Tuesday, February 28, 2006

You could fry an egg out here

Yes, the sidewalk is hot. The View From the Sidewalk, that is. It's a relatively new blog written by a homeless man in Greensboro, North Carolina. The blog has gained attention from a wide range of bloggers as well as the media as far away as Europe. I consider it worth reading and wanted to pass it on to you. Of course, with a blog about one man's personal experience, you have to tag it: anecdotal.

I understand that researchers don't jump with excitement at anecdotal evidence. Newton would have reached a lower level of fame if all he had a was a great story about this apple that hit him on the head. Yet we also learn the faults of research and statistics. Torture a statistic enough and it will say nearly anything you want. Read about research and you're at most a couple steps from the "truth"--if there is such a thing. Where does that leave us? Well I was disappointed to see that my computer's dictionary actually claims that "anecdotal" not only means a personal account (as I thought) but adds that it is not necessarily true or reliable BECAUSE it is based on personal accounts rather than facts or research. My favorite philosopher, Alan Watts, said that you cannot understand a rat by putting it on a table and cutting it open. What it truly "is" to be a rat is no more the sum of its parts than the answer to poverty is the discovery of the right statistics or the results of the right research.

Barbara Ehrenreich somewhat ironically defends anecdotal accounts before Nickel and Dimed was brushed aside by some as "merely anecdotal." I promote the View From the Sidewalk because anecdotal accounts are absolutely necessary to understanding the problems at the lowest income levels in American society. The good news is that poor people are not rats. You don't have to study them to understand their problems and ways to fix those problems. Luckily, you can just ask.

Sunday, February 26, 2006

God and the Devil

God and the Devil. Good and evil. No discussion of the lower-class or working poor can be complete without considering religion. Countless personal accounts in book and articles on poor Americans, as well as my more limited personal experience, makes it obvious that religion is a powerful factor in their lives. My personal views on religion are irrelevant here. What I care about in this context and plan to discuss here is the impact religious concepts have on the lives of poor Americans.

Of course we have all seen the athlete praise Jesus when he wins a championship game. He'll often admit that his team played great and usually praise his opponents, but it is Jesus who he seems convinced brought the victory. (That's beyond my area of expertise.) I have never heard the Devil mentioned by the losing team. But the poorest people in America often do see the Devil at work. Many poor individuals discuss drugs and alcohol as the work of the Devil. A drug problem comes from the Devil. A drug problem especially difficult to "kick" is the fault of a tricky Devil. And the ability to get off drugs and back into a more meaningful lifestyle is the work of God. Progression and advancement in that lifestyle often seems to be His work as well.

What I find most interesting is how infrequently I hear such logic amongst the successful. A lawyer plagued with alcoholism rarely seems to fault the Devil. And a CEO commenting on a record year rarely passes credit on to God. Surely the CEO's success is not so unlike the success of a minimum wage worker in breaking a drug habit or getting a promotion at work. Surely the rich lawyer's alcoholism is as much or little to blame on the Devil as the poor woman's drug addiction. Yet we see a massive difference in the way the two individuals think and speak about their problems and successes. I generalize, but fear the truth is not too far off.

Let's start with the Devil. What troubles me here is that the Devil takes the blame for something more likely found in this world. The problems of the poor are not necessarily caused by the Devil, but also not necessarily caused by themselves. If the Devil takes the blame then society and government can act with impunity. Everything is simplified in the present post, but the underlying point remains: people are more likely to blame the Devil then the government for a problem. This troubles me no less when I think of the frustrated, poor worker coming home and hitting his wife or child. He would more accurately smack the target of his frustration if he hit an elected official or a rich business person. If the Devil is to blame, then let's recognize that he works through mechanisms in place in this world.

