by Dale | Sep 30, 2020 | Law and Family
Twentieth century psychology correctly identified the sources of moral formation. Sigmund Freud, Erik Erikson, Jean Piaget, Lawrence Kohlberg and others showed that moral formation occurs in stages of development. Internalization of the commands and images of the parents plays a strong and vital role in moral formation. Traditional family was the first template for moral formation. Earlier in history, conscience was believed to be an inherent part of human nature—something humans are born with. There is probably some genetic predisposition for development of conscience, because the capacity would support survival, but there is also a very strong social/cultural component to moral formation. Basically, conscience is instilled by the surrounding culture. Parents usually start the process, and continue to be a central role. Moral formation includes both a cognitive (learning) component and emotional component. The learning component is important: if and individual knows that it is wrong to do a particular thing, he or she is much less likely to do it. In fact, Russian psychologist Lev Vygotsky realized that individuals internalize all that they know from the surrounding culture. The internalization begins with parents. But the emotions that are involved include not only shame and embarrassment because of wrong-doing, but also includes the development of an internal monitor that Freud called the “superego” that demands correct behavior. According to Freud, the superego resulted from the internalization of the commands and the image of the parents. The superego is the conscience.
In the essay on Family Meltdown, I describe the breakdown of traditional family and marriage when the culture shifted from an agrarian to an urban, industrial/technologically based economy. In western civilization, romantic attraction played an important role in pairing couples off, and then, according to the fairy tales, they lived “happily ever after.” However, romantic attraction didn’t work as well in the industrial, technological economy. Romantic attraction—to be frank, the attraction of sex—in offices and factories, between males and females who were not married to each other produced inevitable results. Laws changed in the 1960’s, shifting to no-fault divorce. Change in law was the result, not the cause, of the breakdown of marriage. Courts were ill-prepared to deal with the onslaught of emotion-laden divorces, child custody matters, child support matters. The adversarial system for dispute resolution is the hallmark of the court system, but it definitely was not the best place to resolve the highly emotional issues arising from breakdown of the most fundamental unit of civilization. And that gets us to the point of the present essay: because the family was largely responsible for moral formation, the effect of the breakdown of family had significant impact on our society. The legal system that has evolved for the resolution of emotionally charged domestic disputes leaves much to be desired. The potential results are far reaching.
Often we hear theories about the cause of crime. Searching for a “cause of crime” is the wrong approach. There is no “cause” for crime, although many social and personal factors may create an environment in which it is more likely to occur. There is a cause for moral, law-abiding behavior. The cause for proper conduct is sound moral formation—the adequate development of conscience. Sound moral formation has been imperiled by breakdown of family, and the resulting destruction of the traditional template for moral formation. Moral formation traditionally depended on the child’s strong, healthy relationship with both parents. Our method of dispute resolution does little to improve the prospect. A few hours of a judge’s time, with attorneys doing battle to zealously represent clients in an adversarial setting, with economic factors being the pre-eminent concern, is not a good way to make decisions that will drastically affect the entire future for children, mothers and fathers.
When moral formation declines, it is predictable that there will be an increase in crime. The rate of incarceration remained constant in the United States from 1924 to 1964, but began to mushroom in the late 1960’s—the same time that traditional marriages began to breakdown at a rapid rate. It would be a mistake, however, to jump to the conclusion that the breakdown of family was the initial cause of the increase in incarceration. Just because two things happen one after another does not mean that the first causes the second. Reasons for the increase in the rate of incarceration included the increased use of drugs, the criminalization of conduct that might not have been criminal previously, and numerous other factors coming out of the tumultuous 60’s. But the breakdown of moral formation is likely to cause increasingly poor behavior, and to escalate the rate of incarceration, in a vicious, degenerating downward spiral. What goes on in domestic relations court interacts with what goes on in criminal court.
Thoughtful people are beginning to understand that there is a systemic problem in the way we have dealt with domestic relations litigation. But we have a long way to go. In the next essay in this series, I will deal with a huge problem in the economics of divorce: Child Support.
by Dale | Sep 29, 2020 | Law and Family
Family is the basic economic unit of our culture. Other essays in this series have examined the breakdown of family and problems related to the problem of trying to resolve family disputes in an adversarial judicial system. Problems related to child and spousal support epitomize the unanticipated difficulties of the transition to no-fault divorce managed by an adversarial judicial system. The traditional family was the ultimate consumer. Food, clothing, housing, transportation, and all of the basic requirements for life are a part of the family budget. The purchase of those necessities has been the bedrock on the entire economic system.
Difficulty with the management of money is a major cause of marital breakdown. In the traditional family before the meltdown in the second half of the Twentieth Century, law discouraged divorce. Economic forces within the family itself created pressure to make the family budget work. The policy of government and law did not encourage either parent to make decisions based on selfish economic interests. But then marriage became just another contract, and suddenly, the non-fungible, incommensurable moral duties and the affective role of parents, that included love, nurture, participation in moral formation, education and other responsibilities that do not lend themselves to monetary evaluation, were assigned monetary value.
In the present day adversarial legal market for divorce, either party can readily obtain an evaluation of economic prospects for child support and spousal support. While spousal support is evaluated on somewhat equitable principals including the age, condition, station in life, length of the marriage, contributions to the marital estate and the like, child support is simply based on the prospective income of the two spouses. The system assigns a monetary value to things that really can’t be bought or sold.
The excellent intentions of lawmakers in requiring every parent to be responsible for the economic needs of their children are admirable, but when a system is created that causes an economic motivation for divorce to be thrust into the core of every marriage with children, the unintended results are scary. The conversion of the responsibility of parenting to a monetary sum inserts a conflict of economic interest into every marriage that involves children. The appearance of an economic advantage is not limited to those marriages that would likely have ended in divorce anyway. The monetary child support obligation applies not just to the irresponsible parent-it applies to every parent. It can provide part of the motivation for divorce.
The non-custodial parent is forced to pay child support. But the custodial parent is not really accountable for the disposition of the child support that he or she receives. Nothing assures that it will be used for the benefit of the children. In a society in which drugs are problematic, and are not the only unhealthy possibility for the unattached custodial parent, the lack of accountability is a real problem.
But the temptation to legally require accountability from the custodial parent is not a viable answer to the problem. An already overburdened court system could not meaningfully take responsibility for managing the financial affairs of every family that undergoes a divorce, and impose and enforce some type of fiduciary responsibility, like that of a guardian, on the custodial parent. In the traditional family when the law protected the marriage itself, and divorce was more difficult, the wife and husband exacted some accountability of each other. To solve the accountability problem, we must again harness some of the energy that naturally brought the parents together in a bonded relationship and caused them to bond with the children in the first place. Without forcing incompatible couples to endure each other, we must discourage the animosity generated in our present adversarial system. We must create a system that encourages parents to work together for the best interest of the children. The support of extended family, community and church is needed. A new morality for grandparents needs to evolve, that is not shaped by the culture of adversarial divorce.
A widespread practice of pre-litigation mediation offers promise, for these and other problems related to the adversarial system of divorce. Without involving lawyers and the adversarial system of the courts, a mediator could meet with both parties and help to reach a successful voluntary solution. Then the parties could seek disinterested advice, and one of them could file for an uncontested divorce.
by Dale | Sep 28, 2020 | Essays on Criminal Law
The tremendous increase in the rate of incarceration that has occurred over the past forty years or so strongly indicates more crimes are happening. There are many insightful explanations for the increase, but none exclude the possibility that more crimes are occurring. This is the first in a series of essays in which I explore some of the implications. In an earlier essay, I suggested that there is no “cause” for crime. There is a cause for proper behavior. The cause for proper behavior is adequate moral formation. I also pointed out that the traditional family that was the traditional beginning point of moral formation, and that the breakdown of family cannot help but have impact on moral formation and ultimately on criminal activity. All of this background information points to an additional counterintuitive point: the solution to crime will not necessarily result from the expansion of law enforcement agencies or spending more money for law enforcement.
And while the escalation of crime may be associated with family breakdown, the answer to crime does not lie in an attempt to rejuvenate the traditional family by forcing parents to live together unwillingly. In my career as a judge, I believe that I saw instances in which moral formation happening in reverse. The actions of an abusive father and an immoral mother seemed to result in children whose conscience was plugged in backwards. They could not feel good about themselves unless they were doing something bad! Ironically, some good scholars actually contend that such childhood circumstances should be considered in mitigation of the sometimes terrible acts that individuals produced in such environments do.
In addition to family, the peer group is very important in moral formation. After infancy, children develop and mature in relationships with people other than immediate family members. As children grow older, their peer group plays a larger and larger role in their moral formation. Inevitably, this means that community and the peer group are extremely important in determining whether individuals will engage in criminal activity. Like poor parenting, a bad peer group can certainly result in something less than desirable moral development. Who the kids hang out with makes a difference.
The place where most individuals encounter the peer group is in school and the educational system. That is often where children meet other children with whom they will develop relationships. I met my wife-to-be in the first grade. And the schools themselves clearly have an important role to play in moral formation. The learning process plays an important role in moral formation. The prisons are filled with individuals who have performed less than adequately in school. Often illiteracy is a problem and clearly there is a positive correlation between lack of linguistic skills and criminal behavior. But schools cannot completely provide the values, and emotional attachment to values that need to be instilled by family, church and community in general. Moreover, interactions with other students—the peer group—is just as instrumental in moral formation as interaction with teachers.
The important point in this discussion is that family, church and community must build moral citizens. That is ultimately the only answer to crime. Only by reinforcing the values that were traditionally instilled by caring parents, and by surrounding developing children with a community that cares, and that will instill positive values, can we hope to overcome criminal behaviors. Church and religious groups have a strong role to play in this process. It is a role that religion has played in the past, and religious organizations need to become very intentional about the matter. In a sense, the increased rate of incarceration represents as much failure on the part of the church and religious organizations as on the part of law enforcement courts. It is not enough for the church and community to condemn evil, and commend the work of law enforcement. The traditional role of the Judeo-Christian heritage has been the advancement of positive good, and creation of strong citizens. The condemnation of evil does not solve the problem and bring the solution.
The basic premise of this essay is that we must find positive ways of dealing with all of the individuals in our society. A caring community that supports families, churches and schools is the ultimate answer to the problem of crime. That support must be imbedded in the structures of the community, and must be intentional. Strong, honest law enforcement is very important, but it is not the answer to the increase in criminal activity, and greatly increased rate of incarceration. No amount of emphasis on law enforcement and incarceration will provide a meaningful solution to the problem of crime. We actually must “accentuate the positive” if we are to “eliminate the negative.” We’ll develop further ideas imbedded in this initial essay in this series of essays.
by Dale | Sep 27, 2020 | Essays on Criminal Law, Opinion Essays
This essay is the second in the series dealing with counterintuitive thoughts about how we deal with crime. In the first essay in the series I suggested that the solution to the problem of crime will not result from stronger law enforcement, but from stronger moral formation. Correct moral formation occurs as a result of interaction with the family, the peer group, churches, schools and the entire community. Peer groups play a particularly important role. And now there is TV and social media. A comedian may have captured the thought when he said “We’ve got to come up with a better class of criminals”.
In the present essay, I turn to the measurement of success in our efforts to deal with crime. What kind of statistics would show success in decreasing the amount of criminal activity? The measurement of the success of criminal law would have to reflect the crimes that are not committed rather than the crimes that are committed. Criminal law is accomplishing its goals when there are no murders, rapes, robberies, deaths, and other crimes. But it is difficult to make a list of undesired events that didn’t happen! It is much easier to talk about and “measure” the success in solving the crimes that do happen than it is to document the fact that they are not happening. It is much easier for those persons in charge of law enforcement to talk and take pride in the cases that are solved than to boast of cases that do not happen. A reported “decrease in the crime rate” is a comparison of the number of crimes that are actually reported during one time period to those reported in another time period. And there is always the statistical problem of crimes that don’t get reported, simply because it is not worth the effort to make the report.
If I am not mistaken, the Law Enforcement Planning Agency, back in the 1970’s, was a program instigated by the federal government. In some instances, it actually made funding available based on the number of cases prosecuted. Certainly, law enforcement needs appropriate funding. Nevertheless, funding that is based on the number of prosecutions is more likely to lead to a higher rate of incarceration than to a reduced rate of crime. What we need is a program promoting real success- an increase in crimes that do not happen!
The rate of crime and the rate of incarceration are not necessarily drawing on the same statistics. Length of sentence, the likelihood of a crime resulting in incarceration, the criminalization of activities that had not previously been declared crimes, the political pressure on law enforcement, legislatures, and judges to be tough all add to the rate of incarceration. It is not at all clear that the result of any of these factors is an actual decrease in crime. For an excellent discussion of those factors, see James Farmer, Jr.’s book, Locking up Our Own. Those factors that affect the rate of incarceration do not address the primary cause of crime: inadequate moral development of the individuals involved.
I remember an instance in my courtroom in which a representative from the Center for Disease Control presented testimony. Off the record, I asked whether the Center for Disease Control has a computerized statistics database for measuring health of the nation rather than reporting the number of diseases that occur. Although the answer was not entirely clear, it is clear that CDC sees health, not disease, as its goal. Although it is important to measure the number of diseases that are occurring and to keep statistics, it is also important to have some method of measuring health as opposed to disease. That is the same statistical challenge that exists for criminal behavior. Moral conduct, rather than crime, must be the goal in dealing with the illness of society.
The approach advocated in this essay is consistent with the mainline Christian tradition. The mainline Christian tradition is the promotion of good as opposed to destruction of evil. Ancient Mid-Eastern religions believed that the cosmos is involved in an eternal conflict between good and evil—light and darkness. In the Christian tradition, the focus is always on the light. Darkness is simply the absence of light. All of this is a complex, abstract way of saying that the destruction of evil does not produce good. In a word, the Christian message is obey the law of love and do whatever you want to do. If you are truly Christian, “Whatever you want to do” will seldom be a crime.
Complex social issues bear on the tremendous increase in the rate of incarceration over the past forty years. We will explore some of those issues in future essays that describe “human economics” and the problem of race and incarceration.
by Dale | Sep 26, 2020 | Essays on Criminal Law
In the two preceding essays I suggested that the principle cause of crime is inadequate moral formation, and that spending money on law enforcement and penitentiaries does not solve the basic problem. In this essay I explore social dynamics that underscore these two points. Let’s start by saying that crime in general is not the product of brilliant minds. A great contest between extremely intelligent criminals and equally intelligent law enforcement officers makes good movies and TV, but we are not filling the prisons with a lot of smart people. Statistically, the court system processes people who are below average in intelligence and below average in skills. Basically, our penitentiaries warehouse ignorance. Let’s examine why that is the case.
In our social system everyone is required to make some contribution to the welfare of society in order to make a place for themselves. “Whoever does not work, neither shall he eat”. That ancient principle expresses both economic and social truth. After Adam Smith invented modern economics we began to assign value to commodities. The Industrial Revolution started the process of making every individual a unit of production in society. Then came the age of technology where even greater mental skills were required in order to be a productive member of society. Education became a necessity. Graduation became the rite of passage to the world of useful adults. Salaries reward skills and knowledge. It was inevitable that human beings would be assigned an economic value. A certain percentage of human beings do not have as much “economic value” in an industrial, technological culture as others. They are “worth less” but too often that translates “worthless.” Many of these unfortunate individuals wind up in the penitentiary. And the penitentiary is not likely to cause them to “be all they can be.”
The simplistic solution “We should teach them to read” is not a satisfactory answer. Not everyone has the same talents. The thing that makes a person a highly productive unit in society is the fact that he or she possesses the ability to acquire the necessary skills. The same thing that makes them unable to read is the thing that causes them not to have great economic value. If a person lacks ability, then the outlook is not real bright. The inability to read and lack of economic productivity result from the same underlying cause. Encouraging everyone to learn to read and to attain as much education as possible is a wonderful idea, but falls short of solving the problem for individuals who are “worth less”.
While the assignment will be quite difficult, society needs to recognize that God did not make any trash. We need to recognize that every person has worth, and we need to search for ways to help every person to achieve that worth. We need to find their strong points. We need a legal system that allows everyone to achieve his or her most beneficial station in life. That was the thought expressed by Dr. King in his Letter From the Birmingham City Jail. We need group functions that promote individual achievement for those who are “worth less”. The task will not be easy. In the scheme of Lev Vygotsky the great Russian Psychologist, we need to find their zone of proximal development and help them to achieve their potential The solution does not include sending ignorance to the penitentiary, but neither does it include rewarding the commission of crime by giving the person who committed crime greater educational and training opportunities than is provided to the general population.
Perhaps the answer lies in a system that identifies persons who are likely candidates for criminal activity before they commit crime, and provides special opportunities for them, not as a reward for committing crime, but that provides opportunities before crime happens. We have to intercept the problem before the crime occurs. My friends in the teaching profession tell me that it is probably not difficult to identify the likely candidates. At the same time, the difficulty will be identifying those candidates without stigmatizing them. Finding a totally positive approach is the challenge.
Ultimately, the laws of economics—supply and demand—operate on what human society believes to be important. If we think that money is the ultimate good, then the laws of economics will govern and be based on the demand for money. If we truly believe that every human being has intrinsic worth, the laws of economics will govern our lives together based on human worth being our most important value.
Reworking our value system is a task for churches and religious organizations. “I was in prison and you visited me…” But let’s not wait until the visit has to be in prison. “Even as you have done it unto one of the least of these….”
by Dale | Sep 25, 2020 | Essays on Criminal Law
In other essays in this group, I discuss the breakdown of the family and the impact of family breakdown on moral formation. I suggested that inadequate moral formation is the root cause of crime. I suggested the possibility that the breakdown of the family has damaged its role in moral formation and that has contributed to the escalating rate of crime and incarceration. I have also discussed the important role that the peer group plays in moral formation and the fact that usually the “peer group” is found in schools, churches, families, and other community organizations. Those organizations help to build good citizens, but not all peer groups are helpful. I have pointed out that an economy that assigns economic value to individuals based on skills place a low value on individuals with poor skills. These individuals will ultimately be deemed “worthless”. According to one study, in the prison population, the average full range IQ is 92, (low average) with linguistic skills being even lower. So, in this essay, I will discuss the role of penitentiaries as a solution to crime, and the prospects are not good.
The modern prison system originated in Philadelphia in the early 1800’s. The idea behind penitentiaries had a somewhat theological basis. The idea was that individuals are born with a conscience and that if, after committing a crime the individual is given time to think about his or her inappropriate behavior, he or she will become penitent. Hence the word penitentiary. The thought ran, we will isolate them from society and give them time to think about their criminal activities. Given time to think about it, they will repent. The idea of penitentiaries that would rehabilitate criminals quickly spread and became an established part of our criminal justice system. Those ideas are not consistent with what we know about human development and moral formation. Even though the underlying theory was doomed to failure, penitentiaries were accepted as a way to remove the criminals from the street and to make the world a safer place to live. From the vantage point of the non-criminal population, it seemed like a good idea. Out of sight, out of mind.
There are significant problems with this approach. First, the approach ignores the real basis of moral formation. Morals are instilled by family and peer groups. What are we doing when we take all of the bad guys and put them at the same location? Who is the “peer group”? What are the chances that the original theory of penitence will work in that environment? Instead of an institution in which individuals become penitent, we are creating a graduate school for inappropriate moral formation. Just as the abusive father and immoral mother install the conscience backwards, the penitentiary peer group will move individual development in the wrong direction! At the end of the sentence, we send these individuals, who were probably economically handicapped to begin with, and with the stigma of penitentiary even more economically handicapped, back to the street.
The cost of penitentiaries is spiraling upward. The rate of incarceration in the United States remained constant from 1924 to 1964, but, over the past 50 years the rate has greatly escalated. The cost is very high. I suspect that the cost of maintaining our prisons is greater than the cost the State of Alabama pays for all its efforts in higher education. The spiraling costs and overcrowding creates pressure for early release, and the rate of recidivism is high.
The problem with incarceration of large numbers of people in penitentiaries is that although it is a very expensive burden for tax payers, it is not an effective solution to the problem of crime. Solutions to these problems is not at all easy or obvious. Intuitively, it is clear there has got to be a better solution to the problem of criminal conduct other than assembling all of the criminals at a mega-prison. The Alabama Department of Corrections is a law unto itself, and is the way its officers and employees make a living. They are skillful at playing the State off against the Federal Courts and overcrowding, and prospering economically as a result. The system lobbies to perpetuate itself. The problem is the system and the solution must be a system founded on proper moral formation. We need intervention at a many earlier stages in the moral development of the individuals who are likely candidates, or likely to become candidates for incarceration. Although the traditional family has broken down, we need to be very vigilant in attending to the moral formation needs of the very young. We need to find training programs so that those persons who are not talented in the ways of traditional education can nevertheless, find meaningful activity in which they make a meaningful contribution to society. They need to be appreciated. Incarceration in a central penitentiary needs to be a last resort. Needless to say there are hardened criminals who need to be locked up for long periods of time. But for others, we need to find better local, non-centralized penitentiary solutions. Local communities need to take a stronger interest in dealing with the problem. To make probation more successful, during my tenure as judge, I worked hard to promote a concept of probation sponsorship. I describe the probation sponsorship program in more depth in another essay in this group. But the next essay deals with the disproportionate rate of incarceration of the black race.
by Dale | Sep 24, 2020 | Law and Race
In other essays, I discuss the alarming increase in the rate of incarceration. Bryan Stevenson and James Farmer, Jr. have written excellent books dealing, among other things, with that critical issue. I have suggested that the increase in the rate of incarceration signifies that criminal law is not working very well: it would be working well if there were fewer crimes. Ironically, the criminal justice system, particularly law enforcement officers and prosecutors, seems to take pride in the number of cases processed, and the number of convictions. But law is working well when people obey the law.
Now we turn to an alarming demographic fact about incarceration in these United States. The rate of incarceration of members of the black race is greatly disproportionate to the percentage of members of the black race in the total population. This fact is often cited by civil rights advocates to show that the legal system is discriminatory, prejudiced, unjust and unfair to black people. Occasionally that contention is countered with the suggestion that it simply shows that blacks commit more crimes than others. It is not the purpose of this article to pit those two contentions against each other. Both statements may be true. This is not to suggest that profiling doesn’t exist or that race cannot produce prejudicial reactions in law enforcement. The simple explanation is that 400 years of slavery and segregation for African Americans did not instill into the sub-culture a natural tendency to turn to the law, derived from European culture and history, for the solution to its problems. Slavery and segregation caused the evolution of a unique cultural system for African in America, particularly in the South, that differs from the historically dominant culture. Often people in the black culture best protect their interest and their population by distancing themselves as far from legal system as possible. The advantages of distance created black solidarity that came to be firmly established in the mores of the culture. It was the best way to survive. The black cultural system has its way of dealing with conflict, and it not centered in the Euro-American legal system. A cultural system 400 years in the making did not disappear overnight. It is embedded in family, church, and community relations. Self-help and tolerance are important internal factors in the system.
Other factors contributing to the rate of incarceration that I discuss in other essays also affect members of the black race in the same way that they affect anyone else. Lack of education and skills improves the possibility of incarceration. Those factors contribute to the rate of incarceration of black individuals in the same way that they contribute to the incarceration of others. In fact, these factors probably have a disproportionate impact on the black population. Given the fact that the criminal justice system is not working extremely well to begin with in bringing about desired behavior, there is not a great deal of inducement to the black community to alter its cultural defenses against the criminal justice system. But the “self-help” remedies lead to incarceration.
Our legal system has attempted to deal with the cultural problems that arise from conflicts between cultures by applying individual rights and remedies. Cultural differences are social differences. A cultural system is a social system. Individual remedies will never resolve problems arising from differences that arise from cultural differences in social systems. A broader, systemic solution is needed.
In our other essays, I suggest early intervention. Making certain that every young person, regardless of race, has the opportunity to develop social instincts and moral insight that is necessary in order to have the opportunity to do well in the modern world is essential. That is the beginning point for solving the problem. Family values need to be emphasized. Families are the beginning point for moral formation. Schools need to continue to do everything that they can to foster moral development, but that task is difficult where cultural differences are involved. Churches need to become much more aggressively involved. Community building organizations need to work for community solidarity, to erase the cultural disadvantages arising from cultural differences, while at the same time recognizing and promoting all of the advantages of a pluralistic society. Communities need to intercept problems long before they result in criminal activity. We need to develop community spirit that includes everyone. The Criminal Justice System needs to become effective as a system that produces non-criminal behavior. Incarceration in a central system should be used, as I have suggested, only as a last resort. In a another essay, I provide a brief description of a concept that I call “Probation Sponsorship.” That is a program that I attempted to implement at a Circuit Court Judge in Alabama’s Fifth Judicial Circuit.
by Dale | Sep 23, 2020 | Law and Race
Four hundred years of slavery and segregation created a cultural system in our black communities. That system did not disappear just because the Civil Rights Movement adjusted the legal system in an attempt to treat all persons equally. The cultural system that had evolved appears to still has notable influence in many ways. A “self-help” system for enforcing cultural norms is a factor in the higher rate of incarceration of blacks in the criminal justice system.
