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.
Wednesday, July 10, 2013
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.
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