Law, Peter A. Allard School of
DSpace
UBCV
Peterson, Ryan
Master of Laws - LLM
University of British Columbia
This work presents a dynamic, comprehensive study of the intersectionality between homelessness and law through the application of the Context Theory of Law. Previous work on this topic points to a specific problem: the data available cannot be relied upon because the numbers are not static, the population of unhoused people is transient, and the ability to gather information on unhoused persons is exceedingly limited. Context Theory, as developed and applied in this work, provides a theoretical framework to engage with unhoused people. This work argues that the failings of the existing legal framework cannot be effectively addressed without first earning the trust of those who are homeless and endeavoring to hear the ‘homeless’ side of the homeless ‘problem’. This critique is particularly pointed regarding academia’s adoption of a narrative of homelessness and law as portrayed by legal scholars rather than homeless individuals. The existing scholarship addresses the points at which the law acknowledges the intersectionality between homelessness and the legal system but fails to consider the points at which those who eventually become homeless establish a relationship with the law. This disconnect prevents researchers and legislators from predicting and understanding the circumstances that contribute to homelessness. For these reasons, the Context approach is qualitative, integrating in-person interviews and field research with available data to present a more prescient analysis of issues than can be gleaned from statistic-dependent structures. By extending beyond the bounds of quantitative analysis, this work contributes context to a pervasive and persistent problem within the legal academy and broader society. Beyond the academic results, the narratives collected provide an opportunity for the legal community to empathize with the homeless population. Without the adoption of empathy, the research suggests the legal community will continue to stammer vapid soliloquies in lieu of offering tangible solutions to homelessness; the result of such empty platitudes will continue to be the waste of billions of dollars every year on policies and procedures that amount to throwing a box of matches at a frozen corpse.
Applying Context Theory: The Narrative of Homelessness and Law by Ryan Peterson B.A., Iowa State University, 2013 J.D., University of Oregon, 2017 M.A., Iowa State University, 2020 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in The Faculty of Graduate and Postdoctoral Studies THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver) March 2023 © Ryan Peterson, 2023 ii The following individuals certify that they have read, and recommend to the Faculty of Graduate and Postdoctoral Studies for acceptance, the thesis entitled: Applying Context Theory: The Narrative of Homelessness and Law submitted by Ryan Peterson in partial fulfillment of the requirements for the degree of Master of Laws in Law Examining Committee: Alexandra Flynn, Associate Professor, Law, UBC Supervisor Michelle LeBaron, Professor, Law, UBC Supervisory Committee Member iii Abstract This work presents a dynamic, comprehensive study of the intersectionality between homelessness and law through the application of the Context Theory of Law. Previous work on this topic points to a specific problem: the data available cannot be relied upon because the numbers are not static, the population of unhoused people is transient, and the ability to gather information on unhoused persons is exceedingly limited. Context Theory, as developed and applied in this work, provides a theoretical framework to engage with unhoused people. This work argues that the failings of the existing legal framework cannot be effectively addressed without first earning the trust of those who are homeless and endeavoring to hear the ‘homeless’ side of the homeless ‘problem’. This critique is particularly pointed regarding academia’s adoption of a narrative of homelessness and law as portrayed by legal scholars rather than homeless individuals. The existing scholarship addresses the points at which the law acknowledges the intersectionality between homelessness and the legal system but fails to consider the points at which those who eventually become homeless establish a relationship with the law. This disconnect prevents researchers and legislators from predicting and understanding the circumstances that contribute to homelessness. For these reasons, the Context approach is qualitative, integrating in-person interviews and field research with available data to present a more prescient analysis of issues than can be gleaned from statistic-dependent structures. By extending beyond the bounds of quantitative analysis, this work contributes context to a pervasive and persistent problem within the legal academy and broader society. Beyond the academic results, the narratives collected provide an opportunity for the legal community to empathize with the homeless population. Without the adoption of empathy, the research suggests the legal community will continue to stammer vapid soliloquies in lieu of offering tangible solutions to homelessness; the result of such empty platitudes will continue to be the waste of billions of dollars every year on policies and procedures that amount to throwing a box of matches at a frozen corpse. iv Lay Summary This work follows the narratives of homeless individuals to understand how the law applies to their experiences. It aims to give a voice to those who are silenced by the law and allows them to tell scholars and practitioners what they need from our institutions. The narrative format aspires to create empathy within the reader. It encourages the reader to participate in an inquiry of her own. The ultimate goal is to build a bridge and link the homeless and the affluent through shared human experiences and common stories. After careful consideration and review, this work presents a new theory of legal interpretation. The theory is called Context Theory. Context Theory encourages us to see the development, structure, and application of law within the circumstances that generate individual narratives and lived experiences. v Preface This thesis is an original intellectual product of the author, Ryan Peterson. The fieldwork reported in Chapters 5- 9 were covered by UBC Ethics Certificate number H19-01956. vi Table of Contents Abstract ............................................................................................................................. iii Lay Summary ................................................................................................................... iv Preface ................................................................................................................................ v Table of Contents ............................................................................................................. vi Acknowledgements .......................................................................................................... ix Chapter 1: Introduction ................................................................................................... 1 1.1 Shock-Based Discovery ............................................................................................ 1 1.2 Purposeful Development ........................................................................................... 7 1.3 Structure and Outline .............................................................................................. 12 1.4 Context Theory as an Invitation for Critical Self-Analysis .................................... 16 Chapter 2: Theoretical Orientation .............................................................................. 20 2.1 Grounding Law and Theory .................................................................................... 22 Three Assumptions of Legal Positivism .................................................................... 22 2.2 Historical Illusions of Objectivity ........................................................................... 27 2.3 Dated Nature of Legal Empiricism and the Need for Something New .................. 33 2.4 The Pathway Forward ............................................................................................. 37 Chapter 3: Nussbaum’s Capacities and Context Theory ............................................. 39 3.1 Reaching Nussbaum’s Capacities ........................................................................... 41 3.2 Empathy and Its Inherent Defiance to Empiricism ................................................. 47 3.3 Context Theory’s Response and Adaptation of Nussbaum’s Three Principles ...... 51 3.4 Foundations and Proposals for the Context Theory of Law ................................... 56 3.5 Subsystems, Law, and the Context of Communication .......................................... 59 3.6 A Plea to Scholars, Context Theory, and the Hope of a Better System .................. 63 Chapter 4: Methodology................................................................................................. 67 4.1 Goals of the Project and Choice of Methods .......................................................... 68 4.2 Addressing Bias Through Immanent Transcendence ............................................. 71 4.3 Transcending Bias through Reflective Interviews .................................................. 75 4.4 Understanding the Dangers and the Need for Reflexive Interviews....................... 78 4.5 Method and the Confrontation of Bias.................................................................... 82 4.6 Why We Struggle to Study Homelessness, the Realities of Chance ...................... 85 4.7 Research Methods and Ethics ................................................................................. 88 4.8 Official Interviews and What Gets Recorded ......................................................... 95 Chapter 5: Structuration of Time and Law ................................................................. 99 5.1 What Time Means for the Law and Legal Scholars ............................................... 99 vii 5.2 How Time is a Critical Element in Human Dignity and the Ten Capacities ........ 104 5.3 Courtney’s Living Experience with Time and Grief ............................................ 105 5.4 Time as a Non-Newtonian Social Creation .......................................................... 109 5.5 Homelessness Dooms You to the Reincarnation of Time .................................... 111 5.6 Courtney’s Experience with Domestic Abuse and Time ...................................... 115 5.7 When Chance Strikes and Techne Fails, We Seek Blame .................................... 119 5.8 What Contextual Time Looks Like in the Law .................................................... 124 5.9 Law’s Linear Time, an Antagonist to Reincarnation ............................................ 125 Chapter 6: From Behind a Desk .................................................................................. 128 6.1 Roy Willett, An Uncommon Kind of Man Among Silos of Classification .......... 129 6.2 Inhuman Services on the Greenway ..................................................................... 132 6.3 The Choice Not Given, Respect Versus Survival ................................................. 136 6.4 Barriers to Context and Rottweilers on the Greenway ......................................... 140 6.5 Roy’s Insights and Techne as a Tool .................................................................... 146 6.6 Meaning of a Rottweiler ....................................................................................... 150 6.7 Updated Status on Courtney ................................................................................. 154 Chapter 7: Ontological Security of Institutions ......................................................... 156 7.1 Assumptions of Ontology ..................................................................................... 158 7.2 Ontological Connections Between Education, Family, and Law ......................... 163 7.3 Operational Definition of Ontology ...................................................................... 166 7.4 Application of Ontology and Ashley Tierney ....................................................... 169 7.5 Fault-Based Services and Nussbaum’s Capacities ............................................... 174 7.6 Agency Solutions to Ontological Insecurity ......................................................... 177 7.7 Falling Between the Cracks .................................................................................. 180 Chapter 8: Epistemology as Bad Medicine ................................................................. 183 8.1 Kuhn and Epistemological Resistance of Law ..................................................... 184 8.2 Wall of Forgotten Natives ..................................................................................... 187 8.3 Replacing Epistemology with Medicine ............................................................... 191 8.4 Medicating the Buzzkill of Reality ....................................................................... 195 8.5 Sometimes Falling Feels Like Flying ................................................................... 197 8.6 Law’s Avoidance of Buzzkills .............................................................................. 201 8.7 One Good Update ................................................................................................. 205 Chapter 9: A Return to Chance ................................................................................... 206 9.1 The Power of a Few Words .................................................................................. 210 viii 9.2 The Boy Who Got Lucky ...................................................................................... 213 9.3 The Split and Defiance of Expectation ................................................................. 221 9.4 Recognizing Pain as a Human Expression and a Bridge ...................................... 225 9.5 Hope Comes from Pain ......................................................................................... 230 Chapter 10: Conclusion ................................................................................................ 232 10.1 Why I Failed ....................................................................................................... 235 10.2 Guiding Questions .............................................................................................. 238 10.3 A Future Worth Studying.................................................................................... 241 Bibliography .................................................................................................................. 243 ix Acknowledgements If I have learned anything as a distance runner it is that none of us can do it alone. My wife, family, and friends traverse the desert and climb mountains to bring me to the finish line. That truth applies equally to all meaningful endeavors. Especially in this work, I would like to recognize those who got me to the starting line and kept pushing me to finish. While I do not intend any rank of preferences, there are several individuals who truly deserve more thanks—the people who shared their stories without recognition or the hope of gaining any benefit from such vulnerability. First, I must thank Courtney Montour. She was the first individual to share her story. She openly discussed domestic violence and gave more than would have been fair for anyone to ask. My heart breaks for Courtney as I fear that she is now dead. I hope I am wrong. But while I work in the safety of my home it is a reality that the individuals who shared in this work may no longer be with us. The second person to share her story for this work was Ashley Tierney. Ashley is a mother whose medical misfortune cost her family and her livelihood. More than the others, Ashley warns us that anyone can fall from grace into poverty. Her story demonstrates how our institutions, while well intentioned, can create homelessness through the uniform application of policy. I hope she has been reunited with her son, but this is not a work of fiction; such happy endings are uncommon in law. The third individual to enter this research holds the government name of Sierra Hodges, but this work identifies her as Taurus. I provide her real name in the work only once and only here. She does not trust the world with her name and for good reason. Our legal intuitions failed to see her. Our resources failed to reach her. But maybe she can find acknowledgment and respect in these pages. By saying her name, I desperately hope we can recognize not only her existence but her contributions to this work. The fourth perspective collected in this work belongs to Alan. Like Taurus, he does not want his full name shared. His insights into Indigenous medicines were highly influential and helped to frame the purpose and substance of this work. His stories and experiences as a Native American in Minnesota’s legal intuitions are highly disturbing but not uncommon. His willingness to provide a glimpse into those lived experiences x places me forever in his debt. The last update I received was that Alan was working as a coordinator within his Indigenous community. I hope he has found the good medicine and a way to help others. The last voice of insight inscribed in this research belongs to Roy Willett. I am tremendously grateful for Roy’s patience, empathy, and openness. Roy works within the agencies, and he shared his perspectives on the law as it applies to homelessness. Numerous individuals within political bodies and agency bodies provided interviews which enhanced this study. But Roy’s perspectives are personal. He shares the vision of this work and, through his statements, hopes to help others understand the importance of that vision. Beyond those who provided the substantive narratives, I want to thank Professor Alexandra Flynn. Initially, I contacted her as a lawyer with little more than a vague idea about what I wanted to pursue. To date, I do not know why she supported the unformed outline of this project. Since then, this work has grown and changed from its initial proposal. Despite perpetual metamorphosis, delayed drafts, and an array of academic insecurities, Professor Flynn received this work with patience, always quick to redirect my diasporic mind back to the path. This project would not have been possible without her unfailing support. I would also like to thank Professor Michelle LeBaron for providing critical feedback and the assistance I needed to improve this work. Her insights breathed new life into the early drafts and helped to carry this work across the finish line. In addition, I am grateful for Judges Ross Leuning, Natalie Martinez, and Karen Duncan. These individuals showed me what compassion looks like in the law, a lesson law school failed to cover. Similarly, I owe a tremendous debt to Professors Dirk Deam and Ibrahim Gassama. Over years of mentorship and friendship, their intellectual stimulation shaped and matured me—something that required a valiant act of patience on both their parts. Despite his tremendous influence, I have never appropriately thanked Dirk for starting me on this path as an undergraduate student. Similarly, I have not adequately conveyed my gratitude to Gassama for showing me that human rights is not a subfield of law; empathy and compassion are a conscious daily exercise for good lawyers no matter what their field or practice. While these words do not reach the standard of “adequate,” I hope xi this work reflects the time and effort they have poured into my growth. Every facet of who I am as an academic and a legal mind bloomed in the fields of knowledge they helped to cultivate. In addition to the instructors who helped me, I would like to thank my students. Kara Green read through this work and helped me in the areas in which I struggle. As a student, she owes me nothing. As her friend, I am incredibly grateful. I am also grateful for Jamilah Abed. Jamilah was one of the first readers of this work. She has provided me insight and guidance with life experiences that are not my own. With all my students, teaching has provided a bastion of hope. I am mature enough to recognize that it is a privilege to have students such as Kara and Jamilah. Their intellect sharpens me, and their compassion makes me a better person. As a rule, I refrain from thanking institutions. I am grateful for Dirk Deam, and he happens to work at Iowa State University. I am grateful for Ibrahim Gassama, who was teaching at the University of Oregon. However, the University of British Columbia deserves an exception. The University provided support throughout the pandemic, it made financial contributions that allowed this work to be completed, and its multi-disciplinary focus allowed for a crosspollination of ideas that deeply enriched the final draft. Without an abundance of encouragement and institutional backing from UBC, this work could not be completed. Among the most adamant supporters of this work is my wife. Esther Sherman is prevalent throughout this work. The very origins of the work are germinations from her ideas. I collected my ideas from her and she assisted with research on the Greenway, and there is no doubt that she is the better lawyer and scholar. Esther dedicated herself to this project, for which she will gain none of the final recognition she deserves. I am grateful that she loans me some of her intelligence and compassion. Finally, I owe unquantifiable gratitude to my daughter. This research has consumed my time. The work often left me cranky and frustrated. Her patience provided reassurance to keep moving. She tolerated my bad days, took pride in the good ones, and embraced the vision of this work with a maturity I could not have shown at her age. At its core, this work is the embodiment of a father’s promise to his daughter that we can create a more just, more empathetic world; her unyielding faith in me has been the greatest xii motivation to reach the finish. Nothing is worth pursuing if it is not an end itself, and all ends bear incredible importance. An appropriate end consumes us and distracts us from other priorities. Without the understanding of my family, this work does not exist. 1 Chapter 1: Introduction Because we must deal with the unknown, whose nature is, by definition, speculative and outside the flowing chain of language, whatever we make of it will be no more than probability and no less than error.1 The human heart can be struck by trauma so powerful that it's melodic beats fall silent. The stillness creates a space, a pause in which existence teeters on the edge of an unasked question. If the quiet persists, death follows. But a targeted burst of electrical current can compel the stagnant muscle to resume its song. The same can happen to the human mind. Daily routines and patterns stretch imaginations into apathy, creating intellectual silence. Left to itself, the mundane is a terminal diagnosis. But a calculated shock of disparate expectations can rouse the mind back to awareness. As Nancy Rosenblum put it: “Sometimes, you are startled into thought.2” What Professor Rosenblum described is the way in which an event in the world can awaken our intellect. Less poetically, all research begins with shock; this work is no exception. 1.1 Shock-Based Discovery In the winter of 2019, the Midwestern United States experienced temperatures below negative sixty-degrees Fahrenheit.3 For a full week, it was colder in portions of Minnesota than it was in Antarctica.4 The discontented fields, frostbitten and bitter, facilitated brutal winds that threatened to pull walls from houses and trees from roots. I viewed the ravenous storms from a safe distance—insulated and acutely aware of my 1 Edward W. Said, Beginnings: Intention and method. (Granta Books, 1997). 2 Statement made by Nancy Rosenblum during conversation. 3 Minnesota Department of Natural Resources, Cold Outbreak: January 27-31, 2019, (Weather Report), Published December 24, 2019. 4 Associated Press, Parts of Midwest colder than Antarctica during deep freeze, (January 30, 2019), online: Fox59 News < https://fox59.com/news/parts-of-midwest-colder-than-antarctica-during-deep-freeze/> 2 privilege. Others experienced the negative sixty-degree windchill from perilous structures of canvas and cardboard.5 In 2019, Minnesota recorded 103 deaths among the homeless and 69 deaths among the formerly homeless/recently housed; additional deaths for which homelessness was considered a factor included 18 advocates, one unidentified woman, and a “baby boy” – the highest number of documented deaths in the homeless community since 2006.6 Some died from crimes that would never be solved (or investigated).7 Others from inevitable overdoses.8 Multitudes died from “exposure” —a sweeping diagnosis more palatable than “poverty”.9 The dead could remain undisturbed for days or weeks while sub-zero temperatures suppressed the stench.10 Most of the dead were discovered by scavengers, other desperate souls looking for protection or rations. Individuals scoured for anything to defend against the winter and enable them to survive until spring. No one went looking for the dead. No press conferences labeled them “missing”. The few who happened to be discovered by law enforcement were found because death left them in the way. Calloused hands removed the corpses and bulldozers removed everything else.11 And the number of corpses required to be removed is rising. The cost incurred by Minnesota counties to bury unclaimed people has climbed an average of fifty-five percent in recent years.12 5 Briana Bierschbach & Cody Nelson, Walz launches effort to find winter shelter for homeless people, (December 19, 2019), online: MPR News < https://www.mprnews.org/story/2019/12/19/walz-launches-effort-to-find-winter-shelter-for-homeless-people> 6 Michelle Bruch, Marching for 103 Minnesotans who died while homeless, (January 13, 2020), online: southwestjournal < https://www.southwestjournal.com/news/2020/01/marching-for-103-minnesotans-who-died-while-homeless/> 7 John Song, Dianne M. Bartels, Edward R. Ratner, Lucy Alderton, Brenda Hudson, Jasjit S. & Ahluwalia, “Dying on the streets: homeless persons’ concerns and desires about end of life care” (2007) 22:4 Journal of General Internal Medicine, DOI: <10.1007/s11606-006-0046-7> 8 Kelly M. Doran, Callan Elswick Fockele, & Marcella Maguire, “Overdose and Homelessness – Why We Need to Talk About Housing” (2022) 5:1 JAMA Network Open, DOI: <10.1001/jamanetworkopen.2021.42685> 9 Jerzy Romaszko, Iwona Cymes, Ewa Dragańska, Robert Kuchta, & Katarzyna Glińska-Lewczuk, “Mortality among the homeless: Causes and meteorological relationships” (2017) 12:12 Plos One, DOI: <10.1371/journal.pone.0189938> 10 HomeAgain Richmond, Winter is Coming… A Devastating Reality for the Homeless, (no date), online: HomeAgain Richmond <https://www.homeagainrichmond.org/winter-coming-devastating-reality-homeless/> 11Tony Webster, Class action lawsuit seeks end to police sweeps of Minneapolis homeless encampments (October 19, 2020), online: Minnesota Reformer < https://minnesotareformer.com/2020/10/19/class-action-lawsuit-seeks-end-to-police-sweeps-of-minneapolis-homeless-encampments/> 12 HomeAgain Richmond, supra note 10 3 As I watched the temperatures plummet and the death tolls rise, I was shocked into thought. Though the origin of this work was not the shock I felt at the existence of homelessness in such conditions, but the dismay I experienced as I watched state agencies respond. Through the news, I observed agencies either ignore the problem or flail uselessly in half-hearted attempts to help.13 From my vantage point, the state and the law were either indifferent or impotent. Both possibilities made me deeply uneasy. Once awakened to the brutality experienced in my own community, I knew there was no going back. But the nature of the revelation precluded a precise question for legal research. My view of the world was shaped through law; legal analysis had been my tool for measurement, the scale against which I previously measured policies and social problems. Peter Winch warned about this problem. Every question raised by research is situated by the words used, the methods considered “legitimate”, and the format in which the work is written.14 Winch tried to tell us the core truth that a scientist cannot convey her conclusions in poetry. Each field has what it considers to be legitimate forms of inquiry and revelation. Legal scholarship may be inclined to describe this work as journalism and not legal work. Such confusion likely originates from the “doing” aspect of this work. The human centered focus and the retelling of narratives from those who live in tent communities. As Winch described: The actual process of drawing an inference, which is after all the heart of logic, is something which cannot be represented by logical formula; that, moreover, a sufficient justification for inferring a conclusion from a set of premises is to see that the conclusion does in fact follow. To insist on any further justification is not to be extra cautious; it is to display a misunderstanding of what inference is. Learning to infer is not just a matter of being taught about explicit logical relations between propositions; it is learning to do something.15 What Winch described is the productive act of research. Winch was primarily concerned with hard sciences, but the creative act of doing, which he 13 CBS Minnesota, State Agencies Work To Reverse Crowing Homelessness Trend (October 1, 2018), online: CBS News Minnesota <https://www.cbsnews.com/minnesota/news/state-agencies-work-to-reverse-growing-homelessness-trend/> 14 Peter Winch, The idea of a social sciences and its relation to philosophy, First Edition (Routledge, 2008) 15 Ibid. at 53. 