Nation's Civic Engagement Problem Reflected in Disparities in Indiana Civic Engagement Study Results

On or around September 14th, the 2011 Civic Health Index was released, including certain above-average results and some below-average. The essential take home message of the results do not shock me, namely that there is a huge disparity between the percentage of residents who eat dinner with friends and neighbors (90.1%) contrasted with the percentage of people who belong to community based organizations (36%), 21.6% of residents report to talking about politics with friends and family a few times a week, but only 6.5% of residents identify themselves as working with neigbhors to address community problems.

The report includes the frank conclusion: "While Hoosiers are actively engaged with one another on a regular basis, that involvement does not always translate into community problem solving." The report itself and the newpaper articles I read focused their attention on low rates of residents' discussing politics as a feature of or indication of low voter trends.

However, I think that these numbers a bigger problem that I've noticed in other state civic engagement reports. I find that there continues to remain a large disparity between the rates of resident who regularly care for their neighbors, and those who work with their neigbhors to address community problems.

While I will reserve more complex commentary for later blog posts, I think that one of America's underlying civic engagement problems is that people feel very empowered when it comes to assisting their neighbors in their personal problems, but they are failing to mobilize on addressing common problems. In "Bowling Alone," the author brought out a concept that citizens who regularly care for their neighbors are more likely to discuss with them common issues and mobilize together to address those common issues. However, even when citizens discuss problems with neighbors, there still can be an "empowerment gap" if citizens only feel empowered to discuss the problems but don't feel empowered to commonly address the problems. Again, addressing this empowerment gap will be left for another post.

In Defense of Lawyers and Lawsuits--And the Solution to Frivolous Lawsuits

As a member of the legal profession, I write in response to Ross Watters' article in "The Daily Titan" on September 21, 2011 in which Watters claims that we live in a "litigation-happy country" and thus we are using to our advantage our "deeper knowledge about the legal system and laws than any previous generation." I contend that this article errs in how it represents the legal profession and the average American's understanding of the laws under which we live. I further argue that the article's endorsements of damages caps, as a means to prevent frivolous claims, is poorly placed--because damages caps only punishes those with legitimate egregious claims, it does not punish those who pursue frivolous lawsuits, or who intentionally reject legitimate offers of resolution in the hopes that it "just might be their lucky day" in front of the jury. Thus I argue that there are available means to oppose frivolous lawsuits that don't involve punishing those with legitimate claims.

My first point, however, is to argue against the notion that this is a litigation-happy country. If one googles the term litigation-happy, one finds scores of articles that make this claim, namely that this country is litigation-happy -- with the tiny reprieve of two articles referring to Bangladesh and Ireland and litigation-happy. I cannot, however, find any statistics or definitions to back up the claim that this country is litigation-happy. As a lawyer that speaks with potential clients for a certain portion of my day, I agree that many people seek legal redress for injuries and harm that should be resolved in a non-litigious way.

However, the fact that something should be resolved without resorting to litigation does not mean that non-litigation-oriented resolutions are available. For instance, in "Access to Justice," Deborah Rhode points out that in countries with socialized medicine, there are often fewer birth-defect lawsuits because litigation is not needed to recover the cost of life-long medical care, the most costly injury of a birth-related medical injury. I believe that Professor Rhode also presented statistics related to injuries from car accidents, and other injuries, where litigation is sometimes the only method for the injured to recover from any source the costs for necessary medical care.

In fact, contrary to the notion that we need to make courts less accessible are the facts that the courts are are already not adequately accessible for those without means. In November 2009, for instance, the District of Columbia Access to Justice Commission and the DC Consortium of Legal Service Providers published a report entitled, "Rationing Justice: the Effect of the Recession on Access to Justice in the District of Columbia." The report finds legal service lawyers estimate a 20% increase in demand due to the recession. This increase in need is not due to people seeking to make an easy buck, but due to people facing real legal problems. For instance, in the second quarter of 2009, there were 2,353 single family homes and condos placed in foreclosure, most of whose owners had no legal counsel to advocate on their behalf. The report further states that a subsidiary problem to foreclosure is the rights of the tenant in a foreclosed-on rental unit. The report also found that domestic violence cases were on the rise, thus requiring an increased number of lawyers needed to assist victims. Three other legal needs that are caused by economic needs are (a) access to shelter due to homelessness; (b) assistance obtaining unemployment benefits; and (c) access to temporary assistance for needy families in the forms of food stamps, disability benefits, and other public benefits. The report concludes with some powerful language: "somewhere in the District a family won't ave enough to eat tonih because of a bureaucratic mistake. A child will be hospitalized yet again because the rat droppings in her apartment caused an asthma attack. A veteran who has served in combat will sleep on the street because he could not access the public benefits, mental health services, and shelter to which he is entitled... Because of the crisis in legal services, there are simply not enough lawyers to help our suffering, low-income neighbors. And next year, there will be even fewer... The result is that justice is being rationed. And as is too often the case, those with most in need are getting too small a measure of justice."

