Great Article on Civic Engagement by Lee Hamilton

It will hopefully be a rare thing that a blog post here consists solely of posting someone else's article. To be clear, I don't personally know Lee Hamilton (former Representative of Indiana from 1965 to 1999) nor did he give me any specific permission to copy this article. However, part of my objective in writing this blog is to search for articles that might educate us as to what it means to be part of an engaged citizenry. This article clearly qualifies as one to stir our minds. The “Ten Commandments of Citizenship” by Lee Hamilton This presidential election, if you believe the polls and the rhetoric, is about change in Washington. Both candidates promise it. Voters clamor for it. It is the cause of the moment. But I have news for you: Change in Washington won’t happen, and certainly can’t be sustained, without change in the country at large. For the point is not to overthrow the system. It’s to make it function properly. Government does not fix itself. Only a citizenry that is engaged in our democracy to an extent far greater than in recent decades can help to heal our system. To get change in Washington, in other words, it has to begin with you. Since being a responsible citizen takes commitment, here are some precepts to follow if you want to be effective — what I call the “Ten Commandments of Citizenship.” Vote. This is the most basic step democracy asks of us. Don’t buy the argument that it doesn’t matter. Every election offers real choices about the direction we want our towns, states and country to take. By voting, you not only select the officials who will run the government, you suggest the direction that government policy should take and reaffirm your support for a representative democracy. Be informed. To be a knowledgeable voter, you need to know what candidates actually stand for, not just what their ads or their opponents’ ads say. Read about the issues that confront your community and our nation as a whole. Our government simply does not work well if its citizens are ill-informed. Communicate with your representatives. Representative democracy is a dialogue between elected officials and citizens — that dialogue lies at the heart of our system. Legislators and executives can’t do their job well if they don’t understand their constituents’ concerns, and we can’t understand them if we don’t know their views and why they hold them. Participate in groups that share your views and can advance your interests. This one’s simple: In a democracy, people tend to be more effective when they work together rather than acting as individuals. You can be sure that almost every issue you care about has one or more organizations devoted to it. By joining and working with the ones you think best reflect your views, you amplify your beliefs and strengthen the dialogue of democracy. Get involved locally to improve your community. You know more about your community’s strengths and weaknesses than anyone living outside it. Identify its problems and work to correct them. Involvement is the best antidote I know to cynicism. Educate your family, and make sure that local schools are educating students, about their responsibilities as citizens. As a society, we’re not as good as we should be at encouraging young people to get involved in political life. Too many young people — and even many adults — do not understand how our government and political system work and why it is important for them to be contributing citizens. Understand that we must work to build consensus in a huge, diverse country. In pretty much every way you can think of, ours is an astoundingly mixed nation of people, with wildly divergent views on most issues and a constantly growing population. This means we have to work through our differences not by hammering on the other side, but by bringing people together through the arts of dialogue, accommodation, compromise, and consensus-building. Understand that our representative democracy works slowly. There’s a reason for this. It is so that all sides can be heard, and so that we avoid the costly mistakes produced by haste. Our Founders understood this 220 years ago, and it’s even more vital now, when issues are vastly more complex and the entire world is closely connected. Understand that our system is not perfect, but has served the nation well. Democracy is a process designed to give people a voice in how they are governed. It’s not perfect — far too many people feel voiceless, and polls in recent years suggest that unsettling numbers believe the system is broken. And our system offers no guarantee that you’ll get what you want. Yet it is also true that it provides every individual an opportunity to be heard and to work to achieve his or her objectives, and it has served our nation well for over two centuries. Understand that our system is not self-perpetuating; it demands our involvement to survive. Just because it has worked in the past does not mean we will have a free and successful country in the future. Lincoln’s challenge is still urgent: whether this nation so conceived can long endure. Being a good citizen isn’t something one does just for the heck of it; it’s critical to the success of our nation. Lee Hamilton is director of the Center on Congress at Indiana University. He was a member of the U.S. House of Representatives for 34 years.

Getting At the Origins of Civic Health

In the course of discussing civic health, it is important to define what we mean when we use the term “civic health.” Thus, I want to start a series of articles that seeks to understand the notion of civic health.

There are numerous contemporary definitions which all involve engagement of the citizenry in the political arts and societal improvements. I probably agree with those. In this article, however, I want to approach the subject in a more calculated and historical approach, thus deriving a definition that gets at the most basic element of an individual’s role in his or her society.

