Advisory to the Pro Se Litigant #6: Include a Request for Reparation in Your Lawsuit

When you file a lawsuit, you should articulate your demand. A demand is your request for money as reparation for the loss or injury for which the defendant is liable. If you require the defendant to take action to make you whole, such as physically moving property intruding on your property, you should include that in your demand. Your demand should be sufficiently clear so that a defendant may know what steps it may take to immediately resolve the dispute you are raising. Determining the appropriate amount to demand can be tricky, and is different in every case. The law governing the wrongdoing you are suing about (and the case law interpreting that law) will often dictate what sorts of damages are available to a successful plaintiff. You may want to consult with a lawyer in considering the appropriate amount to demand. Here are some of the typical types of damages that courts may award. (this list is not exhaustive.) Direct damages: Damages for actual losses due to the wrongful act, such as the cost of property damaged by the harm caused. Compensatory damages: Damages deemed to compensate the injured party for losses sustained as a direct result of the injury suffered (other than those considered direct damages). Punitive damages: Damages awarded to punish the wrongdoer. Double or treble damages: In some cases, such as in cases of unpaid wages, courts may award damages in an amount of two or three times the amount for which the wrongdoer is found liable. Expectancy damages: damages recoverable for breech of contract, designed to put the injured party in the position he or she would have been in had the contract been completed. Emotional damages: damages recoverable to compensate for emotional injuries for a harm done.

A Radical Idea: The Civic Engagement and Community Service Leave Act

In 1993, Congress enacted the Family Medical Leave Act (Public Law 103-5). The objective of this article is to look at the Family Medical Leave Act and raise questions as to whether we should use it as a guide to structure a statute to advance civic engagement. I have been thinking about this idea for a while and have delayed publishing this article because of quesitons I have about the practicality of such a proposal.

The underlying problem I seek to address is that I believe many non-executives/super-professionals are subconsciously barred from playing a leadership role in addressing community-wide issues when opportunities for addressing them arise during their normal work hours. Many executives and super-professionals are given professional credit for their community service and certain other volunteer work, whereas hourly workers and other less high ranking professionals are more likely placed in the position of not being available to community-oriented organization, or other causes about which they care.

My goal here is to raise quesitons about how best to encourage civic engagement, including activism on community issues. My concerns stem from the facts that few people have the leisure to take time from work to address community matters. One way this is often addressed is by having people trade shifts. However, in the family medical leave context, and even in the religious context, there is favorabvle expectation that employers take initiative to acccomodate, although they are not required to take any unreasonable steps in accomodating. In the context of religion, an employer is not required to overcome a union-brokored legitimate seniority system in order to accomodate an employee's religious requirements that he be free from work on his sabbath, but to the exten that religious accomodation may be done consistant with other scheduling rules, effort to accomodate must be made. The Family Medical Leave Act requires that employers wtih more than 50 employees provide employees, who have worked full time for a period of approximately 1 calendar year, with the right to take unpaid leave of up to 12 weeks, provided that the employee is able to show a legitimate medical need for said leave.

There is a certain logic to using the Family Medical Leave Act as a model to address the need for employees with communal needs that must be addressed. The findings section of the Family Medical Leave Act identifies certain societal problems the statute seeks to address. Specifically, according to the statute, the societal objective is "the development of children and the family unit that fathers and mothers be able to participate in early child-rearing and the care of family members who have serious health conditions."

The Findings, thus further, identifies the problem it seeks to address as "the lack of employment policies to accommodate working parents [effectively] force individuals to choose between job security and parenting; there is inadequate job security for employees who have serious health conditions that prevent them from working for temporary periods.

Similarly, it is crucial to the democratic nature of this nation for citizens to be able to participate as citizens in the political world and community world. As Robert Putnum illustrates in "Bowling Alone," there have been steady decreases in community and political involvement. Although it is not clear to me if he says this explicitly, it is certainly implicit in his work that true democracy does not flourish when citizens are not engaged (a) as social members of their local community; (b) as citizens of their local community; and (c) as citizen of the state and national community. In keeping with the logic of this blog, it strikes me that I should include the notion that (d) as citizens with legal rights under the law, democracy cannot flourish if citizens are unable to exercise their legal rights, both with respect to harms done to him or her from both government and other individuals or corporations.

In the "Overworked American," Juliet Schor shows how the societal and economic pressures to constantly work and focus on work creates an effect of a population of dis-involved people, thus affecting people's abilities to act as community members. Illustrative is what was recently being reported out of North Carolina. 84% of North Carolina's young adults report they don't participate in any organized groups, and 67% of North Carolinians overall are not involved in such activities either. However, similar statistics may be found throughout the United States.

Therefore, just as the Family Medical Leave Act was enacted premised on the fact that too many Americans were unable to take the necessary time to be available to their sick family members, so too too many Americans are not available to their community.

Could one fashion a Civic Engagement and Community Service Leave Act modeled off of the Family Medical Leave Act? To address the above-described challenges of workers caring for their family members, employees who work for employers with 50 or more employees in that employee's work site, or within a 75 mile radius of that work site, are entitled to a total of 12 workweeks of leave during a 1 year period. No employer is required to pay for this leave. However, if the employer already provides paid sick personal or vacation leave that would cover all or part of the leave to which the employee is entitled, use of that leave may be counted against the 12 weeks to which an employee is entitled.

Could or should a similar leave protocol be established for members of community and political associations to have leave to handle their needs? Fashioning a fair statute could be very difficult. Employees often use FMLA to address their personal illnesses, which is totally inapplicable to a community, or to help family members address discrete life or death illnesses. Documentation of their immediate need is usually documented by written statements of medical professionals. Communities don't have similarly discrete life or death issues for which a particular sort of professional might be universally recognized to diagnose. In other words, one can rarely report "if I don't assist my community today rather than tomorrow, it will die. Furthermore, people use FMLA for health crises, not for routine care. Our communities needs routine care, not merely involvement in crises.

Thus, I am somewhat at a standstill, but publish this article anyway in hopes that public contemplation of the issues might lead to a legislative fix of some kind.

It is worth noting how the religious accomodations laws are interpreted. To the extent that accomodation or switching shifts is possible for any other reason, it must be acceptable to accomodate religious needs. Thus, one could institute a statute that is broad based, requiring employers to make legitimate efforts to accomodate a certain amount of civic obligations per year, but broadly permits an employer to avoid going through "extra efforts" to accomodate its employees.

As a lawyer, I am well aware that a statute whose language is too vague cannot be enforced. In other words, the statutory provisions must be reasonable clear enough so that a reasonable person can appreciate what actions are made illegal under the statute. If the statute is so vague that a reasonable employer could have had no way of knowing what actions violate the statute, the emplloyer can't be held liable.

Thus, policy thinkers interested in such a staute must think through by what standard an employer might be required to consider accomodating an employee's proclaimed community emergency. Would a community meeting qualify? What about a meeting with the mayor? What about a boy scout trip?

