Legal Literacy Day -- an Idea Worth Promulgating

I was inspired to read the following address at supremecourtofindia.nic.in/new_links/NLLD.pdf. I am not particularly familiar with legal literacy day in India -- or anywhere else for that mattter--and so I can't speak to whether the day is effective. However, to the extent that such a commemoration here might have the effect of creating educational opportunities for communities in need, I must wholeheartedly endorse the activities that would lead to citizens' familiarity with their rights and responsibilities. The following essay succinctly articulates the need to advance legal literacy in the general public in India, and I think the general arguments apply no less in the United States of America. ADDRESS ON THE OCCASION OF NATIONAL LEGAL LITERACY DAY ON 9th NOVEMBER, 2006 Y.K. Sabharwal, Chief Justice of India The growing number of issues and problems that plague societies today has given rise to the many causes that demand support from the people of the country. Be it the environment, poverty, literacy or public health, each cause is clamoring for public attention – and in an effort to get such attention, governments and organizations have come together to devote a particular day to a particular cause so that awareness may be raised regarding those issues. We have an Earth day to increase environmental awareness, we have an International Women’s day to increase genderrelated awareness and similarly we have a Human Rights day, a World AIDS day, a World No Tobacco day and many, many others. Today is Legal Literacy day and it is only right that we take some time out of our busy schedules to talk about legal literacy – what it is, why it is important, and how we can promote it. In order to understand the relevance of legal literacy it is necessary to first fully comprehend the legal goals of our country. Once these legal goals become clear, legal literacy can be given a definite direction. For what the legal goals are, let us only see, what is laid down in the preamble of our constitution. It commits the nation to justice and to equality. However, these goals of justice and equality aren’t purely legal terms by which only the laws and courts of the country must abide. Under the constitution, they demand a larger commitment. The preamble mandates not only of justice in its legal sense, but social, economic and political justice and equality of status and opportunity. Undoubtedly, the country has made tremendous progress and development but, at the same time, we all have to bear in mind that despite the guarantee of such high ideals and despite the provision of a truly comprehensive constitution to assist in achieving these ideals, we seem to have fallen short of many of our goals towards a large section of the society. We are still a country where millions of people live in conditions of poverty, with millions living in conditions where they are without the most basic of their needs fulfilled. Unfortunately, this class is far away from achieving many of the ideals laid down in our constitution. And it is not only the constitution. A number of statutory provisions have been made allowing for social welfare schemes and other legislative measures to alleviate the vast deprivation in our society. Yet, these programs too often have been unable to reach those most in need. It is my firm belief that laws or legal institutions will not be completely effective as an instrumentality geared to deal with issues of poverty or deprivations unless we first strengthen the mechanism of legal aid and advice. So where exactly does legal literacy step in? The answer is simple. If legal literacy means making people aware of their rights, then by making the people literate, we would essentially be taking the first step in empowering them to fight for their rights. Our society is filled with various categories of persons whose rights are violated on a daily basis and these persons are unable to take any action to remedy this situation simply because they aren’t even aware that they are assured certain rights. Particularly at risk are various vulnerable groups including the Schedules Castes and Scheduled Tribes, women, children and the disabled. These groups include those who have either historically been oppressed and denied mainstream opportunities or those who by their specific conditions cannot function as the mainstream does. Here is where the role of legal literacy is crucial. I truly believe that legal literacy is the core basis of the rule of law and essential for the survival of our constitutional democracy. Indeed, our entire justice delivery system is based on the presumption that all people are aware of their rights and are able to approach the concerned institution. I cannot stress enough the importance of education – it is perhaps the single-most empowering tool in any aspect of life for every person and the law is no exception. Indeed, most often it happens that the poor, the deprived or the exploited of the country remain poor and deprived and are unable to seek redress simply because they are not aware of the rights they are guaranteed and the remedies that are available. Legal literacy helps break this vicious circle by providing a way out for such people. It enables the deprived or disadvantaged sections of society to recognize violations of their rights and effectively challenge such violations. While it is true that education cannot single-handedly achieve this goal, education is essential to provide the necessary impetus for their achievement. It is important to remember in this regard, that legal literacy cannot simply be understood as creating awareness regarding the rights of the people, for any efforts towards legal literacy necessarily involves a broader approach. When we say legal literacy, we do mean an awareness of rights, but such awareness must go hand-in-hand with awareness regarding the remedies, the relevant institutions and the procedure required to obtain that remedy. The point of legal literacy is to familiarize the weaker sections of society with their rights, their scope and also provide them with information required for the assertion of such rights so that they may be able to take action and bring about a change in their circumstances. It is only when such comprehensive education is given, that legal literacy can be said to have been meaningful. Once the deprived are made legally literate in this manner, we can confidently believe that we are one step closer to achieving the goals that our constitution has laid out for us. This is because an improvement in legal literacy will translate into the improvement of the financial status of the people, which in turn takes us closer to social justice and equality of opportunity. For example, when a worker is made aware that he or she is entitled to a minimum wage, and is also informed of the appropriate forum for the remedy and that he or she is entitled to free legal aid, the battle of that person will be half-fought already. However, for legal literacy to be truly effective, information about the law must be spread in a simplified form. The first impediment that would be faced in this regard is with respect to language. The legal language of the country is primarily English – even our constitution is in English. How then can we expect those who do not speak or understand the language to be aware of their right to life or right to equality or any other right. Another aspect of the matter is the criticism that legal language is overly complicated and even those familiar with the language are often uncertain as to the meaning of many provisions. To ensure effective legal literacy, it is essential that the legal provisions – including legislations, rules, notifications – which guarantee certain rights must be simplified and translated into the language of the common man. The advantage in this regard is that there is no formal dissemination of information required. Anyone with an understanding of the law and the knowledge of remedial process and the ability to convey it to the person can be just as effective. Thus, all these factors must be taken into account while spreading awareness regarding legal rights and remedies. Another factor which plays an important role in the legal literacy mission, in addition to awareness amongst the people, is the perception that people have regarding legal institutions. It is necessary that people not only be aware of their rights and remedies, they must believe that the enforcement of such rights is possible and that they will get adequate remedies within a reasonable time, on a reasonable expense or no expense. Public perception of the legal institution is crucial in determining the success of such institutions. There is a direct proportionate relationship between the faith the people have in an institution and the success of that institution. Therefore, it is necessary for the success of legal literacy that people must have faith in these institutions, if they are to rely on them for the enforcement of their rights. A lot more is required to be done by all organs to tackle the problem of time and expense. There does seem to be some marginal improvement in this direction but we still have a long way to go. Yet, another factor which will definitely play an important role in the years to come regarding the public faith in institutional mechanism is the Right to Information Act. Armed with the knowledge that certain information can always be acquired, it will help the institutions to command public faith and the public in turn can quite confidently believe that the institution is acting bona fide. However, the achievement of legal literacy is not an easy task, nor can it be accomplished by one or two institutions alone. It is absolutely essential that all three organs of the state must work tirelessly together. And it is not just these three organs of state alone. They too require the support of NGOs, particularly those which work at grassroot levels, individuals who have dedicated themselves to certain causes, international organizations, the media etc. Law schools also have a vital role to play where a new generation of legal talent is being trained and enthusiastic students can be used to conduct legal literacy camps as is being done now. Everyone must come together and work in harmony and thereby do their bit to serve the society. This does not of course mean that legal literacy is a magic, quick-fix solution, where with a flick of a wand all problems will disappear. The process of educating the masses of their legal rights will necessary involve a gradual change and we must have belief in the cause as well as sufficient patience to be able to finally see the results. It is also important to remember that the problems that our society faces today all feed into one another and the effectiveness of legal literacy will be largely dependent upon the extent of such problems. Let me give an example. A person approaches a particular institution for a remedy and is faced with a corrupt official who demands a bribe, the person may be unable to obtain the remedy though he or she has been made aware of his or her rights. The same corrupt official may act differently while dealing with another person realising that he has the ability and capability to challenge such a demand. The cycle of poverty and deprivation thus becomes more difficult to break when it is faced with external challenges such as corruption. Other such hindrances include red-tapism, unnecessary delays, etc. However, we must not let these problems deter us. We must continue our efforts with great determination and perseverance. Indeed, our efforts at promoting legal literacy can even assist in easing other problems such as corruption, poverty etc. Even though these problems spiral off each other to make each other worse, the solutions to these problems also play off each other and a victory in one area is a step towards remedying the other problems. In conclusion, I would like to note that while we have taken Legal Literacy day today as an opportunity to discuss various issues, we cannot forget these issues tomorrow. The solutions to the many problems that can be tackled through legal literacy are not going to disappear overnight. Nor can our efforts end when the day comes to a close. Rather we must regard today as a renewed commitment that we have made towards legal literacy and strive to achieve all the high ideals that have been spoken about today, throughout the year. My Best wishes. Thank you very much.

Eliminate the Text Book Controversy - Teach Classics

Every few years it seems that the nation is embroiled in conflicts over history. Most recently, the conflict arose and ground zero was the Texas Board of Education. There, the Board voted in a series of revisions to its requirements for the course “United States History Studies Since 1877.” I contend that these conflicts could be mostly avoided if students were encouraged to read classical sources rather than text books that define the "story" branded "history."

