Monday, March 31, 2014

Civil Resistance Law and Constructive Program Law

Civil Resistance is... well... civil.  As in, non-violent, courteous, by citizens, and in pursuit of just ends.  It is a broad term used to define a wide range of obstructive activities that build support for and participation in the movement.  The goals can be anything from trying to change the way the general public behaves, trying to change an unjust law, to upholding social norms against usurpers.  At its heart, Civil Resistance is "non-cooperation with evil" and can be done daily in our everyday life with small acts of resistance.  Resistance can take many forms, I consider deviating from problematic norms in our daily lives to be just as important as the larger more confrontational acts.  More confrontational forms include Civil Disobedience and Satyagraha.  Historically, Civil Resistance is far more effective at producing good outcomes for society.  (Check out  the book Why Civil Resistance Works: The Strategic Logic of Nonviolent Conflict by Erica Chenoweth and Maria J. Stephan if you don't believe me)
A related topic is Constructive Program, which I think of as "cooperative with good," and which is deeply interconnected with Civil Resistance.  It involves building just ways of life from the ground up, building the community's capacity, and building just institutions.  I have been thinking quite a bit about how this would work with the housing and the campaign finance issues, which I will probably write about later.  

For the past few months I have been trying to figure out how to use create a private law practice that supports just causes and stays true to my activist roots.  I want to call this practicing "Civil Resistance Law" and "Constructive Program Law."  So to coin the terms, I am going to try to define them.
In this definition, I do not think that only an attorney could or should do this work, I think it would be a collective process with the group.  Anyway, here is my first attempt at defining what an attorney practicing Civil Resistance Law and Constructive Program Law would do.  After reviewing this, I ended up categorizing this list based on the steps for successful movements that Martin Luther King developed.

1. Investigation!  Understanding the situation we find ourselves in is essential to finding a workable strategy to win changes.
  • Research and describe the legal landscape the group and/or movement finds itself in, focusing on the topics that people want to change.  Find cracks and opportunities in the law that the movement can leverage.
  • Research and analyze existing institutions
  • Research the political landscape and help develop an understanding of how it fits into the legal landscape.  
  • Help research the history of this issue and look for insights.  
  • Research alternatives to what exists. 
2. Educate public, build support, and make a personal commitment.

  • Help the group find resources.
  • Distill the legal issues into easily understood explanations and parables.

3. Develop strategies based on the investigation.
  • Imagine what changes to the law would bring about the group's goals, and what the details of the law would be.   
  • Consider all of the findings of the investigation and help develop a strategy to achieve the goals of the group.
  • Develop campaigns, campaign goals, and campaign sequence to achieve larger strategic goals.
4. Discuss options with opponents and negotiate
  • Help develop strategies to build support and organizational capacity.
  • Develop a negotiation strategy and fit it into the larger strategy.
  • Develop and provide access to the system and officials.
  • Help negotiate.
5. When negotiations inevitably break down
  • Help develop escalation tactics.
  • If the group wants to break the law, advise them what will happen if they do.  Note that legal ethics require that an attorney not advise clients to break the law, but may describe what will happen if they do.  The only exception to this is where the client wants to make a good faith challenge to the validity of the law (California Bar Professional Ethics Rule 3-210).  So ensuring compliance with ethics rules is something to always be aware of.
  • Provide legal support for the group when they are arrested, and connect them with additional attorneys who can help.     
6. Reconciliation and change implementation

  • Help develop a face-saving out for the opponent.  There are lots of advantages to this strategy, which I will probably discuss in a later post.
  • Facilitate an agreement and reconciliation between the sides.  There will often need to be a lasting relationship, so an us v them mentality is not helpful.  
  • Helping draft the legal changes and legal requirements.
  • Ensure that enforcement options exist to enforce the changes and monitor compliance.

7.  Reflect and Repeat!

  • Reflect on the campaign and how it worked.
  • Go back to step one and start investigating for another campaign
  • Help revise longterm strategy as necessary.  
I also think that the principles of Rebellious Lawyering are essential to this kind of practice of law, such as the emphasis on community leadership and problem-solving.   Anyway, that is what I have thought of so far, let me know what you think!

Friday, March 7, 2014

The Small Acts of Kindness and Resistance

I want to reiterate what I wrote in 2008 in my The Small Things in Life post, about the small things in life being very important.  Small acts of kindness are the lifeblood of society and really make it work.  Without those acts of kindness, I think things would completely fall apart.  I want to see movements really start to use this hidden power, to do small acts of kindness as a central part of the process of changing society.

