Thursday, January 31, 2019
Joe Hynes, as everyone knew him, was the last of the Brooklyn Irish era in City politics. As Kings County District Attorney he was long a daily Mass guy. His sense of justice led Mario Cuomo to pick him as special prosecutor in the racist mob killing of Michael Griffith known as the Howard Beach case. He wanted to be New York State Attorney General but that didn't pan out.
He was a dedicated teacher, recruiting young Assistant district Attorneys straight out of his classes at St. John's, Brooklyn, and Fordham law schools.
He stopped for a cup of coffee and a chat with students or a friend just before class. My office was for several years just off the cafeteria so I often had a chance to chat. His sins were venial, but his body was mortal. I liked and admired him. - gwc
Charles J. Hynes, Brooklyn D.A. in a Tumultuous Era, Dies at 83 - The New York Times: Mr. Hynes took the office after prosecuting the Howard Beach case and won convictions against corrupt officials, but controversy dogged his final years on the job.
Wednesday, January 30, 2019
Monday, January 28, 2019
Saturday, January 26, 2019
Friday, January 25, 2019
Statement of the Speaker of the House after the shutdown ended.
The indictment of Roger Stone makes clear that there was a deliberate, coordinated attempt by top Trump campaign officials to influence the 2016 election and subvert the will of the American people. It is staggering that the President has chosen to surround himself with people who violated the integrity of our democracy and lied to the FBI and Congress about it.
“In the face of 37 indictments, the President’s continued actions to undermine the Special Counsel investigation raise the questions: what does Putin have on the President, politically, personally or financially? Why has the Trump Administration continued to discuss pulling the U.S. out of NATO, which would be a massive victory for Putin?
“Lying to Congress and witness tampering constitute grave crimes. All who commit these illegal acts should be held accountable to the fullest extent of the law. We cannot allow any effort to intimidate witnesses or prevent them from appearing before Congress.
“The Special Counsel investigation is working, and the House will continue to exercise our constitutional oversight responsibility and ensure that the Special Counsel investigation can continue free from interference from the White House.”
Thursday, January 24, 2019
The MAGA hat is not a statement of policy. It’s an inflammatory declaration of identity. - The Washington Post
by Robin Givhan
...The hat figured prominently in the viral video of young Nick Sandmann’s eye-to-eye encounter with the elderly Native American drummer, Nathan Phillips, at the Lincoln Memorial. Sandmann stood his ground. He had every right to remain there, the high schooler said during an interview on “Today.” Sandmann did not seem to consider whether it was actually the right thing to do.
Wednesday, January 23, 2019
by Jonathan Capehart
Sunday, January 20, 2019
Saturday, January 19, 2019
Republicans’ lack of alarm over the shutdown reveals a disturbing truth https://www.theguardian.com/commentisfree/2019/jan/18/government-shutdown-republicans-trump-truth?CMP=Share_AndroidApp_Blogger
Friday, January 18, 2019
Torts Today: A2J: Neil Gorsuch pens a devastating takedown of his own most important opinion – Ian Millhiser - ThinkProgress
Torts Today: A2J: Neil Gorsuch pens a devastating takedown of his own most important opinion – Ian Millhiser - ThinkProgress: Ian Millhiser, a frequent scourge of the Supreme Court's reactionary rulings, introduces the concept of the Gorsuch Brief - a narrow arg...
Tuesday, January 15, 2019
Northeast USA Jesuit Provincial Fr. John J. Cecero, S.J.has released a list of fifty Jesuits of the Province who since 1950 have been credibly accused of sexual abuse of minors. The Society's full statement is HERE.
Fr. Cecero writes:
At the heart of this crisis is the painful, sinful and illegal harm done to children by those whom they should have been able to trust. We did not know any best practices to handle these violations many decades ago and regrettably made mistakes along the way. What winds up being a very shameful history for the Church at large was made clear by investigative reporting in Boston in 2002. It was the subsequent Dallas Charter that was accepted by the US Bishops that allowed us to codify and implement best practices. Under the watchful eye of our accreditation agency, Praesidium, Inc., we have implemented these best practices for more than fifteen years and can be grateful, although no less vigilant, that there have been no new cases of abuse of minors or vulnerable adults in the Northeast Province.Changed practices do not erase past history. The list I publish today notes criminal and sinful failures in the pastoral care of children.
