Legal Literacy Is An American Value With Roots in Early Colonial America

Literacy is commonly defined as the ability to read and write in a manner sufficient to function in society. Similarly, legal literacy is having the knowledge and familiarity with the laws and one’s rights and responsibilities sufficient to function in society.  The purpose of this piece is to reflect on the extent to which the values of legal literacy is important to the Book of the General Laws and Liberties Concerning the Inhabitants of the Massachusetts, the first American legal code, published in 1648, and what we should draw from this precedent.   

It is important to recognize that legal literacy plays a role in all societies. In tyrannical regimes, legal literacy means having the knowledge and familiarity with the likes and dislikes of the person or persons with control over the military and police forces. In many voluntary non-governmental associations like religious and cultural societies, it means a commitment to a myriad of rules and regulations governing numerous aspects of daily living.  In a democratic-republic such as ours, it means a general familiarity with rights and responsibilities of one’s enterprise, a general familiarity with one’s obligations to one’s neighbors and others with whom one interacts, one’s rights to secure a legal remedy when faced with a legal cognizable harm, and one’s rights to petition and influence the government.

My view that legal literacy is an essential American value is not original to me or merely an aspect of the age in which we live, although that impression is understandable given the newness of various legal literacy organizations.  The Book of the General Laws and Liberties Concerning the Inhabitants of Massachusetts is first legal code in the Colonies, instituted in 1648.  Its introduction specifies that legal principles incumbent on members of society should be “drawn out into so many of their deductions as the time and condition of that people may have use of” [them].  I interpret that language as meaning that the writers contend that laws should be promulgated in a manner that is understandable and usable to the average citizen. The introduction also indicates that a primary purpose of publishing the 1648 legal code, and specifically using the mechanism of organizing materials alphabetically by topic, is designed to make sure the statutes are “more readily…found” and “more easily…apprehended.”

In "Codification of the Law in Colonial Massachusetts: A Study in Comparative Law,” published in the Indiana Law Journal in 1954, George L. Haskins asserts that “when [the code was] completed,  it was  believed  by  the  colonists  to  be  a  complete  and  comprehensive statement of the laws,  privileges,  duties, and rights in force  within the  jurisdiction.

Various writing on the Code have at least implicitly focused on why the Code can’t be seen as having the weight of precedent to our set of statues.  For instance, various articles on the Code have focused on the express references to Christianity in the Code. The Code specifically references its “Lord Jesus Christ” and identifies the political government established by God to “his people Israel” to be a legal system that was “more righteous than the other nations.” The Code provides the death penalty for certain religious crimes like blaspheme and the worship of entities other than the deities of Christianity. Additionally, many clauses in the Code specifically cite to Biblical clauses.  In fact, a cursory look at the titles and themes of the many sections within the code, namely laws prohibiting certain sects of Christianity, blasphemy, fornication, gaming, and heresy all seem completely inapplicable to our visions of what governments are authorized to legislate and enforce.  

In History of American Law(2005), Lawrence M. Friedman writes that this code became dead and forgotten quickly in part because “the legal needs of a small settlement run by clergymen …were fundamentally different from the needs of a bustling commercial state.”

However, notwithstanding any and all ways in which the Code may seem inapplicable to today or foreign to our current situation, we who care about legal literacy among the population in general can and should look to this Code as important precedent for the notion that a good code is written with the design to inform all citizens about their rights and responsibilities—and should not be formulated in a manner so confusing that the average citizen must preserve their life savings for the purchase of hourly attorneys to explain to them the rules of societal engagement.

I do not disagree with Friedman’s assertion that the legal needs of a small settlement is fundamentally different from the legal needs of a bustling commercial state, but I believe that the need for legal literacy in the bustling commercial state is fundamentally similar to the needs of a small settlement run by clergymen.

Unmet Legal Need an Issue in Australia As Well; Is Lack of Access a Worldwide Problem?

The Law and Justice Foundation of New South Wales this year issued a report of unmet legal needs of Australians.  That report, Legal Australia-Wide Survey Legal Needs in Australia, issued in August of this year, 2012, boasts that it is "largest legal needs survey to date conducted anywhere in the world" with 20,716 survey participants.

The survey discovered that while 50 percent of respondents experienced one or more legal problems in the past year.  The most prevent legal problems were consumer issues, crime, housing, and access to government services, and almost half of the 50% experienced three or more legal problems within the year.

Although Australia is such a distance from our shores, the similarity of findings between this survey and those covering our nation, not to mention in nations in between, seem to indicate a world wide issue to address.

The survey found that even when recognizing legal problems at issue, many refrained from taking action because of the length of time between complaint to resolution, the cost required to engage counsel, and stress involved. Although I am not presently concentrating on American surveys, I am completely sure that surveys conducted in America would come to similar conclusions.  

Assuming I am right that the findings of this survey in comparison with similar surveys in America and England reflect worldwide problems, perhaps it is necessary for international lawyer groups to collaborate on unmet legal needs throughout the planet, and what international standards might be necessary to assure that citizens of the world have relatively equal access to courts to address legal needs.

