Should Civic Literacy and Legal Literacy Be Married?

In a recent piece, I mentioned the issue of legal literacy as an element of access to justice issues.

To define, “access to justice” is the extent to which non-wealthy citizens have access to the judicial system sufficient to obtain remedies to legal problems.

 Legal literacy is the extent to which individuals are aware of the general framework of the legal system, and knowledge of how to address legal problems within it.

 To me, it is axiomatic that legal literacy must be an aspect of “access to justice” issues because one who is unaware of their rights under the law would have no reason to discover how to access justice. 

Facts that reflect on access to justice issues include the estimation that only 33% of statistically expected legal needs of Maryland’s poor and near poor are addressed. More broadly, Michael Greco, President, ABA, writes that “numerous reliable studies at the national and state levels have documented that 70% to 80% of the civil legal needs of poor people go unaddressed year after year.            
The term, “Civic literacy” refers to knowledge by individuals of how government works. Courses in civics generally focus on organizational facts, such as the fact that our federal government is divided into 3 branches of government, and that there are 50 states, or the separations of powers concept. Facts that reflect on civic literacy issues include national studies (for instance a 2005 study commissioned by the American Bar Association) that show that only 55% of adult Americans “can correctly identify the three branches of government,” only 45% can identify the meaning of the concept of separation of powers, and only 36% cannot correctly identify the principle of checks and balances.

 In studying these two issues, I have confronted what I believe to be the oddest and most unnatural dilemma. Generally, I am finding literature on civic literacy divorced from literature on legal literacy. Accordingly, when trying to appreciate the societal landscape of organizations addressing civic literacy and legal literacy, I find myself being asked to make a choice I find unnatural, namely, am I trying to assess the landscape of programs addressing issues of legal literacy, or civil literacy? It is fair to say that there are intellectual or conceptual differences between the framework of the governmental structure in which we live, the framework of the laws under which we live, and an individual’s rights to protect one’s rights under those laws or push for new ones.

From the engaged citizen’s standpoint, it all goes hand in hand. The engaged active citizen is both politically active, such as in supporting various candidates, able to protect (either personally or through locating counsel) his or her rights under the law (either as a plaintiff or defendant), and is knowledgeable how to advocate for or against government action between election cycles, such as when citizen groups speak out on laws relating to anything from abortion to inclusionary zoning, or on whether a police commissioner should be fired for engaging in racial profiling.

 A 2002 report by the United States Agency for International Development Office of Democracy and Governance found that civic engagement programs were most effective when participants learned about opportunities for participation, in addition to concepts relating to participation. It would be illogical to think legal literacy functions differently. It is the engaged active citizen model that interests me because it encompasses legal literacy, civic literacy, and the ability and confidence to act on both fields of knowledge.

 It is my opinion that any citizen who lacks any of these three aspects of being an engaged active citizen, namely being (1) civically literate, (2) legally literate, and (3) familiar with one’s rights to advocate is not fully an engaged active citizen, and may require education to compensate for the lack. In The End of Education, Neal Postman posits that successful educational systems are one where the ends are clearly defined. Thus, I think absent the clearly defined goal of an engage active citizen, civic literacy efforts and legal literacy efforts will inevitably ultimately fall short in some manner.

Book Recommendation: Rhode’s Access To Justice Discusses Ways to Make Justice More Accessible

