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The prevailing view of illegal immigration repeated voiced in the editorial pages of local newspapers would be regarded as racist hatred by many in this country. A slew of social problems is blamed on those who illegally cross this country’s southern border.
We adore legal immigrants but despise illegal immigrants. To think our sentiments about the moral value of another human being is dictated by the administrative process and rules of the I.N.S., widely regarded as inept and unaccountable, is misguided and capricious. To many, it seems arbitrary and hateful that Americans seem to welcome European immigrants but not Hispanic immigrants.
While race is a factor, I don’t think it’s the primary issue and I am writing this post to share an idea directed at alleviating solving the real and supposed racism caused by a growing Hispanic population in this county, a substantial proportion of which is undocumented.
The problem is not that illegal immigrants aren’t white or that they often don’t speak English. The problem is that illegal immigrants don’t pay income taxes. U.S. businesses can’t legally hire undocumented workers so when they are hired they are paid cash and their earnings are not reported. Some illegal immigrants use forged social security numbers and have taxes withheld, but aren’t bearing the same financial burden as citizens. The Average Joe is reasonably upset at having to follow costly rules that others don’t seem to follow. If playing by the rules cost you a job, ruined your business and prevented you from providing for your family, you would want rule-breakers punished.
Rather than build an impenetrable southern border and hunt down illegal immigrants, I think we should consider fair tax proposals which would tax sales, rather than income, as a means of generating government revenue. All workers would therefore be paid without without withholding taxes and pay taxes when buying something. If white Americans were confident that spanish-speaking workers paid taxes on an equal basis, I think the apparent racial hostility would end. Fair tax reform would also help tax unreported income earned by citizens as tips or in illegal activities. Everyone shops. The enormous amount of intellectual energy devoted to planning business transactions to avoid tax consequences could be redirected to more socially-productive productive activities. The overall tax burden would not be increased or decreased, simply collected in a manner that would eliminate a painful distinctions between legal and illegal immigrants.
I recently had the chance to read Philip Howard’s 1996 book The Death of Common Sense: How the Law is Suffocating America. It is a short book, only 213 pages. The writing style is very engaging: the lawyer-author uses a minimum of legalese and masterfully blends news stories, academic research and logical analysis in support of his thesis.
This book makes a compelling argument that government regulates society in an arbitrary and oppressive manner. The author argues that legal principles such as due process and individual rights have been too broadly extended into government activities such as procuring goods and services from contractors and providing public education to children. In these cases, the author argues, modern administrative laws intended to be fair and prevent fraud, actually fail to serve those goals and harm society.
This is not a book about the “litigation explosion” in America. Despite the subtitle, it is not about lawsuits so such as the regulatory process and how the government acts (or fails to act).
I know this book has been generally well received and widely read. I believe its relates significant, important truths about modern government in a compelling manner. I do, however, have two criticisms. First, the book does a poor job citing references. While it contains a bibliography, it does not include footnotes that would allow a reader to verify the author’s claims or do further reading an a particular incident or example. The lack of proper citation greatly undermines the practical utility of the book in support of the cause it suggests. Second, Howard offers few practical solutions to the problem he outlines. He advocates common sense, individual responsibility, and common law but his concluding chapter is vague.
The Georgia Supreme Court recently held that a graduate of an on-line law school can’t take the bar exam. See Georgia Supreme Court Blog report. Those applying to take the bar and become attorneys in Georgia must graduate from ABA accredited law schools, or obtain a rare exemption from educational requirements. Would this applicant’s online legal education prepared her for the bar exam and legal practice? We may never know. It raises a significant question: to what extent can (or should) on-line legal education serve as a substitute (or complement) to traditional law school education?
My inclination is to associate “online law degree” with spam mail soliciting me to obtain a online degree from home, possibly in as little as five minutes. I imagine a Canadian web marketer setting up online schools from a kit and shipping diplomas from his apartment. I graduated from a top-five law school and don’t want my J.D. cheapened.
I have no idea about the quality of online courses offered by “Northwestern California University School of Law,” the online school at issue in the recent Georgia Supreme Court decision. I emailed the school for a comment, but received no reply. I have, however, had the opportunity to explore some of the course course made available from other schools and am impressed by the quantity and quality of on-line education materials available.
