Novojustice

Charles Wheelan on Salon:

“Any serious talk of pragmatism and compromise in American politics usually ends with some nettlesome questions: What about the social issues? What about abortion? What about gun control? These are issues on which reasonable people disagree passionately. Anyone who tells you that there is a “right” answer on abortion has not spent much time thinking about the issue or lacks the empathy to appreciate how other people think about it. Americans’ views on these issues tend to be theological — literally in many cases. No amount of arguing or data gathering is going to change anyone’s core values; we’ve dug our intellectual trenches and hunkered down.

So how can a party built around the idea of pragmatism and compromise deal with issues whose defining feature is a deep and conflicting vision of what is right and wrong?

With pragmatism and compromise. Here is the fundamental insight: Reasonable people disagree about whether or not abortion should be illegal; but no reasonable person thinks that abortion is a good thing.

Reasonable people disagree about how readily guns should be available and what the requirements for purchase ought to be; but no reasonable person wants guns to fall into the hands of criminals or those who are dangerously mentally ill.

There are plenty of other social issues: drug policy, stem cell research, flag burning, the death penalty, and so on. In time, the Centrist Party will have to wrestle with them all. For now, abortion and guns will do a fine job of illustrating how the Centrist Party can bring people together on issues that normally drive them apart. The key to diffusing these ideologically charged social issues is refocusing them on two more pragmatic questions: 1) What is the real harm to society associated with this activity? 2) How can we minimize that harm? The answers to those questions will dictate Centrist policy. Is that going to make everybody happy? Of course not. But the purpose of the Centrist Party is not to make everybody happy, particularly the political poles. The purpose of the Centrist Party is to craft an agenda that a large swathe of underrepresented moderate American voters can get behind. On the major social issues, that’s entirely possible.”

Great reading for anyone excited about ODR: http://register.consilium.europa.eu/pdf/en/12/pe00/pe00080.en12.pdf

It reads, in part:

"The internal market is a reality for consumers in their daily lives, when they travel, make purchases and make payments. Consumers are key players in the internal market and should therefore be at its heart. The digital dimension of the internal market is becoming vital for both consumers and traders. Consumers increasingly make purchases online and an increasing number of traders sell online. Consumers and traders should feel confident in carrying out transactions online so it is essential to dismantle existing barriers and to boost consumer confidence. The availability of reliable and efficient online dispute resolution (ODR) could greatly help achieve this goal.

Being able to seek easy and low-cost dispute resolution can boost consumers’ and traders’ confidence in the digital Single Market. Consumers and traders, however, still face barriers to finding out-of-court solutions in particular to their disputes arising from cross-border online transactions. Thus, such disputes currently are often left unresolved.

ODR offers a simple, efficient, fast and low-cost out-of-court solution to disputes arising from online transactions. However, there is currently a lack of mechanisms which allow consumers and traders to resolve such disputes through electronic means; this leads to consumer detriment, acts as a barrier, in particular, to cross-border online transactions, and creates an uneven playing field for traders, and thus hampers the overall development of online commerce.

This Regulation should apply to the out-of-court resolution of disputes initiated by consumers resident in the Union against traders established in the Union which are covered by Directive 2013/…/EU+ of the European Parliament and of the Council of …++ on alternative dispute resolution for consumer disputes (Directive on consumer ADR)

In order to ensure that the ODR platform can also be used for ADR procedures which allow traders to submit complaints against consumers, this Regulation should also apply to the out-of-court resolution of disputes initiated by traders against consumers where the relevant ADR procedures are offered by ADR entities listed in accordance with Article 20(2) of Directive 2013/…/EU+. The application of this Regulation to such disputes should not impose any obligation on Member States to ensure that the ADR entities offer such procedures.

Although in particular consumers and traders carrying out cross-border online transactions will benefit from the ODR platform, this Regulation should also apply to domestic online transactions in order to allow for a true level playing field in the area of online commerce."

http://register.consilium.europa.eu/pdf/en/12/pe00/pe00080.en12.pdf

William Glaberson, NYT:

“Court delays of as long as five years in felony cases have pushed the Bronx criminal courts into the bottom ranks of courts nationally, reaching what even the judges call crisis levels.