The nature of the revisions is alteration of the concepts students are expected to master. In other words, the Texas Board of Education, as do many boards of education, votes of principles and concepts they expect students to master over the course of their schooling. Then the text book industry creates text books to cover this list of principles and concepts.

According to an article I read in the Financial Times the other day, because Texas is a populous state and thus a large purchaser of text books, the buying power they have means that their standards tend to affect what text book makers make available throughout the country. The article said that "Historically, this has, in effect, allowed it to dictate the syllabus in smaller states."

One fight concerns what students should learn about the Founding Fathers' belief in the separation of church and state, and another relates how to definate or connote terms like "capitalist" or "free enterprise system." In other words, are these favorable terms or negative terms?

A right-leaning organization published its concerns that the left was speaking out because they want to teach history infused with a left-leaning interpretation.

A left-leaning organization published its concerns that that the proposed changes from the right would lead to a distortion of history by creating a focus on right-leaning thinkers and a decreased focus on left-leaning thinkers.

Part of the underlying problem is the extent to which members of the general public are made to presume that a text book can adequately give an unbiased overview of history. Sadly, this is not really possible. Try the excercise of writing a few paragraphs on a controversial topic (e.g. "the Reagan revolution"; "the abortion debate"; or whether slavery was the primary cause of the civil war). Try hard, in only a couple or three paragraphs, to adequately capture differing views on the subject matter, realizing that your target audience may have no knowledge of the subject matter. Then show your paragraphs to 20 individuals who have strong and diverse opinions about the subject matter about which you are writing. I contend that you are sure to be accused of at least inadvertaint bias, and you might even be convinced that you simply aren't familiar with the whole story.

This problem can be addressed by seeking to escape the text book controversy, and invite students to learn history through the examination of original sources. Readers of Thomas Jefferson's original writers can determine for themselves what they thought of his religious views. Readers of the Adam Smith and Karl Marx can better understand the concepts underlying capitalism and communism than can readers of a text book trying to narrow Smith and Marx into sound bites.

A study of original thinkers makes students think for themselves. Although the text book reader is invited to think that they are receiving "the" story, readers of original source materials are naturally aware that they are reading the views of a particular thinker, who may or may not reflect the views of others.

The is an important valid criticism of "great books" programs. Although "great books" programs educate its readers as to diverse ideas and diverse concepts, it is arguably impossible to get through the history of the United States through one year of study if one is bogged down in comprehensively understanding the complexities of a particular social movement.

There are two answers to this criticism. First, perhaps history curriculums unnecessarily expect its readers to spend time remembering facts that are not so important.

Second, and more importantly, there exists summaries of history that are not artificially authoritative "text books." For instance, when studying the ancient world, one can read Herototus and Thcydides without getting the misimpression that the text has no author's perspective. In the modern world, the same can be true of reading DeToquiville's account of America's founding, Howard Zinn's "People's History of the United States, Paul Johnson's History of the American People, and Max Lerner's America as a civilization." All of these books are individual's accounts of American history. They contain many of the same facts that may be found in the text books, but are not riddled with the same false impression that they represent the "official" story line.

Even The Bible Endorses A Transparent Legal System and A Layered Judiciary

Text: Exodus 18

Although I am no advocate of breaking down the separation of church and state, I am also comfortable with using the Bible as a source for understanding legal and social concepts. Thus, Exodus 18 provides an excellent source from which to understand certain crucial legal concepts.

A. The text itself

In Exodus 18:13, we find Moses acting in the role of the judiciary, “sitting to judge the people…from morning until evening.” In Exodus 18:16, Moses explains that “whenever they have problem, [namely the citizenry] they come to me and I judge between man and his neighbor. I impart to them God’s statutes and laws.”

From this last line, we are thrust with the impression that the people for whom Moses is judging are unaware of “God’s statutes and laws.” In Exodus 18:18, Yitro, Moses’ father-in-law, expresses concern about Moses’ wearing himself out by endeavoring to be the sole decision-maker. Thus, he advocates, the following: (1) enlighten the people as to the statutes and laws; (2) seek out capable, honest, incorruptible people to serve as judges, so that Moses would charged only with the “major” problems.

Yitro concludes his recommendation with a line that warrants interpretation, and probably deserves multiple interpretations. He says: “If you do this, and God commands you to do this, you will be able to survive, and also this entire people will come to their place in peace.” Moses complies with this suggestion.

B. The concepts therein This story is an excellent illustration of several legal and constitutional concepts, along with ideas central to this blog.

A government of law, not men

Yitro advises Moses to educate the citizenry about the laws that govern their social conduct. Educating the citizenry as to laws that govern conduct is not required merely to maintain the power of a government. In fact, many regimes throughout history have maintained control over society by exercising power randomly and maintaining a state of confusion and fear as to what actions might be lawful or unlawful. Often in those societies, the people are uneducated as to rules under which they live, so they are often unable to truly decipher when the governing powers are abusing their authority.

However, when the citizens know the law, they are more likely to disdain abuses by government or government officials. It also strikes me that citizenries with knowledge of the law in which they live are more inclined to be fair and egalitarian. For one, when citizens are equally aware of their rights, it is harder for one to take advantage of another and easier for individuals and groups to exercise their rights.

Additionally, when the law is publicly available, there is a general sense in society that they live under the rule of law, making an example of John Adams’ expression “a government of law, not men.” The term, “a government of law, not men” is essential to understanding the American legal system. In the American judicial system, judges are required to rule based on the application of the relevant law.

Although every judge is influenced by his or her own morality, ethics, and personal desires, his or her judicial decisions are required to be limited to applicability of the law at hand. As a lawyer, I often find myself telling potential clients, “as much as I think you have been morally and ethically wronged or mistreated, I do not think the law provides a remedy.”

2. A layered judiciary with distinct appellate courts

Yitro instructs Moses in 18:21 “You must seek out from among the people, capable, God-fearing me, men of truth, who despise gain. You must then appoint them over the people as offices… Let them judge the people at all times. Every major problem they will bring to you, and every minor problem, they shall judge by themselves.” The text itself provides for a layered judiciary where minor problems are handled by the lower court and major problems are handled by Moses himself. In American law, all trials are handled by lower courts and higher courts are assigned to address legal questions the lower court may have gotten wrong or not properly thought through. Thus, litigants who believe that the trial court has ruled incorrectly may appeal to the appeals court and obtain a ruling requiring the trial court to apply the law differently. I have reason to believe that Yitro has a similar notion in mind.

In Numbers 36, the brothers of Zelophehad, a man who died without sons, appealed to Moses to assign his land to them rather than to Zelophehad’s daughters, as if they married men of another tribe, the land would be cut off from their tribe. Presumably, the brothers of Zelophehad sought the assistance of Moses after not obtaining a satisfactory result from the trial court.

3. Caselaw

Moses rules that the land should be passed to the daughters, but that the daughters should marry within their own tribe, but avoiding any cross-tribe land transfer. The text indicates that Moses ruled according to God’s instruction, but it is unclear if Moses sought God’s instruction in this particular case, or if this is a reference to the notion that courts of appeals are regularly asked to interpret the law—and once they do so, their rulings have the legal affect of being treated as if they were literally the text of the law. In other words, Moses, as an appellate judge, considered a factual scenario that the law did not explicitly address, and interpreted the law in a manner so that it could apply to the situation at hand. The Torah concludes the text by indicating Moses ruled according to God’s instruction. Similarly, appellate court seek to rule according to the written law they are applying—and once they rule, principles of the rule of law require that everyone treat the court’s decision as if it were the law itself.

Conclusion

American law did not form in a vacuum. Many legal principles we employ have precedent in numerous other contexts. The Bible can serve as an attractive reference point because the text is treated with so much importance by so many people. I personally find it so very fascinating that in only a few pages of Bible text I can explain so many legal principles applicable to our present legal framework. In fact, I would not be surprised if further examination of the texts I discuss here would yield even more legal concepts. It is just so fascinating.