4 found in chemistry, was even more acute in law. Legal scholars may attempt mathematical syllogisms, but beneath each point of data is a human construction. My legal training had not prepared me to see the humanity beneath the statutes and statistics. As a lawyer, I understood everything through the lens of law. Homelessness has been recognized as a grave policy concern within the United States since 1980.16 In his research into the ongoing problem, Andrew Liese emphasized the lack of federal legislation to help end homelessness and the push for state agencies to respond.17 The legal community implemented criminal statutes to curb the causes of homelessness. The primary legal tool was to criminalize drug use under the theory that drugs caused homelessness.18 According to the Federal Bureau of Prisons, approximately forty-five percent of all inmates are in prison for drug-related offenses.19 And yet, after forty years of legal effort, homelessness continues to rise in the state of Minnesota. What I observed in the winter of 2019 demolished my previously comfortable understanding of law. Without examining the accuracy of my tool for measurement, I lacked the capacity to frame the issue. I could not identify the size or shape of its components. I needed to understand what was happening and how it was possible before I could formulate a concise research question or narrow my methods. Both pieces rested outside the haven of traditional legal analysis. Data failed to tell me what was happening, and my efforts pursued through statutes and legislative history proved equally futile. While statutes and policies had been put in place to curb drug use, research supporting the theory that drugs lead to homelessness was not readily available. Through the shock of 2019, I discovered the need for a new approach. 16 James D. Wright, Beth A. Rubin, & Joel A. Devine, “Beside the Golden Door: Policy, Politics and the Homeless” (1999) 26:2, Western Michigan University Journal of Sociology & Social Welfare, DOI: <10.2307/3005816> 17 Andrew J. Liese, “We Can Do Better: Anti-Homeless Ordinances as Violations of State Substantive Due Process Law” (2019) 59:4 Vanderbilt Law Review 18 Philippe Bourgois, Homelessness, addiction, and politically structured suffering in the US war on drugs, First Edition, (Routledge, 2011) 19 Statistics United States of America, Inmate Statistics: Offenses (Data infographic) (October 15, 2022) 5 First, I needed to know what I was seeing: the broad contours of homelessness. In the United States, 580,466 people were experiencing homelessness at the start of 2020.20 Of those experiencing homelessness, approximately 30 percent were people in families with children, and 70 percent were single individuals.21 Approximately 19 percent were considered chronically homeless22 individuals.23 Homelessness occurs in every region and across diverse backgrounds, though gender, race, and ethnicity are significant risk factors. With variations by geography and background, the CDC estimates the rate of death among the homeless to be 4 to 9 times higher than for those who are housed.24 What I saw in initial research for Minnesota was that homelessness within my community was increasing rapidly, even before the COVID-19 pandemic.25 According to studies by the Wilder Research Institute, Minnesota’s homeless population increased by 10 percent between 2015 and 2018.26 That translates to an estimated 19,000 people in Minnesota suffering from homelessness on any given night in 2018.27 The staggering rate at which homelessness was increasing was compounded by the advent of COVID-19.28 The most current research indicates that rates of homelessness are rising faster due to the pandemic, though the extent of the impact is still unknown. 20 National Alliance to End Homelessness, State of Homelessness: 2021 Edition, online: National Alliance to End Homelessness < https://endhomelessness.org/homelessness-in-america/homelessness-statistics/state-of-homelessness-2021/>…This data was compiled in January of 2020 and does not include pandemic data. 21 Mason G. Haber & Paul A. Toro, “Homelessness among families, children, and adolescents: an ecological-developmental perspective, (2004) 7:3 Clinical Child and Family Psychology Review, DOI: <10.1023/b:ccfp.0000045124.09503.f1> 22 National Alliance to End Homelessness, Supra note 20, People are considered chronically homeless if they have been continuously homeless for at least one year or experienced homelessness at least four times within the past three years, totaling at least one year. 23 National Alliance to End Homelessness, Supra note 20 24 Center for Disease Control and Prevention, About Homelessness, (May 6, 2022), online: Centers for Disease Control and Prevention < https://www.cdc.gov/ddid/homelessness/about.html> 25 Brian Arola, Data: Sheltered homelessness roe in Minnesota in 2021, (February 17, 2022), online: The Free Press < https://www.mankatofreepress.com/news/local_news/data-sheltered-homelessness-rose-in-minnesota-in-2021/article_226d799c-8f82-11ec-9674-b3cd7e0b0463.html#:~:text=The%20U.S.%20Department%20of%20Housing,the%20distinction%20comes%20with%20caveats.> 26 Amherst H. Wilder Foundation, Homelessness in Minnesota 2018 Study, online: Amhersth Wilder Foundation < https://www.wilder.org/wilder-research/research-library/homelessness-minnesota-2018-study?gclid=Cj0KCQjwtvqVBhCVARIsAFUxcRtAorA7TMAZf4odldrsCmWDbUmxBM-kdp627NAahBNtXn71khgCoOUaAkcMEALw_wcB.> 27 Amherst H. Wilder Foundation, Key Findings From the 2018 Statewide Study of Homelessness, online: Minnesota Homeless Study: a Project of Wilder Research < http://mnhomeless.org/minnesota-homeless-study/homelessness-in-minnesota.php> 28 Massimo Ralli, Andrea Arcangeli, & Lucia Ercoli, “Homelessness and COVID-19: Leaving No One Behind” (2021) 87:1 Annals of Global Health, DOI: 10.5334/aogh.3186 6 Data-driven research also identified that homeless individuals are more likely to be excluded from public health services connected to COVID-19 relief.29 In addition to damage inflicted by exclusion from public services, shelter closures, and restricted hours at traditional havens, the homeless population suffered disproportionately in the rate and severity of COVID-19 infections.30 The spread of COVID-19 among the homeless was further exacerbated by comorbidities and complications due to the harsh reality of exposure in Minnesota. Available studies concluded that homelessness was a pervasive and growing problem prior to the pandemic, but the dangers faced by the homeless population increased exponentially when the pandemic hit.31 It is more dangerous to be homeless now than it was in prior years. Throughout the research, it was apparent that scholars have studied the distribution of resources, the administration of housing vouchers, as well as the identification and impact of discriminatory laws. But none of the existing research provided an explanation for the ubiquitous and persistent nature of homelessness. Notably missing from the research was a clear understanding of when and why homelessness occurs. After conducting research to help me understand the broad complexities of the problem, I had enough data to analyze the issue through legal theory, but it was not enough to verify the accuracy of the law as a measure for the issue of homelessness. Statistics could not provide a satisfying answer to the question of homelessness. I understood that behind each data point was an individual, but I did not know what it felt like to be reduced to a fraction of a number on a spreadsheet. Like assembling a puzzle without the box, each piece of data provided a glimpse of the broader picture. Some of the pieces even fit together in a way that made sense. But I still had no idea what I was looking at. Data alone cannot resolve an existential shock. Something more is required. Getting the heart to beat again requires understanding exactly how to use that shock. 29 Ibid. 30Nádia Nara Rolim Lima, Ricardo Inácio de Souza, Pedro Walisson Gomes Feitosa, Jorge Lucas de Sousa Moreira, Cláudio Gleidiston Lima da Silva, & Modesto Leite Rolim Neto, “People experiencing homelessness: Their potential exposure to COVID-19” (2020) 288 Psychiatry research, DOI: 10.1016/j.psychres.2020.112945 31 Camille Allaria, Sandrine Loubière, Emilie Mosnier, Elisa Monfardini, Pascal Auquier, & Aurelie Tinland, “”Locked down outside”: Perception of hazard and health resources in COVID-19 epidemic context among homeless people” (2021) 15 population health, DOI: 10.1016/j.ssmph.2021.100829 7 In the comfort of my own bed, I wondered what it felt like to sleep in a tent in negative fifty-degree weather. What dreams would find me when the windchill dragged the temperature down even further? As the central heating whispered a soundtrack of privilege, I wondered what it would be like to live without a thermostat that could simply be adjusted at my discretion. More importantly, I wondered what those circumstances would do to me psychologically, what they would do to any person’s psychology. And the pertinent question for this research: Why are the legal institutions too indifferent or too impotent to intervene? Instead of identifying the information needed to complete my understanding, I accepted my own ignorance. To some extent, I accepted that it was not possible for me to fully understand, regardless of the data collected. I found myself in a similar position to prior scholars, a person of privilege trying to understand experiences completely beyond my own. What was missing in all the research on homelessness was the voice of those who were homeless, those who experienced the trauma of homelessness. Statistics could not replicate the tone and inflection necessary for me to understand. As I would quickly learn, “Trauma is an accent, easily identified by those who call hardship home.” 32 And I was not a native speaker. If I wanted to learn, I needed to listen. 1.2 Purposeful Development This research and the legal theory that stemmed from it began as an endeavor to learn a new language by engaging with those who were already fluent. I knew that if the language of the streets was trauma, I could not hope to formulate a research question before learning the dialect in which it needed to be asked. So, I set out to meet the people behind the data points. I wanted to hear the voices of homeless individuals. Through this work, I formed the belief that shock-induced discovery requires an inductive rather than a deductive approach.33 That is, an experience so far beyond one’s lived reality that it is ‘shocking’ cannot be interpreted and analyzed through that same lived reality. 32 From the poetry collection, The Hurt I Call Home, by M. Esther Sherman. The concept of trauma being linguistically identifiable as addressed in her work is used herein with the author’s permission. 33 For further discussion of the inductive and deductive method of research, see Charner M. Perry, “Inductive VS. Deductive Method in Social Science Research” (1927) 8:1 The Southwestern Political and Social Science Quarterly 8 Legal scholars willing to venture outside of the comforts of caselaw will find this lesson deeply embedded within the works of Martin Heidegger. Heidegger espoused the belief that all conceptions of reality are social constructs.34 A lawyer occupying a courtroom has a very different experience with that space than a defendant. I struggled to understand the echoes of gunfire that ricocheted off the embankments of the Greenway. Understanding the meaning of such an event for those who live it requires that we step out of academia. The nature of the inciting incident necessitates a source within the shock itself, someone for whom the circumstances of that ‘shock’ are the only known reality—someone for whom there is nothing shocking about gunfire. When I began conducting interviews in the fall of 2020, Minneapolis wore the scars of poverty in the form of tent cities that stretched through parks and abandoned structures, with a dominant clustering along the “Greenway” near Lake Street.35 Various murals of George Floyd identified the neighborhood as one familiar with senseless violence and unnecessary death. Each time we entered the neighborhood, my colleague would tap out a mantra familiar to her native tongue: liquor store, gun store, liquor store, tobacco store, gun store. There is no Whole Foods in that part of Minneapolis. Upon first getting to know the area, the most striking image was the text painted on the boarded up windows of multiple shops. The scrawl spelled out, “please don’t burn, children upstairs.” But the Lake Street region was known for more than desperate pleas for safety from those who lived there. In asking people around Minnesota what they knew about Lake Street or the Greenway, the common response was to confirm that was where the Target burned down. Those outside that community saw the viral image of a Target in flames and dismissed Lake Street as a ‘high crime’ area. Those within the community took the image to communicate something else. The image stretched beyond the flames, capturing dozens of police officers standing firm against crowds that wished to smash the profit-oozing structure. Those in the community saw the police guarding the corporation 34 Jo-Jo Koo, Early Heidegger on Social Reality, First Edition, (The Phenomenological Approach to Social Reality, Cham Springer, 2016) 35Red Lake Nation News, Minneapolis closes homeless encampment in Phillips West neighborhood, (April 20, 2022), online: Red Lake Nation News < https://www.redlakenationnews.com/story/2022/04/20/news/minneapolis-closes-homeless-encampment-in-phillips-west-neighborhood/105453.html> 9 against the people as an unalterable truth of their world—no one comes to save them, only to save others from them.36 When the winter cut deepest in 2019, it was along those streets and beneath those bridges that so many homeless individuals became bodies calcified by the cold. It was there that I met those who were still waiting for death to find them. Though I grew up about an hour from the Greenway, I was a foreigner in that area of Minneapolis. It was not only the language but the customs with which I was unfamiliar. I needed to approach tent communities without prior ideas or goals. Anything I brought into the community would taint my work and exclude me from honest exchanges. The last thing I wanted was to explain homelessness to those freezing to death in tents. Instead, I sought interviews in which residents of the tent community could tell me what it was they believed I needed to know—the things they wanted you to know. And through that process, I learned more than I thought possible. As I slowly built trust with those who lived on the Greenway, research began to bloom out of the dichotomy between the legal narratives of homelessness and the lived experience of those on the street. Through hundreds of hours of interviews and engagement, I began to understand the influence of chance. While there exists only one humankind, chance breaks us into groups and applies arbitrary labels that shape our lives. Those of us who were lucky proceed to build systems that justify our chance-based position. Our institutions serve as a psychological buffer that creates a phantasmagorical reality in which we believe we could never be homeless ourselves. The approach to this research was inductive because it was led and directed by those in the homeless population.37 I did not approach the Greenway in order to test a hypothesis. Rather, I developed a hypothesis through my engagement with the homeless population on the Greenway. It was only after a process of writing and rewriting that I began to understand what was said in interviews. From what participants told me, and my own observations, patterns emerged. The ideas in this work were not generated by 36 Hayley Peterson, Minneapolis Target descends into chaos and looters smash windows, destroy shelves, and haul away everything inside amid protests against the death of George Floyd, (May 28, 2020), online: Business Insider < https://www.businessinsider.com/minneapolis-target-is-looted-during-george-floyd-protests-videos-2020-5> 37 Andrew T. Jebb, Scott Parrigon, & Sang Eun Woo “Exploratory data analysis as a foundation of inductive research” (2017) 27:2 Human Resources Management Review, DOI: 10.1016/j.hrmr.2016.08.003 10 reading caselaw or scholarly work. Rather, the caselaw and legal scholarship provided turn by turn directions along the homeless road, complete with the ignorant omissions to be expected when the author has never actually walked that path. I relied on those who lived the experience to provide meaningful navigation. That is, the ideas developed in this work necessarily sprang from the narratives of those experiencing homelessness. After listening to their stories and providing space for them to share what they wish the world knew about them, I saw how the narratives and desires fit with what legal scholars already understood. Through this process, I learned that we incorporate, without identification or analysis, a specific kind of metaphysics, ontology, and epistemology into our laws. I also began to see the emergence of a new theory of understanding law. For pragmatic purposes, I have chosen to call it Context Theory. While Context Theory arose in the specific research from Minnesota, it traverses geographic boundaries. This theory applies equally in Canada and the United States. It applies to corporate law as well as agency law. The versatility in the theory is attributable to the fact it does not rely on a pre-conceived viewpoint at the start. Rather, the theory requires adaptable, circumstance-specific methods. This way of ‘responding to’ rather than ‘approaching from’ allows broad application across legal environments. As applied to Lake Street, the theory requires consideration of the circumstances of the individuals and the environment before an analysis and application of law. Where existing legal theories led researchers to adopt a belief that homelessness was caused by drugs and then to analyze and implement law to align with that view, Context Theory inquires more deeply into the foundation before adopting a legal, problem-solving lens.38 The theory urges scholars to investigate the metaphysical, ontological, and epistemological construction of law. 38 Though further research is needed, this study found a much stronger connection between homelessness and childhood trauma than with homelessness and drug use (prior to homelessness). Interviewees were most likely to point to events and/or circumstances prior to the age of twelve that resulted in their eventual homelessness. Just a few of the root causes identified by participants were poor education opportunities (or dangerous/inhospitable academic environments), unstable housing or family structure (may include trauma and abuse), inadequate medical care (often linked to mental health or trauma responses), lack of mentorship or role models (legal resources without social resources), and, fundamentally, poverty. Some participants expressed the view that poverty creates inhospitable environments for growth and health as each person is forced to focus on their own survival. This theme repeated throughout the study. 11 Without further dissection to understand the role these philosophic conditions play in our legal decision making, each condition contributes to our inability to effectively help those on the Greenway and others like them. Because of the assumptions of the legal system, our laws inhibit rather than enable the ability to escape the cycle of homelessness and poverty.39 Homeless individuals attempt to navigate the intricate maze of institutional hurdles in the hope that the path will lead to success, to participation and equality within the broader community. But there is no exit to the maze, no positive end. The newly homeless interviewed during this study frequently referenced fantastical ideas about a life outside the maze. The chronically homeless told stories of how far they made it in the maze before finding themselves at the starting point all over again. Many articulated that it was easier to give up than to keep being defeated by a system constantly claiming it is there to help. When discussing opportunities, one woman flatly stated: “I die here. This is how my life ends. It is just a matter of when.”40 Her voice is the starting point. Addressing the homeless problem requires first that we identify that it is a human not a numeric problem. Homeless individuals cannot be reduced to a fraction of a percent of a policy concern. If she is still alive, the woman who will “die here” is a sister, an aunt, a friend, an advocate, a voracious reader, a brilliant wit, a connoisseur of comedy, a potential artist, a potential doctor, a potential lawyer; she is potentially someone we could have saved. The homeless problem is not an issue of discomfort, it is a matter of survival. She does not believe her life will end on Lake Street because she does not want to get out; she believes it because every time she has tried to escape, she failed. That is the starting point. Why someone with a brilliant mind and loving spirit cannot leave homelessness is the starting point. For approximately 600,000 people in the United States every year, the system fails.41 And it will continue to for as long as it reassures the rest of us that we could never be like her. From interviews conducted over the course of a year, this work highlights the narratives of several 39 As noted throughout this work, poverty and homelessness are intimately related and, in many cases, cannot be separated for individualized analysis. 40 Taurus. Change these references to Confidential interview #X with Minnesota encampment resident (date) – author conducted. 41 Darcy Varney & Willem van Vliet, “Homelessness, Children, and Youth: Research in the United States and Canada” (2008) 51:6 American Behavioral Scientist, DOI: 10.1177/0002764207311983 12 individuals. The stories are their own, purposefully conveying what they wanted you as a reader to know. The structure adopted and the research herein attempts to identify what the stories mean in the context of law. If there is any end “product” for this work, it is in you as the reader. If this work makes you empathize with those whose voices wear the accent of trauma, it was a success. If this work causes you to reflect upon the privileges chance bestowed on you, it was a success. If you begin to question the metaphysical, ontological, and epistemological assumptions we carry into law, there may still be a way for the homeless to escape the maze. Ultimately, though the challenges posed to the fundamentals of law are ambitious, the approach is humble. I do not have the answers. I will not pretend the work is done. If we hope to correct the arrhythmia in the heart of our legal system, scholars need to experience shock. And be willing to discuss the thoughts that follow suit. 1.3 Structure and Outline In conducting the research and engaging the organizational steps that followed, it became apparent that three philosophic conditions greatly influence the application of law. Despite this, neither acknowledgment nor any dissection of these built-in assumptions appears in the current model of law. Those conditions are the metaphysical construction of time, the ontological security of agencies, and the epistemology of legal knowledge. These three conditions and the way in which they shape legal scholarship and application are addressed throughout this work, providing analysis and context to the issues herein. The structure of this work unfolds in ten chapters, each provides a frame for understanding Context Theory through the contents of narratives and legal analysis. Though the work offers a recommended viewpoint, the foundation of this study is an acknowledgment of variations in lived experiences—and how those variations alter one’s understanding of seemingly objective truths. As the subjects discussed in this work view law through a different lens than those likely to engage as readers, variations of culture, background, and bias between and among readers may similarly distort the intended 13 view. With that in mind, the chapters progress with the goal of establishing a baseline understanding of the terminology and concepts necessary to foster communal engagement with the substantive issues. In sweeping terms, chapters move from introductory and background information to methodologies and variations in research, to the nature, purpose, and fundamentals of the proposed theory, and then to the substance of what those in the homeless community wished for you to know. Admittedly, there is a purpose for priming readers for the sections ahead. Proposed theories of law progress in a predictable, calculated fashion, and sections of this work will deviate from that formula.42 The purpose and placement of the deviations is an aspect of the theory itself, relevant to the contribution this work aspires to offer the field of law. Typos and grammatical errors may also be intentional. The chapters fall into three different categories: Introduction/Conclusion, Theoretical Orientation/Proposal/Methodology, and Substantive Narratives. The purpose for these distinct categories is to develop the legal foundation, relevant theoretical context, and necessary understanding of terms prior to engaging with the distinct approach of this study. This provides the reader with the necessary tools to approach the substantive narratives as both legal scholars and human beings. This dual participation is not only required for the reader to understand the proposals herein, but it is also a foundational requirement of the proposed theory itself. The Context matters. This work contends that any legal theory that removes human empathy will necessarily fail to address the realities of law. In the mid-1970s, scholars were already concerned about the rigidification of law. John Nooan argued that rules were formalized repetition which acted to dehumanize the subjects in the Courtroom.43 According to Nooan, law once served as the marrow. It was malleable and fluid. It allowed for repairs in the civic body. It was over time that the methods of law became conflated with law. The bone and the bone marrow were merged. It is because of this that legal scholarship remains focused on rigid rules and seems unable to penetrate the human experience of 42For an account of the “formula” of law see: L. N. Berg & V. O. Puchkov, “Onto-Logic of Law” (2020) In XIV European-Asian Law Congress “The Value of Law”, DOI: 10.2991/assehr.k.201205.007 43 John T. Noonan, Persons and the Masks of the Law: Cardozo, Holmes, Jefferson, and Wythe as Makers of the Masks, First Edition (University of California Press, 2002). 