School Shootings: Civic Engagement as a Preventive Measure

The public discussion during this entire week has been on the series of mass shootings, culminating in the Newtown tragedy, and what course of government action should be taken to address the shooting and prevent other tragedies. I am hearing the start of a vigorous debate concerning gun control and other discussions concerning mental health law and practice. I have even heard the absurd notion that laws should be instituted to require attendance at religious institutions.

While any proposal suggesting that religious involvement be made mandatory is certainly a violation of the First Amendment, and contrary to the commonly accepted notions of "personal freedom," the notion that we as a society would be safer if our community associations were stronger is actually a very legitimate point.  Thus, the root notion that tragedies of this kind might be prevented or decreased if community engagement were strengthened is not only not absurd, but very much worth exploring.

Professor Daniel P. Aldrich writes about disaster and resilience in places like Japan and Indonesia where there are periodic natural disasters like earthquakes and tsunamis.  He also lived in New Orleans around the time of Hurricane Katrina. My understanding is that he teaches that in places where community is strong and people regularly care for and communicate with each other, resilience is more likely.  If I am correctly understanding the few lectures of his that I have heard, this is in part because warning of impending disasters are more likely to be communicated to everyone in the community. Additionally, community action plans are thus more likely to exist.  One can imagine that an "each for himself" model means that the only one saved is the one who first heard the warning shot and had the most means to find safety.

These findings are consistent with what I observed when I was a community organizer, namely that when community organizations were strong with membership and organization, there was a far greater likelihood that their voice would be heard in political circles, and also a likelihood that a mobilized citizenry can shape public debate and push its agenda.  

However, community organizing is not only about power for a collection of people. It is also about inclusion, and self-empowerment of individuals.  I believe that members of community associations are far more likely to get their needs met--and not only political needs. Those who attend community association meetings are, by definition, interacting with others, often discussing their personal problems and connecting with others who can help.  One of the most important benefits of community association membership is that one's concerns, at least an aspect of one's concerns, are validated, and one is meant to feel empowered that through collective action, certain problems can be lessened or solved.

From what I understand, many or all of the mass shooters (during the past month or so) were loners, likely feeling totally dis-empowered by a world that seems unloving and disconnected.  This feeling can be known all too well when folks are so concentrated on their own getting ahead that they do not have moments to care for their neighbors.    When community associations are well run, each member's contributions to the group are honored. While members may still feel discontent with society at large, their lust for life is inspired by their partners in crime.

In no way do I suggest that community association membership is a panacea that will solve all community problems or prevent the next mass murder.  It is certainly true that there will be individuals so deranged that membership in a community association will have no favorable effect on them.  In fact, if the media were focused on the importance of community associations as the single solution to these mass shootings, I would probably be concerned that we were missing many other aspects of the solution, namely mental health issues and access to weapons by those with distorted objectives.  However, as I am hearing no talk of the importance of functional community associations to prevent future tragedies, I felt the need to raise the issue here. 

It has taken me a week to publish this piece. Hearing no discussion about the importance of civic engagement to the prevention of dangerous mental illness, I began to question my own opinion. However, this evening I came across an article that I believe supports my thesis.  I came across a short monograph published by the American Association of Colleges and Universities called "Bringing Theory to Practice Monographs: Civic Provocations" which included an article by Corey Keyes, Professor of Sociology, entitled "The Euphoric and the Civic."  

Keyes writes that he sees "civic engagement as critical to promoting flourishing in students" thereby preventing mental illness and reducing the risk of premature death.  Keyes further writes that "in our heart of hearts, we know that alone is not good enough. We also need actively to construct a good life, one that has a positive impact on society and that promotes the well-being of others." He goes so far as to say that there are two kinds of happiness, "one that is attained through the pursuit of individual interests and pleasure, the other through the pursuit of the greater good."  He further argues that "flourishing" requires both, and that there have been numerous studies in several countries (including in the United States) which show that those who flourish "have the lowest risk of mental illness..."

Keyes remarks " Yet although we’ve planted a flag for flourishing here in the United States, we’re still behind Australia, the United Kingdom, New Zealand, Canada, and other countries that are further along in promoting positive mental health for their citizens. We cannot treat our way out of the problem of mental illness. To promote flourishing, we need to help people do better than just pursuing individual interests and pleasure."

