How Culture Affects the Negotiation Process

By Thomas F. Lovecchio

To understand how Culture impacts the negotiation process it is important to understand what culture exactly is. Culture “is the cumulative result of experience, values, religion, beliefs, attitudes, meanings, knowledge, social organizations, procedures, timing, roles, spatial relations, concepts of the universe and material objects and possessions acquired or created by groups of people, in the course of generations, through individual and group effort and interactions.” Chris Moore, Mapping Cultures- Strategies for Effective Intercultural Negotiations, Mediate.com (March 2004), http://www.mediate.com/articles/cdr1.cfm. Negotiation tactics not only affect several different industries and professions, they also affect how one should approach cross-cultural negotiations. Given the diversity of the United States, many of these principles can be utilized even domestically. Culture plays a big role in the negotiation process and negotiation tactics. Culture determines whether and how negotiations occur; what is negotiable; determines the importance of personal relationships, affects the responses of the parties, and governs the overall flow and style of the negotiation. The ability to overcome cultural obstacles and barriers can result in more successful business deals, and improve overall business operations.

There are several things that I will explore that differ across cultures such as; time orientations, communication styles, space orientations, power distance, and risk avoidance. I will provide some general examples of these differences are apparent in American culture, African culture, and Japanese culture. Finally, I will discuss how law schools can include culture within negotiations into its curriculum.

Time Orientations

How a culture perceives time orientation can impact the negotiation process. Two different approaches to time orientation exist; monochronic time and polychromic time. Michelle LeBaron, Culture-Based Negotiation Styles, Beyond Intractability (July 2003), http://www.beyondintractability.org/essay/culture-negotiation. Polychronic time orientation involves simultaneous occurrences of various things and the participation of various people. Id. Negotiators from polychronic cultures tend to begin and finish meetings at flexible times; take breaks whenever they feel it is needed; enjoy a high flow of information; sometimes speak over one another; and do not take lateness personally. Id. European influenced cultures like the United States, Switzerland, and Germany tend to be polychronic cultures. Id. While negotiators from monochronic time orientations prefer, meetings with prompt start and end times; scheduled breaks; discuss one piece of information at a time; prefer to take turns speaking; and consider lateness as a lack of respect. Id. Examples of Monochronic cultures are France, Italy, Greece, and Mexico. Id.

Other aspects of time also differ depending on the culture. Negotiators of different cultures have different perspectives on the amount of time that is devoted to a negotiation. In the United States the goal is often to close the deal as quickly as possible. Thus, Americans tend to skip all of the formalities and get straight down to business. Jeswald W. Sallacuse, Negotiating: The Top Ten Ways That Culture Can Affect Your Negotiation, Ivey Business Journal (September/October 2004), http://iveybusinessjournal.com/topics/the-organization/negotiating-the-top-ten-ways-that-culture-can-affect-your-negotiation#.U0NXX6VRH1p. In contrast to many Asian cultures, whose primary goal is to build and create good business relationships, and there is no rush to get straight down to business and sign the contract. Id. They believe that the parties need to truly invest in the negotiation process so the parties have an opportunity to get to know each other well enough to determine if they can operate in a long-term business relationship. Id. If a party is obviously trying to shorten the meeting these cultures may assume that the other party is attempting to hide something. Id.

Communication Style

The methods and styles of communication also differ among cultures. Specifically cultures may engage in a high context communication style or a low context communication style. Jeanne M. Brett, Culture and Negotiation, 35 INTERNATIONAL JOURNAL OF PSYCHOLOGY, 97, 101 (2000). High context versus low context refers to the degree to which the people within a certain culture communicate directly or indirectly. Id. In high-context cultures the meaning is to be inferred, and is not conveyed by direct communication between the parties. Id. Examples of high context cultures are the United States and Israel. Id. In contrast low-context cultures exchange information more explicitly and the meaning of a message will not have to be inferred. Id. Low context cultures include those such as the Japanese and the Egyptians. Sallacuse, supra.

Communication is a very important part of the negotiation process. In order for the parties to reach an optimal agreement they must exchange information to figure out the other party’s interests, goals, preferences, and priorities. Brett, supra. Exchanging information about interests, goals, preferences, and priorities is a direct communication tactic. Id. This usually involves the asking of direct questions, and in response there are direct answers. Id. During this “give and take” exchange of questioning the parties are working to develop an understanding of the other party’s interests, determine if there are commonalities, and gauge how important or irrelevant each interest is for the other party. Id.

A more indirect communication tactic involves a heuristic trial and error approach. Id. This is the process of parties exchanging settlement offers or proposals back and forth. Id. When an offer is rejected and a counter-offer is made the party who offered the initial offer uses this as a way to try and infer what was wrong with their proposal by how the party responds in their counter-offer. Id. All of the information regarding the interests and priorities of the parties is conveyed indirectly when each party makes their proposal or counter-offers. Id.

Space Orientations and Power Distances

Space orientations are another component of negotiations that differ among cultures. Space orientations relate to territory, differences between public and private, personal distance, and comfort with physical contact. LeBaron, supra. Certain cultures allow more touching or physical contact than others. Mediterranean, Latin American, and Arab cultures allow more touching than Asian, Canadian, and U.S. cultures. Id.

Space orientations also relate to how comfortable someone is with eye contact. In many Arab cultures, Canada, and the United States eye contact is perceived as a sign of honesty, respect, and trustworthiness. Id. However, in some North American indigenous cultures, eye contact may be taken as inappropriate or even disrespectful. Id. Also in many Asian cultures looking downward is interpreted as a sign of respect, and in Central America movement of the eyes may indicate that someone is embarrassed, showing respect, or disagreement. Id.

Power distance is the “degree of deference or acceptance of unequal power between people.” Id. Cultures that utilize a high degree of power distance are those cultures where certain people are classified as superior because of their education, age, social class, gender birth origin, family background, or other personal achievements. Id. Cultures that have a low power distance believe in equality among all people, and believe that status is earned. Id. Usually if there is a large difference is the distribution of wealth, the higher the power distance will be in that culture. Cultures with high power distances include: Arab countries, Mexico, Indonesia, and India. Id. Negotiators from high power-distance cultures are more comfortable with defined authority figures, the right to use power, and hierarchical structures. Id. Cultures with a low degree of power distance include: New Zealand, Norway, Germany, Ireland and Israel. Negotiators from low power distance cultures are more comfortable with shared authority, the right to use power in only limited situations, and democratic structures. Id. How a culture perceives the differences in power can affect their positions on various issues, and how they may perceive the other party during the negotiation.

Risk Taking or Risk Avoidance?

The final aspect of negotiation differences among cultures is how risk averse a culture is. This factor plays a big role in the negotiation process, because it will play a significant role in whether a party from a certain culture will take risks or avoid risks in the entire negotiation process. A negotiators culture can determine whether or not they take risks in divulging information, trying new approaches, and acceptance of uncertainties in proposed agreements. Sallacuse, supra. Americans, the French, and the British often consider themselves high-risk takers. Id.  How risk averse a culture is also ties into how well they adapt to ambiguity and uncertainty. Countries that are not comfortable with ambiguity and uncertainty place a high value on risk avoidance, safety, and reliance on rules and rituals. LeBaron, supra. In these cultures it may be harder for outsiders to build trusting relationships with members of these high-risk averse cultures. Id. Cultures that tend to be highly risk adverse include the Japanese, Muslim, and traditional African cultures. Id.

Some Examples

In the United States negotiators tend to be more competitive in their approaches. They often begin with an unrealistic offer, but always have a back-up plan. Id.  U.S. negotiators are energetic, confident, persistent, and enjoy arguing their positions. Id. They tend to focus on one problem at a time, and focus on points of disagreement as opposed to commonality. Id. Finally, U.S. negotiators like closure at the end of the negotiation process. Id.  Which easily relates back to their philosophy that, “time is money.” If you picture any type of negotiation depicted in film or television of the legal system it can be seen as more of a straight forward, hardball type of negotiation, which fits with the high risk taking and is much different from a risk adverse negotiation.

In African cultures the approach to negotiation is quite different. Many African cultures rely on indigenous systems of conflict resolution. Id.  These systems pay particular attention to kinship, age, and the structure of the local community. Id. Thus, these cultures will likely have a high degree of power distances.

Over time there have been several conflicts between the United States and Japan because of the different approaches to negotiation. Id. The Japanese usually focus on interdependence and group goals. Id. The Japanese often show an awareness to group objectives and desires, and show more deference to individuals with a higher status. Id.  As a result they are known for their politeness and their desire to build long-lasting relationships. Id.

These are only a few examples of how different cultures are in the negotiation process. Each culture will have different principles, value different things, and have different goals in a negotiation process.

For Law Schools

It is important that law schools include culture into its curriculum, so that students can become better negotiators. “Yet despite the importance of culture in dispute resolution, the reality is that the subject receives scant mention in the law curriculum.” Ilyhung Lee, In re Culture: The Cross-Cultural Negotiations Course in the Law School Curriculum, 20 Ohio St. J. on Disp. Resol. 376 (2005). Law schools should include this in its curriculum because many areas of the law are being internationalized. Id. at 380. Even laws that are not internationalized. Teaching about different cultures would help students negotiating or practicing at any level in the United States because students will presumably come across many different cultures while practicing law.

By studying culture in negotiations it would be encroaching students to understand the difference in cultures. Id.at 388. Some students may not know of the differences or even if they do, gaining a deeper understanding would only help those students to become better negotiators. Even if, as some will argue that this is based more in anthropology or management rather than law, cross-cultural negotiations involve many different areas. Id. at 409. Due to the complexity of the law and the factors that effect it, “cultural differences can contribute to competition interests and desires, tension, and dispute, all of which relate to legal rights.” Id. at 410. If lawyers can “identify the ‘cultural cues,’ so that the necessary adjustments can be made and the process be allowed to pursue more constructively.” Id. This identification can be compared to the classic issue spotting that law schools teach. Id. “Without cultural recognition and issue spotting, it may be impossible to proceed to a fruitful result: toward dispute resolution in the former and application of the law in the latter.” Id. This can be taught in a similar way that issues are taught, such as practice problems with more of a description of the clients’ background, power distance and time orientation. Id. at 411.

Conclusion

As time goes on Cross-cultural negotiation becomes more and more prevalent in every industry.  As detailed above time orientations, space orientations, power distances, communication styles, and risk avoidance are just some of the factors that play a role in cross-cultural negotiations. There are several others and, preparing for these negotiations and learning all of these intricacies will be crucial to the result of the negotiation process. It is important to keep these factors in mind during any negotiation process because some cultures are more risk adverse than others and place a high level of importance on certain factors. Law schools should teach this because a negotiator who familiarizes themselves with the other party’s culture will ultimately be more successful in reaching a favorable outcome, and building trustworthy business relationships.

“Two Types”

By Liana Stinson

A no-contact order was issued against Keith Tharpe by Migrisus, Tharpe’s wife. Tharpe v. Sellers, 138 S. Ct. 545, 547 (2018) (Dissent). Regardless of the order, Tharpe told his wife that if she wanted to “’play dirty’ he would show her ‘what dirty was.’” Id. The next morning, Tharpe ambushed his wife and her sister, Jaquelin Freeman, by pulling his vehicle in front of the car they were in to force them to stop. Id. Once they were stopped, Tharpe pulled out a shotgun from his vehicle, aimed it at their car, and order his wife to get into his truck. Id. Tharpe then told Freeman that he was going to “f– [her] up” and then took her to the back of his vehicle, shot her, “rolled her body into a ditch, reloaded, and shot her again, killing her.” Id. Tharpe next both kidnapped and raped his wife, leaving behind Freeman’s body in the ditch to be later found by her husband while driving their children to school. Id.

Subsequently, Tharpe was convicted by a jury of malice murder and two counts of aggravated kidnapping. Id. The jury only needed two hours to return the unanimous death sentence after hearing all of the evidence. Id. The jury noted that not only did Tharpe commit a murder that was “outrageously or wantonly vile, horrible, or inhuman,” he also committed two other capital offenses at the same time: the aggravated kidnappings of Ms. Freeman and his own wife. Id. at 547-548.

Fast forward to seven years after Tharpe’s trial, Tharpe’s attorneys interviewed one of the jurors in his trial, Barney Gattie, and drew up an affidavit. Id. at 548. During the interview, Gattie stated that he knew Freeman and that her family was “what [he] would call a nice [b]lack family.” Id. Gattie then stated that “there are two types of black people: 1. Black folks and 2. N******.” Id. Thereafter, the affidavit included that Gattie thought Tharpe “wasn’t in the ‘good’ black folks category’” and if Freeman had be “‘the type Tharpe is, then picking between life and death for Tharpe wouldn’t have mattered so much.’” Id. Gattie then stated that because Freeman, along with her family, were “good black folks,” Tharpe “should get the electric chair for what he did.” Id. The affidavit even included a statement by Gattie that “[a]fter studying the Bible, “he had “wondered if black people even have souls.” Id. In regards to the other jurors, Gattie noted that some of them “wanted blacks to know they weren’t goin to get away with killing each other.” Id.

Two days later, Gattie presented an affidavit to the State saying that he “did not vote to impose the death penalty because [T]harpe was a black man,” but because “the evidence presented at trial justified it and because Tharpe showed no remorse.” Id. Gattie explained in the affidavit that although the previous affidavit through Tharpe’s attorneys was signed by Gattie, he “never swore to [it] nor was [he] ever asked if [the] statement was true and accurate” and also that he had consumed “seven or more beers” when he signed the first affidavit. Id. In regards to the statements in the first affidavit, Gattie stated that they “were taken out of context and simply not accurate.” Id. He also mentioned how he felt that Tharpe’s attorneys who took the affidavit “were deceiving and misrepresented what they stood for.” Id.

Thereafter, Tharpe moved to reopen his federal habeas corpus proceedings and claimed that the jury that convicted him of murder included a juror, Gattie, whom was biased against Tharpe simply because he was black. Id. at 545. The state court made a factual determination that Tharpe failed to show “prejudice in connection with his procedurally defaulted claim. Id. Tharpe then appealed to the District Court. Id. The District Court denied his claim because it was “procedurally defaulted in state court.” Id. Also, the District Court noted that Tharpe “failed to produce any clear and convincing evidence contradicting the state court’s determination that Gattie’s presence on the jury did not prejudice him.” Id. Tharpe then appealed to the Eleventh Circuit which agreed with the state court’s factual determination and concluded that Tharpe had “failed to demonstrate that Barney Gattie’s behavior ‘had substantial and injurious effect or influence in determining the jury’s verdict.’” Id. Tharpe then appealed to the Supreme Court of the United States which granted certiorari.

Although the state court, before the District Court, concluded that Gattie’s vote to impose the death penalty on Tharpe was not based on race, that finding, absent “clear and convincing evidence to the contrary, is binding on the Supreme Court. However, the Court found that there was clear and convincing evidence to the contrary in this case. Id.

The affidavit produced by Tharpe was signed by Gattie which explicitly expressed his view that “there are two types of black people” and that Tharpe, “who wasn’t in the ‘good’ black folks category in my book, should get the electric chair for what he did.” Id. These statements, among all of Gattie’s other statements in the affidavit, would at least allow jurors to debate whether Tharpe did meet his burden by showing clear and convincing evidence to show that the state court’s factual determination was wrong. Id. Therefore, the Court concluded that the Eleventh Circuit erred when it concluded that Tharpe had failed to produce evidence to the contrary. Id.

The dissent argued that the second affidavit submitted by Gattie was significant and that, because none of the other jurors corroborated his story that they “wanted blacks to know they weren’t going to get away with killing each other,” the dissent argues that Gattie’s second affidavit was credible. Id. at 548. The dissent is however, mislead.

Regardless of whether it was true that Gattie had consumed alcoholic beverages prior to the meeting with Tharpe’s lawyers, he signed the affidavit. His signature on the affidavit affirms that those statements were told by him in response to the lawyer’s questions. There was no sign of duress in this case, being that this affidavit was taken seven years after the death sentence was imposed on Tharpe. Therefore, Gattie’s statements reflected what he truly felt, intoxicated or not.

I am extremely pleased with the Court’s holding in this case. Had the dissent become the majority, there would have been an injustice to Tharpe as well as any proceeding case where a defendant finds out later that there was any sort of bias against him by a juror which might have cause his harsh sentence and possibly subjected him/her to the death penalty. A slippery slope may have been created if the majority did not rule that the question of juror bias should be left to the finder of fact; jurors then would be free to hide their true feelings towards defendants to obtain a favorable conviction to them and then subsequently unveil those true feelings after the trial. Jurors would then intentionally try to convict those defendants that they have harsh feelings towards.

This outcome in this case, however, may have an impact on the court system. Because this case needs to now be remanded to have a jury decide whether Tharpe produced clear and convincing evidence, the case is not final. It will now be another case in the court system. If every death penalty conviction or conviction in general is found to have a possibility of bias jurors, while fairness and justice dictates they be remanded, the court system may become bogged down with all of the remands. However, because we should look at the element of fairness and justice to all persons, the jury should decide whether Tharpe met his burden of showing the jury pool was bias against him. If that is found to be the case, he has the right to a fair and just trial.

Gerrymandering in Pennsylvania

By Jacob Oldaker

In February of 2018, the Pennsylvania Supreme Court released a decision in League of Women Voters v. Commonwealth that bound Pennsylvania to a new congressional district map. League of Women Voters v. Commonwealth, No. 159 MM 2017, 2018 Pa. LEXIS 927 (Feb. 19, 2018).  This decision will upend familiar bounders and the renumbering of districts across the state may give the Democratic party a boost in the 2018 House elections.  Jonathan Lai, In Gerrymandering Case, Pennsylvania Supreme Court Releases New Map for 2018 Elections, http://www.governing.com/topics/politics/tns-pennsylvania-gerrymandering-supreme-court-map.html, (last visited Apr. 12, 2018).  The new plan splits only 13 counties which is vastly reduced to when contrasted with the most recent map in 2011 that split 28 counties. Id.

“The Remedial Plan is superior or comparable to all plans submitted by the parties, the intervenors, and amici, by whichever Census-provided definition one employs,” the court wrote in its order. It also wrote that the plan is “superior or comparable” to the various map proposals on the average compactness of districts and that each district in the map has an equal population, plus or minus one person.

Id.

Much concern is brought from these changes because they appear to be favorable to the Democrats. Id.  Under the new plan, President Donald Trump would have won 10 congressional districts which is two fewer than he won in 2016 under the current map. Id.  These changes are not going unnoticed within the Republican party and they are pushing back, and have further pushed towards the Supreme Court of the United states.  Id.  The Republicans believe this has become a Constitutional issue because by taking mapmaking into the court’s own hands, they are overstepping the line drawing power that the U.S. Constitution gives to state legislature. Id.  In the mindset of the Republican party

“This Court recognized that the primary responsibility for drawing congressional districts rested squarely with the legislature, but we also acknowledged that, in the eventuality of the General Assembly not submitting a plan to the Governor, or the Governor not approving the General Assembly’s plan within the time specified, it would fall to this Court expeditiously to adopt a plan based upon the evidentiary record developed in the Commonwealth Court,” the per curiam order reads, adding that drawing a map is “a role which our Court has full constitutional authority and responsibility to assume.”  

Id.  This belief is not entirely true because the court notes that all participants in the case had opportunity to submit proposals and feedback, and those submissions guided the redrawing. Id.

This decision could have a significant impact going forward in not only local elections but in presidential elections in the future.  Pennsylvania is a key battleground state for major elections because the number of voters per political party is close to an even split. Id.  These new district lines may not only affect presidential elections but can impact politics at the state and national level as the Democratic party attempts to capitalize on favorable political trends to regain control of the U.S. House of Representatives.

Personally, I believe these new lines could add a level of competition to the districts.  New, completive districts, in the eyes of the Democrats allows the lines to be fairly drawn based on population to create an equal opportunity in each election period.  The Supreme Court of Pennsylvania needs to be conscientious in their decisions around redrawing district lines to avoid accounts of gerrymandering from either party.  There is a fine line when it comes to matters that involve elections, and the courts and political parties need to work together to avoid gerrymandering claims in the future.