Programs can be implemented to help alleviate the problems arising from cultural differences. During my tenure as a circuit judge, I created a program that I called “Probation Sponsorship.” The idea of Probation is to give persons who find themselves caught up in the criminal justice system an opportunity to display a willingness to correct their behavior instead of going to the penitentiary. Traditional probation does not seem to be very effective, and needs to be supported by efforts that provide the natural forces of moral formation. That was the purpose of my Probation Sponsorship Program.
In other essays I discuss the role of the peer group in moral formation. The idea of Probation Sponsorship is to have the person who might otherwise go to the penitentiary recruit reputable friends from his or her own community and have them work with that individual to assure good behavior. The probationer enlists a peer group to assist him or her successfully complete a period of probation. That peer group is quite different from the “peers” in the central penitentiary. There should not be a wide cultural divide between the probation sponsors and the probationer. Churches can take an active role in providing probation sponsors. The probationers are much more likely to feel compelled to adhere to the standards expected by the sponsors. Sponsors should help make certain the probationer attends court when necessary, meets with the probation officer when necessary, seeks employment, takes advantage of educational opportunities, pays the required court costs, and avoids “friends” and places that are likely to get the probationer in trouble. All of those things are standard requirements of probation. The court should supervise the probation sponsorship and actually have the probationer and his sponsors appear periodically to make progress reports. Likewise, the probation officer should carry out the traditional functions of a probation officer. If drugs are a part of the problem, the sponsors should make certain that the probationer adheres to the requirements of whatever treatment program is required by the court or needed by the individual. In some courts, officers known as “court referral officers” provide helpful services especially in dealing with drug addiction.
Although Probation Sponsorship provides an opportunity to solve some of the problems arising from cultural differences, it is not specifically a race-based program. It should be available to all prospective probationers. Solutions to cultural problems that are based on race, and require continued racial identification cannot ultimately solve the problems of cultural differences. But Probation Sponsorship provides a way for the local community and its organizations to take charge of its own problems. Central penitentiaries with revolving doors—especially with regard to non-violent crimes—are not a solution at all. They are graduate schools in criminal conduct. What I mean is that penitentiaries surround the person convicted of crime with a peer group that is not at all likely to instill the appropriate values that are required in order to bring about the required changes in the individual’s life.
To fully grasp the significance of the suggestions in this column requires an understanding of the function of law that differs from popular political perceptions. Law is not what a court does, as suggested by Oliver Wendell Holmes, Jr. Law establishes the parameters for acceptable human behavior, and courts become involved only after law, in that sense, has been violated. Courts provide remedies for violations. The rules for decision are not the rules for conduct in society. In another essay, I suggest that the purpose of criminal law is to produce correct behavior, and that success cannot be measured by the number of people that are convicted of crimes and sent to the penitentiary. Probation Sponsorship offers a glimmer of hope for producing desirable, law-abiding, behavior.
One of the inevitable problems with all programs and with the criminal justice system itself is cost. While theorically the probation sponsors serve as sponsors simply as friends of the probationer, nevertheless, the court costs, court referral fees, probation fees, and other costs that are now imposed by the criminal justice system probably cause the system to produce exactly the opposite result needed.
by Dale | Sep 22, 2020 | Law and Race
In several essays, I discuss problems with the criminal justice system and incarceration. Our exploration of problems concerning the corrections system suggested that 400 years of slavery and segregation created a Black cultural system that understandably put distance between itself and the legal system. We pointed out that a self-help system evolved and that street justice in a self-help cultural system may be one of the causes for disproportionate incarceration of black citizens and suggested that a program called “Probation Sponsorship” might help bridge the cultural divide. The division between the black culture and the legal system also has important implications for economic development in predominantly black areas, such as Alabama’s Black Belt. These implications have not been carefully considered and it is time that we take a look.
First we should underscore the fact that slavery and segregation created a strong cultural barrier between the black population and the white culture and its legal system. The separation was actually reinforced by laws and the legal system itself. Inevitably a separate black cultural system that was not closely aligned with the legal system evolved. The black cultural system has its own customs and ways of dealing with life. Cultural differences are reflected in church life, family life, musical taste, art, language and in numerous other ways. The removal of the legal barriers by the Civil Rights movement did not erase the cultural differences. Although it is important to recognize and preserve many beautiful aspects of black culture, it is also important that the cultural system itself not the stumbling block, preventing of full participation by Blacks in the mainstream of society, including the economic system.
The events of the 1960’s did not erase a way of life that had evolved over 400 years. The Black culture has been understandably slow to turn to the mainstream of law for the solution to problems. The different cultural attitudes toward law are not limited to the criminal law. Remedies that have been adopted to create equal rights took the form of creation of individual rights and little, if any, attention has given to the cultural aspects of the problem. Any factors related to the culture that would have adversely affected progress by Blacks before the Civil Rights movement may still be in place. The Black cultural system simply continued to evolve under the influence of changes wrought by the Civil Rights Movement.
Any textbook for any introductory course to economics will clearly indicate that a prerequisite for an economy to function and create wealth is a legal system. That is because the legal system must recognize and enforce property rights. And the legal system must recognize and enforce contractual obligations. It is important to distinguish between the function of the judiciary, and the actual function of law in society. The difference in legal results between predominately black counties and predominately white counties is quite obvious, but differences in the actual function of law in society are much more difficult to assess. The high verdicts in civil cases in Macon, Bullock, Lowndes and other Black Belt counties as opposed to low verdicts Elmore and Lee counties, is obvious. In fact that is part of the problem. Statistically, the “run-away” verdicts that transformed the Alabama legal system and brought an extreme right wing reaction in the entire state occurred mainly in the areas of predominantly black populations. But that is just a part of the problem. These results and the more subtle differences in the role of law in everyday activities tend to perpetuate the cultural distance between the black subculture and the mainstream.
Blaise Pascal, a French philosopher in the early ages of enlightenment, pointed out that it is a strange justice that changes with the crossing of a river. The different expectations that exist based on whether an automobile accident happens in Macon County or in Lee or Elmore County cannot be justified. That is not to say that the extremely conservative position taken by juries in the predominantly white counties is ideal. Unfortunately the difference, and the attitudes that reinforce the difference, are strongly charged with emotions and feeling. Verdicts everywhere should be fair.
The point is that the function of law, both in the actions of courts and in the behavior of society, significantly impacts economic development. The attitude toward law that currently predominates in Alabama’s Black Belt counties adversely impacts on economic development in those counties. This essay is written in the belief that honest, open discussions of cultural differences can help to alleviate the obstacles to progress created by those differences. The open discussion is an important step toward economic progress for everyone. The historical distance between the Black culture in law and the legal system is one of the differences that needs discussion.
In several essays, I discuss problems with the criminal justice system and incarceration. Our exploration of problems concerning the corrections system suggested that 400 years of slavery and segregation created a Black cultural system that understandably put distance between itself and the legal system. We pointed out that a self-help system evolved and that street justice in a self-help cultural system may be one of the causes for disproportionate incarceration of black citizens and suggested that a program called “Probation Sponsorship” might help bridge the cultural divide. The division between the black culture and the legal system also has important implications for economic development in predominantly black areas, such as Alabama’s Black Belt. These implications have not been carefully considered and it is time that we take a look.
by Dale | Sep 21, 2020 | Law and Race
In several essays on this website, I deal with issues of law and race from a different and unique point of view. In the background of all of the articles is consideration of differing cultural systems. I note repeatedly that the 400 years of slavery and segregation that existed in the United States produced a unique black culture. One aspect of that culture has been the strained relationship between the black culture and the legal system.
The legal system obviously originated in Europe-not Africa. African-Americans are not Africans, they are Americans. African-American culture is a unique product that has been developing for over 400 years. The cultural difference is not embedded in genes that originated in Africa: it is a product of cultural evolution.
In another essay, I point out the possible adverse impact of the black cultural heritage on the possibilities for economic development. Law is a pre-requisite for economics, and full participation in and support for the legal system is a pre-requisite to economic development. But historically, the best interest of the black culture was not served by willing participation in and support of the legal system. Therefore, there is, and has always been, a distance between the legal system and the Black culture. In our Black belt counties that distancing from law may be a built-in cultural impediment to economic development because of continued lack of confidence in law. The legal system is not the primary way conflicts are solved in Black culture.
Differences in culture and cultural institutions came to the forefront of the Civil Rights Movement. The legal system, in many instances, particularly in the South, actually supported segregation, and provided separate institutions. Segregation was an obvious barrier to full participation of blacks in the good-life of the culture of America. In Brown v. Topeka, the Supreme Court of the United States recognized that separate is not equal. The application of a concept of equality to various social aspects of complex of human cultural systems is very problematic. Equality is not nearly as exact or easy to identify as it might sound when applied to matters social. The Brown decision recognized that separate is not equal. It would have done well to recognize, however, that separate is still separate. I remember extremely well 7th grade Civics at Shorter High School, a segregated 12 year school in the 1950’s. We were introduced to the idea that America is the “great Melting Pot”. What that was supposed to mean is that people from Europe and all parts of the world coming into America were blended into the complex American culture. The Statue of Liberty was the iconic image. But that was not the point of entry for slaves. While the “melting pot” that had worked reasonably well for certain Europeans, it did not work universally. Nevertheless, that was a part of the mentality of that era. Another part of the mentality of the era was that proper education can solve everything. Those questionable beliefs were deeply embedded in the answers to the problems of segregation presented in the Civil Rights movement and Voting Rights Act.
The difference between desegregation (i.e. elimination of racial legal barriers) to integration (i.e. assimilation of the culture) is a subtle difference. I learned that difference from the late Professor Frank Toland of Tuskegee University, while working with him on the Foundations in Pluralism project that I discuss elsewhere on this website. The primary objective of the Civil Rights movement, according to Toland, should have been desegregation: elimination of the segregated bathrooms, segregated water fountains, segregated eating establishments, etc. Integration is a much more complicated matter, on which opinions in the black culture itself are much more divided, as evidenced but the works of Marcus Garvey, Malcolm X, Countee Cullen, and many others.
by Dale | Sep 20, 2020 | Law and Race
Several of the essays on this website are devoted to concerns about the impact of cultural differences on the effectiveness of law. Those essays recognize that the legal system as it existed, particularly in the South, was a factor in our creating different cultural systems based on race. Unfortunately, the legal system itself discouraged, or did not even allow, black participation. The exclusion of blacks from the legal system and mistreatment of blacks by the system resulted in lack of support for the legal system in the black culture. The legal system itself necessitated totally different cultural and institutional structures and reinforced the cultural differences. The segregated institutions included schools, businesses, churches and other community organizations. We point out in other essays that because a working legal system is a prerequisite for economics, the cultural differences can have an adverse impact on economic development.
Desegregation did not eliminate the cultural differences. The remedies provided by the Voting Rights Act created a quilt pattern of segregation in which predominantly black counties came to be governed by the cultural system that evolved because of slavery and segregation. There was continuity of the cultural institutions that existed during segregation in those counties, and large scale elimination of influence of the white culture. This development did not usher the black population into the good life of America. Nowhere is the impact greater than in the court system itself. The differences that exist between predominantly black counties in Alabama and predominantly white counties with the regard to the prospects of jury verdicts in trials are extremely significant.
Forum shopping—choosing the county in which to file litigation-
has become a way of life with the legal profession. A docket call in rural Macon County almost looks like a meeting of Alabama Bar Association. Litigation that can be filed in Macon, Bullock, and Lowndes counties has a far greater prospect of success for the plaintiff than if filed in Lee, Elmore, or Autauga counties. These significant differences are very difficult to justify in a country that prides itself on providing equal justice for all. To again paraphrase the French enlightenment philosopher Pascal, it is a strange justice that changes with the crossing of a river (or traveling a few miles on the interstate).
As a practical matter, modern means of transportation and communication probably would justify redrawing county lines and eliminating a large number of counties. That action could promote efficiency and save a lot of money. It would likely be politically impossible to revamp the configuration of counties, but that drastic step might not be necessary to solve the problem described here. It would be relatively simple to make much larger districts from which jury panels are chosen. Once the legal framework has been established, a computer program would do the rest. Modern transportation and communication could make the task easy. The State could be divided into ten or fifteen judicial districts and jury panels could be drawn from the entire district. District lines could be drawn to create proportional racial make-up. Jury panels, convened in the present court houses from such districts would provide a much more uniform jury for every case—whether civil of criminal. That solution would be much more effective than the present system of evaluating every jury based on the Batson Case which requires race neutral reasons for jury strikes.
Revamping the system of jury selection for uniform results in jury trials is important, in and of itself. It would help assure equal justice for all. However, the secondary effects would likely be even more important. As previously mentioned the adverse economic impact of lack of uniformity in application of the law is significant. Law is a prerequisite of economics. By taking steps to assure a more uniformity in the black/white ratio on juries throughout the state could contribute materially to economic development in the state. It could help promote economic development in every county.
by Dale | Sep 19, 2020 | Economics of Law Practice
Everyone probably knows that law and economics are closely tied. Both law and economics are social systems that arise within cultures. Every member of society is affected by participates in both systems. It might be more accurate to say that both law and economics are sub-systems within the total framework of culture. Both, like religion, are faith dependent. They are not produced by science and technology, but exist because the people believe in them and support them.
The two systems – law and economics – are supported by differing motivational forces, and to that extent, are distinguishable, and exist independently of each other as cultural systems. Human motivation is complex. Adam Smith assigned “enlightened self-interest” as the motivational basis for his atomistic theory of economics. Somewhat similarly, Thomas Hobbes believed that “self-preservation” is the first law of nature. Needless to say, the motivational forces that support both economics and law are far more complex than either Smith or Hobbes suggested, but their suggestion helps one to understand the role of the elemental motivational forces that energize the systems. Ultimately, both systems are energized by collective motivational forces—the interaction of individual motivational forces. An oversimplified explanation of how the motives that support the two systems differ, is that individual need for security motivates law, while individual need for beneficial material exchanges motivates economics.
Regardless of the similarities or differences of the underlying motivational forces, the organization of these systems evolved quite independently. Economics, beginning with the kind of reasoning that Adam Smith expressed in The Wealth of Nations arises in the marketplace. In western society we strongly believe that a free market economy is the most efficient means of satisfying the greatest good for the greatest number – a concept that Jeremy Bentham and other Utilitarians helped popularize. Law, on the contrary, has its institutional home in the governmental system—not in the free market. Human motive force is a pre-requisite for the effectiveness of law, as I asserted in my 1994 book, Conscience and Command, but the enforcement of law in the modern world is vested in governmental entities. For law to be really effective, government must try to capture the normative force that arises in society to energize law. Morality, of course, is not a governmental function, but the same normative motive force that energizes law arises in society and is the motivational basis for morality, independent of government.
In other essays, I allude to the connections between law and economics. In the series of articles dealing with family law, I described the effects of the introduction conflicting of economic motive forces into the family. As important as child support and spousal support are, their impact in the legal system introduces conflicting economic motivation that can lead to the destruction of the important emotional aspects of family. The economic conflict creates tensions that are not good for children. Economics forces are also a strong factor in criminal justice. Economically, the people who most often become involved in crime are those who do not have strong talents that enable them to provide an economic contribution to society for which they are compensated.
In the series of essays that examine race and culture, I pointed out that four hundred years of slavery and segregation did not inspire a black culture to strongly endorse the existing legal system. I pointed out that the absence of a strong working system of law, economic development is difficult, and these difficulties plague Alabama’s Black Belt counties. Economic development depends on law: the ability to enforce property rights and contracts.
The interplay between law and economics and the impact of the economics of law practice on the legal systems are fertile areas for discussion. In the current series of essays found I will discuss how the economics of law practice tend to shape the legal system itself and the problems with which it can deal. I will discuss the economic motives of corporate America and its relationship to defense firms, who are normally paid on hourly rate, as well as the economics of law practice for Plaintiff’s attorneys who are usually paid on a contingency fee basis. Because both Plaintiffs and defendants are operating in the same system, these economic forces interact with profound effect on the civil justice system. The system matches plaintiff’s lawyers who are compensated on a contingency basis against defense lawyers computed an hourly rate basis. Economics also has a profound effect on the criminal justice system, but this series of essays deals mainly with civil justice.
I discuss the pervasive presence and influence of liability insurance. It is time for the people who operate the legal system to examine the fact that insurance spreads the risk of loss that is involved in litigation and that we are not dealing with insurance in the legal system with sound policy. For instance, automobile liability insurance is required by law, and everyone—jurors included—knows that, but the law still fails to take that knowledge into account. I discuss the implications of all of these economic issues for the legal system in this series of essays. The economics of law practice, ironically, renders the legal system less efficient for conflict resolution, often actually creating conflict.
by Dale | Sep 18, 2020 | Economics of Law Practice
In essay 1.14 that introduced the current series dealing with law, economics and the economics of law practice. Several subsequent essays in this series and deal with the economics of law practice. But to understand some of the problems associated with the economics of law practice it is first necessary I explain and readers understand certain dynamics about the nature of law.
In 1913, an East European legal philosopher named Eugen Ehrlich, in his book Fundamental Principles of the Sociology of Law, made the important point that there are two kinds of law. First there is what he called the rules of conduct. Rules of conduct actually regulate the daily activities of everyone in society in the ordinary course of their affairs. They blend imperceptibly with morality, customs, and other normative forces. It is very important that everyone follow the rules of conduct, that they keep their promises, that they avoid harming others, and do their duty. In order for the world to survive and move forward, everyone must actually do more than is required by duty and engage in meaningful activities. Everyone must follow the rules in order for society to function. Courts and government are and always should be in the background, not the forefront, of these rules. Rules of conduct have much of their origin in morality and customs, which arise naturally in society.
Secondly, there are the rules of decision. These are the rules with which courts and lawyers are concerned when it becomes necessary to resolve conflicts. Conflicts are often couched in terms of some violation of the rules of conduct. The law as used in the context of conflict resolution could be either a statute that has been enacted by a legislative body or precedents previously declared by a court. If the rules used to resolve a conflict have not been clearly articulated in statute or in a previously decided case, sometimes courts must look to the more nebulous rules of conduct and actually articulate the principle upon which the conflict is to be resolved. This is the basis for case law.
Unfortunately, in the United States, law schools and legal philosophers during the past 150 years have over-emphasized the importance of the rules of decision and underestimated the importance of the rules of conduct. The Eugen Ehrlich book had little impact if any in the development of legal philosophy in the United States. After the Civil War, in support of the industrial revolution, courts and the legal profession were much more aggressive about the role of the rules of decision. The result of this emphasis on the rules of decisions over the rules of conduct was the highly questionable conclusion that courts “make” law. Oliver Wendell Holmes, Jr., a Harvard professor and eventually Chief Justice of the United States Supreme Court stridently declared, “Law is what a court does.” Needless to say, he did not distinguish rules of conduct from rules of decision. Even more perniciously, he went so far as to declare that law determines what a bad man can get away with, which totally ignores the role of rules of conduct. Based on this faulty reasoning, during the past 100 years, courts have often assumed that it is their function to make law.
What does all of this have to do with the economics of law practice? Lawyers make money by dealing with the rules of decision—not the rules of conduct. Theoretically the legal system exists to resolve conflicts. Unfortunately, the economic motives of the legal profession do not necessarily promote the most efficient resolution of conflicts. The system is nurtured by conflict and prospers from it. An old joke in the legal profession is “Do me a favor; sue my client.” In the introductory essay, I pointed out that plaintiff’s lawyers are usually paid on a contingent fee basis. Defense lawyers are usually paid on an hourly rate basis. It requires little thought to see how such a system actually leads to more conflict rather than conflict resolution.
In the next essay in this series we will deal with the transition of law from being primarily a profession to being primarily operation of a business. Unfortunately, the more effective the business of law practice becomes, the more ineffective it is in achieving the optimal conflict resolution for the benefit of all of society. The successful operation of the legal business creates a need for conflict in order to satisfy the economic needs of the legal business. Hence the atrocious, unprofessional legal ads on TV and billboards.
When law—the rules of conduct—actually work; they prevent conflict. But the absence of conflict does not support the business of law practice.
by Dale | Sep 17, 2020 | Judicial Education
I. BACKGROUND FOR THE PRESENT PROPOSAL
At the August meeting of the Executive Committee of the National Conference of State Trial Judges, the Education Committee was asked to look into the matter of standards for judicial education. As Vice Chair of the Education Committee, and with the concurrence of Chairman Sam Desimone, I undertook to gather information concerning judicial education standards. There are presently extant two sets of standards. The first is a set of standards that was adopted by our own Conference and the ABA House of Delegates at the 1982 Annual Meeting. The second is a set of standards promulgated by the National Association of State Judicial Educators, which was passed by the Board of Directors of that organization in December of 1991. I am furnishing copies of those documents and requesting that they be distributed to the committee along with this proposal.
My inquiry into the matter of standards, which included discussion with leadership at the National Judicial College and National Council of Juvenile and Family Court Judges, leads me to believe that the problem confronting judicial education is more fundamental than a mere definition of standards. In 1992 a task force of the American Bar Association produced a study entitled Legal Education and Professional Development–An Educational Continuum. The study is often referred to as the McCrate study. Central to the McCrate study is a definition of the skills and values required for success in the practice of law. The study explored the gap that exists between the education provided by law schools and the actual knowledge and training that is required for the successful practice of law. The study concluded that the educational enterprise is a continuing journey in which law schools, the profession, and the institutions of continuing legal education must all participate. Unquestionably, the legal education provided by law schools, standing alone, does not adequately prepare the prospective lawyer.
Judges, in turn, are drawn from the ranks of lawyers. Experience in the practice of law is considered desirable but is not a prerequisite to becoming a judge. We assume that the education provided by law school, usually combined with experience as a practicing attorney, somehow produces the skills and values required for successful judging. As every experienced judge knows, nothing could be further from the truth. The skills and values required of judges are quite different from those required of the practicing legal profession.
What we need at this time is a comprehensive study of judicial education. The object of the study should be to define as clearly as possible the skills and values that are required for successful judging. The study should entail, as a minimum, the following:
1) An examination of the history of judicial education in the United States;
2) A comparative study of judicial education in other industrial nations;
3) A description of the skills and values required of judges;
4) A survey of existing resources for judicial education;
5) An analysis of the data produced;
6) Recommendations.
The result should be a definitive study which can be published as a book similar to the McCrate study. The book will be very useful to every program of judicial education. It will be a vehicle which can be reviewed by new judges to acquaint them with the educational requirements of the judicial profession.
I. The Proposed Study
The following is an outline of the proposed study, with a brief description of each section:
Section I:
The History of Judicial Education
If we are to understand the present status of judicial education, we must understand the presently-existing institutional structures of judicial education. A study of the history of judicial education will enable us to better understand both the present infrastructure and the possible inadequacies of the present system. A description of the history of judicial education will include an examination of the history of the National Judicial College, the National Council of Juvenile and Family Court Judges, the National Association of Judicial Educators, and at least a selective description of leading developments in state efforts at judicial education.
Section II:
Comparative Judicial Education
There are systems of judicial education in the industrialized world that differ quite markedly from ours. In France, there is a three-year curriculum especially for judges. In Japan, there is a totally different curriculum depending on whether a person intends to enter the legal profession or the judicial profession. The comparison of judicial education should include an examination of the methods of judicial education used in other judicial systems derived from the English model as well as a sampling of those used in the continental civil law systems. The comparison should be more than a surface description. It should include a description of the actual contents of judicial education in the various systems.
Section III:
Judicial Skills and Values
Central to the entire study should be an attempt to describe the skills and values required of judges. What educational programs are necessary in order to successfully move from the practice of law into the judicial profession? The McCrate study will be an important point of reference in this effort. One approach will be an attempt to compare the skills and values of judges to those required of lawyers. I have extracted from the McCrate study concise statements of the skills and values of lawyers in order to demonstrate how a comparison might work. A copy is attached. The idea, of course, is to use the McCrate study as a foundation and to develop a parallel statement of skills and values for judges.