Keyes concludes his text: "By promoting flourishing, we can contribute greatly to the public good by preventing mental illness. By investing in more civic engagement, students can contribute to the greater good and increase their chances of flourishing."

I can personally vouch for the increase in mental health that one can experience when engaging in community activism.  Community activism and engagement has been a critical aspect of my happiness since 1993.  In some years my community activism has been driven towards the political and in other years it has been more driven towards the parochial. However, in all years, my happiness could be connected to my involvement in working with others in strengthening a particular community.  

In conclusion, I hope this article will convince you to consider how your mental health can be improved by engaging in local community associations, whether they be religious, secular, political, or simply designed to provide a valuable community service. 

Book Review: Kourlis and Olin Make Accessible the Conversation About Making Justice More Accesible

I very much enjoyed reading Rebuilding Justice: Civil Courts in Jeopardy and Why You Should Care by Rebecca Love Kourlis and Dirk Olin, and would encourage anyone concerned with access to justice issues to read it. In this 2011 text, Kourlis and Olin discuss several ways in which our judicial system is not adequately serving the public's need.

My praise of this book is high. I have not recently seen any other book distill for the lay person the problems facing our judiciary, and lay out different techniques for addressing the identified problems.  I believe that this book can and should encourage readers to consider and take seriously the needs of the judicial branch of government. 

Each chapter to this book addresses a specific weakness in our judicial system, and raises particular possible solutions, many of which reflect existing experiments already in place in various jurisdictions.   For instance, the second chapter illustrates the highly politicized method of judicial selection in the federal bench, explains how the politicization has such a negative effect on the citizen’s trust of the judiciary, and offers alternative selection mechanisms.  The fifth chapter discusses the impact of the cost of discovery on the accessibility of the court systems on non-wealthy members of society.  The eighth chapter focuses in on the extent to which the traditional adversarial system fails to address complex issues in family law are addressed—and it presents and innovative approaches around the country towards combating those issues.

This book offers many suggestions for fixing the problems it describes.  Each reader will likely find suggestions that they find very valuable and other suggestions which they find problematic or wrong.  I personally was very pleased to read about innovations in the family court arena, but thought that the book’s issues with e-discovery did not factor in the fact that extensive e-discovery is sometimes the only way to uncover deception or duplicity. In fact, I take a particular pleasure if the fact that this book presents ideas with which I agree along with idea with which I disagree. Where I in agreement with all of the book’s suggestions,  I might be disinclined to consider the true message of this book—that citizens have an interest in the ways in which our courts function.

In other words, the most important take home lesson from this book is that every citizen should deeply care about functionality and fairness of the judicial process because our democratic system is dependent on it. A secondary take home lesson is that organizing the judiciary involves serious consideration of whether the court rules, methods of access, and other aspects of the organization of the court, properly and sufficiently serve the constituents of the system, namely the general citizenry.

Should this book be released in a second edition, I hope there will be a little more discussion more fully explaining why a functioning judiciary is so important to our republic.  Although the book very clearly demonstrates how access to our legal system has decreased for many individuals, the book appears to invite its readers to presume why the problem matters—which is not inherently obvious to those unfamiliar with the courts. My personal view is that elementary exposure to contract theory will convince all readers that the absence of a functioning court system will lead many individuals to problematic self-help techniques, like use of personal weapons or the employment or engagement of gang or mafia protections.  A functioning civil court system provides a mechanism for citizens of a society to have their disputes resolved without resorting to dangerous self-help techniques.   Once readers already understand this premise, they should appreciate the issues presented in this discourse.

In short, I see this book as the introduction to an important discussion society should be having about what we expect of our courts, and I personally hope that I am able to contribute to this discussion in a valuable way. 

Prohibition Exhibit Deserves Good Mark for Legal Literacy

On May 30, 2010, I wrote about the role museums can have in increasing knowledge and proposed that a National Museum of (American) Law could have some value. See my article at: Idea: National Museum of (American) Law.  An excellent example of what I had in mind could be found in the exhibit: "American Spirits: the Rise and Fall of Prohibition," available at the National Constitution Center in Philadelphia now.  the exhibit is available through April 28, 2013

The exhibit presents our nation's history of the prohibition with alcohol, addressing the medical and social problems that inspired many Americans to endorse the prohibition experiment--and thus the 18th Amendment, crime and other problems associated with the illegal use and purchase of alcohol during the time of prohibition, and the factors leading to the establishment of the 21st Amendment, thus ending the alcohol prohibition experiment.   Although the exhibit does not pretend to reflect on all aspects of life in the 1920s, it presents a nice window into life during that time period.

