I hope I am not simply drinking cool aid, but I believe that the TV show "Shark Tank" is correctly hyped to reflect America's interest in entrepreneurship. Indeed I have read articles in Forbes and Fast Company --and in other publications-- about how the show effectively provides critical lessons to those in the viewing public interested in starting businesses. I am personally addicted to the show because of my own interest in learning about entrepreneurship.
When I first watched the show, my initial instinct was to think that if the show advances the public's interest in entrepreneurship and financial betterment, it would take the public's attention off of civic engagement and issues of public concern. However, upon further though, I have a new perspective: entrepreneurship can advance civic engagement and engagement.
Entrepreneurship is effectively creating and selling a product or service.To do so, one must identify a marketplace for that product or service, which means one must become familiar with the needs and desires of his or her fellow. Then, one must convinced his or her fellow of a creation that addresses that need or desire. This is a critical communication process, and in some sense, may be similar to the communication process of the candidate for electoral office selling his or her ability to address those concerns in the community. An entrepreneur in consumer goods must show how his or her product addresses needs of the consumer, and an entrepreneur in electoral office must show how his or her placement in public office should address the needs of the consumer.
The civic engagement side is two-fold. First, good entrepreneurs learn about their potential customer's needs. They are focused on understanding legitimate ways to make the lives of others easier in an affordable manner. Second, through the process of developing a relationship around the value of particular type of product, valuable interactions occur. From the show, I have the perspective that the most skilled entrepreneurs are not those whose communication about community needs is not exclusively focused on the product and services in hand, but in the course of marketing communications, do indeed communicate about community needs as a whole, thus advancing the social bonds needed for community engagement in a host of arenas.
As an aside, we often don't think about the ways that entrepreneurship advances the goals of democracy, but the pitches on Shark Tank make it quite evident that the interactions that are part of the development of family businesses are the same interactions that connect neighbors to address emergencies. The entrepreneur needs to understand the marketplace and in doing so, needs to understand the legal scheme and in doing so, needs to think about the impact of certain kinds of laws on his or her business.
The proof will be in the pudding. If the show's audience decides to sit at home and watch endless reruns, and then there are spin-offs that focus attention on making fun of bad products and how to screw up in business, the show will be useless. I believe the show will continue to inspire folks to build businesses and interact as a result.
ps: if nothing else, it is great that there is an ability for a show like this to shine, rather than another show making fun of people.
Sunday, December 29, 2013
Saturday, December 28, 2013
11th Circuit Confirms A Settlement is a Settlement
On January 23, 2011, I wrote Advisory to the Pro Se Litigant #12: Yes, You Have A Right to Resolve Your Case, in which I wrote that pointed out that one cannot sign an agreement now and reopen a case when new information arises.
Rarely is there a case that highlights the proposition more than the recently decided 11th circuit case of Sherrod v. School Board of Palm Beach County. In this case, Curtis Sherrod settled First Amendment claims against the School Board for $272,425. He has now brought a cause of action claiming that the employer discriminated against him, in violation of 42 USC Sec. 1981, a critical anti-discrimination statute, by entering into a more favorable settlement, namely $490,000, with a white male, Dr. Elfers, who also alleged violations of his First Amendment Rights.
The Eleventh Circuit reviewed the language of the settlement entered into by the parties and determined that it bars the claims Mr. Sherrod seeks to pursue. According to the Eleventh Circuit, the alleged discriminatory actions of the school board in offering a lower amount for settlement than was offered to a similarly situated individual of a different race, occurred prior to the parties' entering into a settlement agreement, and are therefore implicitly settled. By entering into the agreement, and accepting the benefit of the bargain, Mr. Sherrod is not allowed to reopen litigation because he now doesn't like the terms.
This case offers two important lessons for those settling cases. First, one cannot re-open a case merely because new information comes available later that suggests that settlement is not all that can be achieved.Two, a written settlement agreement of claims often covers any claims that might arise during the negotiations themselves. A party anticipating a need to preserve rights to engage in post-settlement litigation along these lines will need to craft a settlement agreement reflecting these rights--although it is highly unlikely any represented entity would contemplate entering into a settlement agreement giving the plaintiff rights to reopen a case if he is later unhappy with the settlement.
PS: As an aside, note that this case does not deal with the case where a settlement is achieved through fraud or unlawful coercion. In this case, the 11th circuit recorded no allegation that the School Board engaged in either of these wrongs in order to get Mr. Sherrod to settle his case. If the School Board had, I am certain the result of the case would have been entirely different.
Rarely is there a case that highlights the proposition more than the recently decided 11th circuit case of Sherrod v. School Board of Palm Beach County. In this case, Curtis Sherrod settled First Amendment claims against the School Board for $272,425. He has now brought a cause of action claiming that the employer discriminated against him, in violation of 42 USC Sec. 1981, a critical anti-discrimination statute, by entering into a more favorable settlement, namely $490,000, with a white male, Dr. Elfers, who also alleged violations of his First Amendment Rights.
The Eleventh Circuit reviewed the language of the settlement entered into by the parties and determined that it bars the claims Mr. Sherrod seeks to pursue. According to the Eleventh Circuit, the alleged discriminatory actions of the school board in offering a lower amount for settlement than was offered to a similarly situated individual of a different race, occurred prior to the parties' entering into a settlement agreement, and are therefore implicitly settled. By entering into the agreement, and accepting the benefit of the bargain, Mr. Sherrod is not allowed to reopen litigation because he now doesn't like the terms.
This case offers two important lessons for those settling cases. First, one cannot re-open a case merely because new information comes available later that suggests that settlement is not all that can be achieved.Two, a written settlement agreement of claims often covers any claims that might arise during the negotiations themselves. A party anticipating a need to preserve rights to engage in post-settlement litigation along these lines will need to craft a settlement agreement reflecting these rights--although it is highly unlikely any represented entity would contemplate entering into a settlement agreement giving the plaintiff rights to reopen a case if he is later unhappy with the settlement.
PS: As an aside, note that this case does not deal with the case where a settlement is achieved through fraud or unlawful coercion. In this case, the 11th circuit recorded no allegation that the School Board engaged in either of these wrongs in order to get Mr. Sherrod to settle his case. If the School Board had, I am certain the result of the case would have been entirely different.
Tuesday, December 24, 2013
Response to Delaware Governor Markell Civic Engagement Message:Its Engagement, not Just Elections
This week Delaware Governor Markell's weekly weekly message relates to civic engagement. He is specifically concerned about " attracting a new generation of our best and brightest to be involved in public service and engaged in shaping public policy." He said that in his recent visits to schools, he has " emphasized that civic engagement is one of the most powerful ways to give back to your community."
This address mirrors comments I have heard from a number of politicians, including from President Obama and Vice President Biden, namely encouraging young folks to appreciate the value of running for office.and pursuing political careers.
I think politicians feel the need to motivate folks to engage in electoral politics because so many bright young people are scared off due what appears to be a very bitter partisan nasty environment. I, for instance, always envisioned myself running for office. However, the notion that an opponent would devote immense energy examining my experiences looking for contradictions or something with which to embarrass me is almost enough to make me run in a cave. Indeed, many don't want the scrutiny.
However, having floated in an out of political arenas for the past twenty years, usually in the context of some sort of involvement in a campaign or advocacy for legislation or other government action, I have not found much need to worry that we lack members of the public motivated to serve in public service roles. My observation is that even school board elections remain competitive races.
Our state and federal Constitutions (structure of governing bodies) function properly only when the constitution of our body politic involves citizen involvement.
The term "civic engagement" embraces a number of activities. If I recall his work correctly, Robert Putnam's famous "Bowling Alone" argues that true civic engagement comes when members of society are actively involved with their neighbors discussing issues of public concerns and, when necessary, collectively organizing on issues of common concern.
Many, including Fareed Zakaria in The Future of Freedom have pointed out that the term democracy is often used to refer only to whether members of society vote for their political leaders, such that a government could conceivably be a democracy (at least technically) while also being repressive.
The American constitution, however, does not limit the citizens' role to voting. The First Amendment promises us the freedom of religion, speech, press, and assembly. Technically a country could be a democracy without these freedoms, but not our type of democracy.
Supreme Court precedent involves a plethora of disputes surrounding how to interpret these freedoms and their limits. In other words, we wouldn't be America if citizens weren't actively engaged in exercising these rights.
In America's Civic Health Index of 2006, drafted by the National Conference on Citizenship, only 26.7 of Delaware residents engaged in volunteering regularly, and voter turnout was 43% in 2002 and 62% in 2004. These are not good numbers.
In 2012, the Corporation for National and Community Service released revised numbers, finding 24.8% of residents engaged in volunteer service and only 8.9% of residents attended public meetings.
These findings tell me that Governor Markell should be less concerned about whether his citizens will run for his job when he retires, and more concerned about strengthening the democracy and democractic republican character of his population.
In no way is this article directed solely at Governor Markell. As I have said, advocacy towards encouraging young folks towards government service has been made by the likes of Presidents Clinton and Obama as well. And indeed, I don't mean to dismiss the remarks of these politicians, as they are often comments following questions about young folks being scared off by the rough political climate. However, I believe strongly that the a legitimate reversal of the Bowling Alone phenomenon will inherently lead to further interest in government service, and indeed may expand the interest in those positions among individuals of a whole variety of political perspectives.