More than a simple comparison to the McCrate study will be required, however. There will need to be at least a cursory reexamination of the work of law schools as preparation for the work of judges. In most law schools, jurisprudence is an elective. Lawyers can take a position based on natural law one day and on legal positivism the next, depending on the interest of the client. However, if judges fail to understand the nature of law, the chances of successfully managing a system of law may be greatly impaired. Jurisprudence takes on a much more important role in the background training of judges.
Judges have the front-line responsibility for management of the judicial system. Lawyers attempt to use the judicial system to promote the interests of their clients. Lawyers also utilize the judicial system as a part of their means of livelihood. Thus, even if “the law” with which judges and lawyers deal is the same, their motives for dealing with it are vastly different. Judges must manage the system not merely as an extension of the economics of law practice, but must take into account the needs and interests of the entire society.
Section IV:
A Survey of Resources for Judicial Education
Obviously, any meaningful examination of judicial education will entail a careful survey of the resources that are presently available for judicial education. Such a study will involve both an examination of the institutions that provide judicial education and of curricula and course material that is presently available. A substantial amount of work of this type has already been done by The Judicial Education Reference, Information and Technical Transfer Project, commonly known as the JERITT project. The JERITT project has been funded by SJI and is an important national clearing house for information on continuing judicial education for judges, other judicial officers, and court personnel. The work for this particular section of the study can probably be developed from information that is already available through JERITT.
Section V:
Analysis
After developing the foregoing information, the information will need analysis. Perhaps some of the fundamental questions will be the following:
1) Do the presently existing judicial education organizations and curricula produce the skills and values required for judges?
2) Do the present judicial education programs successfully enable the transition from practice to the bench?
3) Does the present system of judicial education, with its foundation in legal education and law practice, so entrench judges in lawyer-thinking and the economics of law practice that the operation of the judiciary is less than optimal?
4) Does the present system of judicial education align judges too closely with the interests of the legal profession?
5) What steps are needed to move the judicial profession from where it is to where it needs to be?
6) Is there an adequate level of participation by judges in continuing judicial education?
7) In what ways can we provide incentives for judges to participate more fully in judicial education?
8) Is it totally impractical to include advanced judicial education as a prerequisite for judicial selection? Is there a way to make advancement in the profession (financially or otherwise) dependent upon participation in judicial education programs?
9) How can we make judicial education both mandatory and effective?
10) Others. (Of course, the foregoing questions are merely the ones that spring to mind before information has been fully developed. They may be nothing more than personal concerns of the author of this proposal. No doubt, other questions and a comprehensive framework for analysis will emerge during the course of the study.)
Section VI
Recommendations
Now is hardly the time to begin to suggest the recommendations that will result from the study. However, there are some issues that we can reasonably anticipate.
1) Is there a need for accreditation of the various programs of judicial education? If so, who should be the accrediting agency? Should the accrediting agency not be the lawyer-dominated American Bar Association?
2) Is there a need for the expansion of masters degree programs? Should they be offered at multiple locations? Should state programs be upgraded and integrated into masters degree programs?
3) Is there a need for a national clearing house for continuing judicial education curricula? Should it be the National Judicial College.
III. Funding
The study will require funding. I recommend that we first approach State Justice Institute for funding. My preliminary contacts with SJI have been encouraging. This study seems to me to be ideally suited to SJI’s purposes. The first step would be the submission of a concept paper, and it should be fairly easy to adapt this proposal to that purpose. If funding is not available through SJI, there may be foundations that could grasp the importance of this proposal, and provide funding.
IV. Coordination
This study must be carefully coordinated with other projects, such as the proposed National Symposium on the Future of Judicial Education. However, after discussing the proposed study with Karen Thorson, who helped prepare the concept paper for that event, I am clear that the there is no conflict between the two concepts. They will tend to support each other. Attached is a letter from Ms. Thorson of the National Association of State Judicial Educators, in which she expresses the same view. There is also a project underway sponsored by the National Association of Court Managers which will need to be considered in connection with this proposal.
Representatives of the National Judicial College and the National Council of Juvenile and Family Court Judges have expressed a strong interest in this study, and feel that the time is right for such a study. Some of the ideas expressed here are derived from conversations with those representatives. A preliminary question will be who should actually handle the grant for this project. Should we administer it within our own organization, or should it be handled by the National Judicial College or some other agency?
For this study to be successful, we will need to identify and contact every state, national, and private group interested in judicial education. The active support of all groups interested in judicial education will be needed if the study is to gain the consensus that will be needed for it to be effective. But while all interested groups must have the opportunity to offer input, it will be important for judges to draw heavily on their knowledge and experience, and to have a primary role in the study.
V. Structure for the Work
The implementation of this proposal will likely require two or three years. We will need to create a committee structure with enough continuity to maintain motivation and focus to see the project through to completion. I believe that it will be appropriate to commission the Education Committee to begin the work, but some arrangement for continuity needs to be put in place. The leadership for the work does not need to change in the middle of the project.
by Dale | Sep 17, 2020 | Judicial Education
New Judges Orientation Session
April 22, 1997
Judicial Education v. Legal Education
Thoughtful observers have long realized that legal education is not adequate judicial education. As a matter of fact, thorough indoctrination in legal thinking can lead judges away from the reality of law as embedded in society. The great modern legal philosopher, Ronald Dworkin, has dubbed judges and lawyers “the interpretive community.” According to Dworkin, law does not happen until the “interpretive moment.” Unfortunately, the texts of our interpretations can become far removed from the reality of the social structure which they supposedly represent. In effect, law, solely in the possession of lawyers and judges can get out of touch with reality. It can serve the needs of the interpretive community rather than the larger community.
Not all modern states think that education to be a lawyer is adequate preparation for the judicial profession. In France, three years of study are required in preparation for judicial office. In Japan, the preparation for Judicial office is a totally different curriculum from the preparation required of lawyers. Our purely legal background, and collegiality with lawyers, suggests that we may be too deeply embedded in the thinking of lawyers and too closely associated with concerns that are peculiar to the profession, such as the economics of law practice. It is our task, separate and apart from that of lawyers and the legal profession, to make certain that law does not depart from the deeply held beliefs, hopes, needs and aspirations of the people as a whole. Only when we are totally committed to this responsibility is the Holmes dictum that law is a reasonable prediction of what a court will do in fact safe in our hands.
Despite the fact that most people recognize that legal education is not adequate judicial education, there is no agreement as to what else is necessary for judges by way of education. Suggestions include everything from anthropology to zoology, and all of those suggestions can be helpful to judges. What are the areas in which judicial education differs from legal education?
Jurisprudence
Jurisprudence is an elective for lawyers but is absolutely essential for judges. It is the foundation of sound policy in the law. As you all know, there is very little emphasis on jurisprudence in legal education. Jurisprudence–the philosophy of law–is generally treated as an elective in law schools and is placed in line behind the practical knowledge required to practice law. This is entirely appropriate for legal education. The goal of legal education is to teach legal thinking. It is not to teach the nature of law.
The schizophrenic division between natural law and legal positivism is deeply imbedded in our legal culture. Our nation was born “on the cusps” of the transition from natural law to legal positivism. The Declaration of Independence, with its assertions about the inalienable rights with which we a created, is pure natural law, while the Preamble to the Constitution, in which “we, the people” declared our intentions, is pure positivism. Attorneys can take a position based on legal positivism one day and a position based on natural law the next–depending on the need of the client.
As for judges, however, jurisprudence cannot be so easily tossed aside. Judges must be firmly grounded in jurisprudence. We must understand the nature of law. Unless we know what we are dealing with, the chances of our dealing with it successfully are slim.
Now, before I say what I am about to say, let me make it clear that I am not suggesting that the function of courts is to “make” policy. But there is enough validity to natural law theory to suggest that there are policies that courts can find and which should direct the decision-making process. One of these policies is that we should carefully recognize the legislature as the primary source of new law and changes in old law. Any other policy plunges the judiciary into a jungle of politics and has an adverse effect on the legitimation of our work.
While legal philosophy may not provide us with cut-and-dry answers all the time, a lack of knowledge of legal philosophy is even more calamitous. We need to know what is meant by the term natural law. We need to know the history and development of the natural law theory. It is also important for us to know the history and development of legal positivism. Natural law and legal positivism have dominated the field of jurisprudence in the Twentieth Century.
But now, as we move into the post-modern world, it is necessary that we as judges extend beyond the debate between natural law and legal positivism. We must come to grips with newer explanations of the behavior that comes under the heading of “law,” and we must understand the reasons for such behavior. Natural law, which grew out of the age of faith, and legal positivism, which came from the period of enlightenment, are probably inadequate in today’s world. Those theories come from the “old schools” of thought. We must consider a new theory which includes the power of narrative, the power of received truth, the consideration of motive, the inadequacy of science, and the similarity of what anthropologists call mythological thinking. This is where judicial education leaves legal education in its wake. One of the basic and fundamental aims of judicial education should be to instill in every judge an adequate knowledge of the nature of law.
Judges must also understand the broad sweep of the development of law and the legal profession. Without minimizing the importance of early legal history, I will use the twentieth century as an example. The twentieth century was ushered in on a note that some scholars refer to as legal activism, although we might think it quite conservative. The U.S. Supreme Court was fond of judicial review and striking down legislation, often on the basis of violation of the right to contract. Often procedural niceties guided the course of litigation. Cases were often decided on the basis of the pleadings.
In a famous speech to the American Bar Association in 1912, Roscoe Pound, future Dean of the Harvard Law School, denounced the preeminence of procedure over substance. That speech may very well have been the beginning point of the fervor for discovery, modern rules of pleading and the other procedural changes that have occurred since then. As you know, we now have notice pleadings.
But those of us who have been around a while realize that the combination of notice pleadings with a general verdict eliminates the necessity for close legal analysis that once was required. It may be that in many instances a used car dealer with a good sense of gab can do about as good a job of litigating as a lawyer. In fact, I had a used car dealer who did an excellent job of advocacy in my court in one case. In our effort to have every case turn on substantive rules of law rather than procedure, we have come to the ironic result that only procedure–and not very good procedure–remains. This result impacts heavily on the ability of the rule of law to govern.
Broad Knowledge of Law
Of course, we judges must still know “the law,” and that is a basic tenet of continuing judicial education. While knowledge of the specific rules of law is not an adequate preparation for judging, it is certainly a prerequisite. But while lawyers can work themselves into a specialty niche, often judges cannot. Our knowledge of the legal system must be quite broad. I’m not at all sure that specialization is even desirable for judges. There is something important about judges who deal with criminal law being exposed to the breakdown of the family in the domestic arena. We need an understanding of the relationship between family breakdown and crime.
Even though the need for an understanding of jurisprudence is the primary factor that distinguishes legal education from judicial education, judges have very practical needs for knowledge of law. From the beginning, a judge should be exposed to an intense review of all areas of substantive and procedural law. That is the purpose of the event in which you are now engaged. The National Judicial College also offers a four-week course in general jurisdiction that provides a good review of the basics of law.
From time to time, judges should receive updates on issues of substantive and procedural law. Whenever new legislation develops, or when there are new developments in the law, judges should be kept up-to-date. Technical proficiency must be maintained at all times.
Beyond the Basics
Beyond the mechanics–the “nuts-and-bolts” of judging–lies other fields with which judges should be familiar. A judge must have a very broad knowledge of culture and must master the thought processes and motive forces that engender human behavior. While a breadth of knowledge is valuable to a lawyer, it is not nearly as essential as for a judge. I want to just mention a few areas here, and then I’ll go into a little more detail with each. Of course, this is not an all-inclusive list; and it would be impossible for me to talk today about all areas of thought with which judges must become familiar. But here’s a few areas for you to consider: (1) cognitive sciences; (2) literature; (3) religion and theology; (4) history; (5) economics; and (6) pluralism.
Now, let me go back and touch on each of these just a little–but keep in mind that this is just the tip of the iceberg, so to speak. Over the years, I have spent several weeks in formal study of each of these topics, not to mention the informal reading that I have done.
Why are Cognitive Sciences important to us? Law is closely related to the cognitive sciences–psychology, sociology, and anthropology. I doubt that anyone can truly understand jurisprudence without a knowledge of these important sciences. We must have a thorough working knowledge of what makes people and society “tick.” It is much better for us to understand these areas the same way that experts do, than for us to make up our own theories. Because of the nature of our work, we will deal with the substance of these sciences, whether we have the knowledge or not.
Why is Literature important to us? The great themes of our culture that enable us to distinguish right from wrong are embedded in the great narratives of literature. The narratives of literature are the “DNA chains” that replicate the culture and maintain the values which sustain the culture. Law is embedded in these narratives. There is a great body of knowledge shared and passed on by the culture which is here when we are born, and will remain alive when we die. Law lives in that realm, and we must attempt to acquire a broad degree of cultural literacy.
Why is Religion and Theology important to us? Law has a common origin with religion and theology, and law has been historically affected by those powerful influences. So, we, as judges, should be well-versed in those subjects. What we as a people believe impacts on our actions. If it doesn’t then it probably is not what we really believe. Separation of church and state is imminently sound. Separation of law from our system of beliefs is unthinkable. Science has no way of authenticating normative force, yet normative force is essential to our corporate existence.
Why is history important to us? Of course, we all know that a working knowledge of history is helpful to an understanding of the legal system. The system has a context, and evolved in historically specific events. We need to know not only how the law has developed through the years, but we should also be aware of some of the reasons why it developed the way it did.
Why do we need to know about economics? Judge Posner, the great guru of law and economics, has suggested that economics is the ghost in the machine that creates the so-called ideals with which the interpretive community of lawyers and judges deal. Every judge should have a basic understanding of the interface between law and economics. Care must be exercised so that the judge does not fall prey to the Posnerian assertion that economics is the predominant force in law. That theory is just as dangerous as communism, which was also based on economic theory. We must come to an understanding that the human motive forces which cause people to do the activities that amount to law are the same forces that create and drive an economic system. Human motive, not economics, drives the system, but there is a great similarity and overlap between the two. One of the most important challenges facing an independent judiciary is appropriate resistance to the domination of economic values.
Why do we need to know about pluralism? First, what do I mean by “pluralism?” When there is pluralism, members of diverse ethnic, racial, religious, or social groups maintain and develop their traditional culture or special interest within the confines of a common civilization. We clearly have pluralism in our culture. Sometimes what I a calling pluralism is called multiculturalism. In our pluralistic world, it is entirely possible for different groups to hold differing visions of reality. These views can be totally disconnected from each other. Do you really believe that when you use the word “justice” you mean exactly the same thing that a preacher or civil rights activist means? Judges must become familiar with significant differences in belief patterns arising along cultural and sub-cultural lines. It is the Tower of Babel problem. The groups talk past each other. For instance, here in Alabama, as well as throughout the south, knowledge of black history and black literature is an essential tool for judges who are attempting to deal with the continuing thorny problems arising from racial differences.
Independent Study: the Goal of Judicial Education
Of course, we cannot achieve education in all these areas–and the others that you could probably add–without commitment and perseverance. We must take it on ourselves to read and study independently. I encourage you to intentionally develop a broad based reading program. Attached to the handout is a broad based bibliography listing books that I have found helpful.
The Alabama Judicial College periodically offers seminars in which we have an opportunity to study together. You should take full advantage of these opportunities. At the annual gatherings, there are usually updates, as well is intensive consideration of special topics. Plan now to attend these sessions, and to fully participate in the certificate program. Let me caution you, however, that the short programs that we can offer are no substitute for independent study, and at best can only point you in the right direction.
There are also occasionally intense treatments of broader topics in more detail, and I think that you will find these courses very beneficial. I’ll mention a few of them here: At the University of Montevallo, we have studied law and literature; at Tuskegee University, we have studied black history and literature. We have had special courses on case management and sentencing. Many of these courses encourage judges to read extensively in the fields under consideration. Reading lists are provided, and the books are made available to the judges. All we have to do in preparation for the programs is find time to sit down and read. I urge you to take advantage of each and every seminar of this type offered by the Judicial College. The programs are stimulating to the mind, and they it give a short break from the every-day court routine.
Be alert for opportunities for study outside the State. I recently responded to an invitation from Kansas University and received full scholarship to attend an Institute on Economics. The invitation went to all Alabama Judges, but as far as I know, I was the only one to respond. I also received a scholarship for an Institute for Faculty Excellence in Judicial Education sponsored by the National Council of Family and Juvenile Court Judges. Often by being alert you can take advantage of these opportunities. I think it becomes easier, once you have displayed a genuine interest in judicial education.
Sound judicial education is probably the only way out of some of the difficulties now confronting us as judges, and confronting the society that we serve. We should set the pace. Education is the way to personal growth, and there is no more exciting or rewarding experience than the profession that we share. The burdens of the office can be heavy, but a sound understanding of what we are trying to accomplish, and the ways and means to do it provides deeply meaningful experience.
Yes, judicial education is different from legal education. Judicial education is much more complex than legal education. We must realize that a thorough knowledge of jurisprudence, as well as a thorough knowledge of practical applications, is essential to us. We are concerned about our image. A positive image can only occur if we know what we are doing. Thorough knowledge of jurisprudence will not only strengthen our ability to perform the duties of our office. It will enable us to maintain the image that is essential to the authority of the office. The job is not nearly as difficult and frustrating if we know what we are doing.
Example: Case Management
You will be exposed to theories of case management during the course of this training. Case management presents a good opportunity to demonstrate the force of critical thinking. Case management does not necessarily mean trying cases. There’s more than one way to manage cases. There are principles that you can master that will help you to dispose of cases rapidly and efficiently. The emphasis on case management often uses the term reducing delay, or words of similar import. Speed is assumed to be important. Justice delayed is justice denied, and all that stuff. The people here will tell you how important that is, and we tend to measure success for the courts in those terms. I am a firm believer in case management, and feel that we should intentionally control the flow of cases in the courts. But what do you think would happen if, today, we completely cleared the dockets of our courts of all the existing cases? Before the Clerk’s Offices open tomorrow, attorneys will be preparing the necessary paperwork to file more cases; and before we know it, our dockets are over-flowing again! They would have to do this to stay in business. Case management that ignores the economics of law practice misses a very central point.
Don’t dismiss Judge Posner too quickly. Case management is impacted by what I like to call the economics of law practice. We are not merely managing the day-to-day operations of a bureaucracy; we are managing the rules that provide the basic framework for our society. So, economics is an area in which we need to gain as much knowledge as we possibly can.
Closing Summary
In summary, let me say that judicial education should include the following:
l To make certain that each new judge is fully and adequately informed on the substantive and procedural principles of law;
l To inculcate within the judge a working proficiency in broader areas of knowledge, such as the social sciences, economics, philosophy, religion, history (including black history), and literature;
l To emphasize the importance of the development of an understanding of the philosophy of law;
l To provide special programs to keep judges advised of major changes and developments in law–such as new procedural or evidence rules, or new legislation.
I hope that you will find your role as judge deeply rewarding. I believe that a commitment to Judicial Education will enhance that possibility.
by Dale | Sep 17, 2020 | Foundations in Pluralism
President Bill Clinton recently called for a greater dialogue about the problems of racism. His call underscores the reality that the problems associated with racial division have not been ended by the efforts of Civil-Rights era legislation and court decisions. The President makes a very valid point in his call for dialogue. However, finding ways to engage in meaningful discussion is not as easy as one might think. Often, attempts to discuss racial division simply become the opportunities for venting race-based feelings. The problems associated with racial division are charged with emotion. Persons who attend meetings that are called for the express purpose of discussing racial attitudes often leave the meeting more entrenched than ever in their deeply held feelings.
The judicial branch of government is not immune to the problems associated with racial division. The problems associated with racial division are recognized in the operation of the judicial branch of government. Despite the fact that judges are trained to deal fairly with all races and strive diligently to overcome the impact of society’s racial division, there is still great danger that racial division makes itself felt in our work. Daily, we deal with Batson motions in an attempt to ward off the results of racial division in the selection of jurors and in the ultimate decisions of juries. Nevertheless, there is the haunting specter of the results in the O. J. Simpson trials. We can easily rationalize the acquittal in the criminal case with the liability in the civil case, based on the differing burdens of proof. Nevertheless, in our heart-of-hearts, we ask ourselves whether the rational explanation of differences in burden of proof caused the difference in results or whether the difference was really the racial makeup of the juries or other factors not related to legal theory, such as the performance of lawyers. Even more significant evidence of the racial division in our society is presented by the public’s perception of the verdict in the criminal prosecution of O. J. Simpson. Despite the fact that all members of the public had heard and seen precisely the same media information concerning the trial, the public divided along racial lines in its reaction to the verdict.
Clearly, the need for meaningful educational ventures and forums that will deal effectively with the problem of racial division is very great. The President’s call for dialogue on racial division is justified and timely. But how can we structure discussions in such a way that they are meaningful? How can we structure discussions in such a way that they will actually cause us to change our attitudes about race and racial division? Many judges in Alabama believe that the Foundations in Pluralism project offers an excellent opportunity to deal with these problems. We feel that Foundations in Pluralism is an approach that makes meaningful discussions possible.
What is the Foundations in Pluralism project? In October of 1995, a group of twenty Alabama judges gathered on the campus of Tuskegee University. The approach of the group was simple. The judges read Up From Slavery by Booker T. Washington, The Souls of Black Folk by W.E.B. Dubois, Barn Burning by William Faulkner, and Sonny’s Blues by James Baldwin. The educational method was primarily discussion. In a three-day event, a racially and gender mixed group of judges, under the leadership of experienced faculty members, engaged in detailed discussion of these literary and historical works.
In November of 1996, thirty Alabama judges again convened at Tuskegee for a second three-day event in the Foundations in Pluralism series. Some of them had attended the first event in 1995. This time, the judges read The Autobiography of Malcolm X and selections from A Testament of Hope, which is a collection of the writings of Dr. Martin Luther King, Jr.
Enrollment in these programs was limited in both instances so that every judge who attended could fully participate in the discussions. The absence of recording devices minimized the risk that anyone would be either hesitant to participate or over-zealous in participation.
There were a total of four faculty members. Three of them, Dr. Carl Marbury, Dr. Frank Toland, and Dr. Mark Graney, are faculty members at Tuskegee University. The fourth, Mrs. Kathleen Cleaver, is a professor of law at Cardozo School of Law in New York. All faculty members have had substantial experience in teaching black studies. Tuskegee University is one of the premiere historically black universities.
So, what is important about the Foundations in Pluralism project? How does the approach used in the Foundations in Pluralism project differ from other attempts to discuss the problems associated with racial division? This approach invites the participating judges to consider and discuss specific texts and historical events, rather than attempting to pinpoint issues. The issues naturally emerge from the discussions, but the text approach depersonalizes the discussions. To put it bluntly, there is far less danger of finger-pointing and name-calling. The discussion of historical events and literary texts provides an important, impersonal context for racial issues.
The material lends itself well to a discussion of jurisprudence. Equally important, judges are given valuable, specific information related to black history and black literature. Black history and literature adds a new dimension to our understanding of the problems of racial division as they impact upon the operation of the judiciary.
Perhaps a discussion or suggestion of a few specific issues that arise from the material will illustrate the point. In 1895, Booker T. Washington made his famous speech at the Cotton States Exposition in Atlanta, Georgia. The speech was well-received initially, by both whites and blacks. With the passage of time, however, the speech became to be labeled the “Atlanta Compromise” and a significant portion of the black community came to feel that Washington had compromised their basic human rights. Washington’s speech at the Cotton States Exposition was probably the first significant speech in the south by an African-American to a predominantly white audience. In the speech, Washington asserted “In all things that are purely social, we can be as separate as the fingers, yet one as the hand in all things essential to mutual progress.” Considered separate and apart from subsequent legal events, the speech is an absolutely masterful description of pluralism.
However, the speech cannot be separated from its historical context. The following year, the United States Supreme Court decided the now infamous case of Plessy v. Ferguson. Did Washington’s Atlanta Exposition speech set the stage for Plessy v. Ferguson? There is an arguable consistency between the speech and the decision. However, it would be passing strange if, in fact, the speech of a black man in 1895 had anything to do with a United States Supreme Court decision. If it did, then certainly the importance of studies such as Foundations in Pluralism needs no further proof. If the speech did not cause the decision and the flood of segregation laws that ensued, then Booker T. Washington has been misjudged. Separated from subsequent legal events, the Atlanta Exposition Speech is a beautiful description of the inherent worth of all persons, regardless of race.