"What's the Right Thing to Do" is the Right Thing to Watch -- and Thoughts on the Importance of Moral Philosophy to Political Philosophy

Although it is generally rare that television shows inspire serious thought about philosophical issues, PBS’s Michael Sandel’s “What’s the Right Thing to Do” succesfully invites its watchers to become part of the great questions addressed by western moral philosophers throughout the ages—and gives its watchers an opportunity to appreciate the role of moral philosophy in political philosophy. I had the opportunity to watch two of the twelve episodes two Sundays ago, and another two last Sunday, and hope to watch two more today. All of them are accessible at http://justiceharvard.org/index.php?option=com_content&view=category&layout=blog&id=9&Itemid=5. The show is a broadcast of some or all of Sandel’s moral philosophy class at Harvard University. The class invites its participants to consider moral dilemmas, like “Would you switch a runaway trolley from one track to another if it meant killing one person instead of five?” ;“ Would it be just as moral to push a person in front of the speeding trolley to stop it and save the five?”; “What about a surgeon killing one healthy person and using his organs so that five people who needed organ transplants could live?”; and “Whether it is better to harm one person to save multiple people or better to avoid harming anyone.” Through exploring the moral dilemma examples, he demonstrates the answers of various philosophical approaches, such as utilitarianism v libertarianism. Anyone interested in a general overview of western moral philosophy will definitely get that in this series For me, the show is serving an an unexpected reminder of the importance of moral philosophy to political philosophy. In my recent study of political philosophy, my mind has created an artificial border between morality and political philosophy that may not be true to those who established the values that underly our political system. Moral philosophy is an essential part of political philosophy. Political philosophy relies of morality to determine what is in society’s best interest. For instance, libertarian philosophy focuses on the morality of individual freedom over else. Utilitarianism focuses on the greatest good for the greatest number. Behind these political philosophies are questions of what is society’s moral responsibility to its citizens. Pure political philosophy asks only what system of governance is effective at creating the desired result, usually presuming that the desired result is something simply like satisfaction with the governing structure under which they live. However, that is a short sighted error because it ignores that moral questions underlie the expectations of government. For instance, would it be moral to maximize citizen liberty if it means that citizens are at a greater risk of injury from harm from pollution or unsafe commercial products? Alternatively, would it be moral to maximize citizen safety if it means that citizens have fewer rights to take personal risk, succeed at personal endeavors and decrease the number of personal choices available to them. These questions underlie our present political debates concerning health care, tort liability, environmental protection, and even national security. It is unlikely that Michael Sandel’s class will unilaterally increase the study of moral philosophy, or even the recognition that moral philosophy underlies so many of society’s decisions. However, Sandel’s book “Justice” and his PBS class are making philosophy more accessible to many outside the walls of university institutions. The importance of this to our society can not be over-stated, as much poltical dialogue today resorts to arguments over self-interest and claims of ignorance on the part of competing views rather than an acceptance of disagreements due to competing moral approaches to problems.

Pro Se Assistance and Unbundled Legal Services Essential To Justice in This Economy -- Plus Additional Options to Make Justice Accessible

Relevant Text: Chief Justice John T. Broderick Jr. and California Chief Justice Ronald M. George: “A Nation of Do-It-Yourself Lawyers.” New York Times, 1/1/2010 (http://www.nytimes.com/2010/01/02/opinion/02broderick.html?hp) I was extremely pleased to read New Hampshire Chief Justice John T. Broderick Jr. and California Chief Justice Ronald M. George’s New Years Day article in the New York Times (http://www.nytimes.com/2010/01/02/opinion/02broderick.html?hp) advocating that the legal system increase the availability of unbundled legal services as a means to help close the “justice gap.” The “justice gap” refers to the existence of a major gap between the legal needs of low-to-middle income people and the legal assistance available to them. “Unbundled legal services” refers to an attorney client relationship where the attorney assists with specific parts of a legal case rather than taking on representation of the entire legal case. I hope this public endorsement of unbundled legal services and other pro se legal assistance will lead to an increase in the availability of unbundled legal services, other pro se legal assistance, and other creative solutions that make it possible for non-wealthy individuals to have their day in court. The Justices point out that the economic downturn of 2008 and 2009 has caused an increased number of individuals without sufficient resources to pay for necessary legal assistance. Unbundled legal services allows individuals to obtain legal assistance where it is most needed, rather than the burden of paying for counsel for an entire matter, which can be an extremely costly endeavor. Unbundling often involves discrete assistance such as preparing a specific document, coaching on how to present in court, or even appearing for an isolated hearing. In my opinion, this very public endorsement of unbundling by two chief justices is an essential advancement in the cause of making the court system more accessible to those without financial means. Having two State Chief Justices referring to the gap between the legal needs of low-to-middle income people and the legal assistance available to them as a “justice gap” is a public recognition that our system of jurisprudence makes the employment of counsel an almost necessity for a party to received a fair hearing. One other method of addressing the legal needs of low-to-moderate income persons has been advanced by the Civil Gideon movement. Civil Gideon is an effort to expand the types of cases in which low-income individuals are entitled to publicly funded representation. The term Gideon references the Supreme Court case Gideon v. Wainwright 372 U.S. 335(1963), which held that the Sixth Amendment requires courts to provide counsel for criminal defendants unable to afford their own. The Civil Gideon movement seeks to expand this legal right to assistance for individuals facing life-altering civil matters such as divorce, child-custody, residential evictions and termination of parental rights. The movement primarily focuses on expanding state statutes to assure that low-income individuals impacted by these issues are not left without legal assistance. The movement has also worked on seeking favorable state court interpretations of existing statutes and constitutional provision, namely interpretations that existing law requires the provision of publicly funded representation in certain life-altering civil matters. A further method worthy of consideration is expanding Title 42 Section 1988. (see http://codes.lp.findlaw.com/uscode/42/21/I/1988). Section 1988(b) provides that plaintiffs successful under certain statutes are entitled to reasonable attorney fees as part of their recovery, in addition to whatever the jury has awarded. This statute, along with its analogous employment law statute at Title 42 2000e-5(k) allow attorneys to take meritorious cases from clients who would otherwise be unable to afford legal counsel. Without minimizing the importance of unbundled legal services and other forms of pro se legal assistance, it would be hard to deny that the justice gap would be seriously decreased if an expansive form of Civil Gideon were adopted or Section 1988 were expanded. The Court in Gideon wrote that “The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel….Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible.” Thus, although it should be incumbent on the legal community to do everything we can do to make the court system accessible to non-lawyers regardless of personal wealth, it is fair to point out that the justice gap, to be fully met, must be addressed on various fronts. Thus, Justices Broderick and George point out the importance of the legal community making efforts to make the court system accessible to those who have no access to counsel. In the two paragraphs preceding this one, I discuss the legislative front that could substantially impact the availability of bundled counsel to low-to-moderate income persons. The third front (not previously mentioned in this post) is the educational one. Although Justices Broderick and George touch on the role of educating pro se litigants as a means to increase their instant access to the courts, I think it is important that when we are considering access to justice issues, we consider the scope of knowledge and information available to the general public concerning their rights and the court system. As Deborah Rhode points out in her book, Access to Justice, someone unfamiliar with their rights may not even be aware that they have a reason to consider consulting counsel. As it is so worth reading, please read Justice Broderick and Justice George's article for yourself: A Nation of Do-It-Yourself Lawyers By JOHN T. BRODERICK Jr. and RONALD M. GEORGE Published: January 1, 2010 AMERICA’S courts are built on a system of rules and procedures that assume that almost everyone who comes to court has a lawyer. Unfortunately, the reality is quite different. An increasing number of civil cases go forward without lawyers. Litigants who cannot afford a lawyer, and either do not qualify for legal aid or are unable to have a lawyer assigned to them because of dwindling budgets, are on their own — pro se. What’s more, they’re often on their own in cases involving life-altering situations like divorce, child custody and loss of shelter. As the economy has worsened, the ranks of the self-represented poor have expanded. In a recent informal study conducted by the Self-Represented Litigation Network, about half the judges who responded reported a greater number of pro se litigants as a result of the economic crisis. Unrepresented litigants now also include many in the middle class and small-business owners who unexpectedly find themselves in distress and without sufficient resources to pay for the legal assistance they need. As judges, we believe more needs to be done to meet this growing challenge: an inaccessible, overburdened justice system serves none of us well. California took a major step forward in October when it became the first state to recognize as a goal the right to counsel in certain civil cases. (The state also committed to a pilot project, financed by court fees, to provide lawyers for low-income citizens in cases where basic human needs are at stake.) But this is only a beginning. It is essential that we promote other efforts to close the “justice gap.” One such effort involves the “unbundling” of legal services. Forty-one states, including California and New Hampshire, have adopted a model rule drafted by the American Bar Association, or similar provisions, which allow lawyers to unbundle their services and take only part of a case, a cost-saving practice known as “limited-scope representation” that, with proper ethical safeguards, is responsive to new realities. Traditionally, lawyers have been required to stay with a case from beginning to end, unless a court has excused them from this obligation. Now, in those states that explicitly or implicitly allow unbundling, people or businesses can hire a lawyer on a limited basis to help them fill out forms, to prepare documents, to coach them on how to present in court or to appear in court for one or two hearings. For example, a lawyer could advise a client in a divorce proceeding about legal principles governing the division of marital assets or provide assistance in calculating child-support obligations. A lawyer might also draft pleadings or legal memos or provide representation at a hearing to obtain a domestic-violence restraining order. What could be wrong with this? Well, some lawyers have expressed concern that limited legal representation will encourage litigants to dissect their cases in an effort to save money, sacrificing quality representation that the litigant might otherwise be able to afford. We have also heard the argument that by offering too much assistance to self-represented litigants, the courts themselves are undermining the value of lawyers and the legal profession. Apparently, some are concerned that the court system will become so user-friendly that there will be no need for lawyers. We respectfully disagree. Litigants who can afford the services of a lawyer will continue to use one until a case or problem is resolved. Lawyers make a difference and clients know that. But for those whose only option is to go it alone, at least some limited, affordable time with a lawyer is a valuable option we should all encourage. In fact, we believe that limited-scope-representation rules will allow lawyers — especially sole practitioners — to service people who might otherwise have never sought legal assistance. We also believe that carefully drafted ethical rules allowing lawyers to handle part of a case give the legal profession an opportunity to help the courts address the ever-growing number of litigants who cross our thresholds. This cause has special relevance now as state courts are faced with serious cutbacks in financing, forcing some to close their doors one day a week or a month, lay off front-line staff members and delay jury trials. None of this bodes well for the judicial system or for those seeking to vindicate their rights through the courts, whether they have a lawyer or not. We need members of the legal profession to join with us, as many have done, in meeting this challenge by making unbundled legal services and other innovative solutions — like self-help Web sites, online assistance programs and court self-help centers — work for all who need them. If we are to maintain public trust and confidence in the courts, we must keep faith with our founding principles and our core belief in equal justice under the law. John T. Broderick Jr. is the chief justice of New Hampshire. Ronald M. George is the chief justice of California.