This address mirrors comments I have heard from a number of politicians, including from President Obama and Vice President Biden, namely encouraging young folks to appreciate the value of running for office.and pursuing political careers.
I think politicians feel the need to motivate folks to engage in electoral politics because so many bright young people are scared off due what appears to be a very bitter partisan nasty environment. I, for instance, always envisioned myself running for office. However, the notion that an opponent would devote immense energy examining my experiences looking for contradictions or something with which to embarrass me is almost enough to make me run in a cave. Indeed, many don't want the scrutiny.
However, having floated in an out of political arenas for the past twenty years, usually in the context of some sort of involvement in a campaign or advocacy for legislation or other government action, I have not found much need to worry that we lack members of the public motivated to serve in public service roles. My observation is that even school board elections remain competitive races.
Our state and federal Constitutions (structure of governing bodies) function properly only when the constitution of our body politic involves citizen involvement.
The term "civic engagement" embraces a number of activities. If I recall his work correctly, Robert Putnam's famous "Bowling Alone" argues that true civic engagement comes when members of society are actively involved with their neighbors discussing issues of public concerns and, when necessary, collectively organizing on issues of common concern.
Many, including Fareed Zakaria in The Future of Freedom have pointed out that the term democracy is often used to refer only to whether members of society vote for their political leaders, such that a government could conceivably be a democracy (at least technically) while also being repressive.
The American constitution, however, does not limit the citizens' role to voting. The First Amendment promises us the freedom of religion, speech, press, and assembly. Technically a country could be a democracy without these freedoms, but not our type of democracy.
Supreme Court precedent involves a plethora of disputes surrounding how to interpret these freedoms and their limits. In other words, we wouldn't be America if citizens weren't actively engaged in exercising these rights.
In America's Civic Health Index of 2006, drafted by the National Conference on Citizenship, only 26.7 of Delaware residents engaged in volunteering regularly, and voter turnout was 43% in 2002 and 62% in 2004. These are not good numbers.
In 2012, the Corporation for National and Community Service released revised numbers, finding 24.8% of residents engaged in volunteer service and only 8.9% of residents attended public meetings.
These findings tell me that Governor Markell should be less concerned about whether his citizens will run for his job when he retires, and more concerned about strengthening the democracy and democractic republican character of his population.
In no way is this article directed solely at Governor Markell. As I have said, advocacy towards encouraging young folks towards government service has been made by the likes of Presidents Clinton and Obama as well. And indeed, I don't mean to dismiss the remarks of these politicians, as they are often comments following questions about young folks being scared off by the rough political climate. However, I believe strongly that the a legitimate reversal of the Bowling Alone phenomenon will inherently lead to further interest in government service, and indeed may expand the interest in those positions among individuals of a whole variety of political perspectives.
Wednesday, July 10, 2013
Can I Get a Lawyer -- or Some Legal Information, Please? (Some Comments on Gideon v. Wainwright and the Civil Gideon Movement)
March 18, 2013 was the 50th anniversary of the decision of Gideon v. Wainwright, the Supreme Court decision that ruled that under the Sixth Amendment to the Constitution, individuals who are indigent and charge with criminal offenses have a Constitutional right to appointed counsel. Various jurisdictions have extended this right to certain additional offenses. and there have been cases extending to certain family law proceedings. There is now afoot a "Civil Gideon" movement, designed to expand the right of access to counsel to indigent individuals involved in adversarial civil proceedings involving "basic human needs."
I had the opportunity to learn a little about the Civil Gideon movement when I attended on April 19, 2013 a DC Judicial and Bar Conference session entitled "Implementing a Civil Right to Counsel: What it Would Look Like?" As I explain, this discussion and implications are critical to evaluating the protection of individual rights and the success of our judicial system.
A. Background
In Gideon v. Wainwright, the Court was asked to determine whether the defendant to criminal charges in a Florida state court has a right (under the Sixth amendment) to appointed counsel if he or she can not afford one. The Sixth Amendment states, in part, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial... ....and to have the assistance of counsel for his defense." In an earlier case, as explained in the Gideon decision, Betts v Brady, 16 US 455 (1942), the Supreme Court determined that the Sixth Amendment Constitutional right to counsel applied only to cases in federal courts, as a right to counsel was not a fundamental right essential to the Constitutional right to a fair trial. In Gideon, the Court reconsidered that and determined that the right to counsel is indeed a right in cases at both the state and federal level.
The Gideon Court thus reinforced the notion that that which is fundamental and essential to a fair trial must be provided to all citizens regardless of whether the case is in federal court or state court--and critical to our present discussion, it reinforced the notion that "right to the aid of counsel is of this fundamental character"--namely fundamental to a fair trial. Therefore, "one who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him." A series of subsequent cases at the Supreme Court and lower level have specified further which types of cases qualify in the Sixth Amendment right to counsel, and which don't. For instance, in 1981, in Lassiter v. Department of Social Services, 452 US 18, the Supreme Court determined that the Fourteenth Amendment did not require a state to appoint counsel to represent a mother in a termination of parental rights proceeding. In 2011, the Supreme Court determined in Turner v. Rogers that a civil contempt proceeding is one category of case in which no right to appointed counsel necessarily attaches.
B. The Civil Gideon Movement
As is clear from the progeny of Gideon and Lassiter, the Constitution does not require representation in all litigation that affects basic human needs. The Civil Gideon Movement is designed to legally and administratively provide remedies not required under the Constitution. For instance, in California, under the Sargent Shriver Civil Counsel Act, a variety of pilot projects have begun to provide low-income litigants with legal issues affecting basic human need, such as evictions or termination of parental rights, with access to appointed counsel. Specified in the statute are the following examples of human needs: housing-related matters, domestic violence, civil harassment restraining orders, probate conservatorships. Some pilots cover all of these issues and some do not. As was indicated in the March program, much of the success or failure of these pilot projects depend on the ability to provide such counsel in a manner that is politically affordable.
In the March program, we learned that the housing court pilot has caused courts to grant landlords the right to evict tenants in 2/3 fewer occasions, thus suggesting that the presence of counsel can in some cases assist with the amicable resolution of landlord-tenant disputes and in other cases prevent abusive evictions.
Although I have not studied the situation in California, based on my observations in Baltimore, I can provide an illustration that I highly suspect to be fairly routine. A tenant has a complaint about the landlord's failure to properly address a critical issue such as heat, roaches, or faulty plumbing. The tenant,not knowing the protocols regarding rent escrow, unilaterally withholds rent to send a message to the landlord. The landlord then seeks eviction on the basis of failure to pay rent. Had the tenant had a lawyer, he or she would have learned that the proper protocol, at least in Baltimore, is to file a complaint at housing court and thus be permitted to put rent in rent escrow until the problem is remedied. Simply failing to pay rent entirely is referred to as an illegal self-help measure that is not legally acceptable. Not having studied California law, I am unaware if this precise situation is what is to account for the decrease in evictions, but I highly suspect that this analogy is probably a useful one.
The conference session also discussed the obvious policy issues that are being considered by the California and other legislatures. For instance, is 200% of poverty the correct income level under which the right to counsel applies? What about someone who is not poor but clearly can't afford private counsel? Also, what about the 1/3 of California landlord tenant cases where the landlord is not represented? Is it fair to have a tenant represented when the landlord is not? Catherine Carr of the Philadelphia Bar Association pointed out in the session that a civil right to counsel could simply overburden Legal Aid and the Public Defenders offices, which are already overburdened. These problems are elucidated will in Karen Houppert's 2013 book, Chasing Gideon: The Elusive Quest for Poor People's Justice, which illustrates the numerous ways in which our criminal justice system is failing to provide individuals accused of criminal activity with speedy and fair trials or adequate representation, notwithstanding the good intentions of a well intentioned public defender system that is simply overburdened and underfunded. (Of course, that is an over-simplification.).
C.Clarifying that the Civil Gideon Movement is not a Movement to Amend Our Constitution
It has been three months since the conference and in numerous discussions concerning the Civil Gideon movement and my interest in it, I have been confronted with skeptical questions, mostly along these lines, "with this conservative court, how do you anticipate convincing the Court that there is a Constitutional right to counsel in civil cases?" This question belies a misunderstanding of the movement, and of our legal system.
The Sixth Amendment to the Constitution specifies in its opening line that it relates to criminal prosecutions. Thus, the Sixth Amendment to the Constitution only provides accused individuals with the right to the assistance of counsel in criminal prosecutions. Thus, any case not deemed a criminal prosecution would not be one in which a litigant would have rights under this Amendment. I am not aware of anyone arguing that all state action affecting a person's rights falls under the context criminal.
I am also not aware of any efforts to amend the Constitution on this issue.
I clarify this because some of the level of surprise I get when I reference a civil right to counsel comes from the misunderstanding that civil rights stem only from our Constitution. Although it is theoretically accurate to say this, it is such an oversimplification that it is actually untrue. As I see it, in our Republic, rights stem from (1) the Constitution, (2)laws instituted by Congress and State legislatures, and (3) administrative practices by government agencies, such as courts.
For instance, rights to be free from certain forms of discrimination and harassment in the workplace do not stem from the Constitution, but from laws enacted by federal and state legislatures. Additionally, various state, county, and municipal laws and procedures provide citizens formal mechanisms, such as a public comment period, within which to publicize their position on various courses of government conduct--issues ranging from statewide legislation to variances (exceptions to a zoning ordinance often granted to an isolated dwelling or establishment.)