The Declaration of Independence Incorporates the Notion of a Social Contract

The Declaration of Independence incorporates the notion of a social contract between the citizenry and government. It describes government as an entity instituted “among men” in order to secure the “unalienable rights” of “life, liberty, and pursuit of happiness.” These unalienable rights are secured by governments, but are not actually created by governments. Instead they are “endowed” upon us “by [our] Creator.” Thus, they are natural rights and government instituted for the purpose of protecting them. The Declaration further holds that a government’s power is just when those powers are derived from the “consent of the governed” and consequently not just when derived from some means other than from the consent of the governed. Thus, as government has a purpose, namely to protect “life liberty and the pursuit of happiness”“whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute new government.”

By Nature, Humans Are in a State of War or Anarchy, and They Only Enter Into Social Contracts When They Believe Such Social Contracts Can Provide Peace and Safety

These concepts within the Declaration of Independence originate in part from Thomas Hobbes, who, in the Leviathan (1651), discussed the nature of the social contract between individuals and the government. In Hobbes’ articulation, absent a binding common power, men and women are in a natural state of war with each other.

(Today, we colloquially refer to this lawlessness as anarchy -- although people who refer to themselves as anarchists would insist that we are using the term improperly, and I hope to address this issue in a later essay.)

Thus, whether or not 2 individuals are engaging in actual physical fighting, they are still experiencing constant struggle, leading to continual fear and danger of violent death. Leviathan, XIII. In this most basic state of war or anarchy, people do not cooperate with each other unless as part of a scheme to overtake others. Instead, each individual sees themselves as having a right to every thing they can take, including another person’s body, and hence, in the state of war or anarchy, there is no security for any man or woman. Leviathan XIV.

As a result of these aspects of the state of war, the results of successful society, namely, culture of the earth, navigation, use of the commodities that may be imported by sea, commodious building, instruments of moving,… arts, letters, and society” are all absent. Leviathan, XIII.

Hobbes argues that free thoughtful people, looking to escape this anarchy and insecurity, endeavoring peace and safety, are thus willing to “lay down this right to all things” by transfer certain rights to the sovereign government in exchange for receiving peace and security. See Leviathan XIV.

Thus, they are only willing to transfer these rights if obtaining peace and security in exchange – as Hobbes writes: “a covenant not to defend myself from force is always void. For no man can transfer his right to save himself from death, wounds, and imprisonment.” Thomas Hobbes, Leviathan, XIV (1651).

Thus, through the erection of a government with coercive power that can frighten others into obedience, one may feel he has acquired the universal rights he initially abandoned by entering into the covenant to be ruled by government. Leviathan, XV, (1651).

For a social contract to be successful, the participant must feel that in exchange for giving up their right to seem dominion over others, they are obtaining a certain preservation not otherwise available to him or her on his or her own.

As clarified above, a successful social contract may be said to provide the very peace and security that in the state of war or anarchy would require an enormous amount of power. Hobbes writes that “the final cause, or end, of men (who naturally love liberty and dominion over others), in the introduction of that restraint upon themselves, (in which we see them live in Commonwealths) is the foresight of their own preservation, and of a more contented life thereby; that is to say, of getting themselves out from that miserable condition of war.” Thus, each man freely gives up certain rights to live in a commonwealth under the power of that commonwealth and its soveign. Thomas Hobbes, Leviathan, XVII, (1651).

Thus, because a man or woman would never give up his right to save himself from death, wounds, and imprisonment, it is essential that for a social contract to be successful, that the commonwealth be organized to provide citizens with the benefits of life that they bargained for. To make Hobbes’ point more succinctly, humans are naturally in a state of war, and to avoid the horrors of the state of war, enter into social contracts where they give up certain rights in order to live in peace and security. However, as humans by nature see themselves in a constant competition for resources in this world, they will not abandon their violent state of war, and will enter into it, unless they feel a sense of safety and security and reliance on the government in which they reside.