But that backlog has a less-noted companion. The courts are so dysfunctional that those accused of minor offenses — misdemeanors like trespassing or driving with a suspended license — have all but lost the fundamental guarantee of the American legal system: the right to a trial.

The case of Mr. Zapata would usually be overlooked in the flood of 50,000 Bronx misdemeanor filings a year. But he was part of a special legal-defense effort led by the Bronx Defenders, which provides legal representation to poor Bronx residents charged with crimes. That effort tested the borough’s courts by trying to bring 54 misdemeanor marijuana possession cases to trial for clients who had been arrested as part of New York City’s controversial stop-and-frisk program and wanted to fight the charges.

Instead, these defendants got a through-the-looking glass criminal justice system where charges that were punishable by a maximum sentence of three months in jail could take many times that just winding toward an always elusive trial. And when the increasingly elastic speedy-trial rules of the Bronx were finally stretched too far by delay after delay, prosecutors would sometimes drop the cases as if they were never quite worth their time anyway…”

Jacquelyn Smith, Fortune Magazine, 3/22/13:

‘Using the same methodology, CareerBliss also compiled a gloomier list: The Unhappiest Jobs in America.

If you happen to be a customer service associate, marketing coordinator or legal assistant and you’re constantly down in the dumps—you’re not alone.

These are three of the nation’s unhappiest professions, according to CareerBliss.

But associate attorney is the unhappiest of all, with an index score of 2.89 out of 5.

“Associate attorneys stated they felt most unhappy with their company culture,” Golledge says. “In many cases, law firms are conducted in a structured environment that is heavily centered on billable hours. It may take several years for an associate attorney to rise to the rank of partner. People in this position rated the way they work and the rewards they receive lower than any other industry.”’

Ouch.  I think I can see why law school applications are dropping.

Solicitors Journal, 19 March 2013:

“Professor Richard Susskind, the Lord Chief Justice’s IT adviser, has attacked the Civil Justice Council for “failing to even look into” the potential of online dispute resolution schemes.

Speaking at the Westminster Legal Policy Forum this morning, Susskind said while many judges were outstanding, they were let down by “antediluvian” court processes.

“We have to think whether, when dealing with disputes, we need to physically converge in courts,” he said.

“We should at least be exploring the use of technology in dispute resolution.”

He gave as an example of "irrational rejectionism" the Civil Justice Council’s failure to agree with him that it should "even look into the potential" of online dispute resolution.

Susskind said that of the millions of disputes arising out of transactions on ebay, only a tiny number were not resolved through online dispute resolution. He mentioned California-based online dispute resolution site Modria as one example of what could be done…”

http://www.solicitorsjournal.com/node/15740

Stephen Harper, March 11, 2013, Chronicle of Higher Education: 

“The Law School Admission Council recently reported that applications were heading toward a 30-year low, reflecting, as a New York Times article put it, "increased concern over soaring tuition, crushing student debt, and diminishing prospects of lucrative employment upon graduation." Since 2004 the number of law-school applicants has dropped from almost 100,000 to 54,000.

Good thing, too. That loud pop you’re hearing is the bursting of the law bubble—firms, schools, and disillusioned lawyers paying for decades of greed and grandiosity. The bubble grew from a combination ofU.S. News-driven ranking mania, law schools’ insatiable hunger for growth, and huge law firms’ obsession with profit above all else. Like the dot-com, real-estate, and financial bubbles that preceded it, the law bubble is bursting painfully. But now is the time to consider the causes, take steps to soften the impact, and figure out how to keep it from happening again.

The popular explanation for the recent application plummet is that information about the profession’s darker side, including the recession’s exacerbation of the attorney glut, has finally started reaching prospective law students. Let’s hope so. Marginal candidates and those choosing law school by default might be opting out, and the law-school market may finally be heading toward self-correction.

Still, the bubble has been huge, and the correction will need to be, too. There were 68,000 applicants to the fall of 2012 entering class, while the total number of new, full-time jobs requiring a law degree is 25,000 a year and falling. The onset of the recession drove more students to consider law school as a place to wait out the economic collapse. The number of June 2009 and 2010 admissions tests had surged to almost 33,000. To put that in historical perspective, the June 1987 testing session drew just under 19,000 students. The reduction in the number of LSAT takers in the summer of 2011 to 27,000 merely brought it back to 2008 levels.