W.E.B. Dubois initially was pleased with Washington’s Atlanta Exposition Speech; but in the light of subsequent history and legal events, he became critical of Washington and the speech. Washington espoused a viewpoint that the way for African-Americans to fully participate in The American Dream was by establishing their economic worth and by shouldering responsibility. Dubois, on the contrary, insisted that blacks must first be granted their God-given rights and recognition as human beings. He insisted that such acceptance and recognition were the prerequisites for full participation by African-Americans in The American Dream.
In 1910, Dubois was instrumental in establishing The National Association for the Advancement of Colored People. In the course of the 20th century, the National Association for the Advancement of Colored People became the articulate voice of the black community and its aspirations. The Dubois philosophy has predominated in the 20th century. That philosophy has become the foundation of monumental works in the law such as the Brown school desegregation case decided in 1954 which overturned the separate-but-equal philosophy of Plessy v. Ferguson. The Dubois philosophy also undergirded the major Civil Rights legislation and the Voting Rights Act which were passed during the 1960s.
Obviously, judges can profit greatly by studying the seminal works of these two great thinkers. Washington and Dubois are not merely interesting figures relegated to a place in a specialty study of black history. Their thinking is deeply involved in the foundations of the most significant legal events of the 20th century. Understanding their contributions is an important task for judges.
The more recent impact on the legal system by Dr. Martin Luther King, Jr., and Malcolm X does not require nearly as much explanation. Only extreme cultural illiteracy could cause anyone to be unaware of the impact of Civil Rights leaders on the edifice of law during the Civil Rights era. To understand that there were Civil Rights leaders and that their efforts resulted in changes in the law, however, is not sufficient. A more in-depth knowledge of the thinking of these leaders is required if judges are to understand the philosophical underpinnings of the very system of law that they serve. The following sample questions demonstrate the usefulness of these materials for jurisprudential discussions:
(1) Dr. King’s letter from the Birmingham Jail is an eloquent appeal to natural law. Do law and rights exist independently of humanly created institutions? Obviously an understanding of the nature of rights is essential to any understanding of the civil rights that Dubois and King advocated.
(2) Both Dr. King and Malcolm X spent time in jail. What can we learn about incarceration from their experience? What advantage, if any, did each obtain from incarceration? What, if anything, does their experience tell us about the usefulness of incarceration in combating crime?
(3) Both Malcolm X and Dr. King were religious leaders. What was the effect of their religious views on their views about social policy? How important was religion to the work of these two individuals?
(4) Dr. King received an earned doctorate degree. He was well educated in the classics and philosophy. Although Malcolm X dropped out of school at the eighth grade, he read extensively while in prison, and his reading included philosophy. What was the impact of education and reading on each? Did Dr. King find in philosophy a “received truth?” Did Malcolm X?
(5) While Dr. King promoted integration, Malcolm X was critical of integration. Do their viewpoints represent an ever-present dichotomy? Is there any way to escape the tendency for one of these viewpoints to draw out the other? Does assimilation have drawbacks?
It is not necessary that we discuss these questions further in this article in order to demonstrate the importance of the Foundations in Pluralism approach. Judges can learn a great deal about the cultural background of our legal system by studying these materials.[1] More importantly we can learn of things that are missing from the cultural background of the legal system. The issues of racial division emerge naturally from the discussion of the materials. As indicated previously, the advantage to this approach is that it is impersonal. Judges are not placed on the defensive. Judges are not invited to adopt a particular viewpoint, and they are not invited to defend a particular viewpoint. They are simply asked to consider the viewpoints of significant persons who have impacted on the legal system during the 20th century.
The choice of Tuskegee University as the setting for the Foundations in Pluralism event is important. Tuskegee University was founded by Booker T. Washington in 1881. It is one of the foremost historically black educational institutions in this country. For a racially-mixed group of judges from the State of Alabama to read the writings of black authors and to meet together and discuss those writings on the campus of a historically black university is significant in and of itself. Participation in that setting and background involves a commitment to openness that is likely to engender trust in the black community. More importantly, it is likely to lead the judges into a greater degree of understanding of racial division. The actual meeting place on campus at Tuskegee University was the Kellogg Conference Center. The Kellogg Conference Center is a state-of-the-art conference center with state-of-the-art equipment and meeting rooms coupled with first-class hotel accommodations. A key ingredient for the success of this type of program is that judges put aside the day-to-day responsibilities of judging. A relaxed atmosphere in which meaningful dialogue can occur is important to the success of the event. Educators attempting to plan such an event should exercise care to choose exactly the right setting, the right facilitators, and the right material. Historically black institutions can make a tremendously important contribution in this entire endeavor.
Will the Foundations in Pluralism approach actually strengthen the ability of judges to deal with the problem of racial division? We submit that it can. Many judges will not agree with the arguments presented by Malcolm X in his autobiography. However, by reading Malcolm X’s autobiography, white judges are likely to become more empathetic and understanding of Malcolm X’s deep distrust of the legal system. White judges may also realize that Malcolm X’s distrust of the legal system is shared in many segments of the black community. And the distrust is not without reason. African-Americans are not Africans–they are Americans. There is a 400-year history of blacks in America. The heritage of slavery and segregation, both fully supported by the legal system, does little to inspire confidence in the legal system among African-Americans.
Sociologically and anthropologically, the heritage of slavery and segregation has left its marks in the structure of society. The attitudes and mind set that were produced by the institutions of slavery and segregation have an enduring quality, not only in the white community which is often accused of being racist, but also in the black community. Unprotected by the established legal system, African-Americans under the domination of slavery and segregation responded with solidarity and self-help systems of conflict resolution. The black community is understandably reluctant to give up its solidarity and its self-help approach to conflict resolution.
However, the self-help system is instrumental in producing black-on-black crime. It is instrumental in placing a disproportionate number of blacks into the prisons and jails of this country. Much of the black literature of the 20th century is protest literature. Little is said in that literature that places the judiciary of this country in a favorable light. When the entire background of slavery and segregation is considered, the reasons for the protest literature are crystal clear. In fact, it is difficult to imagine any other literature emerging during the 20th century. Nevertheless, the protest literature presents a dilemma: If W.E.B. Dubois’ “talented tenth” –the educated African-Americans who write and speak for their race–have no confidence in the American legal system, then how can we expect the unemployed and poorly educated African-Americans who gather around a barrel with a fire in it on some dingy street corner to have confidence that the legal system can resolve their disputes? Just because we in the judiciary think that we provide rational solutions to conflicts does not mean that our African-American brothers and sisters will automatically “buy-in” to our methods.
The immediate objective of the Foundations in Pluralism program is to acquaint judges with significant writings for edification, enjoyment and understanding. The concept grows out of the law and literature genre. Law and literature seminars relate the work of judges to the larger context of the culture. Values on which culture is established are embedded in great literature.
Beyond the immediate enjoyment of the program, there are important long term educational objectives. The American people are keenly aware that racial beliefs and racial tensions impact on the delivery of justice. But to understand that a problem exists is not to solve it. Judges and others have much difficulty devising strategies to cope with the conflicts that result from racial beliefs and tensions. Judges, like others, are often aware of the racial biases of others, but totally unaware of their own biases. Judges, like others, have difficulty comprehending that each of us has an inevitable and indispensable frame of reference–a body of experience or background–that affects the formation of perceptions and judgments. Often, groups to which we belong influence our perceptions. Our groups frequently consist of other persons with backgrounds and experiences similar to our own. Biases of which we are totally unaware are shared and supported by the groups of which we are a part. Legal realist Jerome Frank pointed out that judges are not immune from the influence of their backgrounds.[2] Judgment is the product of personal experience and education. Experience and beliefs–often shaped by groups–are reflected in judgments and decisions.
Like religion and other powerful cultural forces, racial and ethnic background leave their imprimatur on the human psyche. Awareness of such differences has been intensified by media events such as the O. J. Simpson trials and the various cases arising from the Rodney King incident. These high profile media events have not only intensified our awareness of the existence of differing attitudes based on racial identity; they have made us uncomfortably aware of the illusive reality of the abstractions that form the foundation of the justice system. Abstractions such as justice, good, truth, evil–and even law itself–are the products of consensus reality.[3] They exist because of widespread belief and acceptance.
In this postmodern world, we are increasingly aware of a lack of consensus. If persons from different backgrounds and groups look at the same empirical facts that evidence conflict, and the same possible remedies, but disagree as to which remedy is just, the consensus about the nature of justice disappears. The O. J. Simpson trials and the Rodney King trials cause thoughtful persons to wonder where we get our abstractions of justice and injustice, of right and wrong, of good and evil. These abstractions do not leap full grown from events themselves. We add some of the content of the abstractions in the process of interpretation.
Where are the notions about law and justice that seem indispensable to a justice system–and to civilization–stored and preserved? The idea underlying the Foundations in Pluralism project is that history and literature are important storage places for these critical abstractions.[4] History and literature embody our collective experience, forming the substrata for our interpretation of current events. Pluralism[5]–the existence of groups with differing opinions about justice–challenges the ability of the entire society to arrive at a consensus on core values.
Legal philosopher Ronald Dworkin coined the phrase “interpretive community” to describe the aggregate community of lawyers, judges and legal scholars who collectively maintain beliefs and skills that enable them to discern the meaning of legal texts.[6] The Foundations in Pluralismproject recognizes pluralism’s challenge to the viability of accepted meanings in the traditional “interpretive community.” Each cultural group introjects its distinctive group values, interpretations of events and descriptive language into its members. Law’s interpretive community then has difficulty accurately discerning meanings that apply with equal force in all groups. Hence the importance of the study of authentic sources of the ideas and meanings posited by and within differing racial groups.[7] Even when historical events have faded into the remote past, affective results remain and are transmitted from generation to generation because individuals internalize attitudes of the group.
Throughout the United States, the judiciary is confronted with very practical problems that arise from the powerful forces produced by racial attitudes and opinions. For instance, the percentage of blacks convicted of crimes and sentenced to incarceration far exceeds the percentage of blacks in the general population. Blacks often assert that such disproportionalness clearly evidences racial bias within the justice system. Whites respond that blacks commit a disproportionate share of crime. Neither group concedes that its explanation is possibly consistent with that offered by the other group. Neither group considers other, more complex explanations: the lack of acceptance of the historically white justice system in the black community[8] might cause blacks to resort to self-help remedies, which in turn creates problems with the law. The Foundations in Pluralism project encourages this kind of critical thinking.
Law’s interpretive community clearly needs a stronger grasp of the pluralism from which racial issues arise. Foundations in Pluralism approaches the educational task with an appropriate combination of daring and subtlety. It tackles the issues at multiple levels of consciousness, and achieves emotional acceptance and harmony at the same time that it imparts valuable specific knowledge.
The challenge of the 21st century is two-fold. First, we must make certain that the judicial system is trustworthy. Secondly, we must find ways to encourage the African-American community to place their trust in the efforts of the judiciary. Judges are in a pivotal position to make a difference in the way the public views the legal system. The Foundations in Pluralism project is a viable means for judges themselves to become aware of racial differences and to become aware of the sources of racial differences. Only as we become aware of the sources of racial differences can we devise strategies to disarm the harmful effects of those differences while affirming the positive aspects of our cultural differences. Those differences lie deep in the heart of the culture, and can best be understood by careful consideration of history and literature. The hope for reconciliation lies in a clear understanding of the culturally posited differences.
[1]Someone may ask about the white cultural heritage. Since law has evolved in a white dominated culture, it is safe to assume that judges have acquired some basis in the literature and history of the dominant culture. The purpose of these intensive courses is to familiarize judges with black history and literature. The dialogue among the judges is beneficial to judges of all racial and ethnic backgrounds.
[2]Frank, Jerome, Law and the Modern Mind, Coward, McCann, Inc., New York, 1930.
[3]Phenomenologists might argue that something in the observable activities of law imposes itself on the minds of any rational observer, giving rise to legal concepts.
[4]At least as far back as St. Augustine, students of the philosophy of history realized that history is not what happened in the past. It is a present state of knowledge. It is an abstract account of the past.
[5]The word pluralism is often used as a synonym for diversity. We are using the term pluralism to signify diversity among or between groups, as opposed to diversity among individuals. We do not use the term pluralism to represent diversity within a group.
[6]Dworkin, Ronald, Law’s Empire, Harvard University Press: Cambridge, MA, 1986.
[7]Emile Durkheim provided a description of the way these group processes work in The Elementary Forms of the Religious Life (1912).
[8]Malcolm X often raised questions about the “white man’s” law and legal system.
by Dale | Sep 17, 2020 | United Methodist Church Activity
I. The Task of the Connectional Process Team
A. The Assignment
We have been assigned the task of leading the United Methodist Church in a transformational direction. The direction in which we are to lead is not completely undefined. The general conference legislation that called us into being focused on three separate points for the direction in which we are to lead. First and most importantly we are to find ways to “enable The United Methodist Church more faithfully to carry out its mission to make disciples of Jesus Christ.” Secondly, we are to find ways to “support local congregations as the primary locus of mission and ministry within the United Methodist Church.” These two assignments are particularly important because the General Conference added these directions to the proposal originally submitted by the Connectional Issues Task Force. The General Conference directed the line of transformation to the support of local congregations as the primary focus of our work.
Although the general conference legislation that called us into being directed us to the support of local congregations–whether we are talking about our own local congregations or congregations to be supported as missions–the General Conference also directed our work along other significant paths. The second important focus of our work concerns the global nature of the church’ s work. Clearly, in this regard, the emphasis should be on the church’ s work, rather than on a view of the nature of the United Methodist denomination itself. Some bishops of our church have expressed the view that to assert that we are a global church may be engaging in triumphalism. They suggest that we should instead focus on the global mission of the United Methodist Church.
The third direction given to us by the General Conference concerns a review of the manner in which the church operates. This third direction can be divided into two parts. First, we are to review the processes by which the church makes decisions. The legislation encourages the interactive process. Secondly, we are to review the organizational forms or structures through which the church operates.
The legislation which created our assignment specifically directed that we conduct hearings, and that we invite the affiliate and autonomous churches into dialogue regarding the global nature of the church and the interactive organizational process. It also directed that we do our work in consultation with the Council of Bishops. Our initial report is due no later than January, 1999. We are now past the halfway point in the time allotted to us for completing our initial report. At our January 1998 meeting, we expect to discuss specific proposals for the writing of our initial report.
I am offering this written proposal that embodies specific suggestions for the following reasons:
1) Our meetings– in which few of us have the opportunity to speak for more than a very brief period of time–does not and cannot offer the possibility of engaging in and expressing comprehensive, coherent, critical thinking. Written proposal, circulated to the entire membership of the committee, is the only way to offer a comprehensive plan for consideration and discussion.
2) It is important that each of us envision a comprehensive model of what we believe an efficiently organized United Methodist Church might look like. Obviously, we must start with the available organizational resources, and show how those resources can be transformed into the desired structure..
3) This proposal is offered, not as the final solution, but as a basis for discussion both within and without the Connectional Process Team.
4) God has called each member of the Connectional Process Team to this work for a particular purpose. I offer these suggestions in that spirit.
B. Structure May Not Be The Fundamental Problem
We must recognize at the outset that structure may not be the cause of the problems that the denomination has experienced over the last 30 years. Perhaps problem is not even the right word. While the denomination has experienced substantial membership losses in the United States, it has grown in other parts of the world. Therefore we must carefully identify the exact nature of the problems that we are attempting to solve, and make certain that our solutions apply with equal force in all geographical areas. The solutions must be context and culturally sensitive.
Within the United States there is widespread belief that the church is top heavy. There is concern that the general boards and agencies may be too expensive, and that they may not be focused on the mission and ministry of local congregations. These concerns are viewed by members of the central conferences as U. S. problems. The members of central conferences tend to see many of the general boards and agencies as far removed and largely irrelevant to their problems as growing congregations. The problem, if any, that we have with structure must be given specific context. Differing structures may be appropriate in differing contexts.
Even more importantly, we must understand that the life of an organization does not happen because of the organizational structure. Altering the organizational structure will not necessarily breathe life into the organization. The life of an organization depends on its mission and purpose, and on the motivation and actions of its constituency. Perhaps the word transformation connotes a change or alteration of form or structure. However, we have all come to understand that structure follows mission. Another expression of the same thought is to say that need calls structure into being. Even though the needs that called our current structure into being may not be the present needs of the church, merely changing the current structure is not our greatest current need. Mere motivation to change structure is not likely to produce the needed structure. Likewise, we must not be process driven. Only an accurate assessment of what the church needs to be doing in the world today can give rise to the needed structure. The structural changes that we suggest should be guided by a careful assessment of what the church needs to be doing.
C. Assessing the Needs of the Church
The greatest need of the church today is vibrant and vital local congregations representing the body of Christ in the world. The need for vibrant and vital congregations exists both in the United States and in all of the world. The church needs to be Christ centered. It needs to be grounded in the God that is the foundation of all being. It needs to be directed to mission in the world through the discernment of the will of God. It needs to be guided in its mission by the Holy Spirit. It must recognize the communal nature of the Body of Christ. It must offer an alternative community for a world that is broken and hurting and bleeding. The Church must be faith centered. But most important of all considerations is that the church membership must act out that faith in the world.
The faith community that is the church must be an alternative to the world of materialism, crime, drugs, domestic violence and brokenness. Although we are saved through faith by the Grace of God, our faith is evidenced by the work that we do in the world. We must offer the alternative community of faith in the ghettoes and high-rises, in the housing projects and suburbs, in and through the business community and the ranks of welfare, and in the United States and throughout the world. The church must become a meaningful alternative to drugs, alcohol, sinful relations, destructive relations, greed, selfishness, and everything that separates the world from the love of God. It must establish and maintain meaningful relationships.
The church that is described in the preceding paragraph will call into being an organization and structure adequate to its needs. The church and its members are called to engage the world as it really is. The world and its problems are complex. The church–the community of faith–must engage the hearts, souls, minds, and strengths of its entire membership and direct the membership to a renewal of its faith, and to the challenge of the world. The threats to ecology such as global warming, destruction of the rainforests, hazardous waste disposal, international drug traffic, international crime, and international economic issues must occupy our thoughts along with the sins, problems, and pains of the past. The Church must deal with the advancing advantages and threats of technology in the field of data management and communication. Discipleship in the 21st century may be the same thing that it has been through the first two millennia, but it will require different actions. Therefore the structures that support mission and ministry will be markedly different from the structures of the past. The lines of communication will be different. The technology will be different. The language will be different. The training requirements will be different. The skills will be different. Praise God for the magnificence of the ongoing power of creation!
II. The Problem of Corporate Dynamics
Before turning to a discussion of specific recommendations for changes in the organizational structure of the United Methodist Church, we should first come to grips with the dynamics of our corporate existence. As mentioned earlier, the dynamics differ greatly between the church in the United States and the church in the remainder of the world.
A. The Dynamics of the Church in the United States.
The United Methodist Church in the United States suffers from dynamics associated with economic maturity. This problem is not limited to church organizations–it applies to almost any form of corporate activity. Let me offer an illustration. A group of farmers might become concerned about the possibility of casualty losses or liability for damages arising from lawsuits. Their concerns might inspire them to form an insurance company. Then if one of the farmers suffers a casualty loss, the loss is shared by the entire group and thereby minimized. The objective is a sound and worthy economic goal that would prevent disastrous loss for any of the farmers. However, an insurance company must have a staff. Over a period of time, the organization takes on a life of its own. The motivations of staff persons become involved. The insurance company probably becomes involved in politics so as to impact on legislation that would affect the company. The objectives are no longer the simple goal–sharing and minimizing losses–that called the organization into being. Eventually, the company, as a separate entity, might even feel compelled to protect itself against the claims of the farmers who brought it into being. In the business world, the phenomena associated with separation of ownership and management have been recognized at least since Berle and Means published their epoch making treatise in 1931. There are checks on the power of management. If the corporation is not managed well, there will be a corporate takeover, and new management. However, the solutions that work in the world of business economics–such as corporate takeovers–and managerial concern about corporate takeovers– have little or no impact on eleemosynary organizations. Unfortunately, the only device for dealing with ineffective church management is cumbersome church politics. Moreover, there is no legitimated measure of success. Management ideas that are totally inconsistent with each other can thrive year after year, each contending that it is the legitimate test of success for the church.
The problems of economic maturity, no doubt, affect the structure of the United Methodist Church in the United States. The boards and agencies, with the possible exception of the General Board of Global Ministries, are largely United States church phenomena. Any attempt to further globalize their influence is likely to be necessarily and correctly viewed in the rest of the world as a carry-over of colonialism. The vibrant and growing churches outside the United States need to develop structures that serve their specific needs. The church needs to grant them that power.
B. The Dynamics of the Church Outside the United States
As has just been mentioned, we must be extremely careful about the attempt to inject the organizational structure of the church in the United States into the church outside the United States. We must carefully consider the possibility that the very reason for the success of the church outside the United States is precisely because the boards and agencies are not there, and they are still dedicated to their original purposes.
In many instances, the church outside the United States represents struggling new growth. It does not represent the mature economic organization problems that exist within the United States. The energy of the church outside the United States is still fueled by the motivation to the initial purpose. Those motives have not been affected by the conflicting motivations of the mature organization within the United States. The church outside the United States is in the growth stage that was experienced in the United States during the first 100 to 150 years of the church’s existence in this country.
The churches outside the United States, therefore, need autonomy to develop as the body of Christ. The organization of the church in those areas needs to answer the specific needs of those areas. It needs to be responsive to the pluralistic needs peculiar to the area. In the words of St. Paul, it needs to “be all things to all people that it might by all means save some.” (Paraphrase of 1 Corinthians 9:22) But at the same time the church outside the United States needs to learn from the United States experience, and not repeat any mistakes that may have been made in the United States.
C. Unity of the Church Throughout the World
We must not leave the discussion of the problem of corporate dynamics with the image that the church within the United States and the church outside the United States has little in common. The church is, indeed, global, but with different needs in different locations. Those differing needs may call for differing organizational structures. But the church everywhere shares a common mission, and that mission is to go into all the world and make disciples. We can support each other in the effort to make disciples. The need for unity calls for a unifying structure that recognizes the pluralistic nature of the denomination.
III. Transforming the United Methodist Church
Based on the foregoing discussion, it is quite clear that the transformation of the church will not be effective if we propose a Procrustean organizational structure and insist that it replicate itself at every location in the world. Needs will differ. Sound organization in Europe may not be sound organization in Africa. But the most fundamental difference in the need for organizational structure exists between the church in the United States and the church in the remainder of the world. Most of the problems that the Connectional Process Team has discussed are problems peculiar to the mature economic organization that exists within the United States. There need to be changes within the United States, but those changes do not need to have an adverse effect on the church in the remainder of the world. The fundamental problem, then, seems to be how to transform the church within the U.S. without undermining the support that the U.S. church gives to and receives from the. remainder of the world.
A. Transforming the Church Outside the United States
With faith in the creative power of God, the sustaining power of the Holy Spirit, and the saving power of Jesus Christ, we must empower the church outside the United States to create the structure that it needs. We must, in matters cultural and geographical, allow a full measure of autonomy, without forsaking the unity of the whole structure. We must move the locus of decision-making power closer to the local congregation both outside the United States and within the United States.
It would violate the central thought of the proposal made in this paper if the Connectional Process Team were to attempt to suggest the design–the organizational structure–for the church of the future which is to evolve outside the United States. The Team’s recommendation should call for suggestions from within the central conferences. The ultimate result should be the delegation to those conferences of the autonomous power to call the needed structures into existence. The influence of the United States church should be by invitation only.
Before leaving a discussion of the church outside the United States, I should mention that this proposal for granting more autonomy and moving the locus of decision making closer to local congregations is central to the approach that I am suggesting concerning the global mission of the church. The way to be global is to plan effectively for the work of the church throughout the world. There is a difference between planning the work and planning for the work. We must let the actual planning take place nearer the local congregations. What we must provide is the unifying, empowering connection.
B. Transforming the Church Within the United States
The transformation of the church within the United States presents entirely different issues from those confronting the church outside the United States. Within the United States, we must deal with the problem of the mature economic organization. The complaints about the church within the United States include the following: (1) the church lacks focus; (2) the church lacks clear objectives; (3) the church lacks efficient decision-making processes; (4) the technology of communication is out-dated; and (5) existing organizational structure is inefficient. It might be possible to generalize the root cause of these problems as a pervasive lack of trust. The reason that we do not create efficient organizations that can handily make decisions is that we do not trust each other to make those decisions. The people in the pews do not trust the hierarchy because they are not certain that resources are being wisely managed. The hierarchy does not trust the people in the pews for reasons that are more complex. First, the people in the hierarchy probably think that they know best. Secondly, their careers are at stake when we discuss structural changes, and they feel a bit insecure. Personal power and selfish interests enter into these matters. We are dealing with the problems of a mature economic organization that has no effective checks a balances with regard to management. All this is true, despite of the fact that most of the people in the hierarchy are dedicated servants of the church.
