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Issue No. 53 (April 2004) -- Mark Satin, Editor
Few areas of American life are in more need of reconstruction than our legal system. Yet little ever seems to get done.
Public dissatisfaction is rampant. Incredibly, in one Zogby poll, less than 5% of New Yorkers thought the legal liability system was “working well.” But the public’s real concerns have been drowned out -- in the media and the law schools -- by the ideological grandstanding of the left and right.
Year after year, prominent liberal groups like the ACLU and People for the American Way obsess about the glories of due process, and influential conservative groups like the Heritage Foundation and the Manhattan Institute obsess about the need for efficiency and “sanity.” God help us if either side ever finally wins out!
Meanwhile, practical issues that affect us all are barely on the media’s radar screen.
For example: our legal system may be second to none -- in theory. But who can afford to use it?
And even if we can afford to use it, what kind of justice does it bring? In most non-criminal disputes, both parties are partly at fault (as we’ve all, hopefully, learned in our own lives!). But in our civil justice system, you typically end up a Big Winner or Big Loser, like in a boxing match.
And criminal defendants either walk or get punished, but rarely get help. (One reason recidivism rates are sky-high.)
I went to law school, at the tender age of 46, in large part because I felt passionately about such issues. But I was in for a rude awakening.
Especially at the so-called “elite” or “national” law schools (the top six or 14 in U.S. News & World Report’s breathlessly followed annual law school rankings), you quickly discover that issues of process and practice are considered too trivial to spend time with. If you want to be taken seriously, you’ve got to concentrate on what’s really important -- cleverly disguised political polemics and tortuously written high theory -- “big theoretical nondebates,” as Harvard’s radical middle law professor Mary Ann Glendon calls them.
In my first year at New York University School of Law (currently #5 in U.S. News), I was taken aside by my very brilliant and accomplished contracts professor and told there was something unbecoming about concerning oneself with “plumbing issues” like jury reform and middle class access to legal services. Later that year, a female student who’d attended famous private schools her whole life referred to my concerns disparagingly as “housekeeping issues.”
But I persisted in my wayward ways. In second year, I desperately wanted to take a legal counseling course (that’s what lawyers do, right -- counsel clients?); but true to form, and unlike Fordham and Cardozo law schools up the street, my wonderful law school didn’t see fit to offer any. Our electives included such social-status-marker -- whoops, I mean socially relevant -- offerings as Shakespeare and the law, feminist legal theory, and critical race theory.
I ended up getting a dean’s permission to take the “Introduction to Counseling and Therapy” course in NYU’s Graduate Psychology Department, where I was warmly welcomed as some kind of pioneer, being the first law student to take a psych course in anyone’s memory.
Unfortunately, prejudice against “housekeeping issues” is not confined to the elite law schools. It is reflected in the way the top newspapers and magazines cover the legal profession -- high on politics and courtroom drama, low on what most lawyers and clients actually go through.
Even most of the books that appear to be about legal reform -- such as Catherine Crier’s Case Against Lawyers (2002) -- turn out, on closer inspection, to consist largely of arguments in favor of shaping the laws, themselves, in a more consistently left-wing or right-wing direction.
But things aren’t always as they seem. If you look below the surface, you’ll find that the legal profession is bursting with people and projects that give pride of place to “housekeeping issues.”
To a new breed of lawyer and legal scholar -- to those at the radical middle -- issues of legal process and practice are not just important in themselves. They’re important because they promise to transcend the “big theoretical nondebate” between advocates of due process and advocates of efficiency, and focus reform efforts on a new goal: making the legal system as humanly friendly as possible.
Making it accountable, affordable, humane. Making it -- even -- psychologically beneficial, therapeutic.
With 50,000 members, HALT: An Organization of Americans for Legal Reform, is almost as large as the national trial lawyers’ association. But you’ve probably never heard of HALT. That’s because its passion is championing such relatively “trivial” matters as rules that can make lawyers more accountable to clients.