For full-time, long-term jobs that require passing the bar, only a dozen law schools out of 200 reported employment rates exceeding 80 percent nine months after graduation. Considering the investment in money, time, and brainpower that law school requires (not to mention the promises that law schools make to prospective students), something’s gotta give, and maybe it finally has…

Along with their degrees and dubious job prospects, 85 percent of 2010 graduates from American Bar Association-accredited law schools carried an average debt load of almost $100,000. Average law-school debt for the Class of 2011 broke six figures, and that number has been growing in tandem with unemployment rates for new graduates. Even if a career in law turns out to be the right path, the financial burden can be staggering. If the law ends up being the wrong path, then debt becomes a lifelong Sisyphean burden.

If prospective lawyers allow themselves to be dazzled by headlines about the wealthiest attorneys, like the partner who recently left one big firm to join another where he’d earn a reported $5-million a year, they’re making a mistake. Nine months after graduation, members of the law-school Class of 2009 fortunate enough to have any full-time job had a median salary of $72,000, comparable in buying power to the $50,000 median salary for new lawyers in 1990.

That may not sound bad, but even that number is misleadingly high, as it masks a skewed income distribution. Each year 10- to 15-percent of graduates get jobs in big law firms, where the starting salary can be as high as $160,000. But those firms constitute only a tiny, and shrinking, slice of the profession…

At a moment when psychologists, sociologists, and even national leaders are beginning to recognize the importance of well-being and morale to health, worker productivity, and society as a whole, lawyers suffer from disproportionately high rates of depression, alcoholism, and substance abuse. Recent surveys report that six out of 10 lawyers who have been practicing for 10 years or more say they advise young people to avoid law school. As new lawyers scramble for spots in the nation’s premier firms, some of those venerable legal establishments are failing, and many others have more problems than they realize or are willing to admit.”

Ethan Bronner, NYTimes.com:

“Law school applications are headed for a 30-year low, reflecting increased concern over soaring tuition, crushing student debt and diminishing prospects of lucrative employment upon graduation.

As of this month, there were 30,000 applicants to law schools for the fall, a 20 percent decrease from the same time last year and a 38 percent decline from 2010, according to the Law School Admission Council. Of some 200 law schools nationwide, only 4 have seen increases in applications this year. In 2004 there were 100,000 applicants to law schools; this year there are likely to be 54,000.

Such startling numbers have plunged law school administrations into soul-searching debate about the future of legal education and the profession over all.

“We are going through a revolution in law with a time bomb on our admissions books,” said William D. Henderson, a professor of law at Indiana University, who has written extensively on the issue. “Thirty years ago if you were looking to get on the escalator to upward mobility, you went to business or law school. Today, the law school escalator is broken.”

Responding to the new environment, schools are planning cutbacks and accepting students they would not have admitted before.

A few schools, like the Vermont Law School, have startedlayoffs and buyouts of staff. Others, like at the University of Illinois, have offered across-the-board tuition discounts to keep up enrollments. Brian Leiter of the University of Chicago Law School, who runs a blog on the topic, said he expected as many as 10 schools to close over the coming decade, and half to three-quarters of all schools to reduce class size, faculty and staff.

After the normal dropout of some applicants, the number of those matriculating in the fall will be about 38,000, the lowest since 1977, when there were two dozen fewer law schools, according to Brian Z. Tamanaha of Washington University Law School, the author of “Failing Law Schools.”

The drop in applications is widely viewed as directly linked to perceptions of the declining job market. Many of the reasons that law jobs are disappearing are similar to those for disruptions in other knowledge-based professions, namely the growth of the Internet. Research is faster and easier, requiring fewer lawyers, and is being outsourced to less expensive locales, including West Virginia and overseas.

In addition, legal forms are now available online and require training well below a lawyer’s to fill them out.”

This is part of the reason why online dispute resolution will soon be taking over!

Michael A. Jacobs and Robert E. Weyman, Reed Smith:

“Taxpayers under audit and facing an assessment in excess of $1 million may be able to participate in mediation to expedite resolution of their case as part of a new Department pilot program. The timeframe for requesting to participate in the mediation program is limited, so taxpayers should be prepared to make the request prior to their exit conference.