Again, I have no interest in creating a new legal maze that simply requires countless lawyers to negotiate over every twist and turn. Instead, I write to raise the question whether the framework of the Family Medical Leave Act should be used as a model to create a statute to advance civic engagement, which often suffers from the same lack of community care, a problem somewhat analogous to the problems that lead to the Family Medical Leave Act.

Advisory to the Pro Se Litigant #5: File in the Correct Court

Maryland’s Court System includes District Courts, Circuit Courts, and Orphan’s Courts. It is important to File Your Case in the correct court. Most disputes in Maryland are presented to one of the following Maryland state courts: (1) District Courts: Each county has District Courts (not to be confused with the United States District Courts) which hear cases concerning disputes in which the amount claimed is less than $25,000, landlord-tenant claims, and a few other similar type of claims. Cases brought here are heard before judges and not juries. (2) Circuit Courts: Circuit Courts hear disputes in which the amount claimed is more than $2,500, adoption, case, protective proceedings for disabled persons, and a few other matters. Cases brought here may be heard before juries. (3) Orphans’ Courts: Orphans’ Courts have jurisdiction over wills, estates, and other probate matters, along with aspects of guardianship. There are several types of disputes, primarily those with claims between $2,500 and $25,000, which may fall under the jurisdiction of both the Circuit Court and the District Court. In those cases, the plaintiff decides which court to bring his or her case. The factors involved in making that decision is beyond the scope of this page.

Advisory to the Pro Se Litigant #4: If I Have a Lawsuit, How Do I Bring it?

A. Draft a Complaint That Articulates How You’ve Been Harmed, and What Law Has Been Violated If you want the court to hear your dispute, you must file a “complaint.” A complaint sets forth (in numbered paragraphs) the allegations and your demand for relief (payment or other remedy to put you where you would have been but for the dispute). Accordingly, it should have three primary parts to it: (1) On the first page of the Complaint, place a caption that states the court, the names of the parties, the docket number (once one is assigned), the title of the document, such as “Complaint”, and if you know it, the name of the judge (2) Identify the facts that set forth why the court in which you are filing your suit is the proper court to hear such a claim. See below under “Choosing the Proper Court.” (3) Draft a section of “Facts”—stating in numbered paragraphs those facts which illustrate that one or more laws were violated and that resulting harm has occurred. (4) Identify each legal violation for which you are seeking relief. (5) Identify what relief you are seeking. B. The Complaint Must Have Sufficient Details For A Court To Understand What Facts You are Alleging – and What Law You are Alleging was Violated The purpose of the complaint is to inform the court and the opposing party of your claims. You want to make sure it clearly articulates: (1) the infraction committed, (2) the law providing a remedy, and (3) the remedy you seek. Your complaint need not be so thorough as to convince the court of the merits of your case. It need only say enough to show the court that you are complaining about something for which the law provides a remedy. As long as the judge understands what you are complaining about, and the court where you have filed is a correct court in which to file you complaint, it will probably not be thrown out—and you will be permitted to proceed. However, please read the information under “Motion to Dismiss” for further information about how detailed your complaint should be. The purpose of the complaint is to notify the court and the other party of your claims. For the Defendant and court to understand what those claims are, you should identify them adequately. This means identifying the laws under which you are filing suit, and consequently, using as a basis to argue that you are entitled to damages. As you are only putting the defendant and court “on notice” of your claims, you do not need to cite case law to prove the merits of your case at this point. Be advised that many courts have “form complaints” for certain common issues, such as domestic violence, contract claims, auto accidents, and certain types of personal injury, thus avoiding the need for you to research the applicable statutes. “Form complaints” are pre-writen complaints with blank spaces for you to insert the particular facts of your case. Thus, if you are curious if the court has a form complaint for the issue that concerns you, please contact the relevant court clerk’s office.

Advisory to the Pro Se Litigant #3: How Do I Locate the Law that Applies in My Case?

Federal Statutory Law Is In The United States Code 

Organized By Subject Matter Once a federal law is instituted (usually enacted by Congress and signed by the President), it is recorded in the United States Code. There are presently 50 sections (referred to as Titles) of the Code, each dealing with a different broad subject matter. For instance, Title 42 is titled “Public Health and Welfare,” including laws as diverse as disaster relief and civil rights in education and employment. To give another example, title 26 is titled “Internal Revenue Code” and contains laws related to taxation.

Cornell University and The Government Printing Office each have each put the Code on their websites.

 These websites, along with several others, have search functions you can use to locate federal laws that address the topic that interests you.

Maryland has its own Code  

Maryland similarly has its Code divided by subject matter. Lexis and Westlaw, the two most popular legal research websites for lawyers

Past Court Decisions

Referred to as case law or precedent, past court decisions may bind a judge on a given matter. In the American legal tradition (and in other systems that follow the "common law," judges are expected to issue decisions consistent with prior decisions on similar legal issues, namely “precedent.” They are specifically expected to issue decisions consistent with those of higher-ranking courts.

When a party believes that a court has issued a decision that is inconsistent with precedent, he, she, or it may appeal to a higher-ranking court to overturn the decision of the lower court. Because past decisions of appellate courts have an authoritative nature, they are given the expression “case law.”

Because of its authoritative and persuasive effect, attorneys and other skilled advocates rely heavily on case law in arguing for favorable rulings.

 You can find the United States Supreme Court’s past decisions on its website, the Fourth Circuit Court of Appeals’ decisions on its website,  The Court of Appeals of Maryland’s decisions on its website,  and the Court of Special Appeals of Maryland on its website.

 Other public oriented legal websites, such as www.findlaw.com include many of these decisions on their web pages, and have functions which make searching easier. You can also locate various court decisions through legal search engines such as lexis.com or westlaw.com. Many law libraries provide access to one or both of these search engines. Law libraries have other resources with which to search past decisions.

