What Data Does – Debugging Real-life Procedures

Shortly before this video of a FutureLaw 2016 discussion was posted, I got an email why should we collect data in legal services. Jenny Montoya-Tansey, from Code for America, does a good job of explaining around the 18 minute mark.

She explains an app that helps people apply for food stamps, which creates data showing the funnel of applications, and where people drop out.  The biggest value of the data collection isn’t anything related to high technology; instead, the value is seeing how the system works and finding the problem areas.  The data allows the agencies to debug their real-life procedures of how they serve citizens.

For me, this explanation resonates with what we learned from the Kirwin Institute about implicit bias and systems thinking at our recent Ohio Legal Services Racial Equality Summit.  It also demonstrates how a simple, practical answer can be more effective than elaborate descriptions of potential.  In that spirit, I’ll save more discussion about both of those topics forother posts.

Procedural Justice and Tim Tyler

I’ve long thought that justice should be considered a goal in itself, that treating people fairly is an important part of society, regardless whether we can measure the outcomes of that justice.  People want to be treated fairly.  I’ve based those arguments only on the words in our nation’s founding documents and on political philosophy.

So I’m very excited to learn about the research by Tim Tyler and others to measure the importance of procedural fairness.  Yale Professor Tom Tyler’s large body of work demonstrates that people’s perception of how fairly they are treated by legal authorities matters; procedural justice has significant, long-term effects on people’s lives.

He contributes to this resource from the National Center for State Courts.  He mostly researches criminal law, but he has written about access to justice.  Here is also a good summary and a video.

The benefits of procedural justice that he discovers include long-term compliance, which may seem more appropriate for criminal justice at first, but it is also very important for decision-making processes for eviction.  If an unfair procedure makes future compliance less likely, then being screwed in housing court may make it less likely that a person complies with landlord/tenant law in the future.  How many tenants who trash an apartment before leaving were previously cheated out of a security deposit or unfairly evicted and have lost faith in finding fairness in the legal system?  Is a landlord more likely to illegally lock-out a tenant if they feel like they haven’t been heard in eviction court?  It’s easy to imagine how eviction courts that are experienced as unfair could start a vicious cycle.

Tyler identifies four main aspects of procedural fairness, and claims these four factors will determine whether a procedure is determined to be fair.

  1. Voice – whether the person can tell their story and participate (actually, voice isn’t itself a factor in procedural fairness, but it influences all three of the other factors)
  2. Neutrality – whether the decision-maker is perceived to be neutral
  3. Respect – whether the person is treated with respect
  4. Trust – whether the person trusts the decision-maker and others

We need to bring Tom Tyler’s research into eviction courts.  That starts with determining ways to measure justice, not just economic outcomes for some participants.

For an interesting historic take on how fairness is viewed, here is a Professor Ian Morris lecture at the London School of Economics.

Laudato Si & Calling Things By Their Name

In his encyclical On The Care of Our Common Home, Pope Francis addresses climate change and inequality.  He also makes a call for broad research effort that invites the participation of all affected:

135. Certainly, these issues require constant attention and a concern for their ethical implications. A broad, responsible scientific and social debate needs to take place, one capable of considering all the available information and of calling things by their name. It sometimes happens that complete information is not put on the table; a selection is made on the basis of particular interests, be they politico-economic or ideological. This makes it difficult to reach a balanced and prudent judgement on different questions, one which takes into account all the pertinent variables. Discussions are needed in which all those directly or indirectly affected (farmers, consumers, civil authorities, scientists, seed producers, people living near fumigated fields, and others) can make known their problems and concerns, and have access to adequate and reliable information in order to make decisions for the common good, present and future. This is a complex environmental issue; it calls for a comprehensive approach which would require, at the very least, greater efforts to finance various lines of independent, interdisciplinary research capable of shedding new light on the problem.


The Case for Research

Ta-Nehisi Coates made a very convincing case for reparations in his 2014 article for the Atlantic, but his only policy suggestion was support for HR 40, sponsored by John Conyers Jr. to appoint a commission to examine slavery and our systemic racism and recommend remedies.

But The Case For Reparations also argues for a more personal examination, a participatory reckoning:

What I’m talking about is more than recompense for past injustices—more than a handout, a payoff, hush money, or a reluctant bribe. What I’m talking about is a national reckoning that would lead to spiritual renewal. Reparations would mean the end of scarfing hot dogs on the Fourth of July while denying the facts of our heritage. Reparations would mean the end of yelling “patriotism” while waving a Confederate flag. Reparations would mean a revolution of the American consciousness, a reconciling of our self-image as the great democratizer with the facts of our history.

