Saturday, April 21, 2012
Supreme Court Says There is a Difference Between An “Individual” and “Person” – Offering an Important Lesson For Learning About the Law
One of the reasons law students spend three years continuously reading case law is to master one’s ability to appreciate nuance. One area of nuance that lawyers are expected to master is nuance between terms in statutory language. In Mohamad v Palestinian Authority, the Court was asked to determine if the Torture Victim Protection Act of 1991 authorizes a cause of action against the Palestinian Authority for alleged tortune and an alleged extra-judicial killing.
Mohamed, the plaintiff, brought his case against the Palestinian Authority and the Palestinian Liberation Organization but the District Court granted a motion to dismiss because it determined that the statute only extended liability to “natural persons.” The United States Court of Appeals for the District of Columbia agreed. Consequently, when reading the decision of the Supreme Court, it is important to note that no court has reviewed the facts and come to a conclusion about whether torture or an extra-judicial killing actually occurred. The Supreme Court is being asked not whether the Palestinian Authority or the Palestinian Liberation Organization took action prohibited by the law, but instead, whether the organizations themselves can be sued under the law.
In ruling for the Palestinian Authority, the Court notes that the statute in question specifically imposes liability on individuals for acts of torture and extra-judicial killings. It further notes that the Foreign Sovereign Immunities Act of 1976 makes foreign governments generally immune from suits in courts in the United States. Mohamad argues, however, that the Palestinian Authority does not qualify for immunity.
I have not read the legal briefs of the parties but I must suspect that an interesting legal question in those briefs relates to whether the Palestinian Authority fits the definition of a foreign sovereign. I am unaware if any US courts have ruled on this question. It seems like a dangerously political question Courts would want to avoid. The Supreme Court does not discuss this question.
The Court is uniquely focused on whether the statute that provides for claims against “individuals” may allow for suits against entities. The Court points out that in the Oxford English Dictionary, as in common parlance, the word "individual" uniquely refers to a human being. The Court distinguishes this analysis from the analysis of the word “person,” which Congress has legislatively enacted to include “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” Citing 1 USC §1. The Court further points out that in other areas, such as in the Internal Revenue Code, Congress has stipulated that the word “individual” there may have a more expansive meaning.
In Section B of the decision, the Court rejects the Mohamad’s argument concerning the legislative history of the statute, which Mohamad claims supports a broad reading of the word individual. The Court rejects this argument, asserting that “reliance on legislative history is unnecessary in light of the statute's unambiguous language.” (The Court, nevertheless, proceeds to make the point that the initial introduction of the bill established liability against a “person” and that was intentionally changed in subcommittee to the word “individual” through an amendment "to make it clear we are applying it to individuals and not to corporations."
This case is a short one, but may be one worthy of inclusion in a case law book. For law students and lawyers alike, it is a lesson in reading statutes very carefully and with the mindset that a court may find linguistic distinctions in legislative language that are not obvious. Specifically, I doubt that Mohamad started his case with any intent to request the court to interpret the distinction between the word “person” and “individual.” For legislators and activists, it is a lesson in the importance of specifying in legislation precisely what is intended. I suspect that those involved in lobbying for the legislation at issue in this case did not intent to exempt entities when supporting the legislation. In fact, they probably didn’t consider the Foreign Sovereign Immunities Act of 1976, and may have thought they were overriding that law—without considering that such an intent would need to be explicitly stated in the law for it to have any effect.
I can’t help but note that this decision was effectively unanimous, written by Justice Sotomayor. Justice Breyer, however, in his concurring opinion, does not agree with the majority of Justices in the reasoning that this case rests solely on the dictionary definition of the word "individual." He re-emphasizes that the statutory text was altered in the legislative process to the word “individual” to make clear that the statute did not apply to corporations. Justice Breyer’s concurrence supports the lesson of this case, and of this article, that we lawyers and law students must take great pains to read statutes very carefully, and to start reading with the presumption that the words chosen for inclusion in a statute were chosen with extreme precision, designed to exclude meanings and impressions that might arise from use of other word choices.
Saturday, March 24, 2012
Next Steps In Legal Literacy Clubs
In Thursday's "The Hindu" is a report that the National Legal Services Authority is taking the next step beyond Legal Literacy Clubs. They are recommeding that Legal Services Cadet Corps be established in high schools. The objective of the Legal Services Cadet would be train students to remain vigilent in their communities and when appropriate make referrals to legal services organizations (a la Taluk Legal Services or District Legal Services Authority) for those people they find vulnerable.
Through some google searching, I have found this development reported a few places on the Internet but have not found any clear articulation of what makes Legal Services Cadet Corps distinct from the already formed Legal Literacy Clubs. It is my impression thus far that the Legal Literacy Clubs run activities in the schools themselves and the Legal Services Cadet Corps expand the work in the communities themselves. My prior articles on the subject have given the impression that the communtiy work was always an essential part of the Legal Literacy Clubs. These recent articles suggest to me that the community work was always part of the plan for Legal Literacy Clubs, and the Cadet Cops is the enactment of that plan.
Through some google searching, I have found this development reported a few places on the Internet but have not found any clear articulation of what makes Legal Services Cadet Corps distinct from the already formed Legal Literacy Clubs. It is my impression thus far that the Legal Literacy Clubs run activities in the schools themselves and the Legal Services Cadet Corps expand the work in the communities themselves. My prior articles on the subject have given the impression that the communtiy work was always an essential part of the Legal Literacy Clubs. These recent articles suggest to me that the community work was always part of the plan for Legal Literacy Clubs, and the Cadet Cops is the enactment of that plan.
Thursday, March 15, 2012
What Brown v. Board of Education Should Tell Us About Civics Education
On May 17, 1954, the Supreme court decided Brown v. Board of Educaton (347 US 483), in which it ruled that segregating students by race into separate school facilities was inherently unequal, and thus a violation of the Fourteenth Amendment of the United States Constitution.
The case involved the consolidation of four separate cases of African American children who were denied access to their local school and filed suit to gain access--rather than be sent to a school designated specifically for African American children. In each of the cases, the trial courts and courts of appeals ruled that the students had no Constitutional right to access the same schools as White children. In three of the four cases, the denial of relief to plaintiffs were based on the "separate but equal doctrine."
To understand the Brown decision, it is important to fully appreciate what at is unequal about "separate but equal" in the context of racial segregation. After all, there are situations in which "separate but equal" is considered fully acceptable today, such as when public institutions have separate restroom facilities for men and women--and there is no meaningful challenge to such protocal.
In Brown, the Supreme Court concluded that: "Separate educational facilities are inherently unequal," specifying that "by reason of the segregation complained of" the students have been "deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment."
That enforced segregation itself was made unconstitutional represents what most people would say if asked what made Brown historically important. However, it's the legal analysis that makes this case worth reading--and worth thinking about from the perspective of advancing civic education in this country.
For starters, note that the Black school and the White school discussed in Brown, were already equalized "with respect to buildings, curricula, qualifications and salaries of teachers, and other "tangible" factors." The Court then explained that its "decision, therefore, cannot turn on merely a comparison of these tangible factors in the Negro and White schools involved in each of the cases. We must look instead to the effect of segregation itself on public education." It is this aspect of the analysis that is often not adequately remembered or considered.
Legal analysis is not merely a recitation of legal rules, but is an analytical process that involves thinking through what prior case law and facts are relevant to determining how the law may apply to a given set of circumstances. Often the key to understanding a Court's decision analytical process is understanding the factual and background circumstances that seems most important to the Court. Here, the circumstances involve segregating students based on the color of their skin.
In thinking this through, the Court references Sweat v. Painter. In Sweat, a trial court determined that simply by forming a law school for Black students rather than integrading the law school at the University of Texas, which was available only to Whites, it provided "privileges, advantages, and opportunities for the study of law substantially equivalent to those offered by the State to White students at the University of Texas." In other words, the trial court applied the "separate but equal" doctrine and determined that the University of Texas was meeting its obligations by providing professors, facilities, and a library to its African American students, just as it was providing these to its White students.
In looking at this, the Supreme Court, however, noted that the newly-formed law school could not provide its students with the prestige of the law school at the University of Texas, or access to the more experienced professors or larger library offered to University of Texas students, and not offered to the students of the subsidiary institution.
Additionally, and most relevant to Brown v. Board, it commented that "legal learning and practice cannot be effective in isolation from the individuals and institutions with which the law interacts." Thus, the students at the law school specifically for Black Americans are being denied access to communication with the vast majority of their colleagues in their profession. In other words, the Court was troubled by the inequality that comes when Black students are denied access to 85% of their future colleagues, leading academics, mentors, and the prestige of going to a well known institution.
In other words, the Supreme Court in Sweat, recognized that education involves more than just access to books, but access to prestige, collegues, and other atmospherics that shape ones ability to succeed in society.
This point is made more clear in Brown, where the Court writes, "Education is perhaps the most important function of state and local governments" -- in part because it is "required in the performance of our most basic public responsibilities [and] the very foundation of good citizenship." The Court further refers to education as a "principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment."
Thus, education does not consist solely of the relaying over specific academic tools, but involves a whole host of additional access and atmospherics, including mingling with fellow students and professors, and segregating students based on skin color deprives them of an essential aspect of education, the ability to learn from other members of the larger community.
Brown further cites to McLaurin v. Oklahoma State Regents. In McLaurin, the African American graduate student in question, McLaurin, after initial litigation, was admitted to University of Oklahoma classes, but was required to "sit apart at a designated desk in an anteroom adjoining the classroom; to sit at a designated desk on the mezzanine floor of the library, but not to use the desks in the regular reading room, and to sit at a designated table and to eat at a different time from the other students in the school cafeteria." The Supreme Court notes that by setting McLaurin apart from his classmates, McLaurin is "handicapped in his pursuit of effective graduate instruction. Such restrictions impair and inhibit his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession."
There is a tendency, I believe, to think about the importance of Brown v. Board of Education without also thinking about why the decision is so important. Certainly most Americans know that the Supreme Court declared that segregated schools violate the Fourteenth Amendment, but unfortunately, I fear, few Americans are afforded the chance to study the decision in enough depth to fully understand why.
I content that an essential aspect of the Brown decision is the recognition, by citing to Sweat and McLaurin that "Education is perhaps the most important function of state and local governments" and "required in the performance of our most basic public responsibilities [and] the very foundation of good citizenship." In Sweat is the recognition that a law student can not be a part of the legal community without true rights and privileges to interact with the larger legal community. McLaurin extends that analysis to the graduate school community as a whole. Finally, Brown recognizes that this is true for all of us, that when government mandates segregation, it deprives the segregated minority from being a part of the larger community.
