Teaching Law Through Teaching Students Legal Principles that Affect Them

In a prior blog post, I discussed the importance of experience in learning about the legal system and its powers. I discussed the idea that while it can sometimes be hard to fully appreciate certain constitutional principles like popular sovereignty, limited government, separation of powers, checks and balances, judicial review, and federalism, the concepts are extremely tangible when made real by experience, or observation. Legal principles become particularly learn-able when relevant to one's day-to-day experiences. Thus, I was intrigued to read an article about teaching techniques in Sayville Middle School, located in upstate New York. In Sayville, middle school students learn about the legal repercussions of cyber-bullying, illegal music downloads, and even the criteria for becoming a lawyer. I came across an article about a place in upstate New York, namely, Sayville Middle School where sixth grade students are learning about the legal repercussions of cyber-bullying, illegal music downloads, and even the criteria for becoming a lawyer. Implied in the article I read was that the students are made to appreciate the legal process by understanding how the law addresses these issues. One can envision an introduction to the entire legal system by studying a trial on illegal music downloads and copying. After all, factored in is criminal law, intellectual property law, contract law, constitutional law, and if a trial process is studied, evidence. Admittedly I have no idea what precisely is being taught in the course that gave rise to the article, but I am excited to read that twelve and thirteen year-olds are being introduced to the legal process through things that affect them.

Advisory to the Pro Se Litigant #15:Just Because It is Unlawful Doesn't Mean You Can Sue

Common sense dictates that if a person or organization violates federal law, and knowingly and intentionally harms someone in doing so, he, she or it should be liable for the harm caused. However, the law would not say so. Instead, under federal law, if the statute does not explicitly give the victim the right to sue, a court may find that the victim has no right to pursue a suit under federal law. This idea is affirmed in Decarlo v. Mount Sinai, which the US Court of Appeals for the Second Circuit decided on November 23, 2010. In Decarlo, the plaintiff, an operating room nurse, pursuant to the Defendant's own policy, indicated her unwillingness to participate in abortions. However, instead, on the job, she was told that she wold be required to participate in abortions. According to the second circuit decision, when she complained internally, she allegedly underwent retaliatory harassment and thus filed suit, seeking a remedy. Decarlo filed suit under 42 U.S.C. § 300a-7(c). That statute prohibits (among some other things) discrimination in employment because he or she refused to perform or assist in the performance of an abortion on the grounds of religious belief or moral convictions. However, the statute does not explicitly give a victim a private right of action, namely a right to go to court and seek a remedy by a judge or jury. Common sense dictates that since the statute prohibits discrimination in employment because he or she refused to perform or assist in the performance of an abortion on the grounds of religious belief or moral convictions, one substantially harmed through discrimination (because he or she refused to perform or assist in the performance of an abortion on the grounds of religious belief or moral convictions), should be permitted to sue and obtain damages for harm incurred. That logic aside, according to the Second circuit, one can only bring a federal lawsuit when there is a federal statute that specifically gives an individual a right to file a lawsuit for the alleged wrong. In this case, the plaintiff sought to convince the Court that a right of action was inferred by the title of the statute and that Congress had the intent to create a right to action. This analysis was rejected--because the title and Congressional floor speech are not parts of the statute. The plaintiff also sought to convince the court that the congressional intent was made clear by what was said on the floor of the House of Representatives. This is an important lesson to all potential litigants: before considering filing suit, consider whether the law provides a remedy for the wrong you allege.

Text Book Recommendation: Caroline Kennedy Illustrates the Poetic Nature of "America"

I now have an answer to that burning question: can one summarize American is 650 pages?

The answer is now: yes!

Is there an ideal textbook for the course: Introduction to America?

Yes!

Does that text inspire its readers to engage in the great discussions about American identify?

Yes!

Caroline Kennedy has done just that in "A Patriot's Handbook." The book is a compilation of excerpts of over 200 texts (including books, articles, speeches, Supreme Court decisions, and poetry) and illustrations, which collectively represent the American experience.

I would like to see this compilation introduced to high school and college classrooms. What makes this compilation special? It reflects the reality of the American experience without falsely glorifying it or apologizing for it. In other words, included are texts that evoke great pride (e.g. the text of the Star Spangled Banner, Declaration of Independence, Thomas Paine's Common Sense, and excerpts of Alexis De Toqueville's Democracy in America) to texts that reflect that we have not always lived up to our ideals (e.g. poetry by Langston Hughes, Letters from Birmingham City jail by Martin Luther King Jr, Florance Kelley's Speech at the Convention of the National American Woman Suffrage Association).

It also includes excerpts from a number of Supreme Court decisions that have defined the moral questions of the day (e.g. Planned Parenthood v Casey--abortion; New York Times v Sullivan--freedom of the press; Texas v. Johnson--the right to burn a flag as part of freedom of speech.) Although it is conceivable that one could successfully go through great efforts to critique this inclusion or that exclusion, one cannot deny that Ms. Kennedy has created a book that deserves a thorough read.

Although a very small number of these texts are pure idealism, most are serious reflections on serious questions, and deserve study and attention.

Being American means being part of the discussion about what America is. It involves engaging in complicated questions about the freedoms identified in the First Amendment. Although there are common ideals involved in being part of a democratic republic seeking to maximize personal freedoms, this book makes clear that the enactment of these ideals is not commonplace formula. Instead, it involves numerous balancing acts, namely balancing the diverse interests of different groups.

In my experience, there is a tendency to segregate patriotism from addressing inequities in our social system. Thus, one might imagine that a course on patriotism must be about only the good qualities of America, ignoring the philosophical challenges, i.e. slavery, segregation, freedom of speech v. community cohesion.

This book reminds us that true love of country, involves the willingness to confront its faults and want to make it better--to make it live up to its ideals.

In her introduction, Kennedy says that her goal in compiling this book was to make it more possible for us to "return to the words that defined the challenges of our past, inspired generations before us, and offer renewed insight for our own time." She is trying to make it easier for us to converse about the concepts and content of patriotism. This is precisely what she does. I hope one day soon this book will appear on college campuses as a course book for a course on patriotism.