The Roman Empire was taken over by the Christians for many reasons, but I think the emphasis of early Christianity on being kind and giving to all was one of the main factors.  They helped plague victims when no one else would.  They lifted up the poor and helped those had lost their livelihoods.  Indeed, they became a poor people's movement and really disrupted the traditional society.  The only way the state could overcome them was to embrace them and set up a strict hierarchy (Constantine... sigh).  

I can only imagine how despairing the situation of early Christians must have seemed.  They were routinely tortured and crucified, killed because they persisted in living a different way.  The Roman Empire spanned the entire world they knew about, and there was no escaping it.  It must have seemed indomitable.  Yet they still continued doing those small acts of kindness and resistance.  The love and kindness they showed to the world was so contrary to the political status quo, and so surprisingly disruptive.  The Roman legal system was focused on property and not on people, prioritizing protection of property.  It was often up to the local authorities whether or not to persecute Christians, and they often did so in response to agitation from the public.  The public did not like the Christian emphasis on personal religion and their boycott of the pagan rituals that the public saw as essential to maintain the order of the universe.  As time went on though, Christians gained a reputation for being kind and giving.  I suspect killing Christians started to cause some cognitive dissonance among the public, should they kill people who act so kindly to strangers?  

Another fascinating aspect of this is how the official punishment was undermined as an effective tool.  Death was the usual punishment for righteous Christians, but more and more kept showing up to be killed.  The Roman magistrates even had to make a distinction between solicited martyrs and persecuted martyrs... they refused to kill solicited martyrs.  Can you imagine our court system refusing to punish people who willingly admit they broke the law?  That would be quite an interesting situation.  I think the number of people who were willing to step up and be killed shows both how powerful the message of kindness and love was and how deeply it was a resistance to the status quo.  Love and anger are the major emotional motivators, and early Christians figured out a way to combine love for each other with resistance to an unjust society.  It is an amazing feat.  They were so effective that they took over the empire.  All from the power of small individual acts and a willingness to suffer for their ideals.    

There is a great power in small acts.  With time they will win over a hostile public, and I can think of no other force that can change the inertia of a society so effectively.  

Friday, February 28, 2014

Campaign Finance and Kai Arrested at the Supreme Court

I'm going to start this blog up again.  I'm planning on blogging on a mix of topics, including legal analysis and my dreams for ways to build better institutions.  I would like to start off by talking about campaign finance and a friend of mine who was arrested for speaking during the oral argument for the Supreme Court case McCutcheon v FEC.  This case involves a conservative businessman from Alabama suing the FEC to try to lift restrictions on his ability to give money to political candidates and parties.  Here is an article on the case and its effects.  I am hopeful that the Supreme Court will not overturn 40 years of precedent, but it is a possibility.  I'm of the opinion that the system is already so broken that, while this would certainly be a step in the wrong direction and have an impact, the overall tenor of the system would be the same... money controls politics.

Anyway, my friend, Kai, was arrested for speaking during court. Here is a Washington Post article on it.  Here is the video of him, a video that is also not allowed to have been taken in the court.  There is a real problem in our society when you are arrested for speaking out of turn but you can legally bribe politicians.  We are a part of 99Rise, which is a movement of people against government corruption.

I have been thinking about the social system of campaigns and campaign finance, and I wish there was a way to change it that did not undermine first amendment rights.  I disagree with the effect Citizen's United has had, it has extended the reach of big money.  And at the same time I would rather expand the right to free speech and change the campaign system in another way that limits how actors behave than do a frontal assault on the logic of Citizen's United and other free speech.  Attacking free speech is a slippery slope, the 1920s saw ridiculous restrictions on speech that I would never want to see happen again.

Just to be clear, I do not think money is speech.  The conduct of spending money may have speech dimensions, but I think it is more akin to commerce than speech.  I think we should consider how we can put restrictions on the flow of money using the commerce clause and in contracts law in such a way that it would be hard to claim that it limits speech.  Hopefully more ideas on how to do that later.

Sunday, April 7, 2013

The Characteristics and Effects of Extractive and Inclusive Institutions

This is a paper I wrote for the class "Political Economy of the Law" examining institutions.  

The Characteristics and Effects of Extractive and Inclusive Institutions
Institutions have a substantial impact on the way societies develop and on their long-term fortunes.[1]  To try to change society, attention should be given to the institutions that exist at every level of our society.  Institutions include both organized structures enshrined in law as well as wide-spread practices that dominate areas of a society’s way of life.  Constructing new institutions and reforming existing institutions is a difficult and complicated process.  Understanding the effect that the quality of institutions has on society is essential in determining how to best undertake the task of changing a society’s institutions.  The concept of extractive institutions has been used to describe the quality of institutions and analyze their impact on the economic fortunes of different countries.  This paper explores the concept of extractive institutions and the continuum between extractive and inclusive institutions.  There has been considerable investigation into extractive institutional effects on the economic structure and comparatively less on the effect on a society’s culture.  This paper attempts to broaden the analysis to include cultural effects to get a more holistic view of the situation.