Lamar, Archer & Cofrin, LLP v. Appling

by Thomas F. Lovecchio

The Supreme Court heard arguments on April 17th, 2018 in Lamar, Archer & Cofrin, LLP v. Appling. This case involves a circuit split regarding the Bankruptcy Code. Mr. Appling hired Lamar, Archer & Cofrin “Lamar” to represent him against the former owners of his business. Lamar, Archer & Cofrin, LLP v. Appling, Oyez, https://www.oyez.org/cases/2017/16-1215 (last visited Apr 18, 2018). Mr. Appling had some substantial legal fees and he told Lamar that once he received his tax return, which he was expecting to be a decent amount, he would be able to pay Lamar. Id. Based on this Lamar continued representing Mr. Appling. Id. Mr. Appling’s tax refund was less than what he was expecting and told Lamar this but did not pay Lamar and instead put the money into his business. Id. “Lamar obtained a judgment against Appling and Appling subsequently filed for bankruptcy.” Id. When “Lamar initiated an adversary proceeding to collect the debt, and the bankruptcy court ruled that the amount was not dischargeable pursuant to 11 U.S.C. § 523(a)(2)(A) because Lamar had justifiably relied upon Appling’s fraudulent statements. The district court affirmed.” Id.

On appeal the 11th Circuit reversed and remanded. Id. The 11th Circuit cited a split in the Circuit Court of appeals with how it construes 11 U.S.C. § 523(a)(2)(A). Id. The issue for the Supreme Court is “Whether (and, if so, when) a statement concerning a specific asset can be a “statement respecting the debtor’s … financial condition” within Section 523(a)(2) of the Bankruptcy Code. Lamar, Archer & Cofrin, LLP v. Appling, SCOTUS blog, https://www.oyez.org/cases/2017/16-1215 (last visited Apr 18, 2018).

Lamar argues that a statement concerning a specific asset are not be a “statement respecting the debtor’s … financial condition within Section 523(a)(2) of the Bankruptcy Code. Lamar’s argument follows along with the 5th, 8th, and 10th Circuits.  Danielle D’Onfro, Argument preview: Court to decide whether Bankruptcy Code protects dishonest debtors (April 10, 2018 2:01 PM), http://www.scotusblog.com/2018/04/argument-preview-court-to-decide-whether-bankruptcy-code-protects-dishonest-debtors/. Based off of this argument, Appling’s statements would be the exception to the exception and not be discharged under the Bankruptcy code. Id. Appling argues that his statements were based off of his overall financial condition, thus it would meet the exception in the Bankruptcy Code. Id.

Two key points of this case are how the Court is going to construe statement and financial condition. Statement could be narrowly construed to mean financial statements and financial documents or it could be expanded to include any statement, such as something a person says.

Next is financial condition. The statements made by Appling were about his financial condition but were ultimately about his tax return and as Lamar argues, a specific asset. I would find in favor of Lamar because Appling’s a statement about a specific asset is not about the debtor’s financial decision. First, a statement about a specific asset would only pertain to that asset. Even if it could be reasoned that one asset is indicative about a debtor’s financial condition that would require a search into the debtor’s assets as to how many assets he has. Second, while cash is often the first asset listed on a balance sheet, at the time of the statement the debtor did not have the cash he was speaking about. Since the debtor would be unable to list the tax refund as cash at the time he made the statement it should not be considered a statement about a specific asset.

From Behind Bars to Taking the Bar

by Liana Stinson

One might assume that the typical of life of a lawyer started by that person graduating high school, then going on to college to graduate and apply to law school. Maybe that person played sports in college or was the star of the Mock Trial team. Maybe that person started off a little rocky in college but then was able to become refocused and graduate with honors. For Daryl Atkinson, none of those scenarios ring true.

For Daryl, high school centered around him being a basketball star with a large circle of friends. Eric Tucker, Public face of US re-entry effort speaks from own experience, The Associated Press (Apr. 26, 2016), https://apnews.com/d1d974836ced4534ac194752debebd2c/public-face-us-re-entry-effort-speaks-own-experience. Growing up in Alabama, his family was deeply devoted to public service. Id. Daryl went on after high school to the University of Tennessee where he played basketball. Id. Tragically, an injury ended his basketball aspirations at the University of Tennessee where he was forced to return home to Alabama. Id. With his basketball career over and having nothing to do back at home, Daryl realized his talents in the area of sales. He began selling marijuana. Tessie Castillo, A Real Shawshank Redemption: One Man’s Journey from Prison Bars to the Bar Exam, The Huffington Post (Nov. 30, 2015), https://www.huffingtonpost.com/tessie-castillo/a-real-shawshank-redempti_b_4057959.html. Daryl first begin selling to “smoke for free” but then he says, “I saw I was good at dealing. As my status elevated, I moved up through the ranks and started dealing cocaine.” Id.

Daryl continued selling drugs until one day, one of his crime partners turned him in. Id. “I could have gotten 99 years, but I pled guilty in exchange for a 10-year sentence with a 40-month mandatory minimum for good behavior.” Id. Daryl entered an Alabama state penitentiary in 1996. Id. He then continued to sell drugs to both prison guards and inmates while inside and eventually, got himself into a minimum-security facility because of his “good behavior.” Id. However, Daryl was transferred to a maximum-security prison, where 60% of the inmates are serving life sentences without parole, when he got into fight with a white supremacist. Id. Daryl remarked about the incident that it is “hard to stay out of trouble in a place like that.” Id. “A sense of hopelessness and frustration permeates everything and I was forced to make life or death choices [with regards to fighting] all the time. If I fought, I could serve the entire 10-year sentence, but if I didn’t, someone might kill me.” Id.

While in the maximum-security prison, Daryl spent the first two months in solitary confinement. In solitary, the prisoner spends 23 hours a day in the cell alone. Daryl was given “two meals, two pairs of boxers and two shirts.” Id. U.S. prison officials use solitary confinement to punish and control difficult or dangerous prisoners, such as those engaged in fighting, that they needed to be kept apart from the other prisoners. Erica Goode, Solitary Confinement: Punished for Life, The New York Times (Aug. 3, 2015), https://www.nytimes.com/2015/08/04/health/solitary-confinement-mental-illness.html. Solitary confinement has been linked to worsening mental illness and producing symptoms in prisoners who did not start out mentally ill. Id.

Solitary confinement has been viewed as a form of torture, however, for Daryl, it was the source of a turning point in his life. Tessie Castillo, A Real Shawshank Redemption: One Man’s Journey from Prison Bars to the Bar Exam, The Huffington Post (Nov. 30, 2015), https://www.huffingtonpost.com/tessie-castillo/a-real-shawshank-redempti_b_4057959.html. While sitting in his cell, Daryl had a lot of time to review the events of his life and how they led to a life behind bars. Id. “In high school, I’d felt validated through sports. Then turned to success as a street dealer to feel good about myself. But in prison I had no money or status, so I learned how to be validated from the inside, based on character and principle.” Id.

After spending those two months in solitary confinement, Daryl met James, a fellow inmate who created an ad-hoc law firm within the prison’s library. Id. For many prisoners, having their own lawyer was a luxury they did not possess. So to plead their case, prisoners utilized the resources in this library to research and file litigation on their own behalf while they were incarcerated. Id. James set up this law firm while spending his life in prison without the possibility of parole to “start a movement” says Daryl. Id.

Forty inmates, including Daryl, have utilized their recreational time while imprisoned in the library working on their cases. James required these men to drop their gang affiliations and learn Alabama’s rules of procedure. While incarcerated, Daryl saw James help 18 men get out of prison due to “their parole had been erroneously revoked or there were mistakes in their cases.” Id. Through working with James in the prison’s “law firm,” Daryl “learned the power of the law” which “planted the seed” for his later career. Id.

Fortunately, due to his good behavior, Daryl was released after serving just 40 months. Id. Alabama has a very high recidivism rate at 30% of newly released convicts will return to the prison system. Alabama Public Radio (May 6, 2017), http://apr.org/post/best-documentary-and-justice-all-alabama-public-radio-0#stream/0. For many newly released people, getting out is actually more terrifying than being incarcerated. These people face discrimination in employment due to their criminal status and discrimination in housing, federal assistance, and education. Tessie Castillo, A Real Shawshank Redemption: One Man’s Journey from Prison Bars to the Bar Exam, The Huffington Post (Nov. 30, 2015), https://www.huffingtonpost.com/tessie-castillo/a-real-shawshank-redempti_b_4057959.html. That is why newly released people turn back to the life of crime they once knew instead of constantly fighting for a job and to make ends meet.

Daryl was luckily not a part of that 30% that returned to a life of crime. With the support of his family in both supplying him a place to live and food to eat, Daryl was able to pursue a career in the law after being released. Id. Daryl obtained his “Associate in Arts, Bachelor in Science, and Juris Doctor Degrees.” https://www.communitysuccess.org/wp-content/uploads/2016/07/CSI_Speakers_Daryl_Atkinson.pdf. He has also passed both Minnesota and North Carolina’s Bar Exam. Id.

However, Daryl did not completely escape the discrimination that accompanies being a former convict. While applying to law schools, Daryl was rejected at all but one law school because of his criminal record. Eric Tucker, Public face of US re-entry effort speaks from own experience, The Associated Press (Apr. 26, 2016), https://apnews.com/d1d974836ced4534ac194752debebd2c/public-face-us-re-entry-effort-speaks-own-experience. The University of St. Thomas in Minneapolis accepted Daryl and said, “[w]e like to think of ourselves as a nation that’s open to rehabilitation and reformation.” Id.

Throughout his years of law school, Daryl was an exceptional student. “[Daryl had] an unmatched sense of righteous indignation about injustice,” said Artika Tyner, one of Daryl’s supervising attorneys in a family law clinic. Id. Daryl ended up being the commencement speaker at his graduation and graduated in the top third of his class. Id.

Currently, Daryl lives in North Carolina and works as a staff attorney for the Southern Coalition for Social Justice (SCSJ). Daryl “raises awareness about the collateral consequences of the criminal justice system and represents clients who, like [himself], face legal barriers to reintegration after leaving prison” at SCSJ. Tessie Castillo, A Real Shawshank Redemption: One Man’s Journey from Prison Bars to the Bar Exam, The Huffington Post (Nov. 30, 2015), https://www.huffingtonpost.com/tessie-castillo/a-real-shawshank-redempti_b_4057959.html. Daryl is a “founding member of the North Carolina Second Chance Alliance, a burgeoning statewide coalition of advocacy organizations, service providers, faith-based organizations and community leaders that have come together to achieve the safe and successful reintegration of adults and juveniles returning home from incarceration.” Dustin Chicurel-Bayard, White House Honors Champion of Change Daryl Atkinson, Southern Coalition for Social Justice (Jun. 27, 2014), https://www.southerncoalition.org/daryl-atkinson-champion-of-change/.

In June of 2014, the White House honors “Champions of Change” who work to facilitate employment opportunities for those formerly incarcerated. Id. Daryl received a “Champion of Change” award for the work he does at the Southern Coalition for Social Justice. Id. Daryl said when receiving the award, “[t]his award is a huge honor … [t]o me, it really demonstrates the potential of every formerly incarcerated individual to achieve their dreams if they have the proper support.” Id.

Widener Commonwealth Law School was lucky enough, in 2016, to have Daryl speak at the Diversity Forum “Justice: Healing for the Past; Opportunity in the Future.” Daryl is now the public face “of the Justice Department’s efforts to help convicted felons re-enter society.” Eric Tucker, Public face of US re-entry effort speaks from own experience, The Associated Press (Apr. 26, 2016), https://apnews.com/d1d974836ced4534ac194752debebd2c/public-face-us-re-entry-effort-speaks-own-experience. He joined the Justice Department as the Department’s first-ever Second Chance Fellow where he helps to “develop a re-entry policy that the Obama administration sees as a vital component of its broader effort to reshape the criminal justice system and the handling of nonviolent drug offenders.” Id.

Daryl has committed his life now to helping remove common barriers faced by former convicts in restarting their lives. Also, Daryl advises a federal re-entry council that represents about 20 agencies and together, they develop strategies for assisting former convicts in getting a fresh start. Daryl wants to identify people who, like him, found success after incarceration and wants to add the stories to an online digital “story bank.” Id.

The Georgia Justice Project

by Jacob Oldaker

In 2016, the Widener Law Journal – Economics and Race held the 9th annual Diversity Forum. The Focus of the Forum was on “Justice: Healing for the Past; Opportunity in the Future” which centers around changes in the judicial process that can lead to the betterment of future generations. A key-note guest speaker visiting Widener for the discussion was Doug Ammar who is the Executive Director for the Georgia Justice Project (GJP). The GJP is one of many, established programs that work to assist in proper representation in the criminal justice system to in turn reduce the rates of reentry into the prison system.

The Georgia Justice Project strengthens the community of Atlanta, Georgia, by offering better ways to represent and support individuals in the criminal justice system and to reduce recidivism rates. Georgia Justice Project, About GJP, http://www.gjp.org/about/, (last visited Mar. 18, 2018). There are many practices and tools that have been used to attempt to reduce recidivism in the United States but they need to be narrowly tailored to the demographic the organization is assisting. The GJP specifically promotes innovative change through direct legal representation, policy advocacy, education and coalition building. Id. They have improved their practices over the past thirty years and have found a niche that has developed a personal identity between themselves and the people of Georgia. So, now the question becomes, how can a “another” recidivism effort be unique? The GJP has pioneered a unique approach that combines legal and social services, along with employment support, to the neediest people who commonly become the poor people accused of committing crimes. Id. As Martin Luther said, “Our lives begin to end the day we become silent about things that matter.” Id. The GJP serves the lowest-wealth members of the community who are also at the highest risk for criminal involvement. The demographic they serve consists of clients between the ages of 14 and 58 – with more than half between the ages of 17 and 25, most being male residing in the city of Atlanta. Id. The GJP has discovered the most relevant demographic that needs assistance but that is only step one in solving the problem.

Specific services and outlets need to be provided to these people and GJP offers specific services based on their clientele needs. The GJP has determined a strong correlation between unemployment, poverty and crime. Id. According to their research:

  • 90% of those in the criminal justice system live below the poverty line.
  • Nearly 600,000 inmates arrive annually on the doorsteps of communities nationwide with virtually no system to help integrate them.
  • The United States has the highest incarceration rate in the world.
  • The racial disparities of who is incarcerated are profound.  39% of the US prison population is African-American (but only 12.9% of the US population).
  • We do our work in the area of the country where the need is greatest:  The South has the highest incarceration rate in the US and in Georgia, 61.6% of the prison population is African-American (they make up 31.5% of the state’s population)

Id.

Do to these profound statistics, GJP offers opportunity for social impact through programs that overcome criminal barriers to economic stability. Id. These programs focus on criminal defense assistance, criminal records maintenance, mitigation of collateral consequences, and an overall systematic change. Id. Each program will influence the legal practice by minimizing the impact of criminal records and providing adequate services to the indigent population. As future members of the legal community we need to remember the importance of advocacy for the underrepresented members of out community because each person affected by the criminal justice system is our responsibility as attorneys.

 

Economic Justice

by Thomas Lovecchio

Last year at the 10th Annual Dean’s Diversity Forum the topic was Economic Justice: Dignity Through Opportunity. The Forum explored how lawyers could create economic opportunities for low income individuals. Economic Justice is “a set of moral principles for building economic institutions.” Investopedia, Definition of ‘Economic Justice’ https://www.investopedia.com/terms/e/economic-justice.asp. An example of this is the tax system in the United States, where one is taxed at a higher percentage if they are in a higher income bracket. Id.

A great place to teach future lawyers about developing economic justice is right at home where they are being taught, at law school. This can be done through clinics. In law school “[s]tudents are drawn to particular clinics because of the clinics’ social justice missions.” Lynnise Pantin, The Economic Justice Imperative For Transactional Law Clinics, 62 Vill. L. Rev. 175, 177. Lawyers are often seen as the larger than life litigator advocating for social justice and often over looked is a lawyer’s advocacy in transactional practice. Id. at 178-79. Economic issues that have been examined through economic justice involve numerous transactions, such as, insurance coverage and lending practices. Further, other daily financial aspects that are not traditionally seen as transactional involve a financial advisor or broker that still involve economic justice. Due to this, economic justice for clinics should extend beyond the traditional transactional sense. With this law schools need to do more than teach “solely for the technique of practice” because students would then have no sense of how economic justice impacts daily economic decisions. Id. at 181

Law schools often have to decide between the historical approach to clinics versus the “practice-readiness of their graduates.” Id. at 189. This leaves those in charge of developing clinics faced with a tough decision. It may be because I am not too familiar with the intricacies of clinics, but I do not see a reason as to why a clinic could not encompass both the historical approach and practice readiness. By including economic justice as a goal of a transactional clinic, law schools could adhere to the historical approach of clinics, with some type of social justice because economic justice is sometimes seen as a subset of social justice. Including economic justice as a goal of a transactional clinic, law schools could adhere to the practice ready approach because having an understanding of how economic justice factors into transactions is something that would be valuable to any client.

An argument not to include social justice here is that having students “ready for practice supersede a social justice curriculum.” Id. at 193. This argument fails to consider that one can include economic justice into a business curriculum and still have practice readiness supersede it. Law schools could decide on a school by school basis how much it would want to include economic and social justice into the business curriculum based on that school’s administration and board of trustees/advisors. Further, not including some sort of economic justice into a business curriculum does a disservice to students. If students understand the concepts and the practice of business law but do not understand other factors that are not written into the law, students would go into practice without a full understanding of all of the factors they would face. By including some amount of economic justice in the business law curriculum would even further prepare law students to be “practice ready.”

Racial Riots

by Liana Stinson

March 3, 1991: Rodney King, recently paroled felon, was involved in a high speed chase with police through the streets of Los Angeles. Riots erupt in Los Angeles (1992), https://www.history.com/this-day-in-history/riots-erupt-in-los-angeles. He eventually surrendered, however, he was visibly intoxicated and uncooperative with police. Id. Unbeknownst to the police, a citizen videotaped King resisting arrest and four police officers brutally beat King with their batons and kick him a significant amount of time after he was capable of resistance. Id. The video was subsequently released to the press which sparked national outrage and shed light on police brutality. Id.

King was later released without charges. Id. The four police officers, Powell, Wind, Briseno, and Sergeant Koon, were indicted in connection with the beating. Id. Koon was not an active participant in the beating of King, however, he was charged with aiding and abetting by being the commanding officer present on the scene. Id. In addition, Powell and Koon were charged with filing false police reports. Id.

The police officers were subsequently acquitted of any wrongdoing by a mostly white jury. Id. A few hours after they were acquitted, the L.A. riots began. Id. Hundreds of people were so filled with rage surrounding the acquittal, they had to express it. Traffic was blocked, one hundred fires were set, store were looted, and motorists were beaten. Id.

Henry Keith Watson stood trial in 1993 on charges of “aggravated mayhem, felony assault, robbery, and attempted murder” for the beating of Reginald Denny during the L.A. riots. Anthony V. Alfieri, Defending Racial Violence, 95 Colum. L. Rev. 1301 (1995). Watson was one of four men convicted for beating Reginald Denny. Riots erupt in Los Angeles (1992), https://www.history.com/this-day-in-history/riots-erupt-in-los-angeles.

The defense of Watson presented the defense of diminished capacity under a “group contagion” theory of mob violence. Anthony V. Alfieri, Defending Racial Violence, 95 Colum. L. Rev. 1301 (1995). The group contagion theory “applies to a ‘crowd situation’ of ‘impulsive thoughtless action’ marked by an emotional ‘outpour’ of frustration, anger, and violence in a given community. Id. Watson’s lead attorney described the riots as “total and complete anarchy, an abrupt explosion of anger, utter chaos, conflict, disorder, confusion and explosion of tempers, mass hysteria, people scrambling, a spontaneous form of activity, sudden violence, screaming, turmoil, cursing, yelling … any human being who suddenly found himself feeling violated, humiliated, confused, in despair and totally hopeless in the same chaotic situation and circumstance may have found himself caught up in the civil unrest of April 29th, 1992.” Id. at 1301-1302. The group contagion theory was used by the defense not to exculpate or excuse Watson’s acts, but to explain the acts in regards to the racial context and to mitigate claims of retributive punishment. Id.at 1302-1303.