A Postscript for Justice Souter: It is Important to Clarify the Difference Between Community Service and Civic Engagement

My most recent post discussed a talk given by Justice Souter on the subject of the importance of civics education, and the critical role it plays in preserving an independent judiciary. The focus of that piece was what Justice Souter described as the source of his understanding of civics, namely his experience observing democracy in action, in the form of annual town meetings in small town New Hampshire. That piece, in effect, argues that Justice Souter’s description of his experience shows that true civics education comes best from direct observation of or actual interaction with the democratic process itself, rather than mere exposure to philosophic notions or ideals during the four corners of the school house. There is another point worthy of attention that I did not raise in my piece of December 1, 2009. Although I pointed out that Justice Souter’s piece related to a “democratic experience,” I did not adequately point out that we should not confuse the description of his experience with that of someone engaging in “community service” and volunteerism. Community service is voluntary behavior or action that is designed to benefit a community or its institutions. Although a democracy is unlikely to function well without a population motivated to engage in community service, it is important not to confuse community service with the democratic experience. Community service can exist in any society, not just in a democracy or a democratic republic. Community service requires only that an individual or several individuals care about the needs the community itself or other members. For instance, one can provide food to the homeless without worrying about the causes of homelessness or whether there are larger social problems causing homelessness. Alternatively, one can volunteer to clean up a park without wondering if there are underlying societal problems causing the park require clean up. The democratic experience, however, requires its participants to evaluate the communal needs and the role of local, state, and national government in addressing those needs. Even the most libertarian among us see a role for government in assuring certain levels of safety from violence and the availability of roads for safe travel. Thus, the democratic experience is one where a citizen mentally goes beyond individual service and begins engaging in problem solving on a societal or global level. The democratic experience includes the thought process of devising societal solutions and the willingness to take communal steps towards resolving such problems. This may involve attending meetings on public issues, working with others to resolve the problem, raising money for a community or lobbying association, or even volunteering to elect a particular candidate. One can only have a true democratic experience in a society that allows for such. A society which tells its young that they have no power to alter social institutions is not truly democratic, regardless of whether the law technically provides for democracy. However, a society where citizens feel a sense of ownership towards their government, and thus empowered to organize for change to government’s institutions is truly democratic. By “change to government’s institutions,” I do not only mean the type of radical change sought by Saul Alinsky-style activists. I am also referring to budgetary changes and communal priority changes that would be decided upon in the town meetings described by Justice Souter. Thus, the democratic experience includes the thought process of devising societal solutions and the willingness to take communal steps towards resolving such problems. This experience may involve attending meetings on public issues, working with others to resolve the problem, raising money for a community or lobbying association, or even volunteering to elect a particular candidate. In other words, it is this democratic experience, rather than community service, which is the essential function of those citizens who are democratically engaged.

Stories of Democratic Experience

Part of my reason for focusing on Justice Souter's talk has been a deep interest in the notion that experiences with democracy are worth discussing openly, because they shape how we see the opportunities to be engaged democratically.

From a psychological standpoint, open honest talk about one's influences help explain one's philosophical approach to problems. For instance, my personal perspective in how to address social and economic problems stems a great deal from my experiences as a community organizer in 1998 and 1999, including when in 1999 my work focused on community organizing in low-income neighborhoods in Baltimore city. They also likely stem from my experiences in at other times of my life as well.

If one does an oral history of one's political perspective, one is likely to focus on those instances in which one can to a specific realization concerning economic, community, or international affairs. However, the democratic experience is not always about big realizations. When I think about those instances where I might be said to have accomplished something politically useful, such as when I helped stop a private prison from being built in Washington DC and when I helped push for a Loan Repayment Assistence Program in my law school, I did not unilaterally pick a community problem, create infrastructure to address the problem, and manipulate that infrastructure. Instead, I joined an existing campaign, saw some organizational and leadership need I could address, and found ways to succeed by taking advantage of others' talents. In neither campaign have I been recognized for my contribution, and its dubious if my contribution had any unique value.

From the standpoint of democratic engagement, it is not interesting whether or not my contributions to the projects were important or influential in ultimate success. Instead, what is important is what drove me to get involved, and what drove other community members to take time to address less-immediate-impersonal community issues.

One my experiences is life was to attend the 2008 Democrtic Party convention. For a few days, I kept an online journal where I commented on my experience. I reproduce these mini-essays here, as examples of how one might go about documenting their democratic experience. I fully recognize that these essays don't illustrate the exciting experience of being involved in pushing a governing body to take action, preventing certain action, or being involved in the inner circle of a political campaign. However, these essays illustrate one citizen's experience being part of history and excitement in that process, an experience no less worthy of documentation.

Wednesday, August 27, 2008
A Walk Around the Convention
Before I direct your attention to my experiences yesterday, I should notify you that I think Hillary Clinton hit the notes she needed to hit. The bottom line is that if we Democrats are going to advance this country into the type of country we want, namely one that maximizes personal freedoms, engages in a noble and reasonable foreign policy, and consists of a government with economic and educational opportunity for all citizens, we need all of Clinton's supporters on board. Thus, it is my hopes that all internal divisions were laid to rest by Clinton's speech.

Now for some geography. As one comes to the Pepsi center, one quickly realizes how much of the surrounding area is blocked off, and thus no vehicle traffic is permitted. Between the no-traffic area and the secured area are a few protesters, but more sellers of shirts, candy, and buttons. On occasion, one hears: "tickets tickets, I am looking for tickets."

How does security determine who to let in: one must wear their credentials badge on a cord around their neck. One shows their credentials at security walking into the secured area surrounding the convention center, walking into the convention center itself, walking into the convention hall itself, and even going into the "Sky Lounge," namely the lounge set aside for guests of the Finance Committee. Credentials are worn by almost all attendees, including members of the European Parliment, lobbyists, activists, members of the press, DNC staff, and every other attendee to that convention.

The Hall itself has 3 levels. The first level is for the delegates themselves. On the periphery of the delegate entrance are numerous vendors, many of which are the same vendors one would see if one came for a ball game. In addition, many press have tables in this area. Thus, this area is crowded with delegates, powers-that-be walking to their seats, the press, and more importantly, many looking around to find stars. On one occasion, an area surrounding an entrance way was blocked off because security heard that Senator Biden was walking in the direction of that entrance. For those of us wanting to get a glimpse of the Senator, we were out of luck, as he did not show up where we were standing. From my vague un-scientific count, however, there were probably30 people with cameras out ready to take a picture. I wonder how many people now have pictures entitled "anticipating Senator Biden."

The second level is the club level. I am not certain who gets in the club level, as I did not even try. The third level is the "Hoi polloi" level, otherwise the nosebleed section. As you can imagine, that was the section I was in.

As one may imagine, there are far fewer seats than those interested in getting in the hall. Yeseterday, I came early to see Rep. Kucinich. He gave a great speech, and got some great crowd reaction. However, he spoke around the 5:00 hour. No one has a problem finding a seat then. Actually, I had a great seat for Kucinich's speech. However, my interest in eating dinner overcame my interest in preserving my great seat. Thus, when I tried to go back in around 7:15 or so, I ended up 3 rows from the top, which is a very steep view. Lessons learned: if you get a good seat, keep it!

As security was strictly enforcing how many they would let in the hall at once, I realized I was not going to get back in for Clinton's speech, so I headed back to the sky lounge and had an opportunity to sit with some prestigious internationals in which we engaged in an intriguing dialogue about the role of government in managing the market. As I am not the most articulate in economic discussions, and have strong Bush Jr.-like tendencies when economics are the subject of conversation, I was very proud to be able to have an intelligent economic discussion with a member of their home country's parliament. I then learned that this very kind gentleman was in line to become Finance Minister. Upon that revelation, I made clear that I anticipated my knowledge of the economy was minimal compared to his.