14 law. This work aspires to return pliability to law. It does so through the injection of context into legal interpretation and application. While this theory and application is novel, the desire for understanding in law is not new. For example, Toni Massaro has tried to reintegrate the individual experience into law. Massaro generated the argument that narrative is a necessary feature of law.44 Massaro’s focal point was the “call to context” and the integration of individual lives within legal frameworks.45 The “call to context” has developed through multiple veins of legal theory, but its primary goal has yet to be achieved. Arguably, the living experience of law will evade scholars as long as they attempt to utilize formal methods to address human experiences. That is, legal theory is still unable to identify the experiences of individuals, utilize that awareness to make distinctions in circumstances, and employ that process in legal analysis. Rather, the practice and application of legal scholarship is a system in which criminal activity occurs in a contextless vacuum, devoid of legal distinction, and necessarily immune to adaptation or case-specific analysis. In many ways, this is an opportunity for the reader to demonstrate an ability to see the actual people who typically only appear before them in statistical form—and to still find value in the experiences they express. More narrowly, this work will progress as follows: Chapters One and Ten: Introduction/Conclusion The introductory section discusses the purpose and scope of the work as well as incorporates limited background on the specific approach developed in this study. In literary terms, the reader should be able to understand what the story is about and the reason it is important to tell this story. The conclusion provides a broad lens through which to view the topic of homelessness, the historical approaches to addressing homelessness, and the ways in which adopting the theory of law developed in this work can create a connective tissue between the legal approach and the lived realities of those in the homeless community. 44 Toni M. Massaro, “Empathy, Legal Storytelling, and the Rule of Law: New Words, Old Wounds?” (1989) 87:8 Michigan Law Review, DOI: 10.2307/1289301 45 Ibid. 15 Chapters Two, Three, and Four: Theoretical Orientation/Proposal/Methodology This section orients the reader to the historical development, contributions, and criticisms of legal theory as well as the ever-present question of philosophy in this development. It also introduces modern legal positivism, the built-in assumptions of modern scholarship and theory, and the role of philosophy in the broader understanding of law and institutions. Next, this section establishes the fundamental flaws of legal positivism—referred to as the three assumptions—and establishes the ways in which the proposed theory of this work addresses these flaws. This section also introduces Martha Nussbaum’s Human Capabilities theory, specifically addressing her proposed ten capacities, including the criticisms applied to her theory and the ways in which the proposed theory of this work can address those criticisms. It is from the three assumptions of legal positivism and the criticism to the theory of Human Capabilities that a new theory emerges, the Context Theory of Law. After establishing the theories for discussion and analysis, this section introduces the proposed theory of this work, Context Theory. This section also demonstrates how Context Theory contributes to the body of legal scholarship as well as how it is applied to this study. Utilized terminology, relevant definitions, and additional context for a common understanding of proposal-specific dimensions is also discussed. Lastly, this section describes the methodology requisite to the implementation of the proposed theory. Context theory cannot be studied without considerate methodologies. The substance of law and the chosen tool to examine law are deeply connected. In that vein, this section introduces the process of reflexive interviews. Reflexive interviews are a collaborative tool. It allows the researcher, subject, and reader to build the content and develop the theory “Context Theory” together. Chapters Five, Six, Seven, Eight, and Nine: Substantive Narratives This section deviates from the traditional legal theory approach. Traditional scholars will understand this section as the “data and analysis sections.” This section is the heart of the work because it provides the narratives and observations collected from 16 the Greenway. However, due to the orientation of Context Theory, the data must be reported consistent with the understanding and experiences of those who partook in the study. That means that the data and analysis are inherently unconventional. The data is based on the reflexive interviews conducted throughout this work; this section reflects on the process of analyzing transcripts as well as original recordings from the interviews. This reflection assists the reader by providing a perspective of lived experiences through which to view each interaction as well as to understand how these narratives fit within the broader structure of law. Each chapter in this section is framed by the inherent assumptions in existing legal theory and demonstrates how, in practice, these assumptions can be broken down to achieve a more equitable application of law. Though supported by legal analysis and research, each chapter in this section is driven by the subject of the interview. When possible, interviews with agency workers are incorporated to augment the experiences of homeless individuals. Interviews with agency employees are used to describe possible tools to fix the philosophical problems raised by those in the homeless population. The final chapter of this section is an invitation for readers to partake in the process themselves. Context Theory challenges scholars and lawyers to engage in introspective analysis. The goal of this work is the examination of law’s assumptions, but it penetrates deeper and asks the observer to question her own assumptions as they apply to our legal reality. This can be achieved through a critical self-conversation. Chapter ten is an example aimed at triggering an internal interrogation in you as the reader. 1.4 Context Theory as an Invitation for Critical Self-Analysis The primary objective of this work is not to describe legal remedies or evaluate the effectiveness of what is currently in place. The goal of this work is to foster understanding within the reader and build empathy between legal scholars and homeless communities. Establishing empathy and understanding is necessary for law to operate as 17 a connective link.46 But this approach makes one demand of readers: you must temporarily suspend your own lived experience. The foundation for suspending one’s lived experiences is established through discussions on metaphysical, ontological, and epistemological assumptions ingrained in modern legal theory. The need for the reader to suppress any personal view of the circumstances is critical; homeless individuals experience a different lived reality. Jessica Gerrard and David Farrugia documented this reality through the social theory of dramaturgy. The homeless struggle with a separate visual and performance-based reality.47 As legal scholars and practitioners, the roles we play are far different than the roles of unhoused people. To the extent that your roles construct your reality, we live and perform on two separate stages. Perhaps the best example of our performance-based realities was presented in the work of James C. Scott. An anthropologist and political scientist, James Scott studied resistance in power-based systems. His work “Weapons of the Week” portrayed the ways in which peasants in Malaysia fought against poverty and class-based institutions despite the complete absence of traditional power.48 This work does not address Malaysia, but the lessons Scott identified are pertinent to our construction of social reality—and understanding how that reality is constructed is key to adopting Context theory. What scholars and lawyers may easily interpret as laziness, stupidity, or weakness of character may be tools of resistance. That is the lesson instilled by James Scott. The “lack of respect” that judges or agency heads report from homeless individuals may not be a failure of the poor. It may be a conscious or subconscious assertion of power. In the eyes of the homeless, the legal system is a tool of abuse and degradation. The only power they have against institutional oppression is denial. To them, it is all they have to show their autonomy. If Scott’s findings were correct, the fact that we scoff at their behavior is exactly the point. That is their power. 46 See, Iris Marion Young, Inclusion and Democracy, First Edition, (Oxford Academic, Oxford University Press, 2002). Young discusses representation broadly and the necessity of sharing perspectives in Democratic societies. Without a common emotive understanding, there is a disconnect between the representative and the lived reality of constituents or clients. 47 Jessica Gerrard & David Farrugia, “The ‘lamentable sight’ of homelessness and the society of the spectacle” (2014) 52:12 Sage Journals, DOI: 10.1177/0042098014542135 48 James C. Scott, Weapons of the Weak: Everyday Forms of Peasant Resistance, (Yale University Press, 1985). 18 The lesson from Scott demonstrates that your concept of ‘should’ or ‘could’ cannot satisfy the conditions of the alternative reality. Despite the fact society demands that homeless individuals conform to a legal scholar’s view of the world, the homeless cannot enter that lived reality.49 The homeless population is systematically deprived of access to the education, funding, and support necessary to approach legal terminology. To be exceedingly clear, this is not a lack of capacity on the part of those who are homeless.50 One’s capacity or potential is meaningless without access. As the homeless cannot traverse the terrain between worlds, understanding requires legal scholars to step into the world of the homeless. We must make the effort to understand why they refuse to show respect for our institutions. To do this successfully, we must suspend our prejudices and framework. Context Theory challenges us to understand their reality and their references. With the introduction complete and a roadmap in mind, this is an invitation to you as the reader. I spent over a year collecting stories and engaging with the tent community on the Greenway in downtown Minneapolis, Minnesota. What I experienced during that year was a fraction of what it is like to experience homelessness. What I can communicate to you is but a fraction of that. Still, if you accept the invitation, what follows may be enough to bring you face-to-face with the individuals willing to share their stories. This is a chance to hear what they wanted to say. This is also a privilege to hear from those who rarely tell their story. But such a privilege is hard to access. The difficulty underlying this work is a product of the phenomenological barrier; the isolation that separates individuals from those with a different lived reality. Empathy can transcend that barrier. As James Jardine and Thomas Szanto discovered, empathy is an intentional cognitive state.51 In other words, the burden is upon the reader. Choosing to see the participants and the effort to understand their experiences is work which you must choose to perform. This work seeks to help. It stems from a belief that stories can 49 Ibid. 50 Prior to conducting this study, I was familiar with two women who had previously been homeless. One became a lawyer whose poetic descriptions of trauma and unofficial interviews with the homeless population are cited herein. The other became a best-selling author. What is noteworthy about our connection is that I only know them because of who they became, not because of what they experienced. Without opportunity and engagement, it is impossible to know what someone in the homeless community might become or could have been. 51 James Jardine & Thomas Szanto, Empathy in the phenomenological tradition, First Edition (Routledge, 2017). 19 build empathy. While you may not have lived on the Greenway, I hope that through stories, you can begin to empathize and understand those who do. From that foundation of empathy, we can begin to build a more equitable system of justice—one in which we acknowledge the distinction between a judge and a defendant is often a matter of luck not choice. 20 Chapter 2: Theoretical Orientation We may feel confident that what we are doing is proper, but until we can identify the principles we are following, we cannot be sure that they are sufficient, or whether we are applying them consistently.52 Before outlining Context Theory, it is paramount to get a lay of the legal landscape. Context Theory requires the scholar to look at the development of law. The goal of examining our legal history is to build an understanding for how our version of law developed. As tempting as it is for a Context theorist to denounce prior articulations of law, our method calls us toward understanding. We are called to understand those who disagree with us, and we are allowed to acknowledge the strengths of their position. This theory contrasts most sharply with legal empiricism, also known as legal positivism. Legal empiricists have long avoided the treacherous narrow at law’s predictable boundary, as if dragons wait on that darkened pass, etched deep in the mountains of philosophy. John Austin rhetorized distance between himself and the threatening cliffs, asserting an absolute separation between the institution of law and notions of natural law. But Context Theory maintains that there can be no separation between theory and law. In the words of E. Rubin, Austin’s theory of law “was designed to defend the stability of a particular economic system and protect the interests of the middle class.”53 Austin sought to create a theory of law that was neutral on moral and ethical questions, something divorced from political questions. Austin’s greatest goal was to create clarity within the law.54 Instead, he developed a legal theory which evaded philosophical inquiries under the guise of law as hard science. He surmised that the proper definition of law was as a measurable and objective system.55 Consequently, 52 Ronald M. Dworkin, “The Model of Rules” (1967) 31:1 The University of Chicago Law Review, DOI: 10.2307/1598947 53 Edward Rubin, John Austin’s Political Pamphlets 1824-1825, in Elspeth Attwooll, ed, Perspectives in Jurisprudence , (Glasgow, University of Glasgow Press, 1977). 54 W. L. Marison, “John Austin” (1984) 3:1 Law and Philosophy, DOI: 10.1017/S0261387500013921 55 Ibid. 21 Austin proposed a legal theory independent of moral considerations, the seeds of which blossomed into modern legal positivism.56 The first task in proposing any theory is to establish definitions of relevant concepts and terminology, creating common understanding between the readers and the drafter. In this case, that involves defining common terms such as “law” and “dignity” within the parameters of this study, but also tracing the roots of theories and schools of thought that address, or fail to address, these topics. Drafting an internal definition of law presents a particularly difficult linguistic challenge. As early as 1959, legal scholars were already challenging the concept of neutrality in law. Or, as Arthur Miller and Ronald Howell argued, “in the study [of] what is, we cannot rule out what ought to be.”57 The basis for their claim was human motivation, they argued the terms used by scholars and how they define them is motivated by how they feel. Law is no exception to the human experience or the imputation of bias through unconscious experience. In practice, law does not develop in a hyperbaric chamber of academia; it is not insulated from broader society.58 Cross-pollination with historical events necessitates an investment into understanding the philosophical and societal contributions that shaped our current view of what law is, and what we believe it cannot be.59 Though the interconnectivity breeds complexity, this chapter provides the foundational understanding required to navigate the terrain ahead. This section traces the theories upon which this work’s proposed definition of law is built. Throughout, two primary theories are discussed to place this work in context with current legal structures: legal positivism and the ten capacities proposed in Martha Nussbaum’s Human Capabilities. Legal positivism delivers an alternative definition of law that precludes philosophical integration, providing contrast and perspective to the considerations addressed herein. Nussbaum’s ten capacities provides a working definition 56 John Austin & Robert Campbell, Lectures on Jurisprudence or the Philosophy of Positive Law, Fifth Edition, (London, John Murray, 1885). 57 Arthur S. Miller & Ronald F. Howard, “The Myth of Neutrality in Constitutional Adjudication”, (1960) 27:4 The University of Chicago Law Review 58 David N. Schiff, “Socio-Legal Theory: Social Structure and Law” (1976) 39:3 The Modern Law Review, DOI: 10.1111/j.1468-2230.1976.tb01458.x 59 Allan Beever & Charles Rickett, “Interpretive Legal Theory and the Academic Lawyer” (2005) 68:2 The Modern Law Review, DOI: 10.1111/j.1468-2230.2005.00540.x 22 of dignity as well as a relationship between that definition and the modern view of legal theory. The contributions and considerations made by predecessors cannot be overstated; the body of work established in the academic community provided the environment required for the proposed theory to develop. 2.1 Grounding Law and Theory In contrast to the uncertainty that loomed in the mountains of philosophy, Austin’s theory purported a foundation of stability and objectivity, a perspective of law both observable and above societal influence. Austin’s need to create a system of rules that protects us from instability is quite understandable. His efforts continued the human tradition of Techne, the formation of systems that protect us from chance and uncertainty. To distinguish his theory of law from philosophical approaches, and raise law to a stable science, Austin infused his views with three, core assumptions. Three Assumptions of Legal Positivism First, the law is comprised of observable parts. These parts can be statutes, court orders, or other tangible and measurable units.60 This assumption means that there can be no broader “Rule of Law” by which the institution of law is governed. There is nothing beyond that which is measurable and observable, precluding concepts such as the absurdity doctrine, as the nature of deciding what is absurd is characterized by a broader guiding force that is neither measurable nor identifiable through objective means. Critically, Austin’s determination of observable units of law precluded tradition, narrative, and culture.61 Critical for Context Theory, it also precluded empathy as a legal consideration. According to Austin, communal resources and subjective experiences cannot serve as sources of law precisely because they are not quantifiable. Primarily, Austin relied on language as the tangible source of law.62 He highlighted that language 60 John L. Austin, How To Do Things With Words: The William James Lectures delivered at Harvard University in 1955, First Edition, (Oxford Academic, Oxford University Press, 1975). 61 Deryck Beyleveld & Roger Brownsword, “The practical difference between natural-law theory and legal positivism” (1985) 1:32 Oxford Journal of Legal Studies, DOI: 10.1093/ojls/5.1.1 62 Ibid. 23 can be externally observed, broken into component parts, and studied uniformly by different observers. From a simplistic standpoint, his view identified that reliance on statutory language provided an objective standard, seemingly free from interpretation.63 But the institution of law is composed of more than statutes. Language itself can hold multiple meanings within a single form. Austin’s assumption of objective absolutism was problematic because cohesion among individual laws requires some form of unity, some greater concept of law.64 Concepts such as the absurdity doctrine exist in law to address situations which could not have been conceived by the text.65 To that end, courts have held that, “Plain meaning of legislation should be conclusive, except in rare cases in which the literal application of statute will produce result demonstrably at odds with intentions of its drafters; in such cases, intention of drafters, rather than strict language, controls.”66 Even in cases when the results were not absurd, but merely unreasonable, the Supreme Court of the United States emphasized the importance of following, “the purpose, rather than the literal words.”67 Austin’s assumption that all parts of the law are observable by nature was problematic because cohesion among laws requires judges who are tasked to exercise discretion based on abstract concepts, to somehow conduct such discretionary distinctions with uniformity. For example, there is legislation that places an obligation on the government to care for the poor and separate legislation criminalizing actions such as loitering, lighting a fire in a public space, or defecating in public. The regulatory provisions and the duty of care directly conflict when applied to the homeless population.68 As more and more communities attempt to drive homeless people from their neighborhoods by placing spikes on statues and locking all public facilities, it is the 63 Mark John Bennett, Legal Positivism and the Rule of Law: The Hartian Response to Fuller’s Challenge, First Edition, (University of Toronto 2013). 64 Thomas Carothers, “The Rule of Law Revival” (1998) 77:2 Council on Foreign Relations, DOI: 10.1007/s40803-019-00132-z 65 For the Absurdity Doctrine, See Generally, John F. Manning, “The Absurdity Doctrine” (2003) 116:8 The Harvard Law Review Association, DOI: 10.2307/132768 66 United States v Ron Pair Enterprises, Inc., 1989 109 S. Ct. 1026.This headnote has been cited in 3,275 other cases. 67 United States v American Trucking Ass’n., 1940 60 S.Ct. 1059, 84 L.Ed. 1345. 68 David Cole, “Discretion and Discrimination Reconsidered: A Response to the New Criminal Justice Scholars” (1999) Georgetown Law Journal 24 government’s enforcement of laws without context that criminalizes homelessness, further disenfranchising a population already in despair.69 Austin’s second assumption was that self-interest is common to all individuals. Austin did not recognize this fact within his own theory, but the requirement of self-interest in legal positivism has been largely recognized by literature. John Finnis made this observation when attacking the incoherence of legal positivism.70 Jeffrey Goldsworthy made the same observation in describing the self-destructive nature of legal positivism. Goldsworthy’s point was that self-interest does not present a justification of law.71 Austin’s theory cannot differentiate between proper law and simple command, which need not carry legal authority. Austin’s theory was not simply an embodiment of self-interest in law, it was a realization of rational choice as applied in a legal context. Rational choice theory maintains that people always behave to maximize their own self-interest.72 The concept was invented by Thomas Hobbes.73 Hobbes argued that individuals follow law out of rational choice.74 People willingly submit because it is in their best interests. The adoption of this theory allows law to operate as a form of social Darwinism. It justifies the preclusion of the poor and affirms the position of elites, often by presuming that each person is provided with the tools, education, and access required to make choices that serve their own interest. The leap from rational choice theory to Darwinism requires expansion. Intellectual historians and scholars, such as Herbert Hovenkamp, have long recognized jurisprudence as an evolutionary process.75 As a social process, law changes. As a process of rational choice, law changes in ways that best suit the majority. Anthony Chase recognized the cultural development of law; his work identified that law builds 69 Ibid. 70 John M. Finnis, “On the Incoherence of Legal Positivism” (2000) 75:5 Notre Dame Law Review 71 Jeffrey D. Goldsworthy, “The Self-Destruction of Legal Positivism” (1990) 10:4 Oxford Journal of Legal Studies, DOI:10.1093/ojls/10.4.449 72 Steven L. Green, “Rational Choice Theory: An Overview” (2002) Baylor University Faculty Development Seminar on Rational Choice Theory 73 Patrick Neal, “Hobbes and Rational Choice Theory” (1988) 41:4 The Western Political Quarterly, DOI: 10.2307/448487 74 Ibid. 75 Herbert J. Hovenkamp, “Evolutionary Models in Jurisprudence” (1985) 64:4 Texas Law Review 25 culture and changes cultural perspectives.76 In Austin’s theory, law developed based upon the individual calculations of best interest. From this perspective, the collection of individual actions is what generates positive laws. Scholars and practitioners serve the function of natural selection. We trim and breed the laws which serve our interests best. As neutral as Austin purported his theory to be, the value-neutral expression of law does not hold in practice. The first major critique is the failure of rational choice to describe individual behavior. Scholars such as Daniel Nagin and Raymond Paternoster have shown that criminal conduct does not follow tangible motives. To anyone with children, the irrational behavior and the stark contrast between siblings demonstrates the flaw in Austin’s assumption. Two sisters can be dramatically different, and their behavior can provide a constant source of surprise—despite the environment and interests appearing to be the same. Nagin and Paternoster provided an academic blueprint to explain what every parent observes. They also bridged the gap between parental observations and how they applied to legal institutions. According to them, there are too many unique differences between individuals and ways in which they engage in criminal behavior to assume the consistency of rational choice.77 As with other economic theories, rational choice theory was drafted from a perspective of privilege and does not allow for variations in lived experiences. A judge cannot justly say that stealing a loaf of bread was irrational when he has never felt the pains of hunger. Rational choice theory attempted to adjust by building complex dynamics into its consideration. It tried to calculate risk-aversion into its models, but the exception further proved the error. The concept of risk aversion can be demonstrated through basic game theory. If a wealthy individual is offered either $400 or a 50/50 chance at $1000, the individual is likely to choose the latter option. Objectively, that is the rational choice because the aggregate outcome is $500. A person who already has wealth is in a position and has the financial literacy to evaluate the options and choose rationally. However, a poor person is more likely to choose option one. Option one is certain, a characteristic 76Anthony Chase, Popular Culture and Law: Toward a Legal Theory of Popular Culture, First Edition, (Routledge, 2006). 