Thus, these rights only stem from the Constitution in so far as the Constitution does not prohibit federal, state, and municipal legislatures from enacting laws on these matters.
This clarification is crucial to understand that the Civil Gideon movement is one that must be seen as radical. Although there may be some who seek to drastically alter the social contract between the legal community and the population at large, most in the movement simply want to expand the right to counsel to situations where counsel can make a difference in one's essential rights.
D. The Right to Counsel v. the Right to Legal Information
Elsewhere in this blog I have spoken about my view that the availability of legal education and information for public consumption can drastically reduce the burden on the need for counsel. Indeed, advocates of unbundled legal services point out that it is sometimes the case that a litigant has the ability to act in a pro se mater but may still need the periodic consultation to get his or her bearings or obtain certain legal information. Recent articles on unbundled legal services have illustrated ways in which litigants in certain cases can save thousands of dollars in legal fees by getting legal guidance on discrete aspects of their case, such as the filing of a complaint or the proper guidance as to what is legally actionable and what is not. I am certainly hopeful that the Civil Gideon Movement will advocate for educational programming or discrete assistance programs that provide assistance to folks when it is fiscally impossible to provide full legal assistance in all matters so desired. Additionally, unbundled legal services will allow the legal community to provide affordable assistance to those individuals not impoverished enough for free legal help but not wealthy enough for full representation.
I had the opportunity to learn a little about the Civil Gideon movement when I attended on April 19, 2013 a DC Judicial and Bar Conference session entitled "Implementing a Civil Right to Counsel: What it Would Look Like?" As I explain, this discussion and implications are critical to evaluating the protection of individual rights and the success of our judicial system.
A. Background
In Gideon v. Wainwright, the Court was asked to determine whether the defendant to criminal charges in a Florida state court has a right (under the Sixth amendment) to appointed counsel if he or she can not afford one. The Sixth Amendment states, in part, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial... ....and to have the assistance of counsel for his defense." In an earlier case, as explained in the Gideon decision, Betts v Brady, 16 US 455 (1942), the Supreme Court determined that the Sixth Amendment Constitutional right to counsel applied only to cases in federal courts, as a right to counsel was not a fundamental right essential to the Constitutional right to a fair trial. In Gideon, the Court reconsidered that and determined that the right to counsel is indeed a right in cases at both the state and federal level.
The Gideon Court thus reinforced the notion that that which is fundamental and essential to a fair trial must be provided to all citizens regardless of whether the case is in federal court or state court--and critical to our present discussion, it reinforced the notion that "right to the aid of counsel is of this fundamental character"--namely fundamental to a fair trial. Therefore, "one who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him." A series of subsequent cases at the Supreme Court and lower level have specified further which types of cases qualify in the Sixth Amendment right to counsel, and which don't. For instance, in 1981, in Lassiter v. Department of Social Services, 452 US 18, the Supreme Court determined that the Fourteenth Amendment did not require a state to appoint counsel to represent a mother in a termination of parental rights proceeding. In 2011, the Supreme Court determined in Turner v. Rogers that a civil contempt proceeding is one category of case in which no right to appointed counsel necessarily attaches.
B. The Civil Gideon Movement
As is clear from the progeny of Gideon and Lassiter, the Constitution does not require representation in all litigation that affects basic human needs. The Civil Gideon Movement is designed to legally and administratively provide remedies not required under the Constitution. For instance, in California, under the Sargent Shriver Civil Counsel Act, a variety of pilot projects have begun to provide low-income litigants with legal issues affecting basic human need, such as evictions or termination of parental rights, with access to appointed counsel. Specified in the statute are the following examples of human needs: housing-related matters, domestic violence, civil harassment restraining orders, probate conservatorships. Some pilots cover all of these issues and some do not. As was indicated in the March program, much of the success or failure of these pilot projects depend on the ability to provide such counsel in a manner that is politically affordable.
In the March program, we learned that the housing court pilot has caused courts to grant landlords the right to evict tenants in 2/3 fewer occasions, thus suggesting that the presence of counsel can in some cases assist with the amicable resolution of landlord-tenant disputes and in other cases prevent abusive evictions.
Although I have not studied the situation in California, based on my observations in Baltimore, I can provide an illustration that I highly suspect to be fairly routine. A tenant has a complaint about the landlord's failure to properly address a critical issue such as heat, roaches, or faulty plumbing. The tenant,not knowing the protocols regarding rent escrow, unilaterally withholds rent to send a message to the landlord. The landlord then seeks eviction on the basis of failure to pay rent. Had the tenant had a lawyer, he or she would have learned that the proper protocol, at least in Baltimore, is to file a complaint at housing court and thus be permitted to put rent in rent escrow until the problem is remedied. Simply failing to pay rent entirely is referred to as an illegal self-help measure that is not legally acceptable. Not having studied California law, I am unaware if this precise situation is what is to account for the decrease in evictions, but I highly suspect that this analogy is probably a useful one.
The conference session also discussed the obvious policy issues that are being considered by the California and other legislatures. For instance, is 200% of poverty the correct income level under which the right to counsel applies? What about someone who is not poor but clearly can't afford private counsel? Also, what about the 1/3 of California landlord tenant cases where the landlord is not represented? Is it fair to have a tenant represented when the landlord is not? Catherine Carr of the Philadelphia Bar Association pointed out in the session that a civil right to counsel could simply overburden Legal Aid and the Public Defenders offices, which are already overburdened. These problems are elucidated will in Karen Houppert's 2013 book, Chasing Gideon: The Elusive Quest for Poor People's Justice, which illustrates the numerous ways in which our criminal justice system is failing to provide individuals accused of criminal activity with speedy and fair trials or adequate representation, notwithstanding the good intentions of a well intentioned public defender system that is simply overburdened and underfunded. (Of course, that is an over-simplification.).
C.Clarifying that the Civil Gideon Movement is not a Movement to Amend Our Constitution
It has been three months since the conference and in numerous discussions concerning the Civil Gideon movement and my interest in it, I have been confronted with skeptical questions, mostly along these lines, "with this conservative court, how do you anticipate convincing the Court that there is a Constitutional right to counsel in civil cases?" This question belies a misunderstanding of the movement, and of our legal system.
The Sixth Amendment to the Constitution specifies in its opening line that it relates to criminal prosecutions. Thus, the Sixth Amendment to the Constitution only provides accused individuals with the right to the assistance of counsel in criminal prosecutions. Thus, any case not deemed a criminal prosecution would not be one in which a litigant would have rights under this Amendment. I am not aware of anyone arguing that all state action affecting a person's rights falls under the context criminal.
I am also not aware of any efforts to amend the Constitution on this issue.
I clarify this because some of the level of surprise I get when I reference a civil right to counsel comes from the misunderstanding that civil rights stem only from our Constitution. Although it is theoretically accurate to say this, it is such an oversimplification that it is actually untrue. As I see it, in our Republic, rights stem from (1) the Constitution, (2)laws instituted by Congress and State legislatures, and (3) administrative practices by government agencies, such as courts.
For instance, rights to be free from certain forms of discrimination and harassment in the workplace do not stem from the Constitution, but from laws enacted by federal and state legislatures. Additionally, various state, county, and municipal laws and procedures provide citizens formal mechanisms, such as a public comment period, within which to publicize their position on various courses of government conduct--issues ranging from statewide legislation to variances (exceptions to a zoning ordinance often granted to an isolated dwelling or establishment.)
Thus, these rights only stem from the Constitution in so far as the Constitution does not prohibit federal, state, and municipal legislatures from enacting laws on these matters.
This clarification is crucial to understand that the Civil Gideon movement is one that must be seen as radical. Although there may be some who seek to drastically alter the social contract between the legal community and the population at large, most in the movement simply want to expand the right to counsel to situations where counsel can make a difference in one's essential rights.
D. The Right to Counsel v. the Right to Legal Information
Elsewhere in this blog I have spoken about my view that the availability of legal education and information for public consumption can drastically reduce the burden on the need for counsel. Indeed, advocates of unbundled legal services point out that it is sometimes the case that a litigant has the ability to act in a pro se mater but may still need the periodic consultation to get his or her bearings or obtain certain legal information. Recent articles on unbundled legal services have illustrated ways in which litigants in certain cases can save thousands of dollars in legal fees by getting legal guidance on discrete aspects of their case, such as the filing of a complaint or the proper guidance as to what is legally actionable and what is not. I am certainly hopeful that the Civil Gideon Movement will advocate for educational programming or discrete assistance programs that provide assistance to folks when it is fiscally impossible to provide full legal assistance in all matters so desired. Additionally, unbundled legal services will allow the legal community to provide affordable assistance to those individuals not impoverished enough for free legal help but not wealthy enough for full representation.
Tuesday, July 9, 2013
Compliments to the Quality TV Debate Show; Hope the Rest Will Learn
Sunday night on C-Span, for the first time in a long time, I watched a debate show that was worthwhile to watch, namely, The Munk Debates.It involved a debate on he subject of progressive taxation with debaters George Papandreou and Paul Krugman advocating for the motion and Newt Gingrich and Arthur B Laffer arguing against the motion. The presentations were fairly reasoned, thoughtful, and challenging. Also, familiar with seeing Krugman and Gingrich in various televised interviews, I was particularly interested to hear whaat Papandreou and Laffer might bring to the table, both of whom I had some general familiarity but no direct exposure to their commentaries. More importantly, the structured interview format involving these latter gentleman required, in my opinion, Krugman and Gingrich to resort to much more intelligent and thoughtful arguments than might be found on the poor excuse for debate programs often found on cable news.