What Thomas Paine's Common Sense Has To Teach Us Today

text: http://www.earlyamerica.com/earlyamerica/milestones/commonsense/text.html Thomas Paine's Common Sense should be read by all Americans for three reasons. For one, as the passing of time has allowed our separation from England to feel inevitable and obviously just, Paine's text provides the reader an opportunity to better appreciate how revolutionary and controversial such advocacy was. Second, Paine's resort to a careful analysis of history and public opinion should educate us as to the importance of scholarship to our country's founding. Third, the similarities in Paine's use of social contract theory to Jefferson's in our Declaration of Independence is a sign of how serious our founder's were in basing their new country's structure on logical principles available in social contract theory. Paine's arguments against the continuation of the British monarchy's rule on our shores is now considered so obvious that readers must read Paine's arguments very closely to appreciate the existence of a pro-monarchy side. In fact, it is only through studying Paine's text closely that one can one fully appreciate the extent to which "Common Sense" was revolutionary, and--although quite possibly -- not necessarily representing the majority opinion of the Colonialists, at least prior to its publication.The text reminds us that our separation from England at that time was not inevitable, even if (at least from our vantage point) eventually inevitable. Thus, Paine critiques and overcomes several arguments in favor of monarchy, such as status quo, natural rights of monarchs, religious rights of monarchs, obligations by virtue of being of English descent, and other "ancient prejudices." Paine's resort to historical analysis leads me to believe that logic and historical analysis played a huge role in the founder's view of why to separate from England and how to form a new nation. Thus, I conclude that in public deliberations, if and when we resort to taking positions that are not based in a good faith analysis of history and human nature, we run the risk of acting contrary to our founder's view of how this republic should be governed. Additionally, if we fail to resort to investigate relevant historical facts to determine our most adviseable course of action, we run the risk of only literally applying the Declaration, yet failing to engage in the serious contemplative arts envisioned by Paine and Jefferson. This point is made even clearer to me when I examine Algernon Sideney's "Discourses Concerning Government." In Discourses, Sidney incorporates both logic and historical analysis to challenge those who advocate for absolute monarchy. Much of his text is devoted to showing why those who argue for the divine rights of kings are misreading Scripture, human nature, and what we can learn from the facts of history. Although he lived a century before the founding of this nation, Presidents Jefferson and Adams considered themselves greatly influenced by the Discourses, and thus the distance in time between the publishing of Discourses and the founding of this county should not be a barrier for our appreciating the role of Sidney's ideas in shaping this county. More importantly, we must appreciate what Sidney does to make his case, and how this is similar to Paine and other writers who influenced the founders. First, as the monarchists rest on Scripture to argue for their eternal rights to power, Sidney shows how this is a misreading of Scripture. In explaining a more proper reading of Scriptural stories and statements that appear to endorse monarchy, Sidney often employs similar techniques that Talmudists utilize by looking carefully at context and language of Scripture to decipher meaning and possible mis-reading. He then addresses what he believes to be common mis-impressions about history. In both the Biblical and historical analysis, he explains what he believes to be the sources of common mis-impressions, and articulates what he sees as a more logical explanation. My point here is not merely to be impressed by thoughtful men. Although there are reasons why Paine and Sidney's texts deserve "great books" status, they also teach us a great deal of how we as citizens should employ contemplation, reasoning and thoughful analysis when considering the issues of the day. It is clear to me that American politics in the 21st century can sometimes resort to a type of language correcness that gives no way for complicated analysis. For instance, various potential political leaders have been publicly attacked for exploring communist though or other disrespected ideologies. Most recently a Senate candidate has been laughed at for having an isolated or a few experiences examining the Wiccan tradition, and thus convinced that her only hope to address the perception was to pronounce "I am not a witch" as if being a member of the Wiccan faith tradition were a barrier for US Senate. Our current President felt compelled to pronounce "I am a Christian, not a Muslim," and was made to answer for unpopular views of his pastor. I think it is fair to say that Sidney or Paine might intensely explore the political views of Ms. O'Donnell and President Obama, but I doubt either would evaluate their political views by drawing vast conclusions from their non-political and casual associations. Another point must not be lost in exploring Thomas Paine's work. As suggested above, Paine and Sidney's extensive analysis indicates that their views were not necessarily in the majority at the time of their writings. Sidney was executed by the State for his views. Thus, it must be telling that the 1776 Revolution was not merely a physical revolution, but a psychological one. It altered the way people saw citizenship. Specifically, it meant that the founders of this country were not scared to advocate rebellious notions. Thus it would only be true to the character of Paine and Jefferson for a thinker to engage in honest examinations and to risk humiliation for articulating one's thoughts. On this last point, I find it a sad state of affairs when individuals are ridiculed for their honest beliefs. Before ridiculing others for their minority views, we need to remember that many ideas we consider mainstream and "obvious" were once ridiculed and considered grossly offensive. Instead, in keeping with Paine and Sidney, those views should be analyzed for their logical consistency with our understanding of human nature and history.

Civic Engagement Today: A Commentary on the Demise of ACORN, the Growth of the Tea Parties, and the College Civic Engagement