In September 2005 and in June 2007, the Legal Services Corporation published a report entitled,"Documenting the Justice Gap in America." The Introduction to the report identifies several civil legal needs of low-income individuals not currently being addressed, namely: protection from abusive relationships, safe and habitable housing, access to necessary health care, disability payments to help lead independent lives, family law issues including child support and custody actions, and relief from financial exploitation. Principle findings are: (1)For every client served by an LSC-funded program, at least one person who sought help was turned down because of insufficient resources. (2) Only a very small percentage of the legal problems experienced by low-income people (one in five or less) are addressed with the assistance of either a private attorney (pro bono or paid) or a legal aid lawyer. (3) The per capita ratio of legal aid attorneys funded by all sources to the low-income population is a tiny fraction of the ratio of private attorneys providing personal civil legal services to the general population. (4) ten state studies found that only 10-30 percent of legal needs of low income individuals were met with legal help from counsel.

This information challenges the notion that this is a litigation-happy country seeking to resolve petty problems in court. If Watters' article is correct that in this country, we have one lawyer for every 320 citizens, then we must also conclude not that we have too many lawyers but that the legal work is not properly distributed to address the legal problems that require addressing. The article focuses of what are referred to as run-away verdicts, a big example being "the McDonald's Coffee Case" on which I have previously commented (in a prior post.) Again, the fact that the judge remitted the verdict to a lower amount indicates that "run-away verdicts" are not the problem so claimed. I have sought to research another example raised in the article to determine its accuracy and now have reason to think the author is quoting an Internet story rather than a true case.

Her article concludes by complimenting Texas Governor Perry's legislation that penalizes plaintiffs who bring forth losing lawsuits. The legislation, as adopted, appears to give courts discretion to award attorney fees to defendants if they defeat plaintiffs on early motions for summary judgment. The effect of the legislation will depend on how it is applied. If courts narrowly apply this law to cases where plaintiffs acted with malice or frivolousness in bringing their case, then the law does nothing different than what is the law in most or all of the land, namely that a litigant bringing a frivolous lawsuit may be liable for the opposing sides attorney fees for the tort of abuse of process. Federal Rule 68 also offers defendant a means to fight lawsuits of low worth. Under a Rule 68 offer of judgment, if a judgment that that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made. If attorney fees are available under Federal Rule 68, then Rule 68 is certainly a perfectly available means to attack frivolous claims. Under Marek v. Chesney, 473 US 1 (1985), costs in this situation include attorney fees. (I haven't studied whether the law of this case has been revised by subsequent case or statute.)

In short, the claims our legal system are overrun with frivolous cases are often baseless claims. The claims that damages caps will halt frivolous lawsuits are also misguided, as there are other laws already in place to prevent "runaway juries" and frivolous claims. Instead, courts and other members of the legal world would do well to consider whether there are problems with the way in which lawyers are distributed to the public, such that many go without legal help.

As a postscript, I want to clarify that I have no facts to challenge the notion that there are plenty of frivolous lawsuits. Just as the articles I read brought forth no facts to suggest that there really are many frivolous lawsuits, I have no facts to say that this isn't a problem in existence, or an important one. However, it is my impression that there are laws in place to address these matters already, not a need for a new regime of loser-pay laws.

What is America's "Civic Man"

One day a few weeks ago, one saw a striking contrast. If one watched the news about protests in Greece, one saw cars burning and actual fighting in the street. Protests outside London also contained a certain amount of violence and looting. In several Arab spring protests, protests lead rather quickly to the toppling of regimes or violent crackdown on protests. The news in Bahrain, for instance, is quite scary.

For the most part, increased civic activism in this country has not led to violence, either in the form of looting or in the form of vast police brutality. While I don't mean to suggest that neither are present in this country, for the most part, thousand of Americans have engaged in protest during the past few years without fear of violence or prison.

We should not underestimate a fundamental reason for this. Americans, by in large, believe in the concept of the "civic man."

The notion of America's "civic man" was first described by DeToqueville's "Democracy in America," in which he wrote about township life: "Americans rightly think that patriotism is a sort of religion strengthened by practical service. Thus daily duties performed or rights excerised keep municipal life constantly alive. There is a continual gentle political activity which keeps society on the move without turmoil.” DeToqueville, Democracy in America, I, v.

In other words, for DeToqueville, the patriotic "civic man" is one actively involved in municipal life. Elsewhere in "Democracy in America," he indicated that he has in mind the New England town council as the optimal example of civic engagement, where all members of the community gather to sort out communal matters.

However, as DeToquiville points out, it isn't just the government's constitution that makes a democracy or the participants. It is also a "feeling that pervades the most trifling habits of life." Thus, he refers to debating clubs as the American substitute for theatrical entertainment.

The Declaration of Independence goes further in installing the concept of the civically engaged man. It says: "all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Thus, as I have previously discussed in this blog, the Declaration defines the anticipated social contract between Americans and their soon-to-be-formed government. It describes an individual freely instituting government, with others, to seek safety and happiness, and to alter that government when such a government fails to meet the ends of safety and happiness.

Thus, America's civic man is one who is vigilant of his social contract and actively aware of his natural rights to alter his government, with the consent of others, to the extent that his safety and happiness is not met by the regime in existence.