For example, HALT wants the current lawyer-run attorney discipline system (a laughingstock even among lawyers) to be replaced by one run largely or exclusively by nonlawyers.
“If a jury made up of nonlawyers is good enough to decide a murder case,” says HALT Executive Director Jim Turner, “it’s certainly capable of determining whether a lawyer has cheated a client.”
HALT wants to make disciplinary proceedings accessible to the public and the press, just like the courts are now.
And HALT would put an informative “Legal Consumers Bill of Rights” into all attorney contracts. For all the lawyer shows we watch on TV, most of us have no idea what to do when an attorney has charged excessive fees, neglected our case, lied to us, etc. HALT’s Bill of Rights would lay it out loud and clear.
Juries need to be made more accountable too; and in his book The Jury (1994), D.C. lawyer and journalist Stephen Adler synthesizes some of the best radical middle thinking on the subject.
To begin with, he’d build a bigger jury pool. Businesspeople, physicians, clergy, dentists, nurses, and others shouldn’t be allowed to use their jobs as an excuse to avoid jury duty; in fact, everyone who refuses to show up for jury duty should be fined some fraction of their income or otherwise punished (and not just threatened with the possibility of punishment, as most of us are today). That would not only broaden the jury pool immensely, it would keep people from feeling like losers just for being on a jury -- an unfortunate phenomenon today.
Adler would improve creature comforts at the courthouse, and reassign every last “hostile or condescending clerk.” How can you expect juries to act with gravity and grace if you treat jurors like cattle?
Peremptory challenges (i.e., lawyers’ right to eliminate potential jurors for any reason) -- now a crucial and extraordinarily contentious feature of jury trials -- would be done away with ASAP. It’s the 21st century, time to de-legitimize all stereotypes about how people of various ethnic groups, backgrounds, temperaments, etc., are likely to think and vote.
Accountability demands knowledge, and nowhere is that more true than in the jury box. “Jurors can’t function effectively if they don’t understand from the very start what laws have allegedly been broken, the meaning of key terminology,” says Adler. “Yet court procedures dictate that jurors won’t be briefed on [such] issues, if at all, until after all the evidence is in.” Radical middle legal reformers would have jurors briefed early and often.
And judges would be required to present their final instructions to juries in plain English (a far cry from today!) -- and before the closing arguments, so jurors could think clearly about the legal implications of those arguments.
And jurors would be allowed to ask questions of the judge even during the trial!
Eventually jurors might begin thinking of themselves not as hapless cogs in a vast impersonal machine, but as trustworthy citizens doing something essential for their community.
Justice is a mirage if you can’t afford it. That’s one reason radical middle activists support a larger -- a much larger -- role for small claims courts.
Filing, preparing, and presenting a small claim costs next to nothing in most states. It’s relatively easy; most people can handle it all by themselves. And the process is relatively quick: most disputes are heard within a month or two, and decisions are handed down either immediately or within a few days.
One of the most effective proponents of small claims courts is Ralph Warner, San Francisco attorney and author of the phenomenally successful handbook Everybody’s Guide to Small Claims Courts (9th ed., 2003). Like many radical middle activists, Mr. Warner wants the role of small claims courts to be dramatically expanded in at least three ways:
1. Raise small claims limits. Today most states impose limits of $2,000-$5,000 on the amount you can sue for in small claims court. Both Mr. Warner and HALT’s Small Claims Reform Project would raise that to $20,000.
Most people “can’t afford to hire lawyers to handle disputes much below this,” says Mr. Warner. Adds a HALT spokesperson: “Achieving that . . . increase would be the most meaningful reform to increase consumer access to the small claims courts.”
2. Adopt flexible remedies. In most states, small claims courts can only assess monetary damages. Both Mr. Warner and HALT want remedies to be far broader.
For example, they want judges to be able to issue “cease and desist” orders in disputes between neighbors and in contract disputes. Mr. Warner wants remedies to be limited only by the imagination of the judge and the parties in dispute.
