As many communities, families and individuals wonder what the future holds for our immigrant communities, one city–the City of New Haven–has been leading the way in promoting inclusive policies that are welcoming to immigrant communities, like the adoption of a resident identification card, available to all residents in the city. These practices were initially met with opposition from the federal government, including heartless, early-morning raids to enforce immigration warrants.  But the city, its residents, and institutions fought back.  Read about the New Haven experience, written by then-Mayor John DeStefano, in his chapter in How Cities Will Save the World: Urban Innovation in the Face of Population Flows, Climate Change, and Economic Inequality (Routledge 2016), which can be ordered here. (Admittedly, it’s expensive to purchase; maybe ask your library to order it!)  You can also read the overview and introduction, written by my co-editor, John Travis Marshall, and I, here.

From the New York Times piece on the candidates’ closing arguments, we may know everything we need to know about where this election is heading:

From Secretary Clinton:

“Tomorrow, you can vote for a hopeful, inclusive, big-hearted America,” she told a crowd in Pittsburgh.

From Donald Trump:

Mr. Trump, who campaigned in five states on Monday, took a harsher approach, assailing the “crooked media,” attacking a “corrupt Washington establishment” and mocking Mrs. Clinton over and over.

“It’s a rigged, rigged system,” he declared in Raleigh, N.C. “And now it’s up to the American people to deliver the justice that we deserve at the ballot box tomorrow.”

If history is any guide, the optimistic candidate who strives for unity is the one who tends to win in the general election.  And the reason behind this may lie in the subconscious biases that inform our decision making and choices.

Richard Nixon recovered from his loss in 1960 to John Kennedy and from his loss in the 1962 gubernatorial election in California to win the Republican nomination for president in 1968.  His general campaign featured calls for unity in a time of great social and political unrest.  In his convention speech he struck a conciliatory tone around racial strife, one of unity and fairness (at the same time that he was promoting the Republican “Southern Strategy”): “And let us build bridges, my friends, build bridges to human dignity across that gulf that separates black America from white America.”  Nixon would win the election in a plurality vote, gaining 43% of the popular vote but winning handily in the Electoral College.

Jimmy Carter would represent the possibility of change at a time that the nation was deeply divided in the wake of Watergate.  He would offer a positive politics that would unite a fractured nation.  Carter’s approach was to tie the Ford Administration to Nixon’s failed presidency, and to offer a more positive, unifying message.  His convention speech tried to maintain this balance between going negative with respect to the current administration, and promoting an optimistic message of unity.  “We have been a nation adrift too long,” he would state. He would decry a lack of leadership, and the divisiveness of the Nixon Administration. “There is a fear that our best years are behind us,” Carter would point out, but add, “I say to you that our nation’s best is still ahead.”  Carter would defeat Ford by two percentage points in the popular vote, and 57 votes in the Electoral College, with Ford winning more states than Carter.

The tumult of the first half of the 1970s would carry over into Carter’s single term, and his popularity would suffer as a result.  His ultimate electoral demise at the hand of Ronald Reagan in 1980 can probably be traced to the summer of 1979, when he delivered the famous “malaise” speech in which he spoke of an America in decline.  For communications guru Frank Luntz, the speech was a textbook example of “what not to do.” But Carter’s speech itself was not the problem: his poll numbers went up immediately thereafter.  The real problem was what happened next. Carter fired his cabinet and failed to capitalize on his call for civic engagement as a way out of the malaise.  In other words, he failed to offer a positive path out of the national quagmire he had described.  It is okay to criticize the present, which certainly every non-incumbent candidate wants to do: otherwise, why would anyone vote for him or her.  The problem for Carter, the incumbent, was a lack of a positive vision to get out of what he had identified, correctly, as a deplorable and dispiriting situation.

Carter’s opponent in the 1980 general election, by contrast, was full of optimism.  Reagan talked not of a malaise, but of America as a “shining city on a hill.”  When Carter attempted to paint him as an extremist in a televised debate, Reagan knocked him as being too negative, choosing a particularly poignant moment to take down Carter for his negativism by proclaiming “there you go again.”

In his own “closing argument” speech on the last day of the 1980 campaign, Reagan’s message was clear when he declared that he found “no national malaise, I find nothing wrong with the American people.”  He continued: “Oh, they are frustrated, even angry at what has been done to this blessed land.  But more than anything they are sturdy and robust as they have always been.”