More troublesome is the praise attributed to God or Jesus. Religious organizations are responsible for so much social assistance and their social benefit cannot be over-emphasized. Much of the time the religious influence is subtle. Alcoholics Anonymous is not immediately considered religious--yet it is. The YMCA's meaning is becoming about as little known as GEICO's. Social commentators loudly voice concerns over lack of empowerment amongst the working poor. Attributing everything positive to an act of God does nothing for empowerment. A tornado and a job promotion cannot be viewed as the same. God's influence need not be diminished in the minds of the poor by pushing a view that God alone does not bring about positive outcomes in our lives.

An old religion professor of mine taught that there are three ways to view the Bible. One is to view man writing the text with alone--basically like any other book. Another is to view man writing with God whispering in man's ear. We don't know exactly what man hears. Maybe it's dictation, maybe it's commentary that man summarizes. Either way, it's interpretation. And finally you have man writing the text with God's hand guiding man's. To believe that God is responsible for every positive change in life is to take the last in interpretation of the Bible and apply it across the board. Yet the last interpretation is the least popular when considered in the biblical context. More common is the view that God whispers in man's ear. God may be speaking to us but it is still our hand. We can still color outside the lines if we choose.

People trying to overcome drug addictions--especially at low income levels, and those seeking to move above the bottom rungs of society, are amongst our most delicate individuals. To mindlessly push religous concepts of the Devil for all evil and God for all good is to push a cult on the vulnerable. Its truth is unrelated to its power to influence. It therefore must be used with caution and balance.

And for the rich, we forget our roots. The media discusses crime like it is as much part of our days as breakfast, lunch and dinner. I am not a religious person but most Americans are. I have previously mentioned the concept in Buddhism that every individual must be treated as though he or she may be the Buddha. In other words, you never know when a high powered individual just happens to look homeless that day. You treat the man in the suit the same as the homeless man in crutches, because how we appear in this life is irrelevant. And Rabbi Hillel reiterates this concept in saying "Love thy neighbor like thy self; all the rest is commentary." Christian commentators have seized upon this statement as well -- though sometimes adding "Love God, love thy neighbor; all the rest is commentary." I'm young, but I think I can confidently say that we have lost this belief in society. Or perhaps what we have lost is the true concept of neighbor. The biblical definition of neighbor is actually anyone in need of your help or kindness.

Whether you believe in God and the Devil or not, one thing remains certain: the fortunes of man are not constant. Some men are "blessed" with more fortunate periods (or lives) than others. Yet we truthfully never know when our luck will change. I have come to believe that we must go back to an ancient concept and help our neighbors. Forget the guy who lives next to you. What is meant here is helping those who lack the luck and support system you may have through perhaps no "fault" of your own. What if every wealthy American sponsored one poor American? Not enough? How about one poor American family? Asked what they want to do when they grow up, a shocking number of poor American children I've read about state some profession where they can help others. One child who goes to bed hungry hopes to become a lawyer so she can help needy people. A boy who will continue to grow up poor wants to own a company so he can give homeless people money. This represents something I was amazed when I first read about, and continue to be impressed when I see it in accounts of poor Americans: poor people want to help other poor people. This is leverage. You help one poor person and that person will help another, and he another. I'd urge religious organizations and religious Americans to remember what truly matters. Succeed at work or school, but if you go to bed without having helped someone in need you've accomplished nothing. As I said, I'm not religious, but my existentialist take on all this will have to wait for another day.


On a general note:

In the future I plan to start covering concepts more comprehensively before moving on to another issue. The first topic I plan to consider in depth is tax. Sometimes I meet law students who claim they LOVE tax. I think they are insane. They may know this depending on my facial expression. Yet tax law, as boring as it may be to the vast majority of humanity, is extremely important in social policy. So get excited -- or at least pretend.


[On a personal note, I want to thank my readers as this blog has now received over 1,000 (non-unique) hits since its inception on December 31, 2005. Please continue to comment and remember that you can email me about the blog at socialjusticeblog@gmail.com. And thank you Tom for your constructive comments. I plan to post more frequently and keep the posts shorter in the future.]