The Brown Court implores us to "look... to the effect of segregation itself on public education." Brown challenges us to think about education as an endevor to train young men and women how to be members of society at large, including to fulfill any responsibilities incumbent on him or her by virtue of his or her membership in the community of fellow Americans. Thus, just as segregation in the law school context deprives potential lawyers from knowing his or her potential colleagues and fellow professionals, segregation in the public school context deprives all citizens from knowing their fellow citizens, and those with whom civic responsibilities are shared. Thus, Brown stands for the proposition that Equal Protection of the laws implicitly includes equal access to the laws and instrumentalities of the laws.
In fact, in San Antonio School District v. Rodriguez, in 1973, the Supreme Court agrees with particular statements about the role of education in exercising citizenship, namely that education is "essential to the effective exercise of First Amendment freedoms and to intelligent utilization of the right to vote and "the right to speak is meaningless unless the speaker is capable of articulating his thoughts intelligently and persuasively. The 'marketplace of ideas' is an empty forum for those lacking basic communicative tools." Although the Rodriguez court clarifies that Brown should not be read to create a new fundamental Constitutional right to education, it certainly should be read to describe the importance of education to society and to exercising First Amendment and other fundamental rights.
The case involved the consolidation of four separate cases of African American children who were denied access to their local school and filed suit to gain access--rather than be sent to a school designated specifically for African American children. In each of the cases, the trial courts and courts of appeals ruled that the students had no Constitutional right to access the same schools as White children. In three of the four cases, the denial of relief to plaintiffs were based on the "separate but equal doctrine."
To understand the Brown decision, it is important to fully appreciate what at is unequal about "separate but equal" in the context of racial segregation. After all, there are situations in which "separate but equal" is considered fully acceptable today, such as when public institutions have separate restroom facilities for men and women--and there is no meaningful challenge to such protocal.
In Brown, the Supreme Court concluded that: "Separate educational facilities are inherently unequal," specifying that "by reason of the segregation complained of" the students have been "deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment."
That enforced segregation itself was made unconstitutional represents what most people would say if asked what made Brown historically important. However, it's the legal analysis that makes this case worth reading--and worth thinking about from the perspective of advancing civic education in this country.
For starters, note that the Black school and the White school discussed in Brown, were already equalized "with respect to buildings, curricula, qualifications and salaries of teachers, and other "tangible" factors." The Court then explained that its "decision, therefore, cannot turn on merely a comparison of these tangible factors in the Negro and White schools involved in each of the cases. We must look instead to the effect of segregation itself on public education." It is this aspect of the analysis that is often not adequately remembered or considered.
Legal analysis is not merely a recitation of legal rules, but is an analytical process that involves thinking through what prior case law and facts are relevant to determining how the law may apply to a given set of circumstances. Often the key to understanding a Court's decision analytical process is understanding the factual and background circumstances that seems most important to the Court. Here, the circumstances involve segregating students based on the color of their skin.
In thinking this through, the Court references Sweat v. Painter. In Sweat, a trial court determined that simply by forming a law school for Black students rather than integrading the law school at the University of Texas, which was available only to Whites, it provided "privileges, advantages, and opportunities for the study of law substantially equivalent to those offered by the State to White students at the University of Texas." In other words, the trial court applied the "separate but equal" doctrine and determined that the University of Texas was meeting its obligations by providing professors, facilities, and a library to its African American students, just as it was providing these to its White students.
In looking at this, the Supreme Court, however, noted that the newly-formed law school could not provide its students with the prestige of the law school at the University of Texas, or access to the more experienced professors or larger library offered to University of Texas students, and not offered to the students of the subsidiary institution.
Additionally, and most relevant to Brown v. Board, it commented that "legal learning and practice cannot be effective in isolation from the individuals and institutions with which the law interacts." Thus, the students at the law school specifically for Black Americans are being denied access to communication with the vast majority of their colleagues in their profession. In other words, the Court was troubled by the inequality that comes when Black students are denied access to 85% of their future colleagues, leading academics, mentors, and the prestige of going to a well known institution.
In other words, the Supreme Court in Sweat, recognized that education involves more than just access to books, but access to prestige, collegues, and other atmospherics that shape ones ability to succeed in society.
This point is made more clear in Brown, where the Court writes, "Education is perhaps the most important function of state and local governments" -- in part because it is "required in the performance of our most basic public responsibilities [and] the very foundation of good citizenship." The Court further refers to education as a "principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment."
Thus, education does not consist solely of the relaying over specific academic tools, but involves a whole host of additional access and atmospherics, including mingling with fellow students and professors, and segregating students based on skin color deprives them of an essential aspect of education, the ability to learn from other members of the larger community.
Brown further cites to McLaurin v. Oklahoma State Regents. In McLaurin, the African American graduate student in question, McLaurin, after initial litigation, was admitted to University of Oklahoma classes, but was required to "sit apart at a designated desk in an anteroom adjoining the classroom; to sit at a designated desk on the mezzanine floor of the library, but not to use the desks in the regular reading room, and to sit at a designated table and to eat at a different time from the other students in the school cafeteria." The Supreme Court notes that by setting McLaurin apart from his classmates, McLaurin is "handicapped in his pursuit of effective graduate instruction. Such restrictions impair and inhibit his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession."
There is a tendency, I believe, to think about the importance of Brown v. Board of Education without also thinking about why the decision is so important. Certainly most Americans know that the Supreme Court declared that segregated schools violate the Fourteenth Amendment, but unfortunately, I fear, few Americans are afforded the chance to study the decision in enough depth to fully understand why.
I content that an essential aspect of the Brown decision is the recognition, by citing to Sweat and McLaurin that "Education is perhaps the most important function of state and local governments" and "required in the performance of our most basic public responsibilities [and] the very foundation of good citizenship." In Sweat is the recognition that a law student can not be a part of the legal community without true rights and privileges to interact with the larger legal community. McLaurin extends that analysis to the graduate school community as a whole. Finally, Brown recognizes that this is true for all of us, that when government mandates segregation, it deprives the segregated minority from being a part of the larger community.
The Brown Court implores us to "look... to the effect of segregation itself on public education." Brown challenges us to think about education as an endevor to train young men and women how to be members of society at large, including to fulfill any responsibilities incumbent on him or her by virtue of his or her membership in the community of fellow Americans. Thus, just as segregation in the law school context deprives potential lawyers from knowing his or her potential colleagues and fellow professionals, segregation in the public school context deprives all citizens from knowing their fellow citizens, and those with whom civic responsibilities are shared. Thus, Brown stands for the proposition that Equal Protection of the laws implicitly includes equal access to the laws and instrumentalities of the laws.
In fact, in San Antonio School District v. Rodriguez, in 1973, the Supreme Court agrees with particular statements about the role of education in exercising citizenship, namely that education is "essential to the effective exercise of First Amendment freedoms and to intelligent utilization of the right to vote and "the right to speak is meaningless unless the speaker is capable of articulating his thoughts intelligently and persuasively. The 'marketplace of ideas' is an empty forum for those lacking basic communicative tools." Although the Rodriguez court clarifies that Brown should not be read to create a new fundamental Constitutional right to education, it certainly should be read to describe the importance of education to society and to exercising First Amendment and other fundamental rights.
Sunday, December 11, 2011
Civic Engagement is Good for the Economy Too
Civic engagement is good for the economy too, says a newly released study of the National Conference on Citizenship, entitled Civic Health and Unemployment: Can Engagement Strengthen the Economy?"
The study found that strong positive correlations can be found between civic engagement and resillience against unemployment. Thus, the report states that "the states and localities with more civic engagement in 2006 saw less unemployment growth between 2006 and 2010."
Thus, this study found a corelations between its elements of civic engagement (volunteering, attending public meetings, working with neighbors to address community problems, registering to vote, and voting) with favorable changes in unemployment numbers.
Specifically, it is reported that an increase in a state's rate of working with neighbors, public meeting attendence, voter registration and voluteering each correspond with a decrease in unemployment, even when factoring in economic factors.
Although the report offers numerous caveats, specifically because its statistics are from one economic cycle and not many, it also offers many explanations for these results. One, which seem highly reasonable to me, is that "participation in civil society can develop skills, confidence, and habits that make individuals employable and strengthen networks that help them find jobs."
I suspect that this finding should not be surprising. After all, in a society where networking is so crucial to finding jobs or partners with which to form businesses, it cannot be surprising that the growth of civil society will also spill over into the growth of employment. However, although the logic of this conclusion seems natural to the engaged citizen, the fact that this pattern might hold up during a great recession, and across the United States as a whole, is sufficiently newsworthy in my opinion.
The study report includes one curious header, namely "Communities and political jurisdictions with stronger civil socieies are more likely to have good governments."
This conclusion is drawn from the fact that there is a correlation between voting, registering to vote, contacting public officials, and state resilience against unemployment. Although the conclusion seems plausible to me, the analysis seems to miss a step. For this conclusion to be the case, the contacting public officials and voting must be able to correlate to wise decisions in government.
From what I know about how American government works and the nature of political pressure, I do not need further evidence for the notion that a more engaged citizens leads to a government more inclined to respond on the topics on which citizens are mobilized. However, the characterization of responsive government as necessarily 'good government' seems too imprecise and perhaps not necessarily accurate.
The report also leads to an additional question, namely: is the correlation between decreased unemployment and civic engagement equally true among all segments of society, or are the statewide and city statistics favorable because of benefits to particular segments of society. For instance, will an individual living in a poor area of town be more likely to find work if he or she is civically engaged, or are our statistics made possible only due to the progress of those with prior associations with those of means.
I suspect that there would likely be two sets of findings. First, given the segregation between rich and poor in society, increased civic engagement among those who are low income would not necessarily translate to the same level of economic opportunities as increased civic engagement among those who are already connected. However, increased civic engagement among those who are poor or low-income would still likely increase economic opportunities for them, and might give them access to jobs and business opportunities not necessarily available to them, or even to a less ambitious wealthy/connected individual.
A second question arises: is there any correlation between decreases in underemployment with civic engagement, or is the correlation only with unemployment? In other words, when there is greater civic engagement, what sort of jobs are created? Are they sustainable, and are they available to society as a whole?
Notwithstanding my questions, I believe these new statistics will prove very useful for encouraging Americans to get and remain civically engaged. Perhaps one might even commission a study to indicate the affect on the economy of increased activism in the names of the Tea Party and Occupy Wall Street. Thus one might find that these movements increase economic activity and thus have a direct correlation with the sustainability of certain jobs in areas of society affected by these movements.
