jacoby & Meyers, LLP would forever alter the legal profession, in some good ways and in some bad ways.  For instance, if lawyers and accountants could partner, the tax field would become more effective. If law firms could invite non-lawyer investors, it might be easier for new lawyers with good ideas and no cash available to locate start-up capital. Furthermore, partnerships with non-lawyers would allow attorneys to partner with and offer stock options to long term paralegals and secretaries, many of whose work is as essential to a law firm’s profits and success as that work which is billable. 

In the Jacoby and Meyers case, the Defendants argue, in part, that the limitations at issue “are to protect the lawyer’s professional judgment” and “to minimize the number of situations in which lawyers will be motivated by economic incentives rather than by their client's best interests.”

In my opinion, the most compelling argument available to Defendants, which is raised in their motion to dismiss the suit by Jacoby and Meyers, is that law firms run by business executives are not necessarily bound by the Rules of Professional Conduct. 

Under the Rules of Professional Conduct, there are numerous professional obligations incumbent on lawyers that are not required of business owners not engaged in the practice of law.   Defendant’s brief states: “Should a partner …violate the Rules and cause the lawyer to act against his client’s interests, the partner would himself be subject to discipline by the state judiciary and risking his license to practice. …There is no similar deterrent in place to prevent a non-lawyer investor from attempting to influence a lawyer’s professional judgment for financial gain (and the reality of the market all but ensures that such pressures would shortly be brought to bear once the restriction on investment is lifted).” The brief points to other professional obligations not legally required of non-lawyers. These positive aspects of professional licensure should not be thrust aside without care for the consequences. 

Friedman makes the argument that these rules limit the opportunities for individuals of different expertise to creatively cooperate to make their respective professional services less expensive to the general public. For instance, as I say above, the tax field could be more effective if lawyers and accountants partner in a joint enterprise.  Perhaps a family law firm would do well to partner with a social worker or psychology practice.

As I would be uncomfortable completely abandoning the professional conduct rules that would prohibit the situation where a business professional has an economic incentive to dictate a lawyer’s conduct, much as it appears that insurance companies and other business professionals have incentives to limit medical professionals’ professional options in treating their patients, I think there is plenty of room for allowing small partnerships and other inter-professional business relationships in situations where each professional maintains professional independence while cooperating economically.

In conclusion, the Economist writers are correct to raise the cost of legal education and certain limitations on practice as economic factors that impact the cost of legal services, and these problems should not be brushed aside but addressed in a serious manner, perhaps as a discourse essential to preserving the esteem in which society holds the profession. I hope that regardless of whether my perspective presented here is adopted by others, it will at least encourage others to consider their perspectives on what areas of the legal profession contribute to its services being outside the economic scope of so many Americans.  

Thoughts About Increasing Civic Learning...From Massachusetts

Today I came across Massachusetts' Senator Richard T. Moore's February 13, 2013 article in the MetroWest Daily News concerning current failings in civic literacy.  He highlights that the 2010 National Assessment of Educational Progress in Civics and History reported that one quarter of students were adequately taught civic engagement issues, and less than 10% of eighth graders had knowledge of checks and balances, yet only one third of teachers cover issues of civics in their classes. He targets readers towards  a December 2010 report entitled "A Report of the Special Commission on Civic Engagement and Learning," the production of a commission formed in July 2008 by the state legislature, and presents other observations about the lack of civic knowledge in society.  His conclusion is that there is a "lack of effective, high quality, student-centered civic learning opportunities in our schools" explaining that " civic learning and democratic engagement are not staples of every student‟s education today, as they have been in the past and must be for our nation‟s future. In too many schools and on too many college campuses, civic learning and democratic engagement are add-ons, rather than an essential part of the core academic mission."

He asserts that prior to the 1960s, the study of civics and the role of the citizen were common in American high schools and are no longer today, replaced with a course on American government.  Although I cannot personally attest to what education was offered prior to the 1960s, I can attest that during the time of my schooling and since, much education on democracy has been focused solely on government structure and not on citizen engagement.  In my high school and those of my successors, community service has far too often been defined only by contribution of time to service and care projects such as soup kitchen, Habitat for Humanity and park clean ups.  Indeed society might break down if students were not encouraged to participate in acts of charity and kindness--but our democratic tradition can also break down if students are not encouraged to consider their role in democratic institutions.