The Declaration of Independence Thus Envisions a Democratic Society Where Citizens See Their Cause of Life, Liberty, and Pursuit of Happiness Being Advanced

I have no doubt that the authors of the Declaration had Hobbes’ analysis in mind when writing the Declaration, as the parallels are uncanny. For the authors of the Declaration, therefore, humans in the state of nature and war will continually seek and fight for life, liberty, and the pursuit of happiness. Thus, under the Declaration, humans will not enter into a social contract that does not protect or advance these rights. For the Declaration, the “consent of the governed” necessary for a social contract to survive, is protected only through Democracy, as it states that when a government does not protect life, liberty, and the pursuit of happiness, and is “destructive of these ends,” it is the right of the people to alter or abolish it, and to institute new government.” The right of the people to alter or abolish a government can be protected only in a democratic government. It would otherwise be impossible for the people to exercise their right.

The Declaration further provides insight into how it views the relationship between the citizen and the government, by stating how the British government has committed “injuries and usurpations.” It is my view that each of these injuries and usurpations in the second half of the Declaration reveal and describe democratic elements of the social contract expected to apply in the United States of America.

Note that these rights are not individual rights per se. However, to the extent that life liberty and the pursuit of happiness is only protected if the government is properly organized to so protect life, liberty, and the pursuit of happiness, and to operate consistent with the consent of the governed, one can consider the second half of the Declaration of Independence as reflecting what government mechanisms the American people have a right to to protect their life liberty and pursuit of happiness.

Specifically, the rights mentioned include, but are not limited to: (1) a legal system binding on all, no exceptions, not even kings; (2) a legislature free to pass legislation of immediate and pressing importance without undue control by the executive; (3) rights of all people to representation in the legislature; (4) rights to anticipate where and when the legislature will meet; (5) rights for the representative bodies to be able to meet without fear of being dissolved by the executive; (6) rights of the people to have regular elections to elect representatives to the representative body; (7) a legal system that provides for, and does not obstruct, the naturalization of foreigners; (8) a judiciary (9) which is fair and independent of the executive; (10) a right that the executive will not institute offices and officers for improper and harassing purposes; (11) a right for the legislature to determine whether standing armies should exist in times of peace; (12) a right to have a civil control of the military; (13) a right to have no rulers other than those legally selected; (14) right not to have large bodies of armed troops among us; (15) a right to honest trials against lawbreakers; (16) a right to have a federal government engage in trade with others in the world; (17) a right not to be taxed without consent; (18) a right to trial by jury; (19) a right to be tried for only real offenses; and (20) a right not to be controlled by an arbitrary government having no set boundaries.

Our Discussion of Civic Health Should Be Influenced by the Declaration

As shown above, the Declaration of Independence applies the concept of Hobbes’ social contract to the population in America, and thus creates a vision of a government responsive to decisions of the citizenry. This responsiveness is described in the twenty-plus rights identified in the second half of the Declaration, thus providing for a government organized around the social contract so described.

Thus, it should not be ignored that each of the rights mentioned in the second half of the Declaration make participatory democracy more possible than had that right not been identified. However, like any constitution or law, the Declaration’s life cannot actually be in this legal language-- just as the soul of a person cannot be measured by the mere presence of his or her organs. That said, absent such functional organs, the soul simply cannot reside in this world, if at all. It is the same with the social contract described by Hobbes. Democracy and the striving of life liberty and the pursuit of happiness cannot exist except within a body of laws and legal system that allows for it to live. Thus, the definition of civic health cannot be defined merely by the existence of a constitution within which life could exist, but by the existence, nay, the presence of life, liberty, and the pursuit of happiness.

Thus, a discussion of civic health must always involve two realities. Just as the discussion of a person involves discussion of the (a)soul or spirit and the (b) body, the discussion of civic health must involve discussion of the soul—life liberty and the pursuit of happiness and body—the constitution and legal framework allowing for the life of democracy’s social contract.

