Recession Injuries Reach the Legal Emergency Room

emergencyroomNo one would be surprised to learn the work of the courts relates to the economy, but it’s nevertheless intriguing to see how the courts have taken up “clean-up” work related to the recent economic collapse.  According to a report in the New York Times on December 28, 2009, the courts have a huge number of new filings related to deals that went awry and also to bad debts.  In addition, there are rapidly increasing claims of domestic violence in homes affected by unemployment and lost wages.

To be specific:  For New York in 2009, contract disputes are up nine percent, and foreclosure filings seventeen percent.  Cases involving charges of assault by family members are up eighteen percent.  In Arizona, eviction cases tripled in 2009, and in Florida there were a staggering 400,000 foreclosure filings during the past year.

Jonathan Lippman, New York’s chief judge, said of the courts, “We are the emergency room for society,” and there seems some connotative truth to his metaphor.  What’s more, cases related to the recession seem likely to keep heading to the legal emergency room.  While the economy itself seems to be rebounding, economic troubles only gradually become legal cases.  Court administrators are bracing for even more filings related to business disputes, foreclosures, evictions, and family violence.

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Incarceration Nation

PrisonDespite the increasingly audible calls for changes in policy, we should not lose sight of the extent and nature of imprisonment in the United States.  As of 1975, only .01% of the population was imprisoned, but the percentage has grown every year since then and now stands at almost .05%.  We as a nation have the dubious distinction of reporting the highest per capita imprisonment figure in the world.  What’s more, American prisons are no longer geared to rehabilitating inmates.  Instead of educating and training inmates, prisons for the most part simply warehouse them.

These developments do not derive from increases in crime or from the widespread commission of more serious crimes.  Instead, the increase in the number of inmates and the use of warehouse-style incarceration are attributable to such policies as quicker revocation of probation and parole, mandatory sentences for certain crimes, three strikes legislation, and truth-in- sentencing laws.  Often, these policies come into play for drug-related offenses and are part of the larger “war on drugs.”

Noam Chomsky contends, “In the United States the drug war is basically a technique for containing populations internal to the country and doesn’t have much to do with drugs.”  Chomsky has in mind the urban underclass, which is disproportionately but not exclusively made up of members of minority groups.  Middle and upper class Americans have come to see the underclass as dangerous and almost inherently criminal and are comfortable with warehousing larger and larger numbers in order to maintain social control.  Chomsky suggests the contemporary imprisoning of large numbers of poor men and women is an American variety of “social cleansing.”

As harsh as Chomsky’s comments might seem, law professor Jonathan Simon might take the critique one step further.  In his book Poor Discipline, Simon argues that mainstream Americans perceive inmates as a type of “toxic waste” and take those who run our jails, prisons, and penitentiaries to have the nasty task of “waste management.”  How troubling is to see our nation traveling down this fundamentally dehumanizing path.

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Natural Law and Legal Education

Last week a student contacted me via email to say he was having difficulty preparing for my exam.  His nervousness, the student said, derived from training as a “law-student machine” whose job was to memorize and regurgitate rules.  He feared that my exam would ask him to do something different than that.

I think the student has subsequently found that my exam was not so odd after all, and I am confident that he did well.  However, his comment led me to reflect on the thrust of legal education at the four law schools at which I’ve taught.  The schools rarely inspire law-related creativity and imagination.  Students think (and are asked to think) so much about what the laws are that they almost never focus on how to modify, reform, or redo the laws.  They do not ask what the laws might be.

What are the causes of this phenomenon? 

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