77 Daniel S. Nagin & Raymond Paternoster, “Enduring Individual Differences and Rational Choice Theories of Crime” (1993) 27:3 Law & Society Review, DOI: 10.2307/3054102 26 that is preferable when one lives in a state of fear and uncertainty. A small modification demonstrates how risk-averse participants engage with the legal system. An innocent man is given two options: (1) plead guilty to a misdemeanor or (2) risk being found guilty of a felony. The rational choice for an innocent man is to trust the justice system to find him not guilty. However, the assumption of rational choice in that circumstance discounts the lived experience of individuals in disenfranchised communities. For those who cannot afford bail, this choice is further complicated by the likelihood of remaining in a jail—sometimes longer than would be required if found guilty—while awaiting trial. Rational choice, even when attempting to see aversion, dismisses the perspective of impoverished communities.78 Fundamentally, rational choice theory calls for risk to be analyzed from the position of a scholar, a person fortune has favored. In contrast, Context Theory provides a framework by which to identify the absurdity of theorizing about hunger when your stomach is full. The substantive narratives provided in this work refute rational choice theory as applied to the homeless population. The frame of opportunities and the priorities for the homeless is not the same as it is for legal scholars.79 One prominent example seen throughout the research was the bias against drug use as being against the homeless individual’s best interests. While a scholar’s observation accepts this as truth, that was not the lived experience of those who spend winter outside in Minnesota. As previously referenced, legal scholars and policy makers have long adopted the belief that drug use leads to homelessness, not the other way around. That was not the lived experience for most of the people interviewed. Rather, they found themselves in sub-zero temperatures and reached for anything to lessen the agony. For them, homelessness necessitated drug use. Not the other way around. Individuals explained that methamphetamine is popular as it elevates heart rate and body temperature as well as reduces one’s ability to perceive pain. According to homeless individuals, methamphetamine kept them awake so they did not freeze at night. According to medical journals, the way methamphetamine liquifies the organs actually 78 Johannes Haushofer & Ernst Fehr, “On the psychology of poverty” (2014) 344:6186 Science, DOI: 10.1126/science.1232491 79 Iris Marion Young, Justice and the Politics of Difference, First Edition, (Princeton University Press, 1990). 27 produces heat.80 For legal scholars, use of methamphetamine is irrational and against self-interests. For those on the Greenway, use of methamphetamine was a choice to survive another night; it was as rational a choice as continuing to breathe. The distinction between the objective view and the lived reality dramatically changes how individuals on the Greenway see and experience law. As scholars, we think we witness an objective fact, but social reality is just as much of an invention for us as it is for the homeless. The deception of an objective truth brings us to Austin’s third assumption. Austin assumed the existence of a stable observer who is outside the system. This assumption implies that our study of law will not, and should not, change how the law operates. Put differently, an observer can study the system without impacting it. For legal empiricism to work, the laws must remain constant regardless of who is observing. This assumption is perhaps the most problematic and pervasive within the legal academy. It is used to justify inaction, declare research-apathy as a virtue, and excuse the scholar’s own role within the system. 2.2 Historical Illusions of Objectivity Work on the Greenway identified the error, and arguably immorality, inherent in the academic belief that one should remove oneself from scholastic endeavors. Traditional academia supports the removal of the ‘personal’ as a foundational requirement for the study of injustices in the legal system. It is deemed essential that scholars observe their study without implementing, or even attempting to implement change. In contrast to the dominant view, it is the position of Context Theory that scholars should feel emotions in their work. As individuals with increased access to education and resources, Context Theory purports that scholars have a responsibility to participate in rectifying the wrongs observed. Separate from the moral considerations that arise from the removal of the personal, it is worth questioning whether it is even possible to remove the scholar from the scholarly work. Is the lack of personal advocacy or expressed opinion truly objective 80 Yaroslav I. Molkov, Maria V. Zaretskaia, & Dmitry V. Zaretsky, “Meth math: modeling temperature responses to methamphetamine” (2014) 306:8 AJP: Regulatory, Integrative and Comparative Physiology, DOI: 10.1152/ajpregu.00365.2013 28 or is the assumption of objectivity just bias in disguise? There are strong reasons to refute the assumption that scholars do not interfere with the law when studying the subject. Legal scholars such as Jurgen Habermas, whose philosophy and training came from the Frankfurt School, argued that the purpose of studying the law was to improve the law and change it.81 Habermas held that the elevation of objectivity in law only furthered inequality.82 Habermas was not alone in his belief. A growing trend in legal scholarship pushes back against the idea of objective necessity in legal research.83 The assumption that apparent objectivity is essential is erroneous not only normatively, but descriptively. Context Theory does not simply adopt a normative statement that scholars should fix injustice; it challenges scholars to identify that it is descriptively wrong to say they do not influence their subjects. Scholars such as Prior, Crofts, and Hubbard argued that observing inequality in the law, and taking no action to correct it, was itself a moral violation.84 The details of their work involved the biases in classification and regulation of sex workers. In their work, it was clear that the seemingly objective application of law derived from subjective assumptions. For example: If the law identifies a sex worker as a victim of rape, the victim is given access to reparations and services. If the law identifies a sex worker as a prostitute, the worker is criminalized, suffering economic, social, and legal consequences. The difference between the two is only a label, but it is our invention and application of that label which determines one’s treatment under the law. The same bias of objectivity applies to homelessness. The objective position of law subsists on the ignorance of how unconscious choices, definitions, and priorities impact disparate populations. Interviews with agency workers revealed the games we play in defining homelessness and the harm it generates. Individuals sleeping on couches and going from residence to residence are not considered “homeless.” The law precludes 81 Raymond Guess, The Idea of a Critical Theory Habermas and the Frankfurt School, First Edition, (Cambridge University Press, 1981). 82 Gary R. Habermas, “Review: Philosophy and Miracle: The Contemporary Debate” (1989) 336 Liberty Baptist Theological Seminary 83 Gayle Letherby, John Scott, & Malcolm Williams, Objectivity and Subjectivity in Social Research, First Edition, (SAGE Publications Ltd, 2013). 84 Jason Prior, Penny Crofts, & Phil Hubbard, “Planning, Law, and Sexuality: Hiding Immorality in Plain View” (2013) 51:4 Themed Papers: Legal Geography, DOI: 10.1111/1745-5871.12033 29 individuals in unstable housing, unaffordable housing, and deplorable housing from accessing resources designated for the “homeless”. The numbers look better when we only count certain types of housing deprivation as homelessness, but that appearance does nothing to help those in need. Context Theory seeks the purpose of law and then seeks to engage law as an empathetic tool. Austin’s development of legal positivism illuminated the desire to grasp a tangible, objective reality within the structure of law.85 However, reliance on the quantifiable to evaluate legal institutions requires one to set aside the conditions of law as well as the variations in human experience. If language itself only appears objective from within a homogenous group, the statutes drafted utilizing language can only be applied equally within a like group.86 Support for Context Theory and the empathetic understanding of diverse populations finds support within existing law. The concept that equally applied rules to unequal circumstances prevents like treatment is not new. Numerous cases addressing judicial ethics reprimand courts for their failure to make reasonable accommodations for pro se litigants. In a case from the Supreme Court of Arizona, the opinion articulated that, “The courts do not treat a litigant fairly when they insist that the litigant — unaided and unable to obtain the services of a lawyer — negotiate a thicket of legal formalities at the peril of losing his or her right to be heard. Such a practice manifestly excludes the poor and the unpopular, who may be unable to obtain counsel, from access to justice.”87 If judges are ethically bound to make accommodations based on circumstances, should not the institution of law recognize distinctions based on the same? Contrary to Austin’s expressed intent, the assumption of objectivity prohibits the consistent, predictable application of law by treating disparate circumstances as if they are the same. Despite considerable effort by Austin and the legal positivists who followed, modern jurisprudence emerged from the mountain pass, wielding the words of philosophers who argued that logic and reason could (and should) enlighten law and 85 John L. Austin, Supra 57 86 Thomas Karv, Marina Lindell, & Lauri Rapeli, “How Context Matters: The Significance of Political Homogeneity and Language for Political Efficacy” (2021) 45:1 Scandinavian Political Studies, DOI: 10.1111/1467-9477.12215 87 White v Lewis, 1990 P.2d 805 30 politics.88 Legal historian, Paul Kosher, credited rationalists, such as Sir Francis Bacon, for inventing modern jurisprudence.89 As an acclaimed scientist, Bacon collected rulings, organized the decisions of judges, and made the law predictable in a way not previously considered.90 Bacon’s approach confronted legal scholars with the tangible impact of the system they imposed. In effect, Kosher identified Bacon’s analysis of law as a conduit between the empiricism built into modern legal theory and the human experience within the empiricist view of law.91 Because the stated goal of legal positivism was and remains objective law, the welfare of the poor and the contributions of the disenfranchised are not relevant considerations.92 Austin’s ideology prioritized social stability, order, and an end to feuds between social factions and subsystems.93 As long as each cog in the system continues to turn, the empiricist school of thought perceives no need to consider the individuals crushed by each rotation. While the individual bears no relevance in this view, the cogs that maintain the social order are of immense importance. Through the lens of legal positivism, law should be compartmentalized into manageable portions that can be studied and compared.94 But attempts to conduct a part-by-part analysis raises a critical question: Can the complex idea of law be deconstructed into simple, component parts? Giambattista Vico, an Italian philosopher from the 18th century, articulated what remains the core criticism of legal positivism’s deconstructionist view.95 Vico argued that the humanities and social sciences could not be studied in the same manner as the natural 88 Patrick Capps & Shaun D. Pattinson, “Ethical Rationalism and the Law”, First Edition, (Hart Publishing, 2017). 89 We are forced to pause for a moment to recognize the humor of a scholar named Kosher, who is writing upon and considering the subject of Bacon. 90 Paul H. Kocher, “Francis Bacon on the Science of Jurisprudence” (1957) 18:1 Journal of the History of Ideas, DOI: 10.2307/2707577 91 Barbara Shapiro, “Sir Francis Bacon and the Mid-Seventeenth Century Movement for Law Reform” (1980) 24:4 The American Journal of Legal History, DOI: 10.2307/844906 92 Thomas F. Broden, “The Straw Man of Legal Positivism” (1959) 34:530 Notre Dame Law School 93 Robbie Case, “The structure and process of intellectual development” (1987) 22:5-6 International Journal of Psychology, DOI: 10.1080/00207598708246796 94 Ibid. 95 Giambattista Vico, The New Science of Giambattista Vico, First Edition, (Cornell University Press, 2016). 31 sciences.96 That is, law and mathematics do not conform to the same, inalterable principles and so must utilize different tools of measurement.97 Vico’s criticism emphasized that scholars and lawyers were inherently a component part of the legal system they purported to observe. According to scholars such as Allen Francis, the inevitable involvement of the scholar with the subject of law required a more informed approach than mere empiricism.98 Vico would agree. He posited that the status of participant and observer could not be held in tandem; involvement in social systems created the problem of the observer. It was not inherent that legal positivism tried to solve the problem by ignoring the observer. Legal positivism is blind to the problem and therefore cannot solve what it does not see. For the purposes of Context Theory, the inability to perceive the problem and ignoring the problem have the same impact. Theorists such as James Cleve were less sympathetic to the phenomenological blind spot maintained by legal positivism. Cleve declared the positivist effort to ignore the observer and its own theoretical orientation was akin to “ostrich nominalism”.99 The implication of the term is that while positivists attempt to remain value neutral, they are merely ignorant of their own bias and unconscious theoretical orientation. Cleve’s defense of morals and ethics applied directly to symbolic logic, but the necessity of ethical declarations in research proved no less true in legal studies.100 Beyond Cleve’s observations were additional issues with the removal of the observer. By removing the observer from law, legal theory lost perspective. Though still an active component within the legal system, empiricists dismiss their own observations and experiences. Not only does this place excessive restrictions on the scholar, but it leaves the reader without an access point. Rather than sharing one’s perspective as it is, legal positivists imagine the system as an entity separate from their own observations. 96 Ibid. 97 Charles A. Reich, “Toward the Humanistic Study of Law” (1965) 74:8 The Yale Law Journal 98 Francis A. Allen, “Humanistic Legal Education: the Quiet Crisis” (1981) 25:3 Law Quadrangle (formerly Law Quad Notes) 99 James Van Cleve, “Prediction Without Universals?: A Fling with Ostrich Nominalism” (1994) 54:3 Philosophy and Phenomenological Research, DOI: 10.2307/2108582 100 Beyond symbolic logic, Cleve defends moral and ethical positions as “being the objects of thought and the subject matter of necessary truths or laws of nature.” To dispose of an inherent position, legal positivism would need to dispose of these roles in law. See Ibid. at 590. 32 This approach disregards the writer’s bias of lived experiences and distorts otherwise relevant observations by placing them in an artificially constructed frame. Put simply, four witnesses to an accident may present vastly different facts as evidence to support their version of events, but we cannot evaluate their accounts without knowing where each was standing. Legal positivism views the facts of the accident as collected; Context Theory considers facts about the viewer and the accident in tandem, responsively adjusting to the circumstances presented. The objective approach also dismisses an invaluable opportunity. Context Theory allows the reader an opportunity to engage in the process of study and within the constant process of defining law. By placing the scholar outside the system, Austin inadvertently denied those without legal access and power an opportunity to participate. Context Theory envisions research as an endless process. It places the subjects of the research into contact with readers; allowing everyone a chance to define the work and experience the process together. Instead of statistical regressions or case references spattered at readers, Context Theory aims to establish a process of mutual engagement. Though philosophic and social environments intertwined with the evolution of law, Austin’s three assumptions persist in legal theory today. The balance between law as subjective and law as objective continues to place legal scholars somewhere between the ‘soft’ and ‘hard’ sciences.101 According to critical theorists, scholars cannot step outside of the law to study the subject as objective observers. Legal scholar Ruskola Teemu argued that all law struggles with subjective comparison. To Teemu, even the Western notion of law represented a subjective preference for the written word, discriminating against cultures with oral traditions.102 What legal empiricists missed in the pursuit of objectivity is the arbitrary nature of blind enforcement. Garret Keizer, acclaimed author and former Episcopal priest, linked empathy to understanding. It is necessary to know from where something comes 101 Gregory Shaffer & Mark A. Pollack, “Hard and Soft Law: What Have We Learned” (2012) Minnesota Legal Studies Research Paper No. 12-17, DOI: 10.2139/ssm.2044800 102 Teemu Ruskola, “Legal Orientalism” (2002) 101:1 Michigan Law Review, DOI: 10.2307/1290419 33 before you can understand it. Legal empiricism refuses to look beyond the language of law, and “after a while, the refusal to understand becomes the inability to understand.”103 Similarly, Iris Marion Young expressed concern that scholars fail to see the perspectives of others and afford them justice under the law. Within her work Justice and the Politics of Difference, Young noted the vital role of perspective in democratic societies. Law is strengthened by a polity of perspectives, but without claiming perspective and sharing views, such diversity becomes division.104 Young identified that legal theorists need to make efforts to invite excluded populations into the discussion of law. According to Young, scholars and laypersons do not operate outside of the law merely because they remove themselves or have been removed from the debate. Exclusion of perspective is not a legal necessity as much as it is an inequity in the law.105 Where Keizer connected empathy to understanding, Young identified understanding as a prerequisite to equity. But in order for the law to gain understanding, a more dynamic definition of law is required. Feminist scholars, such as Kellye Testy, have argued for an expansion toward equity. Testy warned that the law, in its current state, is a tyrannical tool utilized against the underprivileged classes.106 Though some scholars indicated support and acknowledgment for Testy’s views, the academic community is yet to take affirmative action toward a solution. This work contends that the law can be a social tool for positive change. But for that to happen, scholars must step outside of legal positivism and consider definitions of law that provide social benefits. 2.3 Dated Nature of Legal Empiricism and the Need for Something New Though critics of the assumptions in legal positivism are plentiful, the greatest obstacle to legal positivism comes from historical changes. To understand the landscape 103 Garret Keizer, The Third Force, (September 2021), online: Harper’s Magazine < https://harpers.org/nc-redirect/?redirect_to=https://harpers.org/archive/2021/09/the-third-force-stupidity-and-transcendence/.> 104 Iris Marion Young, Supra 76 105 Iris Marion Young, “Equality of Whom? Social Groups and Judgments of Injustice” (2001) 9:1 The Journal of Political Philosophy, DOI: 10.1111/1467-9760.00115 106 Kellye Y. Testy, “Capitalism and Freedom: For Whom?: Feminist Legal Theory and Progressive Corporate Law” (2004) 67:4 Law and Contemporary Problems 34 of these changes, we must look beyond Austin and examine the theorists he influenced through his work, starting with HLA Hart. Hart developed his work “The Concept of Law” in 1952 and it was eventually published in 1961.107 Though Austin is considered the father of legal positivism, it was Hart’s work that established legal positivism as a mainstream, comprehensive theory of law.108 However, at the time his work was published, the legal and political climate was drastically different than it is today. In 1961, laws were routinely debated, passed, and dictated by the legislature. As other scholars have noted, the United States Congress passed only three legislative acts, predominantly focused on economic funding, between 2009 and 2010.109 The problem seems to be getting worse as our politicians no longer consider economic legislation, leading to government shutdowns and policy stalemates. Congress has quickly degenerated into a body obsessed with soundbites and ideological blows. Responsively, the general public no longer expects the United States Congress to pass legislation. Any form of legislation or agreement appears impossible when we cannot bring ourselves to impeach a president for instigating an insurrection against the country he is sworn to protect. Surely, Hart did not envision such a tragic reality for the legislative branch. In the absence of Congressional legislation, the Executive branch has taken a dominant role in the legal community by enacting policies through administrative action.110 According to Fisk, there are familiar major facts about the administrative state. Fisk provided a summary of facts which are well recognized within scholarship: “that it is central to modern government; that it has its own unique characteristics and style; that it needs much independence.”111 The ideology which disseminated through Congress is making its way into executive agencies. Claims of the “Deep State” are nothing more than the old ideology attacking one of the few functioning elements of law. 107 Herbert Lionel Adolphus Hart & Leslie Green, “The Concept of Law”, Joseph Raz & Penelope A. Bulloch (eds), Third Edition, (Oxford University Press, 2012) 108 Gerald J. Postema, “Legal Positivism: Early Foundations”, Andrei Marmor (ed), The Routledge Companion to Philosophy of Law, (Routledge, 2014). 109 Edward G. Carmines & Matthew Fowler, “The Temptation of Executive Authority: How Increased Polarization and the Decline in Legislative Capacity Have Contributed to the Expansion of Presidential Power” (2017) 24:2 Indiana Journal of Global Legal Studies, DOI: 10.2979/indjglolegstu.24.2.0369 110 Winston Mills Fisk, “Legislation and Administrative Law” (1965) 17 Administrative Law Review 111 Ibid at 116. 