The Munk Debates reminded me of The Doha Debates, which I thoroughly enjoyed, which in turn reminded me of Firing Line. I am not holding my breath, but I am still praying that The Munk Debates might lead to other high quality debate shows. I have sadly observed a lack of inspired action following the public's interest in Firing Line and Doha.
I don't know if Firing Line was the first debate show, but I am pretty sure it is the most prominent one. It had various formats, including William Buckley interviewing and debating an individual whose views with which he vehemently disagreed, and debate panels in which teams stood for or against propositions, such as proposed legislative ideas. An example might be, "Resolved: students wishing to send their students to non-public schools should be given vouchers" or "Resolved: Intelligent Design should be taught in biology class alongside evolution."
Sadly, despite hours each day over numerous networks devoted to debate on issues of public concern, most debate shows I have seen resemble the infamous Crossfire in which partisans simply politely yelled at each other. Ironically, despite the fact that the show was taken off the air after this very criticism was highlighted on the show by Jon Stewart, most debate shows on tv seem to resemble the Crossfire, and are even worse. Too often serious thinkers and politicians are asked to debate their subject area over the course of six minute segments, leaving aside any options for thoughtfulness. Countless segments end with hosts asserting, "these issues deserve more time and we hope you guys will come back to continue the conversation." After years of watching these debate shows, I have yet to observe the continuation of any of those conversations.
This is an extremely serious problem. These shows give the impression that reasonable debate and analysis is represented by the assertion of a grandiose theory, a few factual assertions that are in keeping with the theory, and an insulting characterization of the opposing perspective. This shouldn't be par for the course in candidate debates, but it is even more insulting when non-politician "experts" are asked to engage in such nonsense.
In the interest of advancing thought in our republic, it is critical we recognize the distinction between the two kinds of programs. After all, William Buckley did not shy away from expressing his outrage at the views of his opponents, and often would say things to give the impression that he desired to belittle his adversary. However, in each program I watched, each comment of this sort was followed by an opportunity for his opponent to express his views, and with probing questions by Buckley that indicated a genuine attempt to understand his opponent's position and/or argument. Also, whether genuine or not, Buckley suggested that offered his guests the opportunity to alter his own perspective.
This approach, over that of the Crossfire approach, teaches critical moral lessons needed in a democracy. First, it teaches that those holding opposing political views deserve one's attention, as their viewpoint is not as simplistic and thoughtless as might be initially thought but often come from a moral center deserving of some recognition. Second, it teaches that one can learn from one's political opponents. Third, it teaches that legitimate political decisions are not simplistic applications of global concepts, but require thinking through the complex and sometimes competing values. Finally, for the public, these shows illustrate that public policy involves complex analysis and is not made up of compiling right opinion, or transmission of revelation.
PS: Although this essay is about the debate show, I can't help but mention the very useful related category, the panel discussion. One of my favorite series is Ethics in America, which was a ten part series aired on PBS between 1988 and 1989 featuring panel discussions of various professionals discussing the ethical implications of various hypothetical. Indeed the website on which one can purchase the the videos asserts that the discourse qualify as Socratic. Panelists have included legal experts such as Floyd Abrams and Joseph Califano, business experts such as Warren Buffet and T Boone Pickens, journalist experts such as Dan Rather and Peter Jennings, and members of the legal community such as Rudy Giuliani and Justice Antonin Scalia. Shows like these reveal to the public the complexity of thought required for public policy and even decision-making in the worlds of business, journalism, and law. Most importantly, as with the extensive debates described above, the audience effectively participates (through observation) the analytical process discussed, and is thus made to appreciate how non-foreign it is.
The Munk Debates reminded me of The Doha Debates, which I thoroughly enjoyed, which in turn reminded me of Firing Line. I am not holding my breath, but I am still praying that The Munk Debates might lead to other high quality debate shows. I have sadly observed a lack of inspired action following the public's interest in Firing Line and Doha.
I don't know if Firing Line was the first debate show, but I am pretty sure it is the most prominent one. It had various formats, including William Buckley interviewing and debating an individual whose views with which he vehemently disagreed, and debate panels in which teams stood for or against propositions, such as proposed legislative ideas. An example might be, "Resolved: students wishing to send their students to non-public schools should be given vouchers" or "Resolved: Intelligent Design should be taught in biology class alongside evolution."
Sadly, despite hours each day over numerous networks devoted to debate on issues of public concern, most debate shows I have seen resemble the infamous Crossfire in which partisans simply politely yelled at each other. Ironically, despite the fact that the show was taken off the air after this very criticism was highlighted on the show by Jon Stewart, most debate shows on tv seem to resemble the Crossfire, and are even worse. Too often serious thinkers and politicians are asked to debate their subject area over the course of six minute segments, leaving aside any options for thoughtfulness. Countless segments end with hosts asserting, "these issues deserve more time and we hope you guys will come back to continue the conversation." After years of watching these debate shows, I have yet to observe the continuation of any of those conversations.
This is an extremely serious problem. These shows give the impression that reasonable debate and analysis is represented by the assertion of a grandiose theory, a few factual assertions that are in keeping with the theory, and an insulting characterization of the opposing perspective. This shouldn't be par for the course in candidate debates, but it is even more insulting when non-politician "experts" are asked to engage in such nonsense.
In the interest of advancing thought in our republic, it is critical we recognize the distinction between the two kinds of programs. After all, William Buckley did not shy away from expressing his outrage at the views of his opponents, and often would say things to give the impression that he desired to belittle his adversary. However, in each program I watched, each comment of this sort was followed by an opportunity for his opponent to express his views, and with probing questions by Buckley that indicated a genuine attempt to understand his opponent's position and/or argument. Also, whether genuine or not, Buckley suggested that offered his guests the opportunity to alter his own perspective.
This approach, over that of the Crossfire approach, teaches critical moral lessons needed in a democracy. First, it teaches that those holding opposing political views deserve one's attention, as their viewpoint is not as simplistic and thoughtless as might be initially thought but often come from a moral center deserving of some recognition. Second, it teaches that one can learn from one's political opponents. Third, it teaches that legitimate political decisions are not simplistic applications of global concepts, but require thinking through the complex and sometimes competing values. Finally, for the public, these shows illustrate that public policy involves complex analysis and is not made up of compiling right opinion, or transmission of revelation.
PS: Although this essay is about the debate show, I can't help but mention the very useful related category, the panel discussion. One of my favorite series is Ethics in America, which was a ten part series aired on PBS between 1988 and 1989 featuring panel discussions of various professionals discussing the ethical implications of various hypothetical. Indeed the website on which one can purchase the the videos asserts that the discourse qualify as Socratic. Panelists have included legal experts such as Floyd Abrams and Joseph Califano, business experts such as Warren Buffet and T Boone Pickens, journalist experts such as Dan Rather and Peter Jennings, and members of the legal community such as Rudy Giuliani and Justice Antonin Scalia. Shows like these reveal to the public the complexity of thought required for public policy and even decision-making in the worlds of business, journalism, and law. Most importantly, as with the extensive debates described above, the audience effectively participates (through observation) the analytical process discussed, and is thus made to appreciate how non-foreign it is.
Sunday, July 7, 2013
What Every Law Student Really Needs to Know is what Everyone Needs to Read
In What Every Law Student Really Needs to Know: An Introduction to the Study of Law (Aspen Publishers, 2009), Tracey E. George and Suzanna Sherry have written an excellent introduction to the American legal system. Although the book is designed to be read by individuals seeking to succeed in law school, I believe the text would be valuable for anyone looking to obtain a relatively quick introduction to our legal system.
The six chapters of this text total only 200 pages, but yet I would encourage every reader to read this book. Reading it over the course of a six week period rather than in a speedy fashion would allow the principles in each chapter to sink in--mostly because each chapter covers a distinct category of ideas worthy of mastery.
I am particularly attracted to this book because I think it can be used by various types of participants in the life cycle of our legal system, and through making this point, I will come to reveal the content of this text.
Chapter 3 the chapter most valuable to all. It is properly titled "the Structure of Our Legal System," explaining the nature of our adversarial system and the various layers of our court system. There are numerous critical facts presented in this chapter that remain relatively unknown and under-appreciated by law students. For one, many law students spend numerous hours studying the intricacies of federal civil procedure necessary to maintain the fairness of our adversarial court system, without thinking at all about any alternative systems, such as inquisitorial system, in place in many countries of the world. The chapter also illustrates the distinction between common law, often referred to a judge-made law, and civil law, which concentrates on statutory interpretation more than precedent.
Understanding these distinctions is critical to all participants in our legal system, and our legal system is often injured when participants don't fully appreciate them. The first set of participants who should read this chapter is the class of folks for whom this text is written, namely soon-to-be law students., whose understanding of the context within which substantive legal decision are made will shape their ability to manipulate the information provided them. Analogously, the owner of the firm for which I work has long held that law students should be made to read dissenting decisions and the legal briefs of the arguing parties. This would allow students to better appreciate the decisions judges must make, and the alternative legal approaches available to them. In short, it is hard to understand why methodologies and systems are as they are without examining alternatives.