The study found that strong positive correlations can be found between civic engagement and resillience against unemployment. Thus, the report states that "the states and localities with more civic engagement in 2006 saw less unemployment growth between 2006 and 2010."
Thus, this study found a corelations between its elements of civic engagement (volunteering, attending public meetings, working with neighbors to address community problems, registering to vote, and voting) with favorable changes in unemployment numbers.
Specifically, it is reported that an increase in a state's rate of working with neighbors, public meeting attendence, voter registration and voluteering each correspond with a decrease in unemployment, even when factoring in economic factors.
Although the report offers numerous caveats, specifically because its statistics are from one economic cycle and not many, it also offers many explanations for these results. One, which seem highly reasonable to me, is that "participation in civil society can develop skills, confidence, and habits that make individuals employable and strengthen networks that help them find jobs."
I suspect that this finding should not be surprising. After all, in a society where networking is so crucial to finding jobs or partners with which to form businesses, it cannot be surprising that the growth of civil society will also spill over into the growth of employment. However, although the logic of this conclusion seems natural to the engaged citizen, the fact that this pattern might hold up during a great recession, and across the United States as a whole, is sufficiently newsworthy in my opinion.
The study report includes one curious header, namely "Communities and political jurisdictions with stronger civil socieies are more likely to have good governments."
This conclusion is drawn from the fact that there is a correlation between voting, registering to vote, contacting public officials, and state resilience against unemployment. Although the conclusion seems plausible to me, the analysis seems to miss a step. For this conclusion to be the case, the contacting public officials and voting must be able to correlate to wise decisions in government.
From what I know about how American government works and the nature of political pressure, I do not need further evidence for the notion that a more engaged citizens leads to a government more inclined to respond on the topics on which citizens are mobilized. However, the characterization of responsive government as necessarily 'good government' seems too imprecise and perhaps not necessarily accurate.
The report also leads to an additional question, namely: is the correlation between decreased unemployment and civic engagement equally true among all segments of society, or are the statewide and city statistics favorable because of benefits to particular segments of society. For instance, will an individual living in a poor area of town be more likely to find work if he or she is civically engaged, or are our statistics made possible only due to the progress of those with prior associations with those of means.
I suspect that there would likely be two sets of findings. First, given the segregation between rich and poor in society, increased civic engagement among those who are low income would not necessarily translate to the same level of economic opportunities as increased civic engagement among those who are already connected. However, increased civic engagement among those who are poor or low-income would still likely increase economic opportunities for them, and might give them access to jobs and business opportunities not necessarily available to them, or even to a less ambitious wealthy/connected individual.
A second question arises: is there any correlation between decreases in underemployment with civic engagement, or is the correlation only with unemployment? In other words, when there is greater civic engagement, what sort of jobs are created? Are they sustainable, and are they available to society as a whole?
Notwithstanding my questions, I believe these new statistics will prove very useful for encouraging Americans to get and remain civically engaged. Perhaps one might even commission a study to indicate the affect on the economy of increased activism in the names of the Tea Party and Occupy Wall Street. Thus one might find that these movements increase economic activity and thus have a direct correlation with the sustainability of certain jobs in areas of society affected by these movements.
Friday, November 25, 2011
Will Legal Literacy Become Universal In Punjab?
Sadly, most news out of Punjab, India relates to warlike activity and attitudes between India and Pakistan. However, I write to spread the word that Punjab is taking a step forward in the legal literacy and human rights fight by establishing student legal literacy clubs in all government and government-aided colleges.
These clubs will be oversought by the Punjab Legal Services Authority. They will engage in artistic activies, such as presenting posters, street plays, and presenting intellectual debates, all with the design to educate themselves and fellow residents about their rights.
The rights to be presented include: (1) the rights of women with regard to property; (2) rights of women against cruelty, abuse, and domestic violence; (3) consumer rights; (4) rights against forced labor; (5)rights of senior citizens; (5)rights of children to education; and (6)information about access to legal aid.
This list tells an important story about the values intended by the legal literacy clubs, namely to assure that the most vulnerable members of the members Punjab communities become aware of their rights and how to act on them.
The structure of these clubs also tells a story. The clubs are made of up small number of college students who meet regularly with members of the local legal community to learn about local laws designed to protect the most vulnerable individuals.
Students will also be encouraged to keep their eyes out for those in need of legal protection, and trained to inform those individuals about their rights to seek legal help.
To advance this, the Punjab Legal Services Authority is even giving cash awards to clubs based on their success in outreach, along with issuing various certificates recognizing certain successes.
In a number of blog posts, I have commented about these legal literacy clubs. I have also begun drafting posts that I chose not to publish due to the repetitive nature of them. However, this seems like a unique development. Additionally, this news seems particularly worthy of publication, given the extent to which news of terrorism and conflict seems to control the western news media's interest in the region.
These clubs will be oversought by the Punjab Legal Services Authority. They will engage in artistic activies, such as presenting posters, street plays, and presenting intellectual debates, all with the design to educate themselves and fellow residents about their rights.
The rights to be presented include: (1) the rights of women with regard to property; (2) rights of women against cruelty, abuse, and domestic violence; (3) consumer rights; (4) rights against forced labor; (5)rights of senior citizens; (5)rights of children to education; and (6)information about access to legal aid.
This list tells an important story about the values intended by the legal literacy clubs, namely to assure that the most vulnerable members of the members Punjab communities become aware of their rights and how to act on them.
The structure of these clubs also tells a story. The clubs are made of up small number of college students who meet regularly with members of the local legal community to learn about local laws designed to protect the most vulnerable individuals.
Students will also be encouraged to keep their eyes out for those in need of legal protection, and trained to inform those individuals about their rights to seek legal help.
To advance this, the Punjab Legal Services Authority is even giving cash awards to clubs based on their success in outreach, along with issuing various certificates recognizing certain successes.
In a number of blog posts, I have commented about these legal literacy clubs. I have also begun drafting posts that I chose not to publish due to the repetitive nature of them. However, this seems like a unique development. Additionally, this news seems particularly worthy of publication, given the extent to which news of terrorism and conflict seems to control the western news media's interest in the region.
Wednesday, November 23, 2011
Funding Civil Society in Pakistan -- And What It Means for American Civil Society
When we speak about foreign policy, we are usually focused on speaking about military activities and ignoring civilian foreign aid administered by the United States Agency for International Development (USAID), much of which focuses on disaster relief and assistance in economic development.
As I have discussed previously in this blog , USAID has played a role advancing civics education in certain developing countries, encouraging civil society.
The United States Agency for International Development (USAID)has just developed a new Citizens' Voice Project in Pakistan. The objective, according to the USAID itself, is to "build a new generation of programs that strengthen local governments and legislative institutions, support the rule of law, and encourage a credible and transparent electoral system capable of producing leaders and policy makers who can help Pakistan achieve its Millennium Development Goals."
It appears as if USAID's role, through this program will be to provide finaicial assistance, to the tune of $100 million over the next four years, to local civic and social organizations within Pakistan. USAID says its design is to award money to organizations providing citizen oversight to municipal services, energy sector reforms, and water rights.
USAID's role in Pakistan is not brand-new. During the past few years, USAID has funded an anti-fraud hotline, trained representatives, supported election cycles, and provided technical assistance to municipalities to improve their delivery of local services.
When Americans think about increasing citizen engagement, we often think about voting and relations between neighbors. We don't sufficiently consider things like the delivery of local services, which is actually a fundamental aspect of any existing social contract.
It is also intriguing that we are funding USAID to assist the Pakistanis with accomplishing results we sometimes struggle with here, namely making our local governments more accountable and making our vote-counting system fair and transparent.
Perhaps the conclusion is for us as Americans to learn from our assistance in Pakistan to see what works and what doesn't work in terms of advancing citizaen engagement in society.
As I have discussed previously in this blog , USAID has played a role advancing civics education in certain developing countries, encouraging civil society.
The United States Agency for International Development (USAID)has just developed a new Citizens' Voice Project in Pakistan. The objective, according to the USAID itself, is to "build a new generation of programs that strengthen local governments and legislative institutions, support the rule of law, and encourage a credible and transparent electoral system capable of producing leaders and policy makers who can help Pakistan achieve its Millennium Development Goals."
It appears as if USAID's role, through this program will be to provide finaicial assistance, to the tune of $100 million over the next four years, to local civic and social organizations within Pakistan. USAID says its design is to award money to organizations providing citizen oversight to municipal services, energy sector reforms, and water rights.
USAID's role in Pakistan is not brand-new. During the past few years, USAID has funded an anti-fraud hotline, trained representatives, supported election cycles, and provided technical assistance to municipalities to improve their delivery of local services.
When Americans think about increasing citizen engagement, we often think about voting and relations between neighbors. We don't sufficiently consider things like the delivery of local services, which is actually a fundamental aspect of any existing social contract.
It is also intriguing that we are funding USAID to assist the Pakistanis with accomplishing results we sometimes struggle with here, namely making our local governments more accountable and making our vote-counting system fair and transparent.
Perhaps the conclusion is for us as Americans to learn from our assistance in Pakistan to see what works and what doesn't work in terms of advancing citizaen engagement in society.
Tuesday, November 22, 2011
Access to Justice discussed in West Virginia
Good to read in the West Virginia State Journal that West Virginia Supreme Court officials are thinking about access to courthouse issues, especially for litigants of emotionally challenging issues like domestic violence, elder law, children's issues, and workers compensation, legal issues that often feature litigants not familiar with their rights.
The article in the Journal mentioned handicapped access discussed, since there are a lack of elevators, and thus access to courtrooms on floors other than the first. This is pretty crucial, as those with limited physical abilities are less likely to pursue their rights if it is physically impractical. In my experience, this problem arises less when litigants are already in the midst of litigation, and thus committed to see it through, but physical access affects witnesses' willingness to participate, and potential litigants' willingness to avail themselves of courthouse remedies.
I was pleased to read that the discussion got around to education for both courthouse personnel and the public. One of the most stressful experiences when pursuing one's rights is to go into a courthouse and have difficulty figuring out with whom to speak concerning one's rights and procedures. As a lawyer, I have been particularly shocked and the lack of willingness of many court personnel to give instructions concerning their court's own procedures. Not only am I directed to study the court's rules and interpret them myself, but the clerk's offices that I have seen generally do not have courtesy copies of the rulebooks displayed for use by the public. (Admittedly my experience is only in the Distict of Columbia, Maryland, and Virginia. I make no comment about West Virginia.) Thus, courthouses could make their own procedures more accessible and could assure than all or most personnel are familiar with the procedures and rules of the court.
