The main idea of this book is to provide information about psychology of self-awareness, its importance for setting meaningful objectives for one’s live, and necessity of mastering self-awareness in order to achieve these objectives.
- The Meta-Skill of the Twenty-First Century
It starts with the story of young George Washington and his sad adventure with Fort Necessity, where his arrogance and self-assurance caused defeat. Author describes it as a good example of the lack of self-awareness; so eventually George Washington improved his performance in live by developing self-awareness, the skill, which is absolute requirement for the success. Author refers to studies that demonstrated opposite feature – self-delusion as typical characteristics of many people. She defines two types of self-awareness – internal, which is understanding of self and external, which is the understanding of how others see you. The final and very important point here is that self-awareness is a developmental skill and there is no better example than the older George Washington.
PART ONE: ROADBLOCKS AND BUILDING BLOCKS
- The Anatomy of Self-Awareness: The Seven Pillars of Insight
The chapter starts with reference to Mayan civilization and story of its demise that author presents as the consequence of poor understanding of environment resulting in deforestation and destruction of Mayan ecology. After that she moves to religious understanding of self-awareness and concludes: “self-awareness is the will and the skill to understand yourself and how others see you”. From here author moves to discuss Franklin and Thoreau and their approach to understanding and controlling self from which she derives seven pillars of insight:
- Understand one’s own values
- Understand one’s own passions
- Understand one’s own aspirations
- Understand one’s own fit for environment
- Understand one’s own consistent patterns of behavior across situations
- Understand one’s own real-time reactions
- Understand one’s impact on others
For all 7 pillars it is imported to have 2-way views: from inside and from outside.
- Blindspots: The Invisible Inner Roadblocks to Insight
This chapter is about situation when people completely misunderstand how others perceive them. An example is an executive who believes that he is pretty good with people, but actually is hated by everyone. The author moves to research on criminals, who actually perceive themselves as regular good people. Author defines blind spots of such people as: Knowledge Blindness, Emotion Blindness, and Behavior Blindness. Author suggests some technics to fight this blindness:
- Identify your assumptions
- Conduct double loop learning: make predictions and compare later with actual results
- Constantly continue learning even in areas one is very familiar with
- Seek feedback on abilities and behaviors
- The Cult of Self: The Sinister Societal Roadblock to Insight
This is a bit of a problem that to some extent is caused by recent developments in American culture. As example, author discusses change in children naming from generic commonly used names like John to unique names. It went from 40% getting common names for boys in 1983 to only 10%. For girls it is from 25% to 8%. Author also discusses movement from Age of Effort to the Age of Esteem, when Self-esteem movement made people to look for undeserved appreciation. The recommendation is to combine self-acceptance with understanding objective reality.
PART TWO: INTERNAL SELF-AWARENESS – MYTHS AND TRUTHS
- Thinking isn’t Knowing: The Four Follies of Introspection
Author starts discussion of follies with a good point that thinking about ourselves does not correlate with knowing ourselves and that assumption that introspection begets self-awareness is a myth. Then she discusses four follies:
- Myth of padlocked basement – about access to subconscious
- Why not ask WHY – about asking WHAT rather than WHY as in instead of “Why I do not like” ask “What do I like”. She stated that Why is good to understand environment, but WHAT is good for understanding self.
- Keeping journal – would not help unless done very carefully without overthinking positive and reasonably exploring negative.
- The Evil twin of Introspection – this would-be rumination, constant rethinking of everything. One important point here is that people do not care about our mistakes or successes as much as we think they do.
- Internal Self-Awareness Tools That Really Work
After chapter on follies, this chapter is about doing things right. What works is the mindfulness – simply noticing what we are thinking, feeling, and doing. Another one is reframing – looking at circumstances from different angles. Also, useful tool is comparing and contrasting. The final part of the chapter is about attitude – focusing on solutions or as author puts it: solution mining, which includes defining specific objectives and path of achieving them.
PART THREE: EXTERNAL SELF-AWARENNESS – MYTHS AND TRUTHS
- The Truth We Rarely Hear: From Mirror to Prism
This starts with the story of personal experience when author learned how people really perceived her in the quite close circle of friends, only many years later in random conversation. She uses this to stress how much people reluctant to share their real attitude to a person. After that she points out that others are more objective than ourselves and that even unfamiliar people could provide a lot of valuable information about us. She discusses in details reasons why people are reluctant to discuss negatives, but happy to do for positives. Another issue is that in addition to people reluctant to tell truth, we are reluctant to ask. At the end of chapter author discusses various ways of obtaining true information, especially 360 reviews.