Responding to taxpayer concerns that the appeal process in Massachusetts can take several years, the Department finalized guidance regarding its new administrative early mediation program. The pilot program is intended to resolve disputes within four months after the finalization of an audit through the use of mediation.

In order for a case to head to mediation, both the taxpayer and the Department must agree that mediation is appropriate—otherwise, standard appeal rules apply. While the administrative guidance lays out broad guidelines for the types of cases that the Department will deem appropriate for mediation, how they will be applied in practice remains to be seen. Our view is that the program could be extremely popular with taxpayers if the Department is open to considering a wide variety of cases for mediation.

Takeaways

• Mediation must be agreed to prior to the issuance of the Notice of Intent to Assess by the Department
• The exit interview is probably the best time to make the request
• Mediation must be complete within four months absent unusual circumstances
• Mediation must resolve all issues in the assessment; taxpayers cannot request mediation for only some issues in the assessment and appeal the rest
• The program is available for proposed assessments in excess of $1 million where the issues and facts are fully developed
• The Department’s goal is for the pilot program to include six to ten cases. Our understanding is that slots are still available in the pilot program.
• If mediation is unsuccessful, the Department has put protections in place to prevent taxpayer’s (and the Department’s) submissions to the mediator from becoming discoverable in later litigation”

I think the IRS is an ideal candidate for ODR.  Someone has to make this connection!

Mike Aldax, SF Examiner:

“Once upon a crime in San Francisco, an underage college student caught shoplifting a bottle of vodka from a liquor store ended up in the same courtroom with much more hardened criminals.

The shopkeeper who was robbed would see little in the way of justice or restitution. That’s because the judge, overwhelmed with more serious criminal cases, likely would send the teenage thief home with barely a warning.

Instead, the real punishment was reserved for the taxpayers, at a cost of $1,500 for that shoplifter’s single court appearance. That money helped pay for judges, lawyers, court clerks, sheriff’s deputies and so forth. Such costs add up when you consider that San Francisco prosecutors handle upward of 5,000 misdemeanor cases annually.

“It just doesn’t make sense,” District Attorney George Gascón said in a recent interview.

But this scenario is becoming a thing of the past due to the rapidly expanding neighborhood court system that Gascón implemented when he took office.

That program, in which alleged perpetrators stand before regular people instead of judges, is not only 80 percent cheaper than the conventional prosecutorial approach to such cases, but Gascón believes it also is a more meaningful way to mete out justice to low-level offenders.

• 10 neighborhood courts, one for each police district
• 200 volunteer citizens acting as “panelists,” i.e., informal judges
• 600 cases transferred by prosecutors this year from misdemeanor court to the neighborhood courts
• 5,000 cases handled by prosecutors in a year in misdemeanor court
• $300 cost for a neighborhood court case
• $1500 cost for a misdemeanor court case, not including a jury trial”

Great model for other cities.  This is what the Community Court does, but online!

Greg Lucas, Capitol Weekly, 1/22/13:

“Resolving a divorce, a custody tussle, a contract dispute, a landlord tenant fight, an unpaid debt or any number of multimillion-dollar or small claims civil issues takes longer and costs more than it used to.

And it’ll get costlier and even more time-consuming, experts say, because of the steady diet of state budget cuts force fed to the courts in California, the nation’s largest judicial system. Since June of 2009, the state general fund’s share of the court’s $3.1 billion budget has fallen from 56 percent to 20 percent.

“Devastating,” is how Chief Justice Tani Cantil-Sakauye, describes the impact of the five years of reductions totaling $1.2 billion. The chief justice echoes many of her colleagues on the bench – and those who appear before them.

The burden of the cuts appears to fall hardest on Californians who might not have the means to hire a lawyer. Self-help centers designed to assist them have been curtailed or eliminated.

Increasingly, Californians are spending more time and expense commuting to a court and waiting there for service, all the while being absent from work.”…

Los Angeles announced in November the shuttering of 10 regional courthouses including those in Malibu, Pomona, San Pedro and Avalon on Catalina Island.

Earlier in 2012, the state’s largest county announced closing 56 courtrooms by June 30 to close a $30 million operating hole.

The result – just like in other parts of the state – is longer waits, delayed trials and furloughed or laid off court workers.”

These cuts are devastating.  It’s unclear what the social impact from these closings will be, but it’s fair to guess that it’s going to be pretty dramatic.