The theory does not explain the utter violence that took place in the Los Angeles riots. Outrage must have filled many citizens, if not all, that the police officers were acquitted after brutally beating an African American. However, the group contagion theory as a defense in this situation was warranted. The African American community, as a whole, must have felt violated and beaten by those officers themselves after watching the video and after hearing that the officer got away with it. The justice system has not been kind to the African American community in years past, still isn’t today, so the acquittal was simply the straw that broke the camel’s back.

 

Contemporary Issues in Sports

by Jacob Oldaker

In sports today there are a variety of issues that sports officials, universities, and NCAA associates must understand and deal with on a day to day basis. One of the most controversial issue in contemporary sports is whether college athletes should be allowed to receive compensation for their performance on the court. NCAA players are currently prohibited to receive salaries while participating in college athletics, but some feel that since these athletes are the ones bringing in all the money to campuses then they should be thusly rewarded. On the other side of the argument comes the facts of how paying “STUDENT-athletes” to play would take away from the true meaning of going to college, getting an education. Also, many students would be quick to choose power house schools like Duke, Ohio State, Alabama who could pay the highest salaries instead of picking the school that would offer them the best education for their field’s major. Both sides of the issue provide pros and cons for college sports and college athletes. One side, defends the student side of student athlete and how NCAA players receiving money for their performance would take away from the college-athlete experience. The counter would argue that the athletes are the ones working the hardest in college and also the ones that provide the most income at universities; and therefore, they should be rewarded for the amount of work they put into the classroom and what they do to represent and provide for their school. In defending, the student athlete receives president over rewarding college level student-athletes with financial benefactors.

Each year athletic programs at the NCAA and college level generate billions in profits, but student athletes who are the key component to these profits never see a penny. Thomas Lott, Prominent NBA Players weigh in on whether NCAA players should be paid, http://www.sportingnews.com/ncaa-basketball/news/ncaa-basketball-pay-for-play-lonzo-ball-players-should-be-compensated-ucla/17ix218hq3702179reldg8zil4, (Last visited Mar. 21, 2018). Many people involved would argue at least part of the monies generated should be granted as compensation to student athletes. Unfortunately, handing a check to collegiate athletes each month is not a simple process or necessarily positive for college athletics. The first problem with paying college players is the recruiting market because it would be killed. If an 18-year-old heading to college had the option of playing close to home or playing at a big university and making thousands of dollars; then they would easily choose the large university who is able to compensate their athletes beyond scholarship funding. Id. When college athletes choose their college, the decision should never be based solely on how much money they will be able to generate for themselves through scholarships, and paychecks if college athletes were to eventually receive salaries. College is in fact a privilege that is earned, not simply bestowed upon someone for being an exceptional athlete. Paul Daugherty stated, “Scholarship was expected. It was, after all, what I was there for.” Id. Despite not being a college athlete, he was fulfilling the true role of a student which takes precedence in student-athlete. The next issue concerning paying student athletes involves the amount of privileges they are granted, and the amount of networking they are able to do by simply being a part of a large division one sports program. As an athlete at a large, successful university in the sports field, one is able to audition for prospective employees each day they set foot on the court or field. Id. Many times this audition does not consist of four years because athletes are able to pass the audition blessed upon them and move on to professional leagues to make large sums of money. Along with the idea of auditioning, athletes who make it to the top never have to compile a resume because their game is their resume. Id. Even while traveling in chartered jets or visiting first-class hotels or tropical islands, athletes are burnishing their resume instead of having to sit through hours of class and go above and beyond to have a superior resume like the typical college student. Lastly, athletes are blessed with private tutors, private study lounges, and many times are able to be placed in privileged classes for their benefit. Id. I am not saying the life of a college athlete is not difficult, but colleges have implemented a variety of benefits for their well being, to help them to continue being good students. So, money does not need to be added in compensation for college athletes because they are not professional athletes; they should instead be professional students. The next and probably most significant issue with paying college athletes is money. Duncan Currie explained, “…Paying them would be a logistical nightmare; indeed, it would prove impossible to devise a truly ‘fair’ revenue-distribution scheme. There are better ways to make college sports more equitable.” Madisen Martinez, Should College Athletes Be Paid? Both Sides of the Debate, https://www.collegexpress.com/articles-and-advice/athletics/blog/should-college-student-athletes-be-paid-both-sides-debate/, (Last visited Mar. 21, 2018). Not only is developing a breakdown of how much to pay athlete nearly impossible, but the biggest question still remains. Where would the money come from to pay salaries for college athletes? A breakdown of major athletic organizations showed, ” Between 2004-2009, fewer than 7 percent of all Division I sports programs generated positive net revenue, according to NCAA data. Id. Fewer than 12 percent of all FBS schools–14 out of 120–did so in fiscal year 2009. Id. For that matter, the NCAA reports that only 50 percent to 60 percent of FBS football and basketball programs make money. Id. With these numbers, it would be impossible for universities, in the negative after the sports year, to generate yet another fund to pay athletes. The numbers also point back towards recruiting, would it be fair for only half of the FBS schools to be paying their athletes wages? These schools would easily swoop up the best talent and take away from the competitiveness and fairness of the college game. Another issue with only some schools offering salary to their players is the effects it would bring into playing concerning the laws of title IX. Woman’s sports would be underrepresented along with the other male sports that are not division I basketball or football. Id. So, paying athletes in that sense would not be plausible because it violates NCAA rules. As a college athlete it is hard to disagree with an opportunity that in the long run could be truly beneficial, but as a college student-athlete, student is the priority. People come to college to obtain an education and better their chances of finding a successful job in the future; not immediately start their job in college by being paid to play in an extracurricular sport.

As a counter, some feel that college athletes are deserving of money for their play. Every year college athletics generates billions of dollars, and therefore the kids leaving it all on the court and in the classroom should be able to see at least part of the large sums they generate. Michael Wilbon, College Athletes Deserve to be Paid, http://www.espn.com/college-sports/story/_/id/6778847/college-athletes-deserve-paid, (Last visited Mar. 21, 2018). Michael Wilbon feels, “…football and men’s basketball players get paid; lacrosse, field hockey, baseball players get nothing. You know what that’s called? Capitalism.” Id. The real world is not fair, for example, Nick Saban will make roughly $6 million this year which will by far exceed the most distinguished professor’s life time earnings at the university. Id. The idea of paying these athletes is solely focused around players on revenue-producing teams. Id. The players are the people who make the lucrative television and internet right fees wholly possible says Wilbon. Id. Another issue about college athletes is their inability to acquire gifts or benefits from the outside world. Wilbon states, “If somebody is willing to give A.J. Green $750 or $1000 for his Georgia Bulldogs jersey, fine, good. If one of his teammates, a tackle, can only fetch $50 for his jersey, then it’ll be a good marketing lesson for the both of them. It is called supply and demand.” Id. All of these lessons apply to the real world, supply and demand and capitalism are issues dealt with every day and there is no reason college athletes should not be able to partake and work with in these concepts. In fact, college athletes are adults and should be allowed to make their own decisions. Allen Sack (former Notre Dame football player) agrees wholeheartedly with Wilbon in saying, “no good reason exists for preventing athletes from engaging in the same entrepreneurial activities as their celebrity coaches. Big time college athletes should be able to endorse products, get paid for speaking engagements and be compensated for the use of their likenesses on licensed products. They should be allowed to negotiate an actual contract with the N.B.A. as part of a final project in a finance class, and have an agent.” Id. In retrospective, college athletics is a money-making field and without the athletes there would be no income of money. If a music student goes out one summer and strikes a lucrative deal worth $50,000, who objects? The music student is still a college student despite the deal, which would be the same case scenario for student athletes. According to Wilbon, college athletes, in the two revenue producing sports, have always exceeded the sum of tuition, room, board, and books. Id. One prime example came from the Big 10 which has,” …a television network that has become the model for every conference in America, a network worth at least tens of millions of dollars…yet no player can benefit from that work. The players have become employees of the universities and conferences as much as student-employees with no compensation, which not only violates common decency but perhaps even the law.” Id. Like an employee receives a weekly paycheck for the services he provides for a company, athletes should also be justly compensated. College athletes should not be forced to work both in the classroom for the betterment of their future, but also for millions upon millions of dollars that is distributed throughout the NCAA and universities and not see a penny. Working for free is something no person wants to do or even supports happening to others. Since college sports have become such a monetary power, the NCAA would do justice in reevaluating their jurisdiction on what players can receive in compensation for their performances. College athletics are simply going to continue growing, and college athletes should be included in the steps forward involving money, not left behind to reap non-existent benefits.

The NCAA would not have to pay athletes as a solution to the controversial issue over whether college athletes should be paid but solutions have been proposed including salaries for students. Michael Wilbon proposed the first possible solution which involved the $10.8 billion deal between the NCAA and CBS sports for March Madness from 2011-2024. Id. This deal breaks down to roughly $257 million for just three weekends of basketball a year. Id. Also, ESPN just entered into a deal that pays the BCS $500 million. Id. Wilbon suggests making those deals worth $10 billion which still leaves sufficient funds for coverage and broadcasting. Id. After all expenses have been paid, the NCAA would be left with $1.3 billion to invest, shelter, and make available as a stipend for college athletes. Id. No person would willingly argue paying the players who are the ones making the college events possible each year. The next possible solution involves the scholarship funding offered to college athletes. According to PBS,” The average scholarship falls about $3000 short of covering an athlete’s essential college expenses.” Id. With this in mind, the NCAA could easily boost scholarships to cover the essential college expenses for athletes. This solution would be an easy way to help players struggling to pay their living costs because they lack the essential time to take a part time job. This proposed idea avoids the hassle and confrontations that paying players would cause, but at the same times covers the main issue college students, especially college athletes, have which is lack of money for the bare essentials. Lastly, the most unique and in my opinion most effective solution was brought forward by former PSU basketball player Stephen Danley. He suggested that schools take a portion of the profits generated from their revenue sports and add a fifth-year option to athletic scholarships. Id. Danly explained, “many student athletes competing at the highest levels just do not have the time to handle a normal academic load.” Id. He even mentioned certain programs disallowing players to take enough classes to graduate in four years. Id. Also, many players were let down and high school and were simply aided in to the university for their athletic ability. So, in turn, if many of the richest college-sports programs are going to continually treat student athletes as full-time athletes, then they should give them the financial means to return and easily complete their education. In the end, college is a place for receiving a degree, not scoring 1000 points or rushing for 1000 yards. This solution is the best because it focuses solely on the education of the student aspect of student athlete, but it also helps eliminate fiscal issues athletes deal with once their playing career ends. By being able to achieve a degree of higher education, they will be able to flourish in the outside world and obtain a job that will support their life needs for the remainder of their life.

Examining Systematic Racism through Music

by Thomas Lovecchio

Systematic racism includes a wide array of racialized concepts that have led to oppressions of Americans of color to lend its self into all major societal institutions. In Systematic Racism: A Theory of Oppression Joe R. Feagin examines different societal structures and institutions and how they perpetuate racism in different ways today. Rapper Wise Intelligent’s song “Globe Holders” allows the listener to gain a better understanding of the systematic racism in societal institutions such as the criminal justice system and the government and how these institutions still perpetuate racism today.

Wise Intelligent explains different discriminatory practices within the criminal justice system regarding drug use in his outro. He argues that the war on drugs is a war on “poor urban African-American men and women”[1] he follows this up by noting that African-Americans have an arrest rate that is five times higher than whites. Along with this Wise Intelligent notes that “90% of crack arrests are African Americans” and “75% of powder cocaine arrests are whites[,]”[2] but it takes 5 grams of crack and 500 grams of powder cocaine to get a 5 year prison sentence.[3] This is an example of systematic racism of “white racist dimensions” of “ideas, attitudes…and institutions[.]”[4] The arresting practices and the way the drug laws/war on drugs was created and implemented perpetuate a system of racism because race does drugs, but in this instance different policies and practices disproportionately affect two different races. When two similar drugs have a high majority of white and African-American users and it takes 100 times the amount of the white drug (powered cocaine) to have the same sentence as a majority African-American drug (crack),

Wise Intelligent cites condemns the CIA, ATF, and FBI calling them, “the juggernauts, the alphabet cops [.]”[5] The War on Drugs was instituted by the Nixon administration and carried out by different justice and governmental agencies, which at the time both were presumably made up of a white majority. Feagin explains that, “rarely are whites seen as currently the central propaganda actors and agents in a persisting system of racial discrimination and other racial oppression[,]”[6] but this doesn’t make logical sense, especially due to the political climate in the status quo. Wise Intelligent mentions “the globe holders, the population controllers, the AIDS makers, dark nation depopulators [,]”[7] which presumably he is referring to whites. Wise also indicts three white presidents. This further contradicts the theory Feagin advances about whites not being seen as actors and agents of systematic racism.

The population control that Wise Intelligent cites is due to systematic racism in the criminal justice system. He states that African-Americans are 50% of the prison population and that “1 out of every 17 African-American adult males was incarcerated[.]”[8] In order to see such a high disparity in numbers, something must have been put in place to allow this disproportionate outcome. Recently, systematic racism has been gaining more attention, which is why criminal justice reform is happening throughout the nation.

 

 

[1] Wise Intelligent, The Globe Holderz Lyrics, Rap Genius, https://genius.com/Wise-intelligent-the-globe-holderz-lyrics.

[2] Id.

[3] Id.

[4] Joe R. Feagin, Systematic Racism A Theory of Oppression 3 (2006).

[5] Id.

[6] Feagin at 5.

[7] Wise Intelligent.

[8] Id.

Legal Services Corp. and Equality Before the Law

By Kristina Forrey

“Justice for only those who can afford it is neither justice for all nor justice at all.”

― Texas Chief Justice Nathan Hecht

 

Justice Earl Johnson, Jr. called legal services “a precept of the social contract.” (Earl Johnson, Jr., Equality before the law and the social contract: When will the United States finally guarantee its people the equality before the law the social contract demands?, 37 Fordham Urb. L.J. 157, 159 (Feb. 2010). Most European countries have provided legal services to low income citizens since the late 1800s, whereas in the United States funding such services is still met with a question mark. (Id. at 160-61.) The Swiss Supreme Court, for example, determined in 1937 that “poor people could not be equal before the law” without having lawyers, and therefore the Swiss government was obligated to provide free civil litigation services for the poor. (Id. at 162-63). In other European countries, right to counsel has not been a question because that right is built into the constitutions or mandated by statutory law. (Id. at 164).

In the United States, the Legal Services Corp. (LSC) is a 501(c)(3) non-profit corporation established by Congress in 1974 to provide legal assistance to low income populations who otherwise would be unable to afford a civil attorney. (Legal Services Corporation, https://www.lsc.gov/). The LSC funds programs in all 50 states that provide attorneys to represent the poor in civil litigations and is constantly seeking donations to supplement the amount allocated to them in the federal budget. (Id.) However, in May 2017, President Donald Trump’s budget proposal eliminated the entire $375 million in LSC funding from the prior fiscal year. (Matt Ford, What will happen to Americans who can’t afford an attorney?, The Atlantic (Mar 19, 2017) https://www.theatlantic.com/politics/archive/2017/03/legal-services-corporation/520083/).

The negative response was immediate. News agencies, the American Bar Association (ABA), civil rights group, and legal services groups denounced the proposed budget. The ABA cited a multitude of studies that demonstrate how the benefits of LSC services far outweigh the monetary cost and extolled the importance of these services to vulnerable populations including veterans, the elderly, domestic violence victims, and disaster survivors. (http://www.abajournal.com/news/article/trump_budget_eliminates_funding_for_legal_services_corp) The issue of cutting the LSC budget rears up periodically. Ronald Regan failed to abolish the program in 1981 (Matt Ford), and the program was reauthorized by the 104th Congress with restrictions in 1995 (https://www.congress.gov/congressional-report/104th-congress/senate-report/392/1).

This fight is not a new one. In 1995 the Heritage Foundation, a far-right conservative group, wrote an attack article while the LSC was facing congressional review. (Peter Flaherty and Kenneth Boehm, Why the Legal Services Corporation Must be Abolished, The Heritage Foundation (Oct. 19, 1995) https://www.heritage.org/node/20680/print-display) The authors accuse the LSC of not providing legal services, of squandering federal funding with lobbying, and of promoting “homosexual, feminist, or environmental movements” rather than conservative values such as gun rights. (Id.) Less than a year later, the 104th Congress acknowledged the importance of LSC’s work to the country and renewed its charter through the Legal Services Reform Act of 1996. (https://www.congress.gov/congressional-report/104th-congress/senate-report/392/1) Congress noted that “in 1994, [LSC] assisted with 50,000 child support cases; 375,000 housing matters; 52,000 spousal abuse cases; and 251,000 divorce cases.” (Id.) Further, LSC spent its resources helping veterans, victims of natural disasters, and low income people at risk for bankruptcy. (Id.) The program is necessary, Congress observed, because there is only one LSC lawyer per 6,000 to 7,000 indigent clients whereas there is one lawyer per about 300 people of the rest of the population. (Id.) Today, conservatives continue to seek the end of this important program.

The argument for cutting the program stems from what Professor Weissman calls “suspicion and scorn” for the poor. (Deborah Weissman, Law as Largess: Shifting Paradigms of Law for the Poor, 44 Wm. & Mary L. Rev. 737 (Dec. 2002)). She proposes that there are two conflicting views regarding legal services. (Id. at 740). The “Rule of Law” view centers on themes of equality and justice, where no one should be left on the courthouse steps with justice just out of reach. (Id.). The second view of “Self-sufficiency” exalts independence and acting on one’s own interests as virtues. (Id.). We’ve heard this argument before. Poverty is the fault of the impoverished—they simply don’t work hard enough and merely need to “pull themselves up by their bootstraps.” This age-old fallacy blames the poor and assumes that they somehow deserve their circumstances. This could not be further from the truth.

“If you don’t have a job, where do you go from there? You hear people say ‘Pull yourself up by your bootstraps’, and you don’t even have shoes. You’re barefooted. What are you going to pull yourself up by? Our country owes every citizen of the United States of America a means of livelihood. Not a handout, but a way to make it.”

― Studs Terkel

 

When examining the psychological impact of poverty, psychologists have found that poverty tends to precipitate more poverty, not just for the individual but for their children and beyond. (Johannes Haushofer and Ernst Fehr, On the psychology of poverty, 334 Science 862 (2014), http://www.princeton.edu/~joha/publications/Haushofer_Fehr_Science_2014.pdf). Those who live in poverty are more likely to hold onto guaranteed income from a low-paying job than risk quitting for a better opportunity. (Id.) They have less ability to qualify for stable lending from a bank or credit union and are pushed by their circumstances and desperation to resort to payday lenders, merchants employing exploitative interest rates, or reliance on friends and family when things go awry. (Id. 863). Those subject to the stresses of poverty experience greater physical health consequences, increased likelihood of hospitalization for mental health, and increased drug and alcohol abuse. (Id. at 864). This causes a “feedback loop” of reoccurring circumstances that render it virtually impossible for a person in poverty to get free on their own.

The purpose of legal services is to provide that helping hand, to give the poor and indigent access to justice what would be otherwise unaffordable and unattainable. When I worked as a student intern at legal services, I walked in not really understanding what I was getting involved in. Over the course of that summer I saw first-hand how essential this program is for people to defend themselves. Without legal services, low income people would not have equal access to the law. Legal services is not just dollars-and-cents on a page. It represents the one and only lifeline for real people in real situations that stand to lose everything. It is unfortunate that a politician in Washington who has never struggled for a meal or a place to sleep can so blithely declare that this service is costing too much and not worth the money spent. What are we if we do not allow everyone equal access to the legal system? Legal services can defend the poor from the corrupt landlord, the unscrupulous mortgage company, and the abusive domestic partner. Eliminating legal services would allow those with money and no moral s to step upon the poor. The poor cannot get out of these circumstances without help from legal services because there are no “bootstraps” to pull up. There never were.