As you can see, this blog appears to be taking the diary form rather than the essay form I had hoped. As you can imagine, there is a lot to take in and no so much time for blogging. In any case, I hope you all are enjoying my random thoughts, and will let me know if there are any subjects about which you wish to read that I have failed to discuss.
Posted by Adam W. Marker at 6:08 AM 0 comments
Tuesday, August 26, 2008
Some props to Howard Dean--and other day 1 happening
Today was the first day of the Convention. Thus the opportunity to hear thousands of cheering democrats in the Pepsi Center in downtown Denver. It was moving to see the excitement of Ted Kennedy fans while he spoke, and while they presented a film about his life. When Michelle Obama spoke, I was not in the Pepsi Center but in "Blue Sky Grill," a neighboring facility for special guests of the DNC Finance Division. Even there, you could tell the difference between Obama and other speakers. When Obama spoke, everyone listened. When others spoke, like various politicians, some listened and some sat around and drank and shmoozed.

I want to give props to Howard Dean, who spoke at an "after hours party" sponsored by the Finance Division, called "Party with your party." On the bus ride over, it became clear that I was going to a party with some major funders, some of whom were personally wealthy and some of whom had talent for engaging other's generosity. Nevertheless, Howard Dean's remarks at this event was telling about how he sees the Democratic Party. He said something to the effect of, "as you know, we want everyone to be involved in our party. However, not everyone has the ability to give as much, as so we have events like this to reward those of you who give more." Although I am not certain of the exact words, the subtext is very clear: this is a party for all democrats, not just the wealthy few. It is worth honoring those who are fortunate enough to give more, but that does not take away from those who give less, nor does it suggest that those who are able to give more are necessarily more committed. Rather, the ideal would be for all to contribute the same, and it is wise for those of means to donate the monies that those without means cannot.

This is an extreemly powerful statement, and made even more powerful by the location in which Dean gave it.

Another aspect of that party deserves comment, namely, the musical guest: the GooGoo Dolls. They rocked! Unfortunately, Americans are not used to dancing while dressed in suits when they are not at weddings. For me, I was ready for some serious dancing, but that wasn't in the cards for this party.

Earlier in the day I went to a meeting of the National Jewish Democratic Council. At the same time of the NJDC meeting, several other ethnic based groups met as well. After the meetings, I had the opportunity to discuss our respective meetings with someone who is a member of the Native American caucus. Although I did not learn what occurred in that caucus meeting, I learned how frustrated many Native Americans are that the United States has generally failed to live up to the treaties it entered into with the tribes. She further expressed concern that the courts refuse to require compliance. Although I have very little knowledge as to the current status of our compliance with our obligations to Native American tribes, I certainly hope that if she is accurate, attention is quickly directed towards that issue quickly! I will have to look into it.

The NJDC meeting was not a meeting directed towards activism, which is what I had hoped. It was analysis of Jewish voting patterns expected for this election. Knowing that the Obama team had created a special committee directed towards outreach to the Jewish community, I asked one of the NJDC professionals why that outreach was not addressed. The response was that the NJDC was a 501(c)(4), and therefore prohibited from endorsing and identifying specific candidates in their work. Thus, the meeting was relatively academic in nature.

In conclusion, the streets of Denver reflect the democratic engagement I referenced in yesterday's discourse. Sadly, most noticeable were the right wing fanatics, including several posting signs specifically directed towards homosexuality, saying things as direct as "homosexuality is a sin" and something about going to hell. One couple standing near me went up to one of the protesters and said "not everyone believes in hell. For instance, Jews don't believe in hell. Apparently the response was: then they are going to hell. Never a dull moment.

More on Denver itself later in the week. Also, more on the hotel in which I am staying, which is doing a great job trying to become more "green."

I also had an extensive conversation with a Clinton supporter who alleged that the Obama folks committed electoral violations in Iowa. She further alleged that the leaders of the DNC that be have been trying to rescue control from the Clintons are thus got Obama with those goals in mind. Although I don't have enough information to comment further, it will be very interesting to see what happens over the next couple days.
Posted by Adam W. Marker at 12:06 AM 0 comments
Sunday, August 24, 2008
Traveling to Democracy
It's midnight in Denver, many hours since I left the District of Columbia. On the surface, all I did today was travel. However, in my mind, I did something more, namely prepare to participate in and observe the democratic experience.

On the plane to Denver were activists of all stripes, some of whom represented activist organizations and other of which represented constituencies. A good portion of the plane trip was spent discussing various activity options with my friend Lee, who invited me on this adventure. Event options include: attending forums on the intersection of religion and politics, the shaping of American foreign policy, DC Vote, and activities hosted by veteran's organizations.

I feel like I am about to experience democracy in a way I have not previously experienced it. By way of background, let me explain that I see the democratic experience as one where members of a community, state, or country gather to communicate with each other about ways to advance the causes of the community, state, or country. In pure democracies, each member of the community, state, or country actually votes in favor or against legislative initiatives. In democratic republics, such as the United States, citizens vote for representatives to legislate on their behalf. However, the democractic experience is not merely the experience of voting. Instead, the essence of democracy is the constructive interaction of various sects and segments of society in ways that further society as a whole. Thus, my sense is that I will observe members of diverse segments of American society gather to discuss ways to advance society as a whole.

In writing this last paragraph, I don't mean to sound naive. I am well aware that that the grouping at Denver will be a select group. All attendees are either members or associated in some way with the Democratic Party. In addition, given the cost of attending this convention, the diversity present will likely not represent the economic diversity existing throughout this society. Also, I am well aware of the economic segregation I am likely to experience. For instance, I don't anticipate meeting Barack Obama personally--although I expect that if I raised millions of dollars, arrangements for an introduction would have occurred. However, none of this will take away from the fact that I am about to be at an event with community activists from every county in this country. Regardless of whether whether the event is as democratic as possible, it will be an important experience in democracy that is rarely experienced in one's own town--because no matter how diverse one's city or neighborhood is, there are not and cannot be activist citizens from every county in this country. Thus, for whatever its faults, I am so excited to experience democracy in this manner.
Posted by Adam W. Marker at 11:03 PM 1 comments
Friday, August 22, 2008
I'm Going to the Convention
Luck struck! The Democratic Convention starts this coming Monday, namely in three days. Two days ago, Wednesday evening, I was talking to my roomate about how interesting it would be to go to a Democratic convention. He joked, "you should just go." I retorted, I wouldn't even know how to get tickets." Less than three hours later, a buddy of mine mentioned, effectively out of the blue, that he had an extra ticket to the convention, and invited me. I have no idea how I lucked out like that. Through this blog, I intend to keep you abreast of my experiences hobnobing with the leaders of our party. Furthermore, I believe strongly in our candidate, Barack Obama. Unlike prior Democratic Presidential Candidates, he was a community organizer for low-to-moderate income neighborhoods. Having been a community organizer in low-to-moderate income neighborhoods, I can tell you that one cannot be a community organizer unless one is seriously committed to the cause of tikkun olam, namely, helping to repair the world. The experience of being a community organizer exposes you to despair, frustration, and a variety of inequities that are experienced in America. Many idealists come to community organizing and leave after a month or two because they feel their goals of "making a difference" cannot compete with their goals of getting ahead in the business community. And as a community organizer, one is often instilled with fear that their activism will cause them to be labeled an opponent of America by those whose financial interests are in competition with the interests of justice and civic virtues. I hope the information I gain over my week in Denver will confirm my beliefs about what Barack Obama is bringing to the Democratic Party and the Country as a whole. Please check into this blog as I try to keep you aprised of these events as they unfold.