DeToquiville, thus, in his seminal work "Democracy in America," describes how this work, and describes how America's civic man sees his ability to actively shape his society and government, engaging in civil civic action with others, patriotically engaged in civic life, and patriotically and peacefully seeking the alteration of institutions not meeting the citizen's current needs.

Thus, unlike in Egypt and in other places around the world, America's engaged civic man is no threat to the government at large. Toppling of "the regime" is not a concern. The American civic man cares deeply about the thriving of his citizen government. Thus, no matter how much radical change he advocates, he has no interest in disbanding the civil society that provides for the existence of democratic institutions.

This post is not designed to say something new, merely to reflect on what we already know, that serious democratic engagement is no challenge to our democratic society, but instead is an essential part of it, and when done propertly, reinforces our social contract and the very theme discussed by Jefferson and DeToquiville over two hundred years ago.

An Autobiography of Civic Engagement

I have posited that one’s adult civic engagement or lack thereof can often be stemmed from the extent to which one has perceived engagement while in one’s youth. In December 2009, I commented on a lecture provided by Judge Souter in which he discussed his own exposure to civic engagement by watching the activities of the local town council. Judge Souter suggested how that youthful exposure shaped his adult understanding of the political and legal process.

If I were teaching a semester-long college course on civic and legal engagement, I think I would start by asking my students to write a mini autobiography of at least four life experiences which shape his or her perspective on citizenship and social action. I suspect that self-reflection would cause students to consider whether their perspective on politics and social involvement, whether it be idealistic, optimistic, pessimistic, disinterested, or completely hopeless.

A fuller understanding on this front would shape educator’s understanding of how to make civics education more meaningful for its students. It would also impact the manner in which social engagement is conducted. In an effort to demonstrate what I have in mind, I have chosen to provide an example of what I am calling a citizenship autobiography by providing my own as if I were responding to this question.

My civic engagement story:

In thinking about my earliest memories of thinking about citizenship, I should admit that I may have been that oddball that was fascinated by the political process as early as I can remember. In seventh grade (1987-88), I took the standard middle school introductory course in civics. I was immediately fascinated by Continental Congress’ 1776 decision to separate from England and the Constitutional Convention of 1787.

There was something amazing to me about people gathering to envision how to organize society towards its betterment. I read about the debates and developed clear images in my mind of a room of adults in serious and respectful discourse about various methods of governance.

Frankly, I think this is when I first developed an admiration for democracy, envisioning that all informed adults were capable of collaborating to address communal problems. This idea was reinforced repeatedly for me by my vcr, as I was mesmerized by the movie musical “1776”, which has been a favorite of mine since.

That idealism in the classroom was reinforced to some extent in my synagogue involvement. Even at that age, I was attentive to member discussions about my synagogue’s structure, collective decision-making, and future. I didn’t attend board meetings but I overheard discussions about them and I found it fascinating that a small number of individuals would take responsibility to put effort into shaping the religious and communal experiences for another hundred petitioners.

My interest in civics, however, must have predated that seventh grade class to some extent because I have very specific memories of reading Gandhi and thinking about King in that year of my life—and I would presume that my interest in Gandhi and King and society as a whole was not spontaneous, but grew out of some experience I cannot recall.(I am certain that I was influenced by Gandhi and King in 7th grade because my views of Gandhi and King shaped how I responded to a particular bully I confronted that year. Thus, I must have thought about Gandhi and King either that year or earlier.)

In fact, I remember watching a televised debate between Mayor Harold Washington and Donald Haider and surprising myself by being very impressed by the Republican Donald Haider. The election for which that debate was held occurred on April 7, 1987. At that early age, I was very aware that supporting Donald Haider meant not supporting an historic and well-respected Democrat even though I lived in a Democratic town and grew up in a Democratic family. I also remember being asked to consider the favorable effect Mayor Washington had or was brining to race relations—so I was aware of segregation in Chicago and was aware that there was a role of a mayor in addressing these issues. Unfortunately, I have no memory of why I supported Haider, or why race relations would have been affected by who occupied the position of Mayor.

These memories have two things in common, similar to the stories of Justice Souter. I was not intimately involved in the political process itself, and in fact had no effect on it, yet I knew it impacted me and perhaps was fascinated for that reason. Alternatively put, and perhaps stated in an overly sophisticated way, I appreciated that the democratic process often involved individuals thinking about the greater good, the interest of the larger community not whether one fully thinks through how it impacts one’s own self.

Personal involvement began, in some manner, in the following year. In the 1988 Presidential election, I watched the debates, watched CSPAN’s coverage of the Democratic, Republican and Libertarian conventions. I also remember that the Democratic primaries featured two candidates from my then-home-state, namely Jesse Jackson and Paul Simon, along with another Midwesterner, Richard Gephart. I don’t remember if I had a favorite candidate, although I ultimately felt strongly in favor of the Democratic candidate, Michael Dukakis, over the eventual victor, President George Bush. During the general election of that year, my school had a mock election on or about Election Day, and I wrote the summary of the results for the school paper.

part of a mock electorate had meaning for me, as it meant that my voice was being heard, even if not counted. Writing about it for the school newspaper meant that we were preserving history—even if the historical evidence of that paper may now be limited to my memory. I remember that Bush won our school’s election by a margin that was not far off from the national margin.

