Blog

Arrival

August 22nd, 2006 at 22:25

I’m not inclined to blog. I am, for one thing, perplexed by the number of private-life details that folks reveal in their blogs and worried that I’ll end up doing the same thing. I remain concerned, but I’m realizing that a blog will be an efficient, although impersonal, way of updating family, friends, and others about my experiences and research in Canada.

As to that research, I hope to describe it in plain English in an entry later this month. In the meantime, my research proposal (72 KB PDF) can provide a general idea. It is about “public legal education” in Canada, which is abbreviated “PLE” (which is pronounced like “plea”) and more or less synonymous with “community legal education” and is closely related to “public legal information.”

I am in Edmonton, Alberta, Canada. For the Americans who will be reading this, Edmonton is the capital of Alberta, which is a province (a state-like entity) of Canada, which is a sovereign nation bordering the United States to the north. Edmonton is located just about in the center of Alberta, a little over twelve hours by car from Moscow, Idaho, and roughly 460 miles due north of Missoula, Montana. Of course, 460 miles is 740 kilometers to a Canadian (and to U.S. federal executive agencies).

For the Canadians who will be reading this, thanks for letting me in.

Errands

August 26th, 2006 at 19:14

A week’s worth of relocation errands has sapped my energy a lot more than I could have expected. Some of these have involved a government agency and waiting in line, something that I would not have enjoyed one bit four years ago. But now that I’ve gone through law school, and especially now that I’m in another country, and especially especially now that I’ve had my curiousity about the public’s understanding of law blessed with federal funding, these kind of errands are fascinating.

That’s because, for one thing, I don’t know much at all about the details of Canadian law. So, I’m not only here to learn about how certain Canadian organizations educate the people about law and government, but also to see how effective Canadian public legal education (PLE) is by trying to educate my own damn self with it. And probably the largest provider of PLE, both in the U.S. and Canada (if not everywhere), is the government. In some cases, a government will take it upon itself to educate its public about its law (here are a U.S. example and a Canadian example). In other cases, the government does not really have an alternative; for instance, the U.S. government has no choice but to give the public at least basic information about filing their taxes.

Like, the other day. I had to get a Canadian Social Insurance Number. Notably, although I need one of these to do the research I’m doing here, nobody from Canada Border Services or Citizenship and Immigration Canada told me this when I entered Canada and successfully applied for a work permit. I knew to get one, though, because the Canadian Fulbright folks told me about it. How did they know, though? Or, more importantly, how would a new Canadian small business owner know that his foreign hires needed to get a SIN? In both cases, the answer is probably that it’s on a required tax form. But… but how would they know that that form is required? Because of either (1) direct legal consultation (paid or unpaid, authorized or unauthorized) or (2) effective public legal education.

Now, figuring out that your workers need a SIN (or a Social Security Number in the U.S.) may not be hard. But there are oodles of other requirements that a small business has to see to that are not so obvious. Without adequate, understandable legal information on these requirements, prospective entrepreneurs and small business owners must be able to obtain personalized legal advice. Yet, even if a businessperson can afford a lawyer or find free legal services, this kind of basic information will often not require personalized consultation. So we waste our limited legal services resources. Right?

Research

August 31st, 2006 at 20:51

I have a grant to research “public legal education,” or “PLE,” in Canada. A lot of people have asked me just exactly what “PLE” is and just exactly what kind of research I’m doing of it. These same people are also interested to know what in the hell I’m going to do after I finish this research. This entry is for those people.

1. Public Legal Education in Canada

Those of us from the U.S. are familiar with a range of efforts by the legal profession and others to educate the public about law and build the people’s confidence in government and the legal profession. The heavy hitters are:

In Canada, there is another, really heavy hitter: standalone organizations with “public legal education” their sole purpose. There is at least one of these organizations in each province and territory of Canada. They educate the public about law using a wide range of methods, developing programs customized for the practical needs of their communities. The sweep of these groups’ efforts is broad. In the words of my mentor here, Lois Gander (a PLE pioneer since the 1960s and now Canada’s leading PLE scholar), they “have adopted a range of objectives including preventive law, citizenship development, crime prevention, community development, and social reform.” Every year, millions of Canadian dollars support these organizations, which are funded primarily by Canadian IOLTA entities and by Justice Canada (the Canadian Department of Justice), which has undertaken to fund public legal education efforts since the 1970s and in 1984 established an “Access to Legal Information Fund.” There are no worldwide rankings, but it’s safe to say that Canada is a world leader in grassroots public legal education.