Unlike the task of transforming the church outside the United States, the Connectional Process Team needs to recommend very specific changes in structure and policy within the United States. The following are suggestions of the structural changes that need to be made. A more detailed explanation of each proposed change will follow the list of proposed changes.
1) Merge the fourteen existing boards and agencies into not more than five agencies;
2) Completely reorganize and redefine the superintendency of the church- particularly the role of the district superintendent;
3) Carefully define the role that council directors (or their equivalents) and resident bishops should occupy vis-a-vis the general boards and agencies;
4) Intentionally appropriate the advantages of modern technology into the service of the connection;
5) Develop a skills-and-values approach to ministerial education;
6) Intentionally focus on the educational needs of laity, clergy, and lay pastors;
7) Affirm the local congregation as the focal point of ministry;
8) Affirm the annual conference and the work of districts as the primary links of the connection;
9) Define and evaluate the work of all conferences, boards, and agencies in terms of their support for local congregations;
10) Make the church structure beyond the local church truly representative of the population in the pews, and the beliefs and values that they hold.
11) Create a process of dialogue in which the foregoing suggestions can evolve without threatening the careers of those who have dedicated their lives to the denomination.
12) Create a decision making process that is inclusive and effective, and that is built on participatory interest.
This list of proposed changes is provided in order to summarize the suggestions. Obviously, each needs a more detailed explanation, which I will now provide.
1) Merge the fourteen existing boards and agencies into not more than five agencies.
Merger of existing boards and agencies over a period of time will result in a simpler organizational structure. Merger will inherently increase accountability internally. Merger will enable the church to respond in whatever way necessary to the continuing decline in membership of the organization. If membership continues to decline, financial resources will ultimately decline. Merger would prepare the organizational structure to serve the needs of the church, whether the church is growing or continuing to contract. Merger of the existing, sprawling bureaucracy would create the possibility of focus for the denomination itself. The persons in positions of leadership in five boards and agencies could communicate among themselves and manage the business of the agencies far more efficiently than the existing fourteen boards and agencies. Interactive decision making processes can evolve from the simpler configuration.
While merger is highly desirable for the foregoing reasons, it will be inappropriate for the Connectional Process Team to mandate the specifics for the mergers. It will be better for General Conference to direct the agencies themselves to engage in dialogue and to present plans of merger to the General Conference that convenes in the year 2004. However, it is quite feasible to group the boards and agencies by the nature of their work, and the General Conference of 2000 should give make recommendations as which boards and agencies should merge with each other.
(1) Discipleship, Publications, Archives, and United Methodist Communications should be combined into one agency. All deal with the written and spoken word. Perhaps nurture would be the appropriate name for the resulting agency.
(2) Church and Society, Religion and Race, Status and Role of Women, and the Commission on Christian Unity should be combined into an advocacy agency. The functional tasks assigned to each of these groups are similar. The skills and values required for their work are quite similar. Great strength and efficiency should result from merging them into a single advocacy agency.
(3) Both Pensions and the General Council on Finance and Administration require expertise in matters of finance. Therefore, they should be combined into a finance agency; and that agency should also be assigned primary responsibility for audit and legal advice.
(4) The General Board of Global Ministries, with its focus on mission and connectionalism, should continue as a separate agency. It should conduct a self-study that will result in a clear definition of its objectives. The study should show how the agency serves local congregations. In the simplified structure of the denomination, the channels to mission must be extremely clear. We need pipelines–not a reservoir. When the local congregation is called upon to support missions beyond the local church, it should be presented with meaningful options. Strict accountability should reign.
(5) The General Council on Ministry, Higher Education, and United Methodist Men all focus on ministry and should be combined into a single agency.
2) Completely reorganize and redefine the superintendency of the church, particularly the role of the district superintendent.
In many conferences, the function of the office of district superintendent is antiquated. District superintendents in many conferences continue to build the entire work of their office around charge conferences and appointments. Charge conferences do little that contribute meaningfully to the life of the church. If the object of the office is to gather information, modern technology offers far more effective means. John Wesley would not have left home without a lap-top computer, if one had been available to him. If the idea is for the superintendent to feel the pulse of the local congregation, then a surprise visit, spontaneous questions, and real conversation would be far more effective than the use of form reports that cannot possibly capture the real life of a vital congregation. There is a tendency for districts themselves to be organized around an antiquated job description of the work of the district superintendent.
The district superintendent should spend the greater portion of his/her time concentrating on the ministries of local congregations that are vital and growing, and less time dealing with the problems of congregations that are not intent on vital Christian ministry. Small congregations should not be neglected. But the Superintendent’s work should focus on the living, growing church. The object is vital life–not slow death.
The redefinition of the superintendency will necessarily entail an in depth study of appointment making. The object should always be effective ministry-not what can I do with this preacher who has now had seven consecutive one year stands that neither s/he nor the congregations thought were beneficial. The local congregation must have a stronger input into the process. Ineffective preachers should not be guaranteed appointments–or employment of any kind for that matter. Also, the effects of length of tenure must be carefully evaluated. In our mobile society, there is less need for a rapid turnover itineracy than in the earlier days of this country.
3) Carefully define the role that council directors (or their equivalents) and resident bishops should occupy vis-a-vis the general boards and agencies.
The annual conference should be the clearing house of vital ideas. The resident bishop and the leadership of the staff of the annual conference (council director or other) should strongly focus on the connection between the (hopefully merged) general agencies and the local congregation. Not less frequently than annually, there should be a gathering of resident bishops, council directors, and the leadership of boards and agencies in which the boards and agencies are given the opportunity to “market their wares” to the local congregation through the annual conferences. The structure of the merged boards and agencies should intentionally place the membership of the boards and agencies in direct touch with the people who are managing the business of the annual conferences.
4) Intentionally appropriate the advantages of modern technology into the service of the connection.
The world of technology is burgeoning with opportunities for improved communications. Computers can organize our data far more effectively than anything that we have done in the past. Interactive, live image communication is already available and will soon be commonplace, drawing the world ever more closely together. Mastery of technology is an essential feature of the transformation of the church if the church is to be an effective voice in the 21st century.
5) Develop a skills-and-values approach to ministerial education.
The education of our clergy should center on skills and values. This is not a suggestion that preachers do not need to know anything about theology. But it is a suggestion that they should receive specific training for the skills that we expect of them. A similar study of the education provided for lawyers, which examined the gap between the training provided by law schools and the expectations of the practicing profession, which was published in 1992, is revolutionizing law school education. Not only must our clergy be trained in the skills that are needed, they must also deliberately acquire the values appropriate to their calling.
We must renew our confidence in the revealed truths of our Christian heritage. Science provides no meaningful approach to normative force in the world in which we live, and it is far removed from an explanation of the mysteries of consciousness, let alone the deeper mysteries and meaning of our existence which we can only approach through vital religious faith. Clergy must be convinced of its calling, and know that the they are dealing with matters of utmost importance.
6) Intentionally focus on the educational needs of laity, clergy, and lay pastors.
Better education and training are requirements not only for our clergy but also for the laity and lay pastors. The world is changing, and the church must contend with the information explosion. The newly developing information is an important facet of continuing revelation. Lay persons can actually bring this information into the life of the church. Lay pastors have always played a critical role in the life of our denomination, and they will continue to do so. For the church to be effective, laity, lay pastors, and clergy must all be well-schooled in those aspects of our faith that are unique to the Wesley tradition. While it is true that in our faith journey we should ultimately strive to grow beyond the limitations of denominationalism, it is also true that most of us are born into and find our nurture in a particular faith community. The doctrine of Christian Perfection is still in full force and effect.
7) Affirm the local congregation as the focal point of ministry.
The General Conference has actually directed us in so many words to affirm the local congregation as the focal point of ministry. Supporting local congregations should be the centerpiece of our plan for leading the church in a transformational direction. We do this by moving the locus of decision making nearer to the local congregation. Only when the motive forces of the members of local congregations are fully marshalled can the church be fully deployed in the world.
The strategy of empowering local congregations knows no national boundaries. For the church inside the United States, this means that the strategy of the church should be to empower and encourage local congregations to become fully active in ministry. They should be active in their local geographical areas and should be supportive of missions throughout the world. The same strategy applies outside the United States. But outside the United States, we must grant more autonomy in order to fully empower local congregations to do their vital work.
8) Affirm the annual conference and its work through districts as the primary links of the connection.
The annual conference is the essential link in the connectional system. Local congregations send delegates directly to annual conferences and receive reports back directly from annual conferences. Annual conferences, therefore, tend to have great legitimacy in the minds of local congregations. Annual conferences can be effective channels for organizing ministry throughout the geography of the conference and among all the constituent congregations. The annual conference can be an effective clearing house for the work of the general agencies. A major structural problem with the denomination is that the leadership of annual conferences and the work of general boards and agencies seems to pass like ships in the night. The connection between them is not vital and meaningful to the denomination as it should be. The leadership of the annual conference should not only know what assistance is available from general boards and agencies in order to make that assistance meaningfully available to local congregations. The annual conferences should effectively communicate the needs of local congregations to the general boards and agencies. In effect, the annual conference should be a broker firm or a clearing house for the work of the general boards and agencies.
9) Define and evaluate the work of all conferences, boards, and agencies in terms of their support for local congregations.
Every conference, board, and agency that is not a part of a local congregation should deliberately define and evaluate its work in terms of what it does to make local congregations more effective. The annual conferences should hold them accountable to that task.
10) Make certain that the church structure beyond the local church is truly representative of the population in the pews, and the beliefs and values that they hold.
We are keenly aware of the fact that minorities are not always given adequate voice in the decision making bodies of the church. But we are much less sensitive to the rights of the majority. In our quest to provide representation for minorities, we create structure that diverges considerably from the actual people who occupy the pews. The General Conference itself would not likely pass muster if the standard of one person one vote were applied. Fully realizing that the majority is not always right, and that God can reveal His will through one person, we have yet arrived at a better organizational tool for arriving at consensus than through a representative democracy. If the powers that be are ordained of God, then recent historical events seem to indicate that democracy is blessed. We must strive to be both representative and inclusive. Non-representative bodies should be altered to become representative, unless they have been created by a representative body for a particular purpose. The message of the Gospel was not dominated by social purposes in the first century and its effectiveness in the 21st century will not depend on its social purposes. The Gospel message is the source, not the result, of our most important social values.
11) Create a process of dialogue in which the foregoing suggestions can evolve without threatening the careers of those who have dedicated their lives to the denomination.
The United Methodist Church is a very large, very complex institutional structure with decision-making authority localized at many different levels and locations. It would be a tragic mistake to attempt to present a definitive structure to a single general conference session for its action. Such an approach implicitly assumes that by acting upon static concepts of structure, we can effect the needed transformation of the church. While we can envision, in a general way, the desired outcome of the transformational change, the change itself must evolve from within the living organization of the church. The people who will be vitally affected by the transformation must feel a participatory interest in working for the needed changes. The most effective structure will arise from dialogue within the existing structure, if we are successful in our efforts to establish a vision of what the church should be. The changes that are needed will require time. The General Conference of 2000 should adopt our proposal as a long range plan, but with specific directions for merger activities that are to take place. One quadrennia will probably need to be devoted to the concepts of merger and the redefinition of superintendency. These matters could be formally acted upon at the 2004 General Conference. A second quadrennia would then be required to establish the new working relation between and among the merged agencies, the annual conferences, and the more autonomous central conferences. These matters could in turn be given clear definition at the General Conference that occurs in the year 2008.
12) Create a decision making process that is inclusive and effective, and that is built on participatory interest.
Already within the church, as in the rest of American society, hierarchical structure has started to break down. It is being replaced by more effective interactive models. In a knowledge based culture, this shift is inevitable. Knowledge is the jointly owned property of the many, and cannot be effectively managed from the top of a pyramid. The shift to interactive models is to be encouraged. It is the only way for the people in the pews to develop a participatory interest in the work of the church. It is not just a matter of us– “the real leaders” to cause the membership to feel that it is involved–the membership must be involved in the vital ministry of the church. The membership itself permeates the world, and is the real voice of the church. Its knowledge will be the power of the church–the word of God incarnate. Consensus, dialogue, and participation are all words that help to capture the communal spirit that must permeate the church. We are a communal people. We partake of one substance. Our decisions must be the product of true team work. The wisdom of God is given to the entire group. The apostle Paul advocated a division of labor in the body of Christ, but recognized that there is “one spirit.”
IV. The Global Church
Unquestionably, the United Methodist Church has missional objectives throughout the world. In that sense, it is a global church. In fact, it is a part of the one true church, apostolic and universal, whose holy faith we reverently and sincerely declare every Sunday. However, it is more meaningful to approach the global work of the church in terms of mission rather than in terms of status. A claim of globality does not add anything to the vitality of the church. We should be global in mission and ministry. All that I have said previously about the church outside the United States is a discussion of the Global Nature of the church. The proposal for more autonomy, and for moving the locus of decision making closer to the local congregations outside the United States is central to what I am suggesting about dealing with the global nature of the church. The urgency of the gospel must be recognized. The world needs Christ.
However, the creation of yet another layer of bureaucracy of church management is the last thing that we need at the present time. Our global work can be effectively organized within the context of presently-existing structures. The possibility of directing a part of the work of the church through the World Methodist Council and the World Methodist Conference should be carefully explored. The implementation of the plans that emerge from the process of creating autonomy for the creation of structures in the central conferences will give rise to the structures that are needed to carry out the global mission of the church.
The Council of Bishops itself is a global entity. The Council should be a source of strategic planning for the global mission of the Church. The Global effort should be one of collaboration and collegiality among the various branches of the church, with a continuing loyalty to the central tenets of the denomination. It should not be another layer of bureaucratic legalism.
Conclusion
The foregoing suggestions are tendered to my colleagues on the Connectional Process Team in an effort to facilitate our work together. Some of the efforts that we have made at this point have been frustrating. We seem to have started anew at almost every meeting. The explanation that before we could work together we had to get acquainted seems a bit odd. After all, we are all members of the same denomination. But in fairness, I must admit that the suggestions that I am now submitting are not at all the same suggestions that I would have submitted at the outset of our work. These suggestions have been shaped by our discussions, and informed by learning process in which we have all engaged.
by Dale | Sep 17, 2020 | United Methodist Church Activity
I joined the Methodist Church[1] at Bradford’s Chapel in Macon County in 1958 at age 16 on profession of faith. I had been involved in the Methodist Youth Fellowship for several years. My cousin Ralph Segrest, a local pastor in the North Georgia Conference was preaching a revival at Bradford’s when I made the decision to join.[2] The preacher at Bradford’s at that time was Pruitt (Bill) Willis. In those days the Sub-District concept was widely practiced, and youth from groups of churches came together on a monthly basis for a Sub-District meeting. Preacher Willis told me that I really needed to join the church, since I had already been elected president of the Philip Embury Sub-District. I was also serving as president of the local MYF in the La Place Circuit, of which Bradford’s Chapel was a part. I had been attending the church all my life, and had strong commitment to the tenets of faith embraced by the Methodist denomination, but had never gotten around to joining. I had no hesitancy about joining on profession of faith.
The First Methodist Church of Tallassee was a part of the Philip Emory Sub-District, as were East Tallassee and Carrville that are both located in Tallassee. My earliest contact with The First Methodist Church in Tallassee, where I have been a member for over 40 years, was through the Sub-District meetings. Rev. Cliff Abbot was the Preacher at Tallassee in those days. I recall a bit of a controversy in the Sub-district about the fact that people (like me) were too young to come. I was probably 11 years old at the time. Brother Cliff, if I remember right, raised the protest. Roy Sublette was the preacher at Bradford’s Chapel and I had only recently started attending MYF. He settled the controversy by explaining that it was his car and his gas, and if he could get us to attend, he was going to do so. Of course, that was several years before I was elected president of the Philip Embury Sub-District.
I’m sure that my early church involvement entered into my decision to attend Huntingdon College, a Methodist institution.[3] Mrs. Steele Bibb, my high school principal, was one of the Methodist saints who directed my path to Huntingdon. I had played basketball at the tiny Shorter High School and thought I was pretty good. It was probably Mrs. Bibb that somehow, induced Coach Neal Posey, Huntingdon’s basketball coach, to recruit me and offer a scholarship a scholarship of sorts. Later I realized that a high ACT score had a lotjj more to do with my recruitment than my athletic skill.
Regardless of the reasons, and despite some protest from my family, who felt that I should attend Troy State Teachers College[4], where my older brother Wade and cousins Dean and LaRue Spratlan had attended, I enrolled at Huntingdon in the fall of 1960. I dropped out of basketball the first semester. Near the end of the first year, my bride to be, Betty Menefee nominated me, and I was elected class president for my sophomore. I was elected again for the junior years. During my third year, I was elected president of the Student Government Association and served in that position my senior year.[5] I received a $500[6] National Methodist Scholarship that year, which allowed me to discontinue my work in the dining hall, where I had loaded lots of dishes into the dishwasher and cleaned lots of tables during my first three years.
During my Huntingdon years, I attended First Methodist Church in Montgomery. Dr. Joel McDavid was pastor and Johnny Trobaugh associate pastor during those years. Johnny had been the preacher at Bradford’s Chapel, and would later serve as preacher in Tallassee, so he was my preacher at three different locations. I became an affiliate member First Methodist in Montgomery. There was a Sunday School class for Huntingdon Students, and transportation. On campus, I was active in the Huntingdon Christian Association. I am certain that the fact that I attended Huntingdon contributed greatly to my later involvement and commitment to the United Methodist Church. I’ve spent a great deal of time trying to repay that National Methodist Scholarship.
After I graduated from Huntingdon in 1964, Betty Menefee and I were married at the La Place Methodist Church in Shorter, Alabama. La Place and Bradford’s Chapel were both on the same “Charge” and shared the same preachers. Betty and I were both born and reared in Shorter, where we met in the first grade. We attended twelve years of public school at Shorter, MYF and Huntingdon together. She was a cheerleader and I a basketball player at Shorter. I suspect that the fact that she decided to go to Huntingdon had as much to do with my decision to go there as anything else.
So, in the fall of 1964, Betty and I moved to Tuscaloosa and I began Law School at the University of Alabama. We attended Church at Trinity Methodist Church initially and later attended Forest Lake Methodist Church. There was a chapter of Huntingdon Alumni in Tuscaloosa, and Betty and I participated. Betty worked to try to pay our way.
After completing Law School in 1967, we returned to Montgomery where I started law practice with the law firm Hill, Hill, Stovall & Carter.[7] We joined Whitfield Memorial United Methodist Church. Betty and I sponsored the Jr. High Youth group. Starting with three members we grew to over thirty members. I also served as a trustee at Whitfield. Our sons Philip and Mike were born and baptized there. I became involved in Huntingdon Alumni work almost immediately after returning to Montgomery. But, in 1970, we moved our residence to Shorter and our church membership back to La Place and eventually Bradford’s Chapel.
During the 1970’s I did legal work for the old Montgomery District of the United Methodist Church, for Huntingdon College, and for a number of local United Methodist churches. I served for a period of time as a trustee of the old Montgomery District.
In about 1970, I became a certified lay speaker in the United Methodist Church. Over the years, it has been an honor to speak in numerous United Methodist Churches all over the Alabama West Florida Conference. Unfortunately, I didn’t keep a diary of those engagements, but the number would probably be one hundred fifty or more churches, quite a number of them on more than one occasion.
While living in Shorter, Betty and I were quite active in both Bradford’s Chapel and the La Place United Methodist Church. For a period of time, we entertained a Men’s Fellowship for the La Place United Methodist Church with a monthly breakfast in our home.[8] Betty and I sponsored a Youth Group at Bradford’s. I taught Sunday School and chaired the finance committee, among other activities and offices at Bradford’s. I occasionally served as a delegate to Annual Conference.
In 1979, we moved our membership to First United Methodist Church in Tallassee. This was before we actually moved our residence to Tallassee. A strong attraction to the Church was its music program. Philip was especially interested in music, and the strong music program appealed to us. Soon Betty, Philip and I were all involved in the choir. Philip and Mike were involved in the children and youth programs. Betty and I served for a period of time as sponsors of the Youth Group.
In 1982, I was invited to serve on the Board of Trustees of Huntingdon College. I served in that capacity continuously until 2004. I chaired the Board from 1995 to 1999. The College fared quite well during my tenure as Chair. I feel that my role on the board was to strengthen the relationship with the United Methodist Church. The College has a stronger and more meaningful relationship with the Church at the time of this document was initially written[9] than it has had for many years. That relationship has continued and improved down to the date of launching this website, in 2020.
Sometime late in 1984,[10] I received a letter from a man named Huey Emfinger, who was District Lay Leader of the Mariana-Panama City District. He was on the nominating committee of the Board of Laity, and wanted me to send biographical information, so that they could consider nominating me as Conference Lay Leader of the Alabama West Florida Conference. The letter surprised me, to say the least. I had never served in any capacity at the conference level of the United Methodist Church. I had no idea what a Conference Lay Leader was supposed to do. My brother, Wade, had served as District Lay Leader for the Montgomery District, so I called him to see if he was expecting to be considered for Conference Lay Leader. He said no. Betty and I prayed over the matter, and sent the requested material. I didn’t even know Huey Emfinger, and really did not expect that I would be nominated. I had no idea how my name had come to the attention of the nominating committee of the Board of Laity.[11] In the Spring of 1985, I received word that I had been unanimously nominated for the position.
I took office as Conference Lay Leader at Annual Conference in June of 1985, and served until 1990. I served, ex officio, on the Boards of the Children’s Home, the Homes for the Aging, the Conference Council on Ministries; and numerous other Boards and Agencies. I attended their meetings. During this period of time I spoke in churches throughout the conference 20 to 30 Sundays each year. The pace was hectic. I would often find myself in a strange pulpit on Sunday morning without having had any opportunity during a busy week as a trial judge to prepare anything. I arrived at one church in Mobile with only the old worn out tennis shoes that I wore in our motor home. I borrowed the preacher’s shoes and told the congregation that I could never fill his shoes! All in all, I learned to speak from the heart, and to filter every word through personal experience. It was a great experience. In 1990, I made the Laity Address to the Alabama West Florida Conference. I attended district conferences in every district with Bishop Lloyd Knox. In 1989, I spoke at the Laity Luncheon at the North Georgia Conference in Augusta. In 1989, I spoke with Bishop C. W. (Handy) Hancock in every district conference on the subject of stewardship
During my tenure as Lay Leader of the Alabama West Florida Conference, I became a member of the Southeastern Jurisdiction Association of Conference Lay Leaders and the National Association of Conference Lay Leaders. I served as secretary of the Southeastern Jurisdiction Association and as treasurer of the National Association of Conference Lay Leaders. Needless to say, I attended the meetings of those groups and came to know lay leaders throughout the denomination.
One of the tasks of the Conference Lay Leader is to plan for the Laity Banquet for the Annual Conference Session. This includes inviting speakers and entertainment. To my knowledge, I invited the first woman speaker; the first black speaker, and the first black entertainer to participate in the event.
The Alabama West Florida Conference is one of the few Annual Conferences in the denomination that had a consistent pattern of growth over the twenty five years while I was active at the conference level. When I took office as Conference Lay Leader, the Conference was badly divided, ostensibly along theological lines, between evangelicals and liberals. The church trial of Dr. Tom Butts had just occurred in 1984. It was the first Church trial in many years—perhaps ever—in the Alabama West Florida Conference. Dr. Butts was a prominent liberal, and had a large following. Suspicions and paranoia ran at a high level. As conference lay leader, I avoided theological issues like the plague. I felt that the division between Liberals and Evangelicals had more to do with church politics and the appointment process than with theology. I urged the laity to remain aloof from all the niceties of the theological differences and to gently but firmly be mirrors, to reflect and feed back to the clergy the embarrassingly petty nature of their differences. I didn’t use those kinds of words, you understand. The “mirror” was our behavior and reaction and feed back. It was existential. It seems to have worked. And to all those “Liberals” and “Evangelicals,” now that I am publishing these impressions—I love you all!
Lest I be misunderstood, I never felt that theology is unimportant. It is extremely important. Each of us is called to faith at the highest level of which we are capable. An adequate theology for some of my uneducated friends may not be adequate for other friends, but remains an inspiration to me. None of us “see through the glass” perfectly. Theologically, I am a neo-conservative. I believe that we must fully engage the powers of our minds and understand all that we can. But ultimately our understanding fades away before the ultimate mysteries of our own existence, our consciousness, and the living, infinite God. We are ultimately relegated to faith—pure faith. (link) Faith provides the substance with which our intellects engage. The glimpse of the infinite God revealed in Jesus Christ is the apex for our faith. Neither the liberals nor the evangelicals would have been wild about my theological position—but that really doesn’t matter.