Chapter 2,Government and Law discusses the structure of our government in a way that replicates what some of us learn in middle and high school, namely presenting the three branches of government, along with the role of administrative agencies and restatements of law,thus placing the judicial process in its greater context. Although the facts presented in chapter 2 replicate what might be taught at a younger age, the author's motivation to educate law students gives the reader the context needed to consider the structure of our government, as its relevant to case law.
Chapter 5, Legal Toolbox: Concepts serves as both a critical vocabulary lesson and a short introduction to various doctrines that affect how courts interpret facts and law, such as precedent, burdens of proof, and standards of review. I would advocate all individuals contemplating any more-than-isolated interaction with a judicial decision to review this chapter. Much of the chapter is devoted to explaining what it means for litigants and judges to consider what rules apply to a specific case and by what standard those rules will be judged. Appreciating the analytic process allows readers to agree and disagree with judicial opinions in a more nuanced way. Chapter 4 demonstrates how to review cases, and may be much more illuminating after reviewing chapter 5. Chapters 1 and 6 demonstrates how these concepts are applied during the law school experience, but anyone regularly interacting with lawyers might find both extremely illuminating.
In reviewing what I just wrote, I must now wonder what percentage of my readers are bored away by the content of this article. Indeed, the process of studying law, reviewing cases, and choosing which doctrines are relevant to a set of facts can seem particularly frustrating and unexciting, and perhaps completely removed from the original attraction to the legal process: to seek a moral and just resolution to problems. However, it would be impossible to establish a rule of law that could be applied fairly to millions without such a developed structure. Indeed, I invite any reader to consider how they would devise such a system. I venture to guess that any system devised will establish rules and standards for where the parties present their disputes, how they present their disputes, what standards will be used in evaluating the positions of the parties, and to what extent other judicial decisions would or would not impact the approach taken by the judge.
Most of us are cognizant of certain sets of participants in our legal process, namely litigants, attorneys, and judges, but the general public participates as well. The general public serves as jurors and potential litigants who must decide whether to employ the courts in their efforts to resolve disputes in which they find themselves. Trust in and knowledge of the courts greatly affect the priority individuals place in using the courts to resolve their disputes, over less noble and sometimes violent means.
Even when not litigants, lawyers, judges, or jurors, citizens play numerous roles essential to the system,which makes knowledge of the system critical for citizenship. Citizens influence the court system when they vote. In many jurisdictions, they vote for judges directly and in other jurisdictions, like in the federal system, they vote for executives and legislators that select the judges. Voters have similar influence over those who serve as Attorney Generals at the state and federal level, and thus effectively have a say over what approach the government takes to prosecuting criminal complaints.
Beyond this, voters impact what laws are passed either through direct referendum or through their selection of legislators and chief executives. Indeed, citizens greatly impact the judicial system when they lobby for certain policies, vote for particular candidates, and even when they engage in discourse about the legal process to their fellow citizens.
Elsewhere on this blog have I discussed the critical role a robust and trusted judiciary plays in a civil and trusted society. Indeed, we can only trust what we understand.
Furthermore, in a representative democracy, as earlier discussed, the citizens have a critical role in shaping policy and protocol. Therefore, understanding the judicial system is necessary for citizens to reasonable shape the judicial process. I have had many occasions to witness public opinion shaped by incorrect assertions or misunderstanding about the legal system, thus causing popular support for or against an unnecessary cause. A recent example might be the flurry of legislative support a few years ago for laws prohibiting the judiciary from relying on sharia law or other foreign law in deciding cases notwithstanding the lack of real world cases of American Judges making decisions contrary to the American legal system. I am suspect that there are many cases where the American public was up in arms over erringly alleged infractions by our judiciary. Such mistakes can only be addressed by substantive public education over our legal system and how it works.
The six chapters of this text total only 200 pages, but yet I would encourage every reader to read this book. Reading it over the course of a six week period rather than in a speedy fashion would allow the principles in each chapter to sink in--mostly because each chapter covers a distinct category of ideas worthy of mastery.
I am particularly attracted to this book because I think it can be used by various types of participants in the life cycle of our legal system, and through making this point, I will come to reveal the content of this text.
Chapter 3 the chapter most valuable to all. It is properly titled "the Structure of Our Legal System," explaining the nature of our adversarial system and the various layers of our court system. There are numerous critical facts presented in this chapter that remain relatively unknown and under-appreciated by law students. For one, many law students spend numerous hours studying the intricacies of federal civil procedure necessary to maintain the fairness of our adversarial court system, without thinking at all about any alternative systems, such as inquisitorial system, in place in many countries of the world. The chapter also illustrates the distinction between common law, often referred to a judge-made law, and civil law, which concentrates on statutory interpretation more than precedent.
Understanding these distinctions is critical to all participants in our legal system, and our legal system is often injured when participants don't fully appreciate them. The first set of participants who should read this chapter is the class of folks for whom this text is written, namely soon-to-be law students., whose understanding of the context within which substantive legal decision are made will shape their ability to manipulate the information provided them. Analogously, the owner of the firm for which I work has long held that law students should be made to read dissenting decisions and the legal briefs of the arguing parties. This would allow students to better appreciate the decisions judges must make, and the alternative legal approaches available to them. In short, it is hard to understand why methodologies and systems are as they are without examining alternatives.
Chapter 2,Government and Law discusses the structure of our government in a way that replicates what some of us learn in middle and high school, namely presenting the three branches of government, along with the role of administrative agencies and restatements of law,thus placing the judicial process in its greater context. Although the facts presented in chapter 2 replicate what might be taught at a younger age, the author's motivation to educate law students gives the reader the context needed to consider the structure of our government, as its relevant to case law.
Chapter 5, Legal Toolbox: Concepts serves as both a critical vocabulary lesson and a short introduction to various doctrines that affect how courts interpret facts and law, such as precedent, burdens of proof, and standards of review. I would advocate all individuals contemplating any more-than-isolated interaction with a judicial decision to review this chapter. Much of the chapter is devoted to explaining what it means for litigants and judges to consider what rules apply to a specific case and by what standard those rules will be judged. Appreciating the analytic process allows readers to agree and disagree with judicial opinions in a more nuanced way. Chapter 4 demonstrates how to review cases, and may be much more illuminating after reviewing chapter 5. Chapters 1 and 6 demonstrates how these concepts are applied during the law school experience, but anyone regularly interacting with lawyers might find both extremely illuminating.
In reviewing what I just wrote, I must now wonder what percentage of my readers are bored away by the content of this article. Indeed, the process of studying law, reviewing cases, and choosing which doctrines are relevant to a set of facts can seem particularly frustrating and unexciting, and perhaps completely removed from the original attraction to the legal process: to seek a moral and just resolution to problems. However, it would be impossible to establish a rule of law that could be applied fairly to millions without such a developed structure. Indeed, I invite any reader to consider how they would devise such a system. I venture to guess that any system devised will establish rules and standards for where the parties present their disputes, how they present their disputes, what standards will be used in evaluating the positions of the parties, and to what extent other judicial decisions would or would not impact the approach taken by the judge.
Most of us are cognizant of certain sets of participants in our legal process, namely litigants, attorneys, and judges, but the general public participates as well. The general public serves as jurors and potential litigants who must decide whether to employ the courts in their efforts to resolve disputes in which they find themselves. Trust in and knowledge of the courts greatly affect the priority individuals place in using the courts to resolve their disputes, over less noble and sometimes violent means.
Even when not litigants, lawyers, judges, or jurors, citizens play numerous roles essential to the system,which makes knowledge of the system critical for citizenship. Citizens influence the court system when they vote. In many jurisdictions, they vote for judges directly and in other jurisdictions, like in the federal system, they vote for executives and legislators that select the judges. Voters have similar influence over those who serve as Attorney Generals at the state and federal level, and thus effectively have a say over what approach the government takes to prosecuting criminal complaints.
Beyond this, voters impact what laws are passed either through direct referendum or through their selection of legislators and chief executives. Indeed, citizens greatly impact the judicial system when they lobby for certain policies, vote for particular candidates, and even when they engage in discourse about the legal process to their fellow citizens.
Elsewhere on this blog have I discussed the critical role a robust and trusted judiciary plays in a civil and trusted society. Indeed, we can only trust what we understand.
Furthermore, in a representative democracy, as earlier discussed, the citizens have a critical role in shaping policy and protocol. Therefore, understanding the judicial system is necessary for citizens to reasonable shape the judicial process. I have had many occasions to witness public opinion shaped by incorrect assertions or misunderstanding about the legal system, thus causing popular support for or against an unnecessary cause. A recent example might be the flurry of legislative support a few years ago for laws prohibiting the judiciary from relying on sharia law or other foreign law in deciding cases notwithstanding the lack of real world cases of American Judges making decisions contrary to the American legal system. I am suspect that there are many cases where the American public was up in arms over erringly alleged infractions by our judiciary. Such mistakes can only be addressed by substantive public education over our legal system and how it works.
Monday, June 17, 2013
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Tuesday, April 30, 2013
How to Expand Access to Legal Practice: A Response to An Article in the Economist
On
February 2nd, The Economist published a series of articles,
including Guilty
as Charged and The
two-year itch regarding ways in which the cost of legal advice has
increased greatly as a factor of the increased cost of admission to the
practice of law, along with the limitations placed on the access to the right
to practice law. I was asked to comment.