The Characteristics of Extractive Institutions and Their Effects
At their core extractive institutions are predatory.  They have the effect of enriching an elite by extracting resources from another group, the target group.  The system of slavery that existed in the United States before the Civil War is an example of this kind of institution taken to the extreme.  The labor and wealth produced by slaves went entirely to the slave masters and slaves lived in extreme poverty under torturous conditions.  Additionally, the white population in general benefited from cheap production and cheap goods.  Present day extractive institutions do not usually compel forced labor and keep people in bondage the way slavery did.  The American prison system and its labor practices are an exception to this, preying upon prisoners through the exception to the 13th amendment and minimum wage laws.  In the federal prison system, able-bodied inmates are required to work for a very low wage.[2]  The effect of this extractive system is to concentrate the wealth produced by prisoners in the hands of private prison companies, the prison system, and the companies that prison labor is farmed out to. 
Most present day extractive institutions are not like the prison system, though.  They manage to gain the agreement of their prey through monopolizing areas of the common way of life.  The property rental institution is one such system, where the renters agree to pay for the right to use a property for a certain period of time.  Landlords can accrue large profits from simply owning title to property.  While landlords do have the responsibility to repair and manage their property, this system still has the hallmark of extracting wealth from one group and concentrating it in the hands of another.  Landlords structure their business so they pay mortgages with rents, a system where the renter is essentially paying for the landlord to own the property.
Extractive institutions develop and perpetuate hierarchies and inequality.  For example, the landlord has ultimate control over their property and how the renter uses it just as the prison guard has control over the ebb and flow of life from the prisoner.  Historically, extractive institutions were heavily employed by European countries in their colonies, with the exception of settler-colonies.  Slavery was one such institution, as was the plantation, and extractive taxes regimes.  The goal of these institutions was to increase the profits of the colonizer and send wealth back to the colonial powers.  The Europeans often took over existing ruling institutions and tax and tribute systems and created ones where it suited their interests to further this goal.[3]  Europeans placed themselves at the top of the hierarchy and created a mythology to justify and explain their “right” to rule.
High levels of economic inequality tend to develop in societies dominated by extractive institutions.  This can be seen in the Caribbean, where colonies were set up to produce sugar through slavery and plantations.  A small European elite ran the plantations while the mostly African slaves worked the land, and the elite retained all the profits.  Those countries mostly remain severely unequal today.[4]  It makes perfect sense that extractive institutions produce inequity because they tend to sequester wealth in the hand of the few and remove that wealth from the rest of the population.  Over time, more wealth is concentrated and the situation of the majority of the population becomes more and more desperate.
Because the elite profit so much from extractive systems, they try to strengthen them and fiercely protect them when they come under threat.  This is another feature of extractive institutions; the elite perpetuate and protect the system over objections and attempts at reformation.[5]  Many former colonies maintain extractive institutions because the elite have managed to resist reforms.  The history of the United States is a testament to how extractive institutions can preserve and even reincarnate themselves.  When slavery was abolished, a penal system was developed that essentially made slaves out of the inmates in the South.  Jim Crow laws restricted the rights of African-Americans to maintain an extractive hierarchy.  Share-cropping systems kept African-American farmers in a perpetual state of poverty while the owner of the farmland profited immensely.  After the fall of Jim Crow and the successes of the Civil Rights Movement, the penal system again became a way to maintain a racial hierarchy.  The prison population started ballooning in 1980 and continues to increase today.[6]  Entrenched institutions have way of being reborn precisely because there is an elite invested in recreating the benefits of a system that has fallen.
In the long run, however, extractive institutions hurt growth and the economy.  According to Daron Acemoglu in his article Root Causes, extractive institutions have historically hindered growth by preventing investment and innovation.  Acemoglu notes the pattern of the elite in a given country preventing industrialization because it threatens their position.  Their power and privilege depends on the relative depravation of a target group, so anything that threatens that relationship threatens the extractive institution’s existence.  New innovations that help grow the economy are attacked because they often spread wealth around instead of only to the elite.[7]  A present day example of this is with the internet, which has been under attack for the last decade by a variety of industries, such as the music industry as well as other groups of copyright holders.  Their attempts to limit the flow of information stem directly from their position as elites who extract wealth from selling licenses to use the information that is now being freely shared on the internet. 
The socio-cultural implications of extractive institutions are significant and disruptive.  European colonial empires created the modern version of racism, a mythology that still dominates the worldview of billions of people.  These kinds of hierarchies are perpetuated by extractive institutions and cause social fragmentation and strife.  The Rwandan genocide occurred, in part, because extractive institutions reified the differences and hierarchy between Hutus and Tutsis.  The American Civil War was fought over slavery and the attempt to end that hierarchy.  There is a lasting impact on the African-American community and their family structures from the institution of slavery.  Some scholars have drawn a direct connection between slavery and the disruption of the typical family institution the African-American community.  This disruption is perpetuated still by the penal system and its targeting of African American men.  Such social disruption usually helps maintain the power of the elite and reinforce the extractive institutions.[8] 
Additionally, economic inequality creates a host of social problems which, over time, become ingrained into the culture.  An increase in stigmatization of the poor is one such effect, as well as the disempowerment and disenfranchisement of whatever group the extractive institution is targeting.  The focus of disempowered groups also changes to taking over the reins of power, to gaining the wealth and privilege of the elite instead of on changing the institution and creating a more inclusive society.  Focusing on taking the place of the elite is not a particularly effective way to alter an oppressive system, since even if the elite are overthrown, a new elite will establish itself from the ranks of the disempowered group and perpetuate the extractive institution. 
