May|June 2004
KIDS AND COURTS
In "Deep Impact" (January | February), Daphne Eviatar mischaracterizes a key point that we make in our book, Democracy by Decree: What Happens When Courts Run Government. Eviatar says that we "want to disarm the child-advocate lawyers." To the contrary, in our book we repeatedly emphasize that "we want judges to enforce rights because government must not be above the law." Our objection is to the decrees in many institutional reform cases that intrude on managerial flexibility more than is necessary to protect rights.
The basis for our concern is not, as she characterizes it, the familiar "conservative" line about aggressive judges usurping elected officials, but rather elected officials using court decrees to evade responsibility. We argue that decrees stifle the ability to look for flexible solutions. This happens when officials are bound by the detailed prescriptions of decrees that remain in force for decades and cannot easily be changed. The result is management by paralysis that often fails the class whose interest the litigation was supposed to serve.
The need for flexibility is what prompted New York Children's Services commissioner Nicholas Scoppetta to refuse to agree to a decree that would have handed over power to child advocates. Eviatar notes that Scoppetta thought the litigation brought by child advocates was counterproductive. But she does not mention that, to Scoppetta's credit, an independent panel found in 2000 that under his leadership the city worked in good faith to fix the agency and that since then there has been no new class action alleging systemic failure by the Administration for Children's Services.
Prof. Ross Sandler
Prof. David Schoenbrod
New York Law School
In their book Democracy by Decree, Ross Sandler and David Schoenbrod do not so much rely on my book, The Lost Children of Wilder, as hijack it for their own polemical ends. Daphne Eviatar seems to go along for the ride—at least until the final paragraphs of her intelligent, well-written, but flawed piece.
My book details the 1973 lawsuit Wilder v. Sugarman (later Wilder v. Bernstein), which challenged the constitutionality of the New York City foster care system on behalf of Shirley Wilder, a 13-year-old black Protestant refused care by publicly financed Catholic and Jewish agencies. My book does not say, nor do I believe, that the Wilder lawsuit was futile, let alone that it demonstrates the futility of all "class-action litigation to improve child welfare services," as Eviatar claimed. Yet her misreading seems to be on its way to becoming a mainstay of the short-sighted argument that lawyers and court decrees are the problem because they've failed to provide a quick fix.
The Constitution holds out the promise that inequalities of wealth and power can be erased in the courtroom. As the history of Wilder shows, reality falls short of that ideal. That such ambitious lawsuits fall short does not mean they are futile or unnecessary. Even less does it mean, in an age of tax cuts for the rich, that the most marginalized children of the poor would fare better if government officials were left to their own devices.
Nina Bernstein
New York, N.Y.
Daphne Eviatar responds:
Ross Sandler and David Schoenbrod can say that they "want judges to enforce rights." But the thrust of their book's argument is that when government officials are sued, they get to determine what those rights are. Instead of being provided with specifics like regular caseworker visits to foster homes, then, children might have some vague right to "adequate care," however it's defined at the time. But such "rights" aren't rights at all: they're an abdication of the courts' responsibility to enforce federal law.
It's odd that Sandler and Schoenbrod would point to the panel of experts that found New York City had been working in good faith to improve child welfare as an example of why we should trust government. Have they forgotten that the expert panel was only created as a condition of settling a massive class-action lawsuit?
As for Nina Bernstein's response, I agree completely that this is not the time to be shielding government officials from the threat of lawsuits. Her book does an excellent job of bringing to light the awful reality of the lives of children like Shirley Wilder. My only complaint is that she didn't go a step further and acknowledge the important role of litigation, despite its limits and the particular problems that plagued the Wilder case. The difficulty that perhaps we both faced in writing about these complex cases is that they will always seem costly, burdensome, arcane, and even, at times, absurd. But that's because our legal system lets government officials while defending themselves retain their authority. It's not because, as Sandler and Schoenbrod and the growing chorus of litigation's critics would have us believe, advocates for the disadvantaged wield inordinate power in our indifferent society.
FURTHER DELIBERATION
Richard Posner's "Smooth Sailing" (January | February), in which he argues against the proposal for a holiday to allow voters to discuss issues prior to national elections, reveals much about what the author fails to see. For decades Posner has seen society's conundrums through a single lens: market economics.
Posner celebrates low voter turnout as a hallmark of contemporary democratic success. His reasoning goes like this: Not voting is a rational choice, and it is itself a form of voting in a market democracy. Under Posner's view, we live in the best of all possible democracies even if no one shows up to vote.
Posner's article reveals nothing so much as how out of touch he's become with how markets actually work. Deliberation Day offers one solution for bettering our democracy. Is it perfect? Of course not. But instead of heeding the dismissive remarks of critics like Posner, we ought to do what those who compete in real markets do: Try it out and see what we learn.
Douglas K. Smith
LaGrangeville, N.Y.
UNREASONABLE CLAIMS
In his examination of the term "reasonable doubt" ("No Uncertain Terms," January | February) Stephen J. Fortunato's conclusions are unfounded. He claims that some 7,000 innocent people would be in jail if, say, 10 percent of convictions were wrong each year. Where's the research showing that this figure is plausible? It's ridiculous to make such a claim, considering that expanded DNA testing is showing us that wrongful convictions are actually quite rare. The picture of our criminal justice system emerging from expanding DNA databasing is an evolving one. Fortunato should refrain from making such sweeping assumptions before the evidence is in.
Tina Trent
Atlanta, Ga.
MAIL-ORDER MARRIAGE
We write to correct a misstatement in "Mrs. America" (January | February), Nadya Labi's article exploring the incidence of abuse in "mail-order marriages." Labi cites a study released by the Immigration and Naturalization Service in 1999 from which she draws the conclusion that "mail-order brides suffer abuse less frequently than homegrown wives." The study does not say this, nor does it support this conclusion. Quite the contrary: The INS study cites a 1993 estimate that 7 percent of American women who are married or living with a partner are physically abused by partners each year, adding that "it is usually assumed by experts that the incidence is higher in mail-order marriages."
This assumption is supported by other studies. A 1998 Commonwealth Fund survey said that 31 percent of American women say they've been abused by an intimate partner. But among segments of immigrant women dependent on their spouses for legal status, the incidence of abuse rises to 77 percent, according to a survey of Latinas in Washington, D.C., cited by the House Judiciary Committee in its report on the Violence Against Women Act (VAWA) of 1993. Women in brokered marriages share many of the critical vulnerabilities of this Latina survey group. The women in brokered marriages are far from their homes, often speak poor English, and aren't aware of their legal rights. Recognizing this fact, the 1999 INS study stresses that "[w]hile no national figures exist on abuse of alien wives, there is every reason to believe that the incidence is higher in this population than for the nation as a whole."
Misconstruing the evidence as Labi did could lead to the conclusion that women in brokered marriages don't need help. The real message broadcast by the 1999 INS study is that help is desperately needed.
Layli Miller-Muro, Esq.
Executive Director, Tahirih Justice Center
Jeanne Smoot, Esq.
Public Policy Counsel, Tahirih Justice Center
Robert B. Ahdieh
Associate Professor, Emory School of Law