New Study on Civic Health -- Signs of Improvement But A Lot to Do

On September 22, 2008, the National Conference on Citizenship released a new study concerning “civic health.” The results of the survey appear to document some of the mixed feelings that many democracy-watchers feel about this election cycle and the trends in our democracy, namely that on one hand, people are much more engaged in this election cycle. For instance, more than half of respondents tried to persuade someone else to vote or against a particular candidate. On the other hand, there is little evidence that this heavy involvement will sustain itself beyond the election cycle -- although the ideal of sustained democratic involvement is ever present in our society. For instance, just 14% of respondents were confident they would try to change local policies in school, neighborhoods, or the workplace, and less than 20% were sure they were talk further about issues raised in the campaign. The survey also found encouraging signs that the American people are interested in policies that encourage community service and engagement of some kind. 87% of respondents support giving young people the opportunity to earn tuition money by completing a year of national service; 76% would like to see service learning required in schools. More important, however, for the life-blood of democracy: 80% favor holing a national deliberation on a major issue and requiring congress to respond. As the life-blood of democracy is citizen engagement, I opine that this democracy depends not only on the ideals of citizen engagement but the experience of citizen engagement. The commitment of engagement but include the experience of trying to have an effect on the process of being governed. (In a later article, I hope to devise a more practical definition of the experience of democracy). The results of the survey found that our society does not have an activist way of discussing citizenship involvement. Of those who participated in the survey, when asked to define citizenship, 27% made references to being born or naturalized in the US and 20% made reference to duties like voting and jury duty. It is disappointing for this writer than a question could yield responses like voting and jury duty, but not civic engagement or democractic activism. The term “civic engagement” yielded a bunch (“33%”) of “what’s that” type of responses. Only 16% mentioned participating in politics or political institutions. 31% thought of community organizing as “helping others locally” and 21% didn’t know what the term meant. What’s even more telling and troubling about these results is that 57% of respondents to this survey participated in a primary or caucus, whereas actual voter turnout was 30%, thus one might infer that either that each of these numbers should be divided in half to reflect the correct results or Americans generally want to portray themselves as more civically engaged than they are.

What Actually Happens in Law School Part III -- Caselaw

Much of being a lawyer involves applying the law to a particular conflict. As a result, most of law school involves studying "case law", namely judicial decisions that apply the law to a specific set of facts. 

Because lawmakers cannot conceive of every future application of the laws they enact, courts rely on case law to decide legal questions before them in a manner consistant with prior decisions. Those prior decisions are referred to as precedent. Courts are bound to issue decisions that are consistant with binding precedent, which is all precedent issued by appellate courts that are higher in stature. For instance, a federal district court is bound to issue decisions consistant with Courts of Appeals and the Supreme Court.

 This may seem extreemly complicated, but it makes sense when one reads court opinions. Most court opinions are written in a similar manner. They contain the following elements: 

(1) A recitation of the facts that are important to resolving the conflict before it. As court do not issue opinions unless there is an actual substantive controversy, the factual recitation should be written in such a manner that the reader can understand what the controversy is and why it would matter to the parties themselves.

 (2) An identification of the legal framework which will be utilized to decide the controversy. The paragraphs that make up this framework often cite not only to the laws themselves, but to the relevant case law. Through the language used to describe the applicable precedent, the court will usually show its obligation to rule in a manner consistant with applicable precedent. When there is a dispute between the parties about how the precedent and law should apply in the dispute at hand, the court will often describe the arguments put forward by both sides, and the reasoning used by the court to come to a conclusion about what law applies.

 (3) Analysis of the facts against the legal framework presented. 

(4) Conclusion

  It could be said that the essence of law school today is the formation of the skill of reading case law and interpreting new factual scenarios in a manner consistant with how judges are likely to interpret it.

What Actually Happens in Law School Part IV--QUICK STUDY EXAM PREP TECHNIQUES

a. Every Legal Subject Has a Structure that is Inherent to the Material

If you read legal briefs, or case law, you'll notice a lot of attention is paid to identifying the legal framework or formula for answering the legal question at hand. That is because one can only answer a legal question if one has a structured framework with which to do so. 

One thing I wish I understood when I started as a first year law student is that each legal subject has a structure that is somewhat inherent in it. Sometimes that can be seen through looking at the structure of the applicable state or federal code. 

For instance, to maintain a tort claim, one must demonstrate (1) the defendant owed a duty to the plaintiff; (2) that duty was breeched in some way; (3) some harm of value resulted; (4) there is a causal relationship between the breech and the resulting harm. If any of these elements are not met, plaintiff is not entitled to relief. Thus, defendants will try to attack the facts on each element and the plaintiff needs to show to the court that each element is met so the court does not throw the case out. Accordingly, law professor examine their students with this in mind. 

