Can I Get a Lawyer -- or Some Legal Information, Please? (Some Comments on Gideon v. Wainwright and the Civil Gideon Movement)

 March 18, 2013 was the 50th anniversary of the decision of Gideon v. Wainwright, the Supreme Court decision that ruled that under the Sixth Amendment to the Constitution, individuals who are indigent and charge with criminal offenses have a Constitutional right to appointed counsel.   Various jurisdictions have extended this right to certain additional offenses. and there have been cases extending to certain family law proceedings.  There is now afoot a "Civil Gideon" movement, designed to expand the right of access to counsel to indigent individuals involved in adversarial civil proceedings involving "basic human needs."

I had the opportunity to learn a little about the Civil Gideon movement when I attended on April 19, 2013 a DC Judicial and Bar Conference session entitled "Implementing a Civil Right to Counsel: What it Would Look Like?" As I explain, this discussion and implications are critical to evaluating the protection of individual rights and the success of our judicial system.

A. Background

In Gideon v. Wainwright, the Court was asked to determine whether the defendant to criminal charges in a Florida state court has a right (under the Sixth amendment) to appointed counsel if he or she can not afford one.   The Sixth Amendment states, in part, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial...  ....and to have the assistance of counsel for his defense."  In an earlier case, as explained in the Gideon decision, Betts v Brady, 16 US 455 (1942), the Supreme Court determined that the Sixth Amendment Constitutional right to counsel applied only to cases in federal courts, as a right to counsel was not a fundamental right essential to the Constitutional right to a fair trial.  In Gideon, the Court reconsidered that and determined that the right to counsel is indeed a right in cases at both the state and federal level.

The Gideon Court thus reinforced the notion that that which is fundamental and essential to a fair trial must be provided to all citizens regardless of whether the case is in federal court or state court--and critical to our present discussion, it reinforced the notion that "right to the aid of counsel is of this fundamental character"--namely fundamental to a fair trial.  Therefore, "one who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him."  A series of subsequent cases at the Supreme Court and lower level have specified further which types of cases qualify in the Sixth Amendment right to counsel, and which don't. For instance, in 1981, in Lassiter v. Department of Social Services, 452 US 18, the Supreme Court determined that the Fourteenth Amendment did not require a state to appoint counsel to represent a mother in a termination of parental rights proceeding.  In 2011, the Supreme Court determined in Turner v. Rogers that a civil contempt proceeding is one category of case in which no right to appointed counsel necessarily attaches.

B. The Civil Gideon Movement

As is clear from the progeny of Gideon and Lassiter, the Constitution does not require representation in all litigation that affects basic human needs. The Civil Gideon Movement is designed to legally and administratively provide remedies not required under the Constitution.  For instance, in California, under the Sargent Shriver Civil Counsel Act, a variety of pilot projects have begun to provide low-income litigants with  legal issues affecting basic human need, such as evictions or termination of parental rights, with access to appointed counsel.  Specified in the statute are the following examples of human needs: housing-related matters, domestic violence, civil harassment restraining orders, probate conservatorships.  Some pilots cover all of these issues and some do not.  As was indicated in the March program, much of the success or failure of these pilot projects depend on the ability to provide such counsel in a manner that is politically affordable.

In the March program, we learned that the housing court pilot has caused courts to grant landlords the right to evict tenants in 2/3 fewer occasions, thus suggesting that the presence of counsel can in some cases assist with the amicable resolution of landlord-tenant disputes and in other cases prevent abusive evictions.

Although I have not studied the situation in California, based on my observations in Baltimore, I can provide an illustration that I highly suspect to be fairly routine. A tenant has a complaint about the landlord's failure to properly address a critical issue such as heat, roaches, or faulty plumbing.  The tenant,not knowing the protocols regarding rent escrow, unilaterally withholds rent to send a message to the landlord. The landlord then seeks eviction on the basis of failure to pay rent.  Had the tenant had a lawyer, he or she would have learned that the proper protocol, at least in Baltimore, is to file a complaint at housing court and thus be permitted to put rent in rent escrow until the problem is remedied.  Simply failing to pay rent entirely is referred to as an illegal self-help measure that is not legally acceptable.  Not having studied California law, I am unaware if this precise situation is what is to account for the decrease in evictions, but I highly suspect that this analogy is probably a useful one.