Already, one can find the lecture content of an entire Ivy-League undergraduate education streaming online. Schools like Stanford, MIT, and Yale make entire undergraduate courses freely available online through YouTube EDU. Obviously, watching Stanford lectures online is not the same as attending Stanford: there is far less accountability and no credit is available, but the course content is nonetheless freely accessible for public education.
Law schools have not made as much course freely available as colleges and universities, but some complete courses are available. For example, one could watch streaming video of every one of USC Law School Professor Tom Lyon’s course on evidence. See Evidence course playlist. The Univ of California at Berkeley Law School also has made a number of complete environmental law courses freely accessible.
In Georgia, attorneys may satisfy some of their continuing education requirements by watching approved education videos. Fellow attorneys who took a Barbri course to prepare for the Georgia Bar Exam will quickly appreciate how helpful good instructional videos can be for learning the law. Interactive, online technologies are used everyday in corporations for training and education with positive results.
It is likely that the entire content of a law school education will be freely accessible online within the next few years. The core of law school education consists of a small set of well-defined classes. The core is largely based on federal law, common law and model codes and therefore fairly uniform across the country. If top-quality freely-accessible lectures were available online and paired with interactive features to monitor student progress, test understanding of the law and grade student work, it could potentially offer superior legal education at little to no cost. The obstacle to education would then become the ability and initiative of the student (and ABA accreditation), rather than the tuition and schedule of law school.
Anyone who owns a home, is in the market to buy or sell a home, works in real estate or construction, or reads the newspaper knows that Georgia’s real estate market is in the grips of a foreclosure crisis. Foreclosures continued to occur at a record rate.
It seems to me that the Georgia Legislature has taken absolutely no action on the foreclosure crisis. Is Obama supposed to fix everything for us? State revenues aren’t tied to property taxes so I don’t think the legislature really cares, so long as it doesn’t affect its spending.
There has been likewise no response from the dispute resolution community. Other states have acted to required or encourage banks and homeowners to mediate before the bank forecloses on a home. See summary article. I am not aware of any organized effort in Georgia to resolve foreclosures. It’s a sad commentary on our judges, legal and mediation communities.
The banks are at fault for making risky loans, but they are also doing a terrible job mitigating their losses with the homes they put on the market. Check out a bank-owned home for sale. Don’t be surprised if there is garbage in the middle of the living room. It is as if they don’t take even 20 minutes to stage their homes for sale. They won’t call your agent back, even if you want to make an offer. Sure, they don’t want to be in the real estate market, but they are and should use minimal degree of care selling homes to mitigate losses.
Great time to find a bargain, but it’s a shame we’re not doing more to keep people in their homes and neighborhoods together.
A few observations on some of the big picture changes I perceive in the practice of law as of 2010:
1. More Suburban Law Firms and Home Offices.
It’s easier than ever to work productively from home or remote offices. Working and/or living in large cities imposes serious quality of life problems on attorneys, particularly those with families. Big firms enjoy prestige, in part, from impressive downtown offices, but their corporate clients are finding new ways to organize and streamline their labor forces.
2. Self-Educated Clients.
Forms, research papers, training videos, sample court documents abound on the internet. An intelligent, motivated client can quickly learn about many of the legal issues involved in his or her case. Some will learn just enough to be dangerous, like a homeowner who knows enough to cause serious damage to the home plumbing. Other clients will learn enough to handle some aspects of the case, while seeking limited representation, which leads into the next megatrend.
3. Gigs, Not Clients.
A “gig” is a project, not a ongoing job. Limited representation can be expected to grow in popularity. Firms can be expected to rely more on independent contractors, and perhaps out-sourcing, than regular employees.
4. Electronic Case Management.
Continued technological development is a given, but what will it mean? Already, many courts are using electronic filing. Many firms are making increasing use of off-line technologies as litigation support, particularly programs to produce, manage and search documents. We should expect to see computer technologies play a greater role in managing court dockets with computer programs generating notices, calendars and interacting with parties in pre-defined functions to help courts clear dockets. Expect “the code” to take on new meaning.
5. Attorney Dissatisfaction.
It may remain the great white elephant, but the alarming level of attorney dissatisfaction is too much a driver and result of the other megatrends noted here to avoid serious attention from law schools and the legal profession. When you’re young, smart and really think about it, the increasing precarious rewards of practicing law do not justify such frustration and constant antagonism. The constant motivational speeches one hears from judges or senior attorneys about the nobility of the profession simply do not match how most attorneys really feel about their work. It’s a big problem.