Learning Democratic Theory Through Obtaining the Democratic Experience

Relevant Text: Justice David H. Souter, “Remarks on Civic Education,” spoken on August 1, 2009 at Opening Assembly of American Bar Association Annual Meeting. See http://www.abanow.org/2009/08/souter-tells-aba-annual-meeting-opening-assembly-that-civic-education-is-critical-to-preserving-an-independent-judiciary and http://www.abanet.org/publiced/JusticeSouterChallengesABA.pdf INTRODUCTION On August 1, 2009, Justice David H. Souter spoke briefly about the state of civics education in this country, pointing out that constitutional government itself is at risk when a substantial portion of our population does not have knowledge of the government structure under which we live. He pointed out that it is impossible for those who have very little knowledge about our government’s structure to appreciate the importance of judicial independence, and the value of the inherent conflict between the legislative and judicial branches. Thus, he advocated an intensification of the bar association’s efforts in educating the population at large about civics. I contend here that it is not merely education about democracy, but democratic experience, that inspires people to value our system of government and get involved directly in our democracy. THE SOURCE OF SOUTER’S CIVIC KNOWLEDGE: DEMOCRATIC EXPERIENCE The bulk of his talk, however, was a self-reflection on the sources of his knowledge of various principles behind our government’s structure. Most of that knowledge is sourced to his experiences going to annual town meetings in New Hampshire. Through describing his experiences at the town meetings, Justice Souter shows how he had the opportunity to observe first hand the execution of the concepts of divided power (separation of powers) -- between legislative and executive, federalism -- of a sort through divided power between State and town, due process of fundamental fairness --through the Thus, when taught these concepts formally in school, Justice Souter had actual experience with which to appreciate said concepts. THE UNSTATED IMPORTANCE OF REPLICATING THE DEMOCRATIC EXPERIENCE Justice Souter does not fully expound on why his experience attending annual town hall meetings is so worthy of reflection. In fact, in my first read of his talk, I was confused by the relationship between his personal experience and his effort to encourage his audience to personally get involved in advancing the cause of formal curricular school-based civic education. I wasn’t sure if we as readers were to learn from his experience, or only appreciate it. Upon further reflection, however, the relationship is very clear, and essential. A subject of study is real when it affects one’s experiences. Some examples not from the speech are illustrative. Many kids become enamored with football and basketball, and hence became very familiar with the math necessary to understand the game. On the darker side, many kids who become caught up in the drug trade also become quick mathematicians. One can also find that an Orthodox Jew Christian or Muslim may excel at literacy in order to read his or her holy books. Additional analogous examples are numerous. For Justice Souter, attendance at the annual town meeting made real a number of civic and legal principles. More importantly, as a result of real-life exposure to the application of democratic principles, references to them in civics class were not abstract theoretical principles for him, but were reflective of real experience, and thus fully comprehensible. I have not had the opportunity to review any studies of politicians, activists, or lawyers that presented any commonality in their exposure to the civics arts. However, I would venture a guess that most could identify experiences in their youth where the civic arts proved a real part of human life. Thus, the lesson of Retired Justice Souter’s experience is not merely the importance of increasing exposure of legal and civics principles to kids, the the exposure to the fact that legal and civics principles affect every day life. As it was with Justice Souter, this is more likely to be achieved through exposure to real life than by exposure to better written text books. Twice in Justice Souter’s conclusion he states that citizens must be instructed in the government in order to appreciate the importance of judicial independence, and thus to preserve the notion that it is a “safe place” within which to redress one’s grievances with one’s fellow. This is telling, as the word place indicates a locality, which is irrelevant absent an experience in such a locality or place. CONCLUSION The notion of exposing tweens, teens, and young adults to the democratic experience, just as Justice Souter was exposed, sounds to me like a highly practical approach to civics education. Internships, externships, fellowships, and observation days are also common ways of inexpensively exposing worlds to kids. However, there is nothing like going to a community meeting, forum, or hearing concerning subject matters and locations familiar to the student.

A Free People May Require Free Time

The authors of the 2009 America's Civic Health Index (published by the National Conference on Citizenship) entitle their report "civic health in hard times," indicating that the economic downturn of 2008 and 2009 has had a substantial effect on the way in which Americans engage. The primary finding of the report has been that"most Americans said they are reducing engagement and turning inward under the stress of the economic crisis." It appears as if many Americans are more willing to be of personal assistance to friends and family in need then they are to go to community meetings or engage in political campaigns. A partial answer to why people have looked inward to address their economic challenges rather than turn to the political world around them, and the economic norms in which they function, may be found in the findings of Juliet Schor in The Overworked American: the Unexpected Decline of Leisure. Schor, and others, have been concerned that society's orientation towards work has made it practically impossible for their to be broad based commitment to community and political engagement. Several years ago, I wrote an article for socialaction.com concerning a coalition of religious leaders aimed at addressing the effects on Americans of the lack of free time available to the average American for community activities, and thus taking up the issues raised by Schor. (Wanting to preserve precisely what I wrote for reconsideration, I am not addressing any typos, grammatical, or clarity errors that might be found in the article. This essay was written and published on socialaction.com sometime between summer 1999 and fall 2000.)

Free Time, Free People by Adam Marker

I don't know about you, but I feel like I haven't had a free minute since the early '70s. (And I was born in 1974). Do you feel like you've been working a lot recently? Do you feel just a little guilty when you choose to take a vacation-or just take a few hours off?

You're not the only one. It's a societal phenomenon, and community organizers and activists are becoming conscious of this as a social problem. Free Time/Free People is a project designed to educate us about the issue of overwork--and work at finding solutions to it.

The problem

Juliet Schor, in The Overworked American (Basic Books, 1992) concludes: "If present trends continue, by the end of the century, Americans will be spending as much time at their jobs as they did back in the 1920s." For instance, she writes, "with nearly two-thirds of adult women now employed...many working mothers live a life in perpetual motion, effectively holding down two full-time jobs." She adds "Thirty percent of men with children under 14 report working fifty or more hours a week." Her book is filled with statistics of how overwork leads to unhealthy trends-like the replacement of community activity with excessive television watching!

Most Americans feel overworked in one way or another. Most of us think our inability to find time is simply a personal flaw or personal problem rather than one affecting our entire community. We find ourselves saying:"I have no time for my family;" "I would love to be involved in this issue or that issue if only I had a few hours;" and "Let's have coffee; I think I will be available for an hour in two to three months from now." We tend to say to ourselves: "I am overworked; I need to work harder; I seem to be unable to change my mode of living to have more time" rather than "we are overworked; we work plenty hard; we need to change our modes of living to have more free time."

Once we admit that overwork is a societal issue rather than merely one of personal control and decision making, we become empowered to address the problem on a societal level. In the spirit of our not-so-distant celebration of Passover, let's imagine the 4 children from the Seder, "enslaved" by the problem of overwork:

1.The one who works two full-time jobs just to feed his or her family.

2.The one who has reached a level of stature. This one must work at least 60 hours per week to keep his or her job and income level.

3.The one who wants to move up in management. This one dare not take a break lest someone without family obligations take his or her place.

4.The one working in the community and public interest sector. He or she feels that the numbers of hours worked is a reflection of his or her personal commitment to the issue or cause at hand.

This tension, the push to be always working, always productive, always using every minute, is something felt by both low income African Americans in Baltimore and upper-middle class Jews in Bethesda.

The solutions

Barbara Brandt, (director of The Short-Time Work Group) has been trying to address the problem of overwork for a number of years. She points out that overwork makes it harder for people to sleep, concentrate on the job, spend time with their kids, and get involved in community groups. She demonstrates how the almost unquestioned focus on work has spiraling effects, including increased drinking and drug use, decreased citizen participation, less productive work time, as well as a host of other problems-causing the need for more social workers and social activists.

Brandt has been teaching and writing about overwork for a number of years, including a co-authored article published in the July/August 1991 issue of Utne Reader. Ironically, she reports, many activists, upon hearing her presentations, have reacted: "We see your point, but we don't have time to deal with it."

She is excited by the Free Time/Free People project organized by The Shalom Center and others, a coalition of religious and other leaders committed to addressing overwork through educational, cultural, and legislative means. (Click here for what we can do if you are too busy to read the rest of this essay!) She believes that the Free Time/Free People coalition is likely to be more successful than past coalitions because the religious community is taking a leadership role.

Brandt attributes the labelling of the problem of overwork to Professor Ben Honeycut, who calls overwork "the American religion." Because we are obedient and loyal to the culture of work-work-work, we find ourselves sacrificing our communities, our religions, and even our personal passions. Once the concept of continual work and continual production has become a holy end, there is no excuse or reason to choose to eat with one's family, read with one's children, or reject a promotion. Perish the thought that we might take the time to study Torah or pray. How can we justify time worshipping the God of Abraham, Isaac, and Jacob when we could be worshipping the God of Work, Success, and Personal Achievement?

As Brandt explains, "if the problem of overwork is a religious problem, then it requires a religious response."

The Free Time/Free People Project

Rabbi Arthur Waskow of the Shalom Center has convened leaders from Jobs With Justice; the Unitarian Universalist Association; editors of The Other Side; Tikkun and The Witness; The Shorter-Work Time Group; the American Sufi Muslim Association; the Episcopal Diocese of Los Angeles;, and a host of other leaders. This broad coalition has agreed to work together on these specific goals:

• To reduce the hours of work imposed on individuals without reducing their income;
• To strongly encourage the use of more free time in the service of family, community, and spiritual growth.
• To make work itself sacred by securing full employment in jobs with decent income, health care, dignity, and self-direction. (From the Free Time/Free People statement).

Waskow believes that "The Free Time/Free People project is responding to a crisis that people feel sharply in their 'private' lives but have not yet fully understood as a social and economic issue." Some of the specific legislative goals of this broad coalition include:

• A national living wage that allows people to live decently when working between 35-40 hours a week;
• An end to the overtime exemption on supervisors and professionals;
• No compulsory or forced overtime;
• Paid leave to be involved in community groups and the boards of non-profits (at present, only executives enjoy this privilege);
• Strengthening the Family Medical Leave Act and rewarding corporations that give workers more flextime for community.

What we can do

To prevent this from being a dead-on-arrival legislative campaign, Waskow and the other members of the Free Time/Free People coalition are focusing on ways that we, as everyday citizens, can address the cultural aspects of the problem of overwork. Change is unlikely to occur until most Americans see lack of free time as a real social problem requiring governmental involvement for which they need to agitate.

1. Reach out to religious and community leaders. The Free Time/Free People project plans to publish pamphlets about worker's rights with respect to their Sabbath day, and to encourage more participation in Sabbath activities. Religious leaders will be encouraged to create a "Sabbath for the Sabbath" at least once a year, when their own congregation's Sabbath celebration could be focused on a full day of restful reflection.