- Retrying, reflecting on, and Responding to Difficult or Surprising Feedback
This is about hearing and learning from the true feedback, which is in and of itself a very difficult task. She provides recommendation for somewhat formalized process of Receive, Reflect, and Respond. She also discusses problems and us of both self-limitation and self-affirmation
PART FOUR: THE BIGGER PICTURE
- How Leaders Build Self-Aware Teams and Organizations
This is about leadership and author builds this chapter about what she calls the three building blocks:
- Modelling the Way
- The safety and expectation to tell the truth
- Outgoing commitment and process of staying self-aware.
At the end author expands the notion of self-awareness from individuals to teams and whole organizations.
- Surviving and Thriving in a Delusional World
This is about accepting world as it is, not as we want it to be and making positive change when it is possible. Author discusses example of Maria – the person who lives in her own reality. Author provides a number of examples illustrating this point. At the end she presents a detailed guide of how to improve self-awareness by using this book.
MY TAKE ON IT:
There is little new for me in this book, but it is still interesting how much our success in live depends on understanding of ourselves and how others perceive us.
Generally tools that author provides are nice, but I doubt that it is possible formalizing such complex thing as self-awareness. It also probably not really possible to see how others perceive us, but it is still worth trying. In any case it is a nice refresher of notion that so much in our live depends on us and it is always useful to try harder to be more self-aware.
The main idea of this book is to use author’s experience as top secret analyst of American chain of command for nuclear weapons in 1950s and 60s to inform everybody in the world that this chain in unreliable, is far different and far less sophisticated than it is shown in the movies. Author also seems to intend to scare people into action against nuclear weapons by informing them that real control over such weapons is not in the hand of presidents, but rather in the hand of medium or even low rank field officers. Finally, even if author does not believes that anybody would really implement his suggestion, he provides recommendation on how to decrease American nuclear options.
Here author presents his credentials as the special assistant to Assistant of Defense secretary in order to establish that that he did had access to the top-secret information and really knows what he is writing about. After that he present a graph of expected casualties of nuclear war that runs into hundreds of millions. He claims that when he understood it he decided to prevent this from happening at any cost.
Here is a narrative of how he, as RAND consultant, was one of the main developers of guidance for the operational plans for general nuclear war and then was involved in handling Cuban crises. Then he describes how his conscious made him to copy what become Pentagon papers and lots of other classified documents in regard to nuclear planning that he kept separately with intention to disclose them later. Then he explains that reason for failing to do so was the loss of stolen top-secret documents by his brother. At the end he discusses his learning about American nuclear posture in 50s and 603, states his believe that nothing seriously changed, and presents a number of specific points that he would make in his briefing for president:
- Basic element of American nuclear posture did not change since 60s, especially hair-trigger alert
- USA strategic capability designed for the first strike
- US nuclear weapons in reality regularly used as pointed gun, even if trigger was not pulled since Hiroshima.
- US reject idea to forfeit the first strike, which in author’s opinion promotes proliferation
- American attack could be triggered by wide range of factors not limited to retaliation
- History of Cuban crisis is incorrect because it underestimates the level of danger of all out nuclear war at the time
- Nuclear command and control systems are unreliable and false alarm or some coincidence still could lead to massive nuclear attack
- All these facts are systematically concealed from the public
Part I: The Bomb and I
1: How Could I? The Making of a Nuclear War Planner
Here author narrates his story of growing in the family of professionals, his father’s involvement with development of nuclear weapons, and his refusal to continue this work after the end of WWII. It had no impact on authors career, since father kept it a secret, so author kind of independently moved through academia, then to RAND Corporation as analyst, and, eventually, as RAND consultant got involved in the decision-making theory application to making decisions in regard to nuclear weapons.
2: Command and Control: Managing Catastrophe
This chapter is about author’s research on vulnerability of command system for nuclear weapons. It describes really unreliable early warning systems, which had multiple false alarms and author describes one of the most dangerous when system defined with 99% probability that USA are under attack. At the time only presence of Soviet leader in New York prevented mass retaliation to non-existing attack. After that author discusses in quite a details his assignment to Pacific fleet and processes and deficiencies of nuclear posture of American forces such as: pilots trained to get to the plains daily, but never trained for massive take off, planning deficiencies when such as technically impossible flight plans and schedules, absence of contingency planning for accidents like collusion of planes with nuclear weapons, which could explode, creating false impression of being under nuclear attack and correspondingly mass retaliation, unreliability of communication, that made authorization from president problematic, and such. Overall author seems to encounter culture clash when military culture encouraged people to act aggressively and independently when not sure what is going on because failure to act could lead to the lost time and eventual defeat, while author’s academic culture encourages thorough deliberation with failure to act being not really that significant.
3: Delegation: How Many Fingers on the Button?