Thursday, February 23, 2006

Fixed Costs (Part II)

In a previous post on fixed costs (here), I discussed the obvious concept that a few large monthly expenses make all other cost saving attempts irrelevant on a budget (i.e. eating oatmeal everyday isn't going to help if your mortgage or rent payments consume 50 percent of your pre-tax income).

But David Shipler's unfortunately mediocre book, The Working Poor: Invisible in America, reminded me that for many people, the squeeze to make the budget work does not involve pasta or oatmeal, but skipping a meals. To use Shipler's words, you can't negotiate your utility payments (true, for the most part) and your rent is going to be due in full every month without rest. The same is true of a babysitter or day care center, car payments, and other basic goods. Food is among the most flexible costs.

I see this all the time in bankruptcy. A person filing bankruptcy has to complete a "schedule" of his current monthly income and another of his expenses. The expenses include rent or mortgage payments (fixed), real estate tax and propety insurance (fixed), car payments (fixed), car insurance (fixed), alimony/maintenance/child support, if necessary (fixed), life and health insurance (fixed). Almost in conscious recognition of the unique nature of the only non-fixed costs, the form boxes off: home maintenance, food, clothing, laundry/dry cleaning, additional medical expenses, recreation, charity, and additional transportation costs. Failure to spend enough on home maintenance can actually have significant health consequences, but that's a discussion for another day.

Someone filing bankruptcy usually has to guess how much money they spend on food -- there's usually no opportunity to keep track for a few months and then average it out. The schedules always have to show that you make at least as much as you spend. We're not including credit card payments or anything here. And for certain types of bankruptcy filers you have to also show that you can afford to make additional payments towards your past debts on top of the expenses listed (i.e. the gap between income and expenses must be even greater). So how is this done? Well, if you quote the wrong amount for your monthly mortgage payment you're lying. If you under-estimate the amount you spend on food you're exaggerating or engaging in wishful thinking (or lying, but no one can know). So you make the numbers work by saying you only spend $200/month on food for you and your two children. It's possible -- as long as you can eat for about 75 cents per meal.

Okay, enough about what you can do with a pen and paper. What does this mean in real life? People cannot eat three meals a day for 75 cents each. Instead, it's more likely that you'd eat one meal a day for $2.25. That means your children go to school without breakfast, and you skip lunch. And where can you eat for dinner on $2.25? Most likely fast food restaurants.

The point of all this not about bankruptcy petitions, but about fixed costs. Food is not a fixed cost. You cannot skip a month's rent payment but you can skip a day of food. This discussion is not a criticism of any particular policy -- rather simply pointing out the obvious reality for some of the people in this country who have to make hard financial choices. It is not always about whether to cancel the cable or stop going to the movies, but about whether to go to bed hungry or be evicted.

Tuesday, February 21, 2006

Sliding Down

Much of the discussion in this blog criticizes the status quo -- calling for large and small social adjustments to better the lives of the lower middle-class and lower-class. Maybe we can start with something more reasonable: maintaining the status quo.

The importance of this idea on wages is discussed in this week's Economic Policy Institute's snapshot. There, the EPI writes on an often discussed topic: the decline of the purchasing power for low-wage workers. The reason for this is simple -- the minimum wage is not tied to inflation, and wages above the minimum wage logically float relative to the minimum. The minimum wage has not increased since 1997. It should be noted from the outset, however, that states may choose to raise the minimum wage in that state, as California and various other states have chosen to do. Nonetheless, most states use the federal minimum wage, and I would argue that it maintains a symbolic function even if (as I hope will be the case) more states choose to leave the federal minimum wage in their rearview mirror.