Partially because of so much social disruption, extractive institutions must be justified to have legitimacy and maintain their dominance.  These justifications tend to have serious negative cultural consequences in themselves.  Racism was one justification that was developed to justify slavery.  Another common justification is that the targeted group of people is less responsible and able to make an income.  Dehumanization of a preyed-upon group is a red flag when looking for extractive institutions, it is much easier to extract wealth from people who “don’t deserve” wealth than from peers.  Violence is the backup when these justifications fail to keep people in line, and violence comes with its own host of negative socio-cultural effects. 
Whatever form this justification takes it tends to undermine the self-esteem and capacity of the targeted group of people and also to undermine the possibility for collective action since that is a serious threat to the status quo.  Members of institutions that tell them they are worthless and not fully human tend to start thinking of themselves that way whether they want to or not.  These culturally constructed categories seep into people’s mind and frame their identity and worldview, and can have long lasting impacts on the families in the targeted group.[9]  Additionally, the lack of resources and fragmentation of society increases crime rates which break down levels of trust.  As people become more financially insecure, their anxiety generally lowers their quality of life and can cause cycles of abuse to develop.   
The elite are also harmed by their extractive institutions.  Since the justifications extractive institutions use tend to say that the elite are better in a large number of ways than the targeted group, this perception becomes part of the elite’s identity.  Thus, when a member of the targeted group does something well, the elite feel humiliated.  This is the situation the racist members of the white population in the United States face, and their feelings of humiliation come across pretty clearly in their rhetoric.  The elite also experience a loss of moral compass and alienation from society at large.  Paranoia is a possibility as is living with a substantial amount of fear because the trust they have in others has been so eroded by their position in the extractive system.  When a person hurts another person they also cannot help but be negatively affected by it, due to the structure in the brain called mirror neurons.  This brain pathway essentially forces them to empathize with the emotions people they see are experiencing.  So when an elite member of an institution hurts someone else the elite member will feel the other person’s pain and additionally feel guilt of causing the pain.[10]  The elite live with this emotional burden and it takes its toll.  Justifications for the institution and dehumanization are used to try to mitigate these feelings and make it easier to ignore the pain of the group the extractive institution targets. 
An additional purpose of justifications is to construct the reality of the population in such a way as to make the institution seem natural.  When an institution is perceived as natural it is much harder to question or even to recognize the institution and name it.  Similarly these justifications seek to limit the imagination of the population so that it cannot develop a parallel institution to replace the extractive one.  The most difficult extractive institutions to change are the ones that are so deeply believed in that life seems impossible without it.
Inclusive Institution Characteristics and Effects
In Why Nations Fail the authors describe inclusive institutions as, at their core, including a wide range of people in the society in the economic and political institutions and working for the welfare of all their citizens as well as society in general.   Barriers to entry are discouraged and everyone has the opportunity to participate in the institution.  The authors focus on the economic institutions that encourage a level playing field and the entry of new people and businesses into the economy.  Wealth is spread around the population and generally not concentrated in an elite.  Equality brings many benefits; it encourages new technology to be developed and new ways of organizing people.  Old ways of organization are not able to maintain their grip on the society to prevent development.[11]  Of course, the authors assume that an increase in productivity and economic growth are inherently good.  They do not seem to address the possible social disruption that can come from the churning of the economic engine and the commodification of labor, property, and money.[12]
In addition to equality, inclusive institutions encourage investment in the people involved in them.  Education is a high priority in societies dominated by inclusive institutions since a solid base of understanding is essential to participate in many social institutions.  The slash and burn approach of extractive institutions provides a stark contrast to inclusive institution’s investment in human capital.  A strongly educated citizenry can make the most their participation in economic and political institutions, increasing their reliability and effectiveness.[13]  Additionally, education provides a social structure to reinforce a common set of values and beliefs, whether consciously taught or not.  One reason the Civil Rights movement focused on integrating schools is because of the power of first-hand experience in changing minds.  Racists had a much harder time maintaining their racism after getting to know people of other races.
Participation would also seem to be an important characteristic of inclusive institutions.  For political institutions, this means that power is shared among the population and not centralized in an autocratic elite.   Checks and balances on the powers of an institution are also characteristic of inclusive institutions, to prevent the arbitrary use of power.  Overall this prevents the use of an institution for the benefit of only a few people.[14]  Democracies tend to have more of these characteristics, although they can slowly creep toward becoming more extractive.  Widely held power is one of the most important features of sustaining an inclusive institution, since without it there will be little to stop elites from establishing themselves.
  Inclusive institutions have a fundamentally different purpose than extractive institutions, working for the benefit of the whole community and “growing the pie” so to speak, instead of taking wealth from one part of the community and concentrating it in another part.  Because of this purpose, justifications to legitimize the institution are much simpler then for extractive institutions, focusing on helping people and improving the social situation.  The institution’s effectiveness at achieving inclusive goals often gives them legitimacy in itself.[15]    