Black Panther Beyond The Movie Screen

by Terry Davis

“If you are reading this and you are white, seeing people in mass media probably isn’t something you think about often.”[1] Instead it is the norm to see white individuals that you can relate to in all facets of life. Even our President, has returned to “normal” that white America has come to expect (certainly not for the better). I wake up every day not even pondering if I have a home. I don’t mean the dwelling I reside in, but more the America that I live in. I never come across comments on the Internet implying that I should leave America to return to Ireland. As someone with Irish heritage, I can probably trace my family’s arrival to the United States to the early twentieth century. Most blacks in the United States ancestry arrived here long before that through the slave trade prominent in the 18th century before being outlawed in 1808.

To be black in America is to be with and without a home.[2] We hear the constant rhetoric of American pride and gratefulness to be living in America. How one should be thrilled knowing they can carry out the American dream. Blacks are told they should honor this opportunity that promotes injustice towards them every day.[3] On the opposite end, if you have the audacity to complain about anything white society can’t relate to then you can leave this country to return back to Africa. History is just that history. Slavery ended over 150 years ago. Jim Crow’s separate but equal was voided 60 years ago, and civil rights were granted not long after. However, those “without a home” can still feel the systemic racism and isolationism that existed then. The country is still littered with the segregationist and racist of half a century ago. While not as outspoken in their demeanor, undeniably just as enthusiastic in their purpose.

Wakanda, the fictional African nation created by Stan Lee with his Black Panther superhero is a representation of that ideal homeland for blacks in America.[4] It explores a thriving and technologically advanced society centered on those who are black. We aren’t dealing with black pain, suffering, and poverty, but instead black experience with a lot of agency.[5] T’Challa, the Black Panther, represents a superhero unlike anything we had. Of course we had moves like Blade and Shaft, but those characters felt the color of the skin was incidental to who they were. Here, T’Challa isn’t being played for laughs or as a sidekick.[6] Instead, it is a strong character celebrating the existence and confidence in being black.

I have four nieces and one nephew who have a white mother and a black father for parents. My nephew being nine years old loves video games and superheroes as much as any other child at his age. I watched Halloween after Halloween where he dressed as Woody from Toy Story, Iron Man, Batman, and even pulled off a great looking Joker. We went and saw the Black Panther a few weeks ago and he loved it. As we walked out, he said, “I’m going to be T’Challa next Halloween!” “Yep that’s me!” I didn’t think much of it at the time, but instead smiled thinking that was great. Reflecting on it I realized he was right this is him. When coloring in his superhero coloring book, he may now reach for the black and brown crayons.[7] No longer does he have to be Bruce Wayne or Peter Parker, but can be T’Challa even once the mask is removed.

Black Panther is long overdue not only in superhero movies that have seen mountains of Batman, Superman, and Spiderman films in the past two decades, but also in the narrative of what being black is about. It provides a continuation of a timeline for acceptance that has been far too slow to take place. Just as Roots in the late 70’s captured the attention of many and illustrated the struggles of blacks during slavery and Jim Crow, Black Panther may give teens and adults hope that being black is beautiful. I’m a white male who doesn’t know oppression or what it feels like being discriminated against because of my skin color. I can go through every facet of my life to find indivuals to whom I can relate to including my professors at law school. Many blacks cannot do the same, when sometimes that’s the only thing they really need to experience success. I can only hope that the Black Panther and Wakanda provides blacks with a common place where they feel at home, until society alters their archaic ways and realizes they belonged here as equals all along.

[1] Jamil Smith, The Revolutionary Power of Black Panther, Time, http://time.com/black-panther/ (last visited Mar. 19, 2018).

[2] Carvell Wallace, Why ‘Black Panther’ Is a Defining Moment for Black America, N. Y. Times Magazine, (Feb. 12, 2018), https://www.nytimes.com/2018/02/12/magazine/why-black-panther-is-a-defining-moment-for-black-america.html.

[3] Id.

[4] Smith, The Revolutionary Power of Black Panther.

[5] Id.

[6] Tre Johnson, Black Superheroes Matter: Why a ‘Black Panther’ Movie is Revolutionary, Rolling Stone, (Feb. 16, 2018), https://www.rollingstone.com/movies/news/black-superheroes-matter-why-black-panther-is-revolutionary-w509105.

[7] Id.

Right (Necessity) to Counsel

by Liana Stinson

Imagine: you are seventeen years old. Instead of being in math class or at football practice, you are out joyriding with your friends. You then get convicted of joyriding and are only sentenced to two years’ probation, thanks to your court-appointed counsel. However, four months later, it is alleged that you were involved in a burglary. Consequently, you then must attend a hearing for the possible revocation of your probation. At the hearing, you were not represented by counsel, you were not asked whether you wished to have counsel appointed for you, and you were not asked about your previously appointed counsel that represented you at the joyriding trial. You were asked at the hearing if you were involved in the burglary and you answered yes, without the advice of counsel. A probation officer testified at the hearing but was not cross-examined, because of your lack of counsel. You were not asked if you had anything to say or any evidence to supply, because of your lack of counsel. Then at seventeen years old, instead of two years’ probation, you were sentenced to 10 years in the penitentiary.

This is the story of Jerry Douglas Mempa. He served six years in the penitentiary from 1959 until 1965 when he filed a writ of habeas corpus to the Washington Supreme Court, claiming that he was denied his right to counsel at the hearing where his probation was revoked. Mempa v. Rhay, 389 U.S. 128, 131 (1967). This writ was denied. Id. However, the Supreme Court granted certiorari in 1967. Id. at 132.

Thurgood Marshall delivered the majority opinion of the Court. It was ultimately held that criminal defendants must be afforded a lawyer at all stages of the trial, “whether it be labeled a revocation of probation or a deferred sentencing.” Id. at 137. There were various policy considerations driving this decision.

First, Marshall recognized that there may be a number of legal rights lost if counsel is not present at the proceeding. In the state of Washington, “an appeal in a case involving a plea of guilty followed by probation can only be taken after sentence is imposed following revocation of probation.” Id. at 135. Therefore, if counsel is not present at the imposition of the deferred sentence, a criminal defendant may lose the right to appeal. Id. at 136. Granted, there are less appeals when there is a guilty plea involved. However, Marshall recognized that “the incidence of improperly obtained guilty pleas is not so slight as to be capable of being characterized as de minimis.” Id.

Second, an uncounseled criminal defendant may be unaware of the fact that, in the state of Washington, a guilty plea can be withdrawn at any time prior to the imposition of a sentence. Id. If Mr. Mempa’s guilty plea was improperly obtained at the hearing and then he is sentenced without the aid of counsel, there is no way to revoke that guilty plea. This would be essentially allowing improper methods of getting criminal defendants to confess to crimes they may or may not have committed and then sentencing them to take away their right to revoke that improper guilty plea. That is the opposite of justice.

In cases like these, the Court recognized that “counsel might not have changed the sentence, but he could have taken steps to see that the conviction and sentence were not predicted on misinformation or misreading of court records, a requirement of fair play in which absence of counsel withheld from this prisoner.” Townsend v. Burke, 334 U.S. 736, 741 (1948). In the case of Mr. Mempa, having counsel present would have allowed evidence to be produced, cross examination of the probation officer, statements from Mr. Mempa to be placed on the record, etc. Prior Court cases have consistently stood for the proposition that counsel needs to be appointed at every stage of a criminal proceeding where “substantial rights of a criminal accused may be affected.” Mempa 389 U.S. at 134. Here, Mr. Mempa’s freedom was affected. At seventeen years old, he was sentenced to ten years in the penitentiary absent any advice from counsel. Thurgood Marshall took an enlightened step forward in this opinion by requiring counsel to supply criminal defendants with due process of the law.

The Last Opinion

by Jacob Oldaker

Justice Marshall had a powerful career as a writer from the bench which focused on protecting the civil and criminal rights of others. His writings in criminal law were centered around protecting defendant’s rights against the injustices of the judicial and criminal system. Bruce A. Green & Daniel Richman, Of Laws & Men: An Essay on Justice Marshall’s View of Criminal Procedure, 26 Ariz. St. L.J. 369 (1994). His beliefs and focus were built around his personal understanding of the criminal justice system that was acquired as a criminal defense lawyer. 25 U. Ark. Little Rock L. Rev. 443 (2003). These experiences with the criminal justice system shaped Justice Marshall’s final Supreme Court opinion: a powerful dissent in Payne v. Tennessee. Payne v. Tennessee, 501 U.S. 808 (1991).

Payne was a 6-3 Supreme Court decision in which the majority held “victim impact evidence” to be constitutionally permissible during the penalty phase of the trial. Id. at 827. Justice Marshall was well known as a lifelong opponent of the death penalty because he believed that capital punishment was unconstitutional and never once voted in favor of the death penalty in a case that came before him while on the bench. 27 Miss. C. L. Rev. 335, 336 (2008). This firm opposition to capital punishment had been developed throughout his many years of practice with the NAACP and the Legal Defense Fund. Id. Marshall frequently represented lower income, minority clientele who were commonly falsely charged and were tried before all white juries, in towns filled with segregation. 26 Ariz. St. L.J. 369 (1994). From these trials, Marshall gained an understanding of how human failings can adversely affect the implementation of Constitutional safeguards, and how a common bias can affect the entire criminal justice system and directly resulted in the foundation of his opinions and can be evidently seen in his dissent in Payne. Id.

For Justice Marshall, his concern came with the Court’s decision to overturn certain precedent. Payne overturned decisions from two previous cases, Booth v. Maryland and South Carolina that held victim impact evidence was prohibited. Payne, 501 U.S. at 817. Marshall found issue with change in precedent without “special justification” that had previously been required by the court. Id. He found that the majority’s rationale for overturning two cases of sound precedent had no ground of “special justification” because there were no changes in facts or laws supporting these opinions that had been decided only two and four years previously. Id. He found that the only change was a change in the personnel of the Court and their personal political beliefs instead of a reasoned justification for a policy change. Id. Justice Marshall defended his position with the law and the Court’s overlooking of the principle of stare decisis. Id. I personally find his justification to be sound and a correct observation; I do not believe policy changes should be promulgated by the Court without following the appropriate steps that are in place. Marshall sums it up in his dissent with “Cast aside today are those condemned to face society’s ultimate penalty. Tomorrow’s victims may be minorities, women, or the indigent” which shares a warning the not only the Court but the United States of the dangers of a politicized court. Id. at 856.

Marshall’s words are powerful and well founded in legal foundation. Capital punishment is not a topic of light conversation. It is powerful, it is serious, and it is one of the most powerful powers of the court because the Court has the power to take a life, the thing the hold to the highest standard when evaluating cases. As a personal advocate of the death penalty, I believe that Marshall may have been too divulged into his own beliefs to see the steps forward that the Court was attempting to make. In Payne, a woman and her child were murdered, while the second child survived the brutal beating. Id. at 851. The surviving child and the grandmother now taking care of that child will forever suffer the pain of this man’s decision to murder them. Id. No man or woman that murders multiple human beings in cold blood should be afforded a free pass to the highest level of criminal punishment due to political beliefs. While Marshall never found a just reason to vote in favor of the penalty, I believe that the Court as a whole could have worked together to develop more rigorous standards for proper implementation of this severe punishment. Many prisoners sit on life sentences or multiple life sentences and will forever be a liability to the law-abiding citizens of the United States. Many courts and states continue to be advocates against the death penalty. I understand the severity of these decisions and the implementation of such a strong penalty but I do believe that it holds value that will benefit society as a whole. Members of the legal community that hold similar beliefs to me, as well as members who follow in the steps of Justice Marshall, need to come together and work together to continue to strengthen our criminal justice system for future generations.

Materially Test under Section 14(a) of the Securities Exchange Act from TSC Industries

By Thomas Lovecchio

In TSC Industries, Justice Marshall developed a new test for materially under Section 14(a) of the Securities Exchange Act. The case arose out of TSC Industries acquiring National Industries. Tsc Indus. v. Northway, 426 U.S. 438, 440 (1976). Prior to the initiation of the case, “National acquired 34% of TSC’s voting” stock and had placed five of its nominees on TSC’s board. Id. TSC’s board, notwithstanding the National members, voted to sell to National. Id. at 441. In TSC and National’s statement to its shareholders it recommended the acquisition. Id. A TSC shareholder sued TSC and National claiming the joint statement was “incomplete and materially misleading in violation of § 14(a) of the Securities Exchange Act. . ..” Id. The Court took the case because the various Courts of Appeals had different standards regarding materially. Id. at 443.

The Court rejected the test the lower court used which was “all facts which a reasonable share holder might consider important” as the test for material facts, Id. at 445, and announced a new rule based of the Act’s purpose to have companies provide information to shareholders so that they are able to make informed decisions. Id. at 448. The Court found that using the word “might” would lead to a variety of dangers, such as a company overloading shareholders with information. Id. at 448-49. Therefore, a better standard for materially and the one the Court used in the case at bar was “an omitted fact is material if there is a substantial likelihood that a reasonable shareholder would consider it important in deciding how to vote.” Id. at 449. This standard requires that a reasonable shareholder would have placed some importance in their respective decision-making process. Id.

The Court had to develop a type of test that was not too strict but also was not too easy. Id. Doing so required a weighing of numerous factors and dangers that shaped the overall rule. For example, the information dump. Companies could dump information into the shareholder report to either protect themselves from liability or to just provide information so that it would take longer for shareholders to sort through already lengthy financial statements. Id. at 448-49 Justice Marshall did an excellent job writing for the Court and articulating these dangers. Acquisitions generally take a lot of time and a lot of analysis goes into the decision to acquire another company. If a company provided all of the information that pertained to the topic of the respective statement to its shareholders, those shareholders would potentially be overwhelmed with all of the information. If the information is important in deciding how that shareholder would vote, then it is imperative that a company provide the shareholders with that information. The rule set forth in TSC Industries was based of the Act’s purpose to have companies provide information to shareholders so that they are able to make informed decisions based off of the information that company provides them. Id. at 448.

Another part of the test is the “substantial likelihood” which provides a proper balancing mechanism for companies to decide what information to disclose. Under this rule companies would still have to include the obviously important information and could exclude the irrelevant information. Now, companies know how to evaluate all of the information that falls in-between obviously important and irrelevant. By using substantial likelihood, the Court paved a way so that companies do not feel compelled to do an information dump when providing information to shareholders.

Justice Marshall’s opinion in TSC Industries set forth the test for material fact under the Securities Exchange Act that is still used today. This provides a bright-line test for companies to use when deciding what information to include and exclude in its report. This test properly balances the interests of shareholders and companies to allow for better securities regulations.

Segregation to Integration

By Liana Stinson

For Thurgood Marshall, experiencing discrimination started from birth. Twelve years prior to his birth, the Supreme Court held that in places of public accommodations, black citizens could be legally segregated from white citizens as long as the separate facilities were “equal.” Marshall was born in the year 1908. In that same year, the Supreme Court of the United States allowed Kentucky to prohibit the integration of black and white students in a private college. There were eighty-nine lynchings recorded.

Baltimore was a “Jim Crow” town in that time. African Americans attended “colored schools” where its superintendent (Caucasian) very openly stated that “Negroes don’t deserve swimming pools.” Downtown, there were not department stores open to African Americans nor even restrooms. Segregation was very much alive when Marshall was growing up and was the “practice of the land.”

In high school, Marshall was a trouble maker. When a student was bad at Douglas High School, they were sent to the basement until they were able to memorize a paragraph of the Constitution. Marshall graduated high school able to recite the whole Constitution forwards and backwards. After high school, he attended Lincoln University in Pennsylvania, a college for black males with an all-white faculty. Two thirds of the student body, included Marshall voted to keep it segregated. To get along in a segregated society, his mother taught him to just go along with it. However, a debate altered Marshall ‘s view that an all-white faculty evidenced his inferiority so he voted for integration the next time around.

Then came law school. Marshall applied to the University of Maryland Law School where he was denied admission, simply because he was black. Marshall ended up attending Howard University Law School and went on to graduate at the top of his class.

After law school, Marshall opened his own office at home in Baltimore. Ironically, one of his earlier cases was the representation of a man named Donald Murray. Murray was denied admission to the University of Maryland Law School because of his race. The school offered Murray a scholarship to attend an out-of-state school on “separate but equal grounds.” Marshall argued, and later won, that an out of state education is not equal to a legal education at home.

Marshall continued to represent the powerless and poor blacks of Baltimore which left him in dire financial straits. Fortunately, he was then offered a position at the NAACP where he would travel to different courthouses to “knock holes in the walls of segregation.” However this road was not one without peril. During one instance while on the road, Marshall wanted to unwind at the local pub only to be told that they had no more drinks to serve. Marshall then attempted to left town only to be stopped by the police, one of whom was still upset that Marshall had helped get a defendant acquitted, and charged with drunk driving. While the charge was later dismissed by the judge the point remained clear, it was going to be a long road. Another instance occurred when Marshall was in Dallas to contest that blacks should not be excluded form jury duty. The police Chief gave orders to leave Marshall alone because the Chief “personally wanted the pleasure of assaulting Marshall.” Marshall, thankfully, had a State trooper guard him however, this situation ended with Marshall coming face to face with the Chief when Marshall was leaving the courthouse. The police Chief actually went for his gun but luckily, the trooper intervened.

The road Marshall had chosen was not without its benefits as with a number of incidences like these, came numerous Supreme Court victories: illegal to exclude blacks from jury duty; illegal to force black passengers to sit in the back of an interstate bus; illegal to exclude blacks from participating in the Texas primary elections; illegal to enforce restrictive covenants where property owners bind themselves not to sell or lease the property to a person of a certain race or color; etc. Perhaps one of Marshall’s greatest victories, was the desegregation of public education.

Before Marshall within the public education system, the schools for blacks and whites were ruled by “separate but equal.” However, in the unanimous decision Chief Justice Warren wrote: “To separate black children from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” These children simply wanted a chance to learn and grow equal to those chances of their white counterparts. Marshall vigorously fought against the segregated education, which at one point he voted for at Howard, and won.

Subsequently, thanks to Marshall, “white only” signs were taken down in public schools as well as publicly-owned facilities across the United States including places such as courtrooms, golf courses, and liquor stores.

Thurgood Marshall always thought of himself as a “lawyer first and a civil rights ‘leader’ – a term he was skeptical about – second.” Many people know him as one of the great Supreme Court Justices, however, most people seem to forget how many people Marshall helped that were wrongfully accused simply based on the color of their skin before he took the bench. He was an incredible trial lawyer with one of his colleagues noting that he had “never encountered in his years in practice or on the bench an attorney more skilled in cross-examination” than Marshall. The Supreme Court victories leading up to Marshall’s appointment as a Supreme Court Justice were indicative of his career to follow.

Mark Trushnet, Lawyer Thurgood Marshall, 44 Stan. L. Rev. 1277 (1992)

Daniel Pollitt, Thurgood Marshall, 21 N.C. Cent. L.J. 179 (1995)

http://chnm.gmu.edu/courses/122/hill/marshall.htm

Thurgood Marshall

by Jennifer Breneman

As a descendant of slaves, Justice Marshall no doubt did revolutionary work as an attorney and Supreme Court justice striving to ensure equal treatment for all. However, before he took his seat upon the highest bench in the United States, he was just like us (kind of).

