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How to Expand Access to Legal Practice: A Response to An Article in the Economist

On February 2nd, The Economist published a series of articles, including Guilty as Charged and The two-year itch regarding ways in which the cost of legal advice has increased greatly as a factor of the increased cost of admission to the practice of law, along with the limitations placed on the access to the right to practice law.  I was asked to comment. 

The Economist articles implicitly raise very serious concerns about access to justice, namely that various limitations on the practice of law make access to legal representation and thus legal assistance excessively expensive.  I agree with the articles' articulation of the problems needing confronting, but have slightly different proposed solutions.

 The Economist points out that "America has more lawyers per person of its population than any of 29 countries studied (except Greece), and it spends two to three times as much on its tort system, as a percentage of GDP, as other big economies (except Italy, where things are nearly as bad)."  While these statistics might suggest an overspending and overlawyering problem, coupled with too large a legal community, it is also true that according to the Legal Service Corporation’s  October 2005 study, “Documenting the Justice Gap in America," 50% of those who qualify for LSC funded programs are turned away due to lack of resources and 80% of the legal needs of the poo go unaddressed.  At a recent conference of the DC Bar, I heard the Executive Director of Philadelphia's Community Legal Services proclaim the continued validity of these percentages. 

One of the Economist articles correctly points out that the high cost of legal education and bar admission makes offering low-cost legal services at affordable prices a near-impossibility for new lawyers who have large loans to repay, coupled with existing living and family expenses.  The article effectively recommends that students be allowed to sit for the bar after two years of law school, rather than three—which is currently the case. Another Economist article recommends that non-lawyers be allowed own shares of law firms, claiming that the current prohibition of non-lawyer investment "keeps fees high and innovation slow."

Both of these proposals are deserving of our attention.  Legal education today is outrageously expensive and time-consuming. It is particularly expensive for individuals with family obligations and without financial resources to attend law school.  In the past few months, I have read numerous articles about the sizable debt confronted by law school graduates.  These articles have been included in diverse publications as the magazine of the DC Bar, the New York Times, and the Huffington Post.

It is worth noting that neither of these articles references the suggestion by Milton Friedman in Capitalism and Freedom, that occupational licensure as a whole be discarded.  Although the book was written in a prior generation, its points are worthy of our attention.

In Chapter 9 of Capitalism and Freedom, Milton Friedman argues that professional licensure does not fulfill its intent to protect the public, but instead creates barriers for individuals to engage in the professions they wish, serving as a barrier to the public’s right to voluntarily engage economically with whom they wish.

Friedman argues that although licensure regimes are designed to protect the public, the process inevitably creates barriers to practice that are not relevant to professional competence or the public’s legitimate concerns for safety, and thus merely serves to restrict competition. He gives the example of professionals in the early 1950s that required members assure that they were not communists before being authorized to practice their craft.   

Friedman argues that the medical and law professions’ professional associations limit access to participation by preventing practitioners who did not graduate from an accredited professional school, an option only available to those who are accepted into an accredited professional school, which thus requires graduation from a recognized four year college.  This problem is illustrated by adults with requisite knowledge and sophistication to practice medicine or law whose academic background prevents their admission into graduate school.

Friedman’s text gives the example of political refugees who were experienced trained medical professionals in their home countries, yet unable to practice their craft and expertise here. Friedman additionally argues that there are restrictions placed on doctors on how they may structure their practice, making it harder to offer affordable medical care.

Friedman raises some compelling concerns, but proposes an impractical solution. I’m sure we all can think of examples of individuals suffering professionally due to these restrictions.  For instance, I know someone whose legal understanding is superb but he is forever restricted in his ability to practice law because he has not passed a bar examination, mostly due to test tensions that are irrelevant to his desired transactional law practice. He then sought to open a paralegal practice that sought to assist practitioners with writing, research, and administrative matters, but found that he ran the risk of being accused of practicing law without a license. Someone else I know is extremely knowledgeable about law but the prohibitions against practicing law without a license prohibit him from serving as counsel for those friends of his who need legal help but don’t qualify for assistance from Legal Service Corporation entities but yet can’t afford licensed counsel.