The article mentioned an idea floated by Supreme Court Administrative Director Steve Canterbury, namely, that every lawyer donate a certain number of hours to pro bono work, including legal aid -- and to fine attorneys failing to do this. If you read this blog regularly, you will find this suggestion has been floated about in a number diverse places, so I wouldn't be surprised if it becomes the norm in the next 25 years.
He also suggested making continuing legal education for attorneys willing to learn a new field for the purpose of helping those withou financial ability to pay for legal help. I notice that this practice is alive and well in Maryland, such as in programs that assist military personnel obtain wills.
The purpose of this blog entry, and others like it, is to advance and encourage the discussion of how courts and lawyers can make the justice system more readily available to those for whom access is somewhat limited. Thus, although this entry may appear to repeat ideas of some past entries, we should certainly be encouraged by the increased dialogue in increased numbers of locations.
The article in the Journal mentioned handicapped access discussed, since there are a lack of elevators, and thus access to courtrooms on floors other than the first. This is pretty crucial, as those with limited physical abilities are less likely to pursue their rights if it is physically impractical. In my experience, this problem arises less when litigants are already in the midst of litigation, and thus committed to see it through, but physical access affects witnesses' willingness to participate, and potential litigants' willingness to avail themselves of courthouse remedies.
I was pleased to read that the discussion got around to education for both courthouse personnel and the public. One of the most stressful experiences when pursuing one's rights is to go into a courthouse and have difficulty figuring out with whom to speak concerning one's rights and procedures. As a lawyer, I have been particularly shocked and the lack of willingness of many court personnel to give instructions concerning their court's own procedures. Not only am I directed to study the court's rules and interpret them myself, but the clerk's offices that I have seen generally do not have courtesy copies of the rulebooks displayed for use by the public. (Admittedly my experience is only in the Distict of Columbia, Maryland, and Virginia. I make no comment about West Virginia.) Thus, courthouses could make their own procedures more accessible and could assure than all or most personnel are familiar with the procedures and rules of the court.
The article mentioned an idea floated by Supreme Court Administrative Director Steve Canterbury, namely, that every lawyer donate a certain number of hours to pro bono work, including legal aid -- and to fine attorneys failing to do this. If you read this blog regularly, you will find this suggestion has been floated about in a number diverse places, so I wouldn't be surprised if it becomes the norm in the next 25 years.
He also suggested making continuing legal education for attorneys willing to learn a new field for the purpose of helping those withou financial ability to pay for legal help. I notice that this practice is alive and well in Maryland, such as in programs that assist military personnel obtain wills.
The purpose of this blog entry, and others like it, is to advance and encourage the discussion of how courts and lawyers can make the justice system more readily available to those for whom access is somewhat limited. Thus, although this entry may appear to repeat ideas of some past entries, we should certainly be encouraged by the increased dialogue in increased numbers of locations.
Monday, November 21, 2011
What Kind of Citizen Are You?
In April 2004, Joel Westeimer (University of Ottowa) and Joseph Kahne (Mills College) published an article entitled, "Educating the 'Good' Citizen: Political Choices and Pedagogical Goals." In the article, they describe three types of citizens: (1) the Personally Responsible Citizen; (2) the Participatory Citizen; and (3) the Justice-Oriented Citizen.
(1)The Personally Responsible Citizen is the citizen that is primarily known for complying with any citizenship obligations he may have such as paying taxes and serving on a jury. He will likely pick up litter, give blood, and other do other forms of community service. The authors point out that this is the type of citizenship advocated by most school based service-learning programs, where the student is expected to find an existing service program and volunteer a certain number of hours per month or term. On one hand this type of citizen is honest loyal and committed to his fellow man. On the other hand, he may not be encouraged to engage in the critical reflection necessary for an engaged democratic society.
(2)The Participatory Citizen is engaged in community affairs and takes responsibility for planning the activities that engage the personally responsibile citizen. The participatory citizen is also familar with the workings of government, as he likely will cooperate with particular government agencies in his or her planning.
(3)The Justice Oriented Citizen is the citizen most driven by issues of injustice, and is most driven towards motivating others to actively address the injustice, along with seeking to address the root causes of whatever problem is being addressed.
Westeimer and Kahne stress ways in which young citizens are effectively taught that being patriotic means singing patriotic songs, saying the pledge of allegience, being nice to neighbors, and being personal responsible. Social movements, government policy and political engagement are simply ignored. In other words, citizens are encouraged to be highly active as engaged citizens, but only as Personally Responsible Citizen and occassionally as Participatory Citizens, whereas a truely fully engaged citizen is the Justice Oriented Citizen.
What kind of citizen am I? And more importantly, at what moment in time am I being asked this question?
Althouh Westeimer and Kahne did not say so directly, although I am sure they meant it, the fully engaged citizen plays all three roles at various stages of their life. For instance, in certain areas of my life I am the Justice Oriented Citizen, and in other areas of my life, I am the Personally Responsible Citizen. One simply does not have the ability to call out every form of injustice available.
More importantly, though, the fully engaged citizen exhibits all of these traits at various times of the week, and thus is really a balanced citizen. Thus, Westeimber and Kahne correctly point out that many young people are effectively discouraged from being fully active balanced citizens, and are encouraged to be only Personally Responsible Citizens.
As pointed out by the authors, this result is very problematic for a democracy. A democracy requires all three types of citizens, or requires all citizens to play each role in different occassions. If the population as a whole were to fail to produce any of these three types of citizens, I believe it would fail to exist, and would certainly fail to have any right to claim itself a democracy.
In fact, I believe that the strongest societies are those where all citizens take up the mantle of each citizen type depending on the situation, and that the diversity of skills and interests in society at large means that for the most part, people balance between differing roles based on their interests and skills. And thus, in a true democracy, almost all play all three roles throughout their lives.
(1)The Personally Responsible Citizen is the citizen that is primarily known for complying with any citizenship obligations he may have such as paying taxes and serving on a jury. He will likely pick up litter, give blood, and other do other forms of community service. The authors point out that this is the type of citizenship advocated by most school based service-learning programs, where the student is expected to find an existing service program and volunteer a certain number of hours per month or term. On one hand this type of citizen is honest loyal and committed to his fellow man. On the other hand, he may not be encouraged to engage in the critical reflection necessary for an engaged democratic society.
(2)The Participatory Citizen is engaged in community affairs and takes responsibility for planning the activities that engage the personally responsibile citizen. The participatory citizen is also familar with the workings of government, as he likely will cooperate with particular government agencies in his or her planning.
(3)The Justice Oriented Citizen is the citizen most driven by issues of injustice, and is most driven towards motivating others to actively address the injustice, along with seeking to address the root causes of whatever problem is being addressed.
Westeimer and Kahne stress ways in which young citizens are effectively taught that being patriotic means singing patriotic songs, saying the pledge of allegience, being nice to neighbors, and being personal responsible. Social movements, government policy and political engagement are simply ignored. In other words, citizens are encouraged to be highly active as engaged citizens, but only as Personally Responsible Citizen and occassionally as Participatory Citizens, whereas a truely fully engaged citizen is the Justice Oriented Citizen.
What kind of citizen am I? And more importantly, at what moment in time am I being asked this question?
Althouh Westeimer and Kahne did not say so directly, although I am sure they meant it, the fully engaged citizen plays all three roles at various stages of their life. For instance, in certain areas of my life I am the Justice Oriented Citizen, and in other areas of my life, I am the Personally Responsible Citizen. One simply does not have the ability to call out every form of injustice available.
More importantly, though, the fully engaged citizen exhibits all of these traits at various times of the week, and thus is really a balanced citizen. Thus, Westeimber and Kahne correctly point out that many young people are effectively discouraged from being fully active balanced citizens, and are encouraged to be only Personally Responsible Citizens.
As pointed out by the authors, this result is very problematic for a democracy. A democracy requires all three types of citizens, or requires all citizens to play each role in different occassions. If the population as a whole were to fail to produce any of these three types of citizens, I believe it would fail to exist, and would certainly fail to have any right to claim itself a democracy.
In fact, I believe that the strongest societies are those where all citizens take up the mantle of each citizen type depending on the situation, and that the diversity of skills and interests in society at large means that for the most part, people balance between differing roles based on their interests and skills. And thus, in a true democracy, almost all play all three roles throughout their lives.
Sunday, October 30, 2011
Nation's Civic Engagement Problem Reflected in Disparities in Indiana Civic Engagement Study Results
On or around September 14th, the 2011 Civic Health Index was released, including certain above-average results and some below-average. The essential take home message of the results do not shock me, namely that there is a huge disparity between the percentage of residents who eat dinner with friends and neighbors (90.1%) contrasted with the percentage of people who belong to community based organizations (36%), 21.6% of residents report to talking about politics with friends and family a few times a week, but only 6.5% of residents identify themselves as working with neigbhors to address community problems.
The report includes the frank conclusion: "While Hoosiers are actively engaged with one another on a regular basis, that involvement does not always translate into community problem solving." The report itself and the newpaper articles I read focused their attention on low rates of residents' discussing politics as a feature of or indication of low voter trends.
However, I think that these numbers a bigger problem that I've noticed in other state civic engagement reports. I find that there continues to remain a large disparity between the rates of resident who regularly care for their neighbors, and those who work with their neigbhors to address community problems.
While I will reserve more complex commentary for later blog posts, I think that one of America's underlying civic engagement problems is that people feel very empowered when it comes to assisting their neighbors in their personal problems, but they are failing to mobilize on addressing common problems. In "Bowling Alone," the author brought out a concept that citizens who regularly care for their neighbors are more likely to discuss with them common issues and mobilize together to address those common issues. However, even when citizens discuss problems with neighbors, there still can be an "empowerment gap" if citizens only feel empowered to discuss the problems but don't feel empowered to commonly address the problems. Again, addressing this empowerment gap will be left for another post.
The report includes the frank conclusion: "While Hoosiers are actively engaged with one another on a regular basis, that involvement does not always translate into community problem solving." The report itself and the newpaper articles I read focused their attention on low rates of residents' discussing politics as a feature of or indication of low voter trends.
However, I think that these numbers a bigger problem that I've noticed in other state civic engagement reports. I find that there continues to remain a large disparity between the rates of resident who regularly care for their neighbors, and those who work with their neigbhors to address community problems.
While I will reserve more complex commentary for later blog posts, I think that one of America's underlying civic engagement problems is that people feel very empowered when it comes to assisting their neighbors in their personal problems, but they are failing to mobilize on addressing common problems. In "Bowling Alone," the author brought out a concept that citizens who regularly care for their neighbors are more likely to discuss with them common issues and mobilize together to address those common issues. However, even when citizens discuss problems with neighbors, there still can be an "empowerment gap" if citizens only feel empowered to discuss the problems but don't feel empowered to commonly address the problems. Again, addressing this empowerment gap will be left for another post.