Thurgood Marshall was raised not too far from here, in Baltimore, Maryland.[1] His mother was a teacher and his father was a railroad porter.[2] Marshall as a youth is said to have “worn life like a loose garment.”[3] In elementary school, he misbehaved so often that the principal sent him almost daily into “solitary confinement” in the school’s basement.[4] He graduated high school one year early with a B average. Although, the perceived stoic image of a supreme court justice was far from what Marshall portrayed in high school. In fact, as a youth, he got into trouble so often that he was punished by being made to memorize lines of the U.S. Constitution[5] (which just happened to come in handy later in life). By the time he graduated, according to biographers, Marshall knew the document by heart.[6]

He went on to attend Lincoln University.[7] At Lincoln, the future justice apparently exceled at more than just his studies. He wasn’t known for taking himself seriously, and often disobeyed authority. During college, Marshall skipped studying to play pinochle and poker.[8] He was actually thrown out of college two times for fraternity pranks.[9] Marshall’s career path may have been very different and it has been said that he may have pursued a career in dentistry, except for his inability to behave in biology class. He antagonized his biology teacher so much that he flunked the class.[10]

Despite all of this collegiate shenanigans, Marshall graduated from college with cum laude honors,.[11] He went on to Howard Law School where he buckled down in his studies.[12] However, even in law school, it was said that he “was boisterous, paid minimal attention to clothing and cussed a lot,” according to University of Maryland’s Gibson. He was further described as a “chain smoker” who could “hold his liquor.” Despite this, Marshall graduated first in his law school class.[13]

Despite the nonchalant façade, Marshall was deeply interested in seeing equal treatment become a reality. After law school, Marshall actively and aggressively pursued this goal. In fact, it is noted that he

represent[ed] criminal defendants, soldiers, and laborers in jury trials. He coordinated the NAACP’s national legal strategy in countless lawsuits and hounded the FBI to prevent or respond to racial violence. When he learned of a racist product on the shelf, like Whitman’s Pickaninny Peppermints, Marshall fired off a note to its manufacturer; he answered bigoted newspaper stories with letters to the editor. More than once, he almost got himself killed.[14]

And the rest, as they say, is history. Knowing that a youthful troublemaker like Thurgood Marshall could grow into someone who was known as arguably the greatest civil rights and constitutional lawyer of the 20th century provides hope for other law students who may not have it all together quite yet.

[1] https://www.theatlantic.com/magazine/archive/2015/10/thurgood-marshall-badass/403189/

[2] http://www.baltimoresun.com/features/black-history-month/bal-blackhistory-thurgood-story.html

[3] Id.

[4] http://www.researchomatic.com/thurgood-marshall-138319.html

[5] http://www.baltimoresun.com/features/black-history-month/bal-blackhistory-thurgood-story.html

[6] Id.

[7] http://chnm.gmu.edu/courses/122/hill/marshall.htm

[8] http://www.baltimoresun.com/features/black-history-month/bal-blackhistory-thurgood-story.html

[9] Id.

[10] Id.

[11] http://www.baltimoresun.com/features/black-history-month/bal-blackhistory-thurgood-story.html

[12] https://www.theatlantic.com/magazine/archive/2015/10/thurgood-marshall-badass/403189/

[13] Id.

[14] https://www.theatlantic.com/magazine/archive/2015/10/thurgood-marshall-badass/403189/

Book Review: “Evicted”

Matthew Desmond’s book illustrates the issues and complications inherent in discussions of overhauling landlord-tenant law. To the average person, being “EVICTED” sounds bad—it means you didn’t fulfill your obligations to your prior landlord to pay your bills, or you caused damage to that landlord’s property and they put you out. The blame falls on the tenant having some sort of personal failing that caused their circumstances. Desmond illustrates how eviction is not quite that simple. There aren’t just bad tenants, there are bad landlords; and sometimes eviction isn’t the tenant’s fault, but the result of external circumstances beyond their control.

Mr. Desmond makes several points worth noting. First, he points out the disparity in how genders deal with eviction notices: women simply move when they run out of time; whereas men will confront the landlord or will try to make a deal to exchange work for rent. Some landlords take advantage of these tenant’s desperation and inability to pay and wring every bit of work they can out them for far less than fair value. Second, Mr. Desmond discusses how landlords abuse the “rent certificate program” by charging more for the same apartment when the tenant is on an assistance program. Tenants in assistance programs are charged an average of $55 more a month, costing housing programs an overage of $3.6 million a year. Third, Mr. Desmond discusses how police involvement can increase the problems for at-risk tenants. When local governments cite landlords for repeat 911 calls, it effectively encourages landlords to punish at-risk tenants with eviction.

Mr. Desmond’s asserts that building more housing doesn’t serve most tenants. Rather, he proposes expanding the voucher program to benefit all low-income families. He says that such an action would rebalance the interests, allowing landlords to maintain to profits from rent and provide safe and affordable housing for tenants. I disagree that throwing money at the problem will be effective unless two of the big underlying issues are resolved: lack of oversight on pricing of rental units, and local governments citing landlords for tenants use emergency services. I also think that there are certain populations that would benefit from special housing programs. For example, a large scale half-way houses for ex-cons and drug addicts could be a good thing if they are properly managed and treated as a social project that offers positive socializing, social and psychological services, education, and legal services, these people have a better chance of avoiding reoffending, relapsing, and/or finding themselves homeless. Overall Matthew Desmond’s book “EVICTED” is a good overview of the problems inherent in current landlord-tenant law and uses stories of real people to bring the circumstances and problems alive for the reader.

 

Matthew Desmond, Evicted: Poverty and Profit in the American City (2016).

Gender Equality in Sports

By Jacob Oldaker

Introduction:

There are five reoccurring areas relating to gender equity in sports. These topics include: “history of gender equity in sports and Title IX; gender equity in sport governance; gender equity issues in athletics; gender equity, sports participation, and Title IX; and gender equity in coed sports.” Each topic holds significance in the discussion of equity in sports and holds value in the discussion of social, ethical, and legal concerns that have been presented.

Gender equity has been an issue in society throughout history. Women have faced issues of equity in relationships, religion, careers, education, and for the purposes of this discussion, athletic opportunities. As of today, great strives have been made to further the opportunities available to women in sports. Despite the efforts, women still face issues in sports today. One of the most powerful tools today is Title IX that was enacted by the federal government to ensure “equal educational opportunities for males and females, but eventually it was used to create equal opportunities for women in sports.”

Title IX:

Title IX of the Omnibus Education Act was enacted in 1972 by the United States Congress to ensure that institutions were providing equal opportunities for male and female students at higher education institutions that received federal funding. The Title IX Statute states, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance”. Exceptions to Title IX include educational institutions that traditionally admit members of only one sex, institutions that train individuals for military service, and institutions whose compliance with Title IX would violate religious beliefs. Originally, Title IX did not specifically refer to athletic opportunities but subsequent interpretations and court cases have set sports to be upheld by this standard. The department of Health has developed a three-part test in reference to sports: (1) Are participation opportunities substantially proportionate to enrollment? (2) Is there a history and continuing practice of program expansion for the underrepresented sex? (3) Is the institution fully and effectively accommodating the interest and abilities of the underrepresented sex?

Results of Title IX:

Before Title IX, less than 32,000 women participated in intercollegiate athletics and 300,000 girls in high school athletics. As of 2016, there are 200,000 women in college athletics and three million girls participating in interscholastic athletics. Participation in college has risen over six times and ten times in high school. Title IX has been in existence for less than fifty years and is already changing the sports world for women. One of the biggest breakthroughs came in 2012 in the London Olympics where 44.3% of the athletes were women. This number was comprised of all competing nations but is important to show the steps the world is taking in creating equity in sports for women.

Many people are for equality in sports but there are also many counter arguments. For example, a recent study hypothesized that women are inherently less interested in sport than men. Three studies were conducted to determine if these ideas were accurate. The first study, The American Time Use Survey, consisting of 112,000 individuals, U.S. residents 15 years and older, from the years 2003-2010, found that females comprised 28% of those who participated in individual sports and 20% in team sports. The second study, Observations at Public Parks, documented a total of 2,879 sports and exercise participants at public parks at four U.S. locations, where it was found that females make up 19% of the participants in individual sports and 10% in team sports. The third study, Intramurals at Colleges and Universities, involved surveys of intramural sports registrations at colleges and universities in the U.S where it was found that women accounted for only 26% of registrations.

These results show that it may be possible that women are inherently less interested in sports than men but this is based on participation, not interest. So, the question remains of whether Title IX and its approach to equal opportunities to participate in sports based on equal interest is even a feasible argument. The current approach does not look at interest but instead looks at “money” and its allotment of financial aid to male and female athletes in proportion to their athletics participation numbers. However, treating males and females as equals in recruiting and benefits based on interest ratios from the studies mentioned above appears to still present some holes in the argument of Title IX.

A major problem continues to stem from Title IX in equal opportunities in sports when a university offers football. Football rosters hold one-hundred and five players. There is no single female sport that can come close to competing with that number. So, what do schools do? Men’s sports like soccer, tennis, track and field, and golf will be cut in an effort to accommodate the size of football rosters. A data set on Division II universities without football showed that these schools were meeting Title IX goals and expenditures by gender were equal.

Personally, I find this to be one of the biggest issues of Title IX. As a former division II soccer player, our school was in constant battles with Title IX requirements because our school offered football as a male sport. Since its enactment, more than 400 men’s athletic teams have been eliminated by universities attempting to become NCAA compliant. The most common sports to be cut include: wrestling, swimming and track and field. Although this was not the intent of Title IX, it is a very real trend today. As I mentioned, Title IX does not account for football individually and its outlier status in regard to roster space. Title IX needs to be adjusted to not include football in its compliance rules with the laws. Football over burdens Title IX restrictions but they do not have to. There are alternatives that include: taking football out of the equation or counting every third athlete as an equal to a member of the football team. I believe the easiest solution will be to remove football from the discussion of Title IX because women’s programs will continue to grow and lower revenue, men’s sports will not be cut as a matter of compliance.

Summary:

Originally Title IX was enacted in 1972 by the United States Congress to ensure that institutions were providing equal opportunities for male and female students in higher education. Further, while it did not specifically refer to athletic opportunities when it was first developed, subsequent interpretations and court cases set the tone that opportunities in athletics are also to be upheld to this standard. Sport institutions and common beliefs have institutionalized masculinity as the operating principle within sport, which strengthens the male dominance of the sport world today.

Similar to sport leadership, women in athletic participation are affected by the same masculinizing effects attributed to the norm of sports. A common issue women face is gender marking, which represents male athletes and men’s sports as being the norm, and women’s sports as “other”. This type of generalizing is commonly seen in professional sports in the United States today.

Despite some setbacks and hurdles, Title IX has had a major impact on the increased opportunity for women to play sports as can be seen from an increase in women who participate in collegiate athletics from 32,000 women to over 200,000 women since 1972. Further, there was an increase in high school athletics from 300,000 girls to three million. Even though Title IX has caused a significant impact in sports participation, a study found that women are still participating significantly less than men in athletics. There are many factors that could contribute to this current trend. Whether it is that men are generally more interested in sports? Or is it that most universities offer football as a male sport? Studies of the implementation of Title IX need to closely analyze this data set to determine ways to further the athletic opportunities of women.

Conclusion:

Title IX has had a significant impact on society in increasing the opportunities for women to participate in sport; however, something that it has not done is help to remove the gender stereotypes and masculine influence of power that still reigns over sport governance boards and athletic sports. Understandably, women are less likely to participate in sports towards the end of high school due to the increased recognition of gender norms and derogatory comments received from male peers for wanting to participate in sports, or for being successful at masculine sports. Society as a whole need to understand and adjust their beliefs on women in sport. Further research could examine the impact of having a female coach of a male sports team on participation by males, and the impact of having a male coach over a female sports team, and also a female to female sports team as well as a male to male sports team to examine the effects on sports participation of having like and opposite gender coaches.

As we go forward, “it is necessary to reduce the stereotype that women are not equal to men in sports and sports governance because although women are mostly given an equal opportunity, they are still less likely to participate in sports or to be given equal opportunities in sports governance because of gender discrimination and gender stereotypes.”

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Sources:

  1. Joshua A. Senne, Examination of Gender Equity and Female Participation in Sport, The Sport Journal, (Feb 2016) http://www.icsspe.org/system/files/Senne%2C%20J.A.%20-%20Examination%20of%20Gender%20Equity%20and%20Female%20Participation%20in%20Sport_0.pdf
  2. Laura J Burton and Sarah Leberman (eds), Women in Sport Leadership: Research and Practice for Change (2017).
  3. 20 U.S.C. §§ 1681-1688

American Nightmare

By Liana Stinson

People come to the United States seeking the “American Dream.” The typical “Dream”: owning your own home with a white picket fence in the front, owning your own vehicles, and having a good job to support your family. This is shared by the majority of Americans along with those immigrating to this country. Owning a home has turned some minority and low-income individuals’ “Dream” into a nightmare.

Studies have shown that owning a home contributes to the overall general welfare of a person and their family including personal wealth, helping children succeed in school, strengthening families, etc. President Clinton and President Bush urged for new ways to extend credit to low-income individuals so that they too, could own their own home. This challenge excited lenders to create a win-win-win situation: low-income individuals get homes, lenders made money, and politicians get to take credit for expanding home ownership to low-income individuals.

Subsequently, lenders created “exotic loan products and loose underwriting guidelines” which were meant to entice these individuals into home ownership. Being a home owner is seen as moving up the ladder in society. So naturally, low income individuals want to share in that economic prosperity of owning their own home and gaining personal wealth. Lenders offered them subprime and predatory loans. Subprime loans gave people with low credit scores a chance to obtain a loan, and therefore a house, but it came with a cost. These loans were offered at much higher interest rates than regular loans. Because of the high interest rate, it was difficult for people to afford their monthly payments. Consequently, people defaulted on their loans which led to the financial crisis in 2007.

Subprime loans were also given to wealthy minority families. Strikingly, minority families making more than $200,000 a year in 2006 were “more likely to be given a subprime loan than a white family making less than $30,000 a year.” Subprime loans were a win for banks. The wealthy minority families would pay higher rates and wouldn’t default so banks would make much more money than if these families were given a regular loan.

Subprime loans were a part of predatory lending practices that banks engaged in. Lenders targeted minority individuals, offered the borrowers unfair or abusive terms, and convinced them to accept loans that the borrower cannot afford. One example of this occurred in Baltimore. Wells Fargo convinced minorities to accept subprime loans and gave them “less favorable rates than white borrowers.” The bank then foreclosed these homes when the borrowers failed to pay the massive interest rates. Wells Fargo agreed to a $175-million-dollar settlement in which it has to give $2.5 million directly to 1,000 area residents. The minority borrowers who were coerced into accepting subprime loans received an average payment of $15,000 each.

Prior to the financial crisis, home ownership was lender-based. Lenders were willing to extend credit to low-income borrowers which allowed banks to profit, borrowers to own a home, construction companies to have more jobs, and the economy to flourish. Politicians were also ecstatic about this credit line being extended because home ownership levels rose among low income individuals. This in turn increased politicians’ approval ratings with low income individuals.

Lender-based credit came with enticing offers along with home ownership. People could receive “no down payment, interest-only, negative amortization, and low introductory rates” loans. This allowed for borrowers to incur large amounts of debt and spending. This increase in loans and debt did help the economy, but it was short-lived. People were living beyond their means which could not, and did not, last forever. Housing prices have risen while the average wage has stayed the same. Politicians were still advocating home ownership which contributed to personal wealth. People were willing to borrow and accept high credit rates for homes above their means, and lenders were willing to extend credit.

Home ownership is still a viable and great goal to achieve. There are both social and personal benefit to owning a home and gaining personal wealth. Owning a home ties an individual to a community which allows that person power to participate in making decisions about that community. This enables people to become important and influential members of their community. Since the lender-based framework that led to people’s homes being foreclosed didn’t work, home ownership initiatives should be set up allowing low-income individuals to obtain fair loans so that they too can get a chance at the “American Dream.”

In order to create fair home ownership opportunities for low-income individuals, there needs to be a community-based framework set up. There needs to be a reliance on community-based organizations, a strong community for those individuals to buy in, and an increase in the investment from the federal government.

Community-based organizations thrive in areas where there is a lot of community participation. Those within the community are better able to understand the challenges and the particulars of them which enables the members to better solve the issues. An example of this happened in Syracuse, NY which faced “declining home prices, deteriorating neighborhoods, and an overwhelming number of absentee-owner properties.” The city interviewed the residents of Syracuse regarding theirs fears of ownership and the residents feared “continued price declines for homes in the area, such that whatever money they put down as equity would be wiped out.” The city of Syracuse then developed a home equity insurance program for homeowners. The policy would pay homeowners if, at the time of selling their house, local housing prices were lower than at the time they bought the home. This policy allowed Syracuse reverse the housing market that was falling for decades because people were not faced with the risk of losing home equity. This community-based policy allowed individuals to become homeowners when they were not able to prior. However, an increase in home ownership is not enough to solve the problem.

Homeowners are often not successful when there are other problems in the community such as poor transportation, poor education, high crime rate, etc. Community-based organizations can help right these wrongs by understanding the particular needs of the community. An example of this happened in Overtown, Florida. What was once a “thriving and vibrant black community,” turned into a city immersed with crime, riots and a dramatic population decrease from 33,000 to less than 8,000 over fifty years. Local organizations held meetings and developed a plan to help better the city. These organizations provided city residents with “job training, entrepreneurial development, wealth management, and business counseling.” The community-based organizations addressed these needs by understanding them which allowed the city to prosper again.

Finally, there needs to be an increase in the federal budget. Expanding the home ownership budget towards low income individuals would help spur the economy by allowing those individuals to spend their money on other things. When people are spending less on their mortgage bill, they are more likely to put that back into the economy by purchasing clothing or the pair of shoes that they have always wanted. Expanding the budget will also allow for more personal wealth. Owning a home gives an individual a very valuable asset which has the potential to create wealth for that person in the future. Expanding the budget will also allow for social mobility for the low-income individual. Home ownership is crucial in communities in regards to making decisions and becoming an active member in one’s community. An increase in the federal budget can allow low-income individuals a real chance at owning a home which will in turn positively impact their lives.

The government currently has a community development program called Community Development Block Grant (CDBG). This program has been around since the 1970s and has been used to provide funding to “Small Cities.” The cities then distribute the funds to activities that: “(1) benefit low and moderate income persons, (2) aid in the prevention or elimination of slums or blight, or (3) meet urgent community development needs.” There is also the Neighborhood Stabilization Program (NSP) which distributes funds to small cities for the purchase and redevelopment of foreclosed and abandoned properties. Of these funds, 100% must benefit low and moderate income individuals. At least 25% of the funds must be used to purchased foreclosed or abandoned properties and sell them to low income individuals. There is also a short lists of what activities the NSP funds may be used for.

Throughout history, owning your own home has remained part of the American Dream (with or without the white picket fence.) Low-income and minority individuals were enticed by that dream at a time where lenders were coercing them into accepting rates on mortgages that they could not afford. Even wealthy minorities were offered these high rates at the same time that white moderate-income individuals were offered normal rates. Home ownership comes with many social and personal benefits that all Americans, regardless of their minority status or low income, should be able to take advantage of. They should not be taken advantage of.

In order for this to happen, there needs to be much more involvement by community-based organizations. These organizations understand the needs of the community and are able to develop plans to create programs for sustainable low-income homeownership. Through these programs, low-income and minority individuals will be offered a fair chance at achieving the American Dream of home ownership.

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Sources:

  1. Jared Ruiz Bybee, In Defense of Low-Income Homeownership, 5 Ala. C.R. & C.L. L. Rev. 107, 140 (2013).

 

  1. Luke Broadwater, Wells Fargo agrees to pay $175M settlement in pricing discrimination suit, The Baltimore Sun (Jul. 12, 2012), http://articles.baltimoresun.com/2012-07-12/news/bs-md-ci-wells-fargo-20120712_1_mike-heid-wells-fargo-home-mortgage-subprime-mortgages

 

  1. Emily Badger, The Dramatic Racial Bias of Subprime Lending During the Housing Boom, CityLab (Aug. 16, 2013), https://www.citylab.com/equity/2013/08/blacks-really-were-targeted-bogus-loans-during-housing-boom/6559/

HOW A LACK OF FINANCIAL LITERACY LEADS TO A LACK OF FINANCIAL SECURITY

By Thomas Lovecchio

Some high schools teach economics, finance, and accounting, but not every high school does. Every high school needs to. The lack of understanding basic financial concepts is nothing new amongst Americans, we have had this problem for a while and still are not properly addressing it. In the following post I will discuss what financial literacy is, why we lack financial literacy, the effect on financial security, and how to address this problem.

