6 Degrees of Litigation


As a law student who was a community activist prior to law school, I came into law school thinking that litigation was the way solve problems. Through my work in Las Vegas I was able to observe how filings and threats of litigation could shift the power paradigm and allow small community based organizations like the one I was part of to get in front of the media, and thus in front of the law makers, persons of influence, and other power brokers. Indeed, it was the threat of litigation which prompted the local government to have to take our concerns seriously.

It was against this backdrop that I entered law school.

However, over the last year I have begun to look at the law as a very limited medium. One that can often times seek justice in the case of an individual or a singular topical dispute but not one in which a system can be impacted. I have come to think that to seriously impact systems, one must be able to access power, and that this power normally is comprised of wealth or influence. In my estimation, to readily be able to access this power and to be able to utilize it most effectively one must be able to create and or navigate economic frameworks. Accepting this new line of reasoning, I have now made it my mission to access this power, to create economic frameworks which I believe will allow me to have greater impact on the systems of interest to me. With that in my mind I have applied to the JD/MBA Program at BU.

The following excerpt from my MBA Essay speaks to this point:

“My decision to pursue an MBA at this point in my career has come as a result of my shifting the direction I would like to take my legal career. I have always been interested in business development and entrepreneurship but my initial legal interests were mostly tied up with what I perceived then as public interest related fields.  Over the last year, my legal and business interests have become more closely aligned as I have begun to rework what my conception of public interest is.  In my view nothing serves the public better than using business and innovation to build both social and economic capital.  The community minded business man and legal professional can use the power of the law and the fluidity of business to create jobs and programming. In this respect he has the power to take the broad approach to socio-economic problems. I like the idea of building something from the ground up and building community and corporate partnerships. The law is by its nature adversarial and often times stagnant, where business is driven by creativity and relationships.  I want to use my career to take the best that both have the offer to impact my world.”

Over the last couple of months I have had many conversations with my friends around this very topic.  Some of these conversations have been more contentious than I would have liked them to be, but they were necessary. Re-conceptualizing what the words public interest, direct service and the like mean, can be challenging, and shifting away from the paradigm which law school ingrains in us can be equally difficult.

That being said, I believe that various things underscore my point.

For instance, when I worked in the Major Felonies Unit of the Suffolk County District Attorney’s Office this summer several things stuck out to me, but the most important thing was that almost every criminal case I helped to work on had a defendant who had not graduated from high school (this also proved important in the Parole Hearing I witnessed, when defendant’s eloquence, preparedness, and like where questioned, while he was vigorously questioned by those who severely outpaced him educationally, as he was in 9th grade when he was incarcerated, it sparked an idea for a non-profit…more on that later).  Being from the state with the worst school system in the country, equipped with one the lowest if not the lowest dropout rates, this sparked my interest.

The question became, if you have issues with the criminal justice system how do you go about affecting it in the most broad fashion? Some of my friends believe that you can do this by either becoming a DA and using the discretion which comes with the office to lower the amount of criminals who are locked up for false or petty things, while others believe that the best way to do this is to work as a public defender and force the District Attorney’s to meet the burden of their office, and prove beyond a reasonable doubt that the individual convicted of the crime is guilty. Still there are others who believe that the best way to combat the system is through policy via legislation (a view which I may be more likely to agree with).

However, my very small experience says that the first two will not work and the third can only work via access to power (wealth + influence). In the first instance, Assistant District Attorneys only have as much discretion as the District Attorney allows them to, and since the DA is an elected official and is thus accountable politically, he or she may be less likely to allow for broad leeway in terms of discretion, even if they are afforded discretion this doesn’t necessarily impact the system (in terms of the mass numbers of people incarcerated). Additionally, because prisons are becoming more and more privatized (both from a prison labor standpoint, and from a facilities/staffing standpoint) the DA may find himself politically accountable to private companies who can put up BIG MONEY towards the campaign of someone they believe will not act contrary the their bottom line and the bottom line of their shareholders. From the public defender standpoint, though it is noble to want to pursue individual justice in each case, overwhelming dockets make a lot of public defenders more sentence negotiators than vigorous advocates. The policy standpoint seems to be the most powerful one of the three, but in a world that allows for infinite private donations in campaigns, one must either be very powerful in terms of who they know (influence), or very powerful in terms of the money they can contribute (wealth) if they either want to influence the campaign of an individual they favor, or run for an office themselves. While I believe that change can ultimately come out of this, campaigns and policy work are nothing but economic systems, and those who have capitol can make the most impact (See the Bill and Melinda Gates Foundation).

From my particular perspective then, the best way to impact a system like the criminal justice system is to limit the individuals who find themselves involved in it in the first place. The best way to do this is through education.  Even private prison companies know that education is the overarching determining factor in incarceration, as they now forecast the amount of prisons which will need to be built by looking at elementary reading/writing/ and math competencies. It seems evident that he who becomes educated usually avoids serving time and adding to the riches of a private profiteer. In consumer transactions if a company violates consumer trust, consumers can boycott, and thus starve the company, in my estimation the prison industry is an economic model similar to that of a retail store. If you want to impact the system the best you starve the company, by improving education, you reduce the amount of people the prison import, and reduce the amount of private products (via prison labor) the prison can export.

How you impact education is the question, one with which I believe my point about the limitation of the law in of itself is well established. Today, if you want to impact de facto segregation in schools, the law as laid down by Supreme Court precedent will not allow you to. However, if you want to say, I don’t like the educational choices students are being offered, you can create a charter school (which is an economic framework, similar to creating a company or corporation).  What you can’t impact without changing the highest court in the land, you can impact through business (note: even school board seats are now being run like major campaigns often with spoils going to those with the most power (money + influence).

I note all this not to disparage my friends who think that litigation is the key, because I do think that it is important. However, I think that it is only good, if you are seeking INDIVIDUAL JUSTICE and not SUBSTANTIAL SYSTEMATIC change.

There are other instances that I believe business innovation is better than litigation but I will save that for part 2. Today, I will end with another excerpt from my MBA Essay.

I plan to leverage my professional and academic experiences to achieve my post MBA goals in several ways.  First I plan to use my degree seek employment in the corporate sector either in business generally or preferably in an in house counsel capacity or as an entrepreneur.  First I would like to use my academic background to work with and as counsel for emerging companies as I believe that this will give me greater experience and more responsibility within a company.  After gaining experience, creating value, and fostering relationships, I would then like to leverage those corporate relationships to create career incubation programs, starting by having two companies adopt tone or two inner city neighborhoods.  Through this program I would identify high school aged children with interests in working in the corporate sector.  In developing programing, mentorship, training, and a clear expectation of what skills and educational background is needed the companies would be able to develop a fresh crop of diverse candidates who would become immediately hirable upon completion of the required degree.  The community would be supportive because their children would be part of a program which could help to ensure the successful elevation of their families, and the companies would benefit from the good will of the community as well as from idea they are recruiting local candidates and contributing to the local economy, thereby contributing to the company brand, and dispelling some of the myths about corporations lack of community involvement.

To be continued…

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