Friedman’s proposal to discard law licensure altogether is extremely risky, as it would provide an avenue for non-lawyers to parade around as lawyers.  Friedman argues that malpractice and fraud law are sufficient to protect the public, but he fails to consider that tort law can only provide a remedy after a course of bad conduct and damage, it can’t prevent bad conduct. Licensure, however, has the power to interfere with the faulty economic relationship in advance. For instance, absent a licensure system, what would be illegal about my opening a doctor’s office and pretending to practice medicine based on folk cures and untested hypothesis I might have about various healing methods? Recently I learned of a case of a trained lawyer who repeatedly collected fees for services he did not perform.  Removal of his law license is a fairly effective means of alerting the court and the public that he may not be trusted.  Without law licensure, a successful criminal fraud prosecution would be the only mechanism available to arrest this person’s fraudulent behavior.

Friedman does, however, make a great point that only modest corrective measures might not achieve a sufficient result.  I believe Friedman would argue that decreasing the cost of law school by one-third would only decrease the severity of the problem, not address it.  While a one-third cost reduction would certainly assist any individual student, failing to address the larger problem of the hyper-inflation of the cost of law school would require us to repeatedly revisit this problem very shortly.

Although I would be uncomfortable with abolishing state-recognized licensure altogether, I would be comfortable with the reintroduction of the practice of allowing individuals who did not attend law school to sit for the written bar exam or be examined orally by senior members of the profession, much as President Lincoln received his law license in September 1836 after an oral examination by a panel of practicing lawyers. I would also be comfortable with an expanded use of the pro hac vice process to allow non-lawyers to serve as legal representatives on a case-by-case basis. My proposal has the benefit of retaining our trustworthy bar admission methodology, retaining our rules against nonlawyers advertising as lawyers, while allowing for individuals to obtain legal assistance from more educated non-lawyers. By making the standard law school optional, yet requiring potential  legal practitioners obligations to obtain certain knowledge before practicing commercially, this would open the door to diverse legal education options in addition to the existing 3 year model. I personally would like to see a reintroduction of law school options that revolve around training in the context of a series of public interest fellowships, analogous to the former Antioch College, or a program revolving around the discussion of great cases, which is what I imagine would be the case in St. John’s College (Maryland/New Mexico) had a law school.   

A third Economist article The case against clones, references a lawsuit by a Jacoby &Meyers, LLP (Jacoby & Myers Law Offices, LLP v. The Presiding Justices of the First, Second, Third, and Fourth Departments et al., 11:11-cv03387)  designed to permit itself to obtain outside capital "to upgrade technology and take advantage of scale." The lawsuit seeks a ruling that the First Amendment (incorporated to the States through the Fourteenth Amendment) protects the rights of non-lawyers and lawyers to partner or invest together in the formation of a law firm.  Currently, most States' Rules of Professional Conduct prohibits sharing legal fees with non-lawyers, and effectively prohibits any professional partnership with a non-lawyer.   On January 9, 2013, the Second Circuit Court of Appeals remanded the case to the lower court for a determination on the Constitutionality of the relevant provisions of the Rules of Professional Conduct.  To the best of my knowledge, this case is still pending at the lower court.

 I believe a ruling favoring Jacoby & Meyers, LLP would forever alter the legal profession, in some good ways and in some bad ways.  For instance, if lawyers and accountants could partner, the tax field would become more effective. If law firms could invite non-lawyer investors, it might be easier for new lawyers with good ideas and no cash available to locate start-up capital. Furthermore, partnerships with non-lawyers would allow attorneys to partner with and offer stock options to long term paralegals and secretaries, many of whose work is as essential to a law firm’s profits and success as that work which is billable. 

In the Jacoby and Meyers case, the Defendants argue, in part, that the limitations at issue “are to protect the lawyer’s professional judgment” and “to minimize the number of situations in which lawyers will be motivated by economic incentives rather than by their client's best interests.”