Considering inflation, the minimum wage has lost about $1.12 of purchasing power since 1997. This adds up pretty quickly. Every visit to the grocery store, every utility bill, every medical expense, now requires a few extra hours of work a month here, another few extra hours of work there. Minimum wage workers are clearly among the least mobile in society. If you don't like the pay you're getting at $5.15 an hour you are probably not in a position to move to another state with a higher minimum wage, or find a higher paying job in your home area fast enough to make it feasible. So what do you do? Now that $5.15 an hour buys less, your sole choice seems to be work more hours -- get a second job, get a third job. The EPI estimates that 700,000 minimum wages earners are single mothers with minor children. Americans need to get over the overwhelming sense that the minimum wage only impacts high school kids working in the mall. Every year, the minimum wage will continue to decrease. As that continues, 700,000 (and sure to only increase) single mothers leave their minor children for more hours each day to work -- as this is their only choice to make $5.15 buy basic necessities.

In another post, I'll discuss related policies such as the family cap which freezes welfare benefits when additional children are born. There, we can discuss what this means in general. Here, let me just point out that in many cases the family cap means that many single mothers are leaving more children at home for even MORE hours each day.

This nation's economy has prospered at record levels while increasing the minimum wage. I've heard every argument out there for why we should not only leave the minimum wage untouched, but actually abolish it all together. If market forces would push the wage higher we wouldn't have 700,000 mothers making the minumum wage. And the lowest wages cannot be allowed to slide backwards. Using the EPI's numbers, a minimum wage earner working an 80 HOUR WEEK lives at the poverty line. (Note that this seems to assume a $5.15/hour wage and, as stated above, some states use a higher minimum). There is no solid justification for the federal government's refusal to tie the minimum wage to inflation.

I will add that I strongly object to any attempt to tie the minimum wage to anything but inflation. Using a benchmark such as the poverty line allows manipulation and creates poor incentives for relevant government agencies. (In another post I'll discuss why the poverty line departs from reality even today -- why would any administration want to help the American people suddenly discover just how many additional poor people live in this country?).

But I began the post by calling for preservation of the status quo. In the end, however, I have trouble with this result. To wish for the status quo alone is to go to bed at night hoping that at least 700,000 single mothers working 80 hour weeks can reach the poverty line. Such a wish is shameful.

Friday, February 17, 2006

Always low prices. Always.

A recent New York Times story discusses an internal website used by Wal-Mart’s CEO and other top executives to communicate with store managers.  The story itself, not to mention the underlying posts viewable through Wal-Mart Watch, is extremely fascinating.  The story focuses on comments made by Wal-Mart CEO H. Lee Scott to managers of various Wal-Mart stores.  Managers ask questions, Scott replies, and so forth.

We all know Wal-Mart is massive.  The number of stores operated from Bentonville, Arkansas is numbing, with literally thousands of stores including traditional Wal-Marts, “Supercenters” and Sam’s Club—each inhabiting a square block.  Then comes the company’s impact on the marketplace.  Wal-Mart’s influence in various sectors (i.e. roughly a quarter of all movies sold are sold at Wal-Mart) is stunning.  Many are familiar with stories of rap and hip-hop albums that go to market with the original version, and then send Wal-Mart a screened version knowing that the original will not receive any orders from Bentonville.

The internal website discussed in the article is called Lee’s Garage—clearly after H. Lee Scott.  The chummy name of the website discussed in the New York Times article seeks to call back images of Scott working in a gas station pumping fuel, notably juxtaposed by his current $17 million compensation package and discussions on the website of his private meetings with British royalty.  Though this has always been the odd irony of success at Wal-Mart.  Many are familiar with the stories of founder Sam Walton’s wealth, such as when he drove around in an old pickup truck even when he was the wealthiest man in America.  But the irony continues with stories of businessmen who visit the Bentonville headquarters, surprised that a company with sales in the billions maintains offices so Spartan.  Or the company’s stubbornness to maintain its headquarters in Bentonville—where just viewing a few photos makes you quickly wonder whether Scott’s $17 million package is a luxury or a necessity to bring talent to company headquarters (though Scott himself rose within the giant’s ranks).