Let's start with the good news. According to the recently published 2010 Civic Health Assessment by the National Conference on Citizenship , nearly 60% of Americans have reached out in 2008 and 2009 to help their neighbors and approximately 16% do so every day. Also 75% of us discuss political affairs with family and friends at least once a month. This news is good because it reflects greater attention by citizens into public affairs, even in a long recession. After all, we hope that greater attention means greater involvement, which means a polis holding their government and its leaders more accountable and responsible. However, the favorable news has a dark cloud. While the Assessment reflects increases in volunteering and other forms of citizen involvement, there are important disparities in who is engaged. The following are some disparities about which I am most concerned: a. High school graduates are twice as likely to engage in organizations and to vote than those who have not graduated high school and college graduates are even more likely to be engaged. These statistics are consistent with other statistics that this blogger has read, namely that those with more education are more likely to involve themselves in civic life than those with less education. This problem is not uniquely a function of educational levels, but is often a function of opportunity. Those with greater education levels are more likely to have jobs that value outside philanthropic and social commitments. Executives, for instance, are encouraged to serve on boards of non-profits and community associations. Their work may be seen as good will on behalf of the businesses they represent. Non-executives are rarely valued for any activities done outside of work, and hourly employees are only paid for time spent doing the specific activity for which they have been hired. Hourly employees are, by definition, not paid for any time off the clock, even if the activity greatly advances the objectives of the employer. The effect of these disparities is a society which values the opinions of executives more than non-executives -- and apparently rates of engagement indicate that this may in fact have a real effect on engagement patterns. b. Rural residents are 10% more likely than urban residents to be engaged in neighborly activity. This finding seems counter-intuitive and frankly surprising. One would think that urban folks would be more inclined to see their lives and well-being as interdependent with the well-being of others because of their physical proximity to other urban folks. For instance, a rural individual may not be physically or financially affected by the fact that his neighbor's house has burned down whereas an urban individual whose neighbor's house is burning is more likely to be physically connected with that neighbor either by a common wall, or some sort of shared infrastructure. c. Those who assume community leadership roles are five to seven times more likely to be involved in other civic engagement projects than those who are not members of any group. This is reflected in the fact that only 3% of Americans have attended a rally, protest, or march between 2008 and 2009. In other words, many tend to fit in the category of being hyper involved or minimally involved, thus creating a situation where community associations intended to represent entire communities only represent the loudest and most involved of those communities. I observed this trend when I was more heavily involved in grass roots community organizing. I observed that it was easy to engage those who were interested in leadership roles, but hard to engage those who were well-suited to be foot soldiers in the organizations for which I was recruiting. In other words, they seemed to agree with the purpose of the organization, wanted similar results, but were unable to get involved either because they were too busy with work and family commitments, or didn't see themselves as able to contribute to the organization. In this same time period as that of the study, America has seen the demise of ACORN and the growth of "tea party" organizations. ACORN was a 400,000 member organization that advocated for low-to-moderate income communities. This advocacy sometimes involves issues involving specific communities such as addressing particular bad landlords, and other times it involved larger systemic problems like health care and predatory lending. Although some ACORN chapters appear to remain through open re-branding, thousands of members will are now left without a powerful community association unless they are able to take the initiative to rebuild. Meanwhile, over this same period of time has been a grown of tea party protests where members advocate against what they see as wasteful government spending and excessive taxation. A quick online search as to number of American involved in the tea parties give an impression that a similar number of Americans are involved in the tea parties as were involved in ACORN. Some liberals are likely frustrated over the simultaneous growth of the Tea Party movement and death of ACORN because this confluence of events will likely favor conservative political objectives. However, civic engagement advocates should be concerned about this same matter regardless of personal ideological perspective. ACORN members and the Tea Part movement members are similar in that they come to rallies to endorse politicians and a political agenda that match the perceived self-interest of the members. However, unlike the tea party movement, which appears exclusively focused on electoral politics, and national issues, the local ACORN organizations were known for trying to hold local businesses responsible for their business practices in the neighborhoods in which they lived. Also, ACORN also created non-profits to facilitate home purchasing, obtaining fair loans, and other financial matters that can sometimes be out of reach of poor persons. Furthermore, the stated goals of ACORN included training low income individuals to get involved in community decision-making, and often in politics. Thus, ACORN served a role that went beyond narrow legislative priorities. Although the tea party movement might develop into such an ACORN-style movement, at this moment, its objectives appear targeted at the enactment of legislation rather than the expansion of the political and social process. The decline of ACORN-style organizations and the growth of tea-party style organizing may be reflected in our 2010 Assessment. As mentioned above, the Assessment seems to suggest that a small number of those involved are seeking leadership roles, which makes it hard for local matters to get tackled. Also, the Assessment found that individuals over age 65 are much more engaged than younger folks and those between the ages of 16 and 30 tend to be directed online. In my opinion, this also directs the dialogue nationally rather than locally. Those over 65 years of age are more likely than younger folks to be focused on social security, health care, and other welfare type benefits that they may need. These matters are handled on the national level, not the neighborhood level. As one's online community is not limited by geography, it is not surprising that those between 16 and 30 might not be directed at community-based activism,but might be more interested in national-based activism. Although I hope I am wrong, I am afraid that this contrast reflects some of scary trends discussed in Robert Putnam's masterpiece, Bowling Alone. In Bowling Alone, Putnam characterized a steady decline of in-person social intercourse, undermining the individual's sense of and loyalty to community, not to mention a decrease in the ability of citizens to collaborate with neighbors on social and communal problems. Alternatively put, people can't collaborate with their neighbors on community problems if they are not communicating with their neighbors to know that such problems exist. Thus, although the 2010 Civic Health Assessment gives us general hope that in person social intercourse may be increasing, we are also concerned that the in person social discourse is being directed in ways that do not necessarily advance the needs of the communities in which the social discourse is occurring.

Advisory to the Pro Se Litigant #2: How Do I Determine if Civil Litigation is An Appropriate Means With Which to Resolve a Problem

· Courts Resolve Disputes Only Where There Are Disputes Involving Federal State or Local Law Courts, as part of the judicial branch of our federal and state governments, are charged with deciding disputes under Local, State and Federal law. They determine whether the individual or group being sued, [known as the defendant(s)] has violated the law the individual or group bringing the suit [known as the plaintiff(s)] claims. Often individuals and groups have moral, ethical and religious disputes that do not involve Local, State and Federal law. Courts will refuse to hear disputes that are not governed by applicable Local, State, or Federal Law. · Judges are required to interpret and apply Local, State, and Federal Law, not their own beliefs, ethics, or morals. Judges are not allowed to impose their own morality, ethics, values, or sense of righteousness on litigants. Further, litigants are not asked to try to convince courts of their ethics, values, or sense of righteousness. Instead, courts interpret the law. What does it mean to interpret the law? The word interpret means to: explain or tell the meaning of something. In the context of courts, this is usually limited to (1) determining what laws apply to a given situation or dispute; (2) determining how those laws apply to and govern the particular situation or dispute.

Advisory to the Pro Se Litigant: #1: What is Civil Litigation and Criminal Litigation?

Civil Litigation generally includes all disputes that are formally submitted to a court, where one person (or group of persons or corporation) claims that another person (or group of persons or corporation) violated the law in a way that caused harm. In almost all cases, civil litigation is between two individuals, groups of individuals, or businesses. Governments also engage in civil litigation, both as plaintiffs, and defendants, when they are involved in disputes that do not qualify as criminal litigation. The objective of civil litigation is to make the harmed party/parties whole (make the parties whole =where the party or parties would have been absent the harm). Criminal Litigation generally includes disputes where a government is seeking to punish an individual or group of individuals for harms they caused society. The classic example is that of a murder where although there might be some form of retribution as part of the punishment, the objective is not necessarily to make the harmed party whole (which is impossible in the case of murder), but to punish the wrongdoer. Also, unlike civil litigation which is between individuals or groups, criminal litigation is brought by the government against the alleged wrongdoers.

Idea: National Museum of (American) Law

For all of us who live in the Washington DC area, the Smithsonian museums reflect the diverse range of things Americans think about. A walk through the area of town that houses the Smithsonian Museums is a walk through through a reflection of the greatest thoughts and triumphs of humankind. Included in the Smithsonian are museums dedicated to great art, history, and nature. I suspect that over the course of the many years that Americans have been traveling to Washington to explore the museums, those trips have inspired people to explore new fields and advance their own education.

To me, it is striking that there is no National Museum of American Law. Although law gets a mention in all the museums that cover American history, there is no museum where one can dedicate oneself to understanding the role of law in society as a whole, and American society specifically.

I write here to propose the establishment of a National Museum of (American) Law to advance the knowledge and appreciation among the general public of law itself, and American law specifically.

My most recent inspiration for this post came from my visit to the museum of Crime and Punishment. There, there visitor walks through world history of the adjudication and punishment of crime (and alleged crime), with panels specifically discussing those infamous criminals and crimes that are still the subjects of coversations among many Americans, like Al Capone. The attendees to that musuem walk away with a (albeit superficial) idea of the history of crime in the world and the history of how civilized society has addressed crime.

As law is not merely a subject of esoteric discussion, but a real aspect of all American lives, it is important that a museum of American law go beyond appreciating world history, or the history of American law. My vision would be that each attendee see their own potential for impacting American democracy, whether it be directly participating in town meetings or involvement in advocacy organizations at the local, state, or national levels. And frankly, history is full of stories where individuals of no particular stature make drastic effect on the law in the scope of speaking on behalf of his or her rights or business needs.