This chapter is about authority delegation from president down to lower levels to initiate nuclear strike. Author describes here that the common believe that only president can initiate a nuclear strike is incorrect. Since communications between president and multiple far away bases and fleets is not perfect and it is not unusual that communications interrupted so this power delegation was necessary if US were to avoid the first disarming strike against its forces.
4: Iwakuni: Nuclear Weapons off the Books
This is about US violating treaty with Japan that no nuclear weapons would be situated on its territory. Iwakuni was a base in Japan where American ships with nuclear weapons were based on permanent basis, technically violating the treaty.
5: The Pacific Command
Here author discusses military culture, specifically in the area that he was most familiar with – Pacific command. He especially was concerned that brasses did not see such a big problem in delegation power down, which author believes was unacceptable. Another issue very disturbing to the author was that the planners did not differentiate between China and USSR so attack by one of them would initiate retaliation against both. Author thought that it is a local problem with Pacific command, but later understood that it came from the top where leadership had no intention of leaving someone untouched when USA would experience huge loses.
6: The War Plan: Reading the JSCP
This chapter is about detailed plans of nuclear war that civilian leadership of country including secretary of defense were not familiar with. Author uses it to discuss overall relationships between elected civilian leadership and permanent military leadership, which generally were strained all the time. In author’s opinion military tended grossly overestimate Soviet forces and ability and correspondingly created plans and forces using great overkill.
7: Briefing Bundy
Bundy was Kennedy’s national security assistant and author briefed him on American war plans and his discoveries about command and control on Pacific. He stressed what he thought was the problem with delegation, only to find out later that it was consciously done by Eisenhauer, rather than being a product of unauthorized military overreach. It turned out that author findings that he considered unacceptable were pretty much in line with policies established from the top.
8: “My” War Plan
This describes author participation in development of the new National Security policy for Kennedy administration. Kennedy did not like Eisenhauer’s “mass retaliation” policy. He wanted “flexible” response to attack, so to minimize damage on both sides. Author describes his proposal that would meet this objective, such as instead of immediate use of all missiles use only partial forces and keep “strategic reserve” in order to slow down escalation, not attack enemy cities at one, remove automatic retaliation, everywhere were it was possible use non-nuclear forces, and so on.
9: Questions for the Joint Chiefs: How Many Will Die?
This is about response to Kennedy’s request for damage assessment based on JSCP plan. Author discusses questions that he prepared with clear objective to demonstrate deficiencies of military planning and incompetence of military leaders. Actually, the main point author makes is that for American president risk of all out nuclear war was acceptable in order to save USA as it is, but for author it was unacceptable doesn’t matter what consequences are. Author believed that Joint staff would come up with lowball estimates, but they told the truth about consequences of war – hundreds of million dead. Moreover, military was prepared to deliver the first strike if situation was clearly leading to the war. For author it was unthinkable.
10: Berlin and the Missile Gap
This is the story of Berlin crisis of 1961 when Soviets decide that they would not tolerate mass defection of Germans from East Germany via open West Berlin and demanded peace treaty and transfer control over the whole of Berlin to GDR. USA refused and it brought world to the brink of war. Eventually crisis was resolved by Soviets’ building the wall, but meanwhile military preparations and pressure was on both sides. Based on Soviet success in use of intercontinental rockets US estimated Soviet capability in hundreds of ballistic missiles, constituting a serious gap in missiles. Author claims that since surveillance identified only 4 intercontinental missiles, that gap did not really exist.
11: A Tale of Two Speeches
This is about perception that existed at the time that Soviets believe in their ability to deliver the first disarming strike and could be enticed to do just that. As result author claims that he and other developed speech for Kennedy that highlighted American power overall and demonstrated that first strike would not disarm USA. It caused direct response from Soviets, who were also afraid of the first strike against them. The big part of the problem was that politics of US democracy required reassuring population that current administration maintains or even expands American superiority, but it scared Soviets into believing that the first strike could be coming. Author believes that it caused Soviets to look for countermeasures and Cuba was one of them.
12: My Cuban Missile Crisis
This is retelling of pretty much well known story, only with some details from inside. However, it contains nothing significant.
13: Cuba: The Real Story
I guess the key point of author’s revelation is that top leaders risked a lot to avoid war and it was much more dangerous for Khrushchev, who eventually lost his position partially because of this. Another important part of the narrative is how little understanding is of how much it all depended on lower levels military commanders on both sides, who could use nuclear weapons without any authorization. Especially it applies to commanders of Soviet submarines who at great career risk decided to rise to service when pressed by American Navy, rather than use nuclear torpedoes, as it was required by standing orders.
Part II: The Road to Doomsday
In this part author looks at development of mass destruction weapons and tactics from before WWII and all the way to nuclear weapons and MAD strategy.