But controversy and press usually focuses on the employees.  Wal-Mart calls them “associates” even though I sense that the word does more harm than good in being laughable.  Scott claims that the media loves negative stories.  I couldn’t agree more—though Scott must know such a claim does little to question a story’s validity.  Further, Wal-Mart is not merely demonized in the papers.  The company paid massive sums when caught avoiding overtime payments.  More recently, a jury found Wal-Mart in violation of more labor laws when the company failed to provide 116,000 California workers meal breaks.

Scott claims to visit at least one store each week, and to drop in on meetings unannounced to keep managers from filtering content when he is present.  Such tactics seem well reasoned, but they only further call into question the root of the labor problems.  Wal-Mart has always pointed the finger at individual managers for breaking the law even while Bentonville does nothing but assure full compliance as official company policy.  (Downstairs Kenneth Lay and Jeffrey Skilling are trying the same tactic with Andy Fastow.)  Yet Scott’s management techniques imply that he is on top of things.  How can 116,000 workers in California be denied lawful meal breaks without anyone in Bentonville knowing?  The sheer numbers in some of these class-action suits imply that either Bentonville knows, or Bentonville does not want to know.

I’ll end this post with one point to flush out the last allegation.  Wal-Mart presses everything down.  Prices must come down, costs must come down, expenses for every tiny piece and step must come down.  Bentonville can apply pressure throughout the system with tactical precision.  Rather than finding ways to cut labor costs, Bentonville can press managers to cut costs, look only at the numbers submitted, and then claim ignorance when class-action suits show just how the manager got those numbers down.  If Wal-Mart is too large to know what it happening to its employees around the world, the company must continue to suffer massive judgments, poor publicity, and stagnation in the face of flourishing competitors.  Scott is not fooling anyone, and his attempts to make the case for Bentonville seem only to further its demise by proving that a company so utterly obsessed with detail cannot realistically be oblivious to so many blatant labor violations.

Tuesday, February 14, 2006

The Deserving Poor

In David K. Shipler's book, The Working Poor: Invisible in America, he briefly discusses the concept of the "deserving poor" as a term used in evaluating the actions and choices made by poor people who may be eligible for benefits. Clearly the concept and related concerns overlap with the general (mis)conception that many poor people are lazy. I think this idea of the lazy poor needs to be addressed before the "deserving poor" is discussed.

Obviously some poor people are lazy, just as are some middle-class and upper-class people. But are poor people generally lazy? Do we, as a society, need to prod the poor towards work like cows on a field? (The comparison is purposely offensive as I believe our general concepts and terms are offensive in barely more subtle ways.) The answer to these questions is: NO. Poor people and low-income individuals are perhaps on the complete opposite end of the spectrum. These ideas are certainly somewhat new to me, but hundreds of accounts of people at the bottom of society's income spread indicate that 1) the poorest Americans (or illegals) tend to work the absolute hardest jobs for the longest hours, and 2) poor Americans are extremely proud.

Think for a moment about the jobs a poor American is likely to perform: cleaning, farming, labor, etc. The jobs require tasks far harder on the body then any desk job or any white collar job forgetting the desk. So much can be said about the difficulty of these jobs, and I believe I've previously mentioned Eric Schlosser's powerful account of California strawberry pickers in Reefer Madness (the title refers to one of three separate reports). So much can also be said about the added vulnerability of physical jobs--as in the ease of working regardless of physical injury when you need only think and speak then when you need not think but must continually lift, push, pull, and bend. But conversations are better left for another post. The point here, is that lazy people might sit at a computer and trade stocks, or watch sports games and write about them, or play golf during the work day, or make phone calls from a comfortable chair. Lazy people do not clean toilets all day, lift hundreds of boxes in a few hours, or stand over a hot burner flipping burgers in a uniform. The jobs performed by the working poor are not filled but the bottom economic segment of society simply because no one else wants to work for so little pay, but also because no one wants to do those jobs.