The Economist articles
implicitly raise very serious concerns about access to justice, namely that
various limitations on the practice of law make access to legal representation
and thus legal assistance excessively expensive. I agree with the
articles' articulation of the problems needing confronting, but have slightly
different proposed solutions.
The
Economist points out that "America has more lawyers per person of its
population than any of 29 countries studied (except Greece), and it spends two
to three times as much on its tort system, as a percentage of GDP, as other big
economies (except Italy, where things are nearly as bad)." While
these statistics might suggest an overspending and overlawyering problem,
coupled with too large a legal community, it is also true that according to the
Legal Service Corporation’s October 2005 study, “Documenting the Justice
Gap in America," 50% of those who qualify for LSC funded programs are
turned away due to lack of resources and 80% of the legal needs of the poo go
unaddressed. At a recent conference of the DC Bar, I heard the Executive
Director of Philadelphia's Community Legal Services proclaim the continued
validity of these percentages.
One of
the Economist articles correctly points out that the high cost
of legal education and bar admission makes offering low-cost legal services at
affordable prices a near-impossibility for new lawyers who have large loans to
repay, coupled with existing living and family expenses. The article
effectively recommends that students be allowed to sit for the bar after two
years of law school, rather than three—which is currently the case. Another Economist
article recommends that non-lawyers be allowed own shares of law firms, claiming
that the current prohibition of non-lawyer investment "keeps fees high and
innovation slow."
Both
of these proposals are deserving of our attention. Legal education today
is outrageously expensive and time-consuming. It is particularly expensive for
individuals with family obligations and without financial resources to attend
law school. In the past few months, I have read numerous articles about
the sizable debt confronted by law school graduates. These
articles have been included in diverse publications as the magazine of the DC
Bar, the New York Times, and the Huffington Post.
It is
worth noting that neither of these articles references the suggestion by Milton
Friedman in Capitalism and Freedom, that occupational licensure as a whole be discarded.
Although the book was written in a prior generation, its points are
worthy of our attention.
In
Chapter 9 of Capitalism and Freedom, Milton Friedman argues that professional licensure does
not fulfill its intent to protect the public, but instead creates barriers for
individuals to engage in the professions they wish, serving as a barrier to the
public’s right to voluntarily engage economically with whom they wish.
Friedman
argues that although licensure regimes are designed to protect the public, the
process inevitably creates barriers to practice that are not relevant to
professional competence or the public’s legitimate concerns for safety, and
thus merely serves to restrict competition. He gives the example of
professionals in the early 1950s that required members assure that they were
not communists before being authorized to practice their craft.
Friedman
argues that the medical and law professions’ professional associations limit
access to participation by preventing practitioners who did not graduate from
an accredited professional school, an option only available to those who are
accepted into an accredited professional school, which thus requires graduation
from a recognized four year college. This problem is illustrated by
adults with requisite knowledge and sophistication to practice medicine or law
whose academic background prevents their admission into graduate school.
Friedman’s text gives the
example of political refugees who were experienced trained medical
professionals in their home countries, yet unable to practice their craft and
expertise here. Friedman additionally argues that there are restrictions placed
on doctors on how they may structure their practice, making it harder to offer affordable
medical care.
Friedman raises some
compelling concerns, but proposes an impractical solution. I’m sure we all can
think of examples of individuals suffering professionally due to these
restrictions. For instance, I know someone whose legal understanding is
superb but he is forever restricted in his ability to practice law because he
has not passed a bar examination, mostly due to test tensions that are
irrelevant to his desired transactional law practice. He then sought to open a
paralegal practice that sought to assist practitioners with writing, research,
and administrative matters, but found that he ran the risk of being accused of
practicing law without a license. Someone else I know is extremely
knowledgeable about law but the prohibitions against practicing law without a
license prohibit him from serving as counsel for those friends of his who need
legal help but don’t qualify for assistance from Legal Service Corporation
entities but yet can’t afford licensed counsel.
Friedman’s proposal to
discard law licensure altogether is extremely risky, as it would provide an
avenue for non-lawyers to parade around as lawyers. Friedman argues that
malpractice and fraud law are sufficient to protect the public, but he fails to
consider that tort law can only provide a remedy after a course of bad conduct
and damage, it can’t prevent bad conduct. Licensure, however, has the power to
interfere with the faulty economic relationship in advance. For instance,
absent a licensure system, what would be illegal about my opening a doctor’s
office and pretending to practice medicine based on folk cures and untested
hypothesis I might have about various healing methods? Recently I learned of a
case of a trained lawyer who repeatedly collected fees for services he did not
perform. Removal of his law license is a fairly effective means of
alerting the court and the public that he may not be trusted. Without law
licensure, a successful criminal fraud prosecution would be the only mechanism
available to arrest this person’s fraudulent behavior.
Friedman does, however,
make a great point that only modest corrective measures might not achieve a
sufficient result. I believe Friedman would argue that decreasing the
cost of law school by one-third would only decrease the severity of the
problem, not address it. While a one-third cost reduction would certainly
assist any individual student, failing to address the larger problem of the
hyper-inflation of the cost of law school would require us to repeatedly revisit
this problem very shortly.
Although I would be
uncomfortable with abolishing state-recognized licensure altogether, I would be
comfortable with the reintroduction of the practice of allowing individuals who
did not attend law school to sit for the written bar exam or be examined orally by senior members of the profession, much as President Lincoln
received his law license in September 1836 after an oral examination by a panel
of practicing lawyers. I would also be comfortable with an expanded use of the
pro hac vice process to allow non-lawyers to serve as legal representatives on
a case-by-case basis. My proposal has the benefit of retaining our trustworthy
bar admission methodology, retaining our rules against nonlawyers advertising
as lawyers, while allowing for individuals to obtain legal assistance from more
educated non-lawyers. By making the standard law school optional, yet requiring
potential legal practitioners obligations to obtain certain knowledge
before practicing commercially, this would open the door to diverse legal
education options in addition to the existing 3 year model. I personally would
like to see a reintroduction of law school options that revolve around training
in the context of a series of public interest fellowships, analogous to the
former Antioch College, or a program revolving around the discussion of great
cases, which is what I imagine would be the case in St. John’s College
(Maryland/New Mexico) had a law school.
A third Economist
article The
case against clones, references a lawsuit by a Jacoby &Meyers, LLP
(Jacoby & Myers Law Offices, LLP v. The Presiding Justices of the
First, Second, Third, and Fourth Departments et al., 11:11-cv03387)
designed to permit itself to obtain outside capital "to upgrade technology
and take advantage of scale." The lawsuit seeks a ruling that the First
Amendment (incorporated to the States through the Fourteenth Amendment)
protects the rights of non-lawyers and lawyers to partner or invest together in
the formation of a law firm. Currently, most States' Rules of
Professional Conduct prohibits sharing legal fees with non-lawyers, and
effectively prohibits any professional partnership with a non-lawyer.
On January 9, 2013, the Second Circuit Court of Appeals remanded
the case to the lower court for a determination on the Constitutionality of the
relevant provisions of the Rules of Professional Conduct. To the best of
my knowledge, this case is still pending at the lower court.
I believe a ruling
favoring Jacoby & Meyers, LLP would forever alter the legal profession,
in some good ways and in some bad ways. For instance, if lawyers and
accountants could partner, the tax field would become more effective. If law
firms could invite non-lawyer investors, it might be easier for new lawyers
with good ideas and no cash available to locate start-up capital. Furthermore,
partnerships with non-lawyers would allow attorneys to partner with and offer
stock options to long term paralegals and secretaries, many of whose work is as
essential to a law firm’s profits and success as that work which is
billable.
In the Jacoby and Meyers
case, the Defendants argue, in part, that the limitations at issue “are to
protect the lawyer’s professional judgment” and “to minimize the number of
situations in which lawyers will be motivated by economic incentives rather
than by their client's best interests.”
In my opinion, the most
compelling argument available to Defendants, which is raised in their motion to
dismiss the suit by Jacoby and Meyers, is that law firms run by business
executives are not necessarily bound by the Rules of Professional
Conduct.
Under the Rules of
Professional Conduct, there are numerous professional obligations incumbent on
lawyers that are not required of business owners not engaged in the practice of
law. Defendant’s brief states: “Should a partner …violate the Rules
and cause the lawyer to act against his client’s interests, the partner would
himself be subject to discipline by the state judiciary and risking his license
to practice. …There is no similar deterrent in place to prevent a non-lawyer
investor from attempting to influence a lawyer’s professional judgment for
financial gain (and the reality of the market all but ensures that such
pressures would shortly be brought to bear once the restriction on investment
is lifted).” The brief points to other professional obligations not legally
required of non-lawyers. These positive aspects of professional licensure
should not be thrust aside without care for the consequences.
Friedman makes the
argument that these rules limit the opportunities for individuals of different
expertise to creatively cooperate to make their respective professional
services less expensive to the general public. For instance, as I say above,
the tax field could be more effective if lawyers and accountants partner in a
joint enterprise. Perhaps a family law firm would do well to partner with
a social worker or psychology practice.
As I would be
uncomfortable completely abandoning the professional conduct rules that would
prohibit the situation where a business professional has an economic incentive
to dictate a lawyer’s conduct, much as it appears that insurance companies and
other business professionals have incentives to limit medical professionals’
professional options in treating their patients, I think there is plenty of
room for allowing small partnerships and other inter-professional business
relationships in situations where each professional maintains professional
independence while cooperating economically.