Sunday, October 23, 2011
In Defense of Lawyers and Lawsuits--And the Solution to Frivolous Lawsuits
As a member of the legal profession, I write in response to Ross Watters' article in "The Daily Titan" on September 21, 2011 in which Watters claims that we live in a "litigation-happy country" and thus we are using to our advantage our "deeper knowledge about the legal system and laws than any previous generation." I contend that this article errs in how it represents the legal profession and the average American's understanding of the laws under which we live. I further argue that the article's endorsements of damages caps, as a means to prevent frivolous claims, is poorly placed--because damages caps only punishes those with legitimate egregious claims, it does not punish those who pursue frivolous lawsuits, or who intentionally reject legitimate offers of resolution in the hopes that it "just might be their lucky day" in front of the jury. Thus I argue that there are available means to oppose frivolous lawsuits that don't involve punishing those with legitimate claims.
My first point, however, is to argue against the notion that this is a litigation-happy country. If one googles the term litigation-happy, one finds scores of articles that make this claim, namely that this country is litigation-happy -- with the tiny reprieve of two articles referring to Bangladesh and Ireland and litigation-happy. I cannot, however, find any statistics or definitions to back up the claim that this country is litigation-happy. As a lawyer that speaks with potential clients for a certain portion of my day, I agree that many people seek legal redress for injuries and harm that should be resolved in a non-litigious way.
However, the fact that something should be resolved without resorting to litigation does not mean that non-litigation-oriented resolutions are available. For instance, in "Access to Justice," Deborah Rhode points out that in countries with socialized medicine, there are often fewer birth-defect lawsuits because litigation is not needed to recover the cost of life-long medical care, the most costly injury of a birth-related medical injury. I believe that Professor Rhode also presented statistics related to injuries from car accidents, and other injuries, where litigation is sometimes the only method for the injured to recover from any source the costs for necessary medical care.
In fact, contrary to the notion that we need to make courts less accessible are the facts that the courts are are already not adequately accessible for those without means. In November 2009, for instance, the District of Columbia Access to Justice Commission and the DC Consortium of Legal Service Providers published a report entitled, "Rationing Justice: the Effect of the Recession on Access to Justice in the District of Columbia." The report finds legal service lawyers estimate a 20% increase in demand due to the recession. This increase in need is not due to people seeking to make an easy buck, but due to people facing real legal problems. For instance, in the second quarter of 2009, there were 2,353 single family homes and condos placed in foreclosure, most of whose owners had no legal counsel to advocate on their behalf. The report further states that a subsidiary problem to foreclosure is the rights of the tenant in a foreclosed-on rental unit. The report also found that domestic violence cases were on the rise, thus requiring an increased number of lawyers needed to assist victims. Three other legal needs that are caused by economic needs are (a) access to shelter due to homelessness; (b) assistance obtaining unemployment benefits; and (c) access to temporary assistance for needy families in the forms of food stamps, disability benefits, and other public benefits. The report concludes with some powerful language: "somewhere in the District a family won't ave enough to eat tonih because of a bureaucratic mistake. A child will be hospitalized yet again because the rat droppings in her apartment caused an asthma attack. A veteran who has served in combat will sleep on the street because he could not access the public benefits, mental health services, and shelter to which he is entitled... Because of the crisis in legal services, there are simply not enough lawyers to help our suffering, low-income neighbors. And next year, there will be even fewer... The result is that justice is being rationed. And as is too often the case, those with most in need are getting too small a measure of justice."
In September 2005 and in June 2007, the Legal Services Corporation published a report entitled,"Documenting the Justice Gap in America." The Introduction to the report identifies several civil legal needs of low-income individuals not currently being addressed, namely: protection from abusive relationships, safe and habitable housing, access to necessary health care, disability payments to help lead independent lives, family law issues including child support and custody actions, and relief from financial exploitation. Principle findings are: (1)For every client served by an LSC-funded program, at least one person who sought help was turned down because of insufficient resources. (2) Only a very small percentage of the legal problems experienced by low-income people (one in five or less) are addressed with the assistance of either a private attorney (pro bono or paid) or a legal aid lawyer. (3) The per capita ratio of legal aid attorneys funded by all sources to the low-income population is a tiny fraction of the ratio of private attorneys providing personal civil legal services to the general population. (4) ten state studies found that only 10-30 percent of legal needs of low income individuals were met with legal help from counsel.
This information challenges the notion that this is a litigation-happy country seeking to resolve petty problems in court. If Watters' article is correct that in this country, we have one lawyer for every 320 citizens, then we must also conclude not that we have too many lawyers but that the legal work is not properly distributed to address the legal problems that require addressing. The article focuses of what are referred to as run-away verdicts, a big example being "the McDonald's Coffee Case" on which I have previously commented (in a prior post.) Again, the fact that the judge remitted the verdict to a lower amount indicates that "run-away verdicts" are not the problem so claimed. I have sought to research another example raised in the article to determine its accuracy and now have reason to think the author is quoting an Internet story rather than a true case.
Her article concludes by complimenting Texas Governor Perry's legislation that penalizes plaintiffs who bring forth losing lawsuits. The legislation, as adopted, appears to give courts discretion to award attorney fees to defendants if they defeat plaintiffs on early motions for summary judgment. The effect of the legislation will depend on how it is applied. If courts narrowly apply this law to cases where plaintiffs acted with malice or frivolousness in bringing their case, then the law does nothing different than what is the law in most or all of the land, namely that a litigant bringing a frivolous lawsuit may be liable for the opposing sides attorney fees for the tort of abuse of process. Federal Rule 68 also offers defendant a means to fight lawsuits of low worth. Under a Rule 68 offer of judgment, if a judgment that that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made. If attorney fees are available under Federal Rule 68, then Rule 68 is certainly a perfectly available means to attack frivolous claims. Under Marek v. Chesney, 473 US 1 (1985), costs in this situation include attorney fees. (I haven't studied whether the law of this case has been revised by subsequent case or statute.)
In short, the claims our legal system are overrun with frivolous cases are often baseless claims. The claims that damages caps will halt frivolous lawsuits are also misguided, as there are other laws already in place to prevent "runaway juries" and frivolous claims. Instead, courts and other members of the legal world would do well to consider whether there are problems with the way in which lawyers are distributed to the public, such that many go without legal help.
As a postscript, I want to clarify that I have no facts to challenge the notion that there are plenty of frivolous lawsuits. Just as the articles I read brought forth no facts to suggest that there really are many frivolous lawsuits, I have no facts to say that this isn't a problem in existence, or an important one. However, it is my impression that there are laws in place to address these matters already, not a need for a new regime of loser-pay laws.
My first point, however, is to argue against the notion that this is a litigation-happy country. If one googles the term litigation-happy, one finds scores of articles that make this claim, namely that this country is litigation-happy -- with the tiny reprieve of two articles referring to Bangladesh and Ireland and litigation-happy. I cannot, however, find any statistics or definitions to back up the claim that this country is litigation-happy. As a lawyer that speaks with potential clients for a certain portion of my day, I agree that many people seek legal redress for injuries and harm that should be resolved in a non-litigious way.
However, the fact that something should be resolved without resorting to litigation does not mean that non-litigation-oriented resolutions are available. For instance, in "Access to Justice," Deborah Rhode points out that in countries with socialized medicine, there are often fewer birth-defect lawsuits because litigation is not needed to recover the cost of life-long medical care, the most costly injury of a birth-related medical injury. I believe that Professor Rhode also presented statistics related to injuries from car accidents, and other injuries, where litigation is sometimes the only method for the injured to recover from any source the costs for necessary medical care.
In fact, contrary to the notion that we need to make courts less accessible are the facts that the courts are are already not adequately accessible for those without means. In November 2009, for instance, the District of Columbia Access to Justice Commission and the DC Consortium of Legal Service Providers published a report entitled, "Rationing Justice: the Effect of the Recession on Access to Justice in the District of Columbia." The report finds legal service lawyers estimate a 20% increase in demand due to the recession. This increase in need is not due to people seeking to make an easy buck, but due to people facing real legal problems. For instance, in the second quarter of 2009, there were 2,353 single family homes and condos placed in foreclosure, most of whose owners had no legal counsel to advocate on their behalf. The report further states that a subsidiary problem to foreclosure is the rights of the tenant in a foreclosed-on rental unit. The report also found that domestic violence cases were on the rise, thus requiring an increased number of lawyers needed to assist victims. Three other legal needs that are caused by economic needs are (a) access to shelter due to homelessness; (b) assistance obtaining unemployment benefits; and (c) access to temporary assistance for needy families in the forms of food stamps, disability benefits, and other public benefits. The report concludes with some powerful language: "somewhere in the District a family won't ave enough to eat tonih because of a bureaucratic mistake. A child will be hospitalized yet again because the rat droppings in her apartment caused an asthma attack. A veteran who has served in combat will sleep on the street because he could not access the public benefits, mental health services, and shelter to which he is entitled... Because of the crisis in legal services, there are simply not enough lawyers to help our suffering, low-income neighbors. And next year, there will be even fewer... The result is that justice is being rationed. And as is too often the case, those with most in need are getting too small a measure of justice."
In September 2005 and in June 2007, the Legal Services Corporation published a report entitled,"Documenting the Justice Gap in America." The Introduction to the report identifies several civil legal needs of low-income individuals not currently being addressed, namely: protection from abusive relationships, safe and habitable housing, access to necessary health care, disability payments to help lead independent lives, family law issues including child support and custody actions, and relief from financial exploitation. Principle findings are: (1)For every client served by an LSC-funded program, at least one person who sought help was turned down because of insufficient resources. (2) Only a very small percentage of the legal problems experienced by low-income people (one in five or less) are addressed with the assistance of either a private attorney (pro bono or paid) or a legal aid lawyer. (3) The per capita ratio of legal aid attorneys funded by all sources to the low-income population is a tiny fraction of the ratio of private attorneys providing personal civil legal services to the general population. (4) ten state studies found that only 10-30 percent of legal needs of low income individuals were met with legal help from counsel.
This information challenges the notion that this is a litigation-happy country seeking to resolve petty problems in court. If Watters' article is correct that in this country, we have one lawyer for every 320 citizens, then we must also conclude not that we have too many lawyers but that the legal work is not properly distributed to address the legal problems that require addressing. The article focuses of what are referred to as run-away verdicts, a big example being "the McDonald's Coffee Case" on which I have previously commented (in a prior post.) Again, the fact that the judge remitted the verdict to a lower amount indicates that "run-away verdicts" are not the problem so claimed. I have sought to research another example raised in the article to determine its accuracy and now have reason to think the author is quoting an Internet story rather than a true case.