My second point goes to pride. The argument that welfare benefits discourage work has always seemed off to me, but my reasons have changed. At first it seemed illogical simply because this country is not known for its generous benefits. A poor individual in England may be able to obtain a decent lifestyle with only state benefits, but such is not the case on this side of the Atlantic. The evidence strongly indicates that American welfare benefits do not provide enough support to allow a family to put a roof over its head and food on the table without working. Indeed, the evidence indicates that working two jobs and using some state support is insufficient for basic necessities. So why would a poor person work if he could get welfare? For one, because he has to in order to survive. But my view has changed -- or rather expanded since having this thought. Account after account of poor workers in this country indicates that low-income Americans are an extremely proud bunch. I would go so far as to say stubbornly proud. Take bankruptcy where some indications show that only about 1/3 of people file bankruptcy of those who would benefit from a filing. Why don't more people file? Stigma would certainly be up there on the list of reasons. But what of welfare? Poor Americans do not always jump at the opportunity to claim a Women Infant and Children (WIC) supplement, or stuff their pockets with food stamps, or cash a social security disabilities check. Many accounts of low-income Americans indicate that a man might prefer getting a third job to taking state assistance. Or a woman may prefer to feed her children and barely eat herself over showing her face at a food shelter or getting in line for food stamps.

So are most poor Americans lazy? Quite the opposite seems more likely when they work the most difficult jobs for the lowest pay and are frequently too proud to take the state assistance for which they may be entitled.

Now we're back to the concept of the "deserving poor" -- and both its definition and truth. The deserving poor really seem to be the poor I have described above. Far easier may be identifying the undeserving poor -- or those who are lazy and prefer not to work. Those who are poor because of reasons outside of their control. I've already discussed what bothers me about the concept of the lazy poor, so let me end by mentioning what bothers me about the deserving poor. The concept's weakness is in proponent's failure to apply to concept across America's class spectrum. Anyone discussing the deserving poor must surely be open to discussing the deserving rich. The expansion is avoided, of course, but why? I'll use the Greek rhetorical circle and end where I began: with Shipler's words. To discuss who deserves what is to expose the "mockery of chance"--a fascinating thought.


[Please note that I've added an email address at the very bottom of the page. Feel free to email me directly at: socialjusticeblog@gmail.com.]

Thursday, February 09, 2006

A Cut Above

I discussed executive compensation in a couple previous posts, most notably here.  Something interesting has occurred recently in Detroit that is worth discussing.  Both Ford and GM plan to take significant steps in reducing costs.  Ford announced in late January that it would cut up to 30,000 jobs across 14 factories.  GM also plans to cut 30,000 jobs across 12 facilities.  General Motors, however, also recently announced that it will make significant cuts to executive compensation and its stock dividend, among other steps.  As the New York Times reports:

“General Motors, under pressure to show its blue-collar workers that investors and executives are also prepared to give up something in order to help overcome the company’s deepest losses in more than a decade, said Tuesday that it would reduce pay for top executives and cut its stock dividend by half.”

GM’s CEO, Rick Wagoner, loses $1.1 million in salary as the words come out of his mouth.  He’s still left with a $1.1 million for 2005, so you may not see him in the Michigan social services offices just yet, but it is a sacrifice of significant symbolism.  The CEO may nonetheless receive lucrative stock options, but none have been announced, and the company claims Wagoner will not get a bonus for 2005.  Beyond Wagoner, GM’s three vice chairmen will each take a 30 percent pay cut.  The executive vice president and the general counsel will see a 10 percent cut.  None of GM’s global executives will receive traditionally allocated annual and long-term cash bonuses.  Finally, the board halved its own compensation and non-employee directors announced that they will forgo all cash compensation for 2005.

All this adds up to one truthful statement from Wagoner: “Everybody’s got a piece of it.”