Waskow is also working with congregations of various faiths and communities to encourage and support "community days," or community festivals when people can come to socialize and be together for an extended period of time. Time is set aside for singing, painting, sharing crafts,and storytelling. While leaders of the project are doing countless initial presentations, they hope to soon help local activists facilitate community days and annual "Sabbaths for the Sabbath' to respond to community-specific needs. Waskow aspires to help all Americans to realize their own need for regular Sabbaths. Signing the Free Time/Free People statement (see below) is also a good way to connect to this project.

2. Educate yourself and others. Meg Riley, Washington director of the Unitarian Universalist Association (which offers sabbaticals to all employees) likens our present approach to this issue to that of many family farmers in the Midwest. Family farmers, says Riley "saw the value of their work go down and down and they consequently worked harder and harder for less and less. They didn't see the issue as political." As do many of the activists involved in Free Time/Free People, Riley warns that unless Americans are empowered to identify overwork as a real social phenomenon that can be reversed, we will remain enslaved by our stress and our notions of powerlessness.

3. Consume Less. Riley also links the lack of free time to the issue of over-consumption. As we gradually have more resources at our disposal, we consequently become dependent on those resources, and consequently require we work harder and harder because the standard has been raised." She illustrates: "Now people say 'of course you should have a car;' There was a time when not everyone had a car and when one who didn't have a car needed a car, they simply borrowed from the person who had one," If we found ways to consume less, we would be comfortable making less and consequently, working less.

4. Take 7. Meg Riley has also taken a proactive step in her own office. She has enacted a policy of 7 minutes of silence a day where people can "think, breathe, snore, pray, or do whatever." She thinks people are more effective as a result.

The real challenge

The instinctive posture for social activists is to think about how institutional change can occur. But let us begin by each thinking about how we push ourselves and push others in ways that are unhealthy. Let's contemplate ways in which we overcommit ourselves and push ourselves to succeed in unrealistic timelines. Let's think about our families and what we can do to get to know them better-and ourselves better.

Can this focus on the self help bring about social justice? Can focusing on our own needs really help us effect real societal changes? The examples and blessed memories of Rabbi Abraham Joshua Heschel and Rev. Martin Luther King, Jr. tell us that it can. They were true to their own personal religious and needs-including prayer, reflection, and a weekly Sabbath-as a basis from which to find the energy and strength necessary to transform society.

[For the full text of the Free Time/Free People statement, a list of its signatories, and a form to join the project, go to www.shalomctr.org.html/comm15.html.]

Reawakening the Spirit of Constitution day: Read the Constitution – And Engage In Civic Discourse Too

Relevant Text: Constitution of the United States; 36 USC Sec. 106 (2004);Linda R. Monk: Words We Live By, Your Annotated Guide to the Constitution (Stonesong Press Books, 2004). Introduction What is a Constitution? If you have ever started a business, nonprofit, community association, or club, you probably know the importance of creating an organizational structure that meets the long term needs of your creation. When organizations employ my legal services to work with them on forming bylaws, I discuss with them questions like (a) who is empowered to make decisions for the organization; (b) who is empowered to determine the leadership; (c) what powers will those leaders have; (d) how will conflicts between members or leaders be managed; and (e) who has the power to amend the charter if need be. On occasion, members of an organization believe that the structure of their entity is so dysfunctional with respect to its grand objectives that the organization must be replaced with another. In many ways, if you have created a business, nonprofit, community association, or club, --and especially if you have done so in conjunction with others having different views of how your business, nonprofit, community association or club should be organized -- you have something in common with the delegates to the Constitutional Convention of 1787. The delegates to the Constitutional Convention in 1787 met to form a structure to the United States government. On September 17, 1787, the delegates to the Constitutional Convention signed their names to their creation, concluding a 4 month convention. Subsequently, the States ratified the new Constitution. What is in Our Constitution? As stated above, the Constitution of the United States is very much like a business’s Articles of Incorporations or Bylaws. It creates a general structure for the major governing bodies of the federal government. One definition of the word Constitution is very appropriate, namely “the manner in which sovereign power is distributed.” The way in which power is distributed between branches of government may be seen through exploring the topics of each Article to the Constitution, namely: (1) Legislative Branch; (2) Executive Branch; (3) Judicial Branch; (4) relationships among the states (aka Full Faith and Credit); (5) the rights and method for amending the Constitution; (6) that the Constitution is the Supreme Law of the Land; (7) the method for ratification of the Constitution. When reading through the Constitution, one realizes that the text appears more focused on creating a general structure within which the government may operate, rather than in articulating or spelling out policies, theories, or methods for acting on the powers thus provided. One reading the Constitution for the first time may find themselves surprised at how much of it lends itself to interpretation, and specifically to contrary interpretations. For instance, Section 8 of Article I identifies various powers of Congress, concluding with a clause stating “ to make all laws necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution...” One person may consider a particular law necessary to carry out one of the other powers identified in Section 8, and another person may consider that same power unnecessary. Thus, our government relies on the Judicial Branch to rule on disputes concerning the Constitutionality of executed laws. Thus, the extent of Congress’s power has been the subject of ongoing debate. Since the Supreme Court case of Marbury v. Madison, there has been unanimous or near-unanimous understanding that the Supreme Court has a right to interpret the Constitution, and hence, under Article VI. The word interpret means to declare the meaning of something. That interpreting has been going on since. A student in law school studies those diverse interpretations in a course called “Constitutional Law”, a mandatory course for all law school students. Besides learning the current interpretations of various aspects of the Constitution, one learns that the approach to the Constitution has varied over the course of many years. Thus, the norms of this generation are different than the norms of the 1920s, and so on. Thus, without a familiarity of the case law that informs our judiciary, it can be hard to fully understand how a Court would interpret a particular Constitutional passage. What is Constitution Day? In 2004, President Bush signed legislation entering into law “Constitution Day and Citizenship Day.” The Statute may be found at Section 106 of Title 36 of the United States Code. According to the statute, the purpose of the day is to commemorate the formation and signing of the Constitution. Section C specifically calls for the President to invite people of the United States to celebrate the day with appropriate ceremonies. Section D of the section calls for civil and educational authorities of States and local governments to make plans for the observation of the day “and for the complete instruction of citizens in their responsibilities and opportunities as citizens of the United States and locality in which they reside.” Thus, in keeping with Section D of the statute calling for the complete instruction in the responsibilities and opportunities as citizens, the best use of the day is to become familiar with the United States Constitution and the legal system under which we operate. How Should We as Citizens Celebrate Constitution Day? As a lawyer, I may be prejudiced in favor of studying the Constitution by studying the case law over time. Part of this stems from a general interest in textual analysis. Part of this is also due to what I interpret as a general misunderstanding in society about the Constitution itself. Many people on both the left and right are insistent that they possess the sole meaning of the text and that those in disagreement are knowingly lying out of self interest or political motivations. This ulterior motivation is not hard to believe. After all, a liberal advocating universal health care would not invite scrutiny into whether Congress is permitted under Article I Section 8 to create such legislation. A conservative the teaching of creationism or intelligent design in public schools would not invite scrutiny into whether such teachings was advancing religion in violation of the first amendment. There is a certain poetry one can find if one looks at these questions from a distance. One finds a government so well designed that it continues to function in the midst of such soul-wrenching disagreements. In other words, the passionate partisans advocate, they electioneer, and they interpret the Constitution to fit their understanding of what the government should be doing. However, the democratic element remains so alive and well that few fear a revolution of arms—only of ideas. A great way to understand the Constitution is to read Words We Live By, The: Your Annotated Guide to the Constitution (Stonesong Press Books) by Linda R. Monk (Paperback - Feb 18, 2004). The book goes through the Constitutional language line-by-line and highlights some of the most important questions the Courts have had to address. This book is especially useful for those of us not yet familiar with the extent to which there have been so many disagreements about the meaning of particular phrasing within the Constitution. I am not, however, advocating that we spent Constitution day retreating into our dwelling with Ms. Monk’s book -- although I don’t doubt that our society would advance a great deal if the book were read cover-to-cover by all citizens. Instead, the statute of Constitution day advocates that it be a day of celebrations and a day for instructions into the responsibilities and opportunities and citizens of the United States and localities in which they reside. This goes beyond merely understanding and interpreting the Constitution. Although it would be an honest charge to call me a liberal, I don’t mean anything particularly liberal or conservative when I mean here when I say that for the Constitution to mean anything, it must come alive. Some liberals call the Constitution a living document meaning that its meaning for the day should be interpreted in the context of the day rather than the context of 1787. When I call the Constitution living, I don’t mean to engage in that question. Instead, I mean to say that the Constitution lives because it requires a democratically inclined citizenry. Although the amendments are the sources of various individual liberties, the true meaning of the seven articles lie in how engaged the citizenry in what the government does. For Article I to have meaning, the citizenry must produce individuals with an interest in productive legislation. When the citizenry is involved in legislative debates, there is a greater chance that the legislators will be required, through electoral pressure, to adequately represent the needs of their constituents. The constitution provides for elections for members of congress. When those elections involve real participation by citizen groups, not to mention those personally affected by proposed legislation, a real democratic balance between interests is possible. When only those with financial power or those of a particular interest are represented, the democratic nature of the Constitution has not been made real. For Article III to have meaning citizens must be interested in the just and fair execution of the laws, for their service on juries would be meaningless if they were easily bribed or prejudiced in favor of or against defendants of certain skin colors, political views, or economic interests. I will go so far as to suggest that trust in the just administration of justice is essential to the social contract envisioned by the writer of the Declaration of Independence and writers of the Constitution of the United States, and is an essential part of the democratic morality discussed in an earlier essay. Therefore, we should spend Constitution Day in a manner that will advance the cause of the Constitution, namely the democratic impulse and the knowledge required for individuals to engage in that democratic impulse. The statute proclaiming Constitution Day is placed in Title 36 of the United States Code. Title 36 is titled “Organizations Patriotic and National Observances, Ceremonies, And Ceremonies.” Patriotic is defined as the adjective describing one who loves his country and supports its authority and interests. Love is defined as unselfish loyal and benevolent concern for the good of another. Therefore, for Constitution Day to truly be a day to advance patriotism and the responsibilities and opportunities as citizens of the United States, education and citizenship comradery. A Vision of an Engaged Citizenship and Constitution Day I envision a Constitution Day that advances national dialogue. A dialogue is an exchange of ideas between two or more persons. A national dialogue is one in which all citizens in the nation feel the right to actively participate. For a dialogue to run smoothly there must be moderators that facilitate the discussion to assure that listening is occurring. Additionally, there must be individuals of various view points educated to assure that discussion does not get interrupted by the advancement of false prejudices. Thankfully, in so advocating for national dialogue, I am not envisioning anything that is not already in our spiritual constitution as Americans. In fact, the public forum is still alive and well in this country, as many city councils and representatives hold open forums to illicit opinions on potential legislation to evaluate public sentiment and impact. Thus, I want to propose a radical suggestion. Constitution Day should be a day that people take off of work and attend community meetings. One might envision a day divided in two. One part of the day devoted to community meetings that include lectures and educational programming on aspects of the laws in which we live, and another part of the day could be devoted to community meetings in which there is discourse on particular community issues of the day. It would be my hope that either any forum be designed in a manner that advanced educated dialogue. For instance, a dialogue on health care policy should feature an introduction of individuals who can explain existing laws and details about the proposals at issue—rather than a vague notion of whether the government should be involved in increasing access to health insurance. I would also hope that forums would not only concern “hot” issues like health insurance policy and gay marriage, but might engage citizens in serious discussions about housing policy, government contracting, and policies relating to the criminality of drug use and possession. PS: I hope that no reader will chose to agree or disagree with my Constitution Day proposal due to the topic examples I provide. There are a great number of societal decisions that should involve input and insight by the communities affected. Practically, my suggestion would require the existence of multiple forums occurring at the same time, thus providing opportunity to engage the public on a number of political and policy issues.