Her article concludes by complimenting Texas Governor Perry's legislation that penalizes plaintiffs who bring forth losing lawsuits. The legislation, as adopted, appears to give courts discretion to award attorney fees to defendants if they defeat plaintiffs on early motions for summary judgment. The effect of the legislation will depend on how it is applied. If courts narrowly apply this law to cases where plaintiffs acted with malice or frivolousness in bringing their case, then the law does nothing different than what is the law in most or all of the land, namely that a litigant bringing a frivolous lawsuit may be liable for the opposing sides attorney fees for the tort of abuse of process. Federal Rule 68 also offers defendant a means to fight lawsuits of low worth. Under a Rule 68 offer of judgment, if a judgment that that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made. If attorney fees are available under Federal Rule 68, then Rule 68 is certainly a perfectly available means to attack frivolous claims. Under Marek v. Chesney, 473 US 1 (1985), costs in this situation include attorney fees. (I haven't studied whether the law of this case has been revised by subsequent case or statute.)
In short, the claims our legal system are overrun with frivolous cases are often baseless claims. The claims that damages caps will halt frivolous lawsuits are also misguided, as there are other laws already in place to prevent "runaway juries" and frivolous claims. Instead, courts and other members of the legal world would do well to consider whether there are problems with the way in which lawyers are distributed to the public, such that many go without legal help.
As a postscript, I want to clarify that I have no facts to challenge the notion that there are plenty of frivolous lawsuits. Just as the articles I read brought forth no facts to suggest that there really are many frivolous lawsuits, I have no facts to say that this isn't a problem in existence, or an important one. However, it is my impression that there are laws in place to address these matters already, not a need for a new regime of loser-pay laws.
Friday, October 21, 2011
What is America's "Civic Man"
One day a few weeks ago, one saw a striking contrast. If one watched the news about protests in Greece, one saw cars burning and actual fighting in the street. Protests outside London also contained a certain amount of violence and looting. In several Arab spring protests, protests lead rather quickly to the toppling of regimes or violent crackdown on protests. The news in Bahrain, for instance, is quite scary.
For the most part, increased civic activism in this country has not led to violence, either in the form of looting or in the form of vast police brutality. While I don't mean to suggest that neither are present in this country, for the most part, thousand of Americans have engaged in protest during the past few years without fear of violence or prison.
We should not underestimate a fundamental reason for this. Americans, by in large, believe in the concept of the "civic man."
The notion of America's "civic man" was first described by DeToqueville's "Democracy in America," in which he wrote about township life: "Americans rightly think that patriotism is a sort of religion strengthened by practical service. Thus daily duties performed or rights excerised keep municipal life constantly alive. There is a continual gentle political activity which keeps society on the move without turmoil.” DeToqueville, Democracy in America, I, v.
In other words, for DeToqueville, the patriotic "civic man" is one actively involved in municipal life. Elsewhere in "Democracy in America," he indicated that he has in mind the New England town council as the optimal example of civic engagement, where all members of the community gather to sort out communal matters.
However, as DeToquiville points out, it isn't just the government's constitution that makes a democracy or the participants. It is also a "feeling that pervades the most trifling habits of life." Thus, he refers to debating clubs as the American substitute for theatrical entertainment.
The Declaration of Independence goes further in installing the concept of the civically engaged man. It says: "all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
Thus, as I have previously discussed in this blog, the Declaration defines the anticipated social contract between Americans and their soon-to-be-formed government. It describes an individual freely instituting government, with others, to seek safety and happiness, and to alter that government when such a government fails to meet the ends of safety and happiness.
Thus, America's civic man is one who is vigilant of his social contract and actively aware of his natural rights to alter his government, with the consent of others, to the extent that his safety and happiness is not met by the regime in existence.
DeToquiville, thus, in his seminal work "Democracy in America," describes how this work, and describes how America's civic man sees his ability to actively shape his society and government, engaging in civil civic action with others, patriotically engaged in civic life, and patriotically and peacefully seeking the alteration of institutions not meeting the citizen's current needs.
Thus, unlike in Egypt and in other places around the world, America's engaged civic man is no threat to the government at large. Toppling of "the regime" is not a concern. The American civic man cares deeply about the thriving of his citizen government. Thus, no matter how much radical change he advocates, he has no interest in disbanding the civil society that provides for the existence of democratic institutions.
This post is not designed to say something new, merely to reflect on what we already know, that serious democratic engagement is no challenge to our democratic society, but instead is an essential part of it, and when done propertly, reinforces our social contract and the very theme discussed by Jefferson and DeToquiville over two hundred years ago.
For the most part, increased civic activism in this country has not led to violence, either in the form of looting or in the form of vast police brutality. While I don't mean to suggest that neither are present in this country, for the most part, thousand of Americans have engaged in protest during the past few years without fear of violence or prison.
We should not underestimate a fundamental reason for this. Americans, by in large, believe in the concept of the "civic man."
The notion of America's "civic man" was first described by DeToqueville's "Democracy in America," in which he wrote about township life: "Americans rightly think that patriotism is a sort of religion strengthened by practical service. Thus daily duties performed or rights excerised keep municipal life constantly alive. There is a continual gentle political activity which keeps society on the move without turmoil.” DeToqueville, Democracy in America, I, v.
In other words, for DeToqueville, the patriotic "civic man" is one actively involved in municipal life. Elsewhere in "Democracy in America," he indicated that he has in mind the New England town council as the optimal example of civic engagement, where all members of the community gather to sort out communal matters.
However, as DeToquiville points out, it isn't just the government's constitution that makes a democracy or the participants. It is also a "feeling that pervades the most trifling habits of life." Thus, he refers to debating clubs as the American substitute for theatrical entertainment.
The Declaration of Independence goes further in installing the concept of the civically engaged man. It says: "all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
Thus, as I have previously discussed in this blog, the Declaration defines the anticipated social contract between Americans and their soon-to-be-formed government. It describes an individual freely instituting government, with others, to seek safety and happiness, and to alter that government when such a government fails to meet the ends of safety and happiness.
Thus, America's civic man is one who is vigilant of his social contract and actively aware of his natural rights to alter his government, with the consent of others, to the extent that his safety and happiness is not met by the regime in existence.
DeToquiville, thus, in his seminal work "Democracy in America," describes how this work, and describes how America's civic man sees his ability to actively shape his society and government, engaging in civil civic action with others, patriotically engaged in civic life, and patriotically and peacefully seeking the alteration of institutions not meeting the citizen's current needs.
Thus, unlike in Egypt and in other places around the world, America's engaged civic man is no threat to the government at large. Toppling of "the regime" is not a concern. The American civic man cares deeply about the thriving of his citizen government. Thus, no matter how much radical change he advocates, he has no interest in disbanding the civil society that provides for the existence of democratic institutions.
This post is not designed to say something new, merely to reflect on what we already know, that serious democratic engagement is no challenge to our democratic society, but instead is an essential part of it, and when done propertly, reinforces our social contract and the very theme discussed by Jefferson and DeToquiville over two hundred years ago.
Monday, October 17, 2011
An Autobiography of Civic Engagement
I have posited that one’s adult civic engagement or lack thereof can often be stemmed from the extent to which one has perceived engagement while in one’s youth. In December 2009, I commented on a lecture provided by Judge Souter in which he discussed his own exposure to civic engagement by watching the activities of the local town council. Judge Souter suggested how that youthful exposure shaped his adult understanding of the political and legal process.
If I were teaching a semester-long college course on civic and legal engagement, I think I would start by asking my students to write a mini autobiography of at least four life experiences which shape his or her perspective on citizenship and social action. I suspect that self-reflection would cause students to consider whether their perspective on politics and social involvement, whether it be idealistic, optimistic, pessimistic, disinterested, or completely hopeless.
A fuller understanding on this front would shape educator’s understanding of how to make civics education more meaningful for its students. It would also impact the manner in which social engagement is conducted. In an effort to demonstrate what I have in mind, I have chosen to provide an example of what I am calling a citizenship autobiography by providing my own as if I were responding to this question.
My civic engagement story:
In thinking about my earliest memories of thinking about citizenship, I should admit that I may have been that oddball that was fascinated by the political process as early as I can remember. In seventh grade (1987-88), I took the standard middle school introductory course in civics. I was immediately fascinated by Continental Congress’ 1776 decision to separate from England and the Constitutional Convention of 1787.
There was something amazing to me about people gathering to envision how to organize society towards its betterment. I read about the debates and developed clear images in my mind of a room of adults in serious and respectful discourse about various methods of governance.
Frankly, I think this is when I first developed an admiration for democracy, envisioning that all informed adults were capable of collaborating to address communal problems. This idea was reinforced repeatedly for me by my vcr, as I was mesmerized by the movie musical “1776”, which has been a favorite of mine since.
That idealism in the classroom was reinforced to some extent in my synagogue involvement. Even at that age, I was attentive to member discussions about my synagogue’s structure, collective decision-making, and future. I didn’t attend board meetings but I overheard discussions about them and I found it fascinating that a small number of individuals would take responsibility to put effort into shaping the religious and communal experiences for another hundred petitioners.
My interest in civics, however, must have predated that seventh grade class to some extent because I have very specific memories of reading Gandhi and thinking about King in that year of my life—and I would presume that my interest in Gandhi and King and society as a whole was not spontaneous, but grew out of some experience I cannot recall.(I am certain that I was influenced by Gandhi and King in 7th grade because my views of Gandhi and King shaped how I responded to a particular bully I confronted that year. Thus, I must have thought about Gandhi and King either that year or earlier.)
In fact, I remember watching a televised debate between Mayor Harold Washington and Donald Haider and surprising myself by being very impressed by the Republican Donald Haider. The election for which that debate was held occurred on April 7, 1987. At that early age, I was very aware that supporting Donald Haider meant not supporting an historic and well-respected Democrat even though I lived in a Democratic town and grew up in a Democratic family. I also remember being asked to consider the favorable effect Mayor Washington had or was brining to race relations—so I was aware of segregation in Chicago and was aware that there was a role of a mayor in addressing these issues. Unfortunately, I have no memory of why I supported Haider, or why race relations would have been affected by who occupied the position of Mayor.
These memories have two things in common, similar to the stories of Justice Souter. I was not intimately involved in the political process itself, and in fact had no effect on it, yet I knew it impacted me and perhaps was fascinated for that reason. Alternatively put, and perhaps stated in an overly sophisticated way, I appreciated that the democratic process often involved individuals thinking about the greater good, the interest of the larger community not whether one fully thinks through how it impacts one’s own self.