Four years later, when campaigning against Walter Mondale, a stridently positive message defined the campaign.  His “Prouder, Stronger, Better,” ad, which became known as the “Morning in America” piece, struck a decidedly positive tone about the state of affairs in the U.S. and cast a negative light on his predecessor’s legacy.

In his recent work, British political scientist Anthony Bennett explains that voters handed Reagan a landslide victory over Mondale for a number of reasons.  He included in those the strength of Reagan’s “sunny optimism” when compared to Mondale’s “coldness and aloofness.”

A few elections later, Clinton would turn the tide on Reagan’s former Vice President, who had spoken of a “thousand points of light” in winning in 1988.  Apart from being able to master making connections on a personal level with voters, Clinton attempted to advance a decidedly positive, unifying message.  Clinton’s convention speech would lament that the nation was divided, but that it was time to “heal America.”  Clinton would deplore the “us-them” mentality: “Them, the minorities. Them, the liberals. Them, the poor. Them, the homeless. Them, the people with disabilities. Them, the gays.” He would assert, “There is no them. There is only us.  One nation, under God, indivisible, with liberty and justice for all.”

Similarly, in the election of 2000, George W. Bush was able to convey a folksy persona, one decidedly different from the one his father had portrayed.  Bush’s campaign had three main components.  He claimed he was going to restore honor to the White House, after the Lewinsky scandal; he was a compassionate conservative; and he was a “uniter, not a divider.”  Compare his positive, unifying message to that of his opponent, who staked his campaign on a very different theme: that he was going to stand “for the people against the powerful.”

While Obama was able to best Secretary Clinton in the primary and Senator McCain in the general election in 2008 through lofty talk of hope and change, it was the Obama-Romney election of 2012, where his ability to convey optimism and unity would be tested.  Indeed, the former Governor of Massachusetts could be counted on for sunny, Reaganesque statements. Polls through the middle of September had Romney surging and closing in on President Obama.  Then a secretly recorded video of Romney speaking to a collection of donors surfaced.  In his remarks he made his now infamous and divisive comments about the “47 Percent”, ones that struck a decidedly “non-unifying” tone, but were also particular negative.

Ironically, although Romney says in the video that he has to pull in some independent voters who are not in the “47%” in order to defeat Obama, and the statement may not have had much of an effect on voters who had already made up their minds as to who would win their votes, a poll taken by Gallup after the video was released showed that among independent voters who may have been swayed by the video, such voters were more than twice as likely to vote against Romney because of these statements as those who were inclined to vote for him because of them.

This quick overview of campaign rhetoric over the last fifty years helps to shed some light on the types of messages that seem to have resonated with the American people for the last half century.  A more scientific analysis of a similar time period yielded similar results.  In Campaign Talk: Why Elections are Good for Us, Roderick Hart analyzed campaign language used in presidential elections from 1948 through 1996.  Hart broke down the language used by politicians, reporters and the public in speeches, the media and in such formats as letters-to-the-editor in newspapers.  The analysis yielded results that were not surprising: candidates who were optimistic in their rhetoric and used inclusive language that emphasized community and cooperation were more successful in their campaigns than those who were negative and emphasized division.  Hart identified a strong example of this phenomenon as the difference between President Clinton and his opponent Senator Dole in Clinton’s 1996 re-election bid.  In these speeches, Clinton emphasized “neighborhoods, fellow, children, home and parents,” and Dole used words like “administration, congress, party, policy, compromise and unions.

Behavioral science tells us that two biases—optimism bias and confirmation bias—may be at play when talking about what makes optimistic, positive messages stick and catch on.  Optimism Bias is one of the biases many humans seem to possess. We presume that bad things will happen to others and not ourselves, and the future looks rosier than the present or the past. While there are certainly individual, cultural and national differences that tend to influence the degree to which a particular person may be optimistic, study after study tends to show that the human condition may, generally, be an optimistic one. This is particularly true where we think we may have control over a particular outcome, or we can create social distance between ourselves and a person we may deem as more stereotypically likely to have something happen to him or her.