In my opinion, the most compelling argument available to Defendants, which is raised in their motion to dismiss the suit by Jacoby and Meyers, is that law firms run by business executives are not necessarily bound by the Rules of Professional Conduct. 

Under the Rules of Professional Conduct, there are numerous professional obligations incumbent on lawyers that are not required of business owners not engaged in the practice of law.   Defendant’s brief states: “Should a partner …violate the Rules and cause the lawyer to act against his client’s interests, the partner would himself be subject to discipline by the state judiciary and risking his license to practice. …There is no similar deterrent in place to prevent a non-lawyer investor from attempting to influence a lawyer’s professional judgment for financial gain (and the reality of the market all but ensures that such pressures would shortly be brought to bear once the restriction on investment is lifted).” The brief points to other professional obligations not legally required of non-lawyers. These positive aspects of professional licensure should not be thrust aside without care for the consequences. 

Friedman makes the argument that these rules limit the opportunities for individuals of different expertise to creatively cooperate to make their respective professional services less expensive to the general public. For instance, as I say above, the tax field could be more effective if lawyers and accountants partner in a joint enterprise.  Perhaps a family law firm would do well to partner with a social worker or psychology practice.

As I would be uncomfortable completely abandoning the professional conduct rules that would prohibit the situation where a business professional has an economic incentive to dictate a lawyer’s conduct, much as it appears that insurance companies and other business professionals have incentives to limit medical professionals’ professional options in treating their patients, I think there is plenty of room for allowing small partnerships and other inter-professional business relationships in situations where each professional maintains professional independence while cooperating economically.

In conclusion, the Economist writers are correct to raise the cost of legal education and certain limitations on practice as economic factors that impact the cost of legal services, and these problems should not be brushed aside but addressed in a serious manner, perhaps as a discourse essential to preserving the esteem in which society holds the profession. I hope that regardless of whether my perspective presented here is adopted by others, it will at least encourage others to consider their perspectives on what areas of the legal profession contribute to its services being outside the economic scope of so many Americans.  

Thoughts About Increasing Civic Learning...From Massachusetts

Today I came across Massachusetts' Senator Richard T. Moore's February 13, 2013 article in the MetroWest Daily News concerning current failings in civic literacy.  He highlights that the 2010 National Assessment of Educational Progress in Civics and History reported that one quarter of students were adequately taught civic engagement issues, and less than 10% of eighth graders had knowledge of checks and balances, yet only one third of teachers cover issues of civics in their classes. He targets readers towards  a December 2010 report entitled "A Report of the Special Commission on Civic Engagement and Learning," the production of a commission formed in July 2008 by the state legislature, and presents other observations about the lack of civic knowledge in society.  His conclusion is that there is a "lack of effective, high quality, student-centered civic learning opportunities in our schools" explaining that " civic learning and democratic engagement are not staples of every student‟s education today, as they have been in the past and must be for our nation‟s future. In too many schools and on too many college campuses, civic learning and democratic engagement are add-ons, rather than an essential part of the core academic mission."

He asserts that prior to the 1960s, the study of civics and the role of the citizen were common in American high schools and are no longer today, replaced with a course on American government.  Although I cannot personally attest to what education was offered prior to the 1960s, I can attest that during the time of my schooling and since, much education on democracy has been focused solely on government structure and not on citizen engagement.  In my high school and those of my successors, community service has far too often been defined only by contribution of time to service and care projects such as soup kitchen, Habitat for Humanity and park clean ups.  Indeed society might break down if students were not encouraged to participate in acts of charity and kindness--but our democratic tradition can also break down if students are not encouraged to consider their role in democratic institutions.

Senator Moore, citing to the Campaign for Civic Mission of Schools, cites to six elements of civic education (or civic learning as he calls it), namely:  (1) student-centered classroom instruction in civics, government, history, economics, law and geography; (2) service learning linked to classroom learning; (3) experiential learning; (4) learning through participation in models and simulations of democratic processes; (5) guided
classroom discussion of current issues and events, and (6) meaningful participation in school governance.  His website includes citation to a December 2012 report Renewing the Social Compact: A Report of the Special Commission on Civic Engagement and Learning that proposes ways for states and town to incorporate these educational goals. It also presents an analytic way of considering the aspects of civic learning.