A quick timeline of inequality

A simple understanding of the timeline of the oppression of African-Americans is central to any understanding of reparations, or how to fix our country.  Ta-Nehisi Coates summarizes it recently:

To briefly restate it, from 1619 until at least the late 1960s, American institutions, businesses, associations, and governments—federal, state, and local—repeatedly plundered black communities. Their methods included everything from land-theft, to red-lining, to disenfranchisement, to convict-lease labor, to lynching, to enslavement, to the vending of children. So large was this plunder that America, as we know it today, is simply unimaginable without it. Its great universities were founded on it. Its early economy was built by it. Its suburbs were financed by it. Its deadliest war was the result of it.

So in the sixties, black people had less money because of explicit state-led discrimination.   That gap in wealth would linger over generations in any circumstances:

But if you add that generational weatlth gap to our particular circumstances, to new suburban development patterns, where neighborhood segregation turns into fragmented taxation, to the separation of low-income areas from manufacturing employment, and to a criminal justice system that allows lots of racially-biased discretion at various points to create vast racial disparities in history’s largest prison system, then that explains how the centuries of racial oppresion still affect us after “so long”.

Strong Towns & The Damage Done

Suburbanization is the main tool that we use to create and maintain segregation, if we can’t do it explicitly in the law.  One of the best chroniclers of the high cost we are paying for suburbanization is Strong Towns, an organization run by Chuck Marohn dedicated to creating strong cities, towns and neighborhoods.  Their blog and podcast are both worth following.

Strong Towns argues that our current development patterns are bankrupting our country, without focusing on causes of the problems like racism.  Even in this podcast episode Designed to Decline about Ferguson, race is ignored in the explanation of how some areas of our regions were left behind.

This is a process that left behind anybody who didn’t have the assets or wealth to move to the new suburbs when the process started.  The fact that one group of people didn’t have the assets or wealth at that time is a separate issue.

Form Complaints to Sue, But No Form Answer For You

Most of the courts in my service area have form Complaints for landlords to evict.  Most of these complaints have a “second cause” included, which means the landlord is suing for money in addition to get possession of the home back.  That means a tenant being evicted must respond with a written Answer.  If they don’t, then they won’t even get notice about the hearing where the landlord gets to say how much the tenant owes.

But none of these courts have a form Answer to respond to the form Complaint.

Why do courts provide legal documents to the party that is far more likely to be represented by a lawyer?  And nothing to defendants, forced into court without any help and facing such harsh consequences if they don’t respond with the form you don’t provide?


Imagining legal structures for all: Sustainable Economies Law Center

My newfound heroes are Janelle Orsi and the Sustainable Economies Law Center.  Every day I see the need for more lawyers to defend, to help people at least maintain what they have.  But we also need creative lawyers to build the alternatives, the legal structures that allow people to collaborate and meet their own needs.

Lawyers, social scientists, historians, accountants, dreamers, writers, doers and, for that matter, all people, need to be involved in designing the protective structures that will steward the resources, tools, and information on which we rely to survive.

From STIR.

But I also really appreciate how Janelle Orsi recognizes that this is not work for lawyers alone – we all have a role in creating a justice system that works for all of us.

Open Law Puzzle: ABA Summit on Innovations in Law

I was invited to the American Bar Association’s National Summit for Innovations in Legal Services after writing these comments about the need for open data about the law.  I also wrote this about open data right before the Summit.  I was hoping to hear a lot about the better need for data about our courts, since most other innovations right now are revolutions in using, collecting and analyzing data.

I wasn’t disappointed.  There was a lot of talk about the need for better access to data about the law at the National Summit for Innovations in Legal Services. Access to more data would allow scholars to study how the law works, legal aid lawyers to serve more people in less time with less resources, private lawyers to demonstrate a Return on Investment, pro se clients some guidance in the laybringh of law, innoveators the foundation to create apps to open up the law…DataABAFuturessmall

Zoom in on a full-size picture at https://imgur.com/LYSDNeQ

Continue reading Open Law Puzzle: ABA Summit on Innovations in Law

Professor Cashin & Learning and Living in DC

Georgetown Law Professor Sheryl Cashin, and her work, especially Localism, Self-interest, & the Tyranny of the Favored, introduced me to the problems of our local government systems and the fragmented metropolis.  The article discusses the work of Richard Briffault and Kenneth Jackson’s Crabgrass Frontier.

I’ve been concerned about suburban sprawl since high school.  I’m from a Western Pennsylvania farm town that was bulldozed into a Pittsburgh suburb as I grew up.  I saw the destruction wrought by cars and traffic, in term of the lives of friends and favorite places.  I read about the environmental damage and watched our country go to war for oil in 8th grade.  I understood the policies that invested in this destructive development.

But it wasn’t until I moved to Washington, DC for law school and started learning from Professor Cashin that I understood the other side of the devastation coin – the communities left behind by sprawl.   Continue reading Professor Cashin & Learning and Living in DC