That election season also featured discussion of some sort. I specifically recall a school retreat to Lorado Taft in early November (either right before or right after the election) where there was spirited debate about the two general election candidates, Bush and Dukakis. As an aside, I should add that our school was a voting place, and thus we had no access to our gym on that day. We also had to be quieter during lunch so we did not disturb the voters.

All of this made the political process real, making us appreciate that upon the age of maturity, we too would participate in the democratic process, at least to decide our country’s leaders. High school involvement was much more direct in several ways.

Ultimately, I turned 18 during November of my senior year of high school, although not until several weeks following President Clinton’s election—and this was highly disappointing for me. However, during high school, my political involvement included participation in our school’s delegation to the YMCA’s Illinois State Youth and Government, where I served as a mock lobbyist for the ACLU in my sophomore year of high school and as a legislator my junior year. In the year I was a mock lobbyist, I won “lobbyist of the year” for my thorough efforts to get attention and engage in discussion with anyone I could find. I even wrote a newsletter to hand out in Springfield (the statewide legislative session that culminated the seven month program) to assure that everyone I could find knew my views on issues facing those in the mock legislature. (Sadly, I no longer have copies of this newsletter.)

For the first time, I felt like I was really getting political experience, as I sat and spoke for some time here and there with individuals who saw the world differently than I did. Although the State Youth and Government process was so truncated, I developed an appreciation of the political process. To me, it became instantaneously clear that the difference between liberals and conservatives was not in contrary ideals, but in different experiences in the value of the governing process, primarily stemming from different types of interaction with government. I also developed the notion that urbanites would always be a little more interested in an involved government (as they required government to manage the number of people living in close proximity, including in adjoining properties) whereas those in rural areas would be a little less interested (as they saw themselves as more independent from their neighbors, and in fact often had property that was a not dependent on a neighbor’s property for survival.

These shaped my view that Aristotle was right when he said man was a political animal. Thus, I started to see human experience not merely in terms of my own experience but in terms of the idea of a society as a whole. Subsequent high school experiences that reflect this include (1) participation in clean-ups, soup kitchens, and Habitat for Humanity; (2) participation in a student walk-out to protest the continued employment of a supposedly racist teacher; (3) conduct of a survey of race relations in the high school; (4) attendance at mayoral candidate forums during a local election, being both the youngest attendee at both forums, being both the only Caucasian at the forum for the Democratic candidate and the only Democrat at the forum for the Republican candidate.

All of these events make politics and social involvement very real for me. They allow me to experience democracy in a very serious way. I cherish these memories and I suspect that many people highly engaged in the political or legal process would have similar memories they cherish. A good reader would likely see similarities in the nature of the stories presented by those who are politically active or active in advocacy.

It would then be important to review these stories, along with those stories of those choosing to be inactive or apathetic to the political and policy world, and contrast those who chose activism with those choosing inactivism to understand best what inspires people to engage and what dis-inspires people.

I write this paragraph because I believe that many activists believe that they can engage “the masses” without first addressing why some people feel dis-engaged from the process and helpless when it comes to affecting social issues. Alternatively put, why do some people feel like they could conceivably change the world if they organize correctly and others feel that the democratic institutions are a ruse and they are helpless to alter the system?

Enliven Your Civics Course With Good Fiction or The Vision Thing

It is my impression that there is a huge coraltion between those who dream about life as it should be and those who have favorable effects on society. I believe President George Bush Sr. referred to it as "the vision thing." One of the most frustrating aspects of some civics and legal courses is that a student may feel that he is doing nothing more than memorizing a series of organizational structures. Earlier blog posts discussed the importance of empowerment. Does the student "feel" empowered to take the information learned and use it in real life. For instance, I once spoke with a seventh grader who discussed how her teacher was teaching the progressive movement of the late 19th century and early 20th century. The learning assignment featured only facts and figures and memorizing the definition of core concepts. The teacher was not interested in the students' reflection on the similarities and differences between the progressive movement of the time and various similar disputes occurring today. Hence, some exercises that come to mind that might help teachers get out of the face memorization pit:

1. The "King Ralph" question: A new nation is forming. This nation, like Australia, South Africa, the United States, and India, is a former British colony, and hence has a relatively civilized population. Like the United States when it split from England, there are different opinions about how best to create an organize a good government. Prior to coloniolization, the land was ruled by a royal family, of which you are the only living decendent,and you have just become aware of this fact. The leaders of the nation have called on you to assume your throne, at least temporarily, and draft a constitution for the new country. Assuming you don't turn down the job, what do you do to help this country organize itself?

2. You are amazing. As the result of ten years of your mayoral leadership, everyone believes that this city has achieved the perfect amount of civic engagement and democratic involvement/public discourse. It is now time to accept your Nobel prize. You are asked to write an essay describing what you have achieved for those not already aware. Please describe the nature of civic engagement in your town. What are people doing? How do they engage? Are they engaging in citizen groups, polticial parties or in different ways? Did you institute any new laws or regulations?