Sunday, January 13, 2019
by Jack Goldsmith (Harvard Law School)
by Benjamin Wittes
Friday, January 11, 2019
by Benjamin Wittes
The Palestinian struggle is shifting to a civil rights movement, and Gaza is leading the way | +972 Magazine
The Great Return March signals a shift for the Palestinian people, says scholar Tareq Baconi. Palestinians are no longer fighting for a state, and are increasingly demanding their full rights — primarily the right of return.
Thursday, January 10, 2019
Wednesday, January 9, 2019
Tuesday, January 8, 2019
by Ian Millhiser
Access to Justice | American Academy of Arts and Sciences
“Emblazoned on the facade of the United States Supreme Court building are four simple words intended to embody the overriding principle of the U.S. legal system: EQUAL JUSTICE UNDER LAW. Yet after more than 225 years, the nation still has not developed the means to fulfill this principle.”
AUTHORS John G. Levi and David M. Rubenstein
How Rising Income Inequality Threatens Access to the Legal System
Incentives that lead sellers to introduce quality improvements and cost-saving innovations in competitive markets also ensure that no opportunity to cheat consumers remains unexploited. That difficulty underlies many American laws. But many people lack the income necessary to pay for legal interventions against unjust treatment, preventing them from meeting basic needs, like protection against financial fraud and abusive relationships. Growing income inequality has made this justice gap worse by reducing public funds available for legal aid in real terms, while also making it more difficult for low-income people to make ends meet. Simple policy changes could ease both problems without sacrifices from anyone. Those who could afford tax increases necessary to pay for more social services, including competent legal representation for everyone, resist this step because they believe that it would make it harder to buy the special things they want. But that belief is incorrect because the supply of special things is limited. The ability to bid successfully for them is unaffected by higher taxes, which do not affect relative purchasing power.
AUTHOR Robert H. Frank
The Invisible Justice Problem
Understanding is sparse about the lives of people who are poor and struggling economically and who need help in solving a legal problem and don’t get it. Politics over the past half-century has made them largely invisible. In that period, attacks of the right on the provision of access to justice have rested on the triumph of laissez-faire views: the fresh embrace of markets and the free-enterprise system. The upshot has been the winner-take-all economy of the past generation, in which improved access to justice is largely a nonissue. For access to become a priority of a national movement, it needs champions in national politics, not just in the legal profession. It needs powerful champions who advocate for greatly increased and improved access to justice as a primary American commitment.
AUTHOR Lincoln Caplan
Reclaiming the Role of Lawyers as Community Connectors
With the prospect of nonlawyers stepping in to do low-fee legal work, how should the legal profession conceive of its relationship to that work and ensure that nonlawyers bolster rather than undermine the value that lawyers add to society? Lawyers should reclaim their role as connectors in their communities: interstitial figures with the knowledge, skill, and trust to help resolve disputes, move beyond stalemates, dispel tensions, and otherwise bring people and resources together in productive solutions. They should do so, at least in part, through pro bono work for poor and low-income clients. It would be a mistake to stand in the way of innovative solutions to the justice gap. But it would also be a mistake, and a deep loss, if lawyers – particularly those who do not normally represent poor and low-income clients – turned their backs on the poor and low-income segments of our society.
AUTHORS David Frank Levi, Dana Remus, and Abigail Frisch
More Markets, More Justice
People lack access to justice because the law is complex and expensive to use. Basic mechanisms of market competition can reduce both the complexity and the cost of law while securing law’s principal function in society, which is to coordinate a community around a shared understanding of what is and what is not allowed. Creating markets for rules will make for better law and better legal systems by allowing people and organizations to select the rules and dispute-resolution processes that are best for them in a market in which providers of regulation compete on terms of cost and quality. Legal rules require special protection to make sure they deliver a more just, equitable world for all; this protection can be provided through a “superregulator,” which licenses providers of law and legal services to sell their services in competitive markets.