The conference session also discussed the obvious policy issues that are being considered by the California and other legislatures. For instance, is 200% of poverty the correct income level under which the right to counsel applies? What about someone who is not poor but clearly can't afford private counsel?  Also, what about the 1/3 of California landlord tenant cases where the landlord is not represented? Is it fair to have a tenant represented when the landlord is not? Catherine Carr of the Philadelphia Bar Association pointed out in the session that a civil right to counsel could simply overburden Legal Aid and the Public Defenders offices, which are already overburdened.  These problems are elucidated will in Karen Houppert's 2013 book, Chasing Gideon: The Elusive Quest for Poor People's Justice, which illustrates the numerous ways in which our criminal justice system is failing to provide individuals accused of criminal activity with speedy and fair trials or adequate representation, notwithstanding the good intentions of a well intentioned public defender system that is simply overburdened and underfunded. (Of course, that is an over-simplification.). 

C.Clarifying that the Civil Gideon Movement is not a Movement to Amend Our Constitution  

It has been three months since the conference and in numerous discussions concerning the Civil Gideon  movement and my interest in it, I have been confronted with skeptical questions, mostly along these lines, "with this conservative court, how do you anticipate convincing the Court that there is a Constitutional right to counsel in civil cases?"  This question belies a misunderstanding of the movement, and of our legal system.

The Sixth Amendment to the Constitution specifies in its opening line that it relates to criminal  prosecutions. Thus, the Sixth Amendment to the Constitution only provides accused individuals with the right to the assistance of counsel in criminal prosecutions. Thus, any case not deemed a criminal prosecution would not be one in which a litigant would have rights under this Amendment.  I am not aware of anyone arguing that all state action affecting a person's rights falls under the context criminal.

I am also not aware of any efforts to amend the Constitution on this issue.

I clarify this because some of the level of surprise I get when I reference a civil right to counsel comes from the misunderstanding that civil rights stem only from our Constitution.  Although it is theoretically accurate to say this, it is such an oversimplification that it is actually untrue. As I see it, in our Republic, rights stem from (1) the Constitution, (2)laws instituted by Congress and State legislatures, and (3) administrative practices by government agencies, such as courts.

For instance, rights to be free from certain forms of discrimination and harassment in the workplace do not stem from the Constitution, but from laws enacted by federal and state legislatures.  Additionally, various state, county, and municipal laws and procedures provide citizens formal mechanisms, such as a public comment period, within which to publicize their position on various courses of government conduct--issues ranging from statewide legislation to variances (exceptions to a zoning ordinance often granted to an isolated dwelling or establishment.)

Thus, these rights only stem from the Constitution in so far as the Constitution does not prohibit federal, state, and municipal legislatures from enacting laws on these matters.

This clarification is crucial to understand that the Civil Gideon movement is one that must be seen as radical. Although there may be some who seek to drastically alter the social contract between the legal community and the population at large, most in the movement simply want to expand the right to counsel to situations where counsel can make a difference in one's essential rights.

 D. The Right to Counsel v. the Right to Legal Information

Elsewhere in this blog I have spoken about my view that the availability of legal education and information for public consumption can drastically reduce the burden on the need for counsel.  Indeed, advocates of unbundled legal services point out that it is sometimes the case that a litigant has the ability to act in a pro se mater but may still need the periodic consultation to get his or her bearings or obtain certain legal information.   Recent articles on unbundled legal services have illustrated ways in which litigants in certain cases can save thousands of dollars in legal fees by getting legal guidance on discrete aspects of their case, such as the filing of a complaint or the proper guidance as to what is legally actionable and what is not.  I am certainly hopeful that the Civil Gideon Movement will advocate for educational programming or discrete assistance programs that provide assistance to folks when it is fiscally impossible to provide full legal assistance in all matters so desired.  Additionally, unbundled legal services will allow the legal community to provide affordable assistance to those individuals not impoverished enough for free legal help but not wealthy enough for full representation.

Compliments to the Quality TV Debate Show; Hope the Rest Will Learn

Sunday night on C-Span, for the first time in a long time, I watched a debate show that was worthwhile to watch, namely, The Munk Debates.It involved a debate on he subject of progressive taxation with debaters George Papandreou and Paul Krugman advocating for the motion and Newt Gingrich and Arthur B Laffer arguing against the motion.  The presentations were fairly reasoned, thoughtful, and challenging.  Also, familiar with seeing Krugman and Gingrich in various televised interviews, I was particularly interested to hear whaat Papandreou and Laffer might bring to the table, both of whom I had some general familiarity but no direct exposure to their commentaries.  More importantly, the structured interview format involving these latter gentleman required, in my opinion, Krugman and Gingrich to resort to much more intelligent and thoughtful arguments than might be found on the poor excuse for debate programs often found on cable news.

The Munk Debates reminded me of The Doha Debates, which I thoroughly enjoyed, which in turn reminded me of  Firing Line.  I am not holding my breath, but I am still praying that The Munk Debates might lead to other high quality debate shows.  I have sadly observed a lack of inspired action following the public's interest in Firing Line and Doha.