GM and Ford seem to have created the comparison in cuts.  Both companies plan to cut about the same number of jobs, and over roughly the same number of facilities.  But GM will also make cuts at the top.  The cuts by GM are not simply symbolic, but indeed responsible and necessary.  The move stands in sharp contrast to the cliché image of the CEO cutting jobs and benefits to low-level employees, and in return being rewarded with a fat bonus and further job security for himself.

The actual amount of the money here is insignificant to analysts looking at the mammoth company’s future, but analysts never seem especially impressed by intangible positive externalities.  I have little doubt sharing in the loss and sacrifice of turnaround efforts (probably no matter how small) has a lasting effect on the way a company approaches its operations and treats its employees.

GM should be applauded.

Monday, February 06, 2006

The Moral Buoy

I know I have quoted the Two-Income Trap before (by Harvard bankruptcy law professor Elizabeth Warren and her daughter, Amelia Warren Tyagi). The book makes some excellent points but I nonetheless find myself struggling to agree with many of the finer points. In short, the endorsement by Dr. Phil on the cover is not the book's only problem. The book does raise some very interesting points and it attempts to deal with middle-class issues, as suggested by the subtitle: Why Middle-Class Parents Are Going Broke. After reading the book, "parents" is probably the wrong word, but it is "middle-class" that I focus on here.

This post is not about the recent changes to the bankruptcy laws, but there is little question that anti-consumer provisions were furthered in the new Act based on perceptions that the bankruptcy system suffers from abuse. That is to say, people are filing bankruptcy as a first resort to avoid responsibility for their debts, rather than as a last resort as it is more likely intended. General opponents of consumer bankruptcy could argue that we need to revise the system to keep people from avoiding their financial responsibilities. Proponents of consumer bankruptcy could similiarly argue that the system's integrity is at risk if we do not strongly police dishonesty and misuse of the system. Underlying both viewpoints is the misconception of the "immoral debtor"--to use Warren's term. I have little doubt that those intimately familiar with consumer bankruptcy would agree that the dishonest debtor (using "debtor" as defined under the Bankruptcy Code) is a rare breed. And when a debtor is found to have acted dishonestly in the bankruptcy filing, you can't help but be reminded of the person who steals to eat. The lies are used simply to keep a home, or to generally confirm a chapter 13 plan with "dishonest" optimism that three people can eat for a month on $100. On the stand, when pressed, they admit that this is in fact not true, and therefore they admit to a lie.

But why does this myth flourish if it is so weakly grounded in truth? Warren seems to decide that it persists because it makes us feel better, safer. I might add that it just seems to make sense to most people. It makes "us" feel better in the sense that it makes the middle-class American feel more secure believing that the causes of bankruptcy (read: financial disaster) are due to poor morals rather than poor luck. This concept fits in perfectly with Barbara Ehrenreich's logic in Fear of Falling: The Inner Life of the Middle Class. In The Two-Income Trap, Warren writes:

There is nothing glamorous or mysterious about the events that conspire to drive families into financial ruin. They are remarkably common, ordinary—and painful….[T]he list vibrates in harmony with the worries that keep them awake at night. What will happen if Grandma’s forgetfulness is actually Alzheimer’s? What if my husband’s company goes under?

The possibility that a family—our family—faces a rapidly growing chance of disaster is too painful to think about, especially if there seems to be little way to avoid it. The Myth of the Immoral Debtor nourishes the unspoken idea that families who have lost their financial footing are a tainted group, some “other” who are different from the rest of us….The myth supports a comforting illusion that the rest of us are safely distanced from financial collapse….

Unfortunately, the statistics and obvious reality indicate that the primary causes for filing bankruptcy are entirely out of our control. Such an understanding may make life feel more like a constant airplane ride, but it is certainly closer to the truth.

Thursday, February 02, 2006

Pro se what?

How proper for lawyers to use a term for the unrepresented litigant that the unrepresented litigant rarely understands. If you have a lawyer you're represented, or you have counsel. But come to court without a lawyer and you're pro se. Of course this is a relatively minor point, but I want to point out that from the moment the unrepresented litigant gets exposed to the judicial system, he is faced with systems practically designed to confuse him.

