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.

Could Mobile Applications for Civil Services Lead to Greater Engagement

I recently read that in February 2011, the city of Arlington, Texas launched a mobile phone application that allows citizens to access certain city services like reporting certain crimes, pay bills, apply for permits, search for local jobs, or use the city directory to contact people and organizations throughout the city. The article focuses on various benefits to participants like the ability to avoid long lines. I am particularly inspired by the opportunity for citizens to access the city services after hours and without having to take time off work. The article discusses the fact that various small cities and some larger cities throughout the country have done similar things. For instance, Boston allows citizen to address issues such as potholes, graffiti, streetlights and other. The article does not address two other side benefits, probably not considered by the mobile application creators. Accessibility to city services is a key indicator of citizen commitment to the social contract, namely that one can put their trust in government officials to address the matters we put in their hands. Second, that the city is and should be responsive to citizen needs, and thus it is the citizen's democratic right to influence what services are made avail ably and prioritized by the city. In other words, the citizen who believe "downtown" has no level of responsibility whatsoever is not likely to put faith in the government structure, and might be inclined to engage in bribery, gangsterism, and other anti-social behaviors. He also is less likely to engage democratically because he would consider it pointless. The citizen benefiting from responsive city services is likely to endorse the existing government structure, support the laws in place, and engage in movements for democratic policy change, rather than considering non-democratic methods for advancing policy adjustments. There are very few topics more important to discuss on "law day" than the relationship between the accessibility of civil services to the social contract and democratic and engaged citizenry.

Teaching Law Through Teaching Students Legal Principles that Affect Them

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

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

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

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

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

The answer is now: yes!

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

Yes!

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

Yes!

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

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

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

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

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

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

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

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

Wisconsin Latest Front for Advancing Legal Literacy?

The State Bar of Wisconsin's Public Education Committee is starting to present panel discussion events to educate the public about their rights. The first event will be in a couple weeks, Monday, April 11. According to the Press release I read, the State Bar has a history of doing events for students, and this is its first serious foray into adult education. They have even created a Adult Education Task Force. This writer is very excited to read and write about legal literacy advancement in his own country, and hopes to continue to report on additional state bar associations taking on public legal education.

A Presidential Commission?

Rick Shenkman (professor of history at George Mason University) and Alexander Heffner (director of Scoop Seminar, a civics and journalism education program) wrote in the St. Petersburg Times this week that the Obama administration should appoint a high level commission to confront the lack of knowledge about politics and government among many of Americans. The article points out that studies that show that only 20% of Americans know that the Senate has 100 members, and only 14% of young people Americans can find Iraq on a map.

This lack of knowledge among the average American either leads to absurdly low levels of civic engagement among the uninformed populations -- and then when there is civic engagement, it is not necessarily based on thought-out understanding of national policy priorities. I'll add that this was evident in the 2009-2010 debate over national health care, where many Americans truly believed that the President's legislation actually created "death panels" and thus protested the legislation on this basis.

Additionally troubling were the number of Americans preaching about the constitutionality of national health care without viable theories as to what constitutional principles were implicated in the legislation. The article takes the position that a Presidential Civics Commission would galvanize civic leaders and focus the public to the problem, thus improving civic engagement.

I agree that citizen engagement is a national issue worthy of Presidential attention. However, I worry that a Commission would do nothing more than study the problem and articulate what has already been articulated. I think a Commission could have value if it were tasked with advancing curriculum and policies in the school and community settings that engage kids and citizens in the democratic process. Perhaps the Commission could study what kinds of legislation and policies would make it easier for the average citizen to engage in the democratic process.

Innovative Idea:New Lawyers Represent At Least One Indigent Client

The Chief Justice of Ghana, Georgina Theodora Wood, said in a speech to a recent regional Commonwealth Human Rights Initiative conference on access to justice for indigent arrested persons, that all new attorneys should be required to assist at least one arrestee secure a fair trial at the start of their law practice. According to Justice Wood, many poor people in Ghana don't know their right to be silent, how to learn the cause of arrest, and other rights that the non-poor know how to enforce, mostly through quickly obtaining counsel. She further advocated that the Ghana Bar Assocation do more educational programs for the public at large concerning their rights. The notion that new lawyers should start their career by taking one pro-bono case is a powerful one. It establishes the notion that being a lawyer is as much a responsibility towardsd addressing social needs as it is in engaging in busines. In my opinion, it is an idea worthy of consideration in this country as well. Justice Wood's suggestion is designed to assure that lawyers identify the start of their career with pro bono experience, in hopes that it will infuse them with a lifetime commitment to periodic or regular pro bono work. It further promotes the notion that being a laywer is not just a job, but a profession with a role in society to secure justice for both those who can afford our services, and those who cannot. I look forward to hearing how this concept develops.