Jefferson's Invitation to a Democratic Morality

Relevant Texts: Inauguration address of Thomas Jefferson The election of 1800 has been referred to by some as the first peaceful transfer of power between political parties in the modern world. Thomas Jefferson, the victor of that election, referred to the election results as “the revolution of 1800,” probably because there was doubt at the time that such as transition was possible without bloodshed. Fully appreciating this fact can be difficult for generations of Americans so used to the peaceful transfer of power both here and in so many places around the globe. Jefferson, however, does not take this for granted -- and in his innauguration address, not only discusses the importance of democratic transfers of power, but further discusses a vision for social discourse that I here suggest could be described as a democratic morality. Perhaps the most important aspect of Jefferson’s inauguration address is its offering of a distinct image of the status of the United States of America. For one, Jefferson is speaking to a nascent nation. Having commercial relationships with other nations is an accomplishment. Having a functional constitution is an accomplishment. A good portion of his address concerns the anxiety relating to the election cycle through which he has just passed. He points out that the exhaustion and tension that campaigners can have after a vigorous campaign, saying: “animation of discussions and of exertions has sometimes worn an aspect which might impose on strangers unused to think freely and to speak and to write what they think.” This animation and exertions now must be put aside to “unite in common effort for the common good.” Jefferson further says that says that although the majority has rights to institute its will, it must institute reason to, safeguarding the rights of those in the minority. He further refers to the importance of “restoring social intercourse.” Although great historical speeches are worth readings in and of themselves regardless of the historical context, the historical context cannot be ignored when trying to understand why a particular speech has become part of history. The election of 1800 was hotly fought. It was the first time in the modern world that two political parties with numerous disagreements about the shape of its country had challenged each others legitimacy to govern without coming to blows. Here, appreciating the historical context strengthens our appreciation of the text itself. The text itself is a call to peaceful democratic engagement. It favors animated political discourse, a recipe for disaster and violence when the participants involved are not committed to democratic principles. Thus, it provides a vision for a vibrant democratic republic, one which has animated discourse, unafraid of free thought and debate, and also able to accept the consequences of the majority’s victory. Jefferson could have easily taken another approach, one that did not advocate for restoring social discourse or safeguarding the rights of those in the minority. Although I’m not jaded enough to suggest that Jefferson’s own words in the Declaration of Independence were mere puffery, I am asserting that there is a natural tension between governing and advocating democratic principles, minority rights, and social intercourse. In 1801, democratic principles, minority rights, and social intercourse were not features of functioning governments. Even in the United States, despite the institution of the Bill of Rights, the Alien and Sedition Acts were made law. Jefferson thus advocates the importance of free speech, including the rights of those who wish to dissolve the union or change its republican form, as “error of opinion may be tolerated where reason is left free to combat it.” For the past 200 years, this value has been embodied in the First Amendment to the Constitution, and has been the subject of ongoing debate and litigation. However, an inauguration address is not a legal brief. The audience is not a select group of statesmen. Instead it is the general population. Thus, we needn’t read the concepts in their legal contexts, but as they would affect a general population. A general population encouraged to respect free speech and social discourse is being directed towards applying the morality of democracy to their daily living. By morality of democracy, I mean: respecting other’s views, being able to disagree without being disagreeable or violent, recognizing that others mean well even when their approaches to matters are drastically divergent. Thus, Jefferson concludes his talk by subtlely inviting others into what I am referring to morality of democracy. To those who are his political opponents or might become his political opponents, he “ask[s] [their] indulgence for [his] own errors, which will never be intentional, and your support against the errors of others, who may condemn what they would not if seen in all its parts.” Realistically, Jefferson’s words may be seen in two lights. On one hand, he is simply advocating for his political supporters to advance his political causes against those who oppose his actions due to not perceiving the full context of his actions. On the other hand, he is going a step further by asking everyone, friend and foe alike, to recognize that regardless of whether one sees or agrees with the full context of his actions, recognize that he is acting in the best interest of the country, and thus truly inviting the application of the democratic morality to his very time and place.

Invitation to an Investigation into American Ideology

One of the primary failures of education in America is that it suffers from inadequate objectives and purpose, thus often serving to train students in disciplines designed by narrow utilitarian objectives. This idea is thoroughly articulated by Neal Postman in "The End of Education" where he discusses the importance of purpose in making the education process effective. In "Paradoxes of Education in a Republic," Eva T.H. Brann points out that our third President, “proposed to institute his own political cannon” which would have prepared its students to become republican rulers. To that end, he identified certain great books, to be used as text books for such an educaiton. The required texts were to be Locke’s Essays on Government, the Declaration of Independence, the Federalist Papers, the Virginia’s Resolutions in the Alien and Sedition Laws, and Washington’s Valedictory Address.” See Brann at 99. This cannon directs the mind to appreciate the republican form of government, and the concept of participatory democracy for which it is erected. This is the mindset with which we are invited to ascribe. This ideology is that humanity is inherently well suited for democratic society, but for democratic society to function, the citizenry must be properly sculpted to be fully engaged in that democratic republic. According to Professor Thomas Jewett, writing in Early America Review (Winter 1996), Jefferson saw universal education as an essential companion to universal suffrage, and went so far as to support federal support for education. Per Jewett, Jefferson’s educational system had six objections: (1) To give every citizen the information he needs for the transaction of his own business; (2) To enable each citizen to calculate for himself, and to express and preserve his ideas, his contracts, and accounts, in writing; (3) To improve, by reading, his morals and faculties; (4) To understand his duties to his neighbors and country, and to discharge with competence the functions confided to him by either; (5) To know his rights; to exercise with order and justice those he retains; to choose with discretion the fiduciary of those he delegates; and to notice their conduct with diligence, with candor, and judgment; and (6) in general, to observe with intelligence and faithfulness all the social relations under which he shall be placed. Thus, American ideology says society is well organized when its citizenry are properly educated and situated to establish and participate in democratic institutions. In this blog, in further essays, I will seek to best understand, define, and question this ideology.