The U.S. is apparently not. While it’s not accurate to say that organizations like these don’t exist at all in the U.S., the standalone PLE model is hardly implanted there. Even though the modern community legal education movement was born in the U.S. (emerging out of federally funded community organizing and Neighborhood Legal Services components of the War on Poverty), PLE in America today is almost always a side-project of organizations that direct their main focus elsewhere. The standalone model affords Canadian PLE organizations the full-time attention of the attorneys and educators on their staffs and a clearly delineated network of sister agencies to collaborate with.

2. My Research

For a year, I will be investigating these standalone organizations. By design, my scope will be general: I want to determine what these organizations do, how they do it, and whether it works. During most of this fall, I will be holed up in the University of Alberta’s Legal Studies Program (my mentor Lois Gander’s shop and a working PLE provider and thinktank) and J.A. Weir Law Library, poring over the world’s largest Canadian PLE archives. By the end of October, I hope to have identified and dissected some of the most effective Canadian PLE programs and organizations from the past 40 years. In November, as the Canadian winter gets bitter, I will start travelling to several of the major standalone PLE organizations in Canada, snooping around their offices for two to three weeks at each. Finally, come the spring of 2007, I’ll crash into Edmonton again and spend a few months trying to make sense of everything I’ve seen during the year.

3. Then What?

After the archives review, the site visits, and then the analysis, it will be about the time that the Fulbright Program stops sending me checks. It will also be about the time that my Canadian work permit expires. I will have to return to the United States, and I hope that my return will be to Idaho.

Not surprisingly, my interest in public and community legal education is not an idle one. I have sought and won an ultracompetitive research grant and committed myself to a year of intensive research in a foreign country because I believe that community legal education is sorely underavailable in the U.S. Interesting efforts have been going on in Canada for several decades now, and I want to learn about the best aspects of the Canadian standalone PLE model and import them to Idaho.

To start an organization in Idaho whose sole purpose is to provide community legal education at street level will not be easy. I have been putting the basic pieces together for a couple years now, and have just begun looking for the big pieces: (1) an appropriate community location, (2) a list of allies, and (3) $$$. Fortunately, there are innovative people in Idaho and some national funders for new projects like the one I’m proposing. There is no doubt, though, that I will require lots of support, and I invite anyone reading this to drop me a line (leave a comment here if you don’t know my email address) with ideas or encouragement.

Signs

August 30th, 2006 at 22:43

The other day I wrote about public/community legal education and the administrative errands I was running all last week. One thing that I didn’t get to was signs. From the first day that I entered Canada for my fellowship year, travelling across southeastern British Columbia and then slowly north through the provincial parks along Alberta’s Cowboy Trail, signs have been a major part of my daily cultural experience–they’re in metric, first of all, and some of them are partly en Français. AAAHHH!

I mentioned metric in my first post (in passing at least). Clickhappy readers who’ve seen that post will have discovered that the U.S. federal government has been metric, as a matter of law if not yet as a matter of fact, since 1975. But, in Canada they’ve got real-life metrication, which pervades nearly everything as far as I can tell so far. This is one of two aspects of Canadian life that I can’t seem to assimilate to. The other is the inability to swipe your own credit card except at the gas station. You can, however, swipe your own debit card, and I have not been able to track down whether this is a symptom of Canadians’ mania for debit cards or somehow prescribed by law.

Bilingual signage is even more fascinating and it is in many instances prescribed by law. Fundamentally, there’s the Official Languages Act and Section 16 of the Canadian Charter of Rights and Freedoms, which make both English and French the official languages of federal government in Canada. (In Alberta, the Languages Act allows use of both English and French in provincial government activities, without specifying an official language.) Then, with significant impact on daily life, are regulations under the Consumer Packaging and Labelling Act that require most consumer products to be labelled in both French and English, and the Communications Policy of the Government of Canada, which mandates that federal government signage and communications respect both of Canada’s official lanaguages.