While there is very little exploration in the literature of an inclusive institution’s ability to build relationships among members and repair social bonds this seems like an important and powerful institutional characteristic.  This feature is present among relational institutions that function through the relationships people have compared to formal organizations that emphasize the impersonal nature of the interaction.  Formal organizations prefer to standardize interactions in an attempt to ensure equity while relational institutions emphasize a person’s status and relationships with other people to operate.[16]  While relational institutions can operate to create barriers to opportunity and support extractive institutions, they can also operate to create more social bonds and grow the web of relationships that society is made of.  Formal institutions have more difficulty with creating or repairing relationships among their participants.  For example, the criminal justice system in America generally ignores victims and their needs while simply punishing offenders.  There is no room for catharsis or repair of the damage done.  Restorative justice is an alternative method used in some places around the world that actively tries to repair the harm done and restore the web of relationships that is damaged by crime.  This system is generally more democratic and inclusive, giving more power to the individuals involved in the process instead of an elite of judges and lawyers.[17]  This is an example of an inclusive institution that is also relational in the sense that it connects people together and builds relationships which further develops social cohesion.
With greater social cohesion, equality and participation, social problems are easier to tackle.  Communities are not burdened by an elite’s deliberate efforts to fragment them and are able to find inventive solutions to social problems and enact them.  The population will gain a sense of empowerment and be more willing to make hard changes to address problems.  Participation and education help a population to become self-assured and not burdened by the self-esteem problems associated with extractive institutions.  Inclusive institutions focus on the long term goal of maintaining a society that cares for the welfare of all of its members and this can set a powerful example for inter-personal relationships.[18]   This moves a population’s view away from the instrumentalist approach championed by extractive institutions that encourages people to see others as instruments for their use instead of peers to collaborate with. 
The change is slow and can occur in both directions.  Indicators in the United States seem to point toward movement to a more extractive focused set of institutions.  Increased inequality and concentration of wealth in the hands of a small elite are telltale signs of the increasing domination of extractive institutions.  Dehumanization of the poor has also been increasing in the last thirty years.  Education is less of a priority and is being defunded.  Social control systems, such as the prison system, are gaining power to attempt to control the social disruptions developing from increasing extraction.  Indeed, the prison system itself is an extractive institution which is more able to flourish under a more extractive society.  Part of this is likely the shift in political power.  The government in the United States has become less and less powerful as corporations increase their ability to influence the government as well as increasing their own wealth.  Sadly, many corporations seem to fit the description of extractive institutions and, as they grow more powerful, they are able to adjust the socio-cultural environment to make it more hospitable for extractive institutions. 
Continuum Between Extractive and Inclusive
In Why Nations Fail, the authors set up a continuum between extractive and inclusive institutions.  They suggest that each kind of institution tends to support and promote similar institutions while disrupting and preventing the formation of other kind of institution.[19]  While they try to simplify this categorization by making it black and white, it seems like there is more grey area.  Institutions can function to both extract wealth from targeted groups while trying to be inclusive through broadening the elite who collect the wealth.  Governments can serve in this capacity, as well as being more purely extractive or inclusive, although they have trouble maintaining participatory systems.  Through taxes, governments can extract wealth for the common good and the benefit of the whole community.  Governments might even focus primarily on extracting from the elites of private extracting institutions through progressive taxation. 
One historical example of a cultural institution that seems both extractive and inclusive was the Jubilee of ancient Israel.  The Jubilee required the freeing of slaves, the cancelation of debts, and the returning of all land to its original owners every 50 years.  This essentially re-distributed property to preserve the presumably more egalitarian land distribution set down when the tribes of Israel first settled.  This institution was extractive in the sense that it took wealth from the rich and inclusive because it re-distributed it broadly across the society.  While there are several religious explanations for why this was the law, it seems to be a direct attack on extractive institutions with the purpose of addressing and preventing the social ills that develop in a society dominated by extractive institutions.  It forced relative wealth equality by preventing the concentration of land in the hands of a few people and enforced equity among debtors and creditors.  Of course, the law eventually fell out of use, but it seems like a very direct method to confront the negative effects of extractive institutions when those institutions cannot be replaced through using an institution that combines extractive and inclusive characteristics. 
Similarly, some institutions in America seem both extractive by sequestering wealth from a target group but inclusive because it is not difficult to become part of the elite.  Shareholding is peculiar creature in this regard because corporations are designed to extract wealth from customers and workers and disburse it to shareholders.  Yet, anyone who has a small amount of money can buy a small amount of stock and become a shareholder.  Even with a small amount of stock, though, the wealth extracted would not be substantial and the main barrier to entry is the amount of wealth one can devote to owning stock.  Thus corporations tend to distribute most of their extracted wealth to wealthy stockholders who own substantial amounts of stock.  This is not an extreme case of an extractive institution because the elite is much more permeable than, for instance, the institution of slavery.
To sum up the characteristics of extractive institutions, they are hierarchical, predatory and hierarchical, focusing on extracting resources from a target group and concentrating that wealth in the hands of an elite.  Historically, they often compelled their target through force, but today they tend to gain the agreement of the target to the extractive arrangement.  Of course, the target may feel that they have no other choice but to agree.  They try to justify themselves by dehumanizing the target group and tend to produce substantial economic inequality along with a host of social disruptions and fragmentation.
Inclusive institutions, on the other hand, seek to be participatory and include as many people as possible in their operation.  They attempt to educate their member and invest in them.  Their purpose is generally to increase the size of the pie and share it more equally as opposed to the extractive approach of taking as much of a fixed pie as possible.  Their impact on society tends to be constructive and healing, building the self-esteem and security of their members.  This is especially true of a subset of inclusive institutions that focus on developing relationships among members and healing harms that has occurred.  
Institutions can have a myriad of these features and do not have to neatly fit into either of these categories.  These characteristics should be considered in creating new institutions and reforming old ones because they can be correlated with certain effects on the society and culture of the institution’s members. 