6. A Generation Raised by the Courts.
Although courts do settle disputes among individuals and organizations, nearly all civil disputes are settled without trial. Most trials are for the prosecution of criminals. The bulk of appellate court work also is criminal law and procedure. With courts intervening earlier and more extensively in individuals lives via juvenile, drug and family courts, it appears that courts are not simply deciding right and wrong, but rather are filling a care-taking role for a substantial period of some individuals’ lives. Growing academic literature is devoted to the integration of traditional social, welfare services and the court system. It appears to be a sad, but necessary trend in the United States.
The 2010 Georgia Legislative Session recently began and those involved in mediation are wondering how the Georgia Office of Dispute Resolution will fare amid state budget cuts.
Georgia legislators are constitutionally required to pass a balanced budget for Fiscal Year 2010. With state tax revenues down approximately 8% from last year, balancing the budget will require legislators to pare over $1 billion dollars from the state budget.
It should be obvious that making budget cuts while relatively high unemployment and a weak economy are increasing demands for state services will require tough choices. Significant funding cuts should be expected in all areas of the state budget, including funding for courts and court-related services. While attorneys, mediators and the State Bar Association, may oppose cutting the budget for courts and the Office of Dispute Resolution, the implication is endorsing disproportionate cuts in education, health care or transportation.
It is helpful to see where state revenue comes from and where it goes. Here is a snapshot of our current state revenue forecast and the allocation of spending proposed by the Governor.
The Governor’s Office recently released its proposed budget for FY 2010. (See proposal, over 400 pages long). The Governor has proposed cutting education funding only 3%, which would require greater cuts to non-education programs. Some line-items can be expected to receive better or worse treatment than the Governor is proposing as Georgia legislatures work to fine tune the Governor’s proposal into an appropriations bills.
The Governor has proposed cutting $25,909 in general funds to the Georgia Office of Dispute Resolution from $196,638 to $170,729, a 13% reduction in funding. The Governor’s proposal reports that the GODR receives $172,890 in other funds (i.e. registration fees).
Significantly, although the GODR is the operating office of the Georgia Supreme Court’s Commission on Dispute Resolution, the Georgia Supreme Court and the GODR are funded separately in the state budget. The GODR is not under the Court’s financial umbrella, making it more vulnerable to budget cuts. Because the GODR charges neutrals registration fees, legislators apparently believe that the office can or should be self-supporting.
The mediation community can expect the GODR budget to be cut more by at least 13% for FY2010. The real question is whether legislators believe the GODR can carry out its laudable mission on severely limited funding or should be cut entirely to devote more funds to traditional, larger state programs. The mediation community is, at best, weakly organized. To my knowledge, there is no lobbyist for ADR. The GODR’s efforts toward self-sufficiency may result in a loss of funding while less efficient state programs are perceived to need more funding. The mediation community can expect further loss of GODR services and higher registration fees in 2010 and 2011.
The Georgia Supreme Court’s Equal Justice Commission’s Committee on Civil Justice released a report early this year on the Civil Legal Needs of moderate to poor Georgians. The Committee’s extensive study purported to show, that in any given year, nearly 60% of low to moderate income citizens have at least one civil legal need, but only only a fraction are able to secure legal representation. See Summary. While the Committee’s Report did not endorse specific solutions, it states that the legal services programs, pro bono legal organizations, and volunteer lawyers who might help this under-served community have been hampered by inadequate resources (i.e. public funding).
The Civil Legal Needs Study is plagued by two glaring methodological problems. What constitutes a legal need in the study is highly suspect. Additionally, the Study’s essential conclusions were reached before the Committee gathered facts about the problem the Committee claimed to study.
Wants v. Needs
To determine the extent of “legal needs,” phone survey respondent “were asked whether anyone in the household experienced any of a series of 113 common circumstances that would result in a legal problem.” (Final Report, p. 11). The common legal problems reported were consumer problems, such as abusive collection practices, oppressive contract terms, unfair denial of a loan, dispute over an amount owed), and housing problems, primarily with utilities, vermin and home repair.
Surely one who becomes delinquent on phone bills, incurs late fees, receives calls from the phone company and eventually has the service disconnected has a legal problem and may want a lawyer’s help getting the debt erased and service restored, but by what definition would this be a case of needed legal services? The Study made no effort to distinguish between wants and needs. According to the Study, legal assistance was needed for all reported problems, no matter how subjective, specious, or self-induced the problem. In fact, three-quarters of respondents did not consider their problems to be legal problems (Final Report, p. 27).