3. Following up to question 3 is the fact that they also believe that there is a perfect amount of government ocntrol versus personal liberty. Please descibe the extent to which human lives are governed byy this ideal government? In other words, what areas of life is one required to comply with government regulations and what areas is there no such regulation? What services are provided by the government and what services are provided by private businesses, and does the government assist individuals who can't afford certain services on their own?

People's Law School -- in New York: Jamestown Community College

Jamestown Community College is conducting a People's Law School this year, initiated by retired State Supreme Court Justice Joseph Gerace Sr. The article I read in October 10th issue of Dundalk, New York' "The Observer."

The article indicates that the classes began October 11th, and will be taught by members of the legal community, and they will primarily discuss true stories to describe how the law works. Like the program I described in my September 23rd piece, this program will also include Elder Law and Estate Planning as a core subject area. (The focus is logical to me because it is a subject area that generally affects all members of the public in one way or the other.)

However, that is where the similarity ends. The second week of the program here will focus on bankruptcy, debt collection, and foreclosure avoidance. The third week is entitled "Entreprenuership 101." The fourth week will address tax issues, entitled "Challenging Tax Assessments on Residential and Business Property." The fourth week will concentrate on vetaran's issues, such as reimployment rights. The final week will focus on matrimonial and family law issues.

I am generally impressed by way in which the People's Law school in New York is engaging with the public. For one, there is an active facebook page. The facebook page is one where readers will be regularly updated as to what the People's Law School is teaching and other public relations coups of the program, including features on radio programs and educational-oriented discussions on the same.

To me, this serves an important role of educating the public about the law and providing mechanisms whereby members of the public can feel somewhat connected to the program.

Occupy and the Tea Party Should Inspire Us to Study the Right to Organize and Protest

The Tea Party and Occupy Wall Street movements have made the right to protest and organize an important legal topic. Thus, it is probably good for all those interested (whether directly or just intellectually) in these movements to familiarize themselves with their first amendment rights to petition the government -- as well as to familiarize themselves with the limits of those rights.

Obviously I have no knowledge whatsoever as to whether these protest movements will lead to any additional arrests and/or litigation of protester first amendment rights. If I am reading the newspapers correctly, with the exception of the 700 arrested on the Brooklyn Bridge in a September protest, for the most part, both groups have relatively enjoyed the protection of their first amendment rights, although there are certainly indications of potential flair ups between the protesters and the Mayor Bloomberg administration.

My recommendation that we use these events as an occasion to study our first amendment rights is not primarily based on a notion that disputes over first amendment law will arise. I certainly hope not. In fact, when listening to some conservative-oriented media commentary on the Occupy Wall Street protests, I have been particularly pleased to hear that although they oppose or dismiss the Occupy Wall Street movement, they recognize the participants' rights of association, assembly and assertion.

On the contrary, I think that these protests have not yet inspired excessive legal disputes is even more of an occasion to study first amendment jurisprudence. I envision, only in part, that the mass study of first amendment jurisprudence would help prevent future dispute.

The study of First Amendment jurisprudence will lead to an appreciation on the left and the right of the role of protest in the American Constitutional tradition and assure that Americans part of these various movements are able to recognize that they share a Constitutional tradition that encourages citizens to speak out on issues of importance.

Although I haven't had occassion to study much First Amendment law since law school, I came across a Spring 2002 article by Steve Bachmann, entitled "Access to Justice As Access to Organizing" that identifies the major 20th century first amendment cases, thereby effectively creating a study course on one's right to petition his or her government, and one's right to protest. (The article's citation is: 4 J.L. & Soc. Challenges 1.)

Bachmann's article has two thesis. First, he argues that "access to justice is less a function of action to the courts than it is access to organizing because justice tends to go to those who are organized." Second, he argues that the right to protest and orgnaize is "greatly dependent on the Court's perspective on property rights versus first amendment rights, and other associational rights."

More importantly for this article, however, he proceeds to address this by presenting four phases of associational law during the 20th century, and particluar casees that make up those phases. In a subsequent article, I will spell out the course that I see coming out of his article.

Will The Tea Parties and Occupy Wall Street be Signs of A New Age of Social Activism?

There have been numerous articles in the past couple week discussing the similarities and differences of the "Occupy Wall Street" and "tea party movements. I have been particularly fascinated by the articles which discuss the similarities in goals shared by these two movements, in part before the former is perceived as being a faction of the Democratic party and the latter is seen as being a faction of the Republican party. My fascination with these movements is that they each represent substantial increase in political involvement by members of the general public, and they also each represent a commitment of individual citizens without political experience to speak out on issues of concern to them.

I am less interested in the precise political messages of these two organizations, at least for the purpose of this piece. I am more interested in the existence of these groups. I am plesantly surprised to see organic grassroots movements on at least two political spectrums that represent the type of citizen engagement in democracy that was envisioned by DeToqueville an Jefferson. I am hopeful that both organizations will lead to serious citizen engagement in the day-to-day life of democracy.

There are some people that appear afraid of each of these organizaitons. They are afraid that either organization could devolve into violent factions. However, the history of this country shows that because of our democratic ideas, genuine social movements do not turn violent. Although our nation's history includes the existence of riots and violent acts, destructive acts have generally been pretty separated from political organizations and movements. Thus an obvious contrast with Ireland and Palestine, where certain destructive forces, aka terrorists, worked hand in hand with political movements. This contrast is an essential distinction between engaged citizenship and mobbery factionalism.