Acemoglu, Daron. Root Causes A Histocial Approach to Assessing the Role of Institutions in Economic Development, 40 Finance and Development, 27, 27-30 (June 2003) available at:

Acemoglu, Daron, Simon Johnson & James Robinson, Reversal of Fortune: Geography and Institution in the Making of the Modern World Income Distribution, (National Bureau of Economic Research Working Paper Series No. 8460, 2001), available at

Acemoglu, Daron & James Robinson, Why Nations Fail: The Origins of Power, Prosperity, and Poverty (Crown Business, 2012).

Brick, Neil, Modern Racism and Its Psychosocial Effects on Society, Bilingual Education Mass's Weblog. WordPress, (2 Oct. 2008) Available at

Bruce, David, Racism, Self-esteem and Violence in South Africa, 17 South Africa Crime Quarterly, 31, 31-36  (Sept. 2006), available at;

Chaudhry, Kiren. The Myths of the Market and the Common History of Late Developers. POLITICS & SOCIETY, Vol. 21 No.3, September 1993 245-274

Elrich, Reese, Prison Labor: Workin' For The Man, 54, Covert Action Quarterly, (1995), available at:

Nichols, Philip, A Legal Theory of Emerging Economies, 39 Virginia Journal of International Law, (1999) available at:

Perea, Juan F., et. al. Race and Races: Cases and Resources for a Diverse America 110-171 (2nd ed., 2007).

Perry, Twila L., Family Values, Race, Feminism and Public Policy, 36 Santa Clara L. Rev., 345 (1996).