35 Context Theory acknowledges and is resigned to the fact that Congress will not act to resolve homelessness. There are too many moving parts and too much economic influence to implement sweeping legislation. The burden of homelessness is therefore shifted to the agencies. State functions, such as the Department of Human Resources, have statutory discretion and some financial ability to allocate resources. The fact is that legislation has evaporated faster than the Colorado River, requiring scholars to recognize other forms of legal authority in solving collective problems. It is well-recognized that legislative dysfunction shifted legislative tasks to agencies. Such an environment of political polarization and vitriol within Congress could not have been fathomed at the foundations of legal empiricism.112 The current environment of toxicity escapes the established frame of legal positivism; its founders would not have imagined a version of law in which executive action is the primary generator for policy and regulation. This shift places administrative law at the forefront in the minds of modern legal theorists. But modern administrative law is antithetical to the empirical approach that demands concrete definitions and predictability. The changes in functionality in the branches of government occurred so swiftly and with such a broad reach that legal scholars, such as Ronald Levin, came to question the very nature of law in the context of administrative law.113 Traditionally, administrative law holds that administrative decisions are not reviewable by the courts. This notion is embodied by the doctrine of Chevron deference.114 Chevron deference refers to Congress’s power to pass controlling statutes. Frequently, those statutes delegate policy decisions to an executive agency. If the agency’s interpretation of the statute is within the realm of reasonable interpretation, the Court will not question the agency’s action. The definition of Chevron deference already created issues for legal positivism. It involves the courts seeking intentions and looking at the actions of an agency.115 Both steps are outside of legal positivism. Legal theorists such as Thomas Merrill argued that 112 Gregory N. Mandel, “Institutional Fracture in Intellectual Property Law: The Supreme Court versus Congress” (2017) 102 Minnesota Law Review 113 Ronald M. Levin, “Understanding Unreviewability in Administrative Law” (1990) 74 Minnesota Law Review 114 Chevron U.S.A., Inc. v Natural Resources Defense Council, Inc., 1984 467 U.S. 837 115 Frederick Liu, “Chevron as a Doctrine of Hard Cases” (2011) 66 Administrative Law Review 36 legal positivists cured this problem by holding the courts silent on administrative actions.116 Scholars such as Jonathan Siegel argued that Chevron deference is an inherent requirement of the Constitution.117 Siegel argued that it is the legislature who says what is the law. For the purposes of Chevron, the courts should let Congress and the Executive deal with disputes. Reuel Schiller also defended Chevron as a necessary extension of expertise. Schiller argued the development of complex modern issues requires greater expertise and specialization, expertise the courts lack in reviewing policy decisions.118 Schiller’s argument assumed that administrative decisions were based upon expertise and are not politically motivated—something that may no longer be possible. In the early development of the administrative state, Schiller’s assumption may have been correct. But polarization altered the role of administrative action. Livermore and Richardson tracked modern administrative decisions and argued that polarization, weakened political parties, and volatile governance led to the degradation of expertise in administrative action.119 Where expertise was once highly prized among policymakers, the modern climate values loyalty above competence—ironically to the detriment of the world’s climate. The combination of increasing power in the Executive branch and the prevalence of partisanship in administrative decisions provides sound reason to review administrative policies on the same plane as statutes.120 While Congress remains in bickering gridlock, Congressional mandates grow weary, existing as relics not often revised. Without adapting legislation from Congress, agencies utilize a partisan hand to manipulate the corpses of statutory law to address national problems. The conflict unearthed in this time of constitutional upheaval demonstrates how the inextricable connectivity between law and society prevents legal theories from 116 Thomas W. Merrill, “Presidential Administration and the Traditions of Administrative Law” (2015) 115:7 Columbia Law Review 117 Johnathon R. Siegel, “The Constitutional Case for “Chevron” Deference” (2018) 71 Vanderbilt Law Review 118 Reuel E. Schiller, “The Era of Deference: Courts, Expertise, and the Emergence of New Deal Administrative Law” (2007) 106:3 Michigan Law Review 119 Michael A. Livermore & Daniel Richardson, “Administrative Law in an Era of Partisan Volatility” (2019) 69:1 Emory Law Journal 120 Ronald M. Levin, Supra 109 37 developing in a vacuum of law. Just as today’s political and legal climate undermines the foundational assumptions made by history’s most notable theorists, the developing social climate reveals the misguided roots of modern legal theory itself. Legal scholar Liton Biswas emphasized this inherent connection within legal positivism, noting that positivism is rooted in views of utilitarianism, and it is modeled after the authority of the family.121 As family dynamics have changed, so too have the measures of meaning and utility within society. In addressing the application of legal positivism, Biswas argued that the paternalistic view instilled therein was a way of keeping the people in a healthy state of fear and respect for law. For Biswas, this raised the question, “is paternalism a viable way in the age of humans where all humans are equal?”122 Though Biswas’ work highlighted the paternalistic aspects of legal positivism, he failed to exercise the philosophic foundations that further undermine modern legal theory. It is not merely the model of the family which jeopardizes modern theory, it is the way in which law has changed and how our legal psychology remains in the 1800’s. In adopting the long view of political history, the inherent assumptions built into legal positivism prevent the equal application of law and fail to address the realities of lived experience. The ingrained assumptions of legal positivism must be acknowledged and extracted from modern legal theory before individual dignity can find support in the institution of law. Though legal positivism found a foothold in the social and political terrain of the time, the complexities of today’s landscape necessitate the adoption of a new theory of law, one in which the role of philosophy and the existence of subjectivity in law is accepted enough to be addressed. 2.4 The Pathway Forward Through the annals of legal scholarship, it was philosophical darkness that whispered uncertainty as a haunting threat in the legal world. But modern shifts in law and politics cultivate doubt in every crack and chasm of assumptions, ever-expanding in 121 Ibid. 122 Liton Chandra Biswas, “Legal Positivism is an Outdated Concept” (2021) University of Turin; Independent University Bangladesh 38 legal positivism. According to Nussbaum, efforts to remove all uncertainty from law and a failure to adhere to the voice of the disadvantaged removed our common institutions and common sense.123 In more blunt terms, blind adherence to deaf laws has made us all dumb. Nussbaum’s criticism addresses the feckless governance in the present day, but this analysis is hardly new. Political theorist Hannah Arendt also condemned blind adherence. Arendt looked to the future that blind adherence inevitably predicts as a failure for the individual to “be.” According to Arendt, the worst historical atrocities are not committed by monsters but through the incurious banality of those who simply obey.124 By failing to question the substance of law, we accept legal authority without regard for the human cost or our role in the furtherance of human suffering. The truth of Arendt’s assertion can be felt through an individual’s self-examination of ignorance. For example, do you know how far you are from the nearest homeless shelter or food pantry? If not, why not? The mountains of philosophy still tower at the edge of legal theory. Legal positivists compulsively jump through theoretical hurdles to avoid the dragons that lie in wait. The valleys of law continue to produce vast crops of data to satisfy the appetite for objective measurement. But the beauty in a metaphor about dragons is the way in which narrative storytelling determines whether the beast is assessed as friend or foe. Survey the dust-worn literature and dragons are murderous, mindless, and mad. Approach modern tales—Shrek, How to Train Your Dragon, Eragon, Dragon Rider, and even Game of Thrones125—and dragons hold a place of reverence, friendship, and empathy for those who are misunderstood. It is not the thing but the story that primes the viewer with expectations. Whether it is the dragons of philosophy or the ‘monsters’ alleged to inhabit the Greenway, it is the narrative that shapes our willingness (or unwillingness) to engage. 123 Martha C. Nussbaum, The Fragility of Goodness: Luck and Ethics in Greek Tragedy and Philosophy, Second Edition, (Cambridge University Press, 2001) 124 Shajwan Nariman Fatah, “Eichmann is in the Panopticon: Comments on Hannah Arendt’s “Banality of Evil”” (2021) 2:3 Journal of Cultural and Lingua, DOI: 10.37301/culingua.v2i3.91 125 This reference is included despite the fact the author has neither read nor seen Game of Thrones. If the reader questions the context in which this reference is used, that serves the author’s broader point: Context matters. 39 Chapter 3: Nussbaum’s Capacities and Context Theory126 The Bible itself says, “there is no God.” 127 The text on which you rely is only as valuable as the context provided. The ongoing process of shock and thought experienced throughout this research indicated a need to bridge the gap between modern legal theory and human dignity. In pursuit of that end, Context Theory drew inspiration from Martha Nussbaum’s Human Capabilities theory. Her work “Creating Capabilities” reversed the negative assumptions of legal positivism and attempted to envision the positive attributes and obligations of law.128 Nussbaum argued for the implementation of ten capacities within the legal structure to preserve a dignified life for all citizens.129 Her theory focused on a standard of dignity for all individuals, regardless of chance circumstances. Instead of viewing law as a list designating what individuals could not do, upon penalty from the sovereign, Nussbaum looked at what the sovereign must do to ensure individuals can live meaningful lives.130 It is Nussbaum’s adamancy about the sovereign’s responsibility to act affirmatively, within positive law, that made her work immediately relevant to the issues of homelessness on the Greenway. The research conducted in support of this work unveiled the ways in which prohibitions on individuals, negative law, keep the unhoused in a state of poverty. From those same observations, this work identified avenues for positive obligations, spaces in which positive law could alleviate the conditions that render poverty an impermeable condition. By grappling with this research and the spaces of potential revealed therein, Context Theory endeavored to reimagine a definition of law capable of incorporating Nussbaum’s ten capacities. However, Nussbaum’s capacities cannot breach the theoretical without first replacing the fundamental belief embedded in 126 Context theory was developed by the author, Ryan W. Peterson. 127 The Holy Bible, Psalm 14:1, The fool in his heart says, “There is no God.” 128 Martha C. Nussbaum, “Creating Capabilities: The Human Development Approach and Its Implementation” (2009) 24:3 Hypatia 129 Ibid. 130 Ibid. 40 each assumption of modern theory: the belief that the circumstances that bring a person before the court are a product of choice, not chance. The Human Capabilities theory and the reality of the Greenway are in direct conflict. If Nussbaum’s theory of law applied in practice, the latter could not simultaneously exist. Between theory and reality, facts alone are an insufficient basis upon which to claim understanding; context must be integrated with the associated facts if comprehension is the intended result. Similarly, the observable elements of law favored by legal positivists are inadequate for the equitable administration of law; the equal application of law to unequally situated persons necessarily produces inequitable results. As an element of Context Theory, this work developed the notion of applied equality.131 Applied equality requires context and the unequal application of law to account for chance conditions. It recognizes that law must be applied in context so equality can become a reality. The Context Theory of Law (hereafter, “Context”) integrates the objective realities of the legal system with the lived experiences of those subject to it.132 Context reinvents the notion of law as a means through which distant populations in a democratic society can communicate. This theory recognizes the need for a connective tissue to traverse the expanse between the idea of objective law and the consideration of lived experiences. That is, if both facts and context are required for understanding, we must also ask what it is we are trying to understand. Context begins with Nussbaum’s Human 131 “Applied equality” is a legal term developed by Ryan W. Peterson. It is used within Context theory to differentiate between the consistent or equal application of law and considerations of equality that are then applied through law. As an example: Two people stole a candy bar and stood before the court for judgment. The first person was an affluent adult who acted because they wanted the candy bar and did not want to pay for it. The second was a medical doctor who acted because they identified a child with diabetic hypoglycemia and assessed that consumption of sugar must be immediate to prevent long-term harm. Equal application of law would result in both persons being convicted for theft. Applied equality would first consider context and adjust the application of law where circumstances prevent an equitable outcome by equally applying the law. Though Context theory argues for an institution-wide approach to applied equality, examples of applied equality exist in statutory language in certain situations. E.g. self-defense. This concept also appears in tax policy as the Code’s intent to treat “similarly situated taxpayers” similarly. (Note: “applied equality” differs from “equality practice” and the application of equality practice (as “applied equality practice). Equality practice was coined by William N. Eskridge, Jr. and focuses on concepts of social equality, notably considerations for when the Court should uphold equality interests in opposition to social norms or existing laws. Eskridge cites Brown v. Board of Education and Obergefell, among others. The application of Eskridge’s equality practice is expanded upon by James M. Donovan. See https://uknowledge.uky.edu/cgi/viewcontent.cgi?article=1669&context=law_facpub.) 132 The methodology, relevant terminology, and application of this theory was developed by the author in response to the needs specific to this study and is exclusively presented in this text. 41 Capabilities theory, and the things she wanted to understand was this: What is required for human dignity?133 3.1 Reaching Nussbaum’s Capacities Understanding Context Theory requires a discussion of Nussbaum and her Human Capabilities theory. Just as it is critical to discuss the current legal theory and how it developed, a full picture of the problems faced by the legal community requires an examination of the alternative theories. Context Theory builds upon the Human Capabilities theory. Context provides the philosophic bridges necessary for Nussbaum’s human driven approach to take effect. Nussbaum started her work by suggesting that there are ten capacities required for every individual to experience a dignified life134: life; bodily health; bodily integrity; sense, imagination, and thought; emotions; practical reason; affiliation; other species; play; and, control over one’s environment.135 The Context approach expands on those capacities and addresses the ways in which this view of dignity applies to the legal treatment of homeless populations.136 Context Theory implements her narrative perspective as a core methodology. Nussbaum’s approach, when adopted, changes the orientation of law from a forceful check on human behavior to a positive mechanism by which society is supported. However, Nussbaum did not intend to connect the ten capacities to legal interpretation. Though the capacities align with the system of justice in a theoretical landscape, there is no access point between Nussbaum’s view of dignity and the application of law. The inability to link human dignity to the application of law remains the most prominent critique against her work. It should be recognized that there is a long academic tradition of studying the hypothetical adoption of empathy in law (often, quite unempathetically). 133 Ibid. at note 122. 134 Martha C. Nussbaum, Supra 124 135 A more complete explanation of each capacity is provided in the glossary. 136 Elaine Shpungin, “When the shoe fits: Human dignity denial and recognition in a shelter for homeless families” (2002) Michigan State University ProQuest Dissertations Publishing 42 The closest current implementation of Nussbaum’s theory does not come from scholarly work on empathy in law. Ironically, most of the academic work on empathy focuses on empirical studies, productivity, and quantified results of empathetic decision-making. A much better approximation of Nussbaum’s goal is evidenced in the ethics of care. Feminist scholars such as Joan Tronto provided a much stronger foundation for empathy and Context Theory. Tronto’s work, “Moral Boundaries,” defended a nonquantifiable approach to empathy in the law.137 While the scholarly work on empathy in the law retains its objective position, Tronto’s feminist approach recognized the diverse experiences of the other. The ethics of care is a procedure to help scholars understand the goals and priorities of those on the Greenway. As a matter of applied equality, it is necessarily for scholars and practitioners to see and understand desperate experiences before they can make fair determinations in law. Social worker and scholar Marilyn Reitz-Pustejovsky demonstrates the functioning of empathy and administration in her work “Is the Care We Provide Homeless People, Just?”138 As a social worker, Reitz-Pustejovsky focuses her academic work on empathy and seeing the individual’s within the narrative of their own circumstances. She gives concrete examples from her own experiences, such as allowing homeless individuals the right to refuse assistance, while maintaining contact and openness. The work is difficult as it is hard to understand why an individual would refuse services, but that is why empathy is vital. Reitz-Pustejovsky attributes her success to the time spent listening and building connections with individuals with whom she works. Such a position is rare within services, as agencies focus upon efficiency at the neglect of personal connections and stories. As insightful as Reitz-Pustejovsky’s work is, neither feminist legal theory nor the institutional structure provides a portal by which to connect law and Nussbaum’s human capacities. The obstruction to seeing empathy and human capabilities within the law originates from our Kantian perspective of logic. It is the three assumptions built into law 137 Joan C Tronto., “Moral Boundaries: A Political Argument for An Ethic of Care” (1993) 138 Marilyn Reitz-Pustejovsky, “Is the care we provide homeless people, just? The ethic of justice informing the ethic of care” (2002) 11:3 Journal of Social Distress and the Homeless 43 that preclude narratives and empathy. Without the ability to listen and understand individuals, our agencies cannot hope to achieve the kind of work that Reitz-Pustejovsky has achieved as a social worker.139 By identifying the tremendous power contained in Nussbaum’s narrative, human-centric140 approach, the Context builds upon Nussbaum’s foundation to provide the theoretical environment sufficient to make a narrative methodology achievable within legal practice and academia. As Nussbaum’s research focused on the broader integration of human dignity, her work is typically applied to an ethereal plane. Tronto’s work suffered a similar critique. Both are the work of armchair philosophers. They have generated beautiful ideas, but they leave practitioners to struggle to implement their recommendations. They also leave themselves vulnerable to criticism from legal positivism. Legal positivism is actively sitting in courtrooms to make determinations of law. While the old theory masks bias and prejudice, critical theorists have yet to step foot on the ground to test their ideas. It is because neither Tronto nor Nussbaum use an inductive approach to empathy and dignity that Context is required. Context is deductive and applies the voices of the Greenway to the study of law. Before the capacities can be tangibly implemented and empathy can be incorporated into law, legal scholars must address a few philosophic dissections. Context addresses the precise cuts required to accomplish this end. Context proposes the adoption of metaphysical, ontological, and epistemological dissections necessary to bridge the gap, rendering the application of Nussbaum’s capacities an achievable reality. In part because of Nussbaum’s own theoretical background, Context developed from an interdisciplinary study of psychology, sociology, history, and economics. This work contends that a wider base with broader academic foundations can inform modern legal theory in such a way as to connect the theory of human capacities to litigation and interpretation in the law. 139 Michael Slote, The Ethics of Care and Empathy, (Routledge, 2007). 140 “Human-centric” and “data-centric” are the preferred terms used in Context theory to distinguish between research that stems from a collection of calculable data points and a study that emerges from the collection of first-person narratives. Though the traditional academic language applied to this distinction is “quantitative” and “qualitative”, the elitist undertone of academic formality furthers the inaccessible nature of legal scholarship and the law. By shifting terminology, it is the author’s intention to practice the fundamental lessons that emerged from the research conducted for this work. 44 Rather than catering to the tangible reality of the existing legal structure, Nussbaum’s work assumed the existence of a worldview consistent with human dignity. In “The Fragility of Goodness” she examined the ancient context of a good life and argued that there is inherent fragility in the Human Condition.141 To live a good life is to live an exposed life. This directly conflicts with positivism’s drive to eliminate exposure in pursuit of certainty. Naturally, some portion of the conflict is attributable to Nussbaum’s intentions; as with her development of human capacities, she did not seek to connect the fragility of a good life to law. Unlike the untethered realm of capacities, the connection between fragility and law is easily assembled from scholarly work. Currently, legal theory and practice maintain the existence of two incompatible worldviews. In “The Fragility of Goodness,” Nussbaum argued that law is a human artifice created from Techne.142 Techne is an ancient concept of rules and procedures, designed to insulate us from chance. Law is a form of Techne. According to Nussbaum, Techne was produced to protect individuals from chance, which is an inherent human fear.143 It is through chance that we become a CEO, but chance is equally as likely to condemn you to a life of begging on Lake Street. The Greek concept of unpredictable chance is Touché. Law and legal theory farcically mime the acknowledgement of chance, or Touché, in law. Lawyers are trained to hold empathy for litigants while taking a binary perspective on law. We expect the layman to act as a lawyer and the traumatized to rationalize like litigators. The framework in which we discuss empathy is corrupted by our legal framework. We cannot implement empathy if we separate ourselves from the law. Empathy is not quantifiable. Most importantly, we cannot defend empathy on grounds of rational choice. Rational choice adopts the expectation that trauma and anger will comport with legal syllogisms despite substantial research that demonstrates trauma and poverty affect cognitive skills. If scholars are willing to look outside legal research into psychology, they will discover that trauma institutes defense mechanisms that appear illogical to 141 Martha C. Nussbaum, Supra 119 142 Ibid. 143 Ibid. 45 general populations.144 It is untenable to ignore the realities of poverty and pretend that such individuals should respond and behave according to our privileged perspectives. The notion of applied equality is nothing less than an effort to understand the position of the other. Part of the incongruence between expectation and reality stems from the origins of modern law and theory.145 The philosophic core derived from the seeds of liberal and empirical thought created problems for Western law in the modern era. The philosophical through line prohibited individuals without a legal education from grasping the language and logic of law. Stephen Wexler identified the problem as early as 1969; his observation is worth quoting at length: Poor people are not just like rich people without money. Poor people do not have legal problems like those of the private plaintiffs and defendants in law school casebooks. People who are not poor are like casebook people. In so far as the law is concerned, they lead harmonious and settled private lives; except for their business involvements, their lives usually do not demand the skills of a lawyer.146 Wexler also observed a radical tendency of attorneys for the poor to lose.147 Wexler’s work argued that, tragically, lawyers for the poor were wasting their time and skill because the language and structure of the law was against them.148 The law does not recognize the grievances of the poor. The language of law makes no room for understanding the historic discrimination and the implicit assumptions that disfavor those who are struggling to achieve more. Put differently, the law applies uniformly, without the ability to recognize those who cannot afford the uniform. In stepping beyond the legal academy, the institutional biases observed by Wexler combine with psychological barriers constructed from legal jargon. According to 144 Mary W. Armsworth & Margot Holaday, “The Effects of Psychological Trauma on Children and Adolescents” (1993) 72:1 Journal of Counseling & Development, DOI: 10.1002/j.1556-6676.1993.tb02276.x 145 Jeremy Waldron, “The Rule of Law in Contemporary Liberal Theory” (1989) 2:1 Ratio Juris, DOI: 10.111/j.1467-9337.1989.tb00028.x 146 Stephen Wexlet, “Practicing Law for Poor People” (1970) 79:5 The Yale Law Journal, DOI: 10.2307/795211 147 Ibid. 148 Ibid at 1059. 46 psychologist Patricia Wright, the language adopted by the practice of law disconnects individuals from their emotional responses.149 It is not just the complication of legal vernacular, but the logical orientation of the language that prevents litigants from emotionally engaging.150 Her critique tracked for those who practice law as well. Emotional arguments are objectionable and language that is likely to sway the emotions of involved parties is prohibited in court. The language of specific statutes prohibiting emotions is nearly unintelligible.151 Even the language utilized by judges and lawyers removes those characteristics which may otherwise serve to humanize the “defendant” or “petitioner” before them. The defendant is never named as a person but referred to as an abstract entity, “The Defendant” The same is true for “The Victim” or “The Plaintiff.” The language of law intentionally excludes individuals from its vocabulary. Even in administering justice, the court is unable to affirm the emotional needs of victims. The court may find a ‘sufficient factual basis upon which to grant an order for protection’, but it will not acknowledge that the victim was not at fault for the abuse. The linguistic acrobatics infused in law not only precludes emotional engagement, but also prevents basic access to information. Attempting to explain concepts such as “lesser-included offenses” or distinctions between “gross negligence” and “recklessness” to a jury presents attorneys with the practical complications of legal language—one that few attorneys manage to overcome. As the words used serve as an invisible barrier to legal access, parties to the case and jurors alike are left desperate to understand what legal positivists would refer to as “the plain language of the text”. What is crippling in the practice of law is even worse for legal academics. Academia has no need to present its argument to a jury. For the scholar, a jury of peers is a jury of educated elites. Individuals who trade insider information in a language that even other academics will fail to appreciate. In this light, a term such as applied equality must be unpacked and broken into its most basic parts. But even that is insufficient. To understand a term such as applied equality, it must be applied to lived reality. The value 149 Patricia Wright, Is Legal Jargon a Restrictive Practice?, First Edition, (Oxford Socio-Legal Studies, 1981). 150 Ibid. 151 For example, see Minn. Rules of Evidence 606(b). 