Confirmation Bias is the term used to describe the phenomenon through which individuals tend to accept information that confirms previous beliefs as opposed to that which might challenge them.  We also seek out sources of information that play to our confirmation bias. It is no secret that individuals from different political perspectives tend to gravitate towards sources of information that confirm their pre-conceived notions.  Liberals turn to Rachel Maddow and MSNBC and conservatives to Fox News and Rush Limbaugh.

According to Emory University psychologist Drew Westen: [The] brain gravitates toward solutions designed to match not only data but desire, by spreading activation to networks that lead to conclusions associated with positive emotions and inhibiting networks that would lead to negative emotions…Positive and negative feelings influence which arguments reach consciousness, the amount of time we spend thinking about different arguments, the extent to which we either accept or search for ‘holes’ in arguments or evidence that is emotionally threatening, the news outlets we follow, and the company we keep.”  As a result, “our brains have a remarkable capacity to find their way toward convenient truths—even if they’re not all that true.”

Based on these two biases, humans are generally an optimistic bunch, and when we hear optimistic messages, we tend to confirm our pre-existing tendency towards optimism.  Is it then any surprise that optimistic messages, ones that stress unity and hope for the future, are those that, history as shown, are the ones that might generally attract wider support than those based on division and negativity?

Secretary Clinton promoted “Stronger Together” as a rallying cry for her campaign.  The otherwise divisive Donald Trump used his “Make America Great Again” slogan to attempt to capture a somewhat positive, optimistic message, one that threads the needle between criticizing the present and conveying a message of optimism for the future.  His closing arguments, however, failed to convey that same optimism and the results today may just prove this different approach fatal to his campaign.

Recently, the World Justice Project (WJP) released its 2016 Rule of Law Index.  The research initiative assesses the performance of 113 nations across the world on a range of metrics related to the rule of law.

According to the WJP:

The country scores and rankings for the WJP Rule of Law Index 2016 are derived from more than 110,000 households and 2,700 expert surveys in 113 countries and jurisdictions. The Index is the world’s most comprehensive data set of its kind and the only to rely solely on primary data, measuring a nation’s adherence to the rule of law from the perspective of how ordinary people experience it.

The United States did moderately well in a range of categories, as follows:

18th in the overall Rule of Law ranking;

12th for “open government”;

13th in the “constraints on government powers” ranking;

20th for “absence of corruption” ranking;

31st for “order and security”.

Where it performed terribly was in the “accessibility and affordability” of civil justice.  Out of the 113 nations ranked, the U.S. came in at a woeful 94, nearly thirty slots lower than last year, tying nations like Egypt and Tanzania, and coming in just ahead of Afghanistan and Uzbekistan.  Read the full report here.

Posted by: Ray Brescia | October 20, 2016

Access to Justice as a Constitutional Imperative

In November 2017, the voters of the state of New York will decide whether to hold a constitutional convention to revise the state’s constitution.  The New York State Bar Association, in conjunction with the Government Law Center at Albany Law School, recently published a collection of essays on this subject: Making a Modern Constitution: The Prospects for Constitutional Reform in New York, edited by Scott Fein and Rose Mary Bailly.  (Get the book here.)   I was honored to submit a chapter in the collection that explores the legal and policy arguments for an amendment to the state constitution to recognize an explicit right to counsel in civil cases where fundamental human needs are at stake.  Such a constitutional right would be the first recognized in a state constitution in the United States and could lead the way for more states to do the same.  The chapter attempts to articulate the legal and policy arguments for doing so.  Read the chapter here.

 

In a recently released report, the Brookings Institution highlights the role of Germany’s fifteen largest cities in dealing with the influx of refugees into the country.  As in Germany, U.S. cities are leading the way in coming up with innovative approaches to dealing with immigrants and refugees.  In How Cities Will Save the World: Urban Innovation in the Face of Population Flows, Climate Change and Economic Inequality, one can read the account of the former mayor of New Haven, CT, John DeStefano, as that city tried innovative, welcoming approaches to dealing with new immigrants in the Elm City.

Download the introduction to How Cities Will Save the World here.  Order the book here.