3. Increase accessibility. Hold weekend and evening court sessions! Provide better self-help information -- door-to-door leafleting, brochures in plain English, websites. Think about putting a full-time “small claims advisor” in a storefront or the courthouse.
Unlike some activists, radical middle activists don’t just focus on the poorest among us. That’s why they’re also strong supporters of the bete noire of the legal profession, “multi-disciplinary practice” -- professionals from fields like law, accounting, psychology, and business coming together in new kinds of organizations to serve common clients.
Multi-disciplinary practice might save clients money. It might increase efficiency and the knowledge pool manyfold. But much of the legal profession (including, crucially, the ABA) hates and fears it.
For many lawyers, the idea of sharing fees with other professionals -- and giving up some degree of control to them -- is intolerable, the beginning of The End.
For more holistic attorneys, though, the chance to practice in tandem with other professionals is a chance to be as humanly helpful as possible.
Lawyers need to worry less about self-preservation and more about relevance, says Hanan Isaacs, one of New Jersey’s most accomplished attorneys and mediators. What lawyers do best is “identify and establish rules of conduct and enforce them. To integrate these functions with other professional crafts is both efficient and essential. . . .
“I believe the biggest impediment to fully integrated multi-dimensional practice is . . . failure of nerve. In the age of the genome project, surely we can create an appropriate regulatory structure for recombinant professional groups.”
Another way to make our legal system more affordable -- and more benign -- is to make it more predictable.
To that end, one of our first radical middle lobbying groups, Common Good: Reforming America’s Lawsuit Culture, was launched in 2002. Advisors include George McGovern and Newt Gingrich, not to mention at least four thinkers cited in past issues of this newsletter!
“Fear of litigation has undermined our freedom to make sensible decisions,” says attorney Philip Howard, founder and chair of the group (and author of The Collapse of the Common Good, 2001).
“Doctors, teachers, ministers, even little league coaches, find their daily decisions hampered by legal fear. . . . Doctors and teachers no longer feel free to act on their reasonable judgment, eroding healthcare and undermining order in the classroom. . . .
“Common Good is calling upon judges and legislatures to . . . draw the line on who can sue for what. . . . Society needs red lights and green lights. . . .
“Law should make us feel comfortable doing what’s reasonable and nervous doing what’s wrong. Today Americans are nervous doing almost anything.”
Making the legal system more accountable and affordable will help make it more humane. But radical middle thinkers and activists are also pursuing that goal more directly, in part by promoting three alternatives to the traditional legal process -- mediation, “collaborative law,” and global law.
When I was working for a business litigation firm in Rockefeller Center, I’d often walk home at night haunted by the feeling that nearly every one of our multi-million-dollar clients would have been better off in mediation. One client had been battling his “enemies” (mostly relatives) in court for 13 years; it was the very centerpiece of his existence. I felt our clients needed to be put in settings where they’d be encouraged (or even forced!) to face their opponents in a direct and psychologically mature way.
As it turns out, thousands of legal practitioners were feeling the same. By 1998 they’d managed to push through Congress the Alternative Dispute Resolution Act, which not only requires all 94 U.S. district courts to devise and implement their own ADR programs. It allows district courts to force parties to go to (non-binding) mediation before proceeding to trial.
The far right laughed; the far left howled (Ralph Nader has long been convinced that ADR is a plot on the part of The System to deny us our day in court). Many traditional judges and turf-protecting attorneys are up in arms.
But a recent appeals court ruling makes it look like the law will stay. And in districts that aren’t overweeningly prejudiced against ADR, the law is a huge success. Even in litigation-lovin’ D.C., 30-35% of the cases referred to the mediation panel are settled there.