I am looking forward to seeing more of these movements. Although my views are much more aligned with the left than the right, I think that American democracy thrives only when there is creative civic engagement from multiple political perspectives.

Thus, to quote Langston Hughes, "Let America be America Again."

People's Law School in Michigan -- Something to Emulate

I was so pleased to come across an article from August 23, 2011 in the Lansing State Journal (by John Schneider) about a seven week intro to law course sponsored by the Michigan Association for Justice. For $25, one can attend seven two-hour classes at Thomas M. Cooley Law School on basic subjects of law such as Constitutional Law, Elder Law (including probate and estate planning), identity theft, the fourth amendment, and employment law. This excites me. Unlike in some past generations, the law governs so many areas of our life that I think we fail our population when we graduate students from high school without a fundamental understanding of certain areas of our legal system.

A Fun Activity For Constitution Day: Creating the ideal city of state

One activity that particularly inspired me, which I recall from eighth grade, is one were, just having studied the Ancient Greek city state system, we were asked to create a city state of our own.

We were asked to consider: a. what issues would citizens vote on themselves; b. what issues would representatives vote on; c. what decisions would be left to a chief executive--if any; d. what rules, if any, would govern economic transitions; e. what types of courts would be established, or would there be other protocols to manager disputes of citizens; and f. what other rules might govern daily lives of citizens or non-citizens residents and/or short visitors.

In retrospect, I wish we were instructed to take a couple days to write this out in a descriptive manner before discussing this in a group setting. Then, we did this solely as a group verbally, so I have no documentation, or even recollection, as to what we accomplished, if anything.

Although there is tremendous logic to being given the opportunity to consider the points of view of others, specifically to experience the debate between those more trusting of government structure versus those more trusting of individual liberty (and in fact it might be said that there is no way to fully consider these issues until one is confronted with those of competing perspectives and presumptions), there is also crucial value to asking each student to articulate the logic between his or her own position.

If you have taken this on as a project, consider how similar or different your creation is from the United States Constitution, and then consider why. How does your understanding of human nature, natural rights, and democracy resemble or differ from those of the founders, and do those similarities or differences account for the simmilarities and differences between your constitution and the one the United States government adopted?

Civic Engagement Expo--Excellent 9-11 Activity for Philadelphians

I just came across this announcement on the Arcadia University website. I note that is it occurring on September 11, 2011, the 10-year anniversary of the 9/11/01 terror attacks. Although I don't mean to discount the value of other commemorative events, I can't think of anything that strengthens America more than programming to advance the participatory aspects of our democratic culture. I hope this is a succesful and inspirational event. Third Annual Civic Engagement Expo in Philadelphia, Sept. 11 Fri, Sep 2, 2011 Events On Sunday, Sept.11, Global Citizen, Greater Philadelphia Cares and SERVE Philadelphia will host the Third Annual Civic Engagement Expo. Nonprofit organizations from the Philadelphia region will host informational tables displaying their mission and current, future and on-going volunteer opportunities. This is a great opportunity for students to learn about various nonprofit organizations in the city and a chance to gain valuable resume boosting volunteer experience. The expo takes place on the first block of Independence Mall between Chestnut and Market Streets from 2 to 5 p.m. Immediately following the expo, there will be a public ceremony featuring Mayor Michael Nutter and other esteemed guests.

Do Our Schools Encourage or Discourage Democratic Engagement

I recently read an interesting article by John W. Whitehead entitled "Teaching Totalitarianism in the Public Schools" first published on June 24, 2010. He wrote that totalitarianism is effectively being encouraged by adopting the mindset that students have no rights. From a curricular standpoint, the focus is contributing to the economy rather than knowledge of civics and Constitutional principles.

The article additionally provides the example of a school which prohibited the distribution of a student newspaper because it disapproved of an editorial questioning if student athletes should be required to take gym classes. Although Whitehead's article did not comment on whether the school prohibits other speech, I would presume that if gym class for athletes is too controversial, an article addressing other controversies would likely be censored.

For instance, what about a controversial article regarding immigration, affirmative action, or whether American history is taught from a too liberal or too conservative stance? What about an article frankly discussing drug use or sexual behavior among students. Any of these articles could be extremely newsworthy, yet might go unwritten or unexamined by the student press due to their being "too controversial."

This article hits a chord. I recall in high school that in many classes, the memorization of facts was favored over insight. History was presented as series of facts, rather than an exploration into human nature and why different people do different things.

The article raises another point I had not considered. The article says that "young people today are immersed in a drug culture—one manufactured by the pharmaceutical industry— almost from the moment they are born, and you have the makings of a perfect citizenry for the Orwellian society in which we now live: one that can be easily cowed, controlled, and directed."

This seems particularly troubling. Not all problems are chemical, and thus not all problems can be treated chemically. Some people need discipline, need love, need to exhibit their artistic and other creative endeavors. Unlike the article, I am not advocating a particular purchase or a particular result, but I would like to see an expanded conversation about how students can be seriously invited to join the creative civic discussion.