Post-Holiday Reflections on MLK Day of Service; Shouldn't It Be a Day of Community Engagement and First Amendment Activity?

I just googled "Martin Luther King Day of Service" and received about 3,710,000 results. Vice President Biden, Homeland Secretary Napolitano and 10,000 volunteers created care kits for military personnel, disabled veterans, and civilian first responders.  Other local Days of Service included refurbishing school buildings, and participating in Habitat for Humanity-like projects.  Throughout our nation were similar sorts of projects. While all volunteer work should be honored and encouraged, we need to consider whether the holiday is being properly honored by the current variety of volunteer options, or if the holiday has been instituted with a specific focus requiring a redirection of our efforts. 

These community service projects are crucially important to the strength of our civil society.  According to the Corporation for National and Community Service, 61.8 million individuals in the United States contributed 8 billion hours of volunteerism in 2008, the economic value of which is $162 billion.  These volunteer projects are an indispensable part of our civic society.   This writer is encouraged by this statistic and hopes that the number of hours and dollar value of those hours increases exponentially over the coming years.

The federal holiday honoring the birthday of Martin Luther King, Jr. was enacted November 2, 1983.  Public Act 98-399, the act establishing the federal holiday we often refer to as MLK day, specifies that the day should "should serve as a time for Americans to reflect on the principles of racial equality and nonviolent social change espoused by Martin Luther King, Jr."  The Act also established a Federal Holiday Commission designed to "encourage appropriate ceremonies and activities...relating to the...observance of the Federal legal holiday honoring Martin Luther King, Jr."  

In 1994, Congress enacted the King Holiday and Service Act of 1994. The Act appropriates money to "support the planning and performance of national service opportunities in conjunction with the federal legal holiday honoring the birthday of Martin Luther King, Jr., effectively authorizing monies to be spent for federal projects in support of the King holiday, mostly through the Corporation for National and Community Service.   The Act specifies that the Corporation should make grants and provide opportunities for individuals to "reflect the life and teaching of Martin Luther King, Jr. such as cooperation and understanding among racial and ethnic groups, nonviolent conflict resolution, equal economic and educational opportunities."

This noble purpose should not be squandered and should not displace the general (and also noble) importance of community service.  In fact, there is a tremendous need for increased community service involvement by the public at large, and in future posts I hope to further consider this assertion. However, MLK day was designed with the explicit purpose of considering the teachings of Dr. King and to advance the goals of cooperation and understanding among racial and ethnic groups, nonviolent conflict resolution and equal economic and educational opportunities.  

It strikes me that we have drawn ourselves away from the purpose of the holiday perhaps because of the inherent challenges that accompany its purpose.  For instance, exploring disparities in economic and educational activities often involves engaging in complex policy discussions about education funding, affirmative action, access to networking opportunities, housing segregation, disparate police interactions, access to small business financing, and numerous other areas of our society where the experience of citizenship differs among members of those appearing to belong to differing racial and ethnic groups.  

Furthermore, unlike in King's day, racial and ethnic segregation and disparities are often not due to government policies designed with the express intent of inflicting different rights upon members of different groups, but it may also be the case that certain policies may have different affects upon individuals in different racial, ethnic, social, and income groups.  It is also unlikely that any policy advocates can uniformly proclaim that their message is the sole successor to King's message--making it harder for any policy leaders to advance discourse by citing to King's message, or being able to successfully use King's legacy as a means to open necessary discourse.  In fact, unlike in years past, policy advocates on both the left and right of the political spectrum proclaim to be have discovered the unique method of securing equal economic and educational opportunities among individuals of different racial and ethnic groups. 

Thus, although there is a severe disparity of method, there is a potential unity of purpose that could make it so valuable for efforts in support of the King Holiday to be drawn towards dialogue and other activities that encourage reflection on current application of the principles of racial equality and nonviolent social change.  

It is more likely than not that it is fear of the unknown and conflict that prevents municipal corporations, community associations, and the Corporation for National and Community Service from insisting that its King Day efforts be narrowly tailored to the purpose specified in the above-mentioned 1983 congressional act.  Alternatively put, it is far easier to organize high school kids to bake brownies for the homeless, but it is far harder to organize a dialogue among high school kids concerning the diverse causes of homelessness.   It is easier to hold an event that communicates the vision of racial harmony, it is far harder to sit down and investigate the stumbling blocks preventing the reality of the vision. 

It is my contention that it only through navigating this great unknown that we as a society have any chance of realizing the vision that gave rise to our determination to recognize the efforts of King with a national holiday. I hope this essay will encourage all of us to engage ourselves in activities in future King holidays that are truly worthy of the mission to honor the birth of Martin Luther King, Jr. through reflecting on the life and teaching of Martin Luther King, Jr. and current opportunities for cooperation and understanding among racial and ethnic groups, current opportunities for nonviolent conflict resolution and current opportunities to achieve equal economic and educational opportunities.

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.