Meanwhile, mediators across the U.S. are scrambling to keep up with the demand for their services. Judicial Arbitration and Mediation Services, now the U.S.’s largest private ADR service (and my first legal employer), has developed nine approaches to mediation ranging from the highly structured to the neo-New Age -- an approach for every type of human being! Training centers for mediators range from the Harvard-associated Center for Mediation in Law to the International Online Training Program on Intractable Conflict.
Some radical middle attorneys are trying to improve on mediation with the concept of “collaborative” law, a product of the friendly and pragmatic Midwest c. 1990. Even no-nonsense HALT has begun pushing collaborative law.
“Mediation is easy to avoid and, when tensions get high, it can always be abandoned,” says a spokesperson at the Collaborative Law Center in Cincinnati, Ohio. “What is needed is an antidote to the ‘fight or flight’ instinct. . . .
“Collaborative lawyers and their clients approach each other [with a desire to negotiate and] a written commitment not to sue or even threaten to sue. . . . If one party changes its mind and chooses to initiate court action, the collaborative lawyers all must withdraw from the case and the clients will have to start over with new, litigation lawyers.
“[This] guarantees that all participating counsel will be totally and exclusively motivated to make the process succeed!”
One of the most extraordinary attempts to render legal practice more humane is getting even less play from the media than collaborative law -- despite the fact that certain Supreme Court justices support it.
Until recently, few lawyers or judges paid attention to the laws of other nations. Even left-leaning legal practitioners were basically isolationist -- and many still are. As Harvard Law School’s Frank Michelman recently put it, we’re still trying to articulate common values within nations. Why go looking for them across nations?
But the left is on the wane, and a new breed of legal practitioner is on the rise; and few things excite them more than the sharing of legal perspectives across borders. What better way to bring us all together -- into one global community -- than by mutual give and take among all the world’s legal systems?
“Constitutional law scholars and judges almost everywhere [now] are relying increasingly on cases and other materials from many jurisdictions,” says Prof. Norman Dorsen, editor of NYU Law School’s I-CON, the first international journal of constitutional law.
And Prof. Dorsen isn’t just talking about cases from other nations’ courts. For example, Justice Anthony Kennedy’s majority opinion in the landmark 2003 gay rights case, Lawrence v. Texas, cited a gay rights opinion by the European Court of Human Rights.
In an important and basically unreported-on speech to the American Society of International Law in the spring of 2003, Justice Stephen Breyer eloquently endorsed this borrowing and synthesizing: “[W]hat could be more exciting for an academic, practitioner, or judge, than the global legal enterprise that is now upon us?”
But it is Justice Sandra Day O’Connor who -- quoted by Breyer -- caught the exact spirit of the emerging global legal enterprise when she said, “We often have a lot to learn from other jurisdictions.”
American legal practitioners have a lot to learn? From courts in places like Europe, Africa, Asia?
A new millennium is indeed at hand.
The humane perspective of the radical middle is being applied to criminal law through the quietly burgeoning, barely 10-year-old phenomenon of “problem-solving courts” -- drug courts, neighborhood courts, family treatment courts, homeless courts, youth courts, and the like.
“Instead of adversarial sparring,” says a spokesperson for the New York-based Center for Court Innovation (a pioneer in this field), “prosecutors and defendants in some problem-solving courts work together to encourage defendants to succeed in drug [or other] treatment.
“Instead of embracing the tradition of judicial isolation, judges in problem-solving courts become actively involved [both by counseling and dialoguing with defendants and by participating outside the courthouse], meeting with residents and brokering relationships with local service providers.
“Perhaps most important, citizens are welcomed into the process, participating in advisory boards, organizing community service projects, and meeting face to face with offenders.”
Probably the best-known problem-solving court is the Midtown Community Court, near Times Square in Manhattan. That’s an area “teeming with quality-of-life crime,” says Center for Court Innovation founder John Feinblatt. “The Court seeks to honor the idea of community by making justice restorative and accountable to neighborhood stakeholders.