The legal needs related vermin and home repair are particularly puzzling because problems obtaining rental repairs are a separate, additional category of legal need, as are consumer problems over defective work. Apparently, the legal needs reported are needing repairs to, or having rodents in, one’s own home. Again, the Study fails to distinguish between an individual’s wanting someone else to be help legally responsible for a problem and needing legal assistance to address a legal problem.
Leaping to Conclusions
To discern the truth, one should objectively consider relevant facts before making conclusions. Our legal system is based on judges and juries impartially weighing facts before passing judgment. The Committee’s Civil Legal Needs Study, in contrast, designed surveys to identify areas of inadequate funding and reasons why private attorneys fail to more pro bono services at the same time the Committee embarked to identify the extent and nature of the problem.
Imposing a pre-determined solution on a problem inhibits the identification and development of innovative solutions. It should be obvious that traditional means of meeting the demand for legal services in poor and moderate income communities, while laudable, fail to meet demand. If government-funded legal programs and individual charity are failing strategies, why emphasize doing more of the same?
Utterly lacking in the Civil Legal Needs Study is the suggestion that individuals should take personal responsibility for their legal problems and that strategies should be explored to help individuals take personal responsibility for the their legal problems. One remarkable finding in the Study was that over two-thirds of surveyed households reported access to the Internet, but over 94% of households admitted that they did not use the Internet to access online resources and legal forms. How to improve individuals’ use of freely available resources to solve legal problems is a sadly neglected issue in the Study.
The Study also reported that 95% of court personnel believe that “lack of understanding the court system” is a barrier to poor and moderate income Georgians solving legal problems. Rather than supplying more subsidized and volunteer lawyers to help Georgians navigate the complexities of the legal process, courts should explore ways to make the court system and legal process understandable to ordinary citizens.
It is important to note that “the court system” for average matters is not embodied in the Georgia Code or Rules of Court, but rather largely arbitrary and idiosyncratic local administrative procedures. Mandatory dispute resolution procedures are one example. While a particular court may have developed mediation program guidelines, there is no uniform practice among courts as to what cases are referred to mediation, when cases are referred to mediation, who mediates, where mediation takes places, who is responsible for scheduling, how mediation plans and outcomes are reported or who is responsible for the expenses of mediation. When a procedure exists, it will vary depending on the personality of the individual administering the procedure. Similar comments could be made with respect to scheduling matters with a judge’s chambers or how a judge handles a given calendar. The reported finding that 95% of court personnel believe poor to moderate income citizens (the majority of the state) cannot understand the court system should have alerted the Committee to consider ways to make the court “system” more understandable to average citizens.
Composition of Committee
The Committee is composed of pre-eminent judges, large firm partners and legal aid attorneys. See members. One cannot question the legal skills of the Committee, but it is possible that no member of Committee that issued this Study makes a living doing legal work for poor and moderate income citizens. Full time judges are prohibited from representing private parties, partners in large law firms primarily represent large organizations and wealthy individuals (laudable pro bono work notwithstanding), and legal aid attorneys are paid with public funds and charitable donations. Private practice attorneys who represent poor and moderate income citizens in legal matters may provide the Committee a needed dose of common sense.
As part of our empirical research into mediation, we studied data collected by the Georgia Commission on Dispute Resolution which is a Georgia Supreme Agency created to oversee court-connected ADR programs.
To produce this graphic, we plotted the settlement rates of cases mediated in Georgia’s large Superior Court mediation programs. This includes programs where more than 100 cases per year were mediated from 1997 to 2005. This graphic shows the percentage of cases reaching any type of settlement (full or partial) in mediations administered by the superior court programs represented here.
This table is limited to superior court ADR programs that administer more than 100 cases per year. Some data was not available (DeKalb 1997, Gwinnett 1998, Coweta 2004 excluded due to likely recording error).
Sadly, no data for 2006 and 2007 is available from GODR. The office reports its work has been limited by staff and budget cuts.
The settlement rates of Superior Court Mediation Programs are fairly consistent over time. The Southern JAD reports a relatively high rate of settlement through mediation whereas the Cobb Superior Court ADR Program reports a relatively low rate of settlement over the time period reflected here.