Senator Moore, citing to the Campaign for Civic Mission of Schools, cites to six elements of civic education (or civic learning as he calls it), namely:  (1) student-centered classroom instruction in civics, government, history, economics, law and geography; (2) service learning linked to classroom learning; (3) experiential learning; (4) learning through participation in models and simulations of democratic processes; (5) guided
classroom discussion of current issues and events, and (6) meaningful participation in school governance.  His website includes citation to a December 2012 report Renewing the Social Compact: A Report of the Special Commission on Civic Engagement and Learning that proposes ways for states and town to incorporate these educational goals. It also presents an analytic way of considering the aspects of civic learning.

I am encouraged to see this discourse on state levels. I am hoping schools curriculum are altered to affect the findings discussed by Senator Moore. I also hope that teachers are given the encouragement and freedom to bring civics into their existing curriculum.  A tour through the standard middle school and high school curriculum present numerous opportunities for civic engagement education.  For instance, an existing government teacher can have its student consider a social issue, perhaps one they care about, and attend and community meetings of two or more organizations seeking to address the issue and report back on their findings.  An English teacher could have their student readers of the Tale of Two Cities, the Scarlet Letter, and the Odyssey consider how the stories influence or reinforce their perspective on life in contemporary America.   

Interesting Leglislation to Let Online Law School Grads to Take Arizona Bar Exam

In most States, like Arizona, it is unlawful for a someone to become a licensed lawyer without first receiving a Juris Doctor at a law school approved by the American Bar Association.  This creates a very serious barrier to access for individuals wishing to practice law. The barrier is that one must first get admitted to one of the 201 ABA accredited law schools.  This is sometimes a near impossibility for those with family or economic responsibilities, not to mention those with existing work obligations.   

Arizona Representative John Allen (R-Scottsdale) has proposed legislation to allow individuals who complete an online law school program to take the state bar exam and become a lawyer (assuming they satisfy all the other requirements.)  I have read the legislation. It is straightforward, and I support it.

An article in the Cronkite News illustrates how online education is the only reasonably accessible opportunity for some lawyer aspirants to enter the profession. It tells the story of one woman who had always dreamed of going to law school but couldn't due to career and family obligations. She did then locate and complete an online law school program based on California (the only state to currently allow graduates of online schools to sit for the bar exam), but since moving to California is not an option for her family, she is effectively prohibited from practicing her chosen profession.

Opponents of online legal education rightly complain that an online school cannot provide the same interactive spirit that facilitates learning law. Furthermore, law is not solely a technical trade, but is a civic art, and thus is most relevant in the context of a community where it can be discussed and evaluated in contemplative discourse.

There are two problems with this argument against on-line legal education. First, in-person law schools these days don't seem very directed at contemplative discourse anyway. For the most part, law school students are graded on their ability to mechanically manipulate the informative provided.  They are not judged on their creativity. Even though law professors often love to offer fascinating courses that encourage creative thinking, from what I observed, law students are either self driven or outright encouraged by their law school advisers to focus in on classes relevant to bar examination and career options.

 The second problem, often stemming from the first, is that from the student's perspective, law schools often function as if they were trade schools, not ivory towers where students consider the legal theory, history, and alternative approaches to legal and community issues. 

This may be because there are very few other options for individuals to learn about the legal system other than going to law school, and no mechanisms to become a lawyer than to successfully attend law school. 

I believe if there were educational alternatives and alternate means for individuals to secure the mechanical education needed for becoming a lawyer, law schools might have the leisure to engage in and encourage the contemplative aspect of the law.  I for one believe that I spent a certain portion of my law school career learning information that should be made available to all citizens, not just law students. 

There is also another factor to be considered.  There are no States in the country that permit one to sit for the bar exam without first attending a law school.  There are only 201 law schools in the country.  These 201 law schools train 143,000 students, meaning each law school houses, on average, over 700 students.  These ratios make it impossible for class sizes to be small enough to encourage deep conversation.  And in a country of a population of 314 million, a smaller number of law students is not practical.

Thus, the solution is more schools designed to meet the needs of those desiring to learn about the law.  Online schooling is an excellent opportunity to expand the educational opportunities for those looking to learn about the law and the professional skills needed therein.  If and when online law schools grow, individuals looking to study law will have more choices.  And as I have indicated in prior posts, more diverse study opportunities means more diverse legal perspectives, meaning more opportunity for the creative spirit to think through solutions to legal problems we face.