For instance, if I am in an auto accident with another (causing injury to both cars) and I want to hold the other responsible, it is not enough for me to want the other to pay for the injury, as the other would similarly want me to pay for his or her injury. Accordingly, the question is who had a duty and violated that duty, and did that violation cause the damage that resulted. It is this very type of analysis that each professor is seeking from their students, and this very analysis that is used in the practice of law. 

By way of another example, every contract dispute leads to the following questions, also going through the elements: (1) was an offer made; (2) did the other party accept the offer; (3) was the consideration adequate, namely did each party give something up in order to effect the contract; (4) legality of contract; (5) performance; (6) breech; (7) damages.  For instance, if I have a conflict between another person in relation to an agreement that we entered into, the court will first want to determine if indeed there is a legally enforceable contract. 

For instance, lets say Bob and John enter into a contract that says that in exchange for Bob giving John $100 a month, John will no longer go into Bob's house unannounced and take his money and things or punch Bob.  This contract would not be legally enforceable because John is already legally bound to not go into Bob's house without permission and take his money and punch him.  In other words, Bob is not getting anything in return for his $100 that his is not already entitled to under the law. That is consideration. Thus, a judge would invalidate the contract and not worry about whether it was breeched or if damages are owed.  (In this example, the judge might also refer John to the criminal authorities for extortion, thereby making this an issue in both contract law and criminal law.) 

b. Law School Exams Usually Are Designed to Test a Students Understanding of the Structure of the Material, Not Just a Right Answer

 

In each course during the first year, it is typical to receive an exam with one or more factual scenarios that require you to recommend a course of action to your boss. In criminal law, for instance, one question often requires you to play the role of assistant district attorney and recommend to your boss, the district attorney, each crime you would consider charging potential defendants identified in the factual scenario -- and possibly identify too what their defenses are likely to be. In tort law, you might be visited by a potential client who went through a series of horrific injuries, and the boss in your firm needs a recommendation as to determine who to sue for which torts. 

The above paragraph represents the first activity, namely issue spotting. Issue spotting is what it sounds like: spotting the legal issues that comes up in the scenario.  

Once you issue spot, you will want to identify the elements of the analysis so you can go through the right analysis to come up with a legal conclusion. 

b. Outlining is a Great Way to Keep Track of these Structures

The biggest mistake I made during my first year of law school was to not fully understanding why you as a student are asked to walk through the elements of the respective crimes or torts. In fact, every single legal problem should be addressed by first identifying what formula should be used to evaluate the problem. By identifying and spelling out the legal formula, and then applying it systematically, we lawyers are able to convince courts that our understanding of the legal implications of the facts are correct.

Although it would be more satisfying to test students by having them write commentaries on the philosophies discussed in the course, this methodology of testing actually reflects what legal practitioners do when thinking through legal problems. Had I appreciated this during school, I would have done a lot better. 

Because each subject matter has an inherent structure, writing an outline of the material helps one's mind think through how to walk through that structure.  As lawyers, when intaking a new issue, we often use outlines of subject areas as a checklist to think through what sort of problems are at issue in the matter being presented to us.  Quite candidly, during law school, I did not fully appreciate how valuable a good outline would be to assure I understood the material. 

c. Outlining Helps Avoid Memorizing

It is true that to do well on an exam, there may be a lot to remember.  However, by outlining, one finds themselves less dependent on their memory.  That isn't to say that the memory isn't critical. However, by having a good outline on paper and ultimately in one's mind, legal problems can feel manageable because rather than just having numerous legal ideas in one's head, one can reason through the problem at hand in a systematic way. 

 

d. Every Judge and Profession Has His or Her Unique Concerns - Listen Carefully

 

During your semester, you should listen carefully to how your professor thinks through the problems because there may be keys to exam patterns. However, more generally, as there is limited time in an exam, there is always somewhat of a balance between issue spotting and factual analysis. Before walking into the exam room, you should already have an impression as to how much analysis to apply to a given problem. This you may be able to figure out by listening carefully to what the professor wants. For instance, some professors may be more interested in making sure that mention every single legal problem raised by a fact scenario and another professor may be more interested to assure that each legal problem you identify is outlined with the analytical approach. Additionally, a third professor might care more that fewer legal issues are raised and that you show that the legal issues you raise are analyzed from multiple perspectives.   