In conclusion, the
Economist writers are correct to raise the cost of legal education and certain
limitations on practice as economic factors that impact the cost of legal
services, and these problems should not be brushed aside but addressed in a
serious manner, perhaps as a discourse essential to preserving the esteem in
which society holds the profession. I hope that regardless of whether my
perspective presented here is adopted by others, it will at least encourage
others to consider their perspectives on what areas of the legal profession
contribute to its services being outside the economic scope of so many
Americans.
Sunday, March 17, 2013
Thoughts About Increasing Civic Learning...From Massachusetts
Today I came across Massachusetts' Senator Richard T. Moore's February 13, 2013 article in the MetroWest Daily News concerning current failings in civic literacy. He highlights that the 2010 National Assessment of Educational Progress in Civics and History reported that one quarter of students were adequately taught civic engagement issues, and less than 10% of eighth graders had knowledge of checks and balances, yet only one third of teachers cover issues of civics in their classes. He targets readers towards a December 2010 report entitled "A Report of the Special Commission on Civic Engagement and Learning," the production of a commission formed in July 2008 by the state legislature, and presents other observations about the lack of civic knowledge in society. His conclusion is that there is a "lack of effective, high quality, student-centered civic learning opportunities in our schools" explaining that " civic learning and democratic engagement are not staples of every student‟s education today, as they have been in the past and must be for our nation‟s future. In too many schools and on too many college campuses, civic learning and democratic engagement are add-ons, rather than an essential part of the core academic mission."
He asserts that prior to the 1960s, the study of civics and the role of the citizen were common in American high schools and are no longer today, replaced with a course on American government. Although I cannot personally attest to what education was offered prior to the 1960s, I can attest that during the time of my schooling and since, much education on democracy has been focused solely on government structure and not on citizen engagement. In my high school and those of my successors, community service has far too often been defined only by contribution of time to service and care projects such as soup kitchen, Habitat for Humanity and park clean ups. Indeed society might break down if students were not encouraged to participate in acts of charity and kindness--but our democratic tradition can also break down if students are not encouraged to consider their role in democratic institutions.
Senator Moore, citing to the Campaign for Civic Mission of Schools, cites to six elements of civic education (or civic learning as he calls it), namely: (1) student-centered classroom instruction in civics, government, history, economics, law and geography; (2) service learning linked to classroom learning; (3) experiential learning; (4) learning through participation in models and simulations of democratic processes; (5) guided
classroom discussion of current issues and events, and (6) meaningful participation in school governance. His website includes citation to a December 2012 report Renewing the Social Compact: A Report of the Special Commission on Civic Engagement and Learning that proposes ways for states and town to incorporate these educational goals. It also presents an analytic way of considering the aspects of civic learning.
I am encouraged to see this discourse on state levels. I am hoping schools curriculum are altered to affect the findings discussed by Senator Moore. I also hope that teachers are given the encouragement and freedom to bring civics into their existing curriculum. A tour through the standard middle school and high school curriculum present numerous opportunities for civic engagement education. For instance, an existing government teacher can have its student consider a social issue, perhaps one they care about, and attend and community meetings of two or more organizations seeking to address the issue and report back on their findings. An English teacher could have their student readers of the Tale of Two Cities, the Scarlet Letter, and the Odyssey consider how the stories influence or reinforce their perspective on life in contemporary America.
He asserts that prior to the 1960s, the study of civics and the role of the citizen were common in American high schools and are no longer today, replaced with a course on American government. Although I cannot personally attest to what education was offered prior to the 1960s, I can attest that during the time of my schooling and since, much education on democracy has been focused solely on government structure and not on citizen engagement. In my high school and those of my successors, community service has far too often been defined only by contribution of time to service and care projects such as soup kitchen, Habitat for Humanity and park clean ups. Indeed society might break down if students were not encouraged to participate in acts of charity and kindness--but our democratic tradition can also break down if students are not encouraged to consider their role in democratic institutions.
Senator Moore, citing to the Campaign for Civic Mission of Schools, cites to six elements of civic education (or civic learning as he calls it), namely: (1) student-centered classroom instruction in civics, government, history, economics, law and geography; (2) service learning linked to classroom learning; (3) experiential learning; (4) learning through participation in models and simulations of democratic processes; (5) guided
classroom discussion of current issues and events, and (6) meaningful participation in school governance. His website includes citation to a December 2012 report Renewing the Social Compact: A Report of the Special Commission on Civic Engagement and Learning that proposes ways for states and town to incorporate these educational goals. It also presents an analytic way of considering the aspects of civic learning.
I am encouraged to see this discourse on state levels. I am hoping schools curriculum are altered to affect the findings discussed by Senator Moore. I also hope that teachers are given the encouragement and freedom to bring civics into their existing curriculum. A tour through the standard middle school and high school curriculum present numerous opportunities for civic engagement education. For instance, an existing government teacher can have its student consider a social issue, perhaps one they care about, and attend and community meetings of two or more organizations seeking to address the issue and report back on their findings. An English teacher could have their student readers of the Tale of Two Cities, the Scarlet Letter, and the Odyssey consider how the stories influence or reinforce their perspective on life in contemporary America.
Friday, February 22, 2013
Interesting Leglislation to Let Online Law School Grads to Take Arizona Bar Exam
In most States, like Arizona, it is unlawful for a someone to become a licensed lawyer without first receiving a Juris Doctor at a law school approved by the American Bar Association. This creates a very serious barrier to access for individuals wishing to practice law. The barrier is that one must first get admitted to one of the 201 ABA accredited law schools. This is sometimes a near impossibility for those with family or economic responsibilities, not to mention those with existing work obligations.
Arizona Representative John Allen
(R-Scottsdale) has proposed legislation to allow individuals who complete an
online law school program to take the state bar exam and become a lawyer
(assuming they satisfy all the other requirements.) I have read the
legislation. It is straightforward, and I support it.
An article in the Cronkite News illustrates how
online education is the only reasonably accessible opportunity for some lawyer
aspirants to enter the profession. It tells the story of one woman who had
always dreamed of going to law school but couldn't due to career and family
obligations. She did then locate and complete an online law school program
based on California (the only state to currently allow graduates of online
schools to sit for the bar exam), but since moving to California is not an
option for her family, she is effectively prohibited from practicing her chosen
profession.
Opponents of online legal education rightly complain that an online
school cannot provide the same interactive spirit that facilitates learning
law. Furthermore, law is not solely a technical trade, but is a civic art, and
thus is most relevant in the context of a community where it can be discussed
and evaluated in contemplative discourse.
There are two problems with this argument against on-line legal
education. First, in-person law schools these days don't seem very directed at
contemplative discourse anyway. For the most part, law school students are
graded on their ability to mechanically manipulate the informative provided.
They are not judged on their creativity. Even though law professors often
love to offer fascinating courses that encourage creative thinking, from what I
observed, law students are either self driven or outright encouraged by their
law school advisers to focus in on classes relevant to bar
examination and career options.
The second problem, often stemming from the first, is that from
the student's perspective, law schools often function as if they were trade
schools, not ivory towers where students consider the legal theory, history,
and alternative approaches to legal and community issues.
This may be because there are very few other options for individuals to
learn about the legal system other than going to law school, and no mechanisms
to become a lawyer than to successfully attend law school.
I believe if there were educational alternatives and alternate means
for individuals to secure the mechanical education needed for becoming a
lawyer, law schools might have the leisure to engage in and encourage the
contemplative aspect of the law. I for one believe that I spent a certain
portion of my law school career learning information that should be made
available to all citizens, not just law students.
There is also another factor to be considered. There are no
States in the country that permit one to sit for the bar exam without first
attending a law school. There are only 201 law schools in the country.
These 201 law schools train 143,000 students, meaning each law school
houses, on average, over 700 students. These ratios make it impossible
for class sizes to be small enough to encourage deep conversation. And in
a country of a population of 314 million, a smaller number of law students is
not practical.
Friday, February 8, 2013
Legal Literacy Is An American Value With Roots in Early Colonial America
Literacy is commonly defined as the ability to read and write in a manner sufficient to function in society. Similarly, legal literacy is having the knowledge and familiarity with the laws and one’s rights and responsibilities sufficient to function in society. The purpose of this piece is to reflect on the extent to which the values of legal literacy is important to the Book of the General Laws and Liberties Concerning the Inhabitants of the Massachusetts, the first American legal code, published in 1648, and what we should draw from this precedent.
It
is important to recognize that legal literacy plays a role in all societies. In
tyrannical regimes, legal literacy means having the knowledge and familiarity
with the likes and dislikes of the person or persons with control over the
military and police forces. In many voluntary non-governmental associations
like religious and cultural societies, it means a commitment to a myriad of
rules and regulations governing numerous aspects of daily living. In a democratic-republic such as ours, it
means a general familiarity with rights and responsibilities of one’s
enterprise, a general familiarity with one’s obligations to one’s neighbors and
others with whom one interacts, one’s rights to secure a legal remedy when
faced with a legal cognizable harm, and one’s rights to petition and influence
the government.