For instance, I imagine an exhibit where attendees are invited to consider the proper form of government for a theoretical new country, much as the founders of this nation had to do. In this exhibit, one would walk through the the basic forms of government that made up the ancient world, walking through world history. I imagine each panel could include an description of a form of government and examples of where that government was instituted, and an image of the kind of legislative issue that is unique to that government system. Perhaps a picture and a story reflecting how constitutional decisions were made. Other exhibits could focus more closely on ways in which common citizens engage with the law. Ways in which the law affects them at school, work, housing, community associational decisions, and even their engagement with religious institutions. Frankly, any subject matter that makes up a unit of study in a school of law is necessarily worthy of consideration in a museum of law because any subject of dispute in law derives from substantive disputes in society to which American can relate. Even the esoteric subject of intellectual property comes to life when one considers the musician who wishes to profit from his music or the painter who wants to negotiate with his boss for rights to the paintings he does while at work. Even the subject of international law comes alive when one considers their desire to sell his American made wares in a store in Canada. Other exhibits could consider the moral questions that serve as the source of law. Examples include classic questions of whether it is right to harm a few individuals for the good of the whole society (utilitarianism) and whether one has the right to city services like fire service if he or she doesn't pay required taxes. This last question is often asked as an esoteric question but became very real when on or around October 5, 2010, a family in Tennessee lost their home when the fire department refused to extinquish a fire in their home due to the fact that the family failed to pay their fire service fee. See: http://news.yahoo.com/s/yblog_upshot/20101005/pl_yblog_upshot/rural-tennessee-fire-sparks-conservative-ideological-debate. There may be numerous ethical stories like these that pose dynamic legal questions, and thus may be used to demonstrate the role of law in society. The ideas in this essay require more thought. However, I write this in hope to advance the dialogue of how best to engage all Americans in the legal world that affects them so. I further desire that any audience to such a museum be inspired to engage in their own study and investigation into the laws that affect them, and thus feel empowered to advocate for their alteration to the extent appropriate.

Lawyers: Are We Prepared to Practice and Serve (those in need)?

Earlier this month the American Bar Institute, the American Bar Association, and the Association for Continuing Legal Education published a final report from its October 2009 Critical Issues Summit entitled “Equipping Our Lawyers: Law School Education, Continuing Legal Education, and Legal Practice in the 21st Century.” It may be found at: http://www.equippingourlawyers.org/docs/final%20report.pdf. The purpose of the summit was for CLE professionals, law school deans and faculty members, law practitioners, bar leaders, judges, mandatory CLE administrators, and law firm educators to evaluate whether lawyers are provided the adequate resources necessary to address the legal needs of the society in which we work. Otherwise asked is the question of whether lawyers are adequately trained to address the legal needs of society. I was pleased to find that the final report contained a full section on increasing access, and the role of lawyers in making that happen. Specifically, it states that lawyers have a professional responsibility to serve the underserved, and to begin nurturing that obligation in law schools. Also important was that the report implored the local legal communities to collaborate to assist newly admitted lawyers to develop the skills that help them to provide effective legal services to underserved communities. This finding recognizes a crucial aspect of the disparity in legal assistance between wealthy communities and low-income communities. Wealthy individual and larger businesses are not getting better legal services solely because they have more money. It’s more complex. Because wealthy individuals have more money to spend on legal services, they create a marketplace. Thus, lawyers train themselves to develop expertise in the legal areas, not merely because they can serve wealthy individuals, but because they are more likely to have full time paying work if they specialize in areas where there are plenty of paying clients. For instance, lawyers can not develop a practice specializing in tenant rights or the rights to secure government services for low income persons unless they also know how to obtain grant money or a job with an organization knowledgeable at receiving grant money. Accordingly, because wealthy individuals and larger businesses can afford more legal attention, and thus provide a marketplace, law students and young lawyers are trained to meet that need. Thus, young lawyers find themselves without knowledge and training on areas of the law that affect low to moderate income people. Economists explain this phenomenon by the term “supply and demand.” Thus, focusing at the educational level assures that there is a supply of lawyers able to meet the demand for their legal services. It is worth noting another institutional aspect of the legal field that impacts why low to moderate income people are not usually served by the legal community. Law students are trained to, un-ideologically, serve their clients’ legal interests. They are trained to avoid, and in fact implored against, imparting their own values and ethics on their clients. Additionally, most professional responsibility curriculums discuss ethical advertising, but do not focus at all on using ethical considerations in determining which fields to service. In other words, for the most part, there is no place in the law school curriculum where the average student is asked to evaluate society’s legal services against society’s legal needs. In my experience and in the experiences of those with whom I have spoken, law school professors act as if it is a given that absent discrete pro bono obligations, one has responsibility towards their paying clients and has no professional obligation to lower their fee for those who cannot afford to pay a full fee. In other words, it is simply presumed that one works for those who pay, and one stops working when those who did pay, stop paying. Thus, law students often graduate without any sense that they have a professional responsibility to anyone other than the paying client. Therefore, the inclusion of training new and young lawyers, in the skills necessary to assist communities not being fully served, can drastically expand the options for service. It is a known fact that the legal community is not yet adequately addressing the legal needs of the larger community. In 2005, the Legal Services Corporation published a study, “Documenting the Justice Gap in America – the Current Unmet Civil Legal Needs of Low-Income Americans,” in which the Corporation reported that the Legal Services Corporation, due to needs and lack of resources, was turning away one eligible client for every one it helped. It also found that over 80% of the legal needs of low-income Americans were going unmet, as did the American Boar Association in a 1994 survey. The Legal Services Corporation survey found that the primary unmet legal needs fell in the following categories of topics: consumer, education, employment, family, juvenile, health, and housing. This problem is not limited to the poorest of households. In 1995, Mark D. Killian, in the Florida Bar News, wrote that 79.5% of all Florida households have no access to the legal system, noting that this is not limited to those individuals who are poor or moderate income. Many other states share similar problems, and have published their own statistics to prove it.

Some Inspiration for Law Day -- from India

This past Saturday (May 1) was "Law Day." Pursuant to 36 USC 113 (1958), the statute instituting law day, the purpose is to appreciate liberties and loyalty to the United States -- and "(1) rededication to the ideals of equality and justice under the law in their relations with each other and with other countries; and (2) for the cultivation of the respect for law that is so vital to the democratic way of life."

One can get an impression about a society’s ideals by looking at what events and holidays are commemorated or celebrated. Although the enforcement of Law Day does not come along with the kind of community activities and public programming that one may associate with Martin Luther King, Jr. Day or Christmas, the institution of the day and the repeated proclamations by a series of US Presidents, encouraging involvement in Law Day activities, indicate the extent to which our society’s goals include equality, justice, respect for the law, and a democratic way of life.