The Prohibition exhibit is appropriate for the Constitution Center, and this blog, because of its serious focus on the legal side of Prohibition.  The attendee of the exhibit is encouraged to reflect on the community organizing and lobbying involved in introducing and promotion of a Constitutional Amendment along with enabling legislation.

 One aspect of the exhibit is the "Is it Legal" game that invites participants to consider whether certain forms of alcohol use or possession is legal or illegal under the 18th Amendment and Volstead Acts.  Another aspects of the exhibit is what appears to be excerpts of records from the prosecutions of various violations of the law during the time of Prohibition.  These aspects, along with a few others, give the attendee a picture of the role of legal process in historical events.

If I were curating this exhibit for my proposed National Museum of (American) Law, I am sure I would have have done more to describe and demonstrate procedural aspects of the legal arena. However, putting aside any dream exhibit, I think this exhibit deserves high marks for very quickly illustrating the complex aspects of the legal and Constitutional experiment involving the prohibition of alcohol.  I have no doubt that the average viewer's appreciation for the legal and legislative process is expanded, at least to some extent.

Legal Literacy Course Now Mandatory in Punjab in Context of More Global Educational Push By Legal Community Leaders

The Times of India just reported that it will be mandatory for all students in colleges affiliated with Panjab University to take legal literacy as a subject. One article in the Times of India reports that the  Nishta Jaswal, Chairperson of the Department of Law, stated that this decision was made because "all students require legal knowledge."  Although the course has not yet been designed, it appears as if it will be a survey course designed to deliver only the underlying basics to the students in the course. Compared with a mandatory course in road safety (also mandatory at Panjab), the article noted that the course will be designed in a manner that will not distract students from other rigorous courses.

The announcement of this course comes in the context of what would appear like a more global push by the leaders of the legal and educational community in Punjab to advance legal knowledge in the general population.  

• In this month alone, Legal Literacy Youth Festivals were held at both Dev Raj Hi-Tech College and Apeejay College of Fine Arts. From what I can tell from local news reports, these festivals include contests involve skits, poetry, poster presentations, and photography on a variety of social topics like domestic violence, child labor, and other social ills, designed to increase awareness among the citizenry of their rights with regards to these issues.
• Punjab Newsline reported last week that government schools in Chandigarh will sponsor legal literacy clubs in high schools and colleges with the aim of making student members a bridge between people in need of legal aid and the legal services entities.  Despite a literacy rate of 86.4 percent, many are unaware of their legal rights to escape abuse, access government services, and with regard to interactions with the police.
• On November 12th of this year, the Times of India reported that the legal literacy clubs have become a "real hit" and have increased interactions between students and lawyers in the locations in which these clubs have been established. 

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MD Court of Special Appeals Creates Pro Se Online Guide

The Maryland Court of Special Appeals (Maryland's highest court)  has recently taken an important step towards making its court accessible to the public.  On its website, it has published A Guide for Self-Representation.  This step is an important recognition that for pro se litigants to have the access to the right to pursue their cases in courts, they must also have access to the appellate courts in order to challenge decisions of trial courts when necessary.

The importance of access to the appellate courts is a crucial right for litigants.  To explain why this is so important, an analogy may be drawn by considering fee-shifting cases. Fee shifting cases are those cases where statutory authority provides for prevailing plaintiffs to be able to obtain their attorney fees in recovery. Title VII and the Maryland Wage Payment Act are examples of statutes with fee shifting provisions.

In a Maryland Wage Payment case, the Maryland Court of Appeals wrote: "It is important to compensate counsel for ensuring that the trial court gets it right, even if to do so requires counsel to appeal, as it is to ensure that counsel is compensated for services rendered at trial. Indeed, it is a disincentive to the retention of competent counsel in these kinds of cases to deny recovery for successful appellate advocacy, including advocacy that demonstrates trial court error." Friolo v. Frankel 403 MD 443, 458 (Md. 2008).

This quote illustrates that access to the appellate courts is deemed by the Court of Appeals to be as or almost as important as access to trial courts.  Indeed historic cases like Gideon v. Wainwright illustrate that the needs of those without income are often only fully addressed when appellate courts are asked to intervene.  

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.

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.

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.

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.

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.

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.

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.

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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