My
view that legal literacy is an essential American value is not original to me or
merely an aspect of the age in which we live, although that impression is
understandable given the newness of various legal literacy organizations. The
Book of the General Laws and Liberties Concerning the Inhabitants of
Massachusetts is first legal code in the Colonies, instituted in 1648. Its introduction specifies that legal
principles incumbent on members of society should be “drawn out into so many of
their deductions as the time and condition of that people may have use of”
[them]. I interpret that language as
meaning that the writers contend that laws should be promulgated in a manner
that is understandable and usable to the average citizen. The introduction also
indicates that a primary purpose of publishing the 1648 legal code, and
specifically using the mechanism of organizing materials alphabetically by
topic, is designed to make sure the statutes are “more readily…found” and “more
easily…apprehended.”
In "Codification of the Law in Colonial Massachusetts: A Study in Comparative Law,”
published in the Indiana Law Journal in 1954, George L. Haskins asserts that “when
[the code was] completed, it was believed
by the colonists
to be a
complete and comprehensive statement of the laws, privileges,
duties, and rights in force
within the jurisdiction.
Various writing on the Code have at least implicitly focused on why the Code can’t be seen as having the weight of precedent to our set of statues. For instance, various articles on the Code have focused on the express references to Christianity in the Code. The Code specifically references its “Lord Jesus Christ” and identifies the political government established by God to “his people Israel” to be a legal system that was “more righteous than the other nations.” The Code provides the death penalty for certain religious crimes like blaspheme and the worship of entities other than the deities of Christianity. Additionally, many clauses in the Code specifically cite to Biblical clauses. In fact, a cursory look at the titles and themes of the many sections within the code, namely laws prohibiting certain sects of Christianity, blasphemy, fornication, gaming, and heresy all seem completely inapplicable to our visions of what governments are authorized to legislate and enforce.
However, notwithstanding any and all
ways in which the Code may seem inapplicable to today or foreign to our current
situation, we who care about legal literacy among the population in general can
and should look to this Code as important precedent for the notion that a good
code is written with the design to inform all citizens about their rights and
responsibilities—and should not be formulated in a manner so confusing that the
average citizen must preserve their life savings for the purchase of hourly
attorneys to explain to them the rules of societal engagement.
I
do not disagree with Friedman’s assertion that the legal needs of a small settlement
is fundamentally different from the legal needs of a bustling commercial state,
but I believe that the need for legal literacy in the bustling commercial state
is fundamentally similar to the needs of a small settlement run by clergymen.
Friday, February 1, 2013
Unmet Legal Need an Issue in Australia As Well; Is Lack of Access a Worldwide Problem?
The Law and Justice Foundation of New South Wales this year issued a report of unmet legal needs of Australians. That report, Legal Australia-Wide Survey Legal Needs in Australia, issued in August of this year, 2012, boasts that it is "largest legal needs survey to date conducted anywhere in the world" with 20,716 survey participants.
The survey discovered that while 50 percent of respondents experienced one or more legal problems in the past year. The most prevent legal problems were consumer issues, crime, housing, and access to government services, and almost half of the 50% experienced three or more legal problems within the year.
Although Australia is such a distance from our shores, the similarity of findings between this survey and those covering our nation, not to mention in nations in between, seem to indicate a world wide issue to address.
The survey found that even when recognizing legal problems at issue, many refrained from taking action because of the length of time between complaint to resolution, the cost required to engage counsel, and stress involved. Although I am not presently concentrating on American surveys, I am completely sure that surveys conducted in America would come to similar conclusions.
Assuming I am right that the findings of this survey in comparison with similar surveys in America and England reflect worldwide problems, perhaps it is necessary for international lawyer groups to collaborate on unmet legal needs throughout the planet, and what international standards might be necessary to assure that citizens of the world have relatively equal access to courts to address legal needs.
The survey discovered that while 50 percent of respondents experienced one or more legal problems in the past year. The most prevent legal problems were consumer issues, crime, housing, and access to government services, and almost half of the 50% experienced three or more legal problems within the year.
Although Australia is such a distance from our shores, the similarity of findings between this survey and those covering our nation, not to mention in nations in between, seem to indicate a world wide issue to address.
The survey found that even when recognizing legal problems at issue, many refrained from taking action because of the length of time between complaint to resolution, the cost required to engage counsel, and stress involved. Although I am not presently concentrating on American surveys, I am completely sure that surveys conducted in America would come to similar conclusions.
Assuming I am right that the findings of this survey in comparison with similar surveys in America and England reflect worldwide problems, perhaps it is necessary for international lawyer groups to collaborate on unmet legal needs throughout the planet, and what international standards might be necessary to assure that citizens of the world have relatively equal access to courts to address legal needs.
Sunday, January 27, 2013
Post-Holiday Reflections on MLK Day of Service; Shouldn't It Be a Day of Community Engagement and First Amendment Activity?
I just googled "Martin Luther King Day of Service" and received about 3,710,000 results. Vice President Biden, Homeland Secretary Napolitano and 10,000 volunteers created care kits for military personnel, disabled veterans, and civilian first responders. Other local Days of Service included refurbishing school buildings, and participating in Habitat for Humanity-like projects. Throughout our nation were similar sorts of projects. While all volunteer work should be honored and encouraged, we need to consider whether the holiday is being properly honored by the current variety of volunteer options, or if the holiday has been instituted with a specific focus requiring a redirection of our efforts.
These community service projects are crucially important to the strength of our civil society. According to the Corporation for National and Community Service, 61.8 million individuals in the United States contributed 8 billion hours of volunteerism in 2008, the economic value of which is $162 billion. These volunteer projects are an indispensable part of our civic society. This writer is encouraged by this statistic and hopes that the number of hours and dollar value of those hours increases exponentially over the coming years.
The federal holiday honoring the birthday of Martin Luther King, Jr. was enacted November 2, 1983. Public Act 98-399, the act establishing the federal holiday we often refer to as MLK day, specifies that the day should "should serve as a time for Americans to reflect on the principles of racial equality and nonviolent social change espoused by Martin Luther King, Jr." The Act also established a Federal Holiday Commission designed to "encourage appropriate ceremonies and activities...relating to the...observance of the Federal legal holiday honoring Martin Luther King, Jr."
In 1994, Congress enacted the King Holiday and Service Act of 1994. The Act appropriates money to "support the planning and performance of national service opportunities in conjunction with the federal legal holiday honoring the birthday of Martin Luther King, Jr., effectively authorizing monies to be spent for federal projects in support of the King holiday, mostly through the Corporation for National and Community Service. The Act specifies that the Corporation should make grants and provide opportunities for individuals to "reflect the life and teaching of Martin Luther King, Jr. such as cooperation and understanding among racial and ethnic groups, nonviolent conflict resolution, equal economic and educational opportunities."
This noble purpose should not be squandered and should not displace the general (and also noble) importance of community service. In fact, there is a tremendous need for increased community service involvement by the public at large, and in future posts I hope to further consider this assertion. However, MLK day was designed with the explicit purpose of considering the teachings of Dr. King and to advance the goals of cooperation and understanding among racial and ethnic groups, nonviolent conflict resolution and equal economic and educational opportunities.
It strikes me that we have drawn ourselves away from the purpose of the holiday perhaps because of the inherent challenges that accompany its purpose. For instance, exploring disparities in economic and educational activities often involves engaging in complex policy discussions about education funding, affirmative action, access to networking opportunities, housing segregation, disparate police interactions, access to small business financing, and numerous other areas of our society where the experience of citizenship differs among members of those appearing to belong to differing racial and ethnic groups.
Furthermore, unlike in King's day, racial and ethnic segregation and disparities are often not due to government policies designed with the express intent of inflicting different rights upon members of different groups, but it may also be the case that certain policies may have different affects upon individuals in different racial, ethnic, social, and income groups. It is also unlikely that any policy advocates can uniformly proclaim that their message is the sole successor to King's message--making it harder for any policy leaders to advance discourse by citing to King's message, or being able to successfully use King's legacy as a means to open necessary discourse. In fact, unlike in years past, policy advocates on both the left and right of the political spectrum proclaim to be have discovered the unique method of securing equal economic and educational opportunities among individuals of different racial and ethnic groups.
Thus, although there is a severe disparity of method, there is a potential unity of purpose that could make it so valuable for efforts in support of the King Holiday to be drawn towards dialogue and other activities that encourage reflection on current application of the principles of racial equality and nonviolent social change.
It is more likely than not that it is fear of the unknown and conflict that prevents municipal corporations, community associations, and the Corporation for National and Community Service from insisting that its King Day efforts be narrowly tailored to the purpose specified in the above-mentioned 1983 congressional act. Alternatively put, it is far easier to organize high school kids to bake brownies for the homeless, but it is far harder to organize a dialogue among high school kids concerning the diverse causes of homelessness. It is easier to hold an event that communicates the vision of racial harmony, it is far harder to sit down and investigate the stumbling blocks preventing the reality of the vision.
It is my contention that it only through navigating this great unknown that we as a society have any chance of realizing the vision that gave rise to our determination to recognize the efforts of King with a national holiday. I hope this essay will encourage all of us to engage ourselves in activities in future King holidays that are truly worthy of the mission to honor the birth of Martin Luther King, Jr. through reflecting on the life and teaching of Martin Luther King, Jr. and current opportunities for cooperation and understanding among racial and ethnic groups, current opportunities for nonviolent conflict resolution and current opportunities to achieve equal economic and educational opportunities.
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