Rizzolatti, Giacomo & Laila Craighero, The Mirror-Neuron System, 27 Annual Review of Neuroscience , 169, 169–173 (2004). available at:

Wagner, Peter, The Prison Index: Taking the Pulse of the Crime Control Industry, (Western Prison Project and the Prison Policy Initiative, 2003), excerpt available at:

Zehr, Howard, The Little Book of Restorative Justice. (Good Books, 2002)

[1] Daron Acemoglu, Simon Johnson & James Robinson, Reversal of Fortune: Geography and Institution in the Making of the Modern World Income Distribution, (National Bureau of Economic Research Working Paper Series No. 8460, 2001), available at
[2] Peter Wagner, The Prison Index: Taking the Pulse of the Crime Control Industry, (Western Prison Project and the Prison Policy Initiative, 2003), excerpt available at:; Reese Elrich, Prison Labor: Workin' For The Man, 54 Covert Action Quarterly, (1995), available at:
[3] Daron Acemoglu, Simon Johnson & James Robinson, Reversal of Fortune: Geography and Institution in the Making of the Modern World Income Distribution, (National Bureau of Economic Research Working Paper Series No. 8460, 2001), available at
[4]  Stanley L. Engerman & Kenneth L. Sokloff, Colonialism, Inequality, and Long-Run Paths of Development, in Understanding Poverty, 39 (Abhijit Vinayak Banerjee, Roland Benabou, Dilip Mookherjee, eds., Oxford University Press, 2006)
[5] Daron Acemoglu, Simon Johnson, & James Robinson, Understanding Prosperity and Poverty: Geography, Institutions, and the Reversal of Fortune, in Understanding Poverty, 31 (Abhijit Vinayak Banerjee, Roland Benabou, Dilip Mookherjee, eds., Oxford University Press, 2006)
[6] Juan F. Perea, et. al. Race and Races: Cases and Resources for a Diverse America 110-171 (2nd ed., 2007).
[7] Daron Acemoglu, Root Causes A Histocial Approach to Assessing the Role of Institutions in Economic Development, 40 Finance and Development, 27, 27-30 (June 2003) available at:
[8] Twila L. Perry, Family Values, Race, Feminism and Public Policy, 36 Santa Clara L. Rev., 345 (1996).
[9]  David Bruce, Racism, Self-esteem and Violence in South Africa, 17 South Africa Crime Quarterly, 31, 31-36  (Sept. 2006), available at; Neil Brick, Modern Racism and Its Psychosocial Effects on Society, Bilingual Education Mass's Weblog. WordPress, (2 Oct. 2008) Available at
[10] Giacomo Rizzolatti & Laila Craighero, The Mirror-Neuron System, 27 Annual Review of Neuroscience , 169, 169–173 (2004). available at:
[11] Daron Acemoglu & James Robinson, Why Nations Fail: The Origins of Power, Prosperity, and Poverty, 77 (Crown Business, 2012).
[12] Karl Polanyi, The Great Transformation: The Political and Economic Origins of Our Time., 71-81
(Beacon Press, 2nd ed., 2001)
[13] Daron Acemoglu & James Robinson, Why Nations Fail: The Origins of Power, Prosperity, and Poverty, 79 (Crown Business, 2012).
[14] Id., 82.
[15] Daron Acemoglu & James Robinson, Why Nations Fail: The Origins of Power, Prosperity, and Poverty, 77-79 (Crown Business, 2012).
[16] Philip Nichols, A Legal Theory of Emerging Economies, 39 Virginia Journal of International Law, 229, 229-301 (1999) available at:
[17] Howard Zehr, The Little Book of Restorative Justice. (Good Books, 2002)
[18] Daron Acemoglu & James Robinson, Why Nations Fail: The Origins of Power, Prosperity, and Poverty, 79-81 (Crown Business, 2012).
[19] Daron Acemoglu & James Robinson, Why Nations Fail: The Origins of Power, Prosperity, and Poverty, 82-83 (Crown Business, 2012).

Wednesday, September 22, 2010

Thoughts on Self-forgiveness

I have come to truly admire religion's almost magic ability to facilitate people's self-forgiveness. A great example of this is the born-again experience or even something as simple as confession... from what I have observed, people who had wronged others and go through a religious ritual concerning being forgiven find it much easier to forgive themselves. I do not think secular people have anything that compares, or atleast I have not noticed it.

Many have little compassion for people who do wrong. I see no logical reason to hold that position. Everyone does things that are not right, and judging them for their trespasses does no good for anyone. We all have weaknesses and failings. Whether they acknowledge it or not, everyone is emotionally impacted in a negative way by their wrongs. Everyone is human so we are all deserving.