AUTHOR Gillian K. Hadfield
Access to What?
The access-to-justice crisis is bigger than law and lawyers. It is a crisis of exclusion and inequality. Today, access to justice is restricted: only some people, and only some kinds of justice problems, receive lawful resolution. Access is also systematically unequal: some groups – wealthy people and white people, for example – get more access than other groups, like poor people and racial minorities. Traditionally, lawyers and judges call this a “crisis of unmet legal need.” It is not. Justice is about just resolution, not legal services. Resolving justice problems lawfully does not always require lawyers’ assistance, as a growing body of evidence shows. Because the problem is unresolved justice issues, there is a wider range of options. Solutions to the access-to-justice crisis require a new understanding of the problem. It must guide a quest for just resolutions shaped by lawyers working with problem-solvers in other disciplines and with other members of the American public whom the justice system is meant to serve.
AUTHOR Rebecca L. Sandefur
The Right to Civil Counsel
The U.S. Constitution grants no categorical right to counsel in civil cases. Undaunted, the legal profession’s renewed effort to improve access to justice for low-income unrepresented civil litigants includes a movement to establish this right. How this right is implemented turns out to be as important as whether such a right exists. To be effective, any new right must be national in scope, adequately funded, and protected from political influence. Lawyers must be available early and often in the legal process, so that they can provide assistance for the full scope of their client’s legal problem and prevent further legal troubles. A right to civil counsel should encompass proceedings where basic needs are at stake, and not be influenced by inadequately informed judgments of who is worthy of representation.
AUTHOR Tonya L. Brito
The New Legal Empiricism & Its Application to Access-to-Justice Inquiries
The United States legal profession routinely deals with evidence in and out of courtrooms, but the profession is not evidence-based in a scientific sense. Lawyers, judges, and court administrators make decisions determining the lives of individuals and families by relying on gut intuition and instinct, not on rigorous evidence. Achieving access to justice requires employing a new legal empiricism. It starts with sharply defined research questions that are truly empirical. Disinterested investigators deploy established techniques chosen to fit the nature of those research questions, following established rules of research ethics and research integrity. New legal empiricists will follow the evidence where it leads, even when that is to unpopular conclusions challenging conventional legal thinking and practice.
AUTHOR D. James Greiner
The Public’s Unmet Need for Legal Services & What Law Schools Can Do about It
Civil legal services in the United States are increasingly unaffordable and inaccessible. Although the causes are complex, law schools can help in three ways beyond simply offering free legal clinics staffed by lawyers and students. Law schools can teach the next generation of lawyers more efficient and less expensive ways to deliver legal services, ensure that educational debt does not preclude lawyers from serving people of modest means, and conduct and disseminate research on alternative models for delivering legal services. These strategies will not solve all of the problems that exist, but they hold the promise of meaningfully improving the affordability and accessibility of civil legal services.
AUTHOR Andrew M. Perlman
Access to Power
The traditional approaches to “access to justice” obscure the current distribution of economic, social, and political power, and how that distribution favors those who have power and burdens those who do not. Consequently, the traditional approaches foreclose possibilities for a truly just society. In the law clinic we led together for five years, we developed models of lawyering with our students and community partners focused on how lawyers can contribute to the redistribution of power in society from those who accumulate and deploy it to those who are deprived of it.
AUTHORS Sameer Ashar and Annie Lai
The Center on Children & Families
The University of Florida Levin College of Law Center on Children and Families addresses the instability many children face due to a wide range of challenges. They include poverty, violence, and the criminalization of youth of color. They also include inadequate health care, substandard educational opportunity, and the general failure of systems designed to support, protect, and treat children who are classified as dependent, delinquent, or otherwise in need. The Center’s model rests on five premises that Professor Barbara Woodhouse and colleagues identified in their scholarship as essential for addressing crises rather than mitigating symptoms: curriculum, scholarship, conferences, advocacy, and clinics. Over the years, the Center has held numerous conferences to advance groundbreaking, practical research on family law and children’s rights and has held youth summits in connection with those conferences to engage with youth on relevant legal issues. These efforts remain at the conceptual heart/core of the Center’s work.