You should also expect that you will miss important facts your first read through the problem and may find your opinion on certain issues changing as you continue through the problem. Thus, you should have a process for adding to your work.  For instance, if you are walking through a problem with 5 torts, you may want to leave space when you are done with tort 1 so that as you complete tort 5, you can add to your discussion of tort 1. 

Again, each professor is likely to have preferences about how to stylistically handle this. Frankly, this is quite analogous to practicing law, as each judge has a preference as to how to handle it if one submits a brief with errors or if one, after submitting a brief, finds new facts or new law that should impact what one wrote. Some judges will want the original brief rewritten and other judges will simply ask for short addendum. Accordingly, your law professor probably has a stylistic preference concerning how to approach this problem -- which is inevitable for any thinking law student or lawyer. 

Thus, as I said, listen carefully to your professor. Every judge has their passions and prejudices, such as whether they want long briefs, short briefs, briefs with lots of quotes from the testimony, briefs with minimal quotes and generic descriptions. Similarly, law professors have prejudices too about style. When they indicate their prejudices, take it seriously as it could mean a few points here and there.

If you are able to review and study old versions of the professor's exams, I strongly urge you to examine those. Although there is never a guarantee of consistency, you may be able to see some past patterns, and even how the professor grades. For instance, do they give a point for each element of crime or a point for the whole crime in general? Thus, you'd figure out if it is better to make sure to identify echo and every crime on the page or if it is better to go thoroughly through the ones you first identify.

Unless things have changed since I went to school, there are no added points for finishing early. I know many successful lawyers who are successful in brief writing because they take all the time available to us to make sure we have addressed all the points that should be addressed. You do very well at this field by demonstrating to the judge or professor that you are the master of the facts and law. If you show you are the master, you often win. Thus, if the professor sees you've thought through the problem, you get the points. 

I Hope this has been helpful and not too redundant. No one really said these things to me before my first exam, and I wish they had.

What Actually Happens in Law School Part II

In Part I, I discussed the subjects taught in law school. Now I want to discuss how we learn those subjects. 

In so stating, I should clarify that any interest I have in critically analyzing whether law school today is properly preparing lawyers for the challenges and opportunities we confront is best placed in a separate article. I will, though, hint at the notion that there are serious discussions among certain members of the legal community about whether law school today properly prepares lawyers for the full range of activities today's society needs from them. 

Nevertheless, law school is primarily interested presently at training law students to interpret legal texts such as statutes, constitutions, and cases, most law school classes focus on just that. This usually manifests itself in reading decisions by appellate courts (US Supreme Courts and federal and state appellate courts)  and interpreting how and why the court arose at the result it did. As courts are expected to articulate their analysis, at least to a certain extent, law students are able to understand how legal analysis works by reviewing past decisions. 

To this end, law exams generally require law students to take a factual scenario, identify each legal issue raised in the factual scenario, and walk through the steps of its resolution. On occasion, exam questions require students to identify the best arguments for both sides identified in the scenario.

 For instance, in my criminal law class, I recall being asked to take a factual scenario, identify each crime would charge the alleged criminal in the scenario, and then take the role as the defense counsel. By way of another example, in a class on contract law, I was given a scenario where two people had a certain dialogue, one party to the discussion had the impression the two had entered a contract and thought the other party therefore failed to perform, whereas the other party did not think they entered into a contract. 

Law school is specifically directed towards this type of factual analysis. As a result, law professors often direct their classes with that mindset, hence a law school classroom experience known as the “Socratic method,” namely a method whereby the professor asks questions of students with the goal of getting them to explain how and why the court came up with the result it did. 

Although there is very little way for a starting student to realize this, the pattern of law professor questions is often organized in the same pattern as the pattern of how legal decisions are written. The facts are discussed first, with an eye towards explicitly spelling out those facts which are essential to making the relevant legal determinations. Second, one identifies the relevant law applicable to the factual scenario, spelling out the method courts use to resolve the legal questions at hand in the case.  Third, one analyzes how the legal principles and rules apply to the facts at hand.

 For instance, in my second example above, a court would write out the case law applicable to determining whether a contract exists when two parties differ as to whether they entered into a contract. Given that the court is probably being asked to also identify what damages are available should a breech occur, the court would likely spell out the law on that subject as well. Once identifying the law, and the facts, the court can begin the process of analyzing the facts against the law. This involves both applying the facts to the law, and determining whether one side’s argument is more consistent with the legal framework at hand.