A number of variables may affect the settlement rates achieved in the various programs represented here. We might expect that these programs would mediate the same types of cases because we have isolated Superior Court programs. Other variables that may account for the various settlement rates achieved include
* Timing of Referral to the ADR Process;
* Regulation of Who May Mediate Court-Connected Cases;
* Demographics of the Population Served;
* Party Involvement in Selecting Mediator, Mediation Location; and
* Who Pays the Mediator
Our hypothesis is that the more a court program exercises coercive control of the mediation process, the less likely cases mediated through that program will result in settlement.
Although no less than the Georgia Supreme Court has created a Commission to continuously evaluate the performance of court-connected ADR programs, I have received scalding criticism from court administrators for evaluating how well their mediation programs have actually performed in terms of settling cases and representing that court programs should be evaluated for the benefit of litigants and taxpayers who fund these programs.
This graphic has been published on our web site, http://www.centerforlegalsolutions.org, for some time, but I wanted to post it separately to provide some additional commentary on it and provide readers an opportunity to share their comments on it.
Our data sample includes 578 mediation sessions conducted as part of Cobb County Superior Court’s mandatory ADR program in the 2006 – 2007 time period. Previous posts have described the data sample and court program in greater detail.
We identified the gender of the 122 individuals who mediated these cases in order to compare the overall settlement rate of male mediators compared to the overall settlement rate of male mediators. Our findings can be summarized.
Female Mediators 300 Cases 62.0% Settlement Rate
Male Mediators 278 Cases 42.4% Settlement Rate
Female mediators settled cases in our sample settled cases at approximately 20% higher rate than male mediators. The overall settlement rate was 53%.
To further illustrate the data, we organized our chart of “popular mediators” according to the settlement rates of the 35 most frequently used mediators in our data sample. We then colored each bar to represent the gender of the mediator who achieved the settlement rate represented.
Examining the graphical representation of mediator gender and settlement rates, one can see that there are male mediators who settle cases at higher than average rates, as well as female mediators who settle cases are lower than average rates. Nevertheless, it appears that most of the popular mediators who settle cases at higher than average rates are women, while the majority of popular mediators who settle cases at lower than average rates are men.
Some may object to this “battle of the sexes” analysis on the grounds that men and women should be treated as equals. Based on our data, however, male and female mediators are not statistically equal with respect to the rate at which they settle cases. Whether this “good” or “bad” is more a matter of philosophy than statistics.
In her book In a Different Voice, Carol Gilligan described how men and women think about moral conflicts differently. Her research suggests that men tend to consider conflict in terms of rights while women generally view conflicts in terms of dynamic relationships. Accordingly, a “female” approach to conflict resolution may be better suited to the process of facilitating mediated settlements than a “male” approach to conflict.
Because many cases in our data sample involve family law conflicts between parties with long-term relationships, as opposed to conflicts between relative strangers, settling these cases may require mediators to appreciate the relationships of the parties involved.
As we continue to study mediated cases and increase our data sample, it will be interesting to compare the settlement rates of male and female mediators in domestic relations cases against other types of cases, particularly lawsuits for damages.
This post shares another finding of our study of 578 cases that were mediated as part of the Cobb County Superior Court’s ADR program in the 2006 – 2007 time frame.
There are 10 active Cobb County Superior Court judges. Our data sample of mediated cases was sorted by the judge assigned to the case to determine the rate at which their cases settled in mediation. The results can be illustrated graphically.
Based on our data, the judge presiding over the case does have an influence on the settlement rate. Cases in our data sample settled at an average rate of 53% in our data sample.
In the Cobb Superior Court ADR Program, cases are automatically referred to a mandatory ADR process based on the elapse of a certain amount of time (usually 1 – 2 months) after the complaint is answered. Because the process is largely administrative, it is unlikely a particular judges “positive” or “negative” sentiments about mediation explain the varying settlement rates when their cases are mediated in this program. It is more likely that these judges indirectly influence the rate at which their cases settle in mediation through their case management. For example, it might be expected that how pre-trial motions are handled before mediation and the expectation of an imminent trial play a role in whether mediation parties will be able and willing to reach settlement at mediation.
It should also be noted that Judge Kell (Judge #10) was appointed to the Cobb Superior Court after the mediation sessions that compose our data sample occurred. Only active cases where mediation resulted in impasse, partial settlement or continuation of settlement were re-assigned to Judge Kell when he took the bench in late 2007.