“Offenders are sentenced to pay back the community through work projects such as caring for street trees, removing graffiti, cleaning subway stations. . . . At the same time, whenever possible, the Court uses its legal leverage [-- do what we say or or do time in jail --] to link offenders to drug treatment, health care, education, job training, and other on-site social services to help them address their problems.”
The political left is upset that in problem-solving courts, rigid procedural protections and zealous advocacy often give way to other and more therapeutic objectives. Mr. Feinblatt doesn’t deny it. He does say that we need to consider “what types of protections need to be built in . . . to guard against the possibility of arbitrary decision-making.”
His ultimate goal isn’t to preserve the adversarial criminal court system, but to bring a humane, problem-solving focus to the work of all criminal courts.
You may have noticed that Mr. Feinblatt referred to “restorative” justice. That was not vague rhetoric. To radical middle practitioners in the criminal justice system, restorative justice is the humane alternative to raw vengeance and milky forgiveness.
In their anthology Restorative Justice and Civil Society (2001), Heather Strang and John Braithwaite provide an exceptionally thoughtful definition. For them, restorative justice is both a process that brings together many of the stakeholders affected by a crime, and a value that states that healing the victim -- and ultimately even the victimizer -- is the most important consideration. (Which doesn’t mean that the victimizer shouldn’t undergo appropriate punishment!)
Prison Fellowship International (PFI) has been monitoring many attempts at restorative justice. According to one PFI spokesperson, once an offender pleads guilty and volunteers to participate, two types of encounters have proved scary -- perilous -- but often psychologically satisfying and effective for all concerned:
-- Victim-offender mediation “provides an interested victim the opportunity to meet his offender in a safe and structured setting, engaging in a discussion of the crime with the assistance of a trained mediator.” Goals include providing victim and offender “the opportunity to develop a plan that addresses the harm.” The plan is then presented to the sentencing judge.
-- Family group conferencing “brings together the victim, offender, and family, friends, and key supporters of both in deciding how to address the aftermath of the crime.” If a mutually agreeable plan can be hammered out, it goes to the judge.
Like many advocates of restorative justice, PFI’s spokesperson sharply distinguishes it from traditional criminal justice: “It views criminal acts more comprehensively -- . . . it recognizes that offenders harm . . . communities and even themselves. [And] rather than measuring how much punishment is inflicted, it measures how many harms are repaired or prevented.”
A new jurisprudence?
Liberals and conservatives alike are desperately trying to hang onto a jurisprudence that makes a fetish out of the formal, adversary process AND has the practical effect of disrespecting, intimidating, or impoverishing the vast majority of citizens passing through that process, whether as jurors, plaintiffs, or defendants.
New Jersey attorney Hanan Isaacs, cited above, is right: the American legal community is suffering from a massive failure of nerve. And behind that failure is a lack of legal and political imagination.
Meanwhile, right under everybody’s noses, all the underappreciated developments described in this article are contributing to a whole new theory of jurisprudence, which some trial court judges, sociologists, and legal scholars have begun calling “therapeutic jurisprudence.”
“Therapeutic jurisprudence is the study of the role of the law as a therapeutic agent,” says University of Arizona law professor David Wexler, who’s probably done more than any other individual to develop the concept (as co-editor of Practicing Therapeutic Jurisprudence, 2000, and similar books, and co-founder of the International Network on Therapeutic Jurisprudence).
“Therapeutic jurisprudence . . . focuses on the law’s impact on emotional life and on psychological well-being,” Wexler says. “These are areas that have not received very much attention in the law until now. . . .
“Basically, therapeutic jurisprudence is a perspective that regards law as a social force that produces behaviors and consequences. Sometimes these [are] therapeutic; other times [not]. Therapeutic jurisprudence wants us to be aware of this and wants us to see whether the law can be made or applied in a more therapeutic way so long as other values, such as justice and due process, can be fully respected.”
For those of us at the radical middle, the “majesty of the law” is not its impersonality or finality or intellectual grandeur. It is its awesome capacity to help us run a humane U.S. (and global) household.
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