Personal involvement began, in some manner, in the following year. In the 1988 Presidential election, I watched the debates, watched CSPAN’s coverage of the Democratic, Republican and Libertarian conventions. I also remember that the Democratic primaries featured two candidates from my then-home-state, namely Jesse Jackson and Paul Simon, along with another Midwesterner, Richard Gephart. I don’t remember if I had a favorite candidate, although I ultimately felt strongly in favor of the Democratic candidate, Michael Dukakis, over the eventual victor, President George Bush. During the general election of that year, my school had a mock election on or about Election Day, and I wrote the summary of the results for the school paper.
part of a mock electorate had meaning for me, as it meant that my voice was being heard, even if not counted. Writing about it for the school newspaper meant that we were preserving history—even if the historical evidence of that paper may now be limited to my memory. I remember that Bush won our school’s election by a margin that was not far off from the national margin.
That election season also featured discussion of some sort. I specifically recall a school retreat to Lorado Taft in early November (either right before or right after the election) where there was spirited debate about the two general election candidates, Bush and Dukakis. As an aside, I should add that our school was a voting place, and thus we had no access to our gym on that day. We also had to be quieter during lunch so we did not disturb the voters.
All of this made the political process real, making us appreciate that upon the age of maturity, we too would participate in the democratic process, at least to decide our country’s leaders. High school involvement was much more direct in several ways.
Ultimately, I turned 18 during November of my senior year of high school, although not until several weeks following President Clinton’s election—and this was highly disappointing for me. However, during high school, my political involvement included participation in our school’s delegation to the YMCA’s Illinois State Youth and Government, where I served as a mock lobbyist for the ACLU in my sophomore year of high school and as a legislator my junior year. In the year I was a mock lobbyist, I won “lobbyist of the year” for my thorough efforts to get attention and engage in discussion with anyone I could find. I even wrote a newsletter to hand out in Springfield (the statewide legislative session that culminated the seven month program) to assure that everyone I could find knew my views on issues facing those in the mock legislature. (Sadly, I no longer have copies of this newsletter.)
For the first time, I felt like I was really getting political experience, as I sat and spoke for some time here and there with individuals who saw the world differently than I did. Although the State Youth and Government process was so truncated, I developed an appreciation of the political process. To me, it became instantaneously clear that the difference between liberals and conservatives was not in contrary ideals, but in different experiences in the value of the governing process, primarily stemming from different types of interaction with government. I also developed the notion that urbanites would always be a little more interested in an involved government (as they required government to manage the number of people living in close proximity, including in adjoining properties) whereas those in rural areas would be a little less interested (as they saw themselves as more independent from their neighbors, and in fact often had property that was a not dependent on a neighbor’s property for survival.
These shaped my view that Aristotle was right when he said man was a political animal. Thus, I started to see human experience not merely in terms of my own experience but in terms of the idea of a society as a whole. Subsequent high school experiences that reflect this include (1) participation in clean-ups, soup kitchens, and Habitat for Humanity; (2) participation in a student walk-out to protest the continued employment of a supposedly racist teacher; (3) conduct of a survey of race relations in the high school; (4) attendance at mayoral candidate forums during a local election, being both the youngest attendee at both forums, being both the only Caucasian at the forum for the Democratic candidate and the only Democrat at the forum for the Republican candidate.
All of these events make politics and social involvement very real for me. They allow me to experience democracy in a very serious way. I cherish these memories and I suspect that many people highly engaged in the political or legal process would have similar memories they cherish. A good reader would likely see similarities in the nature of the stories presented by those who are politically active or active in advocacy.
It would then be important to review these stories, along with those stories of those choosing to be inactive or apathetic to the political and policy world, and contrast those who chose activism with those choosing inactivism to understand best what inspires people to engage and what dis-inspires people.
I write this paragraph because I believe that many activists believe that they can engage “the masses” without first addressing why some people feel dis-engaged from the process and helpless when it comes to affecting social issues. Alternatively put, why do some people feel like they could conceivably change the world if they organize correctly and others feel that the democratic institutions are a ruse and they are helpless to alter the system?
If I were teaching a semester-long college course on civic and legal engagement, I think I would start by asking my students to write a mini autobiography of at least four life experiences which shape his or her perspective on citizenship and social action. I suspect that self-reflection would cause students to consider whether their perspective on politics and social involvement, whether it be idealistic, optimistic, pessimistic, disinterested, or completely hopeless.
A fuller understanding on this front would shape educator’s understanding of how to make civics education more meaningful for its students. It would also impact the manner in which social engagement is conducted. In an effort to demonstrate what I have in mind, I have chosen to provide an example of what I am calling a citizenship autobiography by providing my own as if I were responding to this question.
My civic engagement story:
In thinking about my earliest memories of thinking about citizenship, I should admit that I may have been that oddball that was fascinated by the political process as early as I can remember. In seventh grade (1987-88), I took the standard middle school introductory course in civics. I was immediately fascinated by Continental Congress’ 1776 decision to separate from England and the Constitutional Convention of 1787.
There was something amazing to me about people gathering to envision how to organize society towards its betterment. I read about the debates and developed clear images in my mind of a room of adults in serious and respectful discourse about various methods of governance.
Frankly, I think this is when I first developed an admiration for democracy, envisioning that all informed adults were capable of collaborating to address communal problems. This idea was reinforced repeatedly for me by my vcr, as I was mesmerized by the movie musical “1776”, which has been a favorite of mine since.
That idealism in the classroom was reinforced to some extent in my synagogue involvement. Even at that age, I was attentive to member discussions about my synagogue’s structure, collective decision-making, and future. I didn’t attend board meetings but I overheard discussions about them and I found it fascinating that a small number of individuals would take responsibility to put effort into shaping the religious and communal experiences for another hundred petitioners.
My interest in civics, however, must have predated that seventh grade class to some extent because I have very specific memories of reading Gandhi and thinking about King in that year of my life—and I would presume that my interest in Gandhi and King and society as a whole was not spontaneous, but grew out of some experience I cannot recall.(I am certain that I was influenced by Gandhi and King in 7th grade because my views of Gandhi and King shaped how I responded to a particular bully I confronted that year. Thus, I must have thought about Gandhi and King either that year or earlier.)
In fact, I remember watching a televised debate between Mayor Harold Washington and Donald Haider and surprising myself by being very impressed by the Republican Donald Haider. The election for which that debate was held occurred on April 7, 1987. At that early age, I was very aware that supporting Donald Haider meant not supporting an historic and well-respected Democrat even though I lived in a Democratic town and grew up in a Democratic family. I also remember being asked to consider the favorable effect Mayor Washington had or was brining to race relations—so I was aware of segregation in Chicago and was aware that there was a role of a mayor in addressing these issues. Unfortunately, I have no memory of why I supported Haider, or why race relations would have been affected by who occupied the position of Mayor.
These memories have two things in common, similar to the stories of Justice Souter. I was not intimately involved in the political process itself, and in fact had no effect on it, yet I knew it impacted me and perhaps was fascinated for that reason. Alternatively put, and perhaps stated in an overly sophisticated way, I appreciated that the democratic process often involved individuals thinking about the greater good, the interest of the larger community not whether one fully thinks through how it impacts one’s own self.
Personal involvement began, in some manner, in the following year. In the 1988 Presidential election, I watched the debates, watched CSPAN’s coverage of the Democratic, Republican and Libertarian conventions. I also remember that the Democratic primaries featured two candidates from my then-home-state, namely Jesse Jackson and Paul Simon, along with another Midwesterner, Richard Gephart. I don’t remember if I had a favorite candidate, although I ultimately felt strongly in favor of the Democratic candidate, Michael Dukakis, over the eventual victor, President George Bush. During the general election of that year, my school had a mock election on or about Election Day, and I wrote the summary of the results for the school paper.
part of a mock electorate had meaning for me, as it meant that my voice was being heard, even if not counted. Writing about it for the school newspaper meant that we were preserving history—even if the historical evidence of that paper may now be limited to my memory. I remember that Bush won our school’s election by a margin that was not far off from the national margin.
That election season also featured discussion of some sort. I specifically recall a school retreat to Lorado Taft in early November (either right before or right after the election) where there was spirited debate about the two general election candidates, Bush and Dukakis. As an aside, I should add that our school was a voting place, and thus we had no access to our gym on that day. We also had to be quieter during lunch so we did not disturb the voters.
All of this made the political process real, making us appreciate that upon the age of maturity, we too would participate in the democratic process, at least to decide our country’s leaders. High school involvement was much more direct in several ways.
Ultimately, I turned 18 during November of my senior year of high school, although not until several weeks following President Clinton’s election—and this was highly disappointing for me. However, during high school, my political involvement included participation in our school’s delegation to the YMCA’s Illinois State Youth and Government, where I served as a mock lobbyist for the ACLU in my sophomore year of high school and as a legislator my junior year. In the year I was a mock lobbyist, I won “lobbyist of the year” for my thorough efforts to get attention and engage in discussion with anyone I could find. I even wrote a newsletter to hand out in Springfield (the statewide legislative session that culminated the seven month program) to assure that everyone I could find knew my views on issues facing those in the mock legislature. (Sadly, I no longer have copies of this newsletter.)
For the first time, I felt like I was really getting political experience, as I sat and spoke for some time here and there with individuals who saw the world differently than I did. Although the State Youth and Government process was so truncated, I developed an appreciation of the political process. To me, it became instantaneously clear that the difference between liberals and conservatives was not in contrary ideals, but in different experiences in the value of the governing process, primarily stemming from different types of interaction with government. I also developed the notion that urbanites would always be a little more interested in an involved government (as they required government to manage the number of people living in close proximity, including in adjoining properties) whereas those in rural areas would be a little less interested (as they saw themselves as more independent from their neighbors, and in fact often had property that was a not dependent on a neighbor’s property for survival.
These shaped my view that Aristotle was right when he said man was a political animal. Thus, I started to see human experience not merely in terms of my own experience but in terms of the idea of a society as a whole. Subsequent high school experiences that reflect this include (1) participation in clean-ups, soup kitchens, and Habitat for Humanity; (2) participation in a student walk-out to protest the continued employment of a supposedly racist teacher; (3) conduct of a survey of race relations in the high school; (4) attendance at mayoral candidate forums during a local election, being both the youngest attendee at both forums, being both the only Caucasian at the forum for the Democratic candidate and the only Democrat at the forum for the Republican candidate.
All of these events make politics and social involvement very real for me. They allow me to experience democracy in a very serious way. I cherish these memories and I suspect that many people highly engaged in the political or legal process would have similar memories they cherish. A good reader would likely see similarities in the nature of the stories presented by those who are politically active or active in advocacy.