Financial literacy

Financial literacy is the understanding of finance and using that understanding to effectively manage finances. Financial literacy often starts with the proverbial child opening a lemonade stand and then later evolves to a job in high school, but regardless of the lemonade stand and part time job, what happens to children in-between is likely to be, not very much. Financial literacy is an invaluable asset to anyone, yet many people lack it. The difference between a roth and traditional IRA would stump many people, yet retirement, healthcare, and other plans/services are much more complex.

Financial literacy rates generally coincide with education and income levels. Low-income, minorities face different challenges when it comes to the many factors associated with financial literacy. The words defined contribution, defined benefits, 401(k), unmitigated risks could be foreign to even those in a higher education and income level, making it fair to assume that it would be foreign or even worse to low income minorities.

Why we lack financial literacy

A lack of financial literacy can be attributed to a lack of financial education. Financial policy making tends to be reactionary rather than proactive. Deceptive acts, a bubble burst, crisis, or economic downturn are followed by some piece of legislation. Legislators pass laws that will protect consumers, but do not, in conjunction with those protections pass legislation that will fully inform consumers. This is not an argument against consumer protection laws, rather a critique that those laws can do more to address certain issues, through financial education.

On the state level, states have not done much to address financial literacy. States are concerned about implementation issues, the effect on the department of education, schools, and course requirements. States are also sensitive to budget and underfunding issues that continually impact low income school districts.

The effect on financial security

A lack of financial literacy has led to a lack of financial security amongst minorities with respect to retirement savings. Most people have heard a story about someone back in the day who would work forty years at a company and then retire with that company. Today, that is not the case, people bounce from job to job and retirement plans have changed as the market and risks have changed. Due to the little, if any education that students receive on financial literacy they are already at a significant advantage when it comes to saving money and retirement planning. Retirement security goes back to the idea of after working with Company A for forty years, that individual will be financially prepared for their retirement period. More so, African Americans face different challenges than Whites regarding where their money goes, such as helping out the household or family costs. These challenges make it paramount that African Americans are educated about financial concepts so that they can effectively address the different challenges they face.

What we can do to address this problem

In Black Retirement Security In The Era Of Defined Contribution Plans: Why African Americans Need To Invest More In Stocks To Generate The Savings They Need For A Comfortable Retirement, Phillip Aka and Chidera Oku examine four reasons “as to why African Americans lag behind Whites in stock market participation” with regards to retirement security. These four reasons are: the view that the market is too risky, a fear of Wall Street and not trusting financial companies, the view that the market is too complicated, and not enough money to invest in the market. All four of these concerns would be addressed if schools had a federal or state mandated financial literacy education graduation requirement.

The view that the market is too risky potentially has some truth in it depending on the risk aversion of African Americans compared to Whites, but with many options throughout the market minority groups can take calculated risks for their retirement planning. Financial literacy would provide African Americans a better understanding of the market and how to evaluate certain risks with respect to retirement savings. For example retirement is a long term game, at some point in that game risks will have to be assessed and taken on so that they are in a better position for retirement. Without an understanding of the longevity of retirement plans, market risks, and reasonable risks African Americans will continue to be at a disadvantage compared to Whites in their retirement plans.

African Americans have shown a fear of Wall Street so they do not include stocks in their financial planning. History shows, for example predatory lending and redlining, have provided a basis for this fear of Wall Street and financial institutions. With this fear well known, Obama passed protection acts such as Dodd-Frank, but needed to do more to address financial literacy amongst African Americans. This reason also falls on Wall Street and financial institutions to gain the trust of African American’s back. I am sure someone once said we fear what we do not understand, and without a fundamental understanding of the market and Wall Street, this fear will continue to linger.

Lack of money to invest in the market goes against the advice that many people give to someone who wants to start investing. Generally, the best time to invest was yesterday due to the time value of money, so the second best time to invest would be today. Again, if someone does not understand how the investment process works or the amount of capital need to get started, they likely will not invest. Starting out simple with blue chip stocks that are trading at reasonable price levels as well as bond or treasury programs can provide initial investors with low risk or even risk free options. For example, the government has set up a savings program for people without a retirement plan that works on a weekly basis, they can even invest a dollar a week, and it is invested in a risk free Treasury security. A dollar a week, risk free, flexible option is a great way for initial retirement planning, but if African Americans do not know about this program then they cannot take advantage of it. This is where the access to financial information comes in.

African Americans have reasons that they do not participate in the market for their retirement savings. These reasons are leaving them at a disadvantage when it comes to retirement as compared with Whites. These reasons can be addressed through financial literacy education that should at least start at the high school level. By doing this, legislatures will be taking steps to help African Americans so that they are not at financial disadvantage. Some critics have said that not enough studies have been done and we do not know if this financial literacy education will work. This argument simply ignores logic. When print literacy development was introduced, students performed better. Logic dictates the same with financial literacy. Further, not enough studies have been done because not enough financial literacy education programs have been implemented and not enough time has passed to adequately assess any programs that have been implemented.

Conclusion

Financial literacy is the understanding of finance and using that understanding to effective manage finances. Since financial literacy rates generally correlate with income and education levels, low income minorities face more challenges when it comes to understanding finances and retirement savings. This lack of financial literacy is due to a lack of education and the blame can be shared amongst the states and federal government. Financial literacy education in high schools should be mandated due to its practicality and the impact it is having on African Americans.

A lack of financial literacy has led to a lack of financial security amongst African Americans and more specifically with retirement savings. Retirement plans can be simple or as complex as someone wants it to be, but without a baseline understanding of financial concepts, retirement savings will likely always be complex. On top of this complexity African Americans have other reasons as to why they do not invest in the market for their retirement plans such the view that the market is too risky, a fear of Wall Street and not trusting financial companies and not enough money to invest in the market. Federal and state legislators must take action and implement a financial literacy education requirement for high school students so that African Americans have financial security for retirement.

 

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Sources:

  1. Ja’net L. Miles, Focus On The Children, Help The Economy: The Importance Of Including Financial Education In Kansas Graduation Requirements, 24 Kan. J.L. & Pub. Pol’y 136 (2014).
  2. Anne Tucker, Retirement Revolution: Unmitigated Risks in The Defined Contribution Society, 51 Hous. L. Rev. 153 (2013).
  3. Philip Aka and Chidera Oku, Black Retirement Security in The Era Of Defined Contribution Plans: Why African Americans Need To Invest More In Stocks To Generate The Savings They Need For A Comfortable Retirement, 14 Rutgers J.L. & Pub. Pol’y 169 (2017).

THE SAD CONNECTION OF THE SCHOOL-TO-PRISON PIPELINE AND THE ECONOMY OF TOMORROW

By John Schnaars

The article “Bitch,” go directly to jail: Student speech and entry into the school-to-prison pipeline deals with the effects of the educational system on its students. The first issue it deals with is the suppression of the First Amendment freedom of speech. Students in their most sensitive stages of brain development are too often being removed from schools and suspended for advocating for their rights. What are the consequences for these students? Clearly it makes these students less likely to voice their opinion. In turn, this will stop these great minds from speaking out things they do not agree with and also subjects they do agree with. The only way our world and culture can change is by listening to differing opinions.

This has an effect on the students as they make their ways through the school systems. The effects start as early as middle school and high school, and will follow them through college. This draws a parallel to a school that has been in the news lately: The University of California at Berkeley. This is not to say that every subject or view should be allowed to be voiced at our schools; however, far too often if there is even a little bit of discord the school response is to shut it down. Although this is an extreme example, the Harrisburg School District has had significant problems involving children in younger grades as well as at the high school. As we have seen around the world, the world is always changing, and it is up to the people to decide which way it will change, either for the better, or for the worse.

Ms. Ross cites a staggering statistic: well over three million students from kindergarten to high school lost “instructional seat time” in the years 2009-2010. This is not to say that some students that are deserving of a suspension, but not surely not all of them. A school’s “suspend first” policy does not just have an effect on the mental aspects of the students as far as educational purposes, but also has an effect on their lives as a whole. These suspensions lead students to be more likely to act out when they are outside of the classroom and are more likely to end up in prison. The notion that suspended children are the “bad” ones drives this point. Students miss out on educational opportunities are therefore are left behind so that they must look to outside sources to try to survive.

There is clearly a divide in the schools of what races make up the suspension population. According to Ms. Ross’s article, schools seem to suspend and reprimand students of color far more often than students that are white. This creates a marginalization in the minds of all the students, and this too sets up those students for failure. School is where people should be making mistakes and learning from them, but there are other ways to reach this end aside from suspension. I think we should put more pressure on the teachers to create more of an open relationship with their students so they will be more inclined to talk things out, rather than act them out. A student should not be afraid to speak on a topic that they are unsure about for fear of reprimand or to be viewed negatively by staff and other students.

When you take another look at the statistics of the racial divide, this is a clear example of certain people that have a tougher time making it through school and in turn society misses out on the opinions and views of these individuals. People come from very different areas and different ways of family life, however in schools this is supposed to be a non-factor. Everyone should be on the same level and have the same opportunities as the next student. But when these students are subject to increasing suspensions, they may miss out on the economic opportunities as well. It effectively fosters the school-to-prison pipeline. Students with multiple suspensions, regardless of the reasoning for the suspension, are more likely to end up in jail. When suspensions happen at a young age, it leads to an increasing likelihood of ending up in jail when they get older. People at the ages of middle school through college should not be growing up while sitting in a jail cell. Too often the first thing a school does is suspend a student, when really if they took the student off to the side to hear what they had to say they could maybe clear up any of the problems there may be.

This was visible to me at a young age going up through the school system in high school. I had many friends of different races who were far more often in suspension than my friends that were white. Sometimes the school was justified in suspending the student, other times there was no valid basis other than the differing of views. This had an effect on the school as a whole; students were afraid to speak up or have our own voice for fear of being suspended. Some of these students went on to do great things and are still doing great things; others did not see this result.

When students are unable to finish a certain level of schooling the opportunities after school are limited. Even now a college degree from a college has only so many avenues to go to, and it may take an extra 2-3 years in a graduate school to create more than a below average wage. As much as people want to say money isn’t everything, it is a very important thing. In order for the economy to grow, these young students must enter into the workforce and make a living. If many students from different backgrounds and differing opinions are not given these opportunities, nothing will change.

What is the effect of all of this? If students are being silenced in the school system and pushed to the side at times, they will not be a benefit to the society. The youth of today are the people that will have our country’s economic system in their hands tomorrow. The differing of views is what will make the system expand faster and more efficiently. If the school systems continue to make everyone conform to a certain way of thinking and limit what students may speak up on and what they may not, we will never evolve. The history of our country has shown that, among the bright spots, there are even more eye opening negatives. Schools have always been a certain way, and their mode of operation hasn’t changed much since the 1960s. However it seems to me, through research and experience, that schools are becoming more restrictive. A topic that 20 years ago that may have been a sore subject to be brought up in a student speech but allowed nonetheless, today would be a cause for suspension or, worse, expulsion. With technology today, people are getting access to the world like never before and at a younger age, and their opinions and views are ever-expanding. Instead of telling these students to think a certain way and be afraid to voice a differing opinion, we should be encouraging a different way of thinking over “group think.” There is a time and place for that, but when we are talking about high school and college, this is when a person is becoming the adult the will be for the rest of their lives and to restrict this growth is going to hinder the growth of our economy.

In the article Martin Luther King, Jr. Lecture: “It’s set up for failure… and they know this!”: How the school-to-prison pipeline impacts the educational experiences of street identified black youth and young adults which focuses more directly on the school to prison pipeline to black youth and young adults. The most shocking part of this article to me was the beginning, which recounted a story of a black youth in high school and spoke of how disrespectful the teachers could be. Though this was not shocking because I did know this kind of thing happened, it was shocking just thinking back of how many times I had similar experiences as a white male. The school system looks down on certain types of people; to deny this is to be ignorant. It does not always happen, but denial that teachers could be part of the problem, particularly in relation to students of color, is wrong.

Mr. Brown and Ms. Payne first focuses on the connection of law enforcement and schools. Officers and even courts get involved when suspensions and expulsions take place, giving a student an early and bad taste in their mouth of the system. When it happens to those of color this even comes across as targeting. I am sure you have heard it when you were in school, “That kid will never amount to anything,” or “You’ll be working at McDonalds for the rest of your life.” The fact that some teachers will say this to a student is baffling. Black youth makes up about 40% of those suspended or expelled, while they only account for 16% of the kindergarten to high school population. A 31% of these students are subject to school-related arrests. Is this because certain teachers have irrational and wrongful views of black youth? Most of the time I would like to say not, but it does happen. These students are subject to these types of conditions every day, and it sets them up for failure.

A lot of students just need a little extra help and guidance to get over the hump, but when they come into school and already are subject to a certain depiction as “academically incapable,” this breaks those students down. While there are some that overcome this and go on to do great things and contribute to society and the economy, it happens all too often where they are beat down and pushed to the edge to where it is almost impossible to avoid a negative result.

The article later expresses the view that the school system is set up for failure for black youth. Some teachers see a student falling behind or behaving in a negative way and just think to focus on the other students. This is the complete wrong thing to do because without someone intervening the behavior is just going to get worse. The narrative that a certain person is less likely to succeed and be a positive impact on society and the economy should not be present in schools. Everyone does not start at the same spot, and yes, some students do better than others, but this should not be because of a lack of help or a disdained teacher-student relationship. Teachers are there to teach our youth and prepare them to enter into the world, however sometimes this vision is lost, and people tend to let what happens happen. If we took a hard long look at what we could do to help change this narrative and create a more open, and accepting nature of differing views and opinions, I am sure the world would be a better place. Like I said before, the economy’s future rests on the youth of today’s shoulders. The school to prison pipeline and the staggering numbers of the percentages of colored youth that are missing out on school, can end with an understanding and more open policy. Schools should be the place where you can voice your opinion, no matter who disagrees or agrees, as long as these views are expressed through a safe and respectful manner.

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Sources

  1. Catherine J. Ross, “Bitch,” go directly to jail: Student speech and entry into the school-to-prison pipeline, 88 Temp. L. Rev. 717 (Summer 2016)
  2. Jacey Fortin, Free Speech Week at Berkeley is cancelled, but Milo Yiannopolous still plans to talk, The New York Times (Sep 23, 2017), available at https://www.nytimes.com/2017/09/23/us/milo-berkeley-free-speech.html
  3. At least 45 Pennsylvania teachers quit citing violence, ‘unprecedented misbehavior’, Oklahoma News 4 (Nov 21, 2017 8:25 p.m.) http://kfor.com/2017/11/21/at-least-45-pennsylvania-teachers-quit-citing-violence-unprecedented-misbehavior/
  4. Christine Vendel, Nearly half the student population at Harrisburg High School slapped with suspension notices, PennLive.com (Mar 29, 2017) http://www.pennlive.com/news/2017/03/nearly_half_the_student_popula.html
  5. Yasser Arafat Payne and Tara Marie Brown, Martin Luther King, Jr. Lecture: “It’s set up for failure… and they know this!”: How the school-to-prison pipeline impacts the educational experiences of street identified black youth and young adults, 62 Vill. L. Rev. 307 (2017)

DACA Changes and Implications for the Future

by Alyssa Hicks

On June 15, 2012, the Secretary of Homeland Security, Janet Napolitano issued a memorandum titled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children.” This memorandum, also known as DACA, was a non-legislative directive instructing the Department of Homeland Security (“DHS”), more specifically Immigration Customs and Enforcement (“ICE”), Customs and Border Patrol (“CBP”), and United States Citizenship and Immigration Services (“USCIS”), that certain eligible individuals who arrived in the United States as children were able to request consideration for deferred action. These individuals would also be eligible for work authorization, but it did not grant any type of conditional citizenship or path to citizenship.

In the memo, Napolitano stated the following: “As a general matter, theses individuals lacked the intent to violate the law . . . . However, additional measures are necessary to ensure that our enforcement resources are not expended on these low priority cases but are appropriately focused on people who meet our enforcement priorities.” Not only did DACA further the interests of inculpable undocumented immigrants, but it also was a means to execute a cost-effective deportation system by focusing on individuals with bad moral character or who posed a threat to national security. President Obama supported Napolitano’s contention when he gave his remarks about DACA:  “In the absence of any immigration action from Congress to fix our broken immigration system, what we’ve tried to do is focus our immigration enforcement resources in the right places.”

Deferred action is a use of prosecutorial discretion to postpone a removal action against an individual for a certain period of time. Generally, “it is an administrative tool that allows an enforcement agency to prioritize who they prosecute . . . to ‘conserve limited enforcement resources’ and also ‘protect core American values of humanitarianism and fairness.’” It is not a new tool, but one that DHS has utilized for over sixty years. It is often first attributed to the deportation case of former Beatle, John Lennon. To fight for Lennon to stay, his attorney requested information under the Freedom of Information Act (“FOIA”) and found examples of individuals who were “dubbed non-priority” status. This is credited to be the first time deferred action became public. The initiative was titled “Operations Instruction,” with its purpose to identify vulnerable, long-time present, individuals who would suffer greatly if deported. This tool has even been utilized to help undocumented children, and other vulnerable individuals, who would experience extreme hardship way before DACA even existed.

An individual qualified for DACA if they could satisfy a variety of criteria including: when they arrived in the United States, how long they had lived here, and that they did not have lawful status at the time DACA would begin. There is an exception for age if the individual is currently in removal proceedings or have a final removal or voluntary departure order. Continually, DACA qualifications ensured that only the “most deserving” received such this status. Eligible applicants were required to currently be in school, have graduated, are working towards receiving a GED, or were honorably discharged veteran of the Coast Guard or Armed Forces of the United States. Continually, the applicants must have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety. Applications must have entered without inspection or have expired status prior to June 15, 2012. DACA requests were reviewed on a case-by-case basis, and meeting all the requirements did not necessarily guarantee approval. DACA also granted work authorization, if that individual is able to show an economic necessity, and those who are able to show economic necessity were issued a social security number.

One of the most significant benefits for DACA recipients is that they do not accrue unlawful presence once approved. Undocumented minors receive almost no benefits from current immigration law—arguably one of biggest flaws in the Immigration and Nationality Act (“INA”). One exception benefitting minors under the INA and that is they do not accrue unlawful presence while under the age of eighteen. Despite the benefit of this exception, it starts holding children accountable for their parents’ actions the day they turn eighteen. At this point they have no way to prevent the time bars that come into effect that greatly hinder their ability to beginning citizens. Individuals who have been unlawfully present for more than 180 days but less than on year who voluntarily departs cannot return for three years. Anyone that is present for a year or more is barred from returning for ten years. Consequently, it is significant for those who receive DACA before their initial 180 days time bar begins because it will strengthen their ability to become a legally permanent resident (LPR) if they become eligible. Individuals do accrue unlawful presence time during the application process if they are over the age of eighteen.

Another benefit is that if you are denied DACA status, USCIS will not report you to ICE for being unlawfully present. Many individuals were hesitant to apply because they feared they or their family would be reported. The only circumstance that would trigger such an inquiry is if an applicant is denied because of a criminal offense, a fraudulent application, is found to be a threat to national security or public safety, or other exception circumstances. Only then, and with actual evidence, will USCIS refer the case to ICE.

DACA has awarded exceptional benefits to qualifying individuals and to our economy. Almost 800,000 individuals have received DACA status. It allows children who received education, courtesy of Plyler, to continue their educations and to rise above the poverty line that many were destined to remain. According to a survey conducted by the Center for American Process, ninety-six percent of recipients are currently employed or in school. Sixty-nine percent have higher paying jobs, eighty-nine percent have received driver’s licenses or state identifications, and twenty-one percent have bought their first car. There is an overall forty-five percent increase in the average wage, which translates to more tax revenue.