14: Bombing Cities; 15: Burning Cities; 16: Killing a Nation
These chapters are about strategic bombing in WWII, that started as impossibility and ended as routine. While initially intended as a method to undermine resolve of enemy population, it actually only increased it, at least until bombing was somewhat tolerable. Eventually it moved from psychological and narrowly military objectives to the objective of annihilating enemy population without much differentiation between combatants and non-combatants.
17: Risking Doomsday I: Atmospheric Ignition
This is about an idea of some possibility that explosion of nuclear device could ignite atmosphere and completely annihilate everything alive. Calculations that were conducted pointed to the very small probability of such event, but it still existed. Author obviously believes that at this point all work should stop and humanity should move away from producing nuclear weapons.
18: Risking Doomsday II: The Hell Bomb
This is about hydrogen bomb, which is not only much more powerful than nuclear, but also has no limit on its power. There were some people who were either against its development or wanted it to be conditional on competition. The main supporter of H-bomb development was Edward Teller and author obviously does not like this man. At the end author claims that it was done under incorrect assumption similarly to believe in Nazi’s advances that were a big driver of Manhattan project.
19: The Strangelove Paradox
The paradox here is between secret development of powerful weapons that are actually doomsday machines and their objective to prevent attack because if adversary does not know power of such weapons, these weapons would not stop this adversary. Author also discusses various scenarios around decapitation and validity of the first strike. Eventually it came down to the “dead hand” technology. Author goes into some details about Russian “Perimeter” system that would initiate nuclear strike automatically if it defined that the attack against Russia already occurred. Author assumes that similar systems were developed by all powers.
20: First-Use Threats: Using Our Nuclear Weapons
Here author discusses the use of nuclear weapons as not retaliation against use of these weapons, but as tool to achieve some objectives. He considers it hugely immoral and demands USA denounce such use regardless of what others like Russia and China would do.
21: Dismantling the Doomsday Machine
Author starts this chapter discussing quite ridiculous idea of slowing down earth movement so that Russian missiles would miss their targets. He uses this as example of insanity and then tries to prove that the very existence of such weapons is insanity. He provides a list of what measures he would like to see implemented, but at the end states that there is no real hope for this to happen. Here are his suggestions, which for some reason apply only to USA:
MY TAKE ON IT:
It is interesting to read about this staff from somebody who actually worked inside of this machine. The levels of organization and safeguard of nuclear weapons is pretty consistent with what I would expect based on my long experience observing control and command system in many other areas of live. However it does not cost me sleepless nights because I believe that normal people are actually more responsible than top-level politicians, because unlike politicians they do have habit of being responsible. The only thing that would really disturb me is if somebody as traitorous as the author of this book would really implemented author suggestions, creating impression for Russians, Chinese, and other enemies that USA is weakened enough to make their first strike an acceptable risk. However real live experience demonstrated that even such president, as Obama, who would probably agreed with author 100%, still was not able to disarm USA and open it for attack, probably to separation of powers implemented in American system. This kind of safeguards gives hope that this dangerous, but tolerable position of nuclear standup will last for next 50-60 or whatever it takes years, before everybody in the world would join Western civilization with its Democracy and market economy. When the whole world join civilization, the worldwide strict control with no exclusions would make it possible to move nuclear weapons to the dust been of history next to Nazism, Communism, Islamism, Chinese supremacism, and whatever other ism history will come up with before that.
The main idea here is to review the process of thinking and maintaining or changing one’s believes. This process includes a number of important abilities:
- Ability to tolerate and analyze opinions outside of one’s comfort area, overcoming “true believer” behavior patterns
- Ability to avoid assigning opponents some evil qualifications that would automatically invalidate their points
- Ability to be careful with words so to prevent unconscious accepting or rejecting of ideas based on aura of words used
- Ability to avoid lamping of notions into one bunch, making it difficult differentiate between them
- And most of all ability to understand opponent’s view on its merits, rather than reject it wholesale.
Another part of main idea is to provide tool in form of checklist to organize oneself for better and more effecting thinking.
It starts with the statement that the process of thinking is very important and that we often get it wrong. Author then provides an example of “thinking in action”: buying a car and then reviews all considerations that are going into this decision. After that he moves to Kahneman’s idea of thinking quick and slow, trying to demonstrate that “speed kills”. Next, he moves to an essay by Robinson that discuss consensus and emotions using example of Puritans and their image in popular culture that has little to do with historic reality. He uses it as an example of “everybody is knowing a little bit about a lot of things”. Another point is that when we do not know, we tend to develop emotional attachment to socially approved views. For many people it is becoming quite complicated because we all belong to multiple communities with not necessary consistent socially approved view. The final part of introduction refers to author’s believe that his book provides kind of “diagnostic” approach to the problem of quality thinking, similar to medical approach to symptoms of diseases.