It would then be important to review these stories, along with those stories of those choosing to be inactive or apathetic to the political and policy world, and contrast those who chose activism with those choosing inactivism to understand best what inspires people to engage and what dis-inspires people.
I write this paragraph because I believe that many activists believe that they can engage “the masses” without first addressing why some people feel dis-engaged from the process and helpless when it comes to affecting social issues. Alternatively put, why do some people feel like they could conceivably change the world if they organize correctly and others feel that the democratic institutions are a ruse and they are helpless to alter the system?
Sunday, October 16, 2011
Enliven Your Civics Course With Good Fiction or The Vision Thing
It is my impression that there is a huge coraltion between those who dream about life as it should be and those who have favorable effects on society. I believe President George Bush Sr. referred to it as "the vision thing." One of the most frustrating aspects of some civics and legal courses is that a student may feel that he is doing nothing more than memorizing a series of organizational structures. Earlier blog posts discussed the importance of empowerment. Does the student "feel" empowered to take the information learned and use it in real life. For instance, I once spoke with a seventh grader who discussed how her teacher was teaching the progressive movement of the late 19th century and early 20th century. The learning assignment featured only facts and figures and memorizing the definition of core concepts. The teacher was not interested in the students' reflection on the similarities and differences between the progressive movement of the time and various similar disputes occurring today. Hence, some exercises that come to mind that might help teachers get out of the face memorization pit:
1. The "King Ralph" question: A new nation is forming. This nation, like Australia, South Africa, the United States, and India, is a former British colony, and hence has a relatively civilized population. Like the United States when it split from England, there are different opinions about how best to create an organize a good government. Prior to coloniolization, the land was ruled by a royal family, of which you are the only living decendent,and you have just become aware of this fact. The leaders of the nation have called on you to assume your throne, at least temporarily, and draft a constitution for the new country. Assuming you don't turn down the job, what do you do to help this country organize itself?
2. You are amazing. As the result of ten years of your mayoral leadership, everyone believes that this city has achieved the perfect amount of civic engagement and democratic involvement/public discourse. It is now time to accept your Nobel prize. You are asked to write an essay describing what you have achieved for those not already aware. Please describe the nature of civic engagement in your town. What are people doing? How do they engage? Are they engaging in citizen groups, polticial parties or in different ways? Did you institute any new laws or regulations?
3. Following up to question 3 is the fact that they also believe that there is a perfect amount of government ocntrol versus personal liberty. Please descibe the extent to which human lives are governed byy this ideal government? In other words, what areas of life is one required to comply with government regulations and what areas is there no such regulation? What services are provided by the government and what services are provided by private businesses, and does the government assist individuals who can't afford certain services on their own?
1. The "King Ralph" question: A new nation is forming. This nation, like Australia, South Africa, the United States, and India, is a former British colony, and hence has a relatively civilized population. Like the United States when it split from England, there are different opinions about how best to create an organize a good government. Prior to coloniolization, the land was ruled by a royal family, of which you are the only living decendent,and you have just become aware of this fact. The leaders of the nation have called on you to assume your throne, at least temporarily, and draft a constitution for the new country. Assuming you don't turn down the job, what do you do to help this country organize itself?
2. You are amazing. As the result of ten years of your mayoral leadership, everyone believes that this city has achieved the perfect amount of civic engagement and democratic involvement/public discourse. It is now time to accept your Nobel prize. You are asked to write an essay describing what you have achieved for those not already aware. Please describe the nature of civic engagement in your town. What are people doing? How do they engage? Are they engaging in citizen groups, polticial parties or in different ways? Did you institute any new laws or regulations?
3. Following up to question 3 is the fact that they also believe that there is a perfect amount of government ocntrol versus personal liberty. Please descibe the extent to which human lives are governed byy this ideal government? In other words, what areas of life is one required to comply with government regulations and what areas is there no such regulation? What services are provided by the government and what services are provided by private businesses, and does the government assist individuals who can't afford certain services on their own?
Saturday, October 15, 2011
People's Law School -- in New York: Jamestown Community College
Jamestown Community College is conducting a People's Law School this year, initiated by retired State Supreme Court Justice Joseph Gerace Sr. The article I read in October 10th issue of Dundalk, New York' "The Observer."
The article indicates that the classes began October 11th, and will be taught by members of the legal community, and they will primarily discuss true stories to describe how the law works. Like the program I described in my September 23rd piece, this program will also include Elder Law and Estate Planning as a core subject area. (The focus is logical to me because it is a subject area that generally affects all members of the public in one way or the other.)
However, that is where the similarity ends. The second week of the program here will focus on bankruptcy, debt collection, and foreclosure avoidance. The third week is entitled "Entreprenuership 101." The fourth week will address tax issues, entitled "Challenging Tax Assessments on Residential and Business Property." The fourth week will concentrate on vetaran's issues, such as reimployment rights. The final week will focus on matrimonial and family law issues.
I am generally impressed by way in which the People's Law school in New York is engaging with the public. For one, there is an active facebook page. The facebook page is one where readers will be regularly updated as to what the People's Law School is teaching and other public relations coups of the program, including features on radio programs and educational-oriented discussions on the same.
To me, this serves an important role of educating the public about the law and providing mechanisms whereby members of the public can feel somewhat connected to the program.
The article indicates that the classes began October 11th, and will be taught by members of the legal community, and they will primarily discuss true stories to describe how the law works. Like the program I described in my September 23rd piece, this program will also include Elder Law and Estate Planning as a core subject area. (The focus is logical to me because it is a subject area that generally affects all members of the public in one way or the other.)
However, that is where the similarity ends. The second week of the program here will focus on bankruptcy, debt collection, and foreclosure avoidance. The third week is entitled "Entreprenuership 101." The fourth week will address tax issues, entitled "Challenging Tax Assessments on Residential and Business Property." The fourth week will concentrate on vetaran's issues, such as reimployment rights. The final week will focus on matrimonial and family law issues.
I am generally impressed by way in which the People's Law school in New York is engaging with the public. For one, there is an active facebook page. The facebook page is one where readers will be regularly updated as to what the People's Law School is teaching and other public relations coups of the program, including features on radio programs and educational-oriented discussions on the same.
To me, this serves an important role of educating the public about the law and providing mechanisms whereby members of the public can feel somewhat connected to the program.
Thursday, October 13, 2011
Occupy and the Tea Party Should Inspire Us to Study the Right to Organize and Protest
The Tea Party and Occupy Wall Street movements have made the right to protest and organize an important legal topic. Thus, it is probably good for all those interested (whether directly or just intellectually) in these movements to familiarize themselves with their first amendment rights to petition the government -- as well as to familiarize themselves with the limits of those rights.
Obviously I have no knowledge whatsoever as to whether these protest movements will lead to any additional arrests and/or litigation of protester first amendment rights. If I am reading the newspapers correctly, with the exception of the 700 arrested on the Brooklyn Bridge in a September protest, for the most part, both groups have relatively enjoyed the protection of their first amendment rights, although there are certainly indications of potential flair ups between the protesters and the Mayor Bloomberg administration.
My recommendation that we use these events as an occasion to study our first amendment rights is not primarily based on a notion that disputes over first amendment law will arise. I certainly hope not. In fact, when listening to some conservative-oriented media commentary on the Occupy Wall Street protests, I have been particularly pleased to hear that although they oppose or dismiss the Occupy Wall Street movement, they recognize the participants' rights of association, assembly and assertion.
On the contrary, I think that these protests have not yet inspired excessive legal disputes is even more of an occasion to study first amendment jurisprudence. I envision, only in part, that the mass study of first amendment jurisprudence would help prevent future dispute.
The study of First Amendment jurisprudence will lead to an appreciation on the left and the right of the role of protest in the American Constitutional tradition and assure that Americans part of these various movements are able to recognize that they share a Constitutional tradition that encourages citizens to speak out on issues of importance.
Although I haven't had occassion to study much First Amendment law since law school, I came across a Spring 2002 article by Steve Bachmann, entitled "Access to Justice As Access to Organizing" that identifies the major 20th century first amendment cases, thereby effectively creating a study course on one's right to petition his or her government, and one's right to protest. (The article's citation is: 4 J.L. & Soc. Challenges 1.)
Bachmann's article has two thesis. First, he argues that "access to justice is less a function of action to the courts than it is access to organizing because justice tends to go to those who are organized." Second, he argues that the right to protest and orgnaize is "greatly dependent on the Court's perspective on property rights versus first amendment rights, and other associational rights."
More importantly for this article, however, he proceeds to address this by presenting four phases of associational law during the 20th century, and particluar casees that make up those phases. In a subsequent article, I will spell out the course that I see coming out of his article.
Obviously I have no knowledge whatsoever as to whether these protest movements will lead to any additional arrests and/or litigation of protester first amendment rights. If I am reading the newspapers correctly, with the exception of the 700 arrested on the Brooklyn Bridge in a September protest, for the most part, both groups have relatively enjoyed the protection of their first amendment rights, although there are certainly indications of potential flair ups between the protesters and the Mayor Bloomberg administration.
My recommendation that we use these events as an occasion to study our first amendment rights is not primarily based on a notion that disputes over first amendment law will arise. I certainly hope not. In fact, when listening to some conservative-oriented media commentary on the Occupy Wall Street protests, I have been particularly pleased to hear that although they oppose or dismiss the Occupy Wall Street movement, they recognize the participants' rights of association, assembly and assertion.
On the contrary, I think that these protests have not yet inspired excessive legal disputes is even more of an occasion to study first amendment jurisprudence. I envision, only in part, that the mass study of first amendment jurisprudence would help prevent future dispute.
The study of First Amendment jurisprudence will lead to an appreciation on the left and the right of the role of protest in the American Constitutional tradition and assure that Americans part of these various movements are able to recognize that they share a Constitutional tradition that encourages citizens to speak out on issues of importance.
Although I haven't had occassion to study much First Amendment law since law school, I came across a Spring 2002 article by Steve Bachmann, entitled "Access to Justice As Access to Organizing" that identifies the major 20th century first amendment cases, thereby effectively creating a study course on one's right to petition his or her government, and one's right to protest. (The article's citation is: 4 J.L. & Soc. Challenges 1.)
Bachmann's article has two thesis. First, he argues that "access to justice is less a function of action to the courts than it is access to organizing because justice tends to go to those who are organized." Second, he argues that the right to protest and orgnaize is "greatly dependent on the Court's perspective on property rights versus first amendment rights, and other associational rights."
More importantly for this article, however, he proceeds to address this by presenting four phases of associational law during the 20th century, and particluar casees that make up those phases. In a subsequent article, I will spell out the course that I see coming out of his article.
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