Notwithstanding, the issues with DACA are not immeasurable; with significant benefits come significant disadvantages. Even though eighty-six percent of individuals support DACA, there are many who not only take issue with this alleged form of amnesty, but also many believe the non-legislative directive is unconstitutional. DACA has also created a political division on how to best help undocumented children. Generally, Democrats believe that deferred action is an appropriate means for effectively and efficiently managing institutional resources while promoting humanitarian values. While Republicans generally view DACA as an unconstitutional use of executive authority that bypasses Congress’s role as the ultimate lawmaker. Although a majority of Republicans do not support DACA, they are willing to provide Dreamers other type of relief, but one that is discussed and executed through the legislative branch. Because of this political turmoil, legislators are currently struggling to find a solution in the midst of the revocation of DACA. My recommendation is that Congress comes together to find a permanent solution via the DREAM Act.

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Sources:

  1. Memorandum from Janet Napolitano, Sec’y, DHS, to David V. Aguilar, Acting Comm’r, CBP, Alejandro Mayorkas, Dir., USCIS, and John Morton, Dir., ICE, on Exercising Prosecutorial Discretion with Respect to Individuals who Came to the United States as Children (June 15, 2012) http://www.ice.gov/doclib/about/offices/e
  2. Cobb, Naomi. Deferred Action for Childhood Arrivals (DACA): A Non-Legislative Means to an End that Misses the Bull’s-Eye, 15 Scholar 651, 661-62 (2013).
  3. https://www.uscis.gov/archive/consideration-deferred-action-childhood-arrivals-daca.
  4. Speech by President Obama June 15, 2012 at 2:09 P.M.  https://obamawhitehouse.archives.gov/the-press-office/2012/06/15/remarks-president-immigration
  5. David W. Leopold, What Legal Authority Does President Obama Have to Act on Immigration?, Bloomberg Law Reports (May 16, 2011), http://www.aila.org/content/default.aspx?docid=35404
  6. http://immigrationimpact.com/2011/07/20/prosecutorial-discretion-and-the-legacy-of-john-lennon/
  7. Michael A. Olivas, Dreams Deferred: Deferred Action, Prosecutorial Discretion, and the Vexing Cases of Dream Act Students, 21 WM. & Mary bill rts. J. 463, 519 (2013).
  8. Instructions for Consideration of Deferred Action for Childhood Arrivals, USCIS form I-821D, http://www.uscis.gov/files/form/i-821dinstr.pdf
  9. Consideration for Deferred Action for Childhood Arrivals Process: Frequently Asked Questions, (Oct. 23, 2014), https://www.uscis.gov/archive/frequently-asked-questions
  10. Bono, Marisa. When A Rose is Not A Rose: DACA, The DREAM Act, and The Need for More Comprehensive Immigration Reform, 40 T. Marshall L. Rev. 193, 205-06 (2015)  
  11. Immigration and Nationality Act § 212(a)(9)(B)
  12. http://www.pewresearch.org/fact-tank/2017/09/01/unauthorized-immigrants-covered-by-daca-face-uncertain-future/
  13. https://www.americanprogress.org/issues/immigration/news/2015/07/09/117054/results-from-a-nationwide-survey-of-daca-recipients-illustrate-the-programs-impact/
  14. WONG/NILC/CAP survey of DACA recipients.
  15. https://townhall.com/tipsheet/guybenson/2017/09/27/poll-americans-strongly-support-dream-act-additional-immigration-enforcement-n2386297

Sustainability and Poverty

by Jennifer Breneman

“Everything that we need for our survival and well-being depends, either directly or indirectly, on our natural environment.”  Preserving and conserving our environment for the current and future generations has become a hot topic.  The way to do this is through the concept of sustainability.  The Environmental Protection Agency describes the concept of sustainability with the following, “To pursue sustainability is to create and maintain the conditions under which humans and nature can exist in productive harmony to support present and future generations.” Sustainability efforts have taken off in many areas of the United States.  San Francisco, California, for example, has been a pioneer in the sustainability movement, reducing waste, reducing air emissions, and conserving water.  Interestingly, San Franciscans earning in the top 95% of the residents’ income, earn well over $400,000 a year. Two examples of sustainability initiatives seen implemented around the United States are parklets and complete streets movements.  

Parklets are typically small, temporary platforms that take up two or more street-parking spaces. They convert those parking spaces into a type of mini-park that the public can use for recreational activities.  Parklets encourage less reliance on vehicles, which cut down on emissions.  Cities such as San Francisco, Philadelphia, Sacramento, Fort Lauderdale, and Seattle, are just a few of the many cities that have been pioneers in the Parklet Program Movement.  Not surprisingly, some of the wealthiest earners reside in these cities.  For example, Seattle recently surpassed Washington, D.C., to rank among the top-three high-income cities.

Complete street movements have also taken off. Complete street ordinances promote  streets that safely accommodate pedestrians, bicyclists, children, and people with disabilities.  Chester County, Pennsylvania, adopted a complete streets ordinance for Baltimore Pike, a main roadway in the county.  The ordinance provides accommodation for people biking, people walking, people using the […] bus, and people using any other form of non-motorized transportation while still maintaining the roadway’s efficiency to move motorized vehicle traffic. Chester County,comprised of a predominantly white population with a median family income of over $100,000, is far from a poverty stricken county. These movements are formidable efforts at combating environmental degradation in this country.  The problem is that not enough efforts are being targeted toward lower-income, racially diverse areas.  Sustainable efforts must be undertaken everywhere, not just the affluent areas of the United States.

Chronic poverty creates hardships for residents in areas of employment and housing and leaves them lacking basic necessities. The poor are often exposed to pollution and environmental degradation which causes a higher incidence of health problems.  For example, Appalachia, a poverty stricken region, is home to mountaintop removal coal mining.  This coal mining uses explosives to expose coal seams under the surfaces of mountains.  Some of the health problems seen in this impoverished area include significant higher rates of birth defects.

Urban areas of poverty also see negative health consequences among their residents. A recent study that found “low-income and minority groups — in particular, poor children of color — tend to be most exposed to air pollution. As a result, these children may be more likely to suffer from chronic respiratory conditions. In fact, almost one in four impoverished Hispanic and Puerto Rican children in the U.S. have asthma, compared to “about one in 13 middle-class or wealthy white children.”” Activists in New York City have also alleged a connection between  the exhaust fumes from garbage trucks and a higher incidence of asthma among the poor children in the city.

Hazardous waste sites, municipal landfills, incinerators, and other hazardous facilities are disproportionately located in poor and minority neighborhoods. Proving the idea that poor urban areas and minorities suffer the most environmental injustice, the Commission for Racial Justice conducted a study in 1987 regarding toxic waste and race, and found “a strong link between race and location of hazardous waste facilities.” This study found that of 27 hazardous-waste landfills nationwide, a third (which represent almost 60 percent of the total hazardous waste landfill capacity) were located in Alabama, Louisiana, Oklahoma, South Carolina, and Texas. Of these, three of the largest sites were located in predominantly black-populated areas, and these three “accounted for about 40 percent of the total estimated hazardous-waste landfill capacity in the entire United States.” It appears that race was the most prominent factor in the location of commercial hazardous-waste landfills, even more prominent than household income and home values.  

More recent studies have found similar results. For example, a Massachusetts study of the locations of hazardous sites and polluting facilities in the state found that communities of color and working-class communities housed significantly more hazardous sites and facilities than wealthier communities and those with a small minority population.  Poor and colored-populations also tend to live in areas where high lead exposure is likely, due either to soil contamination or to lead paint. It seems that there is a disparity between the poor and ethnically dense areas of the United States that are in great need of sustainable efforts and the wealthy areas in which the efforts are being made.  Low-income areas which suffer most from environmental ill-effects need the sustainable efforts the most.   

Thankfully, there seems to be a growing trend among sustainability directors in U.S. cities, who are planning environmental improvements, on focusing on the most deprived areas of their cities.  These directors are working on efforts such as bikeways, community gardens and energy efficiency retrofits. One such city is Chicago. Chicago conducted a study and determined where the energy inefficient buildings were located.  It targeted low-income areas where the opportunity to help people retrofit their homes or install other energy efficiency measures was present.  Chicago then connected homeowners with utility and nonprofit retrofit programs, and set up a new call center to direct residents to the right programs, resulting in the retrofits of thousands of homes.

Ideally, the trend will continue and more cities will follow Chicago’s initiatives in remedying environmental concerns in the low-income and racially dense areas that are most affected by the problem.  Sustainability must be an ongoing effort undertaken by all for the maximization of Earth’s resources and human health, safety and welfare.

 

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Sources:

  1. Learn about Sustainability, United States Department of Environmental Protection https://www.epa.gov/sustainability/learn-about-sustainability#what
  2. Hasmik Djoulakian, The Top 5 Reasons Why San Francisco is California’s Sustainable City, TheCultureTrip.com (Dec 16, 2016) https://theculturetrip.com/north-america/usa/california/articles/top-5-ways-san-francisco-is-environmentally-friendly
  3. Heather Knight, S.F.’s Richest are wealthiest in the land, The San Francisco Chronicle (Mar 28, 2015) http://www.sfchronicle.com/bayarea/article/S-F-s-richest-are-wealthiest-in-the-land-6165435.php
  4. Parklet Application, Philadelphiastreets.com http://www.philadelphiastreets.com/images/uploads/resource_library/City-of-Philadelphia-Parklet-Application.pdf
  5. Reclaiming the Right of Way: A Toolkit for Creating and Implementing Parklets, UCLA Luskin School of Public Affairs (Sep 2012) https://nacto.org/docs/usdg/reclaiming_the_right_of_way_brozen.pdf
  6. San Francisco Parklet Manual Version 2.2, San Franscisco Planning Department (Spring 2015) http://pavementtoparks.org/wp-content/uploads/2015/12/SF_P2P_Parklet_Manual_2.2_FULL1.pdf
  7. City of Sacramento Parklets Program Manual, City of Sacramento Department of Public Works (Mar 18, 2014),https://www.cityofsacramento.org/-/media/Corporate/Files/Public-Works/Forms/Parking/Parklets/Sacramento-Parklet-Program-Manual_3-18-2014_Final.pdf?la=en
  8. Parklet Program Application, City of Fort Lauderdale Department of Sustainable Development, http://gyr.fortlauderdale.gov/home/showdocument?id=3629 (last visited Sep 20, 2017)
  9. Parklet Handbook, Seattle Department of Transportation http://www.seattle.gov/transportation/docs/parklets/Parklet%20Handbook.pdf (last visited Sep 20, 2017)
  10. Gene Balk, As Seattle incomes soar, gap grows between rich and poor, Seattle Times (Oct 6, 2014), available at http://blogs.seattletimes.com/fyi-guy/2014/10/06/as-seattle-incomes-soar-gap-grows-between-rich-and-poor/
  11. Akifa Khattak, Complete Street Draft Ordinance Narrative
  12. Race/Ethnicity, Chester County Pennsylvania, available at http://www.chesco.org/1318/Race-Ethnicity
  13. Gerken, James. Impoverished Americans Face Environmental Health Problems, Huffington Post (Aug 29, 2012) https://www.huffingtonpost.com/2012/08/29/us-poverty-environment-health_n_1836599.html
  14. Robert D. Bullard, Dumping in Dixie: Race, Class, and Environmental Quality, (1st ed, 1990)
  15. Rachel Massey, Environmental Justice: Income, Race, and Health, Global Development and Environment Institute, Tufts University(2004) available at http://www.ase.tufts.edu/gdae/education_materials/modules/Environmental_Justice.pdf
  16. Jacob Scherr, Sustainability moves low-income neighborhoods from the fringe, GreenBiz.com (May 14, 2014, 4:30 a.m.), https://www.greenbiz.com/blog/2014/05/14/sustainability-low-income-neighborhoods

American Corrections Problems: Causes and Solutions

by Coulter Ebbert

It is widely known that while the United States represents approximately 4.4% of the world’s population, it houses roughly 22% of the world’s prisoners. Within the past 30 years, the inmate population within the United States has skyrocketed from numbers in the hundreds of thousands to a population well into the millions. With roughly 70,000 or 37.8% of the nearly 185,500 inmates in the federal prison system alone being African American, 2,707 or 1.5% being Asian, 4,096 or 2.2% being Native American, and 108,410 or 58.4% being White, it is clear that the races of inmates in the Federal System alone do not accurately represent their proportions within the overall population. While some may explain this phenomenon by citing to statistics suggesting that the rates of incarceration are proportionate to the breakdown of crimes committed by members of particular race classifications, it still remains clear that regardless of the reason, the United States has a lot of people in prison.

Avlana K. Eisenberg, author of Incarceration Incentives in the Decarceration Era does an excellent job in recounting the increase in the United States’ prison population:

The United States prison population experienced an explosion beginning in the 1970s, and the United States currently incarcerates a higher percentage of its population than any other country in the world. There were approximately 200,000 people incarcerated in the  [*81]  United States in 1973, and the prison population surpassed 2 million in 2002. During this time, the per capita incarceration rate soared from 100 per 100,000 to more than 750 per 100,000. At its peak in 2009, the U.S. prison population exceeded 2.4 million, with more than 1% of the country’s adult population behind bars. The phenomenon of mass incarceration has disproportionately affected men and people of color, with black males experiencing the highest rates of incarceration; approximately one in nine black men age twenty to thirty-four is currently incarcerated, and one in three black men will at some point spend time in jail or prison.

 

In reflecting on the prison population rising throughout the 1970’s, 1980’s, and 1990’s, commentators and scholarly figures hypothesis as to the cause of the increase. As Carl Takei discussed in his article, changes in law enforcement priorities and sentencing policies resulted in more convictions and longer sentences. Takei accounts for the increased incarceration rate:

At both state and federal levels, legislators responded [to the perceived urgency of the War on Drugs] by approving increasingly harsh sentencing laws, including mandatory minimum sentences, “Truth in Sentencing,” Three Strikes laws, and stiff sentencing guidelines. The same dynamics led legislators to ramp up the size and aggressiveness of the police presence in cities – particularly in Black and Brown neighborhoods. Both liberals and conservatives supported many of these changes – including the shift from indeterminate sentencing to the use of sentencing guidelines, which liberals incorrectly believed would reduce racial disparities and biases in sentencing.

The war on drugs, the “tough on crime” mindset, and changes in criminal law such as mandatory minimums and three strike policies seem to be common factors in explaining the increase of the United States’ prison populations. Other experts blame the increased population of prisons on profit driven incentives, as Avlana K. Eisenberg explains:

It is common to attribute the rise of mass incarceration in the United States to the profit-seeking private sector and the emergence of a “prison-industrial complex.” As the AFL-CIO, the largest federation of trade unions in the United States, has suggested: “Our nation’s profit-driven justice system is producing a level of mass incarceration that is anything but just.” Some private corporations do advocate for pro-incarceration policies, even describing prisons as a kind of “product” to be sold like “selling cars or real estate or hamburgers.” But suggesting that mass incarceration is solely the result of corporate greed paints an incomplete picture.

Although private prisons have, in the past, played a role in housing inmates on behalf of federal and state prison systems for a profit, the private prison industry has been on a steady decline within recent years. The Federal prison system has enacted plans which seek to reduce and ultimately phase out the federal government’s use of private prison companies to house federal inmates. A result of this plan being enacted to phase out private prison companies would be a decrease on lobbying in favor of strict sentencing guidelines more emphasis on reducing the amount of those imprisoned. A further driving factor for lowering the amount of those Americans incarcerated are the fiscal reproductions and demands of housing millions of men and women within these facilities.

While identifying causal factors in retrospect is important, it is much more difficult to develop solutions which will address the issues within the United States correctional system. Currently, the Federal Bureau of Prisons (“BOP”) maintains programs and classes within their facilities in the hopes that they may reduce recidivism and ultimately lower the population of inmates within the Prison system. The Federal Bureau of Prisons requires those incarcerated within the federal system who do not have a high school diploma, or an equivalent thereof, to complete an adult literacy program for a minimum of 240 instructional hours or until they receive their GED. Furthermore, the BOP requires non-English speaking inmates to take English classes so they may successfully speak English as a second language. The BOP also provides opportunities for inmates to learn trade skills through occupational training in the hopes that these marketable skills will aid inmates in finding work upon their release from prison, thus reducing their chances of reoffending. Reports indicate that those inmates who worked within prison industries or occupational training were 24% less likely to recidivate and 14% more likely to be gainfully employed after release from prison than other inmates. The BOP also has plans to revitalize and reform their Federal Halfway House programs, phase out the use of private prisons in the housing of federal inmates, and enact procedures which would help inmates maintain family connections while they are incarcerated and address mental health issues for inmates.   

While, as discussed above, the population of those incarcerated had been on the rise within the recent decades, the BOP reports decrease within the Federal prison population. With the BOP reporting nearly 13,000 fewer inmates at the end of the 2016 fiscal year, one must wonder if the decrease is a result of the above-mentioned programs, or rather a change in the public perception of incarceration within our society. While there is little doubt that a plethora of Americans still abide by the “tough on crime” approach, many within the United States recognize and understand the fallacies of the War on Drugs and the idea of mandatory sentencing for such offenses in the least.  As of 2017. Almost half, 80,585 or 46%, of the Federal Bureau of Prisons’ inmates are incarcerated because of drug related offenses. Many of those inmates locked up on drug related offenses may be classified as non-violent offenders who have received their sentences due to mandatory minimums passed by state and federal legislatures that judges must abide by.

It is important to note, that while it is absolutely vital to discuss and appreciate those steps which are taken to improve the lives of those already convicted and imprisoned, and to decrease recidivism rates, it is imperative that prevention measures are discussed and considered so as to prevent persons convicted of lesser crimes from being disproportionately sentenced and imprisoned. Two bills were introduced to Congress in October of 2017: S. 1917 – Sentencing Reform and Corrections Act of 2017; and S. 1933 – Smarter Sentencing Act. Both bills have received bipartisan support and aim to reform particular sentencing practices as well as provide necessary funding to programs in hopes to reduce recidivism rates.

The Sentencing Reform and Corrections Act of 2017 was introduced on October 4, 2017 by Republican Senator for Iowa, Charles Grassley. The Bill proposes provisions which would reduce mandatory minimum sentences for those convicted of nonviolent drug offenses, increase funding for BOP programs which seek to lower recidivism rates, and other such provisions which aim to challenge the corrections and sentencing issues we face in the United States.

The Smarter Sentencing Act of 2017 was introduced on October 5, 2017 by Republican Senator for Utah, Mike Lee. The Smarter Sentencing Act proposes to revitalize the manner in which Federal Judges may sentence those convicted of non-violent drug offences. This act will allow for these experienced judges to differentiate between those offenders who commit minor drug offenses and those offenders who commit serious drug offenses and sentence them accordingly without being constrained by outrageous or excessive required sentencing guidelines. Id.

Both of these bills were proposed in hopes of correcting the wrongs that plague the corrections system and the criminal justice system as a whole. Measures taken by the Federal Bureau of Prisons and the legislature give those who see the disparities within the corrections system hope that they may be addressed. If the current plateau and steady decrease of the prison population persists, it may be foreseeable that further action from the proper authorities may cause the population to continue to decrease.

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Sources:

  1. Michelle Ye Hee Lee, Does the United States really have 5 percent of the world’s population and one quarter of the world’s prisoners?, The Washington Post (Apr 30, 2015) https://www.washingtonpost.com/news/fact-checker/wp/2015/04/30/does-the-united-states-really-have-five-percent-of-worlds-population-and-one-quarter-of-the-worlds-prisoners/?utm_term=.1f81451a68a9
  2. Offenses Statistics, Federal Bureau of Prisons (Sep 23, 2017) https://www.bop.gov/about/statistics/statistics_inmate_rase.jsp
  3. Avlana K. Eisenberg, Incarceration Incentives in the Decarceration Era, 69 Vanderbilt L. Rev. 71, 80-81 (2016).
  4. Carl Takei, From Mass Incarceration to Mass Control, and Back Again: How Bipartisan Criminal Justice Reform May Lead to A For-Profit Nightmare, 20 U. Pa. J. L & Soc. Change 125, 131 (2017).
  5. Prison Reform: Reducing Recidivism by Strengthening the Federal Bureau of Prisons, United States Department of Archives (Mar 6, 2017) https://www.justice.gov/archives/prison-reform#recentandongoingreforms
  6. Federal Bureau of Prisons Program Fact Sheet, Federal Bureau of Prisons, (Oct 2017) https://www.bop.gov/about/statistics/docs/program_fact_sheet_20171102.pdf
  7. Sentencing Reform and Corrections Act of 2017, H.R. 1917, 115th Cong. (2017).
  8. Smarter Sentencing Act of 2017, H.R. 1933, 115th Cong. (2017).