Chapter One: Beginning to Think
This starts with the story of a member of Westboro Church being converted to more civilized attitude via Internet connection to the person with different views who treated her nicely. One of the most important steps in this process was her initial attempt to reject all communications with this person in order to protect her believes. From here author moves to a notion that “thinking for self” is not really possible because humans exist in connection with others and even if one comes up with original deviation from common believes, he would encounter active and sometimes violent resistance from other members of a group. After that author looks at the experiment with Mills junior who was raised in environment of reason and forceful logic that he eventually rebelled against. Author uses this as a study case of relations between reason and emotions. The next point author makes is by using the story of basketball player who was applying in his game less effective, but more attractive to viewers technic, explaining that his real objective was attract girls rather than win games. Author completes this chapter with reference to “What’s the matter with Kansas” pointing out that nobody really can say what is good for other individuals, only themselves.
Chapter Two: Attractions
This chapter once again starts with a person who moved away from the set of believes he grew up with to another set. This time it was from atheism to religion. Interestingly, it occurred in framework of Yale Political Union debate society. The atheist just failed to find logical reasons to contradict theists. Here author refer to Jonathan Haidt’s idea of personality-defined views to which people attracted. The next point is coming from Lewis and Hoffer’s “True Believer” about the need of belonging and links to it membership and compliance with the group worldview. The next part of this chapter is about adjustment that one makes to get what he wants – in author’s case it was correct his views to get his article published in Harper’s. Finally, author uses Ta-Nehisi Goates’s demand for reparations to discuss notion of who derives what and when and how it all should be negotiated.
Chapter Three: Repulsions
This chapter is about tolerance in thinking. It starts with a nice piece on outgroup and how people tend to punish outsiders for being outsiders. Author looks at it from the point of view of two somewhat hostile groups to both of which he belongs: Christians and Academia. Next, he discusses what he calls Bulverism after the name of one of personage of C.S Lewis who present such attitudes: “First assume that your opponent is wrong, then explain his error, but do not try to really find out if he really is wrong or not”. As historical example author provides polemic between Martin Luther and Thomas Moor, which was by far viler, than whatever we can hear now. Finally, author looks at the idea of Rationalia and demonstrates that this could not possibly work in real live because it would require constant System 2 slow thinking that would make all actions all but impossible.
Chapter Four: The Money of Fools
These money are would-be words, which are issued easily, but could convey no meaning or just pure falsehoods. One of the interesting uses, however, is use of some key words that signify common attributes and group belongings. Author provides a number of example and a nice quote from Orwell. Then he goes into power of metaphors, especially war related that put argument into its own fight category. Author then refers to Lakoff’s and its companion Mary Migley book “The Myths we live by”. The point here is that myths are not lies, but rather self-contained representation of the world. Author also discusses contemporary, somewhat Twitter related trend to convey information and ideas produced by others in form of “shorter”, which often distorts transferred ideas, sometime to the level of completely opposite to original. The final discussion of this chapter is about notions of dual booting coming from computers using two operating systems and method acting of actors, both being used as metaphor for attitudes defined by circumstances.
Chapter Five: The Age of Lumping
This is about contemporary habit of lamping together often poorly related people, ideas, and everything else. Author discusses continually growing abbreviation monsters like LGBTQ… and such. Then he moves to poorly translated Lenin’s “Who Whom” changing meaning from who will win in a struggle, into who control whom. This lead to discussion of removing historic names and statues as result of lumping, for example the lumping of the all people of Civil war period South and its soldiers together with idea of slavery. As a countermeasure, author presents value of idea of splitting that should lead to the analysis at the level of individuality, which would be much more reasonable approach to their merits or demerits.
Chapter Six: Open and Shut
This starts with author pointing out that open mind is not only impossible because everybody has convictions, but also unadvisable. As example he brings kidnapping – the activity for which open-minded approach would be more than strange. After that author goes into details of looking at vices, virtues, and sunk costs. As the final point author brings bubbles whether market or ideological and true believers that shut their minds so profoundly that they continue believe regardless of how many times these believes were falsified by events.
Chapter Seven: A Person, Thinking
This is an interesting approach to the connection between language, thinking, and acting. Specifically, it is about English and Democracy. Author uses work of David Foster Wallace. He discusses an interesting notion of Democratic Spirit:
As example of forbearance necessary in democratic debates author uses long going abortion debates in America.
Conclusion: The Pleasures and Dangers of Thinking
The conclusion is about such dangers as change of mind leading to ideological conflict with one’s environment, loosing friends, and eventually being thrown out into the cold. On the pleasure side is finding the truth, getting joy from helping others do the same, and, very important, continue the intellectual journey without final destination.