I don't know if Firing Line was the first debate show, but I am pretty sure it is the most prominent one.  It had various formats, including William Buckley interviewing and debating an individual whose views with which he vehemently disagreed, and debate panels in which teams stood for or against propositions, such as proposed legislative ideas. An example might be, "Resolved: students wishing to send their students to non-public schools should be given vouchers" or "Resolved: Intelligent Design should be taught in biology class alongside evolution."

Sadly, despite hours each day over numerous networks devoted to debate on issues of public concern, most debate shows I have seen resemble the infamous Crossfire in which partisans simply politely yelled at each other. Ironically, despite the fact that the show was taken off the air after this very criticism was highlighted on the show by Jon Stewart, most debate shows on tv seem to resemble the Crossfire, and are even worse.  Too often serious thinkers and politicians are asked to debate their subject area over the course of six minute segments, leaving aside any options for thoughtfulness. Countless segments end with hosts asserting, "these issues deserve more time and we hope you guys will come back to continue the conversation."  After years of watching these debate shows, I have yet to observe the continuation of any of those conversations.

This is an extremely serious problem.  These shows give the impression that reasonable debate and analysis is represented by the assertion of a grandiose theory, a few factual assertions that are in keeping with the theory, and an insulting characterization of the opposing perspective.  This shouldn't be par for the course in candidate debates, but it is even more insulting when non-politician "experts" are asked to engage in such nonsense.

In the interest of advancing thought in our republic, it is critical we recognize the distinction between the two kinds of programs.  After all, William Buckley did not shy away from expressing his outrage at the views of his opponents, and often would say things to give the impression that he desired to belittle his adversary. However, in each program I watched, each comment of this sort was followed by an opportunity for his opponent to express his views, and with probing questions by Buckley that indicated a genuine attempt to understand his opponent's position and/or argument.  Also, whether genuine or not, Buckley suggested that  offered his guests the opportunity to alter his own perspective.

This approach, over that of the Crossfire approach, teaches critical moral lessons needed in a democracy. First, it teaches that those holding opposing political views deserve one's attention, as their viewpoint is not as simplistic and thoughtless as might be initially thought but often come from a moral center deserving of some recognition.  Second, it teaches that one can learn from one's political opponents. Third, it teaches that legitimate political decisions are not simplistic applications of global concepts, but require thinking through the complex and sometimes competing values.  Finally, for the public, these shows illustrate that public policy involves complex analysis and is not made up of compiling right opinion, or transmission of revelation.

PS: Although this essay is about the debate show, I can't help but mention the very useful related category, the panel discussion.  One of my favorite series is Ethics in America, which was a ten part series aired on PBS between 1988 and 1989 featuring panel discussions of various professionals discussing the ethical implications of various hypothetical. Indeed the website on which one can purchase the the videos asserts that the discourse qualify as Socratic.  Panelists have included legal experts such as Floyd Abrams and Joseph Califano, business experts such as Warren Buffet and  T Boone Pickens, journalist experts such as Dan Rather and Peter Jennings, and members of the legal community such as Rudy Giuliani and Justice Antonin Scalia.  Shows like these reveal to the public the complexity of thought required for public policy and even decision-making in the worlds of business, journalism, and law.  Most importantly, as with the extensive debates described above, the audience effectively participates (through observation) the analytical process discussed, and is thus made to appreciate how non-foreign it is.

What Every Law Student Really Needs to Know is what Everyone Needs to Read

In What Every Law Student Really Needs to Know: An Introduction to the Study of Law (Aspen Publishers, 2009), Tracey E. George and Suzanna Sherry have written an excellent introduction to the American legal system. Although the book is designed to be read by individuals seeking to succeed in law school, I believe the text would be valuable for anyone looking to obtain a relatively quick introduction to our legal system.

The six chapters of this text total only 200 pages, but yet I would encourage every reader to read this book.  Reading it over the course of a six week period rather than in a speedy fashion would allow the principles in each chapter to sink in--mostly because each chapter covers a distinct category of ideas worthy of mastery.

I am particularly attracted to this book because I think it can be used by various types of participants in the life cycle of our legal system, and through making this point, I will come to reveal the content of this text.

Chapter 3 the chapter most valuable to all. It is properly titled "the Structure of Our Legal System," explaining the nature of our adversarial system and the various layers of our court system. There are numerous critical facts presented in this chapter that remain relatively unknown and under-appreciated by law students. For one, many law students spend numerous hours studying the intricacies of federal civil procedure necessary to maintain the fairness of our adversarial court system, without thinking at all about any alternative systems, such as inquisitorial system, in place in many countries of the world.  The chapter also illustrates the distinction between common law, often referred to a judge-made law, and civil law, which concentrates on statutory interpretation more than precedent.