The unreprested litigant deserves equal access to justice in a manner he can understand. Yes, law is a specialized field, and we wouldn't want to make it so easy for people to use the court system that lawyers became less necessary, right? But seriously, we can do better. As lawyers and as a society, we can do better to make the judicial system more understandable and less intimidating to the indigent litigant, and the unrepresented litigant. We can and should focus first on where the unrepresented litigant is most likely to be exposed to the judicial system. I'm going to leave out traffic court for now, as the unrepresented party seems to be in the vast majority there rather than the minority elsewhere. No pun intended. We can forget small claims court for now due to the same reasons.

Unrepresented litigants most commonly find themselves in bankruptcy court and family court. The primary difference here is that bankruptcy courts are a division of the United States District Courts and thereby always federal. Family courts are state courts. While bankruptcy courts are federal, the different bankruptcy courts often have a tremendous amount of flexibility in how they operate and the rules they follow, and even individual judges can often make significant adjustments in that courtroom alone. Family courts obviously vary by state, and often contine to vary throughout each state. My familiarity with the particulars of family law is limited. If others can add to that aspect of the discussion your comments are appreciated. But even with local flexibility, changes are possible and perhaps even more effective at a centralized level (the U.S. Supreme Court for bankruptcy courts and each state's highest court for family courts).

There are many viable ideas when considering how to make courts more friendly to unrepresented litigants. The concept is hardly new. Various committees around the country and legal authors have discussed the issue. I have also seen small positive changes in the particular bankruptcy court I am most familiar with, and read about much more dramatic changes in Florida's family courts. These changes should be commended, but also watched to see what honestly works and what does not.

Sometimes the attitude of court staff alone drastically changes the way an unrepresented litigant feels. The stories I hear from unrepresented litigants (not complaining but merely relaying what they were told) ranges from surprising to shocking. Personnel in clerks offices throughout the country should be trained to treat the unrepresented litigant with equal respect as any attorney. If a person in a clerks office does not know the answer to a litigant's question, he should tell the litigant exactly that or find additional help. Unrepresented litigants with the wrong information and far worse off and vague or unintentionally false information can cause a tremendous amount of stress and later complications for the litigants. Moving from the clerks office to chambers, I'd simply encourage a more uniform education for both law clerks and judges regarding the difficulties pro se litigants face, and how we can appropriate help without worrying we will fall dangerously into giving legal advice. Many individual judges already do this, and that is surely as effective for those chambers as any more uniform system. But what of all the judges who don't?

Clearly, forms and procedures are the next area causing problems for pro se litigants. As I said before, Florida has taken steps to make life easier on family court pro se litigants. One example lies in forms as discussed here. In general, though, forms and notices are sadly confusing to the untrained eye. As mentioned above as a comment directed at the legal community: we can do better. There is no reason we cannot make it clear what a form or notice means in plain English. I could go so far here as to suggest that we roughly determine the average education level or reading level of the unrepresented litigant in family and bankruptcy courts, and create forms and notices specifically with that number in mind.

A much more difficult and expensive change lies in the very court structures themselves. The approach of the new Constitutional Court of South African is interesting in terms of the building design:

The building is noted for its transparency and entrancing volumes. In contrast to most courts, it is welcoming rather than forbidding, filled with sparkle and warmth. It has no marble cladding or wood panelling, but has come to be admired for its graceful proportions.

This is a good point and one that I, for one, never considered. The idea of user-friendly buildings unintimidating to the average person should be kept in mind as future buildings are created to house our federal and state courts.

So much more can be discussed, but I can end this particular post here. The very word "pro se" should be tossed out the window and replaced with a term that makes sense in plain English -- a word that, when a person is asked in open court "are you ____?" he or she can understand the question and answer yes or no. Then, once we toss out the word we can begin adjusting the rest of the system.
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