Huntingdon College awarded me an Honorary Doctorate Degree in 1989. The actual presentation was made at the 1989 Annual Conference Session. To my knowledge, it was the first Honorary Doctorate degree ever actually presented at the Annual Conference. Since then, both Huntingdon and Birmingham Southern have occasionally awarded degrees at the Annual Conference.
In 1988, I was elected to General and Jurisdictional Conference of the United Methodist Church on the first ballot at the Annual Conference. It is my understanding that I was the first Conference Lay Leader ever to be elected to General Conference from our Annual Conference, and the first lay person ever to be elected on a first ballot.
By virtue of being elected first, I was one of our delegation leaders, along with the clergy leader, Dr. John Ed Matheson. Delegation leaders met with the leaders of other delegations from the Southeast on a number of occasions. I came to know both clergy and lay leaders from the Southeast, including many bishops and bishops-to-be. I was elected to General and Jurisdictional Conference again in 1992, 1996 & 2000. In 1996 I was again the first lay person elected, and a delegation leader.
Lay candidates for General and Jurisdictional Conference are nominated by the Districts.[12] Each of the nine districts[13] traditionally nominated five candidates. In 1992 at the district caucus for the old Montgomery District, six names were lifted as possible nominees. Edna Williams, a black lady from Bowen Chapel in Tuskegee was among the names lifted up. She was well qualified. She is the niece of a Bishop in the United Methodist Church. She had just served as chair of the Council on Ministries in our Conference. She was also the sole black person in the group. When the voting was complete, I was nominated and Edna was not. I withdrew my name, so that Edna could be included. Someone asked if I would be willing to accept a nomination if it should occur that any nominee were unwilling of unable to accept nomination, and I said yes. A few days later, I learned that one of the nominees had been a member of the United Methodist Church for only two years and therefore was ineligible, and so my name was included. I also offered to withdraw my name after being elected that year at annual conference, when it appeared that neither Edna nor any other black person would be elected, but eventually Edna was elected without my withdrawal.
In 2000, I was not nominated by my District as a candidate for election to General and jurisdictional conference. I accepted that result with equanimity. I had been privileged to attend in the past, and knew that although it is an honor to be elected, it is very hard work. There was a procedure for nominating candidates at Annual Conference, although it was not used very often, and when used, seldom resulted in election. I was nominated from the floor 1n 2000, and elected to both General and Jurisdictional Conferences. I did not solicit that nomination, and have never solicited a nomination to church office.
As mentioned previously, I was the first lay person elected to General and Jurisdictional Conference in 1888 and 1996. The first lay person and the first clergy person elected to General Conference traditionally serve on the Southeastern Jurisdiction Episcopacy Committee. That is the group responsible for the assignment of Bishops to conferences. I served on that committee along with Dr. John Ed Matheson from 1988 to 1992, and we participated in the decisions concerning assignments of Bishops in 1992. I was instrumental in bringing Bishop William Morris to the Alabama West Florida Conference. He was the first Black Bishop to serve our conference. From 1996-2000, I served on the Southeastern Jurisdiction Episcopacy Committee with Dr. Karl Steagall. Karl and I participated in the decision to bring newly elected Bishop Larry Goodpaster to our conference, and to send Bishop Morris to the Tennessee Conference.
While serving on the Episcopacy Committee, I was one of the draftsmen for rules to bring about a fundamental change in the way we elected bishops in the Southeastern Jurisdiction. The implementing policies prohibited the vote swapping and block voting that had been widespread in our Jurisdictional Conferences in the past. Delegation heads accepted the responsibility of education the delegation and bringing about compliance. It worked. It is now generally accepted that the plan we forged dramatically improved the process by which we elect Bishops. Later I was asked to chair a subcommittee that continued to study the process and make recommendations. By avoiding the temptation to overextend the power of peer pressure and moral persuasion, we protected the gains that had been made. But you can’t take politics out of politics. The process for electing Bishops in the Southeastern Jurisdiction is much better than it once was.
In 1996, I was named by the Council of Bishops to a task force called the Connection Process Team. The CPT was created by the 1996 General Conference and consisted of about 38 persons from throughout the denomination. It was assigned the task of studying the organization of the denomination and recommending changes. The bureaucracy of the Church had become unwieldy, unworkable, and burdensome. While organizational structure cannot, in and of itself, bring about success in an organization, faulty structure can certainly impede success. That much was clear to me from my familiarity with the operations of corporations in general. I was excited about the prospect of rethinking the way we do church. I sought the assignment—the only church job I ever asked for. The actual experience was challenging, to say the least.
Individually, the membership was a talented group of people and it was a pleasure to get to know them. However, politics had preceded the organizational meeting, and two or three people managed to get elected to positions of leadership in the early stages of the process who probably should not have been the leaders. The whole process should have been open, and group driven, but it was not. The leaders had their own agendas and did not want to address the central organizational problems. They may not have realized that such was their motivation. Others were either fellow travelers in commitment to the status quo, too piously “Christian” to disenfranchise the unfaithful leadership, or like me just too bewildered to find an effective solution. As a consequence, we failed to fulfill our charge. I was the voice crying in the wilderness, and became, no doubt, increasingly unpopular with a number of members of the group. We did not produce a viable plan. We did not assess the dynamics that were mal-functioning in the organization. We did not address the structural flaws and deficiencies. I actually wrote a proposal and presented it to the group, but it was unsuccessful. (link) We never developed a shared vision for our Church.
I tried with all the energy I could muster to keep the process focused on what appeared to me to be our assignment. I was unsuccessful. However, the Lord indeed works in mysterious ways. The Connectional Process Team united the Church in opposition to the plan it presented! I must confess that I felt a sense of vindication as a result of the overwhelming defeat of the proposals of the Connectional Process Team by the General Conference of 2000. Despite my disappointment in our product, that the four year, intense study of the denomination, its history, its theological grounding, its organizational structure, and its ministries, offered me unique opportunities for learning and spiritual growth. The meaningful change for which I contended are effectively mandated by laws of economics that apply to our Church’s organizational structure, and if the church does not respond, the result will be disastrous for the denomination. After all, God created the laws of economics.
In 2004, I was again nominated from our district as a candidate for General and Jurisdictional Conference. Usually, after the first couple of ballots the candidates who receive the greatest number of votes tend to continue to receive more votes until they are elected. In the process of balloting, three persons had been elected I was fourth in line for election, and was only one vote away from election for a fifth consecutive quadrennium. The persons elected were all white males, two of them over sixty years of age and all seasoned leaders. Good people, but the prospect was not good at that time for the election to General Conference of a woman, a black person, or a young person. There was an excellent chance that unless something happened to change the course of the election process, all seven candidates to General Conference would be white males. Experience told me that the composition of our delegation would affect our credibility and effectiveness at the conferences. I withdrew my name from consideration, with a plea for a more inclusive delegation. The delegation to General Conference eventually included a young person and two women, including my friend Edna Williams, the black lady from Bowen Chapel. I was elected as an alternate to Jurisdictional Conference, and actually attended as a delegate.
Certain office holders, including the conference lay leader, district lay leaders and delegates to General and Jurisdictional Conferences, are designated as members of the Annual Conference, in order to balance and equalize laity and clergy representation. I served a member of the Alabama West Florida Annual Conference by virtue of various offices continuously from 1985 until 2010.
At the conference level, have served on a Task Force to Study the Location of Annual Conference Headquarters; the Conference Episcopacy Committee (the equivalent of the staff-parish relations committee in the local church), the Committee on Investigations (which would investigate charges against preachers, if necessary) and the Conference Committee on Resolutions. At the District level, I served as a trustee—including one year as chair of the district trustees. I served on the board of Church and Society, which also makes me a member of the District Council. I served as District Lay Leader and on the Board of Laity for three years in the early 1990’s. I have served as legal counsel for the Montgomery Prattville District, and incorporated quite a few local churches and actually dealt with litigation and other legal issues, such as matters pertaining to church properties. I did not charge for my legal work.
At First United Methodist Church in Tallassee, I have serve as a trustee, chair the Long Range Planning Committee, a total a five years as chair of the Council on Ministries, one two year term as chair of the Administrative Board, and a two year term as Lay Leader. As lay leader, I served ex officio on most of the boards and committees within the Church. I served as a Lay Speaker for over 40 years, and have been privileged to speak from our pulpit a number of times. For the past three years I have served as delegate to Annual Conference from our local Church. I teach Sunday School occasionally.
During the late 1980’s and early 1990’s I served on the Board of Directors of the University of Alabama Wesley Foundation. And I served on the Board of Directors of the Tuskegee University Wesley Foundation for several years.
To say that I have enjoyed my relationship with the Church would be a misuse of words. Enjoy is just not what you do with the most important things in your life. Enjoy is much too temporary and superficial. The relationship that I am describing is much deeper than that. I have lived my relationship to the church and to the invisible, immortal realities that it represents. To use James Fowler’s phrase, what I have described here is a large part of the myth of my personal existence. It’s the good part. It is what gives meaning.
The only Church offices that I ever remember seeking out were the certification as a lay speaker and the position on the Connectional Process Team. I never campaigned for any office in the Church. But I have been slow to say no.
[1] The denomination became the United Methodist Church in 1969, when it merged with the Evangelical United Brethren.
[2] Ralph is the only Methodist Preacher that I know of in my generation of the Segrest family. Some of the earliest Segrest emigrants to this country were preachers, according to family tradition, but I have never verified this. A preacher with the Segrest name was appointed to First Methodist in Tallassee early in the 20th Century, but I do not know the family connection. A distant cousin, Neil Segrest, twin brother of the late attorney Broward Segrest and son of Florida and Henry Neil Segrest late of Tuskegee, is a Presbyterian Preacher. A great grandfather of Ralph and me, Rev. James Elizabeth Downing Braswell was a Circuit Rider and is buried at Bradford’s Chapel Cemetery.
[3] Because the College is affiliated with the Church, I count my activities with the College as part of my church work.
[4] Now Troy University
[5] The enrollment at Huntingdon that year was about 1100, if I remember correctly. There were many “town students.” A few years later, the establishment of AUM dramatically impacted on Huntingdon’s enrollment.
[6] Tuition, room and board were about $1100.00 per year at that time!
[7] Now Hill, Hill, Carter, Franco, Cole & Black
[8] At the request of the pastor, we discontinued the fellowship in order to try to develop an even stronger circuit wide group at Bradford’s Chapel.
[9] December, 2004
[10] I was elected Judge in Alabama’s Fifth Judicial Circuit in 1982, and took office in January of 2003.
[11] Although I still don’t know how my name was suggested or by whom, I know that Dr. Roy Sublette (the one who insisted on bringing me to the Sub-District Meetings when I was 11) was director of the Conference Council on Ministries, and Marvin Ennis, a preacher who was at Huntingdon when I was there was on the nominating committee.
[12] For many years, the Alabama West Florida Conference has elected seven lay persons and seven clergy persons to General Conference. Election to General Conference is also election to Jurisdictional Conference. An additional seven lay and clergypersons are then elected to Jurisdictional Conference, for a total of 14 lay and 14 clergy. The first persons elected to Jurisdictional Conference are alternates to General Conference. Usually 4 alternates are elected for Jurisdictional Conference
[13] The number of Districts was reduced from nine to eight in 2004.
by Dale | Sep 17, 2020 | Economics of Law Practice
In the previous essay in this series, I pointed out that the economics of law practice can actually impede the ability of the legal system to efficiently resolve disputes. In other essays in this series, I discuss in depth the economic motivations of both defense lawyers and plaintiff lawyers that contribute to the problem. Before launching into those specifics, however, I need to provide a broad general understanding of the relationship of economics and law in the resolution of disputes. The relationship between law and economics extends far beyond the economics of law practice, but for now I am only discussing the impact the the economics or law practice on dispute resolution through litigation.
Almost all cases that arise in our legal system can be analyzed as an economic problem. Regardless of whether the underlying problem is a tort (such an automobile accident or a fight), or a contract (such as the building of a house, the sale of a car, or a myriad of other transactions), the plaintiff has some type of a claim against the defendant. In most instances the ultimate resolution is the payment of money. This means that the plaintiff has a claim, or an asset which he or she is asserting, that the defendant has an obligation to pay or to buy. The question then becomes how much is to be paid. The legal system provides answers to that question. Ultimately if the parties are not able to reach an agreement themselves, courts assign a value to the plaintiffs claim and requires the defendant to pay that amount. It is not necessary at this point that we discuss in any detail the matter of payment by one side of the other side’s attorney’s fees, which is sometimes required by contract or by statute. But we are deeply concerned with the amount of attorney’s fees and other costs that are involved in resolutions of the disputes.
The service provided by courts and attorneys is conflict resolution. The legal system provides a way for a plaintiff to present his or her claim. Lawyers on both sides participate in the effort to settle the matter, using their skill at predicting possible outcomes, and helping the client evaluate risks. But if the matter is not settled out of court then the legal system itself—judges and juries—provide an ultimate answer and bring a final conclusion to the controversy. Finality is a very important element of the legal process of dispute resolution.
In every economic transaction there are transaction costs. A sale of real estate might involve costs for title insurance, title examination, a real estate commission, etc. These are transactions costs that must be paid. They are costs beyond the payment for the real estate and what the seller receives. The same is true of the purchase of an automobile. There are transaction costs for almost every economic transaction. Transaction costs are an important element of economics.
The cost of attorneys and court costs are transaction costs, when the resolution of legal controversies by courtsis analyzed as an economic problem. The problem that we are suggesting in this series of essays is that the transaction costs for dispute resolution through the legal system have become unreasonably expensive. The economic value assigned to the transaction costs itself might very well equal or exceed the economic value either side of the underlying problem that is being solved. Transaction costs include not only attorney’s fees, but also the court costs, the cost of witnesses, the cost of depositions, judges, court reporters, and the like. Transaction costs are the main factor that renders the legal system inefficient as a method of conflict resolution. This makes finality—regardless of the actual results of litigation—the driving force in the system: disputes must be resolved! Finality winds up being the principle benefit offered by the system.
In other essays in this series, I analyze the economics of law practice, both from the standpoint of economic motives of the plaintiff lawyers and the economic motives of defense lawyers and insurance companies. I suggest that these economic motives, in and of themselves, inflate the transaction costs that are involved in the resolution of disputes presented to the legal system for resolution.
It should be noted in passing that there are many significant problems that the legal system simply cannot address, because lawyers are a necessary part of the process, and there are no funds to satisfy the economic requirements of attorneys. For instance, a faulty refrigerator can be a significant problem for a consumer. But a dispute over a faulty refrigerator can be a very difficult problem for the legal system to effectively resolve. A bad auto repair job can also be a significant problem for a poor individual (or even a well-to-do individual). But again, those types of problems are very difficult for the legal system to address because the economics of resolution in the legal system do not justify the engagement of competent legal services. There is a huge number of such disputes. In some instances, court costs themselves—even in “small claims court where lawyers are not necessarily involved—make court dispute resolution prohibitively expensive. But even for the disputes that the system is economically able to address, the economics of law practice adversely affects the efficiency of the system.
by Dale | Sep 16, 2020 | Economics of Law Practice
This essay is the fourth in a series dealing with the economics of law practice. In earlier essays in the series, I described the strong relationship between law and economics. I pointed out that because the practice of law is a business, the economic motivation of the lawyers handling the litigation can actually make the legal system less efficient for conflict resolution. Now I am dealing specifically with the economic motives of defense lawyers. Quick resolution of legal disputes does not promote the economic interest of the law business. Defense lawyers who charge hourly rates clearly profit from continuation of the conflict. The lengthy period of case preparation justifies a higher percentage fee for plaintiff’s attorneys. To set the stage for further examination of the economic motivation of lawyers, I explained that dispute resolution can be analyzed as an economic transaction. Plaintiffs have an economic claim against defendants. Dispute resolution (including litigation) is a transaction in which the defendant is forced to “buy” the plaintiff’s claim. Often there is a negotiated settlement.
The present discussion will examine in more detail the economic motive of defense lawyers. The Civil War decided that the United States would be involved in the Industrial Revolution rather than continuing as an agrarian economy. The case method of legal education evolved at Harvard University in the 1870’s and quickly spread throughout the nation. Before that, would-be lawyers usually “read the law.” Legal education was not primarily a law school function before the Civil War. But from that time forward, law school has been the primary source of legal education. Large firms that worked for the emerging corporate America evolved very quickly. With the advent of automobiles and the attendant litigation, defense work was often assigned by corporations and liability insurance companies to the emerging corporate law firms.
Then in the 1960s, public interest in law firms began to emerge. They dealt with matters of public interest such a civil rights and indigent defense. And attorneys who represented plaintiffs also became as highly organized as defense firms, claiming the name “trial lawyers,” even though both defense lawyers and plaintiff’s lawyers participate in trials. By the 1960s, it was no longer fashionable for attorneys to “work both sides of the street.” Attorneys were either defense attorneys or plaintiff’s attorneys, with few exceptions. The mythology of the individual advocate, and rugged individualism continues to reassert itself in the Atticus Finch type mythology; but not many lawyers practice all parts of the legal profession in an individualist style.
By the 1960s, defense firms had generally adopted hourly rate billing. By then, liability insurance companies had become significantly involved in the economics of dispute resolution. Liability insurance companies were behind the scenes calling the shots for the defense side of cases. Under those circumstances, defense lawyers have little economic motivation to simply assess the facts about a particular case and recommend quick settlement. The justification articulated by defense firms and liability insurers for refusal to settle is often the necessity for “investigation.” They engage in discovery; i.e. interrogatories, requests for production and admissions, and depositions in order to “evaluate the case.” But discovery is very expensive for the parties who are trying to get their disputes resolved. If an insurer or defense firm were to simply settle the case immediately after the case is presented, the defense firm would not have the opportunity to bill all of the hours that are involved in the discovery process.
In motor vehicle accident cases, liability insurance is a major factor. Often the limits of liability are $25,000. The insurance company is in the background calling the shots. It has little to lose because there is such a relatively low limit on its liability. So the case undergoes expensive discovery. Companies are often able to settle the cases for far less than is actually justified simply because the company has nothing to lose by refusing to pay until the case finally “reaches the courthouse steps” for trial.
The delays caused by the economic motives of insurance companies and defense firms in turn causes plaintiff’s attorneys to charge higher contingent fees to cover their own time investment. The total cost of dispute resolution is disproportionately high in comparison to the amount that is actually required to settle the case. Economists call the costs that are involved “transaction costs.” The transaction costs for the people involved in legal disputes are inordinately high, and threaten the effectiveness of the legal system.
Perhaps this description of the motives of defense lawyers and liability insurance companies seems unfair, but in the next essay in this series, I will examine the economic motives of plaintiff lawyers with an equally sharp critique. The economics of law practice involving the economic motives of both plaintiff attorneys and defense attorneys present significant problems for the efficiency of the legal system in dispute resolution.
by Dale | Sep 15, 2020 | Economics of Law Practice
In the preceding essay in this series, I examined the economic motives of defense attorneys. In this essay, I discuss the economic motives of plaintiffs’ attorneys. Both defense attorneys and plaintiffs’ attorneys must operate their offices as a business, if they are to be successful. They are both motivated to earn a living practicing law. There the similarity ends. Defense lawyers serve corporate America and liability insurance companies, in large measure. They must practice law in a way that is pleasing to corporate America and insurance companies if they are to succeed.
On the contrary, Plaintiffs’ lawyers must attract the attention and approval of members of the general public who have a legal claim. Hence, the obnoxious advertising. Big bucks. Tigers. Prize fighters. Cowboys. Fighting for you! Before the 1960s, Bar Associations generally did not permit that kind of advertising. First the United States Supreme Court decided that fee schedules set by the Virginia Bar Association amounted to price-fixing, in violation of anti-trust laws. Then it decided that restrictions on advertising were a restraint on trade. Finally it concluded that the right of lawyers to advertise was imbedded in and protected by the First Amendment to the Constitution: commercial free speech. The pretextual invocation of the United States Constitution removed the matter from any degree of control by the courts and legislatures of individual States and of Congress. When one backs up and looks at the situation, none of that makes good sense, given the nature of law and the role of lawyers. Law is, among other things, an instrument of government. Lawyers serve a quasi-governmental function, and are often referred to as “officers of the court.” They collect and sell information and advice about how to interpret and apply law. Why shouldn’t such a practice that is dealing in regulation itself, be regulated? But that should be the topic of a whole book, and is suggested here only to give insight into the economic motives of plaintiffs’ lawyers.
By the way, defense lawyers don’t advertise much. You have probably not seen an ad placed by a defense firm. Defense firms don’t have to advertise! Plaintiff’s firms do it for them every law suit drummed up by Plaintiffs has to be defended. The defense bar was organized and practicing its methods of business recruitment long before lawyer advertising emerged. In fact, they at least had to give lip service in opposition to the advertising, on behalf of their clientele. Advertising is a plaintiffs’ lawyer thing. The basic problem is how to get the members of the general public who have a legitimate legal claim in touch with an attorney capable of adequately presenting it. Maybe advertising is better than ambulance chasing. There are no real good solutions. Corporate America and insurance companies are not running over themselves to pay adequate compensation for legitimate claims.
But the efforts to communicate with the public about the provision of adequate legal representation for claims puts the plaintiffs’ bar in the public eye, and makes them vulnerable politically. Something for nothing! Jackpot justice! Runaway verdicts. Political parties become involved. Republicans in Alabama are conservative; Democrats are liberal. Unfortunately, political motivations in Alabama continue to intertwine with race. In other essays, I systematically described the effect of racial demographics on the likely outcomes of litigation. Unfortunately, during the period ending about 2000, when Republicans took over the Alabama Supreme Court, Alabama was referred to as “tort hell,” and there was probably truth in some of the allegations of jackpot justice and runaway verdicts. Now the pendulum has swung almost completely in the opposite direction, and often it is difficult for badly injured people to get just compensation for their injuries.
A conservative legislature put caps on punitive damages. And the Business Council educated the public. Jurors in conservative counties became more conservative. Jurors in liberal counties are not less liberal, but a conservative appellate system holds the lid on the pot. But unfortunately, corporate America has not become more honest as a result of these conservative measures, and never will. The caps on that conservatives placed on punitive damages are a small fraction of the annual salary of corporate executives and high ranking insurance company officers, and the justice system provides little incentive for corporate honesty. Even punitive damages for active wrongdoing are “just part of the cost of doing business.”
Today, plaintiffs’ lawyers have to carefully consider whether they can afford to take on a case. They must find enough profitable cases to stay afloat. They must usually await the long delays of litigation, all the while taking the risk of no recovery at all. So they seek out the cases that can be filed in a favorable venue. In Alabama, that is often the Blackbelt counties, that are already economically deprived, and the atmosphere of litigation makes it more difficult to attract much needed business development.
I am not suggesting that the economic motives of plaintiffs’ attorneys are somehow purer than those of defense attorneys. As a judge, I saw firsthand the quest for jackpot justice. What I am suggesting is that economic motives of lawyers on both sides are real, and have a strong impact on the kinds and magnitude of problems that Courts will have an opportunity to resolve, whether the system will function efficiently, and whether they will produce a just society.
We desperately need a system that will deal with every case efficiently and bring a fair result. The attorneys on both sides need to realize that they are entrusted with the sacred fabric of the law, that it is their responsibility to guide cases through the system to just results. There should never be jackpot justice, something for nothing results; but at the same time, there must be a legal means to attack the most egregious conduct of illegal corporate practices. The temples of justice should not be “dens of robbers.” Lawyers on both sides should be adequately and fairly compensated for accomplishing just results.
I discuss the anomalous role of liability insurance in a separate essay.
by Dale | Sep 14, 2020 | Economics of Law Practice
In this series of essays, I have concentrated on the economics of law practice. I have discussed the economic motives of plaintiff lawyers, the economic motives of defense lawyers, and the fact that the combination may impact adversely on the ability of the legal system to efficiently resolve disputes. This essay focuses on liability insurance and will complete the discussion of the economics of law practice. Liability insurance companies exist because of litigation, and their existence and actions have a major impact on the legal system. It is time that the functions of insurance be carefully reconsidered.