Understanding these distinctions is critical to all participants in our legal system, and our legal system is often injured when participants don't fully appreciate them.  The first set of participants who should read this chapter is the class of folks for whom this text is written, namely soon-to-be law students., whose understanding of the context within which substantive legal decision are made will shape their ability to manipulate the information provided them.  Analogously, the owner of the firm for which I work has long held that law students should be made to read dissenting decisions and the legal briefs of the arguing parties. This would allow students to better appreciate the decisions judges must make, and the alternative legal approaches available to them. In short, it is hard to understand why methodologies and systems are as they are without examining alternatives.

Chapter 2,Government and Law discusses the structure of our government in a way that replicates what some of us learn in middle and high school, namely presenting the three branches of government, along with the role of administrative agencies and restatements of law,thus placing the judicial process in its greater context. Although the facts presented in chapter 2 replicate what might be taught at a younger age, the author's motivation to educate law students gives the reader the context needed to consider the structure of our government, as its relevant to case law.

Chapter 5, Legal Toolbox: Concepts serves as both a critical vocabulary lesson and a short introduction to various doctrines that affect how courts interpret facts and law, such as precedent, burdens of proof, and standards of review.  I would advocate all individuals contemplating any more-than-isolated interaction with a judicial decision to review this chapter.  Much of the chapter is devoted to explaining what it means for litigants and judges to consider what rules apply to a specific case and by what standard those rules will be judged. Appreciating the analytic process allows readers to agree and disagree with judicial opinions in a more nuanced way.  Chapter 4 demonstrates how to review cases, and may be much more illuminating after reviewing chapter 5. Chapters 1 and 6 demonstrates how these concepts are applied during the law school experience, but anyone regularly interacting with lawyers might find both extremely illuminating.

In reviewing what I just wrote, I must now wonder what percentage of my readers are bored away by the content of this article. Indeed, the process of studying law, reviewing cases, and choosing which doctrines are relevant to a set of facts can seem particularly frustrating and unexciting, and perhaps completely removed from the original attraction to the legal process: to seek a moral and just resolution to problems.  However, it would be impossible to establish a rule of law that could  be applied fairly to millions without such a developed structure. Indeed, I invite any reader to consider how they would devise such a system.  I venture to guess that any system devised will establish rules and standards for where the parties present their disputes, how they present their disputes, what standards will be used in evaluating the positions of the parties, and to what extent other judicial decisions would or would not impact the approach taken by the judge.

Most of us are cognizant of certain sets of participants in our legal process, namely litigants, attorneys, and judges, but the general public participates as well. The general public serves as jurors and potential litigants who must decide whether to employ the courts in their efforts to resolve disputes in which they find themselves. Trust in and knowledge of the courts greatly affect the priority individuals place in using the courts to resolve their disputes, over less noble and sometimes violent means.

Even when not litigants, lawyers, judges, or jurors, citizens play numerous roles essential to the system,which makes knowledge of the system critical for citizenship.  Citizens influence the court system when they vote. In many jurisdictions, they vote for judges directly and in other jurisdictions, like in the federal system, they vote for executives and legislators that select the judges.  Voters have similar influence over those who serve as Attorney Generals at the state and federal level, and thus effectively have a say over what approach the government takes to prosecuting criminal complaints.

Beyond this, voters impact what laws are passed either through direct referendum or through their selection of legislators and chief executives. Indeed, citizens greatly impact the judicial system when they lobby for certain policies, vote for particular candidates, and even when they engage in discourse about the legal process to their fellow citizens.

Elsewhere on this blog have I discussed the critical role a robust and trusted judiciary plays in a civil and trusted society.  Indeed, we can only trust what we understand.

Furthermore, in a representative democracy, as earlier discussed, the citizens have a critical role in shaping policy and protocol. Therefore, understanding the judicial system is necessary for citizens to reasonable shape the judicial process. I have had many occasions to witness public opinion shaped by incorrect assertions or misunderstanding about the legal system, thus causing popular support for or against an unnecessary cause.  A recent example might be the flurry of legislative support a few years ago for laws prohibiting the judiciary from relying on sharia law or other foreign law in deciding cases notwithstanding the lack of real world cases of American Judges making decisions contrary to the American legal system. I am suspect that there are many cases where the American public was up in arms over erringly alleged infractions by our judiciary.  Such mistakes can only be addressed by substantive public education over our legal system and how it works.

DC readers: Come to Our "Know Your Rights" Seminar at the Southwest Library

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.