Courts Funding is An Essential Aspect of Democracy

In the November 2010 issue of the ABA Journal, Stephen N. Zack, President of the American Bar Association wrote that "while dockets nationwide experience unprecedented caseloads, funds available to state judiciaries have decreased significantly." According to Zack, there have been budget reductions, layoffs, pay cuts, hiring freezes, and furloughs. Zack notes that there has been " enormous upswing in the number of federal filings [yet] Congress declined a request from the Judicial Conference of the United States to create 69 new federal judgeships." Zack points to the fact that there have been great increases in bankruptcy filings, and other problems that stem from economic problems, including divorces. Zack also points to the problem of increased pro se litigation due to the inability of individuals to afford lawyers. Zach cites to a study in which 78% of judges say that lack of representation has a negative impact on the "way court operates," which I interpret to mean impact on efficiency and fairness. Zack points to the American Bar Association Task Force on the Preservation of the Justice System to " highlight the debilitating impact of underfunding on the American justice system" by holding hearing and meeting with legislators. Although I can not speak to the specific work of the Task Force, I applaud the efforts, and fear that the goals of the task force could even be less ambitious than necessary. I have read several articles from leading public interest attorneys about the effects on the justice system of the decreasing funding that the system is getting. However, I fear that the arguments made imply that the system was satisfactory prior to the funding cuts, when in fact they were not. Court funding needs to be increased to pre-decrease levels, and increased beyond that. Courts should be funded sufficiently so that cases move along at a pace reasonably appropriate for the litigation involved. Often judges have so many cases on their plate that it can take months to rule on motions, and to schedule trial. I once worked on a case that was ready for trial at one point, but was repeatedly delayed so that the case was ultimately heard seven years after the lawsuit was filed in court. Consequently, many of the witnesses forgot the facts and each party had to pay their attorneys additional monies to remind themselves of the facts before trial.

These delays also give an unfair advantage to parties with more money, more stability, and other resources, e.g. corporate parties. Individuals are at a disadvantage when there are great delays because witnesses forget, move away, and lose touch. Corporation with more institutional experience interacting in the justice system can institute safeguards. Additionally, defendants can find ways to hide their assets if they the case is likely to take years before a possible judgment. A factual assessment of the effects of these delays would be reflected in the phrase "justice delayed is justice denied."

Also, judges with dockets that are too large have an incentive to dismiss as many cases as possible, to try to work towards a more manageable docket. I certainly don't mean to allege that any judge would intentionally dismiss a meritorious case just to feel less overwhelmed. I do mean, however, that judges simply don't have enough time to concentrate on each case as thoroughly as they like, thus causing the possibility of having to rush and thus making a mistake. (Along these lines, I would love to commission a study to review trends in appellate litigation. I believe a study of appellate litigation would show more claim and showing that judges simply did not adequately review their filings or think through the legal problems presented. Again, I don't mean to disparage judges, as they are not given adequate resources.

These delays have an effect on current litigants, but also on the society as a whole. When members of society don't have confidence that the justice system will address grievances, people with true grievances might not raise them, or worse, might take matters into their own hands, or in the hands of more criminal elements.

These delays did not start with the current round of court de-funding. We in the legal community had learned to accept that delays in the justice system were an inherent part of our justice system, thus ignoring an already-serious problem. As stated in other blog entries, when court funding is not adequate to provide for enough clerks to assist pro se litigants with the procedural mechanisms of filings, it is more likely that less knowledgeable pro se litigants will find their filings struck due to procedural problems that could have been avoided with adequate clerk attention. There are two resulting problems caused by this. First, when it becomes next to impossible for pro se litigants to proceed and succeed, the court system becomes accessible only to those who can afford counsel. Second, when this happens, people resort to less honorable means other than court systems to resolve their problems--which effectively harms and could destroy any peace and security in society.

References:

http://www.abajournal.com/magazine/article/more_than_a_budget_line_item/ http://www.americanbar.org/groups/justice_center/task_force_on_the_preservation_of_the_justice_system.html