What Actually Happens In Law School Part I

Recently counseling a number of potential law students, it became clear to me that that there are misconceptions in general society of what occurs during law school, and for what the curriculum prepares its students.

 In hopes to be helpful, I am going to start by describing the generic law school curriculum, and then respond to some of the misconceptions. Be advised, however, that this article is limited by my own exposure, both to my own law school experience and to those of friends and collogues who have shared their own experiences with me. 

I can't speak for law schools in other countries, and can't say for sure that there are not exceptions to this. That said, because of the nature of legal study, its likely that even where institutions seek to be "cutting edge," the information I provide here is likely to be consistent across years and communities, at least within the United States. 

Law school curriculum, despite its vast difficulties, may (in a sense) be seen as basic, driven by three interests: core subject matters, practical necessity for future lawyers, and bar passage. 

First, there are core subject matters on which almost all other legal matters are based. These are: contracts, torts, property, civil procedure, criminal law, constitutional law. Consequently, these courses are often taken in the first year of school. The notion is that it would be impossible to truly move forward in legal education or in life as a lawyer without having a general grasp of the major concepts addressed in these classes. 

Second, there are several courses which are so important to the legal profession that most law schools require them in one way shape or form. These include professional responsibility and legal writing. 

Third, there are several courses which are so important to bar passage that many law schools require a certain number of them. These are: evidence, business associations, family law, commercial law, criminal procedure. However, other than specific laws and codes enacted by state legislatures and Congress, most of these, and other, legal subject matters rely on principles established by the core subject areas I above mention. 

 In reviewing this list, you will notice something very fascinating. I mentioned only subject matter courses, not courses that teach lawyering skills like trial advocacy and negotiations. These along with exposure to actual practice through clinics and internships are becoming more and more a part of the law school curriculum for a number of students, especially in their last year of study. 

Unlike other professional schools that are known for their practicums, such as medical school residencies, for the legal profession, the title "lawyer" is bestowed upon one who can properly interpret (explain the meaning of) legal rules and apply them to a given set of facts (e.g. taking a problem a client provides and properly understanding what legal issues are relevant to addressing the client's concerns). 

You'll also notice that I did not discuss the political aspect of the legal system. After all, the text of the law is often a result of which political forces are successful at any given point in time. As will be explained in future articles, political views can also affect how one understands the text of specific laws--and certainly how the constitution should be interpreted. However, contrary to the wishes of many potential community activists and policy wonks, the law school curriculum is not established for the develop an appreciation of all things legal, or to educate people in the art of determining which laws are just, moral, or appropriate for a given society or time period. Although most thinking law students will develop opinions about the role of law in the economy and in society as a whole, and may find themselves becoming fascinated by the democratic theory and other social theories that underlie what legal systems are in place in our society, law school concentrates on the knowledge and skills needed for individuals to function as lawyers in this present age. 

In future articles, I hope to reflect on the strengths and weaknesses of this, and what lawyers I encounter think about this. That is beyond the scope of "what actually happens in law school." See Part II for a discussion of law school exams and thoughts about how to study the law while in law school.