AUTHOR Shani M. King
Techno-Optimism & Access to the Legal System
For legal technologists, apps raise the prospect of putting the law in the hands of disadvantaged people who feel powerless to deal with their legal problems. These aspirations are heartening, but they rest on unrealistic assumptions about how people living in poverty deal with legal problems. People who are poor very rarely resort to the law to solve their problems. In the situations when they do seek solutions, they confront educational and material impediments to finding, understanding, and using online legal tools effectively. Literacy is a significant barrier. More than 15 percent of all adults living in the United States are functionally illiterate, meaning that, at best, they read at the fourth-grade level. Inadequate access to the Internet and limited research skills compound the challenges. To reach people from marginalized groups, access-to-justice technologies need to be integrated with human assistance.
AUTHOR Tanina Rostain
Marketing Legal Assistance
Much of the American conversation about access to justice focuses on regulatory barriers to new forms of service delivery and treats regulatory resistance as the primary problem to be solved. Meanwhile, obstacles to consumer awareness and engagement have received less attention. This essay reverses the order of analysis and considers strategies for expanding access first from a marketing perspective. What models of legal assistance have been most successful in building consumer awareness and trust? To what extent can successful marketing help to sidestep or overcome regulatory resistance? And what are the implications for reformers interested in expanding access to justice?
AUTHOR Elizabeth Chambliss
Community Law Practice
Community-embedded law practices are small businesses that are crucial in addressing the legal needs that arise in neighborhoods. Lawyers in these practices attend to recurring legal needs, contribute to building a diverse profession, and spur community development of modest-income communities through legal education and services. Solo practitioners and small firm lawyers represent the largest segment of the lawyer population in the United States, yet their contributions to addressing the legal needs of modest-income clients are rarely recognized or studied. This essay sheds light on the characteristics, motivations, and challenges these law practices face in providing access to justice to modest-means communities.
AUTHOR Luz E. Herrera
The Role of the Legal Services Corporation in Improving Access to Justice
The Legal Services Corporation is the United States’ largest funder of civil legal aid for low-income Americans. The LSC funds legal-aid programs that serve households with annual incomes at or below 125 percent of the federal poverty guideline. Legal-aid clients face a wide variety of civil legal problems: wrongful evictions, mortgage foreclosures, domestic violence, wage theft, child custody and child support issues, and denial of essential benefits. This vital work is badly underfunded. The shortfall between the civil legal needs of low-income Americans and the resources available to address those needs is daunting. Federal funding is necessary because support for civil legal aid varies widely from state to state. The LSC uses the “justice gap” metaphor to describe the shortfall between legal needs and legal services. Narrowing the gap is central to the LSC’s mission.
AUTHOR James J. Sandman
Participatory Design for Innovation in Access to Justice
Most access-to-justice technologies are designed by lawyers and reflect lawyers’ perspectives on what people need. Most of these technologies do not fulfill their promise because the people they are designed to serve do not use them. Participatory design, which was developed in Scandinavia as a process for creating better software, brings end users and other stakeholders into the design process to help decide what problems need to be solved and how. Work at the Stanford Legal Design Lab highlights new insights about what tools can provide the assistance that people actually need, and about where and how they are likely to access and use those tools. These participatory design models lead to more effective innovation and greater community engagement with courts and the legal system.
AUTHOR Margaret Hagan
Simplified Courts Can’t Solve Inequality
State civil courts struggle to handle the volume of cases before them. Litigants in these courts, most of whom are unrepresented, struggle to navigate the courts to solve their problems. This access-to-justice crisis has led to a range of reform efforts and solutions. One type of reform, court simplification, strives to reduce the complexity of procedures and information used by courts to help unrepresented litigants navigate the judicial system. These reforms mitigate but do not solve the symptoms of the larger underlying problem: state civil courts are struggling because they have been stuck with legal cases that arise from the legislative and executive branches’ failure to provide a social safety net in the face of rising inequality. The legal profession and judiciary must step back to question whether the courts should be the branch of government responsible for addressing socioeconomic needs on a case-by-case basis.