47 of applied equality is understood only when one understands their own vulnerability to Touché. The articulated critique presented by Wexler and Wright does not overtly violate Nussbaum’s capacities, it does so implicitly. Without acknowledging the variations in access to law, no equitable theory of law—including Nussbaum’s capacities—can be successfully implemented. Before applied equality is possible, the law must be mutually understood by those who implement it and those who are subject to it. Context was developed in the hope of achieving this through relatable narratives. Honest stories and honest reflections to help the scholar see part of herself in the prostitute on the Greenway. 3.2 Empathy and Its Inherent Defiance to Empiricism For a better understanding of the importance of mutuality in law, this work elicits further guidance from alternative disciplines. Pierre Rosanvallon, a French historian, and sociologist, referred to the mutual understanding of law as “proximity.”152 He argued that it was vital to any legal system that all individuals have the capacity to participate.153 Rosanvallon argued that individuals need to feel like they are heard in the law. Though his work did not immediately attach to legal language, it does attach to representation in the law and the lack of meaningful connection between participants and the legal process.154 Neither the judges nor the attorneys look like the defendants—and trauma is not a recognized dialect for which the court offers translation. This lack of representation is an underlying current for Nussbaum’s narrative approach as well as the purpose in selecting her human-centric methodology for Context. Currently, legal theory removes individuals from the subject of law; only hypothetical entities serve a view of law that depends upon certainty and predictability. (Humans are notoriously unpredictable and thus excluded from the process at every opportunity.) To the extent that the individual is included in legal narratives, the person serves as an abstract principle and not as a participant. Throughout the extensive research 152 Pierre Rosanvallon, Democratic Legitimacy: Impartiality, Reflexivity, Proximity, First Edition, (Princeton University Press, 2011). 153 Ibid. 154 Ibid. 48 collected for this work, the homeless were consistently identified not as people, not mothers and fathers, sisters and brothers, sons, or daughters, but as data points. Even the existing work on empathy attempted to wedge itself into a data driven approach.155 It is the very nature of data-driven legal research to minimize human experience to a quantifiable form, and disenfranchised communities are no stranger to numeric identification. If the intent of this work were to pose an academic question, review the available literature, and build from the legal academy’s wealth of prestigious scholarship, the existing research would imbed one, inescapable reality: the unhoused exist as numbers on spreadsheets, fit for legal consumption. Not people. According to the literature, the homeless are not human participants to whom the law applies, but simply the reason such laws are necessary. Unsurprisingly, the homeless express similar detachment from the institution of law. Rosanvallon stressed that it is impossible for individual subjects to feel connected to the law when they are removed from the processes of law and are not provided the tools necessary to understand the nature of law.156 While the dehumanization that occurs in legal research necessitates a theory capable of recognizing Nussbaum’s capacities, reducing humans to numbers is not the only false-equivalency that occurs in the data-centric approach. Indian economist and winner of a Nobel Prize in economics, Amartya Sen criticized traditional welfare economies because they conflate well-being with wealth.157 In essence, you cannot provide social services to historically disenfranchised populations and pretend that you have restored their humanity. Sen’s approach to human well-being attempted to distinguish wellness from the wealth of a country. This insight is the precise reason that Context cannot utilize traditional, quantitative approaches. Sen’s criticism of economic framing can be equally applied to the existing research on empathy in the law. Like Nussbaum, the work of Toni Massaro argued for narratives in the law. Massaro argued that narrative is inseparable from the law and 155 For Example, see Scott W. McQuiggan & James C. Lester, “Learning empathy: A data-driven framework for modeling empathetic companion agents” (2006) 5th International Joint Conference on Autonomous Agents and Multiagent Systems (AAMAS), DOI: 10.1145/1160633.1160806 156 Pierre Rosanvallon, Supra 145 157 David A. Clark, “The Capability Approach: Its Development, Critiques and Recent Advances” (2005) 2 Development Studies 49 failure to identify the individual is a result of greater legal failings.158 Though Massaro and Nussbaum similarly advocated for the voice of those unrecognized by the institution of law, Massaro sought to integrate the individual into the legal framework, rather than adapting the legal framework to adequately serve the individual. The problem identified by Context is that the individual cannot be introduced into law, as advocated by both Massaro and Nussbaum, until the structure of law changes. One theorist upon whom the approach of Context heavily relied was Martin Hoffman. Hoffman built off the foundations constructed by Massaro in the defense of empathy in law, arguing the validity of empathy within legal environments.159 Hoffman’s work focused on how empathy can provide concrete benefits to the legal process.160 An astute reader would note that Hoffman described how empathy can be used to enhance law, but did not address the underlying theory of law and how empathy is an inherent necessity in legal theory. Neither did Hoffman identify how empathy is to be utilized and adapted. Context argues that Touché is the cornerstone of empathy in the law. The pain experienced by a judge and a rape victim may be dramatically different. But what separates them by degree unites them in subjective experiences and internal fears. It is not necessary for a judge to experience rape to empathize with a victim of rape. What is necessary is that he taps into his own insecurity and vulnerability. Then he can contextual experiences which are not his own, attach them to his fears, and make more informed decisions. It is from our shared context as individuals suffering the randomness of the world that we can create a Techne (law) for the mutual and adaptable benefit of everyone. It is unlikely that legal positivists would debate the benefit of empathy. What modern theorists do debate is the appropriateness of implementing empathy directly into legal theory. Legal scholar Brenner Fissell addressed the debate of whether empathy should even be allowed as a consideration in law.161 According to Fissell’s work, 158 Toni M. Massaro, Supra 42 159 Toni M. Massaro, Supra 42:Martin L. Hoffman, Empathy: Philosophical and Psychological Perspectives, First Edition, (Oxford, Oxford Academic, 2012) 160 Ibid. 161 Brenner Fissell, “Modern Critiques of Judicial Empathy: A Revised Intellectual History” (2016) 817 Mich. St. L. Rev. 50 empathy and context are seen as distractions. They are the realm of emotion and instability—the very elements that Austin sought to exclude from his method. The very nature of Touché that the development of law is intended to preclude. While Nussbaum and Tronto attempted to bring empathy and context back into law, they have yet to liberate themselves from Austin’s methods and assumptions. The majority of research on empathy treats the consideration of empathy as a means to achieve some productive end. This view devolves to the area of concern addressed by Sen; the tangible, economic reality is not the only reality. Put differently, a good business model is good for business, that does not make business good for humankind. Another failing of the existing studies is the way the research utilizes one of two methodological approaches to address those toward whom they (arguably) suggest empathy should be directed. The first approach omits the existence of participants and adopts normative arguments without representation. The second approach acknowledges the participants, but does not recognize them as individuals; rather, participants are exploited as data points. As seen in agency determinations that distinguish unstable housing from homelessness, the data is only as valuable as the definition to which it attaches. While the willingness to address empathy in any context of law, theoretical or otherwise, is laudable, even those who tackle this concept adopt a transactional frame to support the argument. Scholars consistently fixate on what empathy can contribute to law. In contrast, the Human Capabilities theory attempted to recognize individuals as ends themselves and to provide meaningful value through their experiences. The focus on the individual life world of the participant fuels much of the criticism faced by Nussbaum. Critics of the Human Capabilities theory assert that economic variables are the only way to measure human growth and development. According to Brian Butler, there is a burden of proof which is difficult to attain with the Human Capabilities. Butler’s primary response to this concern was to address measurability and determination of the theory’s success.162 Butler’s work posed the 162 Brian E. Butler, “Nussbaum’s Capabilities Approach: Political Criticism and the Burden of Proof” (2001) 1:1 International Journal of Politics and Ethics 51 question: How do you know the theory is working if its implementation of economic variables are not the primary indicators of success? Butler’s critique was expressed more directly by scholars Sabina Alkire and Severine Deneulin. They argued that the primacy of the Capabilities approach was self-defeating since its success must be measured through economic indicators.163 They argued the success of individual capacities through economic methods effectively collapses the Capabilities approach back into liberal models—extinguishing the individual in the process.164 An observant reader would begin to see the epistemological challenge faced by scholars. Butler, Alkire, and Deneulin implicitly hold that the only knowledge is empirical knowledge. Context challenges this proposition directly. Arguing for empathy and a humanistic approach is futile as long as we accept empirics as the only form of knowledge. Subsequent scholars have argued that Nussbaum’s approach does not degenerate into economics. Paola Bermardini argued that Nussbaum’s capacities present a functionalist approach to human dignity.165 The measure of success is observationally independent from the wealth of a nation, as argued by Sen. While this view seems to align most closely with Nussbaum’s stated purpose for the theory, it presents additional difficulties regarding implementation. We continue to hide the epistemological belief that data is the only valid form of knowledge. Whether that data is economic, or the metrics of functioning institutions is of little importance. Both remove the individuals from the discussion. 3.3 Context Theory’s Response and Adaptation of Nussbaum’s Three Principles 163 Séverine Deneulin & Lila Shahani, An Introduction to the Human Development and Capability Approach: Freedom and Agency, (Earthscan, IDRC, 2009) 164 Ibid. 165 Paola Bernardini, “Human Dignity and Human Capabilities in Martha C. Nussbaum” (2010) 6 Iustum Aequum Salutare 52 Nussbaum was fully aware of the epistemological trouble around measuring empathy. In a lecture on the subject, Nussbaum emphasized that among the ten capacities, there were three primary principles scholars must exercise to make her theory a reality: the ability to critically examine oneself, the ability to see oneself as connected to humanity, and the ability to exercise imagination.166 As applied to law, Nussbaum’s three principles serve as a message to legal scholars: the legal profession must avail itself to examination, connection, and imagination before the ten capacities can be implemented. It is not a coincidence that Tronto suggested a similar disposition when addressing the ethics of care.167 Tronto transformed listening into an active skill required for productive research. Until scholars begin to examine the silencing effect of quantitative research, it is unlikely that empathy will make its way into legal institutions. Data-driven studies and doctrinal methods are convenient, but they are also a form of violence against the subjects we allegedly hope to help. The way Western legal theory abstracts the individual excludes the specific experiences of any one person. Every woman interviewed on the Greenway had a story of sexual violence, but that does not justify the reduction of their experiences into data. What matters to them is not the statistical fabrication of rape and homelessness, but the lasting effects of their trauma. When scholars take that trauma and reduce it to datum, they silence the story and prune the narrative that means so much to the individuals involved. Even Nussbaum, in providing abstract notions of dignity, provided a monist definition of her concept and imposed it upon the community. Context aspires to make the individual narrative the core of empathy and law. One goal of Context is to return people to the subject of law. The inductive, human-centric approach utilized in the research aims to serve as a medium, allowing disenfranchised populations to reclaim a voice in law. Despite the stories of the poor being utilized for caselaw and their vulnerabilities exploited in for-profit prisons, their contributions to law are largely unacknowledged by the legal community. In developing 166 Martha C. Nussbaum, “Education and Democratic Citizenship: Capabilities and Quality Education” (2011) 7:3 Journal of Human Development, DOI: 10.1080/14649880600815974 167 Joan C. Tronto, “Ethics and Aging: Bringing the Issues Home” (1998) 15:20 Generations: Journal of the American Society on Aging. 53 its approach, Context took inspiration from Mitchell Duneier. Duneier was the only scholar who actively allowed the poor a position within his work. In studying disparate populations in New York, Duneier conducted in-person interviews.168 The poor were allowed to direct interviews, ask questions, and partake in the research process. Perhaps most impressive, Duneier allowed participants to write the afterword for his work. The result of such a method was a beautiful collage of minds and perspectives. Participants expressed gratitude in the afterword and Duneier’s observations remain critical sources throughout numerous disciplines. However, Duneier was a sociologist. Such methods are yet to be incorporated into legal scholarship. Nussbaum called legal scholars to follow methods demonstrated by Duneier, but she did not implement such insights into her own work. Nussbaum’s theory was oriented toward helping individuals the law systematically neglects—but it cannot exist within the legal structure until the legal structure acknowledges those same individuals. Nussbaum encouraged scholars to see themselves in their work and allow the reader to view the work from the writer’s unique perspective. Context uses the inductive process of reflexive interviews to build upon Nussbaum’s articulated principles. Rather than eliminating the observer as empiricists advise, or merely including the scholar as Nussbaum suggested, the proposed theory considers the context of experiences and observations and dictates two points of access: one of the scholar(s) looking out and one of the subject(s) looking in. This approach allows participants and observers to step into not only the perspective of the other, but the lived experiences as well. More directly, Nussbaum’s principles suggest, and this work contends, that without a change in the legal profession, individuals will continue to feel voiceless in a system they cannot fully access or understand. Without being able to meaningfully contribute to and express themselves within the legal structure, the social contract between a government and its citizens erodes. The people cannot be compelled to abide by the rules of law when they perceive no difference in how they are treated irrespective of compliance. This is particularly true for 168 Mitchell Duneier, Sidewalk, First Edition, (Macmillan, 2001). 54 homeless populations. Homeless individuals cannot feel recognized by a system that imposes laws arbitrarily. As long as the homeless population cannot recognize the accent of the legal system and feel as if their trauma is understood, the application of law will always appear arbitrary. While the focus of this work is on the individuals subject to legal authority, the institution of law depends upon the perception that the law is grounded in reality. That is, the perception that the law is unjust or unjustly enforced degrades faith in the institution. With the help of David Ragozzoni, it is at this intersection where the direct link between Rosanvallon’s “proximity” and Nussbaum’s core principles arises. Ragazzoni argued that legal structures lose the population’s faith when proximity is lacking.169 Ragazzoni’s research identified that “lack of faith” means more than the loss of some fanciful belief; it translated into budget and policy decisions. This may be best exemplified by the least popular government agency in the United States, the Internal Revenue Service (IRS). The lack of support for the IRS is not accidental. Financial elites exerted great effort to manipulate public opinion over the course of decades, and continue to do so.170 The undermining of the public’s trust in the agency ensures the IRS maintains the reputation of a heartless, money-hungry institution.171 And without a hint of political backlash, the IRS budget has been cut by more than 20% over the past ten years.172 While Nussbaum’s capacities may struggle to offer calculable results, popularity in government can be condensed to economic measurements. By incorporating potential loss of faith into the analysis, the Human Capabilities theory transforms into more than just a normative suggestion; it becomes 169 David Ragazonni, “Democratic legitimacy: Impartiality, reflexivity, proximity: (2014) 13:3 Contemporary Political Theory 170 Robert M. Howard, “Wealth, Power, and the Internal Revenue Service: Changing IRS Audit Policy through Litigation” (2001) 82:2 Social Science Quarterly 171 Defunding/underfunding the IRS is an effective way for top wealth to evade tax obligations. The IRS commissioner, Charles Rettig, has stated (more than once) that the IRS can only afford to go after the poor. If anyone wants to tax the rich, they have to fund the IRS first. From an actual efficiency in government scale, the IRS has a 300:1 return for every dollar spent. From a budgetary standpoint, the “tax gap”—the difference between what is identified as owed and what is received after budget-restricted collection effort—exceeds 350 billion dollars every year. The majority of which is identified as belonging to taxpayers the IRS simply lacks the resources to pursue. Information gathered through first-person interview with former law clerk for the U.S. Senate Committee on Finance tax team. 172 If passed by the House and signed by President Biden, the Inflation Reduction Act passed by the Senate on August 7, 2022, will be the first meaningful investment in the IRS since the turn of the century. 55 necessary for the law to acknowledge the voices of others to save itself as an institution. If human empathy is the proverbial carrot, Ragazzoni provided the stick. While the motivation stirs on two fronts, the work of bringing the voices of individuals into law can only begin with scholars. We must start by questioning our own inherent assumptions. In a sense, this work emerged from the two questions that loomed over those who saw value in Nussbaum’s capacities but observed a reality in which they could not be implemented: (1) Is it possible to design a human-centric approach to legal theory, one in which marginalized groups are visible as more than data points? (2) How do you convince state actors and legal scholars to support initiatives with an end goal that is not quantifiable? Context seeks to accomplish this feat by dissecting the metaphysical, ontological, and epistemological differences in how populations experience law. Through this dissection, legal scholarship can approach these questions through a discernible, if not economically measurable, framework. This work harnesses Nussbaum’s insights in the hope of provoking a new dialogue on law, one in which each person subject to the law is provided with an access point to the discussion. Nussbaum’s theory offered the acknowledgment and dignity the homeless community desperately seeks. But modern legal frameworks prevent it from being implemented. The solution is highly unsatisfying to those in the academic and legal realms; there is no statute or regulation to propose. The solution is a conversation, a collective change in the social narrative sufficient to shift the political will. Scholars, lawyers, and legislators need to interact with the poor as equals, a proposal that seems infeasible. Between these groups is a phenomenological barrier, a bulwark of lived experiences impassible in the absence of empathy. Context maintains that the only way to combat the bulwark is with stories. The wealthy scholar and poor prostitute are both human beings. As phenomenologically distinct as their experiences are, they remain connected by the pain, loss, and fear experienced by all humankind. In practice, the Context is intended to serve as a conduit, allowing you to hear the humanity in those whose eyes are so easily evaded by the 56 passerby—and to understand how their lived experiences can and should impact the institution and the theory of law. 3.4 Foundations and Proposals for the Context Theory of Law The Context theory of law was developed through an interdisciplinary study that drew from the research of institutional theorists, sociologists, and critical theorists. Context argues that the law is a connective medium that binds institutions and individuals, but it is the context of the individuals that dictates the application of the law. That is, Context identifies and adapts to the relevant distinctions between the equal application of law173 and the concept of Applied Equality. Under the assumption that law is a connective tissue, the methodology of Context Theory must facilitate a conversation between the subject of the research and the scholars who shape the institution of law. In this work, the methodology adopted is harnessed to create a dialogue within the academic community as well as to connect legal scholars with the homeless individuals whose stories can lead the discussion. This is a particular challenge as geographic barriers, cultural differences, restrictions in time, and educational distinctions effectively prevent direct conversations. Due to these complications, Context affirms the inductive method, reflexive interviews, and observations that comprise this body of research. The human-centric approach adopted by Context is necessary to bring the future of legal theory into alignment with the reality of lived experiences. But it is also essential to resolve the disparity between legal writing as an academic exercise and legal writing as an essential element of democratic society. At the heart of Context is the author’s struggle to understand the purpose, role, and necessity of legal writing.174 Through the 173 The “equal application of law” is used to mean the equality claimed by the text of law, not to indicate the law, even without the consideration of context, is carried out equally for and against all persons. This view of “equality” simply indicates that the language of the law no longer makes specific distinctions based on race, as existed well into the 1960’s in the United States. 174 The author’s early disillusionment with legal writing was a direct result of the feckless leadership that anesthetized critical thought, lauded popularity-centric teaching, and routinely disregarded the educational needs of the student population. The author’s experience with legal research and writing effected a varnish of disgust that permeated every lens through which the author viewed legal writing. It was only through competent, valuable guidance from the Judiciary of Minnesota and the extraordinary teaching provided by the University of British Columbia that the author was able to reclaim respect and understanding for the role of legal writing. 57 course of much study and thought, Context specifies two normative principles for legal research and writing: (1) Legal writing should connect the challenges of law to the challenges of society. (2) Legal writing should serve as a medium through which the public gains a better understanding of the institution of law and legal scholars gain a better understanding of the public sphere in which the law operates. When applied, it is Context Theory’s contention that legal writing is fundamental to the continued existence of law as a support beam for democracy; kept from public examination, the body of law grows susceptible to a contagion of corruption. Without public accessibility, law is left to decay in the darkness of societal mistrust. The way in which the conceptualization of law, one that is unknowable (or, for the present work, inaccessible), violates the purpose and function of law itself is beautifully examined in the work of Franz Kafka. Kafka was a literary treasure and lawyer by trade. In his work, The Trial, Kafka wove a narrative description of how lack of information transforms the application of law into a labyrinth of arbitrariness for those subject to its rule. Through the articulated principles, legal writing serves as a barrier between a functional, informed democracy capable of engagement with the legal process and the nightmarish hellscape of Kafka’s vision of law. It is through this lens of necessity that Context seeks to reimagine legal theory. Given the philosophic contribution to which Context aspires, it is necessary to establish a comprehensive, multidisciplinary definition of law. That is, legal scholars must look outside of our own field to build a better theory of law—not an entirely new suggestion. Legal scholar Daniel Farber approached the subject of law from a literary perspective. According to his theory, law was created by the rational negotiation of conflicting interests. Farber identified that it is not the policy itself which controls, but it is the perspectives the public adopts regarding the policy. Thus, it is the narrative that matters.175 Readers interpret the work; it is the reader’s understanding that provides the meaning behind the methods and results. 