Law Day was instituted in 1958. President Eisenhower signed a proclamation that specified the day as a day to remember “with pride and vigilantly guard the great heritage of liberty, justice and equality under law which our forefathers bequeathed to us.”

He further proclaimed “it is our moral and civic obligation as free men and as Americans to preserve and strengthen that great heritage.” Although Law Day was signed into law, several presidents, including our most recent (Clinton, Bush, and Obama) have issued proclamations endorsing or repeating the ideas proclaimed by President Eisenhower.

The key to making Law Day meaningful is to determine how best to strengthen the heritage of our legal system, the ideals of equality and justice, and the democratic way of life. Most of the articles in this blog have leave me wondering “what can we do” about the problem of legal literacy and civic engagement. One can easily imagine the democratically and legally engaged society, but we rarely see activities today that advance the cause.

Like the United States, India is a large nation where many are unaware of their rights, and further unaware of how to act on them. Concerned about this, the bar associations in India have begun to create and endorse some very innovative ideas. These ideas inspire me that a change of course is very possible.

On April 28, 2010, the Times of India published an article “Legal Literacy Chariot Launched in Dharwad.” A similar article was published in The Hindu. The articles discuss a campaign to educate those in rural disconnected areas, about the legal system upon which they live. Rural Indians’ primary legal needs involve disputes over public utility services, proper policing, and social welfare.

Thus, the legal literacy chariot provides lectures to the people on these subjects, human rights, and consumer rights. As these programs are very new, we presume results are not yet available. Justice Elipe Dharma is quoted in another article stating that inaugurating a legal literacy and awareness camp in Chennai, India says that access to legal aid and legal advice is crucial to making effective legal institutions. India’s legal literacy push is not limited to poor rural communities.

In Haryna, between one thousand and 1500 schools and colleges have within them newly formed legal literacy clubs using creative educational techniques such as writing, poetry, and paintings. Many of these club members are trained to spot legal issues in their community and introduce those in need with legal aid. Additionally are instituted legal literacy camps to apprise women of their legal rights, such as protection from domestic violence and sexual harassment.

To me, the concept of advancing legal literacy clubs seems to me to be a great way to advance the culture of respect for the law and the democratic way of life.

The democratic way of life suffers most when citizens do not believe their problems can be resolved through established legal channels, or that they have no access to the powers-that-be to advance needed changes. With legal literacy clubs, a population of young people is empowered to identify legal needs and to educate those in need about potential legal remedies and options.

Furthermore, social contract theory teaches us that when those with legal problems are aware that legal resolutions are available and functional, they are far more likely to resort to safe and legal means than those like to cause great social harm, like those of gangs or the mafia.

From the news articles in The Hindu, I have the impression that the school-based legal literacy clubs were formed primarily to address the technical problem of outreach to those needing legal help. However, I suspect that the social benefits are incalculable. Although I can't speak for India, in many communities in the United States of America, teenagers face very little social pressure to do good, only to do bad and involve themselves in behavior that is harmful to themselves and others.

Thus, mere visions of ethics, morality and justice are left to compete with the immediate gratification available from other sources. Legal literacy clubs, on the other hand, if done correctly, would likely provide an opportunity for legal literacy to be “the cool thing to do,” creating social pressure to be part of a generation of youth who are far more likely to advance civic society and justice than create damage to it.