Afterword: The Thinking Person’s Checklist
MY TAKE ON IT:
It’s a useful book, but it makes a very big assumption that objective of thinking is to obtain some truth and/or convince opponent that one’s opinion conveys such truth. In reality people generally have objective of confirming their own goodness, maintaining whatever benefits they have material or immaterial such as prestige, self-esteem, and confirmation of relevant members of one’s group. Examples of ideological transformation that author provides mainly occur in the process of individual changing his/her group association. I personally believe that the best way to achieve conversion from any ideological position to any other ideological position if to demonstrate very convincingly for individual that he would be better off after changing group association, again either materially or psychologically or both. Neither facts, nor logic, nor anything else would change person position if he/she convinced that continuing association with current group is the most beneficial materially or psychologically.
The main idea of this book is that American legal system, as it stands now, works to benefit lawyers more than anybody else. It is done by overcomplicating proceedings to such extend that normally average educated lay person could not possibly represent self not only in criminal, but even in civil cases. Moreover, in any serious case even professional and outstanding lawyers need another lawyers’ support. It is a huge deviation from original American legal system when per se was not only possible, but also prevalent. This created overblown demand for lawyers that is not possible to satisfy because they are too expensive even for middle class. The remedy provided by Gideon is not effective because free lawyers are overloaded and could not possible handle all cases. The real remedy to these problems should be: simplification of legal process, expansion of paralegal support to substitute lawyers in simple cases, and technology that could help process routine legal tasks. In short: “Less Lawyers, More Justice”.
This starts with the real live case when authors believe accused murderer did not get a decent defense and then they proceed presenting statistics that justice is often denied in USA such as results of polling of judges with 94% pointing out deficiencies. After that authors move to civil cases, demonstrating that they are also underserved because contemporary American justice requires heavy involvement of professional lawyers, which is not feasible in many cases. Authors discuss Gideon that created requirement to provide free lawyer for poor and demonstrate that it did not really help enough so further and significant changes are required. At the end of the introduction they provide a brief description of each chapter’s content.
Here is brief description by authors:
Part I. The Problem
This part explains the contours of our access-to-justice crisis
- The Reality of Criminal Justice for Poor Defendants
This chapter describes the issue in criminal courts. Criminal defense is, and always has been, radically underfunded in comparison to prosecution and police resources. This underfunding drives larger caseloads, fewer investigatory resources, and much lower salaries. The upshot? Systematic ineffective assistance of counsel is prevalent all over the country. It would be an easy problem to solve if it were a few bad apples. Instead, the system itself forces appointed defense lawyers to plea out as many cases as they can as quickly as possible, often with little investigation and less legal work. Underfunding breeds overwork, and together they lead to poor defense lawyering. The reality is much darker than Gideon’s shining ideal.
- How We Got Here: Criminal Defense
Chapter 3 describes the history of the right to appointed counsel in criminal cases, from colonial times to the present. In the eighteenth and nineteenth centuries, there was no constitutional right to appointed counsel, but criminal procedure was much more straightforward and a literate citizen could represent himself in court relatively easily. In the twentieth century criminal procedure became more complicated and having a lawyer changed from a luxury to a necessity. Courts responded by creating and then expanding a right to appointed counsel. This right started with death penalty cases and then spread to felonies in federal courts, then to state court felonies in Gideon, and eventually to any misdemeanor threatening even a day in jail. This expansion, however, was not accompanied by a strong right to effective counsel. Courts have been very hesitant to second-guess even facially deficient lawyering or to order any particular level of funding or to limit caseloads. What was the predictable result? Defendants have a right to a lawyer but no particular level of service.
- Access to Justice in Civil Courts
Chapter 4 lays out the problem in civil courts. Legal aid funding has been in steady decline since the 1990s, and is down 63% from its high point in the 1980s. Because of limited funding, legal aid organizations turn away more than half of the eligible persons seeking help. Pro bono (charity, free legal help) has grown, but cannot possibly meet the overwhelming need. And legal aid and pro bono are only for the very poor; there is no help for the middle class. If a middle-class person needs a divorce or change in child custody, or must probate a will, she will need to pay a lawyer for help or proceed doing this pro se. Despite a glut of law graduates and unemployed lawyers, hourly rates remain stubbornly high (averaging $190 an hour even for solo practitioners), and even the simplest legal tasks are likely to cost thousands of dollars. Predictably, this has led a number of Americans to “lump it” (live with their legal problems) or proceed in court without a lawyer. But many American courts are not set up to handle pro se cases, and some are outright hostile. The end result is that in the country with the most lawyers per capita, a huge chunk of the population cannot afford to access the courts for the most basic of legal problems like divorce, child custody, and property
- How We Got Here: Civil Law
Chapter 5 addresses the history of the poor and middle class in civil courts. As with criminal law, civil-court procedures and the underlying laws in the eighteenth and nineteenth centuries were simple enough that literate Americans could represent themselves. For example, in the mid-nineteenth century, a number of states allowed any citizen to appear in court. From the 1880s on civil courts came to be lawyers dominated and it was harder for the poor. Charitable legal aid societies were formed to help the “deserving poor” and were eventually converted into government programs, but they have never come close to meeting the needs of the poor, let alone the middle class. Other solutions-pro bono, increased legal aid funding, court appointments, and a proposed civil Gideon right – have all failed. Despite the good intentions of everyone involved, access to civil justice continues to erode.