Posted by: Ray Brescia | October 4, 2016

“Uber for Lawyers” Still Needs Lawyers

In Jordan Furlong’s latest piece on Lawyerist.com, he asks What Makes Uber Tick: And What Can Lawyers Learn from It?  He argues that we are unlikely to see an “Uber for Law” –what he describes as novice/non-lawyers offering legal services in their spare time, like many providers in the so-called sharing economy–any time soon.  At the same time, he asks whether lawyers can learn from what companies like Uber are trying to do: namely make services more accessible and convenient for consumers.  I agree with Jordan that the sharing economy offers some insights into how lawyers can reach more clients in a meaningful and effective way and I also agree that we do not want non-lawyers engaging in the unauthorized practice of law through a sharing economy model.  I explore some of these questions in a piece recently published by the Buffalo Law Review, named, coincidentally, “Uber for Lawyers: The Transformative Potential of a Sharing Economy Approach to the Delivery of Legal Services.”  Download it here.

Posted by: Ray Brescia | October 2, 2016

Law Schools Need to Embrace an Access-to-Justice Mission

There is a profound paradox facing the legal profession and the American public.  Some fear we are educating too many law students at the same time that there are not enough lawyers to go around: eighty percent of low-income individuals and roughly fifty percent of middle-income individuals face their legal problems without a lawyer.  In a piece that is forthcoming in the Georgetown Journal on Poverty Law & Policy, I argue that law schools should embrace an access-to-justice mission, one that would engage faculty research, teaching, and scholarship to explore this paradox and find ways to close the justice gap.  The piece is still in draft form, but you can read the current version here.

Just before the endorsement of Hillary Clinton for president, and the “unendorsement” of Donald Trump, the New York Times issued a rousing endorsement of a bill in the City Council of the City of New York to guarantee every tenant and homeowner in New York City earning up to 200% of the federal poverty line and facing eviction or foreclosure a right to a lawyer to defend themselves from displacement and homelessness.  Putting aside the terrible human cost of eviction and foreclosure, the fiscal costs are profound, and the Times recognizes the cost to government of providing emergency shelter to tens of thousands of New Yorkers, far more than the cost of paying non-profit legal services providers to represent families.  A recent study of the potential benefits of providing lawyers for low-income tenants shows that a roughly $200 million investment in paying lawyers to represent such tenants facing eviction in New York City would save over half a billion dollars in money spent on shelter for the homeless and the other costs associated with evictions.  The Times recognizes what advocates have been saying for decades: providing funding for lawyers for tenants in housing court and homeowners in foreclosure in New York City, indeed, anywhere, makes good fiscal and moral sense.

For more on the value of a lawyer in eviction proceedings, and the case for representation of low-income tenants and homeowners, read my piece on the subject here.

Posted by: Ray Brescia | August 23, 2016

New Article: Law and Social Innovation

Can law schools teach creativity?  Is improving lawyers’ ability to engage in creative problem solving a useful strategy for improving lawyer effectiveness?  Can the legal profession, and the law schools that educate its members, engage with the threats they face from those outlets that are offering technology-enhanced, commoditized legal services and/or outsourced services?  These are just some of the questions I attempt to address in a new article I am publishing with the Albany Law Review, “Law and Social Innovation,” which is now available for download here.  In it, I explore these and other questions, using Dan Pink’s A Whole New Mind: Why Right-Brainers will Rule the Future as a starting point and foil for the discussion.  Here is a representative passage:

A legal education in the 21st century should not just prepare law students to practice law in the present environment, it must prepare them to work with technology in creative ways that helps those students practice in the rapidly changing market for legal services.  This will require them to embrace technology as a means of delivering legal services in a competent and efficient way, compete with non-traditional providers, and distinguish themselves from non-traditional providers by offering a superior product that satisfies clients’ instrumental as well as non-material needs.

Check it out if you get a moment.  Thoughts/reactions welcome.

Posted by: Ray Brescia | August 15, 2016

Vote for Access to Justice

I am honored to be on a proposed panel for the 2017 South By Southwest (SXSW in the vernacular) conference in which my fellow panelists and I will discuss new models for delivering affordable access to justice, but it needs your vote to become a reality.  Although it takes a few steps, including registering to vote (which is free), please consider voting for this proposed panel discussion to be selected for the 2017 conference.  Follow the links here to register, go to the “search/vote” tab, and then search and vote for the Affordable & Accessible Lawyers, Really? panel.  Thanks!

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