Now, I think I’ll hold my tongue on Canada’s official bilingualism (those who want to try to discern my opinions could look at some of my boring academic writing). It is worth noting, though, that government is probably the biggest producer of public legal education programs and that government signage is probably the biggest public legal education program of all time (and yet, even in the scholarly literature on promulgation, there doesn’t seem to be any recognition of this). So, a government’s policies on how signs will be made can have far-reaching effects on the society it regulates. This could mean something for us in America.

Filibuster

August 29th, 2006 at 22:51

Yesterday afternoon I went to watch the Legislative Assembly of Alberta, which is in a short session right now primarily to consider a spending bill. But yesterday afternoon was the one afternoon during this short session that private members’ bills would be considered, and Progressive Conservative MLA Ted Morton endeavored to bring up a bill that would allow Alberta marriage officiants to refuse to solemnize same-sex marriages and permit both students and teachers to refuse to participate in courses that discuss same-sex marriage. The Alberta Liberals, official opposition to the Progressive Conservative Government, threatened to filibuster the bill to keep it from even being considered again until next spring. So I went to see what would happen.

I had to wait quite a while to get in. Assembly meetings begin at 1:30 PM each day, so I arrived at 12:45, early enough to be the very first in line for a pass to the public galleries. But, part of the Liberals’ stall strategy was to introduce a long list of constituents (and opponents of the bill) attending the meeting, and so there were close to 100 people with reserved seats who had to be let in before me. The security staff at the legislature were completely unprepared for this, despite that they had a folder full of lists of all the reserved guests. To make matters worse, security did not begin checking people in until 1:00 (later than usual according to someone I spoke to in line) and spent nearly a minute processing each person by looking through multiple unalphabetized files on a laptop. After about 15 minutes of this, a PR person for the Liberals showed up, trying to prod the security personnel to speed up the check-in process so that guests could get in before 1:30 and in time to be introduced. At one point, the PR staffmember whispered to a friend of hers in line that she thought this could be a stalling tactic. My impression, though, was that the staff in charge of the galleries were innocently unprepared–it took, for instance, a long time before the man behind the laptop figured out why so many people were visiting the Assembly.

Standing off to the side allowed me to watch the media circus one floor below. One MLA got plenty of attention from the media for wearing a “Straight, Not Narrow” t-shirt over his required shirt and tie, for which he was ultimately called out during the meeting on a point of order raised by a PC backbencher. The Speaker refused to rule on the question, though. Other Liberal MLAs showed their solidarity with their LGBT&c. constitutents by wearing rainbow pins and wristbands; Liberal House Leader Laurie Blakeman wore a bright rainbow top and a rainbow brooch. Finally, just before 2:00, the Liberals’ Outreach Coordinator could see the end of the line and eased up a little and got the check-in guy to let me in (there were still reserved guests in line, but the introductions were over and so it wasn’t strategically important that they get in, I guess). So, I took my seat in the middle of Oral Question Period.

Although the Liberals successfully killed the bill’s chance of being considered this year, I was amazed at how quickly the throngs of bill’s opponents lost their interest in the proceedings. When I sat down, there were easily 100, and probably over 150 people in the galleries–making them about 75% full. This filled the whole legislative chamber with political energy, but it was not long at all before the opponents began trickling out. Even before the filibuster was clinched (as far as I could tell), the galleries had dwindled to less than half full. By the time Speaker Ken Kowalski gave his lecture on the abuse of procedure to ruin private members’ day, there were very few people still in the galleries. Those of us who stayed to the end, though, were proud of ourselves and still a little roused as we rode back downstairs on the elevator. Even had the filibuster been a sure thing (and perhaps it was), the opponents en masse had a power that they could have amplified into a lasting impression had they been willing to stare over the Government’s shoulder all afternoon. And, as legislative meetings go, this one was hardly boring.

It was, truly, a great time, and I was particularly impressed by the cupholders in each MLA’s desk. These are ingenious inventions that Canada ought to export to every courtroom in America.