175 Daniel L. Farber, “Jurisprudence of Public Choice” (1986) Texas Law Review 58 Sheldon Wolin provided another example by which our understanding of law benefits from cross-pollination. According to Wolin’s work, law can be practiced in the same form as art. His concept was derived from political theory, but the application to law is simple: Scholars study the development of great works. By observing great art, the artist develops an eye toward understanding art.176 Wolin’s immediate focus was political rather than legal, but legal theorists have implemented his strategy as a strong tool for building empathy through the theory of Human Capabilities. Perhaps the most vocal theorist to argue for the integration of law with other sources is Nussbaum herself. In the development of her legal theory, Nussbaum integrated classical literature, art, and culture.177 Nussbaum theorized that law is a common link between individuals. It was established by common suffering and empathy. Context accepts Nussbaum’s theory, but it goes further and incorporates her work with that of other theorists in multiple disciplines. One theorist Context embraced was Jurgen Habermas. Habermas’ work, joined with Nussbaum, established the idea that law is the connective tissue in society. In defining law, Context asserts that law is the communicative medium by which our institutions can communicate and cooperate with one another and with the population. As legal theorists, our work requires us to collect narratives and observe the communication between institutions. This view of law can be likened to the expansive black of the night sky. Rather than defining the sky as the measurable stars or planets, it is defined by the vastness in between, the context in which the stars emerge. Similarly, the law should not be defined by observable statutes or measurable outcomes; rather, law can be defined as the connective tissue that holds society in place. This perspective aligns with Nussbaum’s theory that law was designed to unify society for communal well-being. But what Context adds is that which Nussbaum does not theorize, the existence of legal institutions. Organizational theorists utilize the idea of systems and subsystems to describe precisely how difficult it is to unify economic markets with political spaces, religious institutions, and family structures. Context is not 176 Sheldon S. Wolin, “Political Theory as a Vocation” (1969) 63:4 American Political Science Review, DOI: 10.2307/1955072 177 Martha C. Nussbaum, Cultivating Humanity: A Classical Defense of Reform in Liberal Education, First Edition, (Harvard University Press, 1997). 59 the assertion that law or legal interpretation must change to incorporate empathy into the law. The position of the theory argues that law is the communication between individuals and subsystems. It is our communication which needs to change. To effectively integrate empathy and dignity into the law, Nussbaum’s theory requires clarification from institutional theorists such as Nicholas Luhmann. 3.5 Subsystems, Law, and the Context of Communication The root of Context Theory comes from sociologist and institutional theorist, Nicholas Luhmann, who developed a concept of subsystems. According to Luhmann, each social institution develops its own system of internal language and logic. The concept of subsystems is analogous to the nuclear family. While parents may adopt one form of language and reasoning with one another, a different set is adopted to communicate with children. (Counting to ten as an indication that a demand will imminently be enforced is unlikely to wield the same results with a romantic partner as one hopes to achieve with children.) Similarly, children learn from their parents how to adopt different dialects in various situations and with an array of individuals and groups. This is similar to how the subsystems of society should be able to communicate with one another. Current legal theory and practice is more analogous to a family’s reunification with an estranged relation. While the relationship exists in a socially recognized form, the foundation for effective communication is absent. Interviews with agency leaders and social workers revealed little communication between different agencies. When agencies did communicate, they worked with different languages and core assumptions. As long as scholars continue to study one system or one agency, we perpetuate the problem. Context discovered that, when subsystems become estranged from one another, a language barrier develops and prevents effective collaboration. Luhmann identified financial markets as a prime example—market language operates outside of the common language.178 Those with the background and ability to understand the language of financial markets can navigate the subsystem with ease; 178 Niklas Luhmann, Theory of Society, Volume 2, (Stanford University Press, 2013). 60 however, the separation between financial markets and other institutional subsystems prevents cultivation of a multi-lingual pool of participants across subsystems and wholly removes the language of financial markets from being spoken in broader society. Effectively, the perpetual isolation of subsystems through specialization results in the death of these social languages; much like Latin, these subsystems can be studied but not spoken. Perhaps it is the law’s insistence on the literal adoption of a dead language that caused Luhmann to make a similar critique of legal institutions. His criticism of law is popularly expressed by the term “legal jargon” as well as through the frequent social uproar at apparently absurd—to those unable to translate the legal language and logic into relatable terms—legal outcomes. The shooting of Breonna Taylor, a black woman killed by police in Louisville, Kentucky while she slept, is a timely and applicable example of this disconnect.179 From outside the legal institution, it is reasonable to expect accountability. However, the law itself was responsible for the circumstance in which her killing occurred. Though Louisville subsequently adopted “Breonna’s Law”, which restricts the use of no-knock warrants, protections for the officers who killed her were in place at the time of her death.180 The complexity of the legal language protecting officers furthered social outrage when only one officer was charged, not with her death, but for the wanton endangerment of her neighbors.181 In understanding the necessary adaptations proposed through Context, it is noteworthy that the language adopted by activists surrounding Taylor’s death mirrors the disenfranchisement expressed by those interviewed on the Greenway, as evidenced later in this work. One question screamed from the streets of Louisville through the tent communities in Minneapolis: How can the law so completely disregard the lives of those 179 Richard A. Oppel Jr., Derrick Bryson Taylor & Nicholas Bogel-Burroughs, What to Know About Breonna Taylor’s Death, (August 23, 2022), online: New York Times < https://www.nytimes.com/article/breonna-taylor-police.html> 180 Tessa Duvall & Darcy Costello, In cities and states across the US, Breonna’s Law is targeting deadly no-knock warrants, (March 12, 2021), online: courier journal < https://www.courier-journal.com/story/news/local/breonna-taylor/2021/03/12/spread-of-breonnas-law-across-us-has-become-policy-legacy/4642996001/> 181 United States Department of Justice, Office of Public Affairs, Current and Former Louisville, Kentucky Police Officers Charged with Federal Crimes Related to Death of Breonna Taylor, Justice News Press Release, (August 4, 2022) On August 4, 2022, four officers involved with Taylor’s death were charged under federal law. However, the officers were not charged with her killing; rather, the officers were alleged to have “falsified the affidavit used to obtain the search warrant of Ms. Taylor’s home, that this act violated federal civil rights laws, and that those violations resulted in Ms. Taylor’s death.” 61 it is designed to protect? Or, more accurately, those it should be designed to protect. The inability for institutions to communicate with one another and with the public supports Luhmann’s subsystem theory of institutions. The social discourse surrounding state-sanctioned violence by law enforcement highlights the far-reaching devastation left by the linguistic isolation Luhmann identified. Critical theorists observe absurdities and logically contradictory outcomes, like those exemplified by Taylor’s killing, as an indicator of Luhmann’s theoretical subsystems. But the linguistic barrier Luhmann brought to light is internal, between subsystems, as well as external, between a subsystem or systems and the public. If considering the legal and financial subsystems, the court takes events in the world, such as financial misconduct by a major corporation, and translates those events into a legally operable language. Market language is translated into legal language. Courts apply terms such as fiduciary duty and assumption of risk. Specifically, in the context of administrative law, courts utilize an entire canon of specialized language. In many instances, the actors involved in the case do not understand the terms of the court, nor does the court truly understand the terms of the subsystem over which it presides.182 For scholars such as Habermas, this created a struggle between norms and facts.183 While legal positivists abandoned the effort to unite normative positions with factual conditions in the world, Habermas affirmed that, at some point, there must be unity between intention and reality. To serve as a connective tissue, law must be communicable between institutions and with the population. Analogous to how much easier it is for a group to learn the name of one person than for one person to learn the names of those in a group, shifting toward the common understanding of the population simplifies the translation process for internal and external communications. The theory of law advanced herein requires that law leave its institutional shell and operate within the norms and narratives of the 182 This lack of understanding is why the vast majority of U.S. corporations incorporate in the state of Delaware. As cases involving complicated corporate language depend upon the ability of a single judge to understand the market language, the market itself developed a preference for Delaware courts as their favorable incorporation statutes meant they more often handled similar cases. Eventually, the market preference caused a shift in law and practice within the state. See Illig. 183 Simone Chambers, Jürgen Habermas Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, First Edition, (Oxford, Oxford Academic, 2017). 62 general population. Just as a dark sky without the contrasting brilliance of distant stars cannot entice the world’s notice, the law does not merit observation when removed from the context of human experience. In addition to the legal and social scholars who informed the linguistic considerations herein, Context incorporates the work of Anthony Giddens for a deeper understanding of the composition of the institutions themselves. Giddens developed a concept of structuration. According to Giddens, individuals cannot independently make institutions. Neither are individuals independently made by institutions. Rather, structuration is a process by which individuals both make and are made by institutions.184 Structuration is best understood through the simple metaphor of a conversation. For a conversation to exist between two people, both parties contribute and shape the substance therein. In Context, structuration critically affirms the scholar’s ability to transform law. Engagement in legal scholarship elevates academics to function as co-creators of the very law they purport to objectively study. The language used by scholars has an effect to transform the law. The law is a negotiation between social factors. The structuration theory matters because it affirms not only the scholar’s ability to construct law using long-dead, institutional language, but to reap destruction by refusing access to a relevant translation. In contrast to the mutual impact recognized by Giddens, the focus on empiricism championed by legal positivists and critical theorists requires the scholar to imagine law as existing on a separate plane of existence, unconnected to herself and her work. In grappling with the language of law, Iris Young observed that by using an abstract form of language that focuses on its own internal structure, legal scholars exclude the general population and the disenfranchised from joining the debates most relevant to their own lives.185 To stretch the conversation analogy one step further, the empiricism embedded in modern legal theory offers the appearance that legal scholars act as objective observers to the communication between the legal subsystem and the broader population; the supposed role of the scholar is to simply document what occurs. Unfortunately for the broader population, the legal scholar in this metaphor was hired as a translator. 184 Anthony Giddens, The Constitution of Society, First Edition, (University of California Press, 1986). 185Iris Marion Young, Supra 44. 63 The misalignment of roles causes the scholar to view the population as the quiet recipient of law, submitting to the plain language without objection, while the population views the law as incomprehensible and the scholar as despicably apathetic. The population’s perspective of the scholar as knowing what the law means but refusing to provide a relevant translation erodes the social contract between the public and the law. This approach ostracizes those who do not have the language or capacity to meaningfully participate in the discussion. It also alienates agencies and prevents collaboration when there are individuals with the capacity to help those on the Greenway. It is the contention of Context Theory that the objectivity sought by modern legal theories necessitates an academic culture in which the homeless exist as objects for analysis. Because law is viewed as an external and observable fact, rather than a conversation among individuals with lived experiences, the apathy or impotence of agencies to help individuals on the Greenway is structural. It is the language of the law and how scholars study the law that rendered it blind to the tents littering Minneapolis. Without the effective incorporation of context and a communicative link between subsystems and between individuals, the plight of the homeless will continue to be an externality. For traditional legal scholars, it is equally fruitful to inquire into the marital status of the number five as it is to inquire into the lived experience of homelessness. 3.6 A Plea to Scholars, Context Theory, and the Hope of a Better System Though the focus of this work is on the language adopted by the institution of law and the ways in which this language negates public access, the homeless face an additional layer of complexity which necessitates the specific methodology selected. In conceptualizing trauma as a recognizable accent to those from similar life worlds, Sherman noted an anomaly within traumatized subgroups that she identified as experiential frequency.186 In her work, Sherman defined experiential frequency as a “[trauma] experience-induced deviation in vocal frequency that transforms the screams of the desperate to silence in the ears of the privileged.” Sherman used this concept to stress the distinction between the perceived unwillingness of a victim to speak out and the 186 Caludio Gleidiston Lima da Silva, & Modesto Leite Rolim Neto, Supra 30 64 world’s unwillingness to listen.187 Returning once more to the conversation metaphor, Sherman would argue the scholar’s receipt of silence from the population is not the absence of objection but an inability or unwillingness to hear the objection. The inability to hear develops from the life worlds between the two groups. The reality of the groups are so vastly different that the experiential frequency at which the subject communicates is imperceptible to the observer. Framing homelessness this way shifts the obligation to act away from the homeless and places it upon the legal scholars. Adopting this approach in the methodology for Context requires the researcher to step beyond the halls of academia, where the walls of privilege serve to distort the sounds of suffering. Tangibly, this means the current work on homelessness cannot take place in a heated office. For this method to be effective, the scholar must step onto the Greenway and remain long enough to form empathy for those who call it home. The connection between the emotional demands of the subject and the security the researcher sacrifices to understand is incredible. The development of Context Theory aims to make the connections between emotions, security, and understanding salient to future scholars. While earlier research on empathy utilized a transactional model—it focused on what the legal system could tangibly gain by employing empathy—it did not prescribe a method by which the legal system could learn to empathize. In this, Context extends from a conceptual transaction of ‘empathy for efficiency’ to a comprehensive research theory upon which the scholar can present the legal community with the tools required to build empathy. While the building of empathy should logically lead to the employment of said empathy, fulfilling the transaction promised by earlier research, the onus is on the legal profession, not the homeless population. With intention, Context illuminates the inherent contradiction present when scholars argue for the humanization of law while utilizing dehumanizing approaches. In applying Iris Young’s perspective to homelessness and law, Context Theory determined 187 In Minnesota’s district courts, it is common to see prosecutors hesitate to charge restraining order violations when the perception is that the victim is ‘wishy-washy’ or likely to return to the abuser. The State’s perspective is often that the victim should be more adamant, more vocal to demonstrate the clear intent to rid themselves of the abuse. If the lens of experiential frequency is adopted, the State would be viewed as the problem for failing to hear the victim’s experiences. This shift would require the State to act affirmatively to understand and address concerns. 65 that the only congruent method of research is one of narratives and reflexive interviews. Future studies within Context may find new methodologies. Because the goal of this study is to return the human voices to agency law, this study must use a narrative methodology. By incorporating the voices of the disenfranchised, and treating them as valid authority, this project hopes to influence law and change its operative language. It is a sad reality that arguing for the equal treatment of homeless voices within the law should be a novel contribution to the study of law. However, the theoretical background of law has continued to exclude unconventional voices. The theory and methodology of this work are utilized to argue for the integration of Nussbaum’s capacities and the reimagination of the legal fabric. Context’s reliance on reflexive interviews prompts the scholar to engage with and ascribe value to the perspectives of those experiencing homelessness. The subject’s story is the point of entry from which the broader context may emerge. Reflexive interviews are defined as a self-conscious process—allowing for both the subject and the scholar to critique the interview and comment upon their experience as the interview progresses. The elevation of the subject’s viewpoint is intentional; the purpose is to create dialogue between two disparate worlds. To accomplish that, the subject must be the source of the subject’s worldview. If the scholar does not ask or allow space to share experiences, the subject’s lived experiences remain beyond the reach of the legal academy. And if that distance cannot be traversed, the law fails to hold the stars in place. The foundational principle within the Context approach is that only after the narrative is absorbed is the inductive method used to determine patterns within the collection of interviews. Once the pattern is identified, it can be matched with the body of existing research. Once patterns are identified, a thesis develops. Though the structure of Context resembles existing legal theories in that it is driven by research and methods, the methods utilized place the subject in the position to direct and, when necessary, transform the study. As seen in this work, the purpose for this approach is simple: I cannot foster a discussion between legal scholars and the homeless by telling the homeless what it is like to experience homelessness (and then relaying to scholars what I said). To an unsettling 66 degree, that is precisely the approach required by existing legal theories. Instead, Context relies on a research structure and interview style that, in this case, provides those in the homeless community with an opportunity to speak directly to you as a reader. The included elements of individual lived experiences reflect what they want you to know. Often, the interviews were conducted with an acute awareness that references within this work may be the only evidence of the subject’s existence. Most of the participants readily identified that their deaths would be anonymous, that their bodies would decay without identification or mourning. It was in that knowledge that they offered you these words. I urge you to listen carefully. 67 Chapter 4: Methodology How does a subject take part in an ethnographic study in which he has very little faith and survive as something more than a subject and less than an author?188 A man entrenched in snow may acknowledge the existence of summer heat, but he cannot feel it or experience it as someone basking beneath its rays. The nature of the human mind is such that it is impossible to remove the worldview from the world available to the viewer. Likewise, it is impossible to remove bias and personal perspective from method and methodology—one inherently alters the other. Work conducted by Marcia McKenzie and Eve Tuck, experts in the interconnectivity of access and research methodologies, argued that all research is a product of geography and community. The geographic scope of work and the community in which we work will always be present in our methods.189 While this specific work was conducted in Minnesota, the development of Context Theory transcends geography. Context calls for researchers to identify their bias, give voice to their subjects, and place humanity at the center of their work. This plea is applicable to a diversity of methods, and it is accessible regardless of geopolitical orientation. Particular issues are isolated by time and geography but placing law within the context of lived experience is not limited by finite restrictions. Context Theory is as applicable in Canada as the United States or South Africa. It is also worth acknowledging that the methodology section which follows is written in a narrative format. Context makes a deliberate effort to unify the philosophy of research with the methods of conducting research and the form used to report research. This study could not use a dehumanizing method. For the same reasons, this study could 188 Mitchell Duneier, Supra 159 189 Eve, Tuck, & Marcia McKenzie, Place in Research: Theory, Methodology, and Methods, First Edition, (Routledge, 2014). 68 not report to the reader in a dehumanized voice. If Context is to matter in law, then the story is where we need to direct our attention. 4.1 Goals of the Project and Choice of Methods For this project, in which the underlying goal is community discourse and empathy for others, the choice to work within my own community was an essential element of the process. This geographic bias drove the decision to engage with the homeless population in Hennepin County in the state of Minnesota. If a different geographical region had been selected, the results generated—the stories extracted—would have been different. But I chose to study my local community because I believe in the power of research and writing. Context maintains that research should serve the community. The idea that research should serve is nothing new. Philosopher and historian, Andrew Feenberg, tracked the notion of service through the Frankfurt school and all the way to the early 1900s.190 Frankfort theorists asserted two aspects of research. There is theoretical development, and then there is praxis.191 Praxis is the practical implementation of the idea. Without praxis, the value and purpose of research is gone. I found that the best way to implement change was to start within my community, using my education and skills to work with those who are in close proximity. The subject of Context Theory is the dialogue within the community. For this work, the context is specifically my community and what that dialogue says about the conditions of law. Through this work, I hope to provide a service to those residing in Hennepin County. I hope to do this by giving voice to those who have been silenced by legal formalities. The nature of this work risks bias. The population studied is an hour from where I was born and raised. I hold a shared history with the subjects I interviewed. But that is also the beauty of this theory’s methodology. It is our shared understanding that helps the indigent and powerful engage in conversations. In this way, my 190 Andrew Feenberg, The Philosophy of Praxis: Marx, Lukács, & the Frankfurt School, First Edition, (Verso Books, 2014). 191 Ibid. 69 geographical bias strengthens the work’s foundation. While I cannot identify with an Indigenous woman, I can commiserate with another resident about the brutality of winter. Context argues that theory and methodology are also inherently related. According to John Maanen, Jesper Sørensen, and Terence Mitchell, there is a risk in the primacy of data within current methodologies.192 As they argued, the current “focus is more on theory as a product of methodological savvy” than it is of genuine investigation.193 Put another way, the research is not driven by the desire to uncover a substantive answer to a meaningful question; rather, the propulsion is an academic desire for answers that are easily marked on a graph—negating the need for a genuine question. Bence Nanay also expressed concern in the lack of imagination and genuine curiosity in research.194 In his work on the imagination and inquiry, he stated that “perceptual states, just like beliefs and desires, are attitudes toward a proposition.”195 In other words, the ability to place yourself in the experience of your subjects changes your attitude toward them. The standardization of research and the priorities of citations and methodology may inhibit our intellectual growth. Our methodology may be an impediment to the academic discussion we seek. Nussbaum’s work is a perfect example of imagination and genuine curiosity in research. Her principles cannot be rendered into quantified data; her values are not ‘scatter plot-able’. The ability to critically examine oneself, connect with humanity, and imagine the positions of others are not inherently quantifiable acts.196 And yet, for Nussbaum and others who share her philosophical underpinnings, these are the core of law. If the purpose in research is the resulting data, are we inherently bound to only learn that which can be reduced to numbers? From another angle, was the act of tattooing numbers on arms in the 1930’s and 40’s simply a foreshadowing to modern research methodology? 192 John Van Maanen, Jesper B. Sorensen, & Terrence R. Mitchell, “The interplay between theory and method” (2007) 32:4 Academy of Management Review, DOI:10.5465/amr.2007.26586080 193 Ibid at 1150. 194 Bence Nanay, Imagination and Perception, In Amy Kind, (ed), The Routledge Handbook of Philosophy of Imagination, First Edition, (Routledge, 2016). 195 Ibid. at 148. 196 See, Martha C. Nussbaum, Supra 119. In that work, Nussbaum makes self-examination and inquiry a critical component of research. 