What Legal Understanding is Essential to Citizenship?

In my most recent post, I complemented Michigan for instituting a course for ordinary citizens on fundamentals of the legal system. I further articulated my view that there are fundamental aspects of our legal system of which all citizens should be apprised. I have since been asked to articulate my views of what legal principles are so essential to American civil society that familiarity among the general public should be a priority of the legal profesion.

In that article, I identified four fundamental aspects of the legal system, namely, (1) how to locate the law and vindicate rights in court, (2)fundmentals of the Executive Branch for the purpose of determining what administrative procedures are available to adjudicate certain kinds of cases; (3) the art of reading case law and (4) certain fundamental rights and the role of the Supreme Court (and the lower courts of course) in determining them.

These fundamental aspects of the legal system are the building blocks upon which other aspects of the legal system are built. Any American taught these four things is well suited to figure out his or her rights, and thus be a little less reliant on lawyers.

However, as discussed, in addition to the principles that underly our legal structure there are specific legal regimes that affects all citizens to such an extent that basic knowledge about them may also be considered essential aspects of citizenship. To be clear, it is not that I am making any specific theoretical claims about these topics. Instead, I am pointing out that these topics are those that are likely going to affect average citizens and thus average citizens should have a general understanding of the applicable legal frameworks:

1. Fundamentals of Housing Law (including renting rights and responsibilities, home ownership rights and responsibilities, and essential aspects of land and property purchase);
2. Fundamentals of Consumer Rights, and Consumer Responsibilities, such as what are the reasonable expectations a consumer may have concerning a product's functionality and safety, and when certain product uses are well outside the scope of anything the manufacturer may be held liable;
3. Family Law--rights of individuals in a marital and non-marital relationship and legal protections relating to domestic violence;
4. Education law--rights of parental involvement in their children's education, and limits of those rights; rights to participate in school boards;
5. Fundamentals of Corporate and Nonprofit Governmance Law; Specifically , one's right to create a business or nonprofit; when a permit is required; and when one must communicate with the government about their business and its expenses;
6. First Amendment Law;
7. Fundamentals of Intellectual Property law
8. Fundamentals of Insurance law
9. Fundamentals of Employment Law
10.Fundamentals of Zoning Law
11.Traffic Law
12.Basics of Banking Law
13.Trust and Estates Law
14.Malpractice Law (from the perspective of the consunmer of professionals goods)
15.Government Benefits

In coming up with this list, I do not mean to proclaim in any way that the average citizen has a good reason to understand each of these topics in a thorough manner. Instead, I raise topics and legal topics that arise in everyday life to such an extent that the average citizen should be encouraged to at least have an appreciation of the subject matter's foundations, and thus, when a particular type of transactions is governed by a legal regime and when the law is likely to have no impact on one's course of conduct.

How Should Citizens Learn About Supreme Court Opinions

I recently read an article in Utah's Cache Valley Daily, by Rachel Christensen, about the importance of good legal news reporting to the public's understanding of the court system. In her article, she says that the lack of a good relationship between the media and the Supreme Court is a major part of the problem of why so many people have such little knowledge about the Court.

She writes, quoting RonNell Andersen Jones, law professor at Brigham Young University, about the media and the Supreme Court: "Both have a shared interest, and that shared interest is in serving the public, in ensuring social learning, an appreciation of current legal affairs, and in turn ensuring the importance of the ongoing vibrancy of our democracy," quoting Jones.

According to Jones, both sides blame each other for the problem of the public not fully understanding how the Court works. Thus, she recommends that the press become more knowledgeable in legal matters and the Court make a greater effort to make summaries of court cases more accessible to those who don't know the law.

This story struck my eye. The disparity between how lawyers think about legal issues and how legal issues are presented to the general public by the media is a continuing issue of concern. From what I observe, most legal issues are presented to the public by the media as a subset of politics and public policy, often as conflicts between various group interests--rather than as conflicts between individual's legal rights and obligations.

More importantly, cases are often presented as conflicts between social classes, or between those with competing political interests. Thus, members of the general population feel the need to "take sides" in judicial wars, and thus to respect those judges whose decisions lead to results that match their self interest and to reject those judges whose decisions lead to results that don't.

For instance, during the Justice Sonia Sotomayor nomination proceedings, members of the public who oppose the public policy of Affirmative Action were outraged that Justice Sotomayor, when she was on a Court of Appeals, "voted in favor of Affirmative Action." In actuality, she voted as an appellate judge that it was reasonable for a local government employer to suspect a test contained an unreasonable racial bias when the results and application of the test would create a huge disparate impact negatively impacting minority firefighters, and thus legal liability under Title VII of the 1964 Civil Rights Act.

In other words, Justice Sotomayor's ruling was misportrayed to be a political comment on a political issue, Affirmative Action. More precise reporting on the subject would have advanced the public's understanding of the appellate process. Another disparity between the public's opinion and the court's actions is the recent case of Dukes v. Walmart.