Streetlife

September 12th, 2006 at 21:27

Although the U.S. Department of State has given me thousands of USD primarily to do research here, I am allowed to leave my office and try to mix in with the Candian natives. Moreover, State even had the foresight to give me some helpful “Tips for Safety,” which will hopefully keep me alive on the notoriously unforgiving Edmonton streets. Things like, “when approaching a red light, leave space between your car and the vehicle in front of you so you can pull away if a gunman approaches;” “if you balance an ashtray on a windowsill, its fall will alert you to intruders;” and, perhaps most importantly for this brash country, “overcome your training to be polite to strangers. You could be caught off-base. . . . [D]o not be overly approachable; be hard-boiled or standoffish if necessary.”

So, keeping these tips in mind, I have gotten around a bit in the now three weeks that I’ve been here. And here’s what I can report:

  • Canadians can go to Cuba. For cheap.
  • Within two weeks of my arrival in Edmonton, the Edmontonians were nice enough to throw an Anarchist Bookfair for me. With childcare. Now my living room walls display coloring book pages with My Little Ponies sporting circle-A brands on their haunches.
  • Edmonton has what seems to be a pretty active system of neighborhood associations, or rather “community leagues.” I joined mine this past weekend, and I’m promised potlucks, sweet peas, land use planning meetings, and free swimming and skating. Plus, it was my league that rented its hall out for the anarchist bookfair.
  • My nearest farmer’s market is five blocks away, indoors, open year round, and pretty impressive.
  • They’ve got a lot of beer here and a lot of folks eager to drink lots of it. In a bar conversation, I realized that I’m living in a country that signed the Geneva Conventions without reservation and has ratified the Kyoto Protocol (current headlines notwithstanding).

All that, and no gunmen have approached and nobody’s tipped the ashtray onto the floor–congratulations, Canada!

Television

September 4th, 2006 at 22:12

Yesterday I switched on—for the first time—the TV that’s in the furnished Edmonton apartment I somehow managed to get, and I saw a guy in a robe and a wing collar with tabs standing at a podium and talking about a statute. In a few moments there was a cut to a another camera, which revealed that this guy was talking to a panel of nine people who were also in robes and special collars. Of the nine on the panel, four were women, including the person in the middle seat. It was the Supreme Court of Canada, of course.

And it turned out that I was watching CPAC, the cable channel that is to Canada what C-SPAN is to the U.S. Through its “Jurisprudence” program, CPAC broadcasts most Supreme Court proceedings, to cable subscribers in Canada and to web users worldwide. From some cursory web research, it doesn’t look like the case that I saw yesterday, Her Majesty the Queen v. Public Service Alliance of Canada, had all that much relative significance; in fact, the Court issued an oral judgment after hearing only one side of the argument.

But in the U.S., no part of even the most significant U.S. Supreme Court proceedings are permitted to be televised. Although for some years the Court has released audio of oral arguments and other proceedings after each term, and with Bush v. Palm Beach County Canvassing Board in 2000 began immediately releasing audio of argument in some major cases, cameras are still strictly prohibited from the courtroom. Microphones are banned too, and only members of the credentialed press and Supreme Court bar may even take notes during proceedings. Brian Lamb, C-SPAN’s president and CEO, has fought for decades to get permission to televise the Court and has gotten basically nowhere. A pair of bills introduced in Congress last fall would force the Court to open its doors to cameras, but both appear to be stalled right now.

Now, the arguments for and against televised appellate proceedings open an expanse of issues that I’m not willing to discuss right here right now. My gut reaction has always been that it’s a bit ridiculous that video is completely forbidden, even to be released after the term (as most audio is), and my growing sense is that the members of the judiciary who strongly oppose cameras in courtrooms are more scared of change than of anything else. The Supreme Court of Canada’s proceedings have been broadcast since 1993, and since then that Court has apparently sought to balance the “clashing titans” of fair trial and free press rights.

I can say, interestingly, that I experienced a palpable sense of evaporating majesty when I realized that I was seeing the Supreme Court of Canada on TV. I turned the TV off with a feeling that the Court was just another part of the Canadian government, doing an important job but not an unapproachable one. The U.S. Supreme Court is still surrounded, in my mind, by a veil of secrecy and mystery. Both Courts are doing the same thing: making decisions that affect people throughout North America and the world. And, having seen a high court both ways, I think I prefer them with the veil off.