Liability insurance has been around for a long time. While the concept existed prior to automobiles being produced on assembly lines, the concept of liability insurance took a major step forward with the advent of the automobile. Liability insurance also extends generally to almost any business activity. In the modern world: it is not considered prudent to operate any type of business without liability insurance. State law generally requires that there be liability insurance in place before an automobile is operated on a public highway. State law also provides that in the event that a tortfeasor in an accident on a public highway does not have liability insurance or if the insurance is inadequate, that the insurance company for the injured party provides uninsured or underinsured motorist coverage.
When the concept of liability insurance was first proposed, there were significant policy arguments as to whether liability insurance is a good idea. It was argued that for an insurance company to assume financial responsibility of tortfeasors could have several undesirable effects. One concern was that the person with insurance might be less inclined to be careful. That concern probably was unfounded. A more worthy concern in the realm of economics is whether the existence of insurance would encourage litigation. It certainly has. The defendant’s insurance makes litigation by the plaintiff and his attorney economically feasible in many cases in which it would not be economically feasible otherwise. Insurance probably lends aid for the disastrous results suffered by plaintiffs in accidents to a greater extent than it assists the defendant who pays the premiums.
The actual function of insurance in the modern legal economy is quite beneficial, even though it encourages litigation that would not otherwise be possible. People can be badly injured in automobile accidents and business transactions. The existence of insurance provides partial or total compensation for the losses that are suffered by the injured parties. Insurance spreads the risk of loss. Can liability insurance compensate the injured party and at the same time also produce normative force that requires the exercise of care by the potential defendants. To some extent, educational programs called “risk control” associated with the costs of insurance has normative force on corporate business practices.
But spreading the risk of loss and providing adequate compensation to the injured party is the greatest benefit provided by insurance. That economic justification, however, is not well recognized in the operation of the judicial system. Despite the fact that everybody and his brother knows that it is illegal to operate a vehicle on a public highway without insurance, the mere mention of insurance in the course of a trial justifies an immediate order of mistrial by the judge. The system still assumes that the case deals only with the injuries of the plaintiff and the negligence of the defendant. It assumes that the defendant will stand for the loss. Obviously, that is just false. The maintenance of the fiction that only the plaintiff and defendant are involved in the litigation, and the continued practice of the judicial and legal system of ignoring the mandatory existence of insurance feeds the undesirable effects of the economic motivations of plaintiff lawyers and defense lawyers and the insurance companies themselves. It ignores the pervasive systemic effect of liability insurance. We have described the inordinate transaction cost that renders the legal system ineffective. If our legislature, courts, and attorneys would take a closer look at the underlying role of insurance and come up with different economic practices for dealing with claims, the system could be improved immeasurably.
The ironic truth is that businesses and car owners must pay for insurance that ultimately is obviously for the benefit of the injured plaintiff who brings a law suit against the person who paid the premium. The focus of insurance remains on defense for its tortfeasor rather than compensation for the injured party. A slightly different conceptualization that recognizes the obligation of the insurance company to the injured plaintiff could dramatically improve the ability of the legal system to adequately resolve disputes more efficiently.
by Dale | Sep 13, 2020 | Essays on Criminal Law
Sometime after William the Conqueror successfully invaded England in 1066, the new line of kings decided they needed help rounding up local criminals to prosecute. Accordingly, they organized groups of local citizens who could keep up with what was going on in the local area to report crimes to the king and whenever his court visited the town. That was how grand juries to started. The process continued to evolve, and prosecutors began to utilize the grand jury to bring about indictments.
After the successful American Revolution, the United States and the newly organized states imported the grand jury idea into the American Justice System. The antiquated practice that only grand juries can issue indictments for felonies in Alabama and a few other states. Unlike the community watch function of the original grand juries in England, the current system pulls citizens out of their busy lives to sit and basically rubber-stamp the wishes of prosecutors. Law enforcement investigates crimes that have been reported, and the District Attorney presents cases to grand juries. Very seldom does a grand jury take any initiative of its own in the identification and prosecution of crimes. Very seldom do they depart from the recommendations of the District Attorney. Only the prosecuting authorities usually present evidence to a grand jury. There is no “defense attorney” involved. If no indictment is returned, the prosecutors can always report to those who were anxious for there to be a prosecution that “the grand jury failed to return an indictment” even though they know that there was insufficient evidence, and likely recommended that the grand jury “no bill” the case. And if the indictment is unpopular, the District Attorney blames the indictment on the grand jury. That is a convenient political tool.
Grand juries were abolished in England in 1933, over eighty years ago. Only Alabama and a few other states continue to require an indictment by a grand jury to commence a felony prosecution. Grand juries are a colossal waste of citizen’s time and of tax payer’s money. It is time for the state of Alabama to join with the majority of other states in abolishing grand juries. By abolishing grand juries and having the District Attorney simply takes the responsibility (which is already the case, in fact) of deciding who will be prosecuted and commences the prosecution. Elimination of grand juries would eliminate a lot of inconvenience to a lot of people. Alabama should eliminate the imposition on victims, witnesses and jurors. It would be a simple matter to authorize prosecutors to commence the prosecution on their own initiative. That happens in most states, so there are plenty of examples of appropriate legislation.
One of the many advantages of doing away with grand juries is that it could materially speed up the criminal justice system. There is no reason to wait for a grand jury to convene for a criminal prosecution to be commenced. In many rural Alabama counties, grand juries are convened only twice a year and this means that the commencement of the prosecution is often delayed for months.
Another great advantage is that it would simply process for victims and witnesses. The current system of criminal justice is an obstacle course for victims and witnesses. First, there is the possibility of a preliminary hearing. The purpose for the preliminary hearing is to determine whether there is sufficient evidence to bind a case over to the grand jury. At least, theoretically, that is the basis for a preliminary hearing. As a practical matter, the usual function of a preliminary hearing is to allow the defendant to explore evidence that the state is offering in support of prosecution. But in any event, the victim and witnesses have to appear if there is a preliminary hearing. Then there is the grand jury proceeding. Again, the victim and witnesses must appear and give their testimony. And then they must testify a third time at trial. To require victims and witnesses to appear in court three different times is just not necessary. And there is no disadvantage to defendants: the grand jury proceedings are secret proceedings and the defendants don’t necessarily know about them and seldom participate in them.
Law enforcement officers involved in the criminal prosecution, of course, have to come and testify at preliminary hearings, grand jury and trial.. Prosecutorial time and talent is wasted on the non-profitable preliminary requirements.
It is time for Alabama to join with the majority of the other states in the union and do away with the necessity for grand juries for the commencement of felony prosecutions. Surprisingly, with all of the emphasis on the need for a more effective budget and for the many complaints about the ineffectiveness of the criminal justice system, I believe that I am the voice crying in the wilderness in Alabama concerning this waste of time and resources on grand juries. Preservation of some role for the grand jury in the investigation of the misconduct of public officials and governmental functions might be appropriate.
by Dale | Sep 12, 2020 | Miscellaneous Topics
Many of the earlier essays in this group of essays focused on various causes of ineffectiveness of the legal system. Most recently I dealt with the extreme ineffectiveness and waste of time that is involved with grand juries in the State of Alabama. In other essays, I focused on ineffectiveness that results from the economics of law practice. This column will continue the focus on ineffectiveness in the legal system. The judicial system itself has certain built in problems.
Trial court judges are overloaded with responsibilities and overworked. Caseloads are large. The effectiveness of a trial judge depends to some extent on the motivation of the particular judge. The ultimate responsibility for decision making rests with the trial court judge in most instances. There is little supervision of the day to day work of a trial court judge.
The appeal system, which will be the subject of a later essay in this series, certainly does not provide supervision. At best, if the trial court judge makes a mistake it can be reversed by an expensive appeal process after the lapse of several months. That does not constitute any real supervision. There is the judicial inquiry commission, if the judge’s conduct steps considerable outside the norm. But in the normal course of events the work of a trial court judge is unsupervised. Ultimate responsibility must rest somewhere, and for our legal system, it rests with the trial judge. “The buck stops” with the trial court judge, in large measure. For the system to be effective, judges must be totally honest, bright, and have strong work ethic.
There is an ethical provision that requires a judge to report to a bureaucracy any cases or matters that have been under submission for more than six months! Why should any matter ever remain under submission for over six months at any time? Based on my experience as a circuit judge, I know that often a circuit judge deals with dockets involving thirty or forty cases on any given day. If ten matters are taken under submission each working day, that would add up to fifty under submission in a week. That would be two hundred matters in a month. In six months it could be a whopping twelve hundred matters. Of course, some of those matters would have been decided in the meantime. Nevertheless, simple mathematics tells us that, if there is an average delay of just two months in deciding cases, the judge will always be required to remember the details of several hundred different matters. Judges are human, and the human mind just doesn’t work that well.
Effectiveness requires a quicker turnaround. While we are talking about the psychology and mental aspects of retaining mentally sufficient information to make good decisions, we should remember that the largest amount of memory loss occurs on the first night’s sleep after exposure to pending matters. Recall does not improve with the passage of time for a judge any more than it does with anyone else. If notes become cold, the facts are difficult to recover, and who can keep up with several hundred sets of notes?
The hope of lawyers and litigants that the judge is spending a great deal of time meditating on a decision in their case is often without any real basis in fact. Congestion of the docket brings about delay and delay does not make the decision making process any more effective or efficient. First impressions are often the best impressions and if a judge is reasonably convinced after hearing arguments, then there should be little delay in making the decision. A quick turnaround on the decision making process will improve the effectiveness of decision making in most instances. Needless to say, there are, from time to time, complicated legal issues that require study and careful analysis and the judge needs to identify those cases and spend the required amount of time engaged in the study. However, the matter of routinely taking cases under submission and not making a decision within the most optimal period of time is very detrimental to the effectiveness of the legal system. While some systems of accountability may be helpful, the only real solution will always remain in the integrity and work ethic of the judges themselves.
by Dale | Sep 11, 2020 | Miscellaneous Topics
Individualism in the legal profession, like other walks of life, thrives on legends and myths. The profession cherishes certain images. One of these images is the image of the rugged individual.
Rugged Individualism is an important part of the American tradition. Pioneers were rugged individuals. The legal profession, an adversarial profession, cherishes this image, but it is not an accurate image of the profession in modern times. In the days of pioneers, it probably was a reasonably accurate image of the role of lawyers. Up until the Civil War the primary method of legal education was apprenticeship. Would-be lawyers “read” the law in the office of practitioners. There were no large firms. Law schools were not an important part of the picture. Individuals were the practitioners. Practitioners such as Daniel Webster, Abraham Lincoln, and Henry Clay certainly fit the definition of rugged individuals. They were powerful orators. They developed strong reputations. Their trials attracted audiences.
The Civil War, and its aftermath, brought many changes to the legal profession. Regardless of many other cultural causes, the Civil War, in a large sense, was about whether there would be an industrial revolution in the United States. It pitted the Northern industrial economy against the Southern agrarian economy. The central commodity for both was cotton. Slavery was an adjunct feature of the agrarian economy and became a popular cause. There were strongly held anti-Slavery sentiments, but they did not precipitate the war. But as the saying goes, “All is fair in love and War.” It was inevitable that the industrial political forces would take advantage of the strong anti-slavery emotions. It is a bit ironic that at the same time the union forces were “dealing with the slavery issue,” the were also removing native Americans from their own lands—taking their land by military force. The underlying roots of the Civil War were strongly embedded in the desire for industrial progress. The question was whether politics would be controlled by an industrial economy or an agrarian economy.
Cotton was the principle commodity at issue. The industrial revolution in the United States began with the cotton mills of Lowell Massachusetts. Of course, railroads and manufacturing were also important elements of the industrial revolution. The War decided the issue in favor of industrialism. Shortly after the Civil War ended, in 1871, Harvard Law School launched the case method of study for law schools. Under the leadership of Dean Christopher Columbus Langdell, the case method put a double twist on the idea of precedent in the law. Not only was the previous case a source of law and basis for a decision, the study of earlier cases became the primary method for the study of law. This seemed to show that courts “make” law.
Civil War veteran, Oliver Wendell Holmes, Jr. was one of the Harvard Law School professors. He was also a member of the “Harvard Club,” along with the great American psychologist/philosopher, William James. Holmes would become an important legal philosopher and Chief Justice of the Supreme Court. No doubt seeking to find a foundation for law base on the strong sentiment for empiricism that was consistent with the pragmatic thoughts of the Harvard Club, he made statements like “Law is what a court does.” This furthered the idea that courts actually make law rather than finding it in the beliefs and practices of the culture. (It is one thing for courts to “make” law in struggling to properly decide a case; it is quite another for courts to use the decisions in a case as an excuse to preempt the work reserved to the legislative branch.) But this was the milieu in which law school came to be the accepted means of legal education.
Corporations controlled industry. Large law firms like the Cravath Firm in New York quickly became the advisors to the developing corporate America. Ownership of property quickly transitioned from individual ownership to corporate ownership with individuals being stockholders who did not manage the wealth. As law firms developed, the “A” students were hired by the leading law firms, who worked as teams of specialists, and became the advisors of business. Rugged individuals were not in charge.
Even in the changed environment, the mythology of individualism in the practice of law continued. After the turn of the 20th Century, there was the famous Scopes Monkey Trial in Tennessee pitting Clarence Darrow against William Jennings Bryan. The famous names helped to perpetuate the myth of the importance of individualism in the practice of law. However, the main business of advising the railroads and burgeoning corporate America rested with the proliferating large law firms. The actual practice of law as it affected the development of America was not in the hands of individual solo lawyers.
Nevertheless, the imagery is still a highly romantic notion that affects the self-perception of the members of the legal profession. The State of Alabama, during the first half of the Twentieth Century was gradually emerging from the agrarian economy and moving toward the industrial economy. That provided the perfect setting for To Kill a Mocking Bird . In the pleasant glow of that romantic notion of lawyering, the Alabama legal profession in recent years formed the “Atticus Finch” Society. While the bedrock virtues of total honesty, and loyalty to the client, the legal system and the truth remains absolutely necessary for the successful operation of any legal system, reality today does not sustain the Atticus Finch role model in the actual operation of the legal system any more than doctors making house calls provides an adequate image for today’s medical care.
The reality of law today is dominated by and exists in a complex corporate environment. The image of individualism is no longer a valid working model for attorneys. We need to find new images that retain all of the necessary virtues.
by Dale | Sep 10, 2020 | Miscellaneous Topics
The concept of natural law was the prevailing philosophy of law throughout the formative period of modern nation states. The idea was that law is something that occurs naturally. It exists in nature, and is there to be discovered. Nature, of course, includes human nature and the nature of human society. In general the created order of nature, some solutions to problems are better than others. Under natural law theory, the task of courts and legislative bodies is to find that law and declare it.
At about the time the United States came into existence, a philosophy of law called legal positivism asserted itself. The theory of legal positivism is that law originates purely in human intellectual activity. Humans simply invent law. When the United States Constitution was adopted; the idea was that the Congress (and state legislatures) composed of people who are chosen by democratic processes, would create laws. The Courts would decide cases by applying the law created by the legislative branches of government. The executive branch would carry out enforcement of the law and provide government. All of that was embedded in the United States Constitution with its treasured concept of a separation of powers. Theoretically the branches of government would hold each other in check, preserving liberty to the people.
Early in the history of the United States, the question arose as to which branch-legislative, judicial or executive-would have the power to ultimately declare the meaning of the United States Constitution. In the landmark case of Marbury v. Madison the United States Supreme Court decided that it had the authority to examine federal legislation (obviously produced by Congress) to determine whether that legislation is consistent with the Constitution. This decision was made against the background understanding that the legislative branch makes laws, and courts decide cases. From that time forward the Supreme Court asserted the right to declare legislation that is inconsistent with the Constitution unconstitutional and unenforceable.
That issue came back to the forefront during the Great Depression when the conservative Supreme Court of the United States declared New Deal legislation unconstitutional. Roosevelt even threatened to stack the Supreme Court with new members in order to allow his legislation to be declared constitutional. Although he did not do that, during his 13 years in office he appointed a much more liberal Supreme Court that made decisions much more consistent with his thinking.
During the second half of the 20th century, a new era arose in constitutional law under the direction of that liberal Supreme Court. Up to that point, the Supreme Court had limited itself to overturning federal legislation and if it were inconsistent with the constitution. However, during the second half of the 20th century the court began to declare positive law based on its interpretation of the Constitution. For instance in the case of Miranda v. Arizona, the Supreme Court spelled out exactly what a police officer had to say to a suspect in a criminal case before interrogating that suspect. The now famous Miranda Warnings were not statutes enacted by Congress, but were requirements declared by the Supreme Court of the United States. Note the huge difference between declaring legislation unconstitutional on the one hand, and declaring positive law based on what the Supreme Court thinks that the constitution means on the other. Many other instances of declaration of positive law occurred.
The Supreme Court of the United States appeared to actually select cases for the express purpose of declaring positive law, a function which most of us thought the Constitution reserved to Congress. That assigns to the Constitution an oracle-like quality. What does the Constitution have to say about abortions or gay marriages? I suspect that the writers of the Constitution would be shocked to find that anybody believes that the Constitution had anything to say about either of those topics or other topics for which the Supreme Court has used the Constitution as a theoretical basis for the declaration of positive law.
One of the problems for the natural law theory was the question as to who declares the natural law. At one point in time, the church assumed that role. When the legal positivist movement began, courts were severely criticized for declaring positive law under the guise of “finding” natural law. By any reasonable standard it would certainly appear that the oracle-like approach to the United States Constitution by the federal courts is subject to that same criticism today. With natural law the courts could look to the entire wisdom of the culture. The legislative branch could change the law to reflect the will of the people. But when the United States Supreme Court makes declarations of positive law in the name of the Constitution, their decisions cannot be reversed by the legislative branch. This is a far cry from Marbury v. Madison and review of legislation to determine if it is constitutional. When Congress was creating law, it made sense for courts to review. But who can review the positive law declared by the court? What happened to the checks and balances insofar as the court system is concerned? And how is that a just power, derived from the consent of the governed?
by Dale | Sep 9, 2020 | Arbitration Issues
Arbitration is a method of private dispute resolution that usually doesn’t involve courts. Many of the States, including Alabama, had a stated policy specifically excluding the possibility of contracting away the right to go to court before federal legislation preempted state law and declared policy favoring arbitration. In 1925, Congress enacted the Federal Arbitration Act to require dispute resolution through arbitration if the parties to a contract agree to binding arbitration for dispute resolution. In the 1980s, the Supreme Court upheld that legislation and after that, arbitration quickly expanded. Arbitration has now displaced the role of courts in most matters involving a contract, regardless of the nature of the dispute. The provisions of that Act are binding on both state and federal courts. Those who enter into an arbitration agreement must submit to arbitration rather than going to court. The Federal Arbitration Act applies to all transactions involving interstate commerce and overrides any state law to the contrary.
While the law seemingly went somewhat unnoticed in Alabama, and perhaps other states, until 20 or 30 years ago, since that time, arbitration has largely superseded the availability of court remedies in connection with any matter involving interstate commerce where anyone has entered into a contract with a corporation. Purchases of automobiles, disputes about employment, and other instances that pit corporate America against individuals are well within the coverage of the law.
Arbitration has become large business. Arbitrators are paid well for their services. With corporate America often pitted against consumers and private individuals, the economics of arbitration make the playing field very uneven. While the results of arbitration are often private and confidential, the corporations of America that engage in the process are likely to know the results. After all, they engage in arbitration far more frequently than the isolated individuals. Arbitrators who favor corporate America are much more likely to be successful than those who favor the individuals who use arbitration services only one time. With regard to justice, the same fault exists that caused Judge Frank Johnson to find the work of Alabama justices of the peace who had a financial interest in the outcome of the cases they heard to be unconstitutional.
The United States Constitution has two clauses of interest in analyzing the soundness of arbitration as public policy. Article III, Section 1 provides that, “The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” The article goes on to provide for the financial security of judges so as to make certain that their impartiality is not threatened by the outcome of cases. In other clauses, the executive power is vested in the President, and legislative power is vested in Congress. State constitutions generally provide for a similar separation of powers. Separation of powers is generally considered a fundamental protection of the liberty guaranteed by the United States Constitution. Access to courts is also a part of that freedom.
The second constitutional provision of interest is found in Article I, Section 10 of the Constitution which provides, “No State shall…pass any…law impairing the obligation of contract….” At the time the Constitution was written and adopted in 1789, the study of modern economics was a relatively new science. Adam Smith had published The Wealth of Nations in 1776, the same year that colonies declared their independence in the Declaration of Independence. Contract rights, the enforcement of contract rights, and property rights are a basic assumption of the economic theories posited by Smith. The importance of these elements for economic development did not escape the writers of the Constitution. Economic theory requires adequate provision for enforcement of contracts and property rights. An arbitration agreement is, in a sense, a contract; but it presents a conundrum. It is a contract to privatize the very right to enforce the contract in court.
The Federal Arbitration Act has been upheld as being supported by the Constitutional provision related to freedom of contract and under the commerce clause. That finding ignores the fact that in passing the Federal Arbitration Act, Congress passed a law that vested arbitrators with the judicial power of federal and state governments and divested the courts of that power. There is generally no appeal from a finding and award made by an arbitrator. One is reminded of the Islamic idea of justice in which there is no appeal from the local tribunal. If an arbitrator makes a mistake of law or fact *** well, ***too bad! So much for the old adage that everyone is entitled to his or her day in court.
by Dale | Sep 8, 2020 | Arbitration Issues
This essay, like the preceding essay in this series, focuses on the privatization of dispute resolution in arbitration. Congress enacted The Federal Arbitration Act that required arbitration in all matters involving interstate commerce where there was an arbitration agreement many years ago. In the 1980’s the United States Supreme Court upheld that legislation. Since that time there has been extensive privatization of a very large amount dispute resolution. With rare exception Court proceedings are public proceedings, but arbitration is not public. Juvenile Court proceedings are a recognized exception, but, in most other cases a judge must carefully examine and articulate policies for privatizing dispute resolution. The public has a very legitimate interest in dispute resolution for many policy reasons. For instance, in criminal cases, the defendants are constitutionally entitled to a speedy and public trial. There is little to be said for resolving disputes in which the public has a very legitimate interest behind closed doors.
Most legislative bodies have adopted “sunshine laws” so that the business of almost all governmental bodies are open to the public. This recognizes that it is not a good idea for matters of public interest to be debated and decided behind closed doors. It is very important for the public to have access to information regarding the resolution of significant disputes. The resolution of a dispute, when decided by a court, results in a precedent. The reasons for deciding a case a certain way in one instance will provide good reasons for deciding it the same way if similar circumstances arise again. Precedent has been an extremely important element in the preservation of a consistent body of law in the Anglo-American system. Stare decisis assures consistency.Public trials and the reporting of the results enable the general public to formulate a decision making process in order to comply with the law. Christopher Columbus Langdale instituted the case method of Law Study at Harvard University in 1871. That method quickly spread to law schools all across the nation.
Harvard Professor Oliver Wendell Holmes, Jr. who would later become Chief Justice of the United States Supreme Court, stated that “law is what a court does.” If most important commercial disputes continue to be resolved behind closed doors; what will commercial law be fifty years from now? What will employment law be fifty years from now? In arbitration, the results of the dispute resolution are not usually available for public scrutiny. The case method—study of cases—has been the central tool of law school education since 1871. But law schools cannot examine the process and reasoning by which arbitration decisions are reached. The similarity of the words arbitration and arbitrary is frightening. The decisions of arbitrators are not reported and cannot be systematically collected. Law Schools cannot instruct students on the meaning of arbitration results. Lawyers do not have access to the results of arbitration, to analyze for future use in advising clients.
The First Amendment to the United States Constitution has been construed to require public access to this type of critical information. We seldom hear, however, of news media filing First Amendment lawsuits in order to gain access to arbitration proceedings. The State of Delaware undertook to have its court proceedings involving commercial disputes resolved by Chancery Judges who would conduct proceedings similar to arbitration. They would deny access to the public. The Supreme Court of the United States, that had decided that it was permissible for Corporate America to write contracts requiring the persons with whom they do business to arbitrate their disputes, decided that Delaware could not use such proceedings. This appears to be totally inconsistent and appears to overlook the policy problems concerning the privatization of commercial disputes in arbitration.
Corporate America—the large corporations—have now constructed elaborate “dispute resolution” procedures to deal with their employees and their customers. Their “dispute resolution procedure” is often more cumbersome than court proceedings. Disputes are resolved behind closed doors. Even if a large corporation grossly mistreats one or more of its employees, that dispute is not likely to gain the public eye and public attention that it deserves. There is no appeal from the results of arbitration. Therefore, in most cases, there are no appellate decisions that are available to the public.