Beyond Voting: Engagement

(originally posted on Sunday, November 12, 2006 ) According to Dianne Bystrom, Director of the Carrie Chapman Catt Center for Women and Politics and Iowa State University in an article dated November 5, 2006, the youth vote increased by 11 points between year 2000 and 2004. In that article, she says that 40% of young people cite the war in Iraq, terrorism, and national security, as the top issues, leading them to vote—and vote Democratic. If Sam Graham-Felsen, writer on the blog of http://www.thenation.com/, on November 10, 2006, is correct, Bystrom correctly anticipated a “youth voting wave.” In 2005, youth vote surged by 15% in Viginia and 19% in New Jersey. And in 2006, there were 2 million more young voters than in 2002. Graham-Felsen notes that youth voting was greater in areas targeted by “Get Out the Vote” efforts. However, for there to be engagement “en masse, they need a real spark.” For Graham-Felsen, somewhat surprised that several particularly influential issues like the Iraq War, exorbitant college costs, and global warning did not sufficiently get the entire youth vote to the polls, it is not certain what that spark will be. He then wonders whether a reinstatement of the draft would in fact be such a spark.To me, Graham-Felsen’s comments imply that young people will only vote en masse when there is the right “issue,” or rather, if I might use a different word: gimmick. Following Graham-Felsen’s logic to its natural conclusion, voting is nothing more than a product being sold to the young, something WE want the young people to BUY INTO because of how it will benefit us, just as other gimmicks are designed to benefit the trickster rather than the tricked. Youth voting is not an end in itself. Additionally, voting is not synonymous with engagement in the political process. A cursory review of the democratic tradition in this country will show that participation in the democratic process has always involved more than mere voting. It has meant participation in civics and activist groups, volunteerism, and other forms of communal involvement. In 1999, the National Association of Secretaries of State conducted a study where it found that Americans between ages 15 and 24 wer found to have “only a vague understanding of what it means to be a citizen in a democratic society.” Suzanne Soule, “Will they Engage? Political Knowledge, Participation and Attitudes of Generation X and Y.” Veranstaltungsdokumentation (Oktober 2001) at http:// www.bpd.de/veranstaltungen/1SUI3U,0,0,Will_They_Engage_Political_Knowledge_Participation_and_Attitudes_of_Generation_X_and_Y.htm. A 1998 National Assessment of Educational Progress found that 75% of high school seniors were not proficient in civics. Another study also found that only 26% of incoming college freshmen considered it very important or essential to keep up to date with political affairs. In 1970, the rate was over 50% and in 1990, it was 42%. Id citing “The American Freshman: Thirty Years Trends, 1997.”Statistics show that those who vote do so because they believe their vote makes a difference, or because it is an important way for one’s views to be heard. Id. If this is a correct assessment, it means that increased voting among young people is a sign that they are interested in civic involvement and social responsibility. It also means that they are engaged in the American political and social system as a whole, not merely on Election Day. In other words, increased involvement among young people voting is not due solely to "get out the vote" drives, but due to segmants of the youth population feeling the importance of voicing their opinion or influencing the election outcomes. The continued discrepency between the increased voter rolls and the ultimately goal of a whole population of engaged voters is not due merely to "the right issue" and should not be simplified in that way.Instead, we should dedicate ourselves to increasing voter turnout among the youth by concentrating on increasing opportunities for civic engagement and civic achievement. If the youth are more likely to involve themselves when they see results or a difference from their involvement, the notion of concentrating on voting rather than civic participation as a whole seems particularly defeatist, and perhaps not so fair to the youth themselves.

Real Civics Education Must be an Ongoing Project in Our Democracy

Sunday, August 06, 2006 In June 2002, the Office of Democracy and Governance of the United States Agency for International Development ("USAID") published a study of lessons it learned in conducting civics education in the Dominican Republic, Poland, and South Africa. Although these countries have been going through serious transition that the United States have not, I think we can learn a great deal about democracy in the findings of this study. For one, we learn that civics education strengthens community and political participation. The study found that “civic education does have a significant, positive impact on certain democratic behaviors and attitudes.” Research cited by Margaret Stimmann Branson, in her article “Civic Education: An Antidote for Political Apathy” finds that civics education contributes significantly to increased rates of political participating among participants of good civics educational programs. This study focused its attention primarily on what education techniques were most effective to engage a citizenry. It found that single session educational programming was ineffective compared with programming where participants engage over a period of time. Underlying this finding was the principle that a participant who is simply exposed to democratic principles in a single day is less likely to adopt or own those principles than a participant who is repeatedly exposed to them and thinks about them over the course of a period of time. The study also found that participatory education was far more effective than lectures. This underlying principle of participation is so important that it also found that educational programming that provided participants with outlets for ongoing civic engagement were more effective than those that simply inculcated its participants with an interest in civic involvement but failed to inform as to available outlets for such involvement. These results should come to no surprise to those familiar with the “Federalist Papers” and DeToquville’s “Democracy In America.” A democratic republic functions best when its citizens are well educated about the system of government under which they live, and are familiar with ways to influence it, and be involved in it. A civics education program that does not take each aspect of this serious is not worth its salt. Civics in this country must be oriented towards civic engagement.Obtaining a legal education means gaining real exposure to the fundamental subjects to go into a real civics education. Additionally, lawyers are more empowered than others to act on their education. Consequently, I believe lawyers should be more involved than others in teaching civics and providing exposure opportunities for citizens to learn about civics, the legal structure under which they live, and other things that might be considered required education for a citizen.