Promulgation

October 25th, 2006 at 21:58

At the end of a recent entry here, I asked whether the legal system isn’t perhaps just “a small circle of people on the playground making up new rules for the basketball game going on nearby, then waiting with grins for someone to do something wrong without even knowing it.” Well, no, it’s not. In fact, Blackstone, that authoritative English judge, directly addressed this “small circle beside the basketball game” idea. He said that “a bare resolution, confined in the breast of the legislator, without manifesting itself by fome external sign, can never be properly a law. It is requisite that this resolution be notified to the people who are to obey it.” In other words, the people in the small circle can’t actually make a new rule unless they tell everybody else about it.

But then we have to wonder how much effort the little circle has to go to. If they just whisper it, is that enough? Once upon a time, apparently, the King of England would command all of the country’s sheriffs to travel all around their jurisdictions proclaiming each new act of parliament. Today in the U.S. and Canada, most people (97.0% and 99.9% respectively, according to a United Nations study) can read, and our governments promulgate law mainly by printing and then publishing it. This is not enough—and the government itself recognizes this in many cases, making mighty promulgation efforts with some important laws, such as the tax laws.

Yet, still—and this is no different than in the sheriff-crier days—the enormous part of the law that is the “common law” is left essentially unannounced. “Caligula published his laws in small characters; but still he published them: he hung them up high, but still he hung them up,” Jeremy Bentham railed, about a decade after Blacktone finished publishing his Commentaries, “English judges neither hang up their laws, nor publish them.” Today, even though we have a more extensive system of official and unofficial reporters publishing many appellate decisions, hardly anybody not dealing with law as a career appreciates the authority of judge-made law or would know how to decipher it if they did. And that’s not to mention courts’ now commonplace practice of releasing unpublished, often unciteable opinions.

I don’t know what to say about it, actually. Various drafts of this entry have been stewing on my desktop for several weeks now, and I haven’t identifed a meaningful direction to take them in. Promulgation is a suprisingly sweeping, fundamental, and unbelievably ignored topic. And I’m finding out that it is to law kind of as metaphysical cosmology is to philosophy—it is a discrete topic, but one that implicates almost everything else in the field. So, I’ll have to only mention it, by way of this entry, and move on.

Wexler

September 22nd, 2006 at 8:46

Unless I get killed, do something very stupid, or miss my flight to Boise, I will soon join the world’s most consistently detested profession. All that’s between me and a license to practice law is my swearing that, among a few other things, I “will never reject, for any consideration personal to myself, the cause of the defenseless or oppressed . . . . SO HELP ME GOD.” This pledge turns up time and time again in feelgood speeches at bar gatherings and in law school professional responsibility classes, and judges have even used it a handful of times to justify sending court-appointed lawyers home without pay. But even if this aspiration might be a supporting ground for mandating pro bono legal work, it’s something less than an Ancient Greco-Roman ideal that lawyers do all their work for free—turpe reos empta miseros defendere lingua (roughly, “it’s disgraceful to defend the unfortunate with a purchased tongue”). We live, after all, in a time when even people who want to be poverty lawyers complain when they can’t find anybody to pay them four times the income of the poor people they want to serve.

Indeed, the fact that the profession even sets aside “the defenseless [and] oppressed” as a group to be specially mindful of, and frames “poverty law” as a niche, serves mainly to make it crystal clear that the enormous remainder of the law and the profession deal with the powerful, the oppressing, and the rich. That’s to paraphrase Stephen Wexler, who in 1970 spelled out a blazing criticism of legal aid approaches in a law review article, “Practicing Law for Poor People,” 79 Yale L.J. 1049 (1970), that’s cited all the time but never once came up in my three years of law school.

Wexler doesn’t waste any time wondering why the bulk of the profession doesn’t do enough pro bono (a standard lament, but one that’s about the same as despairing that luxury estate brokers don’t do enough to help low-income housing projects displace country clubs). Rather, he gets straight to the more fundamental problem: lawyers are too full of themselves to really help anybody who needs help. Again to paraphrase (but only slightly):

We lawyers have so much ego invested in our skills, we put so much time and effort into preparing the court papers and arguments, and we have so many laminated diplomas hanging on our walls that we cannot help believing that “our” Court of Appeals case will bring about the millenium. It is hard, of course, for such gods to talk to any mere mortals, let alone poor, uneducated ones.