I am encouraged to see this discourse on state levels. I am hoping schools curriculum are altered to affect the findings discussed by Senator Moore. I also hope that teachers are given the encouragement and freedom to bring civics into their existing curriculum.  A tour through the standard middle school and high school curriculum present numerous opportunities for civic engagement education.  For instance, an existing government teacher can have its student consider a social issue, perhaps one they care about, and attend and community meetings of two or more organizations seeking to address the issue and report back on their findings.  An English teacher could have their student readers of the Tale of Two Cities, the Scarlet Letter, and the Odyssey consider how the stories influence or reinforce their perspective on life in contemporary America.   

Interesting Leglislation to Let Online Law School Grads to Take Arizona Bar Exam

In most States, like Arizona, it is unlawful for a someone to become a licensed lawyer without first receiving a Juris Doctor at a law school approved by the American Bar Association.  This creates a very serious barrier to access for individuals wishing to practice law. The barrier is that one must first get admitted to one of the 201 ABA accredited law schools.  This is sometimes a near impossibility for those with family or economic responsibilities, not to mention those with existing work obligations.   

Arizona Representative John Allen (R-Scottsdale) has proposed legislation to allow individuals who complete an online law school program to take the state bar exam and become a lawyer (assuming they satisfy all the other requirements.)  I have read the legislation. It is straightforward, and I support it.

An article in the Cronkite News illustrates how online education is the only reasonably accessible opportunity for some lawyer aspirants to enter the profession. It tells the story of one woman who had always dreamed of going to law school but couldn't due to career and family obligations. She did then locate and complete an online law school program based on California (the only state to currently allow graduates of online schools to sit for the bar exam), but since moving to California is not an option for her family, she is effectively prohibited from practicing her chosen profession.

Opponents of online legal education rightly complain that an online school cannot provide the same interactive spirit that facilitates learning law. Furthermore, law is not solely a technical trade, but is a civic art, and thus is most relevant in the context of a community where it can be discussed and evaluated in contemplative discourse.

There are two problems with this argument against on-line legal education. First, in-person law schools these days don't seem very directed at contemplative discourse anyway. For the most part, law school students are graded on their ability to mechanically manipulate the informative provided.  They are not judged on their creativity. Even though law professors often love to offer fascinating courses that encourage creative thinking, from what I observed, law students are either self driven or outright encouraged by their law school advisers to focus in on classes relevant to bar examination and career options.

 The second problem, often stemming from the first, is that from the student's perspective, law schools often function as if they were trade schools, not ivory towers where students consider the legal theory, history, and alternative approaches to legal and community issues. 

This may be because there are very few other options for individuals to learn about the legal system other than going to law school, and no mechanisms to become a lawyer than to successfully attend law school. 

I believe if there were educational alternatives and alternate means for individuals to secure the mechanical education needed for becoming a lawyer, law schools might have the leisure to engage in and encourage the contemplative aspect of the law.  I for one believe that I spent a certain portion of my law school career learning information that should be made available to all citizens, not just law students. 

There is also another factor to be considered.  There are no States in the country that permit one to sit for the bar exam without first attending a law school.  There are only 201 law schools in the country.  These 201 law schools train 143,000 students, meaning each law school houses, on average, over 700 students.  These ratios make it impossible for class sizes to be small enough to encourage deep conversation.  And in a country of a population of 314 million, a smaller number of law students is not practical.

Thus, the solution is more schools designed to meet the needs of those desiring to learn about the law.  Online schooling is an excellent opportunity to expand the educational opportunities for those looking to learn about the law and the professional skills needed therein.  If and when online law schools grow, individuals looking to study law will have more choices.  And as I have indicated in prior posts, more diverse study opportunities means more diverse legal perspectives, meaning more opportunity for the creative spirit to think through solutions to legal problems we face. 

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.