The Forgotten People

by Terry Davis

The United States faces many issues today and we are bombarded with them through news and social media outlets. However, we no longer hear about the plights and struggles of the Native Americans in our country.  They are the forgotten ones of our society. You hear the words Native American today and many of us liken that to history or sport’s mascots. It is almost as if we forgot that they are reservations of Native Americans throughout this country. They should not be remembered for failed assimilation attempts or even their forced journey to undesirable land in the Midwest. They should be seen as an important cog in what makes the country great and not some group that we read about in history books.

Growing up as a kid, my initial introduction to who Native Americans are was through playing cowboy and Indians and through old western films that portrayed them as the uncivilized savages. After that, in grade school we learned how peaceful early Pilgrims were to the Natives during the first American Thanksgiving, and how great of a gesture it was for these people to invite “friends of the wilderness” to a meal. Later on in school you begin to learn of early Native American conflicts with settlers: siding with the British based on promises to keep their land, the Trail of Tears, assimilation, The Indian Wars ending the late 19th century. Beyond this, Native American history ends for most of us. History does not end there for Native Americans. Since that time they continue to push for further recognition and sovereignty in a country where they’ve lived longer than those who seek to control their rights.

The best place to start in understanding the state of the Native American race in relation to the rest of the United States and where they stand in our society today is to look at their history briefly. The Native Americans were in the United States long before settlers arrived from Europe. They interacted with settlers creating a variety of alliances with some countries and opposed by others. Diseases massively decimating their numbers ravaged much of the population in the 17th and 18th century. With the conclusion of American independence, many Native American tribes attempted to assimilate into American culture while others sought to remain secluded. Their decision of seclusion would ultimately be made for them with Andrew Jackson’s Indian Removal Act of 1830. This allowed him to send all Native Americans East of the Mississippi to territory in the West by giving up their lands. Native Americans had went through this ever since Europeans set foot in the United States where they were slowly shoved further away from the coast.

Native Americans had simply been given land that no other settler currently wanted.  As time progressed into the middle of the 19th century land was being claimed more and more in the west as settlers made their great exodus. This created tension as settlers wanted land Native Americans now possessed. Once again the Indian Wars would resume where Native Americans battled for freedom and protection of their property. These skirmishes only slowly decimated the Native Americans who were once again succumbed by defeat. This led to many Native Americans living on reservations that are still in existence today.

Native Americans yet were still not done with the United States government intervening in their lives. Throughout the late 19th century and early 20th century many youths would be taken from their reservation lives to be sent to trade and industrial schools to be educated like Americans at the time. Notably an Indian industrial school was opened up in Carlisle, Pennsylvania to serve this purpose where the current Barracks is located. Many of these children were successful in becoming “Americanized,” but many would never see their parents from the reservation again. It was the United States intervening based on what they found to be the right thing to do.

Today, Native American reservations consist of 22% of our country’s 5.2 million Native Americans. The rest live amongst us. They are in the same boat as other minorities in the United States who typically struggle with economic issues. The conditions on reservations are even worse. There is a large scarcity of economic opportunity and jobs for citizens of these tribal lands. While they seek self-sufficiency, they are also reliant on government assistance that may never come. Four of ten Native Americans on reservations are unemployed.  Of those who are employed, many are making below poverty wages. Coupled with that is the frequency of drug and alcohol addictions that many suffer from to cope with their lives. These people are in no better condition than the homeless in our streets.

With these harsh living conditions and limited success of reservation life, why are these individuals forgotten? They are forgotten because America has already wiped their hands clean of them. People struggle to relate to someone that they have seldom if any interaction with. How often do we come across Native American’s on a daily basis? I am willing to bet the number is very little. How much news representation do Native Americans receive? The only story I can remotely remember are the protests of Native Americans who were being removed from their reservations or suffering poor drinking water due to oil drilling on reservations. Beyond this story, Native Americans receive very little media attention. We know that they exist on some remote areas of the United States, but we do not necessarily relate to their plight. They are very similar to the homeless we witness in our cities on a daily basis that we view, but turn a blind eye to. The only difference between the two is they are not in our face. We are confronted with the homeless routinely so we are always reminded that they are there. However, unless you live close to a reservation you are unlikely to be confronted with their struggle.

How do we then make a difference and better the lives of our Native Americans? First, we educate the masses regarding their struggles and understanding of their culture. This is not easy, as America today suffers from the same hatred towards other minorities that continues to get attention in our society. An open forum does not change the lives of the Native Americans, but it changes the lives of us as outsiders who become just a little bit more accepting of others even if they differ from us.

The largest change must come within our Federal government to address the problems within the reservation life of their citizens. The economy of these tribal lands is the first issue that needs to be reviewed. The United States has made efforts in many geographical regions of the country to provide economic relief. For instance inner cities have received additional funds in efforts to rebuild homes, bring back businesses, and improved the visual appearance. These are things that reservations have been neglected from receiving by the federal or local governments. This decision must be based on the fact that outsiders do not visit reservations and the only ones who see them are Native Americans unlike cities that are seen by all. This again indicates my earlier point that America has turned a blind eye to the plight of Native Americans to the point that there is no concern to help reservations succeed. This is the worst kind of attitude to have because it prolongs a barrier between Native Americans and success. More importantly it prolongs a barrier between Native Americans of reservations and the rest of the United States citizenry.

Native American reservations are in need of economic growth in order to succeed in today’s civilization. As indicated, the unemployment rate shows that the lives of these people suffer greatly as a result. Many may argue that Native Americans have lavish casinos that help their reservations prosper. This is an inaccurate statement. Casinos are not a fact of life on every reservation. Those reservations that do have them are ones that are relatively close to other economic markets or larger populations. Even these casinos fail to employ many members of the reservation and those that are employed only benefit greatly if they are at the top of the company’s hierarchy. Finally, often times the presence of casinos results in outside investors who are granted access to reservations and are the ones who truly profit from the creation of casinos.

For an economy to grow, banking institutions must be available to help provide individuals with standard loans, and provide small businesses and industries with the necessary amount capital to page for wages, materials, and other developmental costs. These are simple things that a small business owner outside of a reservation takes for granted, but is a barrier to those on a reservation. Banks must be made available to help Native Americans begin any successful business venture that can improve life standards.

In order to help reservations succeed financially, direct capital investments into reservation businesses, housing, and infrastructure. Lending standards from banks must be based on tribal needs and conditions and not the bank shareholder demands. It is not feasible for reservations to meet this requirement without lending institutions willingness to be adaptable to tribal needs. We must embrace a culture of creativity and innovation in financial products and technology the same way other parts of the United States are embraced. Allowing and supporting a culture of economic development and funding by the government and lending institutions is a pivotal way for the forgotten to become members of the known.

 

Sources:

  1. G. Guedel, Capital, Inequality, and Self-Determination: Creating a Sovereign Financial System for Native American Nations, 41 Am. Indian L. Rev.1 (2016). 
    http://digitalcommons.law.ou.edu/ailr/vol41/iss1/1
  2. Danielle Delaney, The Master’s Tools: Tribal Sovereignty and Tribal Self-Governance Contracting/Compacting, 5 Am. Indian L. J. 2 (2017). http://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=1165&context=ailj

Influencing Behavior

by Jacob Oldaker

The theory of mechanism design is used to the influence the behavior to increase the social preferences of a population to pursue a solution that will increase the well-being for an entire group of people in comparison to maximizing one’s individual material payoff. Bowles, Samuel, and Sandra Polanía-Reyes. “Economic Incentives and Social Preferences: Substitutes or Complements?” Journal of Economic Literature 50.12 (2012): 368-425. Economist and policy-makers (principal) use the assumption that all individuals act in the best interest of oneself, making the design of this mechanism difficult in achieving the best scenario for the entire group (agent). Id. The way policy is introduced impacts how people interpret it determining whether the influence will have either a marginal or categorical effect on social preferences. Id. I will begin this article by explaining why the assumption in economics that people are rational actors is not always the best indicator to use when predicting the agent’s decisions. In coordination with these theories, I will use examples to show how these theories have helped mold the process that principals use to devise their influences which they use on their respected agents.

The theory of fairness presented in Ernest Fehr and Klaus Schmidt article, “A Theory of Fairness, Competition, and Cooperation,” suggests that in contrast with most economic models, the way an individual views the fairness of the outcome from their decision, has a larger affect on their decision then acting in their own material-self interest. Fehr, Ernst, and Klaus Schimdt. “A Theory of Fairness, Competition, and Cooperation.” The Quarterly Journal of Economics 114.3 (1999): 817-78. Web. 12 Dec. 2015. For example, an individual A, Adam, is working with individual B, Bob, on a live game show to accumulate an earnings of $20. Adam wins the contest and now has the choice to keep the $20 or split it equally with Bob. Under the assumption that individuals act in their own material interest, Adam will gain more utility by keeping the $20 for himself compared to the utility he would gain by choosing to split the $20 with Bob.   Using the Fehr-Schmidt Utility Function, Adam will choose to split the $20 with Bob, but why? Id. Adam understands that he and Bob had cooperated with one another to achieve the pot of $20. In the presence of the live-audience, the guilt of associated with keeping the $20, outweighs the utility he receives from keeping the $20. In this example, Adam receives a higher utility by choosing to be “fair,” splitting the earnings equally with Bob.

Understanding that individuals will act in a way that they deem fair, not solely in their own-material interest, allows policy-makers to take the next step in developing their economic incentive that will influence a larger group of agents. Let’s assume there is a policy-maker that is worried about the depletion of fish among the state’s local fisheries. To prevent further depletion of the fishery, the policy maker may introduce a fine that is used to incentivize those using the fishery to abide by regulations that are put into place to help save the fishery.  Rather than decreasing the rate of depletion, the fishery begins to deplete at a higher rate. Although the fine seems both rational and fair in the eyes of the rational actor model and Fehr-Schmidt utility function, what causes those individuals in the community to continue making the irrational decision of depleting their common resource pool? Id. The agents are concerned with more than the costs and benefits that are associated with the economic incentive. Id. There are three additional factors that influence the agent’s decisions that the rational actor model and Fehr-Schmidt utility function fail to include: moral disengagement, “bad news,” and control aversion. Bowles, Samuel, and Sandra Polanía-Reyes. 50.12 (2012): 368-425.

It is plausible that the agents who use the fisheries do not understand why the incentive by the policy-maker has been put in place. The agents may not understand the threat to their fisheries, so instead of taking the measures to prevent further depletion, they continue to over-fish. This is when the agents become morally disengaged; they feel that in the end, they are better off paying for the fine because by in one way or another they will pay for it anyway. Some individuals may feel that the incentive is “bad news,” in which the money the state receives from the fines does not help towards the prevention of depletion of their common resource pool, but is instead put towards the support of another issue that is on the policy-makers agenda. According to the theory of self-determination, some individuals will have acted on their own will to help prevent further depletion of the fishery before the introduction of the incentive. Id. In turn, the new regulations the agents must abide by make the individuals feel like they have to do something that they otherwise would have done anyway. Each of these three factors will negatively affect the agent’s social preferences by producing a categorical effect. Id. at 372. A categorical effect happens when the economic incentive introduced, crowds-out, or substitutes the agent’s social preferences for the economic incentive. There are ways however, to use economic incentives in order to gain a positive effect on the fishery problem.

By using the framing mechanism, the policy-maker can rearrange the proposed economic incentive to receive a marginal effect the agents that use the fishery. Id. at 374. When using the framing mechanism, the policy-maker can design the incentive to guide individuals to act with more appropriate behavior. In the last example, I said the policy maker would fine anyone who does not abide by the regulations when using the fishery. Instead the incentive can be framed as follow: By increasing taxes on fishing license, boat permits, and safety checks for those that use the fishery, we can better ensure that individuals in our community are abiding to the new regulations put in place to stop the depletion of the fishery; we can work together to better save our natural resources, ensure consistent economic usage of our fishery, and guarantee safer recreational use of the fishery for our younger generation. In doing so, we can expect more cooperation by the agents with the new fishery regulations because the correct information was provided to help the agents understand the mission of the incentive that provides benefits both socially and economically to the agents that use the fishery. The individuals are likely to change their social preferences in support of the saving of the fisheries because they are now morally engaged. The consequences of not following the incentive to the agent’s family and friends not being able to receive continued usage of the fishery for both economic and recreational benefits are now prevalent. The positive impact on the social preferences results in a marginal effect, where the incentive and social preferences of the agents work together as compliments to increase the protection their common pool resource. Id. at 373.

In addition to the framing mechanism, when using the fishery example, the policy maker can induce another marginal effect through the conformist mechanism. The conformist mechanism focuses on upgrading the preferences of the agents in the long run. Id. If the incentive that used when using the framing mechanism were to stay in place, the younger generation (generation X) will have greater social preferences than the previous generation (generation Y). Id. Generation X will successfully be able to observe the positive impact that incentive has had from a young age into adulthood. Id. Cooperation from generation Y and the increased benefits gained through cooperation will allow generation X to notice a crowding out effect in which their social preferences increase in coordination with the economic incentive. Id. at 374.

An alternate solution to public policy issues like the fishery example is offered through the work by authors Thomas Dietz, Elinor Ostrom, and Paul Stan in their article, “The Struggle to Govern Commons.” The author’s proposed the idea of self-governance, in which the agents in the community actively participate and become engaged in the policy that will be introduced to the community. Fehr, Ernst, and Klaus Schimdt. “A Theory of Fairness, Competition, and Cooperation.” The Quarterly Journal of Economics 114.3 (1999): 817-78. Web. 12 Dec. 2015. Since the community members collectively agree on the policy, the social-costs associated with breaking the policy outweigh are greater than any cost associated through a purely economic incentive.

In order to instill the cost of social pressures cognitively into the agents of the community, the agents need to first be presented with information that they can relate to. A national statistic that states the depletion of fisheries has eliminated 1% of fish species along with 2.5% jobs nationwide will barely affect the way people in the community look at the issue. Id. If the policy-maker were to use a statistic in the agent’s community that stated 34% of fish species in our species have become extinct, as a result 25% of individuals who were employed in the maritime industry have lost their job, that policy-maker would see a much larger increase in participation to help save the fishery. Id. After providing the agents with hometown examples of how their affecting their community, the agents need to meet to work out a set of rules they agree they can all abide by. Id. There will always be a one individual who will disagree with another individual when trying to negotiate the policy. To ensure compliance, it would beneficial to make an incremental system of warnings and fines for those who break the policy. A first time offender will receive a warning while a second time offender will receive a small fine. The fine will then increase after the second offense. Id. at 615.

To achieve a complete adaptive governance, the agents in the community may suggest that policy makers use money from those who broke the policy anyway or some other form of funding to create technologies that ensure the safety of the common pool resource. Returning to the issue of the fisheries, the policy maker make choose to invest in more cost guards that will ensure all boats meet regulation, all fisherman use proper tackle and are registered to fish the fishery. Id. at 614-6201.

After all rules, compliance measures, and sufficient technologies are in place, an agent in the community that decides to breaks the new policy will socially become an outlier. These individuals will be looked down upon because everyone in the community is now aware of the threats to their common pool of resources without proper cooperation of policy. The social pressure associated with the need to follow the policy, becomes much greater than the cost associate with trying to further take advantage of the common pool resource. Id. at 611-618.

In conclusion, the use of pure-economic incentives suggested by neoclassical economists is not the most viable option when deciding public policy. The complexity of the representative agent goes far beyond the rational actor model in which economists assume that all individuals act in their own interest. This idea is can be a great base for a starting point, but this idea alone will not achieve cooperation. Combining the theory behind the rational actor model with theories in the social sciences will allows us to develop models to create public policy that increase the benefits to a broader group of individuals.

 

Purposefully Struck

By: Liana Stinson

Batson, an African American, was indicted in the state of Kentucky on charges of “second-degree burglary and receipt of stolen goods.” Batson v. Kentucky, 476 U.S. 79, 82 (1986). The case proceeded to trial where the judge conducted voir dire excusing potential jurors for cause. Id. at 82. Then, the judge allowed both the defense and state to exercise their peremptory challenges. Id. at 82-83.

Of all the potential jurors, only four were African American. Id. at 83. The state used its peremptory challenges to get all four of those African American jurors stuck. Id. The jury was then only composed of white persons. Id. Before the newly-elected jury was sworn in, the defense moved to discharge the jury because the removal of all of those of African American descent violated Batson’s “Sixth and Fourteenth Amendments to a jury drawn from a cross section of the community, and under the Fourteenth Amendment to equal protection of the laws.” Id. The judge denied this motion reasoning that both the defense and state can utilize their peremptory challenges to “strike anybody they want to.” Id. As to the question of a jury drawn from a cross section of the community, the judge reasoned that that only applies to selection of the potential jurors themselves not selection of the actual jury. Id.

Batson was convicted on both counts, the burglary and the receipt of stolen goods. Id. Then on appeal, Batson urged that the state’s use of peremptory challenges was wrongful and displayed a “pattern” of discriminatory challenges. Id. at 83-84. The Supreme Court of Kentucky then affirmed the trial’s court’s ruling and reliance on Swain which held that the defendant “alleging lack of a fair cross section must demonstrate systematic exclusion of a group of jurors from the venire.” Id. at 84. Batson then appealed to the United States Supreme Court which granted certiorari. Id.

The Court first looked at the underlying principle of Swain which reasoned that a “State’s purposeful or deliberate denial to [African Americans] on account of race of participation as jurors in the administration of justice violates the Equal Protection Clause.” Id. However, the holding in Swain makes it a high burden for defendants to meet to prove “systematic exclusion.” That is why the Court reversed the reliance on Swain but affirmed the principle behind it. Id.

Since 1880, the Court has held that when members of a defendant’s particular race are purposefully excluded from a jury, the defendant is denied equal protection of the laws. Id. at 85. That decision was the first of many in the Court’s efforts to abolish discrimination in the selection of the jury. Id. In that, the Court reasoned that the Fourteenth Amendment was created to end governmental discrimination on the basis of race. Id. While a defendant does not have the right to a jury composed of all persons of his race, a defendant does have the right to a jury selected pursuant to nondiscriminatory criteria. Id. at 85-86.

“The equal Protection Clause guarantees the defendant that the State will not exclude member of his race form the jury venire on account of race, or on the false assumption that members of his race as a group are not qualified to serve as jurors.” Id. at 86.

Denying a defendant’s right to equal protection of the laws denies him of the protection that affording defendant’s a trial by jury is mean to protect. Id. The Court reasoned in Strauder that “[t]he very idea of a trial by jury is a body composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds.” Id. This provides a sense of security to defendants that the state cannot have use this power against them to make the trial unfair.

The Court ruled in this case that the defendant must first show that he is a member of a racial group that is capable of being singled out for differential treatment. Id. at 94. Then, the defendant can make a prima facie case by showing that members of his race have not been summoned for jury duty over a period of time which can show systematic discrimination. Id. The defendant can also establish a prima facie case by showing evidence of continued, unexplained absence of members of his race from the jury. Id. at 95.

The case of Batson v. Kentucky took place in 1986. The Court has been repeatedly striking down cases exactly like Batson since 1880. But my question is: how can this still be happening more than 100 years later? And when will it end?

Slavery was abolished in 1865. The first case to come before the Supreme Court of the United States where African American jurors were purposefully eliminated from the jury pool in 1880. The Court has had to consistently from then on strike down courts’ decisions in each state in which the state upheld the discrimination. In some areas of the nation in which are rural and uninhabited, it may be more difficult to obtain a fair jury selection pool from randomly selecting individuals from the area. However, peremptory challenges do not need a reason. So if there is one member of a protected class selected from a jury pool from a rural area, how can it be known that it is purposeful discrimination? How can it be known if it is not purposeful discrimination?

The fact that excluding jurors based on their race is still prevalent today amazes me. How can we not have moved past eliminating someone solely based on the color of their skin?