- The Political Economy of Gideon and Civil Gideon
Chapter 6 explains the political economy of our current mess. If everyone agrees that we have a problem, why has it kept getting worse? Part of the answer is the time and expense of legal education, and part is our adversarial system’s expectation that each side will hire a capable lawyer for itself. Part of the answer is legislative indifference to funding free civil and criminal lawyers. Part of it is natural judicial hesitation to order any particular level of funding or to expand Gideon into civil cases. Part of it is that high defense lawyer caseloads and low funding are key ingredients in America’s shift to a plea-driven system. If we spent more on criminal defense, there would be more investigation, more motions, and more trials. In a nation of rising caseloads and fixed judicial resources, that would worsen the backlog of cases.
Part II. How We Fix It
Part II turns to how America might start to fix this message. The message of Part I sounds gloomy, even fatalistic. Progressive social engineering to provide more lawyers seems doomed to fail. But we must stop confusing lawyers with justice. The prospects for improving access to justice are much better if we are willing to think outside the box, beyond giving each person a full-service lawyer for free. For years, Civil Gideon advocates have argued for transplanting the broken Gideon system from criminal courts into civil courts. In Part II, we argue that is exactly backwards-the nascent pro se court reforms of civil justice should be transplanted into our broken criminal courts.
- Against “More Lawyers More Justice”
Chapter 7 critiques the old ways of addressing these problems, what we call the “more lawyers, more justice” fallacy. It begins with the failed movement for a civil equivalent of Gideon. The Supreme Court has twice rejected civil Gideon, most recently in Turner v. Rogers, a 9-o decision (on which both authors worked on the winning side). Turner signals the death of civil Gideon for the foreseeable future. Civil Gideon is not only unrealistic but unworkable. Gideon has largely failed in criminal courts and would work even worse in civil courts. Creating such a right would make lawsuits slower and more complex, turning them against unrepresented litigants on the other side. The evidence that lawyers are necessary in all cases is surprisingly weak, particularly for simpler disputes. Time and money are limited, and lawyers are too expensive. Plus, courts are much worse at social reform than at doing justice in individual cases. Similarly, we need to break out of the political and legal arguments that have crippled Gideon’s great promise on the criminal side. America will never be able to offer every criminal defendant facing any amount of jail time a criminal defense equal to what the wealthy can afford. But we can focus our efforts on the cases that so desperately need our attention and care: serious felonies.
- Techno-Optimism and Access to Justice
Chapters 8-11 describe the new approaches that have been most successful. Pro se court reform, technology, and a loosening of restrictions on legal practice are transforming some courts from a hidebound anti-pro se attitude into simpler, fairer places where litigants can succeed with or without a lawyer’s assistance. While there are few reasons to be optimistic about the failed approaches of the past, there are many reasons for optimism today. But we must not let vested interests – judges, clerks, and lawyers get in the way.
Chapter 8 discusses technological innovations. Private, nonprofit, and government computerization of legal services have already transformed the market, and we are in the very nascent stages of this revolution. It will be a long time before computers can replicate human legal reasoning fully. But computers can already outperform humans on many routine legal tasks and, as data collection and computing power improve, computers will be able to do more and more. Legal publishers can provide interactive websites and tillable forms for routine transactions. Hotlines, chat rooms, and message boards can answer discrete questions without requiring full-service representation. And interactive websites promise faster, cheaper adjudication without having to gather everyone in the same room at the same time. Internet merchants such as eBay have already proven that online dispute resolution can work cheaply and smoothly.
- Court Reform
Chapter 9 discusses pro se court reform. There are plenty of ways to simplify procedures, forms, and rules so non-lawyers can represent themselves pro se, and many of the most promising reforms have already started. Court clerks should actively assist pro se litigants. Some courts have hired dedicated pro se clerks. America should even expand small claims courts, which often ban lawyers in order to keep proceedings simple and fast enough for non-lawyers. This chapter also argues that we should change the judicial role in some American courts. We can learn from the American system of administrative law judges and from European courts. We can adapt the inquisitorial system, in which court officials actively investigate the facts and probe the evidence instead of relying on the parties’ lawyers. That approach can cut through distracting procedural games to focus on the facts and issues at the heart of a case. Though inquisitorial judging sounds like an exotic foreign transplant, American Administrative agencies already use methods to adjudicate unemployment and Social Security disability claims, and so do small claims courts. In fact, many Americans may be more with inquisitorial systems thanks to Judge Judy, Judge John Brown, and their many imitators.