Forgiving oneself is much harder than forgiving others. The absence of self-forgiveness causes personal anguish that can adversely affect people's behavior, leading them to act out of this pain. This negative behavior can take many forms, usually providing only short-term relief while only adding to their long-term burden of guilt. Some behaviors I have noticed:

*people often try to belittle others to feel superior,
*hurt people so they don't feel alone in their pain
*being on-edge and easily roused to anger
*pushing people away - socially isolating behavior
*seeking attention through negative behavior
*when others expect negative things from someone, they react by conforming to that standard.
*identity shifting toward viewing oneself as a wrong-doer, reinforcing a cycle of pain
*feeling the necessity to act wrongfully to prove ones identity.

I think this and other similar behavior stems from the following emotions that run through people when they are saddled with a lack of self-forgiveness.

*Anger, hatred
*Feeling isolated, and a fear of loneliness
*Social paranoid - expecting no one to like them
*A feeling of helplessness and like they are condemned for life.

The only way out of this that I can see is self-forgiveness. Making amends and seeking the forgiveness of those who one has wronged is, of course, essential in being able to forgive oneself. But usually this is just the beginning of the process. The pantheon of emotions above are powerfully strong and take serious effort to overcome. However, there is no way around it. People who do not forgive themselves end up adding the the cycles of pain that exist in our society and riddle their lives and the lives of people around them with difficulties.

This is why I always cringe when people say they won't help people because they aren't deserving. No one is an island, we are interconnected and refusing to forgive someone for their wrongs and help them actually just hurts society in general.

It seems to be a hidden trend in human culture, that when one person or a group of people harm others, they themselves are harmed as well, but in different ways. I see it in capitalism where the rich suffer a kind of horrid isolation and fear of loss of property while the poor struggle to survive. I see it in patriarchy where men suffer from a prison of false-emotionlessness and isolation while women are objectified and dehumanized. Wrongs by one party hurt everyone including themselves whether they realize it or not.

Forgiveness, self-forgiveness and reconciliation are the only logical way I can see to heal the wounds in our society.

Sunday, September 19, 2010

A Snippet of Wisdom.

Perhaps the greatest lesson I have learned from the ten years that I have really been awake:

The world is a place of cause and effect. You can never know the full extent of the consequences of your actions. However, the general effects can be distinguished... good creates more good, bad creates more bad. I have run numerous experiments in my life on this and it is very clear to me.
This is why the ends do not justify the means, you will never reach the fullness of the end you want through unjust means, you will only achieve a narrow end at the expense of the greater good.
In everything you do, try to do the right, and you will change the world for the better. This helps us muddle through the incalculable causes and effects in our lives to allow us to produce the ends we want. It is the golden rule in its fullest sense, treat others as you would want to be treated, not just because it is the right thing to do, but because it is practically the most effective thing to do to achieve good ends.

Thursday, August 26, 2010

Does the Law Pursue Justice?

Law school has been a thought provoking experience, both in terms of the nature of the law as well as how far it falls short of providing justice.

The common law system and indeed, the common law itself, has organically developed over time as an attempt to achieve justice for people unfortunate enough to go through the judicial system. While the righteous goal of justice is the stated purpose of the law, the people involved, all good people I am sure, seem to think that the maintenance of the system of law is sufficient to achieve this end. As far as I can see, this institution suffers from a severe case of goal displacement with the maintenance of the status quo of the law placed unequivocally over justice. Individuals are sacrificed on the altar of internal consistency of the law, where is the justice in that? It appears that Weber's classic bureaucratic goal displacement has taken deep root in the judicial system... the institution's own survival and interests are placed over the initial goal that its creation was meant to achieve.

The ironic part is that, while on the surface it appearz that judges interpret law in an attempt to be consistent and maintain the common law's integrity, they actually succeed in perpetuating a series of systematic hypocrisies.

An example. Violence is one of the prime criminal acts, it is considered detrimental for a wide ranging variety of reasons, many completely true and fair. Preventing and healing violence is an essential part of any system of justice, whether they are common law institutions or traditional ones like a sentencing circle. Yet, the judicial system endorses and perpetuates the violence of the prison system and the death penalty. How is that consistent? It is not at all, many of the reasons we dont want individual violence are the same reasons we don't want institutional violence. But this system supports the justification for the existence of the judicial system in its current incarnation, and indeed, helps maintain the view that it is a necessity.

Perpetuating violence in a society will likewise broaden the power of any institution that attempts to prevent and heal it. But when that institution, through a sort of endemic hypocrisy, actually creates more violence, it enters into a cycle of escalation.

Now don't get me wrong, the design of the institution is a very clever one. Have a whole industry of analyzers to seek the truth (both in fact-finding and in theoretical pursuits) in the pursuit of justice, have them discuss in minute detail the implications of organizing society in certain ways. That is a theoretical system that sounds pretty good to me. But in practice it is an unjust meat-grinder that is driven by greed and power, perpetuating an almost Orwellian-style acceptance of hypocrisy as justice.