Although a short book, only 194 pages, Deborah L. Rhode, in Access to Justice (Oxford Press, 2004) succinctly (1) defines the concept “access to justice; (2) articulates where our legal and judicial systems fail to live up to the concept’s ideals, while at the same time, (3) explains the paradox that while this is the case, namely that a huge number of legal needs of the poor go unmet, many are of the opinion that there are too many lawyers creating too many lawsuits over too seemingly petty things. (4) Rhode proceeds to offer numerous policy suggestions designed at increasing access to our judicial system for those in society without means. One of the most important aspects of the book is the analysis of the concept and ideal “access to justice.” On a superficial level, the concept means that any person with a legal grievance has the right to go into a courthouse and pursue a lawsuit, or defend themselves against allegations. It also means that anyone who is legally defined as indigent may obtain the assistance of counsel when defending themselves in criminal proceedings. Rhode cites a study that says that four-fifths of Americans believe our judicial system is the “best in the world.” Presumably, most or all of them are under the impression that having the legal right to enter the courthouse is tantamount to the ability to engage in a full enforcement of those rights. In fact, elsewhere I have read that only 33% of Americans believe that low-income persons have a difficult time getting legal help with civil matters. As Rhode points out, and is really the point of the book, access to justice is more complicated than one’s legal right to walk into a courtroom and state one’s position to a judge. From a criminal law defendant’s position, it is important that one has access not only to the courtroom, but to the knowledge of what charges are being brought, what evidence exists, what legal options exist for defending, and what plea-bargain (negotiated resolution) options are realistic and appropriate Practically, there are huge hurdles. Court appointed defense lawyers receive only one-eighth of the resources available to prosecutors. Additionally, defense attorneys are often paid a small set amount per case-giving a disincentive for them to sufficiently place their energy and resources in more complicated cases when a volume of cases is required to make a reasonable living. This is even more complicated by the fact that for a defendant to prove malpractice, they would need to prove it is more likely than not they would have won their case but for the poor assistance of counsel, which is near-impossible for someone fully dependent on counsel in the first place. Similarly, outside of the criminal law context, many individuals, have challenges in life that could be resolved legally if they knew their rights under the law. For instance, in my field, employment law, many are unaware when they do and do not have rights to legally challenge decisions made by their employers. Further, even when employees know their rights, the cost of litigation is often too prohibitive unless they sue under a statute that provide for the opportunity to recover attorney fees as part of their recovery (known as fee-shifting), I have also observed that some individuals owning small businesses have very little knowledge of or are confused about their legal rights with respect to those failings to comply with agreements entered into. I suspect this is also the case in many other fields. Rhode specifically mentions several legal needs the often go unmet in low income populations, namely: children with mental disabilities unable to get proper assistance in schools; brain damaged children and elderly citizens on fixed income unable to get medical treatment; impoverished nursing mothers unable to challenge the use of dangerous pesticides near them; important legal and strategic help to women and children who want to leave violently abusive men. More broadly, in 2008, an Access to Justice Commission in the District of Columbia found that 90% of the civil legal needs of the poor go unmet. In 1993, an American Bar Association study found that nationwide, between 70% to 80% of the legal needs of the poor go unmet. In 1991, a study commissioned by the Ohio State Bar Association (along with other state legal associations) found that 83% of their poor’s civil legal needs went unmet. When these problems go unaddressed at first, they become much more expensive and challenging legal problems later. Causes of these problems include under-funded criminal defense attorneys, legal service corporations, procedural hurdles that are extremely complicated for those not highly literate, only 13% of Americans know to when extent there are legal aid organizations available to them, many law firms give a disincentive for their associates to engage in pro bono or low cost services, requiring over-worked lawyers to conduct such work on their own time, if at all. Throughout her book, Rhode suggests ways in which our legal community can address these problems. Suggestions include increasing access to self-help resources in courthouses, altering Rules of Professional Conduct to permit attorneys to strengthen their ability to provide discrete legal services without having to choose between “taking the case” and providing no assistance, and giving the Legal Services Corporations to assist with community organizing and more discretion to take a more varied case load. I anticipate that this book will become a seminal book in the study of the legal community’s obligation to those unable to afford legal assistance. Perhaps it already is. In addition, should I ever teach a law school course in Professional Responsibility, I would be sure to have my students read this text, as it raises the most essential questions concerning our profession’s obligations to those in need. There are a few questions worthy of analysis for which Rhode’s book is a proper starting place, with follow-up analysis required. First, are there additional fields in which fee-shifting should be permitting to make full blown legal representation more possible in those fields? Second, are there specific legal rights and legal information which is so important to one’s ability to function in society that the legal community should assume responsibility for fully educating the public? Third, to what extent should the legal community’s fee methodology be regulated to assure the needs of fair access by the population at large. Regardless of how these questions are answered, they are clearly worth asking.