- Cheaper Lawyers and Paraprofessionals
Chapter 10 describes how we can generate cheaper lawyers and paralegals. Legal education is at an inflection point and, for the first time since the 19506, the possibility of a cheaper, shorter, and more flexible route into practice might be a reality. Right now, students must invest three years and more than $150,000 to qualify as public defenders. Yet, many argue that the current third year of law school is largely superfluous. In many other countries, paralegals, social workers, and notaries provide a range of legal services. Some states have started to experiment with licensing non-lawyers to practice law outside of court. These “limited license legal technician” programs should be expanded. And America must relax its rules against unauthorized practice of law to open the door to these paraprofessionals, much as the medical profession now allows nurse practitioners and physician assistants to provide simple care.
- Criminal Case Triage
Chapter 11 describes how some of these approaches can be imported to criminal court where they should not. America needs to do triage, and felony cases deserve the most funding and attention: They carry the heaviest punishments, the worst collateral consequences (such as deportation), and the most stigma. They also have the most complicated procedures, such as jury trials and related motions, which require lawyers to navigate them. We envision a grand bargain, in which public defenders would spend much more time up front investigating, negotiating and defending felonies. They would also have substantially more support, ranging from private investigators to forensic and medical expert. Their salaries, caseloads, and support should be comparable to those of prosecutors, and their performance standards need more teeth.
By comparison, minor criminal matters should be handled in a manner that does not require lawyers at all, by the state or the defendant~ Simpler cases need cheaper solutions. That is the other half of the grand bargain: cutting lawyers elsewhere to save more for felony defense. The government should not have to provide free lawyers for minor misdemeanors that carry no serious collateral consequences, and states should experiment with simpler, cheaper ways to try these cases. Prosecutors would have incentives to send less serious eases to these faster courts, reserving felony charges for more serious eases that deserved them.
- Conclusion: Fewer Lawyers, More Justice
Chapter 12 concludes the book on both a hopeful and cautionary note. In the face of these problems, reformers may be paralyzed by pessimism, or forget the past and be doomed to repeat it. Efforts to expand Gideon’s dream have repeatedly failed. But Chapter 12’s conclusion argues that these failures can pave a new road to success. Advances in law, medicine, and technology point reward a very different model, one that is simplex, cheaper, more flexible, and less regulated. The current crisis poses a danger, but also an opportunity to loosen lawyers’ monopoly and increase overall access to justice.
Technology also requires a note of caution, however: Technological advances have also made our legal system’s burgeoning complexity possible. Courts, regulators, and legislatures have seemingly endless resources to add layers of additional complexity to our already overweening substantive law. This chapter recognizes that procedural complexity is easier to achieve and more popular, so our book focuses on those solutions.
MY TAKE ON IT:
From all I know, authors’ description of the legal system is seemingly correct as well as diagnosis of its main flaws. The prescription, however, seems to be trivial. I think that it would not be enough. I believe that the main problem is not lack of resources, but rather inequality of their allocation. American legal system has competitive character and as such becomes greatly dysfunctional when competitive sides have hugely unequal access to resources. Whether it is government prosecutor with unlimited access to resources against individual with very limited access, or it is rich man against poor man, the result would always benefit resources rich side. My remedy would be separation of justice processing: investigation – prosecution –judgment between 3 unconnected entities, unlike currently one closely connected entity on investigative / procecutorial side. In my opinion, the investigative entity should be completely independent and have equal interaction with both prosecution and defense, each of which in turn should be completely independent from each other. Currently seemingly independent judges in reality often have background as state attorneys and correspondingly approach cases from point of view of the state. In order to avoid preset legal approaches, judges should be selected from non-legal background at the age when individuals already have a proven success in other areas of live and correspondingly accumulated some wisdom in dealing with diverse people. They should be given 2-3 years deep legal education specifically designed to train them as judges. They also should be limited to a specific time period on the bench, so that they would not have time to develop too much arrogance. As to inequality resources, it could be resolved by demanding competing sides to provide resources into one pool from which equally distribute them to prosecution and defense. The investigating branch should be concerned only with proper collection of evidence and nothing else. Prosecution and Defense should be concerned only with interpretation of evidence in such way as to benefit their corresponding side, and judges should be concerned only with proper application of existing laws in such way that all sides accepted decision as consistent with the law. Judges also should have responsibility to highlight any deficiency in the law itself, if they believe it exists, and present it to legislative branch of government for action.