Arbitration deprives the public of critical information. It conceals from the public important aspects of dispute resolution in matters of extreme importance to the on-going affairs of this nation. It is not just a matter of depriving individuals of their day in court—it is a matter of depriving the public of critical information concerning how disputes are resolved. It represents abdication of responsibility by the Judicial Branch of government.
by Dale | Sep 7, 2020 | Miscellaneous Topics
At the time I wrote this essay as an oped for the Alabama Gazette, I was teaching a course about faith in my church. I make the rather obvious point that faith is what we really believe. I’m afraid that sometimes we don’t really believe what we say we believe. We always act consistently with our faith. Jesus said, “Ye shall know them by their fruit.” But if our actions always reflect what we believe, then why don’t we always do what we know is the right thing to do?
Plato thought if a person knows what is right, he or she will act consistently with that knowledge. Plato has a following. A Twentieth Century expert in moral formation, Lawrence Kohlberg, built his cognitive developmental theoryof moral development on that premise. At first blush the Plato/Kohlberg position appears to be consistent with my contention that we always act consistently with our faith. But St. Paul said it well when he said “The good which I would, I do not, but the evil which I would not, that I do.” Flip Wilson may have explained it all when he said “The devil made me do it.”
Learning correct principles of moral behavior is very important. If we don’t know what is right, there is a strong probability that we won’t do what is right. We need to know what is right. However, Plato and Kohlberg were wide of the mark with their theory that if we know what is right we will do what is right. Merely “knowing” is not enough. Knowing is not complete faith. Faith involves emotions, as well as cognitive learning. Faith is what we believe with our whole heart. The “knowing” has to connect to the emotions to produce right behavior. If moral training that connects the emotions to knowledge of right doesn’t happen in early childhood, learning that occurs later in life may not cure the problem. Psychologists Sigmund Freud and Eric Erikson nail it in their psychosocial theory of moral development. They recognize the role that emotion plays in moral development. Parents and peer group install the conscience. We don’t always act consistently with correct moral principles that we “learn,” but we are quite likely to act consistently with those principles if parents and peer group embed them in our emotions.
Even when we knowingly do things that we shouldn’t do, an understanding of faith provides the explanation. We always act consistently with what we believe at the moment, even if the belief is simply that we can get away with things that we should not do. In the fleeting but permanent slice of time that we call “now,” when all action takes place, what we do always reflects what we believe, even if shame and remorse overtake us immediately afterwards.
A properly installed conscience is more than shame. It is more than fear of detection. Whatever it is within us that watches our thoughts and connects to our feelings governs behavior. It pushes us to achieve the ideal self or ego-ideal posited by Sigmund Freud. The ego ideal is the good person that we want to be.
A well-developed sense of duty is and always has been essential for human progress. It usually brings about proper behavior. Moral behavior makes the group more efficient. Moral requirements serve the needs of the group. Human survival and social evolution depend on individual conformity to the requirements of the group. A properly functioning moral system promotes human progress. The belief that we might “get away with it” does not always (or even most often), override moral convictions. Sound moral development usually produces morally correct behavior without necessity for outside compulsion. Knowingly doing what is wrong demonstrates inadequate moral formation. The “internal observer” (Freud’s superego?) watches over our thoughts and feelings looks at the knowledge of what is right and wrong, the possible embarrassment of detection, damage to our ideal image of our self that will result from immoral behavior, and makes a judgment about what to do.
If there is a violation of moral expectations, the group will exert moral force to try to make the individual take responsibility for any damage resulting from inappropriate conduct, The group’s greatest ally is a properly installed conscience.
[You may check the names mentioned and the terms italicized in this article on the internet for more information.]
by Dale | Sep 5, 2020 | Arbitration Issues
Earlier in this series, there are essays describing the dangers that are inherent in corporate America’s ability to impose arbitration on the consuming public. I pointed out that the power of dispute resolution is vested in the courts and that when dispute resolution is privatized, the public is deprived of its right to know. The present essays deals with a new and additional problem with arbitration law as declared by the United States Supreme Court.
On December 14, 2015, the United States Supreme Court decided the case of DIRECTV v. Imburgia, which deals with arbitration. DIRECTV had entered into a contract with all its customers that contained an arbitration clause. The arbitration agreement also contained a provision that if the law of the customer’s state outlawed a waiver of the right to bring arbitration on behalf of a class, then the contract of arbitration would be unenforceable. The Imburgia case arose in California. A statute in California provided that a waiver of the right to a class action contained in an arbitration agreement was unenforceable. Based on this statute, California courts held that the arbitration agreement was void. Seemingly, the California court followed the precise wording of the contract. However, the United States Supreme Court decided that the California statute which purported to make waiver of the right to a class action unenforceable was itself pre-empted by federal law and was, therefore, unenforceable. Therefore, the Court reasoned, the arbitration agreement was enforceable. The result would appear to be that, regardless of how many small claims presenting identical issues against DIRECTV there might be, the California consumers would each have to maintain his or her own separate arbitration proceeding in order to gain relief. That result, of course, undermines any possibility of meaningful relief, despite the fact that DIRECTV may have been charging thousands of customers small amounts of money inappropriately.
This case is the very type of case that class actions, which are authorized by both federal and state law, were intended to remedy. The undesirable result does not appear to have been necessary. The clause in the contract that provided that the arbitration agreement was invalid if waiver of class arbitration were illegal appears to be a meaningful clause. It too was part of the contract. The Supreme Court itself admitted that at the time the form contract was created, the parties would have believed the California law barred waivers of class arbitration: “…when DIRECTV drafted the contract, the parties likely believed that the words “law of your state” included California law that then made class-arbitration waivers unenforceable.” However, because the United States Supreme Court had decided that arbitration is a matter of national policy, under no circumstances could there be any state in which such a clause would be valid. Thus, the provision in the contract was rendered completely null. It is not clear why the United States Supreme Court did not cite the Constitutional provision protecting contracts and say that even though California law has been pre-empted by federal law, the parties contracted to follow it. For the Supreme Court not to honor that contractual provision violates the provision of the United States Constitution that protects contracts.
The legal issues involved in this matter could be argued either way. However, when it comes to the underlying policies, it does not appear to this retired country judge that any wise policy supports the result reached by the Court. Sound law is always based on sound policy. To say that a large corporation can do whatever it wishes to numerous customers, and the remedy of a class action not be available, either in court or in arbitration, because there is an arbitration agreement, and because consumers have waived that right to a class action, is a very bad decision that simply tramples the rights of ordinary people into oblivion.
To their everlasting credit, three of the Justices—Thomas, Ginsburg, and Sotomayor—recognized the problems with the decision in a scathing dissent: “It has become routine, in a large part due to this Court’s decisions, for powerful economic enterprises to write into their form contracts with consumers and employees no-class-action arbitration clauses. *** These decisions have predictably resulted in the deprivation of consumers’ rights to seek redress for losses, and, turning the coin, they have insulated powerful economic interests from liability for violations of consumer-protection laws.”
It is time for Congress to severely restrict the Federal Arbitration Act and to require the courts to resolve disputes and protect the rights of all the citizens of the United States of America. If that is not the law, then the Supreme Court needs to remove the words Equal Justice for All from its building.
by Dale | Sep 4, 2020 | Miscellaneous Topics
It seems that every time I answer the phone these days it is a new opinion poll. The pollsters have even gotten into cell phones. I probably receive at least twelve or fifteen such calls each week. The calls are intrusive and excessive. The benefits arising from the overburden of surveys is highly questionable. This essay was written for the Alabama Gazette in early 2016, and I receive fewer calls from pollsters now. However, the problems with polls and polling persists.
The problems facing government these days are highly complex, to say the least. Most of us have our hands full simply dealing with the problems that confront us in daily life. So what is the wisdom of politicians seeking opinions from people who, prior to hearing the question, have not given any critical thought to the issue that is raised. Compiling all of the ignorance in the United States is not likely to create wisdom. The solutions to complex problems requires critical thinking.
In many instances the solutions to the problems confronting the United States will require new and imaginative creative thinking. Unfortunately, there is a well-recognized tendency amongst us human beings to reject or attempt to destroy anything that we do not understand. Thus creative solutions to problems are not likely to fare well in public opinion polls. Opinion polls are likely to appeal to the very worst in human nature, invoking prejudice and knee-jerk reactions.
I suspect that a large number of people, among them some of the most intelligent people, find the opinion polls objectionable. These intelligent people probably hang up the phone without responding. If this is the case, then certainly this practice of intelligent people calls into question the statistical validity of the huge number of public opinion polls conducted by telephone. Many of the polls are anything but impartial. The prejudices of pollsters are likely to be reinforced by the opinionated people who are anxious to respond to the pollster’s questions, while those on the opposite side tend to hang up.
The impression is that many of the polls are actually instigated by political candidates. If the results of the poll are not beneficial to the candidate, what is the likelihood that the results will be published? What is the likelihood that a political candidate paying for a poll during the political season simply to inform himself or herself as to how the public feels, in order to make informed political decisions? But if the results turn out to be favorable what is the likelihood that the candidate will publish the results? What is the likelihood that the publication of such polls will adversely affect the wisdom of public opinion?
All of this is not intended to suggest that the well-considered opinion of the public is unimportant. In another essay I have described the crucial role played by consensus reality that is actually built on public opinion. The purpose of this essay is to simply suggest that the polls as conducted are not likely to elicit wise public opinion. In order to be valuable, public opinion needs to be well informed public opinion. It does not need to be opinion expressed after hard day’s work during which no thought whatsoever was given to the issues raised by the pollster.
This discussion suggests important issues. First it is clear that opinion polls, as presently conducted, are not a desirable way to deal with the determination of public opinion. One of the underlying problems is that most members of the general public do not have enough information at their disposal to formulate decisions on many of the most important public issues. Or, stated differently, most members of the general public are not inclined to avail themselves of the information that is available on important public issues. Sports events are more entertaining than political debates. Political debates are interesting only when they project the prejudices and engage in the demagogic rhetoric that the public enjoys. Unfortunately, the solutions to our problems are not usually found in the debates that we find entertaining.
This article is, itself, an appeal to public opinion. It is a suggestion that the public should voice its opposition to unsolicited public opinion polls. But at the same time it is a suggestion that the public needs to begin acquiring information necessary to reach informed opinions on public issues. The public needs to find ways and means to express those opinions in a meaningful fashion. And those do not include arming prejudiced news media with and inside scoop on what the public believes.
The main area in which the public needs to form sound judgment is in the selection of the politicians who will ultimately make the decisions. It is neither possible nor desirable for the general public to participate directly in the decision-making process as to the underlying issues. That is why we have a representative democracy. It is much more important to select leaders who will make wise decisions, and whose judgment can be trusted, than to nail those leaders down on specific issues.
by Dale | Sep 3, 2020 | Economics of Law Practice
Lawyer advertising turns most people off. That includes many members of the legal profession itself. Ads that include boxing gloves, horses, tigers and big trucks may be mildly amusing the first time you see them, but add little to the image of the legal profession and nothing to the dignity of law. Those of us who still regard law as a gift of God that allows humans to live peaceably together have difficulty seeing how the commercial advertising of legal services as a commodity can be justified.
So why doesn’t the State regulate legal advertising? After all, law is authenticated and ultimately enforced by the state. That is the “commodity” that attorneys deal with in their practice, so why shouldn’t the practice of law, including advertising, be closely regulated. Is the skill that is required for applying law to divorces, child custody, wills, personal injuries and other litigation just another commodity like a bag of sugar or sack of potatoes? To engage in the legal profession requires rigorous education. Admission to the bar, generally speaking, is regulated by the states.
Until the 1960s, regulation of law practice was almost completely a State function. The states may have exercised questionable judgment when, as in the State of Alabama, the regulation of the profession was largely delegated to the Bar Association itself, which operates generally under the authority of the State Supreme Court. People in the profession are still regulating themselves.
The 1960s brought changes. Public interest law firms emerged, to facilitate and bring about needed social change. The “Trial Lawyers” Association emerged. A more accurate description would have been “Plaintiffs’ Lawyers,” because that association promotes the interest of the lawyers who bring lawsuits, rather than defending them. Plaintiffs’ lawyers serve a very useful and necessary function, and must be able to bring their services to the attention of prospective clients.
The image of the legal profession has never been good, and seldom been accurate. The pre-Civil War mythology of the rugged individualist lawyer has persisted, Atticus Finch perhaps being a poignant 20th-century example of the mythological role. However, today’s world, the rugged individual lawyer is insignificant in the United States. The Civil War assured the dominance of industry over the agrarian economy. The Industrial Revolution happened. Large law firms emerged to serve the needs of the industrial economy. Firms such as a Cravath firm in New York hired the top students graduating from the top law schools to represent corporate America in the Courts and legislative halls. They had open lines of communication with the big business and insurance companies that they represented. Selling their services to corporate America and insurance companies was totally different from sales by other lawyers who had to wait for the client to show up at their door. The pre-60s “legal ethics” served the interest of corporate America and the large law firms very well, but were a major problem for small non-corporate firms who represented plaintiffs.
The changes that occurred in the 60s brought Federal intervention. Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975) was the U.S. Supreme Court decision that began deregulation of lawyer advertising. The United States Supreme Court found that the schedule of minimum charges utilized by the Virginia Bar Association violated the Sherman Antitrust Act, despite the fact that the Bar was acting on authority delegated by the State. State regulation of the legal profession came into question, despite the clear need for regulation, and the nature of what was being regulated.
Then, in Bates v. State Bar of Arizona, 433 U.S. 350 (1977), the United States Supreme Court held that lawyer advertising is commercial speech protected by the First Amendment. The Fourteenth Amendment applies the First Amendment to States. Because of that decision, the power of States to regulate lawyer advertising is very limited.
Ironically, states do much of what they do through laws and regulations. The court system is a part of State government, and lawyers are described as “officers of the court.” To say that States can’t regulate the practices used by lawyers who are specially licensed to peddle the State’s power doesn’t make good sense. Law, and the ability of states to “promote domestic tranquility,” is adversely affected by advertising that makes law and lawyers look silly. However, returning to the “legal ethics” that sheltered defense firms and their built-in relationship with corporate America and the insurance industry will not solve the problem. Creative regulation that will empower lines of communication between members of legal profession and the people who need their services is desperately needed. The internet could play a vital role.
by Dale | Sep 2, 2020 | Opinion Essays
The cost of access to the legal system presents difficult, perplexing questions. The legal system is the last resort for dispute resolution. But access to the legal system costs money. Lawyers engage in the practice of law to make a living. They cannot provide their services free. The cost of a judiciary has caused the legislature to impose substantial charges in the form of various court costs. If the dispute involved involves only a small economic value, the cost of the legal solution may be prohibitive, so the dispute goes unresolved. For poor people access to the legal system to resolve disputes can be almost impossible.
The 1960s with its hope for a “Great Society” escalated the growth of the welfare state. We are now wrestling with the problems of Medicaid and other serious issues confronting efforts to provide adequate medical care. We believe that everyone should receive appropriate medical attention and care. But providing such care is not simple. However, the philosophical problems encountered in the effort to provide medical care for the poor are not nearly so perplexing as those involved in attempting to provide legal care at an affordable cost. The fundamental difference between medical care and legal care is that medical care is needed by a single recipient, but in legal issues there are always two sides.
In the criminal arena, Gideon v. Wainwright, decided in 1969, made it clear that before anyone can be incarcerated, other than on a temporary emergency basis, indigent defendants must be provided a lawyer. So State and Federal governments pay the costs of legal defense for indigent defendants. I will save for another essay discussion of the fact that the Gideon case probably called into being a cadre of lawyers and a type of law practice that was never anticipated by the high court when it made that decision.
This article focuses on legal aid in civil matters. That is the area that presents the perplexing policy issues related to legal aid. There is almost no fair way for the legal system as it presently exists to deal with legal disputes that have small economic value. The solution costs more than the problem. Even if a person is poor, cases with larger economic impact can often be addressed with contingency fees. The contingency fee system often produces a satisfactory result for the poor victim. Even then the transaction cost, i.e. the attorney’s fees on both sides, renders the legal system inefficient in providing the ultimate dispute resolution. But this essay is not focused on the inadequacies of the contingent fee eligible case.
As mentioned above legal disputes usually have at least two sides. If the alleged victim is poor, and cannot find an attorney who will take the case on a contingency fee basis and public funds are used to subsidize the alleged victim by paying attorney’s fees, there is grave danger that injustice will be done to the defendant, who must pay its own attorney. When corporate America absorbs this type of expense the cost is ultimately passed on to the consuming public, and you and I pay for the defense of such lawsuits.
But the main concern is when the litigation involves poverty on both sides. If public funding is provided for only one side, there is a grave risk of injustice for the other side. If public funding is to be available on either side it should be available on both sides, unless the provider of the legal services has the omnipotent, omniscience power to judge the case in advance. And if funding for both sides happened the hungry legal profession would quickly escalate the number of cases, and make the court system unmanageable. I do not believe that there is any obvious solution to this problem.
Unfortunately, having the free attorney choose sides in the case (the only choice being the one who seeks the service), is not the only difficulty in legal aid. People who have money try very hard to avoid disputes that wind up in court, so that they can keep their money. This is true whether they would be the plaintiffs or the defendants. But if the person contemplating the proverbial “day in court” does not have any “skin in the game,” the human propensity for conflict has no limits. If there were no cost, State and federal governments could not afford the dispute resolution process.
How should we measure the success of law? On the one hand, the commonly held American view seems to be that the more controversies courts can resolve, the more likely we are to have Justice. But I believe that law meets its highest goal when people obey the law and don’t have to go to court.
by Dale | Sep 1, 2020 | Miscellaneous Topics
First, let’s focus on ignorance; then we can develop its relationship to evil. Ignorance certainly includes lack of knowledge, but ignorance is not merely absence of knowledge. Ignorance has a positive existence in human consciousness. It consists of incorrect beliefs more often than the mere absence of correct beliefs. The incorrect beliefs are strongly and passionately held and adamantly defended. Ignorance doesn’t just stand on a street corner and rant and rave; it talks on I-Phones, and moves in emails. It gains access to media, public offices, courtrooms, classrooms and even churches. It enters into and affects behavior just like any other strongly held belief.
Like other strongly held beliefs, ignorance is often shared by the groups of which an individual is a part. It is what the group believes. It is handed from generation to generation in the bosom of the family. The fact that the individual is surrounded by others who maintain the incorrect belief makes it extremely difficult to eradicate. It actively resists truth and correction. The faulty dictum that one opinion is just as good as another supports is a cornerstone of ignorance. Some opinions obviously are better than others. Ignorance and incorrect opinion forms the basis for inappropriate behavior.
Against this background it is not at all difficult to see a connecting link between ignorance and evil. The fact that the Bible teaches that we have all sinned shows that none of us are immune from ignorance. This discussion is about the concepts of ignorance and evil. It is not a pretext for launching into a tirade about some specific activity that may be going on in the world right now, although there is plenty of ignorance and evil that could be discussed. No particular issue precipitated this essay!
Just a word or two about good and evil. Anything that promotes the welfare and survival of humanity is good. Anything that is harmful to humanity and decreases the likelihood of human survival is evil. Now let’s get theological. The Old Testament concept of sin, or evil, is breaking the law. The law was (and still is) a gift of God. Jesus made it clear that he did not come to destroy the law but to fulfill the law. The abundant life that he advocated does not happen simply because one does not break the law. Breaking the law is not a good thing to do, but following the law does not necessarily make one good. The New Testament concept of evil is “missing the mark.” It is failure to live life in a way that brings about good. When one actively pursues an abundant life, and does things that make the world a better place to live, good arises.
The New Testament concepts of good and evil differ dramatically from beliefs that arise out of the Zoroastrian Persian religious milieu and its mythology. In that mythology, the hero Marduk destroys the force of evil, which is epitomized by a giant snake, Tiamat. The material universe arose from the remains of the evil beast. Thus, in that way of thinking, good arises from the destruction of evil. Those fundamental differences in cultural beliefs may explain a lot about the things that are happening in the world today. But they give rise to pretty serious questions about what to do about evil.
Christians believe that the Crucifixion of Jesus was an evil thing. But Jesus said “Father forgive them, for they know not what they do.” His request was predicated on the fact that the evil actions arose from ignorance. The Bible says that the wages of Sin are death. So theoretically evil ultimately destroys itself, and that will put it out of business. Evil ultimately doesn’t work out. That seems to be consistent with Darwin’s theory of survival of the fittest. But all of that theology and philosophy doesn’t provide great peace of mind for most of us as we watch a world that seems to be churning with evil. It does not eliminate the strong temptation to aggressively fight evil at every opportunity, and adamantly believe in our cause.
The Christian viewpoint is eminently correct. We cannot save world merely by fighting evil. Of course, when someone like Hitler comes along, we have to resist. But even that does not create good. A lot of good things were destroyed in World War II. But in the final analysis, to promote good, we have to show the world a better way. When we look at the eons involved in the evolution of human consciousness, it becomes clear that we can deal with ignorance and evil only by finding and offering a better way.
by Dale | Aug 31, 2020 | Mary Christine DeBardeleben, Miscellaneous Topics, Shorter High School
Public education was and is the great American dream. Nevertheless, since the 1950s, we have seen a broad-based movement toward the privatization of education. It is against this background that I tell my story. Stephen Covey who wrote The 7 Habits of Highly Effective People suggested that one of those habits is “keeping the main thing the main thing.” For a public education system, excellent, effective education is the main thing.
I was born in rural Macon County and attended Shorter High School, a public school for grades one through twelve. There were fewer than 100 students in all 12 grades. There were 9 members of my 1960 graduating class. I used to say that there were 5 basketball players and four cheerleaders, but that may not be politically correct!
Mrs. Steele Bibb was our principal and was a Huntingdon College graduate. Four members of my graduating class, including Betty Menefee, who would later become my wife, signed up to attend Huntingdon. When I almost backed out because of fear of the tuition (they were charging and almost $1000 a year!), I was recruited by Coach Neal Posey. I suspect that he knew that I could not basketball that well, but also knew my ACT score. Mrs. Bibb knew I liked basketball, and probably “recruited” Neal Posey. Shorter High School provided excellent education. An amazing percentage of graduates attended college. But soon after my graduation, the case of Lee v. Macon, that desegregated the Alabama Public schools, made Macon County the battleground between the politics of Gov. George Wallace and power of Judge Frank Johnson, neither of whom was an educator.
I had a good academic record at Huntingdon and served as president of the Student Government Association five years after John Ed Matheson, and five years before Jeff sessions. I was easily accepted into the University of Alabama Law School. I was one of the first Huntingdon graduates to attend law school, although there have been many since then. The foundation that the Shorter school provided passed every test.
I returned to Montgomery to practice law. After a couple of years living in Montgomery, I moved back to Macon County in 1970, in the opposite direction from the “white flight” that was generally occurring. I continued practicing law in Montgomery. The public school system in Macon County was no longer the same. Our children, Philip and Mike, attended the Montgomery Academy. In 1982, I was elected Circuit Judge in Alabama’s Fifth Judicial Circuit, which includes Macon County, where I served for 18 years.
My brother Wade had graduated from Shorter High School in 1956. He attended Troy State Teachers College and got a degree in education. He was hired to teach at the newly formed Montgomery Academy, a private school with emphasis on college preparation. Wade taught mathematics. He continued pursuing his education and got a Master’s degree in education at the University of Alabama.
After teaching at the Montgomery Academy for a number of years and serving as an interim headmaster, he was appointed Headmaster at the Montgomery Academy. He was influential in hiring Mrs. Duke and Mrs. Jolly who had taught both of us at Shorter High School. They taught at the Montgomery Academy for several years.
My son, Philip, graduated from the Montgomery Academy in 1985, in a class of 40 and was included among eight National Merit finalists in that class. A very bright black student from Macon County was also in that class and several others were enrolled at the Academy. In 1986 we moved to Tallassee and Mike completed his education in the public school. Philip now practices intellectual property law in Chicago, and Mike practices law with me in Tallassee. This is my story.
Without question, much social progress was made by the changes in public education that have occurred since 1960. But something very important was lost. Our governments did not keep the main thing the main thing. Everyone would have been better off if they had.
Today is a new day. We must find ways to rehabilitate the dream of excellence in public education. Privatized education can never reach the talented intellects that are mired in poverty and other disadvantages. Excellent, effective, free public education is still the great equalizer. But the education system (like the army?) must offer the opportunity to everyone to be all that they can be. “No child held back” is just as important as “no child left behind.” We can only renew the dream of universal excellent public education by making the main thing the main thing.
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