Legal Literacy Day -- an Idea Worth Promulgating

I was inspired to read the following address at supremecourtofindia.nic.in/new_links/NLLD.pdf. I am not particularly familiar with legal literacy day in India -- or anywhere else for that mattter--and so I can't speak to whether the day is effective. However, to the extent that such a commemoration here might have the effect of creating educational opportunities for communities in need, I must wholeheartedly endorse the activities that would lead to citizens' familiarity with their rights and responsibilities. The following essay succinctly articulates the need to advance legal literacy in the general public in India, and I think the general arguments apply no less in the United States of America. ADDRESS ON THE OCCASION OF NATIONAL LEGAL LITERACY DAY ON 9th NOVEMBER, 2006 Y.K. Sabharwal, Chief Justice of India The growing number of issues and problems that plague societies today has given rise to the many causes that demand support from the people of the country. Be it the environment, poverty, literacy or public health, each cause is clamoring for public attention – and in an effort to get such attention, governments and organizations have come together to devote a particular day to a particular cause so that awareness may be raised regarding those issues. We have an Earth day to increase environmental awareness, we have an International Women’s day to increase genderrelated awareness and similarly we have a Human Rights day, a World AIDS day, a World No Tobacco day and many, many others. Today is Legal Literacy day and it is only right that we take some time out of our busy schedules to talk about legal literacy – what it is, why it is important, and how we can promote it. In order to understand the relevance of legal literacy it is necessary to first fully comprehend the legal goals of our country. Once these legal goals become clear, legal literacy can be given a definite direction. For what the legal goals are, let us only see, what is laid down in the preamble of our constitution. It commits the nation to justice and to equality. However, these goals of justice and equality aren’t purely legal terms by which only the laws and courts of the country must abide. Under the constitution, they demand a larger commitment. The preamble mandates not only of justice in its legal sense, but social, economic and political justice and equality of status and opportunity. Undoubtedly, the country has made tremendous progress and development but, at the same time, we all have to bear in mind that despite the guarantee of such high ideals and despite the provision of a truly comprehensive constitution to assist in achieving these ideals, we seem to have fallen short of many of our goals towards a large section of the society. We are still a country where millions of people live in conditions of poverty, with millions living in conditions where they are without the most basic of their needs fulfilled. Unfortunately, this class is far away from achieving many of the ideals laid down in our constitution. And it is not only the constitution. A number of statutory provisions have been made allowing for social welfare schemes and other legislative measures to alleviate the vast deprivation in our society. Yet, these programs too often have been unable to reach those most in need. It is my firm belief that laws or legal institutions will not be completely effective as an instrumentality geared to deal with issues of poverty or deprivations unless we first strengthen the mechanism of legal aid and advice. So where exactly does legal literacy step in? The answer is simple. If legal literacy means making people aware of their rights, then by making the people literate, we would essentially be taking the first step in empowering them to fight for their rights. Our society is filled with various categories of persons whose rights are violated on a daily basis and these persons are unable to take any action to remedy this situation simply because they aren’t even aware that they are assured certain rights. Particularly at risk are various vulnerable groups including the Schedules Castes and Scheduled Tribes, women, children and the disabled. These groups include those who have either historically been oppressed and denied mainstream opportunities or those who by their specific conditions cannot function as the mainstream does. Here is where the role of legal literacy is crucial. I truly believe that legal literacy is the core basis of the rule of law and essential for the survival of our constitutional democracy. Indeed, our entire justice delivery system is based on the presumption that all people are aware of their rights and are able to approach the concerned institution. I cannot stress enough the importance of education – it is perhaps the single-most empowering tool in any aspect of life for every person and the law is no exception. Indeed, most often it happens that the poor, the deprived or the exploited of the country remain poor and deprived and are unable to seek redress simply because they are not aware of the rights they are guaranteed and the remedies that are available. Legal literacy helps break this vicious circle by providing a way out for such people. It enables the deprived or disadvantaged sections of society to recognize violations of their rights and effectively challenge such violations. While it is true that education cannot single-handedly achieve this goal, education is essential to provide the necessary impetus for their achievement. It is important to remember in this regard, that legal literacy cannot simply be understood as creating awareness regarding the rights of the people, for any efforts towards legal literacy necessarily involves a broader approach. When we say legal literacy, we do mean an awareness of rights, but such awareness must go hand-in-hand with awareness regarding the remedies, the relevant institutions and the procedure required to obtain that remedy. The point of legal literacy is to familiarize the weaker sections of society with their rights, their scope and also provide them with information required for the assertion of such rights so that they may be able to take action and bring about a change in their circumstances. It is only when such comprehensive education is given, that legal literacy can be said to have been meaningful. Once the deprived are made legally literate in this manner, we can confidently believe that we are one step closer to achieving the goals that our constitution has laid out for us. This is because an improvement in legal literacy will translate into the improvement of the financial status of the people, which in turn takes us closer to social justice and equality of opportunity. For example, when a worker is made aware that he or she is entitled to a minimum wage, and is also informed of the appropriate forum for the remedy and that he or she is entitled to free legal aid, the battle of that person will be half-fought already. However, for legal literacy to be truly effective, information about the law must be spread in a simplified form. The first impediment that would be faced in this regard is with respect to language. The legal language of the country is primarily English – even our constitution is in English. How then can we expect those who do not speak or understand the language to be aware of their right to life or right to equality or any other right. Another aspect of the matter is the criticism that legal language is overly complicated and even those familiar with the language are often uncertain as to the meaning of many provisions. To ensure effective legal literacy, it is essential that the legal provisions – including legislations, rules, notifications – which guarantee certain rights must be simplified and translated into the language of the common man. The advantage in this regard is that there is no formal dissemination of information required. Anyone with an understanding of the law and the knowledge of remedial process and the ability to convey it to the person can be just as effective. Thus, all these factors must be taken into account while spreading awareness regarding legal rights and remedies. Another factor which plays an important role in the legal literacy mission, in addition to awareness amongst the people, is the perception that people have regarding legal institutions. It is necessary that people not only be aware of their rights and remedies, they must believe that the enforcement of such rights is possible and that they will get adequate remedies within a reasonable time, on a reasonable expense or no expense. Public perception of the legal institution is crucial in determining the success of such institutions. There is a direct proportionate relationship between the faith the people have in an institution and the success of that institution. Therefore, it is necessary for the success of legal literacy that people must have faith in these institutions, if they are to rely on them for the enforcement of their rights. A lot more is required to be done by all organs to tackle the problem of time and expense. There does seem to be some marginal improvement in this direction but we still have a long way to go. Yet, another factor which will definitely play an important role in the years to come regarding the public faith in institutional mechanism is the Right to Information Act. Armed with the knowledge that certain information can always be acquired, it will help the institutions to command public faith and the public in turn can quite confidently believe that the institution is acting bona fide. However, the achievement of legal literacy is not an easy task, nor can it be accomplished by one or two institutions alone. It is absolutely essential that all three organs of the state must work tirelessly together. And it is not just these three organs of state alone. They too require the support of NGOs, particularly those which work at grassroot levels, individuals who have dedicated themselves to certain causes, international organizations, the media etc. Law schools also have a vital role to play where a new generation of legal talent is being trained and enthusiastic students can be used to conduct legal literacy camps as is being done now. Everyone must come together and work in harmony and thereby do their bit to serve the society. This does not of course mean that legal literacy is a magic, quick-fix solution, where with a flick of a wand all problems will disappear. The process of educating the masses of their legal rights will necessary involve a gradual change and we must have belief in the cause as well as sufficient patience to be able to finally see the results. It is also important to remember that the problems that our society faces today all feed into one another and the effectiveness of legal literacy will be largely dependent upon the extent of such problems. Let me give an example. A person approaches a particular institution for a remedy and is faced with a corrupt official who demands a bribe, the person may be unable to obtain the remedy though he or she has been made aware of his or her rights. The same corrupt official may act differently while dealing with another person realising that he has the ability and capability to challenge such a demand. The cycle of poverty and deprivation thus becomes more difficult to break when it is faced with external challenges such as corruption. Other such hindrances include red-tapism, unnecessary delays, etc. However, we must not let these problems deter us. We must continue our efforts with great determination and perseverance. Indeed, our efforts at promoting legal literacy can even assist in easing other problems such as corruption, poverty etc. Even though these problems spiral off each other to make each other worse, the solutions to these problems also play off each other and a victory in one area is a step towards remedying the other problems. In conclusion, I would like to note that while we have taken Legal Literacy day today as an opportunity to discuss various issues, we cannot forget these issues tomorrow. The solutions to the many problems that can be tackled through legal literacy are not going to disappear overnight. Nor can our efforts end when the day comes to a close. Rather we must regard today as a renewed commitment that we have made towards legal literacy and strive to achieve all the high ideals that have been spoken about today, throughout the year. My Best wishes. Thank you very much.

Eliminate the Text Book Controversy - Teach Classics

Every few years it seems that the nation is embroiled in conflicts over history. Most recently, the conflict arose and ground zero was the Texas Board of Education. There, the Board voted in a series of revisions to its requirements for the course “United States History Studies Since 1877.” I contend that these conflicts could be mostly avoided if students were encouraged to read classical sources rather than text books that define the "story" branded "history."

The nature of the revisions is alteration of the concepts students are expected to master. In other words, the Texas Board of Education, as do many boards of education, votes of principles and concepts they expect students to master over the course of their schooling. Then the text book industry creates text books to cover this list of principles and concepts.

According to an article I read in the Financial Times the other day, because Texas is a populous state and thus a large purchaser of text books, the buying power they have means that their standards tend to affect what text book makers make available throughout the country. The article said that "Historically, this has, in effect, allowed it to dictate the syllabus in smaller states."

One fight concerns what students should learn about the Founding Fathers' belief in the separation of church and state, and another relates how to definate or connote terms like "capitalist" or "free enterprise system." In other words, are these favorable terms or negative terms?

A right-leaning organization published its concerns that the left was speaking out because they want to teach history infused with a left-leaning interpretation.

A left-leaning organization published its concerns that that the proposed changes from the right would lead to a distortion of history by creating a focus on right-leaning thinkers and a decreased focus on left-leaning thinkers.