Study 4th: Making the Fourth of July a Real Democratic Experience

I never understood why one does not see intense community activism on or around July 4th every year. Conceptually, the day lends itself to democratic activism. ON July 4, 1776, the Congress of 13 American British Colonies of the British Crown declared their independence from that Empire. However, thinking about July 4th as an anniversary of a mere legislative enactment misses the point. During the 20th century, many colonial governments separated from their European Colonizers. However, thinking about July 4th as merely the first of many peoples to separate from the requirement to obey a distant power also distorts the experience that July 4th can and should represent. In an earlier essay published to this blog on November 2, 2008 entitled “Getting at the Origin of Civic Health.” I attempted to describe the social contract envisioned by the Declaration of Independence. Prior to the Declaration, however, Thomas Paine published a pamphlet entitled Common Sense. In it, he presents to the public an argument in favor of separation from Great Britain. Historians believe that this pamphlet had a huge impact encouraging Americans to favor independence from over reconciliation with Britain. It is crucially important to recognize the similarities in the arguments presented in the pamphlet and those presented in the Declaration. Similarities between the arguments used to encourage citizens of the Colonies to support separation from the British Crown with those used to formally advocate on the world stage is highly probative of the true motives of the movement itself. The Declaration describes the purpose of government as securing the citizens’ “unalienable rights” of “life, liberty, and pursuit of happiness.” Common Sense, in its introduction, describes “security [as] being the true design and end of government.” For Paine, government is “…rendered necessary by the inability of moral virtue to govern the world; here too is the design and end of government viz, be freedom and security.” Paine is concerned with the nature and role of government. He envisions the formation of a democratic republic. He advocates strongly against the notion that a monarchy, even a constitutional monarchy, could be relied on to provide for the rights to humankind. For Paine, the primary problem with monarchy is that it places decision-making in a person shut from the world—at least during the time holding office, thus unable to truly experience the needs of the people. The Declaration of Independence does not attack monarchy in principle, but attacks the British monarch. The Declaration discusses “consent of the governed” as being an essential element of proper governance, but that the proper structure is a democratic republic is not self evident from the Declaration document. In “Getting at the Origin of Civic Health,” I argue that the Declaration had a participatory democracy in mind when Jefferson wrote that it is the inherent right of the people to alter or abolish their government, and this can only happen in a participatory democracy. I point out 20 rights that can be secured only through a participatory democratic regime. That said, it must be admitted that although it is difficult to imagine in reality, one could conceptualize a non-democratic society meeting the standards identified in the Declaration of Independence. Looking at the Declaration in the context of Thomas Paine’s writing, however, we should have no more doubt that the founders envisioned a participatory democracy when conceiving of their independence from Britain. First, Thomas Paine goes through efforts to show how Scripture itself opposes monarchial government in principle, identifying monarchy as one of the sins of the Biblical Jews. Then, Thomas Paine describes the evils of hereditary succession. Paine then proceeds to glorify the republican form of government, including the aspects of English government that is republican in nature, the concept of a representative legislature chosen from among the people. Paine goes so far as to suggest that legislation should not be allowed to pass without 3/5 of the members of the legislature. Paine’s argument additionally describes a nation with diverse religious perspectives. In short, his text is not only an argument in favor of separation from the British Crown, but an argument in favor of establishing a democratic republic in its place. The Fourth of July is therefore a memory of democratic activism. Thomas Paine and the Declaration describe the inherent right of all peoples to establish free governments that provide for freedom and security. However, the Fourth of July is also a memory of the experience of seeking government structural change not merely by power, but by advocacy. Although the audience of the Declaration of Independence were powerful people in other nations, the audience of Common Sense was the common man in America. Common Sense was not merely an invitation to take up arms against Britain, which could have been done with the elements of Common Sense and the Declaration that involves identifying wrongdoings of the British Crown, but an invitation to participate in the soon-to-be democratic republic. Common Sense did not merely ask its readers to trust their predefined leaders, but invited its readers to envision and advocate for a participatory democracy where they would be represented. Thus, true celebrations of the Fourth of July should involve discussions of democratic institutions, and the advocacy of their protections and growth.