AUTHORS Colleen F. Shanahan and Anna E. Carpenter
Corporate Support for Legal Services
The gap in pro bono legal services provided by corporate legal departments and large private law firms is not surprising: The formalization of pro bono work by large firms has been underway on a significant scale for far longer than it has within corporations. This process has made large firm pro bono efforts more efficient and effective through improved practices. It has also led firm leaders and lawyers generally to expect more volunteerism of this sort. Companies that apply their resources, business experience, or other assets have successfully expanded the impact of their pro bono hours. Because of the scale of this need, and because legal-services lawyers have specialized expertise that corporate lawyers can’t easily replicate, corporate pro bono efforts will not, on their own, close the justice gap. But these efforts have the potential to contribute significantly more to the ability of legal-aid organizations to serve their clients, and to help close this gap.
AUTHOR Jo-Ann Wallace
Justice & the Capability to Function in Society
All over the world, civil legal problems are ubiquitous. But while all groups in every society that has been studied experience civil justice problems, these problems and their consequences do not fall equally. Socially disadvantaged people report more problems, more serious problems, and more negative consequences from them. The lack of legal capability – the lack of the capacity to understand and act on justice problems – plays a key role in creating these inequalities. A growing evidence base should support and enable global, national, and other policy-makers to achieve stated policy goals and enable people to respond effectively to the myriad legal problems that can threaten their aspirations and well-being.
AUTHORS Pascoe Pleasence and Nigel J. Balmer
Why Big Business Should Support Legal Aid
Corporations are part of the fabric of society. As members of American society – often, very powerful and influential ones – corporations have a deep interest in the health of the nation’s democracy, a mainstay of which is the system of justice writ large. The concept of justice for all is so important to this democracy that the founders placed it in the Constitution’s first line. But the system is not perfect. Attaining equal justice for all citizens and governing by the rule of law too often are merely aspirations. Corporations have a stake in ensuring that their disputes with others are resolved fairly, in a legal system that is viewed as treating all litigants equally under the law, regardless of size, wealth, or power. Corporate engagement in strengthening legal services in the United States is, in this way, an expression of corporate self-interest.
AUTHOR Kenneth C. Frazier
Executive Branch Support for Civil Legal Aid
For government, access to justice is about more than legal justice. Legal services are essential tools to enable government programs to achieve a wide range of goals that help to provide an orderly, prosperous, and safe country. Recent efforts have transformed how some federal and state government officials think about and use civil legal aid to get their work done. Key in convincing them has been empirical evidence about the effectiveness and cost-efficiency of including legal services alongside other supportive services.
AUTHOR Karen A. Lash
Why Judges Support Civil Legal Aid
To fulfill their role as neutral deciders in an adversarial legal system, judges need lawyers. Unrepresented litigants tax the court system and burden the people who work in it. Judges around the country, of all political stripes, are resolute in their support of civil legal aid. Judges support civil legal aid because they value equal justice and the protection of the disadvantaged. They support legal aid because it assists in the efficient and effective administration of the courts they run. They also support legal aid out of self-interest, because it makes their work lives less threatened and more effective.
AUTHOR Fern A. Fisher
Lawyers, the Legal Profession & Access to Justice in the United States: A Brief History
Ideally, justice is a universal good: the law protects equally the rights of the rich and powerful, the poor and marginal. In reality, the major share of legal services goes to business entities and wealthy people and the prestige and prosperity to the lawyers who serve them. This essay deals with the history of access to justice – chiefly civil justice – and with the role of lawyers and organized legal professions in promoting and restricting that access. In the last century, legal professionals and others have taken small steps to provide access to legal processes and legal advice to people who could not otherwise afford them. By doing so, they have inched closer to the ideals of universal justice. Though the organized bar has repeatedly served its own interests before those of the public, and has restricted access to justice for the poor, it has been a relatively constructive force.
AUTHOR Robert W. Gordon
|Barbarians at the gates - the sack of Rome 410 A.D.|