In Dukes, the Supreme Court ruled that the plainiffs' claims were not sufficiently similar to allow them to join a class action. As an attorney with a fair amount of plaintiff-oriented employment law experience, I am disappointed to hear comments in the media that suggest that the case makes it harder for individuals to pursue discrimination cases, where the decision related solely to class actions, not individual claims. That said, depending how the lower courts interpret the decision, it could impact class action certification. Although that result is foreseeable, it is not necessary. The news media has not made that clear.

Another classic example is the "McDonald's Coffee case", Liebeck v. McDonald's Restaurants, presented by the right wing as a case where clumsy individual blamed a corporation for her own sloppiness, coupled with an unchecked runaway jury verdict. Those on the left saw the case as a victim of corporate carelessness fighting the machine. Thus many seemed to develop an opinion as to whether the jury was justified in its conclusion or a politically-motivated jury, regardless of facts of the case. This has been extremely unfortunate. First, in this case, the jury verdict of almost 3 million was reduced by the judge to $640,000.

Thus, this case really can't be an example of an unchecked run-away jury because the verdict was actually "checked." Second,during the trial, plaintiff's showed that her injuries were foreseeable by the particular McDonalds franchise because it faced numerous complaints of injuries due to hot coffee, and that this franchise in this case typically sold coffee at temperatures that would burn a customer if consumed at the time of purchase.

In Constitutional cases, the problem is sometimes worse. Liberals and Conservatives think about complex issues like abortion, affirmative action, homosexual marriage and national health care is very different ways. Often they disagree about the underlying meaning of certain Constitutional principles, and sometimes disagree about what Constitutional principles are implicated in deciding these issues.

Like many in the legal community, I am tempted to blame the media for their failure in properly presenting the legal issues at hand. This article up to this point might be read in such a manner. However, reporting on legal issues can be quite difficult and unfair on the reporter. Reporters are asked to present complex issues in a small number of words, and often not given enough time to fully study the issues at hand. Furthermore, reporters run the risk of being accused of bias by either side if they don't satisfactorily represent that side's perspective in their reports. Thus, reports are thus forced to write superficial reports in order to avoid being accused of bias. Satisfying consumers of news is also very difficult.

Consumers of news don't have time to read and listen to complex presentations. They want the "bottom line" headline (e.g. "news at the top of the hour"), or the one-paragraph version, which is, as mentioned above, a very difficult challenge when reporting legal news. There is another set of consumers which is particularly motivated by learning about partisanship, either by its analysis or by participants--as is evidenced by the popularity of cable news commentators (e.g. msnbc, fox news) and biased radio news hosts (Rush Limbaugh, Glen Beck).

Thus, we in the legal community have a challenge that goes slightly further than is reflected in Ms. Christensen's article. As is reflected in Ms. Christensen's article, we in the legal community probably need to do more to encourage the legal education of reporters. Also, perhaps the Rules of Professional Conduct should include a provision that instructs lawyers how to interact with the press.

My vision is that the Rules of Professional Conduct might require us lawyers to communicate with the press in a manner that requires us assure that members of the press are made aware when we are giving them a biased comment. However, the press corps should also do more to assure that its legal reporters are given time to understand the context of the story they are writing.

Recap: Growth of Legal Literacy Clubs

Followers of this blog will notice that I am particularly fascinated by legal literacy clubs propping up in various places in India. Although it is not unusual throughout the world for public interest organizations to hold legal education seminars in poor and underdeveloped neighborhoods, and for these organization to advise and help people secure and protect their rights, Indian legal literacy clubs do so much more. They educate students how to recognize legal problems confronting their neighbors, and how to talk to their neighbors about their rights.

Thus, I was excited to read that legal literacy clubs are being established in all schools and colleges in Union Territory, Chandigarh, with a focus on rights for welfare and those with mental and physical disabilities. A press release states: “The primary function of the students would be spreading legal literacy awareness. They would identify people in need of legal services and refer them to the nearest legal services institution,” said Justice Jagdeep Jain, Member Secretary of the SLSA.

Another news article from the Express News Service points out the students will be trained for door-to-door visits. It further points that "the student community is a great observer of the society. They know the harsh reality of all the sections of the society. We intend to trained the students so that an awareness campaign can be launched in a very big way to make qualitative change in the lives of the common people."

The training will be from members of the State Legal Services Authority, in part about what legal services are offered, how they assist with pre-litigation settlements of disputes, and other aspects of the legal system. I discussed in a prior article that one benefit of the legal literacy clubs are that legal literacy and education about society's structure could become cool, or at least something over which students could bond.

I look forward to reading articles about the social benefits of these clubs. Another benefit not previously discussed by me, or in the news articles I have written, is the favorable effect of students being trained by, and thus interacting with, members of the legal profession. One particular challenge that upwardly driven members of poor communities have is that they often don't have contacts in the sophisticated industries.

For instance, when I was growing up, I knew many lawyers and other professionals with which I could discuss my career interests. When I came to spend time in a couple poor neighborhoods in Baltimore and Washington, DC on a regular basis, I came to realize that the high school students there did not personally know any professionals, much less any high ranking ones.

Thus, the interaction between legal literacy club members and members of the legal community can do world of difference in addressing the economic segregation that often prevents students of low-income communities from considering high ranking professions.