Part of the underlying problem is the extent to which members of the general public are made to presume that a text book can adequately give an unbiased overview of history. Sadly, this is not really possible. Try the excercise of writing a few paragraphs on a controversial topic (e.g. "the Reagan revolution"; "the abortion debate"; or whether slavery was the primary cause of the civil war). Try hard, in only a couple or three paragraphs, to adequately capture differing views on the subject matter, realizing that your target audience may have no knowledge of the subject matter. Then show your paragraphs to 20 individuals who have strong and diverse opinions about the subject matter about which you are writing. I contend that you are sure to be accused of at least inadvertaint bias, and you might even be convinced that you simply aren't familiar with the whole story.

This problem can be addressed by seeking to escape the text book controversy, and invite students to learn history through the examination of original sources. Readers of Thomas Jefferson's original writers can determine for themselves what they thought of his religious views. Readers of the Adam Smith and Karl Marx can better understand the concepts underlying capitalism and communism than can readers of a text book trying to narrow Smith and Marx into sound bites.

A study of original thinkers makes students think for themselves. Although the text book reader is invited to think that they are receiving "the" story, readers of original source materials are naturally aware that they are reading the views of a particular thinker, who may or may not reflect the views of others.

The is an important valid criticism of "great books" programs. Although "great books" programs educate its readers as to diverse ideas and diverse concepts, it is arguably impossible to get through the history of the United States through one year of study if one is bogged down in comprehensively understanding the complexities of a particular social movement.

There are two answers to this criticism. First, perhaps history curriculums unnecessarily expect its readers to spend time remembering facts that are not so important.

Second, and more importantly, there exists summaries of history that are not artificially authoritative "text books." For instance, when studying the ancient world, one can read Herototus and Thcydides without getting the misimpression that the text has no author's perspective. In the modern world, the same can be true of reading DeToquiville's account of America's founding, Howard Zinn's "People's History of the United States, Paul Johnson's History of the American People, and Max Lerner's America as a civilization." All of these books are individual's accounts of American history. They contain many of the same facts that may be found in the text books, but are not riddled with the same false impression that they represent the "official" story line.

Even The Bible Endorses A Transparent Legal System and A Layered Judiciary

Text: Exodus 18

Although I am no advocate of breaking down the separation of church and state, I am also comfortable with using the Bible as a source for understanding legal and social concepts. Thus, Exodus 18 provides an excellent source from which to understand certain crucial legal concepts.

A. The text itself

In Exodus 18:13, we find Moses acting in the role of the judiciary, “sitting to judge the people…from morning until evening.” In Exodus 18:16, Moses explains that “whenever they have problem, [namely the citizenry] they come to me and I judge between man and his neighbor. I impart to them God’s statutes and laws.”

From this last line, we are thrust with the impression that the people for whom Moses is judging are unaware of “God’s statutes and laws.” In Exodus 18:18, Yitro, Moses’ father-in-law, expresses concern about Moses’ wearing himself out by endeavoring to be the sole decision-maker. Thus, he advocates, the following: (1) enlighten the people as to the statutes and laws; (2) seek out capable, honest, incorruptible people to serve as judges, so that Moses would charged only with the “major” problems.

Yitro concludes his recommendation with a line that warrants interpretation, and probably deserves multiple interpretations. He says: “If you do this, and God commands you to do this, you will be able to survive, and also this entire people will come to their place in peace.” Moses complies with this suggestion.

B. The concepts therein This story is an excellent illustration of several legal and constitutional concepts, along with ideas central to this blog.

A government of law, not men

Yitro advises Moses to educate the citizenry about the laws that govern their social conduct. Educating the citizenry as to laws that govern conduct is not required merely to maintain the power of a government. In fact, many regimes throughout history have maintained control over society by exercising power randomly and maintaining a state of confusion and fear as to what actions might be lawful or unlawful. Often in those societies, the people are uneducated as to rules under which they live, so they are often unable to truly decipher when the governing powers are abusing their authority.

However, when the citizens know the law, they are more likely to disdain abuses by government or government officials. It also strikes me that citizenries with knowledge of the law in which they live are more inclined to be fair and egalitarian. For one, when citizens are equally aware of their rights, it is harder for one to take advantage of another and easier for individuals and groups to exercise their rights.

Additionally, when the law is publicly available, there is a general sense in society that they live under the rule of law, making an example of John Adams’ expression “a government of law, not men.” The term, “a government of law, not men” is essential to understanding the American legal system. In the American judicial system, judges are required to rule based on the application of the relevant law.

Although every judge is influenced by his or her own morality, ethics, and personal desires, his or her judicial decisions are required to be limited to applicability of the law at hand. As a lawyer, I often find myself telling potential clients, “as much as I think you have been morally and ethically wronged or mistreated, I do not think the law provides a remedy.”

2. A layered judiciary with distinct appellate courts

Yitro instructs Moses in 18:21 “You must seek out from among the people, capable, God-fearing me, men of truth, who despise gain. You must then appoint them over the people as offices… Let them judge the people at all times. Every major problem they will bring to you, and every minor problem, they shall judge by themselves.” The text itself provides for a layered judiciary where minor problems are handled by the lower court and major problems are handled by Moses himself. In American law, all trials are handled by lower courts and higher courts are assigned to address legal questions the lower court may have gotten wrong or not properly thought through. Thus, litigants who believe that the trial court has ruled incorrectly may appeal to the appeals court and obtain a ruling requiring the trial court to apply the law differently. I have reason to believe that Yitro has a similar notion in mind.

In Numbers 36, the brothers of Zelophehad, a man who died without sons, appealed to Moses to assign his land to them rather than to Zelophehad’s daughters, as if they married men of another tribe, the land would be cut off from their tribe. Presumably, the brothers of Zelophehad sought the assistance of Moses after not obtaining a satisfactory result from the trial court.

3. Caselaw

Moses rules that the land should be passed to the daughters, but that the daughters should marry within their own tribe, but avoiding any cross-tribe land transfer. The text indicates that Moses ruled according to God’s instruction, but it is unclear if Moses sought God’s instruction in this particular case, or if this is a reference to the notion that courts of appeals are regularly asked to interpret the law—and once they do so, their rulings have the legal affect of being treated as if they were literally the text of the law. In other words, Moses, as an appellate judge, considered a factual scenario that the law did not explicitly address, and interpreted the law in a manner so that it could apply to the situation at hand. The Torah concludes the text by indicating Moses ruled according to God’s instruction. Similarly, appellate court seek to rule according to the written law they are applying—and once they rule, principles of the rule of law require that everyone treat the court’s decision as if it were the law itself.

Conclusion

American law did not form in a vacuum. Many legal principles we employ have precedent in numerous other contexts. The Bible can serve as an attractive reference point because the text is treated with so much importance by so many people. I personally find it so very fascinating that in only a few pages of Bible text I can explain so many legal principles applicable to our present legal framework. In fact, I would not be surprised if further examination of the texts I discuss here would yield even more legal concepts. It is just so fascinating.