But a lawyer, he says,

must realize that what make him a lawyer are accidents of birth and interest, and those accidents have not made him something special; they have only given him the opportunity to help someone else. Being in the position to help, rather than of needing help, is a privilege. The lawyer must remember that he is where he is in order to help poor people do their thing, and not in order to do his own thing.

The reality however, attorney’s oath or not, is, as Wexler puts it, that most lawyers “manage to get on with laymen . . . by charging fees that only a miracle worker could deserve,” and “by using a language that no layman can understand.”

What solution? Well, number one on Wexler’s list is—get this—community legal education. “Traditional practice [taking individual cases to court or settlement],” he explains, “hurts poor people by isolating them from each other. . . . The lawyer for poor individuals is likely, whether he wins cases or not, to leave his clients precisely where he found them, except that they will have developed a dependency on his skills to smooth out the roughest spots in their lives.” But, of course, “[m]ost people who are not poor believe that poor people are unable to take care of themselves, let alone do work traditionally reserved for professionals.” More specifically,

lawyers are taught to believe, and have a three-year investment in believing, that what they have learned in law school was hard to learn, and that they are somehow special for having learned it. It is difficult for a lawyer to commit himself to believing that poor people can learn the law and be effective advocates; but until he believes that, a lawyer will create dependency instead of strength for his clients, and add to rather than reduce their plight.

As I’ve discussed already at this blog, people are doing this critical, community-empowering, organizing+education+law work in the U.S. And there are some (barely) acceptable explanations for why more is not being done (mainly a lack of funding and significant resistance from legislative bodies and anti-legal services organizations). But, if lawyers want to give anything other than hot air to “the defenseless and oppressed,” they’ll have to do a lot more than tweak the pro bono rules. They will have to change the way they think of themselves.

Sorting, and Spelling

September 8th, 2006 at 22:54

It’s my first full week of full-time research, and I’ve been spending some grueling hours coalescing with my laptop, a web-based citation manager, and the NEOS Library Consortium’s catalogue. The University of Alberta Libraries, a part of the NEOS Consortium, hold what are very possibly the world’s largest archives of community and public legal education (PLE) materials. My task, for this week and the next couple to come, is combing through the catalogue records of these materials, at once separating wheat from chaff and sorting the wheat into various bins.

To use the NEOS Catalogue you have to know how to spell, which put me at a disadvantage right at the start. If you are looking for items donated to the libraries’ collections by the University of Alberta’s Legal Resource Centre, you cannot search for “Legal Resource Center.” The merciless catalogue does not know or care that you’re an American with no hope of getting a spelling system that even natives can’t master. It took the Fulbright Fellow more than a day to realize (realise?) this, and when he did his search results grew a hundredfold.

That left me with just shy of 5000 records to scan and sort. This is a mechanical process: I’ve gone year by year starting in the mid-1960s, loading each year’s group of records into the citation manager software, then looking at each record and clicking it into one or more folders (e.g., research on designing PLE programs, needs assessments, program evaluations, and program materials themselves). This work, it’s true, is a tedious necessity—but it’s more than that. As the day goes by, the years go by, and the records go by, and you start to see trends. You see mini-explosions in the number of materials on a particular topic: lots of liberty and freedom materials from the U.S. around 1976 and then the rise of similar materials in Canada leading up the introduction of the Charter of Rights and Freedoms in 1982. There’s also the gradual decline during the 1970s of radical and subversive materials, like those on police confrontation, alternatives to traditional housing, and “Talking Back to Government” (a 1981 Vancouver People’s Law School videocassette perhaps in the rear guard of this genre). And you get sense of the staples of public legal education—immigration, welfare, family law, and wills, wills, wills, and wills.

It’s also been interesting to wait and watch for the debuts of the stars of North American PLE and law-related education. Folks like Lois Gander, Diane Rhyason, Rick Craig, Gordon Hardy, Gail Dykstra, Carolyn Pereira, Lee Arbetman, and Mabel McKinney-Browning all eventually show up in the author field, and you wonder just what they thought of their first published effort, and whether they imagined they’d come to be leaders of their field. More will come as I plod on, as will the end of the 5000-odd records I’ve got to tame. I will be decanting some Canadian rye at about that time.