70 Based on extensive research, integration of interdisciplinary beliefs and philosophies, and the intentional development of a definition of law that expands beyond that which is observable, Context excludes the use of quantifiable research methodologies for substantive support. While quantified data serves to supplement observations, interviews, and lived experiences, coding surveys will not help the reader feel the experiences of the disenfranchised within a legal context. Nor should the data-centric research and its graphable averages replace the lived experiences of individuals. Psychological research of lawyers and judges finds that the ability to emotionally project themselves into clients and jurors is a critical component of success.197 However, each client is a singular data point. The ability to connect others to that point of data is not quantitative but narrative.198 Even in the research on business and organization, scholars find that the tendency to rely exclusively upon data without examining greater underlying questions about the subjects is a potential social harm.199 Charts and diagrams will not illuminate the intimate indignities of sleeping outside when the temperature is fifty below or defecating on sidewalks when local ordinances require public restrooms and porta-potties to be locked after dark. The purpose of this proposed theory is to integrate context with facts; this requires engagement with subjective realities—realities complete with names and eyes and voices. Part of the problem identified by existing scholarship is that quantified research has no face and no personality. There is a presumption that it is objective, but Smith and Noble challenged that presumption.200 By tracking the stages of quantitative research and all the avenues by which bias can make itself present, they argued that no matter what efforts are taken, the fingerprints of the scholar cannot be removed from the work. 201 What Smith and Noble identified is that bias presents itself in what a scholar chooses to 197 Sharyn Roach Anleu & Kathy Mack, “A Sociological Perspective on Emotion Work and Judging” (2018) 9:5 Judging, Emotion, and Emotion Work, DOI: 10.35295/osls.iisl/0000-0000-0000-1032 198 Ibid. 199 Tore Håkonsson & Tim Carroll, “Is there a dark side of Big Data – point, counterpoint” (2016) 5:5 Journal of Organization Design, DOI: 10.1186/s41469-016-0007-5 200 Joanna Smith & Helen Noble, “Bias in Research” (2014) 17:4 Evidence Based Nursing, DOI: 10.1136/eb-2014-101946 201 Ibid. 71 study, how the scholar studies the subject, and what the scholar chooses as relevant points in data. Other schools of legal research have followed Smith and Noble’s work. Critical theory attempts to affirm and discuss its bias where empirical research tries to minimize its presence.202 This work follows the notion of immanent transcendence in an attempt to construct a reliable methodology. Immanent transcendence does not eliminate bias, but it attempts to recognize the bias and make it apparent to readers and future scholars. 4.2 Addressing Bias Through Immanent Transcendence The idea of immanent transcendence comes from Piet Strydom. Strydom argued that the methodology of critical theory was founded on recognizing bias and discussing it. A researcher cannot overcome her bias, but she can make it known and available.203 The idea of immanent transcendence is that recognizing bias and nonlegal influences can allow a theorist to transcend her own circumstances. Instead of trying to neutralize bias, the model aims to discuss it with candor. Bias may be impossible to eliminate, but it can be discussed with honesty to lend greater insight into research. Feminist scholar, Alison Jagger, expanded on the notion of honest discourse by infusing morality and ethics into the research process.204 Every researcher is aware that there are high standards for research involving human participants, but Jagger went further into the scholar’s obligation. Jagger studied the objectifying and dismissive nature of methodology and how it conflicted with feminist goals. She argued that both quantitative and qualitative methodologies followed a pattern of presumption.205 The pattern was built into the dominant paradigm that determines what methods are appropriate for scholarly work.206 This concept is easily seen in the way humans develop and learn a language. 202 Mary Ellen Kondrat, “Who is the “Self” in Self-Aware: Professional Self-Awareness from a Critical Theory Perspective” (1999) 73:4 Social Service Review, DOI: 10.1086/514441 203 Piet Strydom, Contemporary Critical Theory and Methodology, First Edition, (Routledge, 2011). 204 See generally, Alison, Jagger, Feminist ethics, (2000). 205 Alison M. Jaggar, Just Methods: An Interdisciplinary Feminist Reader, First Edition, (Routledge, 2015). 206 Ibid. 72 As an example, take a child who has only seen one animal, a dog, and does not know what to call a horse. But instead of leaving the concept of a horse blank, the child identifies it as an animal and assumes it is a dog. According to Jagger, the adult mind utilizes a similar process when confronted by information; where one man may notice suspicious hand movements between two women and think something is afoot, a different man (perhaps with sisters) may rightly identify the discreet transfer of a tampon. Not only is the worldview subject to the world within view, but identical data is processed differently based on the experience of the viewer.207 According to Jagger, methodological patterns are processed differently based upon the experiences of the researcher. The methodology traditional research employs uses people for research. Dominant methods, primarily quantitative, diminish the individual and reduce the person into mere data for the scholar’s benefit. Jagger was not alone in this argument. Christopher Nowlin from the University of British Columbia also found discriminatory implications in law’s fidelity to scientific and quantitative processes.208 According to Nowlin’s work, rationality in law has a long and complicated history which disenfranchises women and minority populations.209 Nowlin’s particular focus was criminal law, but the implications and bias extend well beyond criminalized behavior and invade every aspect of legal theory. Both Nowlin and Jagger would agree that there is no justification for objectifying individuals. Legal positivists would affirm that point, but their effort to eliminate bias merely ensures that the effects of their theory go unexamined. Legal positivism doesn’t need to try and objectify individuals when the methodology ignores their existence. More generally, legal scholars cannot pretend that a sufficiently scientific process which involves an adequate number of citations will eliminate bias and lead to objective reality. This work reflects an attempt to consider and implement the research perspectives of both Nowlin and Jagger. Inherent in Jagger’s research was the understanding that our first question for methodology is orientation. She was concerned with how the researcher situates herself 207 Ibid. 208 Christopher J. Nowlin, “Sexist implications of law’s fidelity to science and reason” (1993) University of British Columbia. 209 Ibid. at 103. 73 with respect to her subjects.210 For Jagger, this question is deeply ethical. Research that presumes a heightened position of the researcher inherently objectifies and dismisses the subjects.211 This work identified that the heightened position is one of the humanistic problems built into law.212 We safeguard ourselves from Touché by inventing hierarchies, such as a legal institution, which makes the creator feel safe. Our Techne deceives us into thinking that we could never be homeless because we are responsible. We then replicate that belief into our methods, confirming the security and hierarchy of our system. Also assumed within Jagger’s work was the belief that methods are guided by the questions and subjects the scholar hopes to study. Her work is not trying to label all quantitative work as unethical. For some studies, quantitative work is the perfect metric. Conversely, Jagger’s work encouraged researchers to stop granting priority to quantitative work when it is not appropriate for the goals of the study. The more precise the subject we study, the more concise and quantifiable the method and data. For less precise subjects, such as law and politics, researchers must accept conflicts in interpretation, bias, and perspective. In this work, the subjective and objective nature of research are compounded by the nature of homelessness itself. The theory underpinning the work is that law is co-creative in nature. Law is not an object.213 Law is not the measurable ensemble of statutes and case law. Scholars and researchers create the definitions and string together logical syllogisms. This work contends that what matters are the conversations regarding what is the law, not the outcome of those conversations. In terms of Jagger’s work, this study is less precise and must accept inherent conflicts. As a reader, I hope you will engage in those conflicts when you find them. That is the nature behind the immanent transcendence of bias. Context argues that law is a conversation that is always present. It exists as long as individuals exist, but those individuals must be engaged in discussions regarding mutual problems and concerns. It might be helpful to imagine law as one imagines the 210 See generally, Alison, Jagger,"Feminist ethics." (2000). 211 Ibid. 212 This insight is produced from innumerable discussions with Professor Ibrahim Gassama at Northwestern University. An incredible scholar who does not write nearly enough, this idea is credited to him. 213 Gene Cavin, “Continuing Legal Education: A Non-Objective View” (1978) 30:4 Baylor Law Review 74 Internet. The Internet links every computer in the world, but it requires a connection—and access to that connection is often password protected. Law is not defined by content but by connectivity. In this case, it is not defined by any statute or the theory of a particular scholar. Rather, law is the link that allows for posting and sharing across an island chain of subsystems. The ability to access this link is not restricted to those with legal education, but the ability to readily identify and understand the information acts as a firewall, preventing those from underrepresented backgrounds from utilizing the information. This barrier of lived experiences causes the messages of the impoverished to be identified as ‘spam’; the algorithm by which the institution of law operates dismisses their voices from the web of connectivity. There is a connection between homeless populations, judges, lawyers, and scholars. Currently, the links between the homeless population and the rest of the community is unexamined. When it is examined, it is presumed within the study of criminal law or statistics on poverty. Scholars are not asking about the conversation between the privileged and the powerless. The work in Context reveals that the absence of research is due to the inherent blindness necessitated by law. Context Theory assumes the current theoretical perspectives on law explain the lack of investigation into the conversations. The defense for this proposition lies within the foundations of legal positivism, previously discussed. Assuming that law is a pedigree or process precludes considering the conversations between individuals. Homeless populations and the legal community are co-constructing the law. They each approach the other with bias, experience, and preconceived notions. By demonstrating the link, Context attempts to grant more agency to homeless populations. This project and its methodology were guided by its theoretical perspective on law. The thing it seeks to approach is the nature of law, defined as the connective tissue between social subsystems. It is a tissue which we create by participation and discussion. Such a theoretical approach creates difficult questions for methodology. How can a researcher approach a subject that is defined as the conversation itself? The Context Theory of law necessarily and deliberately prohibits the scholar from standing outside the research, hiding beneath the guise of an impartial method. The theory also removes the 75 possibility of producing clear and quantifiable data. While these restrictions will likely garner academic criticism, both are intentional. 4.3 Transcending Bias through Reflective Interviews The methodology chosen must aim to capture and foster dialogue. This is accomplished in a few ways. First, it is achieved by recruiting the perspectives of others in a collaborative effort. There is no law in isolation. Law exists only when communities form. A woman alone on a deserted island neither has nor needs law. This means that no one person can command or define law. The method best positioned for the construction of dialogue requires the researcher to incorporate reflexive interviews. The term “reflexive interviews” was defined by Pessoa et al.214 What scholars mean by referring to an interview as reflexive is that it was designed to integrate subjective topics and perspectives.215 The technique is self-aware and focuses on the mutual exchange between the interviewer and interviewee. During a reflexive interview, the parties discuss their perspectives and experience. The reflexive interview shatters the fourth wall and allows for a discussion about the interview process. Rather than reporting the interviews directly through questions and answers, the method focuses on the meanings and realities, the subjective experiences, and potential explanations that relate to a range of subjects.216 This method was chosen because scholars, by the very privilege inherent in the title, do not know what we need to know about the dispossessed and their experiences with the law. The goal of the research is to allow homeless individuals to express themselves and provide the information they identify as critical. During interviews, subjects were encouraged to scrutinize questions as well as the language used in the discussion. The individuals who reported their stories also suggested ways in which I might succeed at getting deeper into the true narratives of the Greenway. During a reflexive interview, 214 Alex Sandro Gomes Pessoa, Erin Harper, & Marina Carvalho da Silva Gracino, “Using Reflexive Interviewing to Foster Deep Understanding of Research Participants’ Perspectives” (2019) 18:1-9 Journal of Qualitative Methods, DOI: 10.1177/1609406918825026 215 Ibid. 216 Ibid. 76 both the subject and the researcher are encouraged to recommend revisions and change the direction of the interview.217 The use of reflexive interviews provides the platform necessary to facilitate a study of law as a connective dialogue and not as a definitive substance. Scholar and researcher Zeynep Arel adapted a tutorial to assist scholars with reflexive interviews. According to his experience, reflexive interviews worked best after extensive conversations and the establishment of a mutual understanding between the parties.218 Singular interviews with vulnerable populations make it highly unlikely that subjects will discuss the most sensitive topics. With more than a year of collecting discussions on the Greenway, Arel’s work appears undeniably true. A high degree of familiarity and comfort is required before the researcher, and the subject can share equally in the interview process.219 One of the most interesting methodological surprises was the lack of incentives needed to collect interviews. The ethical permission for this study allowed participants to receive a small gift card of $25 dollars for their participation. Miraculously, treating individuals humanely and offering them an opportunity to participate alleviated the need for any incentives. Participants did not ask for the gift card. They asked that I report their story honestly. They asked that readers listen to what they had to say. The financial incentive to participate was less impactful than the chance to be seen and heard. Scholars reflecting on methodologies should take note. The poorest population in the state of Minnesota rebuffed rewards in favor of genuine engagement and recognition. I have tried to honor their requests and report everything honestly and clearly. In this work, each participant who provided stories had their own perspective of the interview process. The reflexive interview structure allowed the subject and scholar to discuss perspectives and how their own lived experiences changed the questions and responses. Such work has an additional complication with the readership of the work. As a reader, you are involved in the research as equal participants, necessary to the discussion presented. Your interpretation will guide the reception of this work. It is hoped 217 Ibid. 218 Zeynep Arsel, “Asking Questions with Reflexive Focus: A Tutorial on Designing and Conducting Interviews” (2017) 44:4 Journal of Consumer Research, DOI: 10.1093/jcr/ucx096 219 Ibid. 77 that readers will approach this work from the reflexive perspective. The goal of the work is to connect readers and subjects. It should create questions rather than propose solutions to homelessness. The dialogue into which you are invited through the narrative chapters of this work reflects the contents of more than thirty-eight (official) reflexive interviews over the course of one year. The number of unofficial interviews, building familiarity, trust, and cooperation, is innumerable. Reflexive interviews require more than a goal-oriented disposition in which the researcher is attempting to mine for data. Subjects provided official interviews only when they were ready and wanted to participate. Until that time, the researcher and the subject shared stories and discussed the project without any objective to collect data. It was only when the subject requested an official interview that the process began. At that point, the research focused on subsequent rounds of interviews, with many of the interviews being conducted with only a handful of participants. Some subjects provided as many as six official interviews with dozens of unofficial interviews. The official interviews were recorded and ranged from thirty minutes to two hours. The duration of the interview depended upon the emotional state and willingness of individuals to continue.220 Outside of official interviews, I spent hundreds of hours working with poor individuals. I helped secure tents in the winter, traveled with participants to find food, visit friends, and secure resources for their shelter. My experience and time on the Greenway meant the data was not just collected through interviews, but a portion of the research was observational. My observations made it possible to situate official interviews within the context of the Greenway. I was present for law enforcement to dispose of tents. Upon one occasion, I witnessed officers dispose of property despite 220 Though beyond the scope of the current work, the connection between drug use and a participant’s capacity to engage was fascinating. For some, shooting up immediately before an interview caused them to present as more coherent and thoughtful. That is, when a participant was coming down from a high the participant’s logic would rapidly decay. For others, interviews became more rational the more distance between the interview and the most recent drug consumption. Though anecdotal, this raised interesting questions regarding underlying physical and mental health conditions, especially as many of the participants identified a history of struggling in school and displaying symptoms consistent with ADHD (often treated with drugs that are chemically distinct but closely related to methamphetamine) from a young age. 78 individual protests from the property owner. My observations confirmed the danger of the Greenway and the harsh conditions subjects call home. Conditions on the Greenway were more dangerous than I initially understood. I am sympathetic to agency employees and scholars who do not want to endanger their lives. But it is here that I must also recognize that I was rarely alone on the Greenway. My colleague, Dr. M. Esther Sherman was nearly always present for my safety. As a methodological point, scholars are advised to travel the Greenway with company. Of course, this is true for any dangerous research environment. I am just grateful that my colleague cared enough to assist. She also put her life in danger and, like the participants themselves, she did so without the expectation of reward. To give an example of the danger, which has become benign to the population on the Greenway, it was during more than one conversation that gunfire echoed through the walls and ricocheted off the Greenway’s embankments. At the first instance of gunfire, I cowered for safety while the local population continued without recognizing the threat. I immediately inquired into calling the police, to which my local guides informed me that “no one would come.” In the tent community, no one calls the police. What I heard was affirmed by what I witnessed. More than once, weapons emerged during confrontations between members of the tent community. On one occasion, Dr. Sherman was handed a shank and a mallet and asked to watch a girl’s tent for her. While safety was a theoretical priority, life on the Greenway is impossible to predict. The fragility of security in that space was confirmed through interviews, observations, and experiences. And what I understand about the dangers that accompany homelessness is a fraction of the lived reality. 4.4 Understanding the Dangers and the Need for Reflexive Interviews The full scope of the randomness of the Greenway is beyond the subject of this work, but it is worth noting. As scholars, we developed our lives around Techne. Our methodologies are forms of Techne, the methods of publication, and the hierarchy within academia. But the Greenway presents a challenge to the construction of meaning. The homeless population grapples to generate their own Techne from ravaging randomness. 79 This study discovered information hierarchy and organization within the tent community, but that cannot compare to the sheer unpredictability of life in the tents. Conducting research in these circumstances was a particular challenge. Methodology presumes order, but how do you create an orderly research methodology in a dangerous and unpredictable environment? The only answer is that you try. Exposure to the everyday experiences of the homeless was essential to the research. According to Severyn Bruyn, even qualitative methods require an observational component.221 A scholar needs to know what was happening in the field when the data was recorded. Particularly when the goal is understanding, research cannot meaningfully interpret data without being present to observe the reality of data.222 As a scholar, one of the most powerful realizations uncovered in this process was that my presence on the Greenway rendered life and death as arbitrary for me as for everyone else in that space. The act of stepping into the tent community committed me to an academic version of Russian Roulette, in which I neither knew where the gun was or how many bullets it held. While I took some precautions, I could not guarantee my safety or the safety of anyone with me once I embraced the need observe the environment from within the environment. The experiences on the Greenway helped me contextualize the interviews. Only through observation and experience was I able to understand the relationship of homeless individuals to their environment. Each interaction informed the final product and granted greater context to the meaning of law to homeless populations. It is one thing to read about gun violence. Hearing narratives in the courtroom and seeing it in the paper is different than being witness to the violence itself. Perhaps even more powerful than the realization of tangible danger was the identification of how long it took me to understand that reality. Privilege is not simply a barrier of concrete protection; it is a psychological programming that filters one’s core observations of life and meaning. The inherent belief that my life has value so skewed my initial view of the Greenway that I did not contemplate my own death. If such a statement appears hyperbolic it merely demonstrates the necessity of direct experience. The number of 221 Severyn Bruyn, “The Methodology of Participant Observation” (1963) 22:3 Human Organization 222 Ibid. 80 instances in which violence erupted was too high to count. Individuals suffering from mental illness would confront me and the participants for no other reason than the fact that we were present. I could not fathom being a victim of violence, even as I listened to the subjects of these interviews state over and over again that they would die within feet of where I stood. Another benefit of prolonged, deliberate exchanges with the subjects of these interviews was that it provided space to process information over time. While the initial observations were powerful, the ability to revisit interactions after building a contextual framework allowed me to process experiences in a more meaningful way. Interviews with homeless subjects always led to field notes. Notes and reviewing transcripts of interviews generated subsequent interviews with the same participants. Subsequent interviews frequently returned to old topics and discussed the emotional and psychological processing since events had expired. The process of duplicating interviews with a single participant was not strictly an aspect of reflexive interviews. However, it allowed for verification of events and stories. Context Theory rebuts the notion of one stagnant reality. Especially in violent conditions, reality changes depending upon the observer. Reality also changes for one observer depending upon when you ask the question. Multiple interviews allowed for observations regarding how time changed a person’s relation to events. In this way, I learned about traumatic events immediately after they occurred, and I learned how individuals came to digest events through the experience of time. The reflexive structure also allowed for a conversation about incongruencies. What did it mean to the person reporting an event that their reality changed and their experience changed from one week to another? The ability to ask a single participant about the nature of change within her own testimony was invaluable. It allowed for insights which neither the participant nor the researcher would access, but for the repetition and trust. In addition to repeated interviews, I also conducted interviews with multiple subjects regarding singular events. Two or three reports of a single incident allowed for a verification of events. Additionally, this method allowed me to observe individual perspectives and compare those perspectives against each other as they relate to singular incidents. Through 81 continued interviews from multiple perspectives, this work is a compilation of moments designed to expose you to the range of experiences of those on the Greenway. The reflexive interview structure allowed for two entities, the researcher and the subject, to discuss the interview and their experience as the interview progressed.223 However, the process was conducted with both parties being fully informed that a third entity was abstractly participating in the dialogue: you. By conveying the data produced from interviews as stories and narratives, the reader is invited to participate in the conversation as an active, rather than abstract, contributor. In the same way that the reader was not present for the initial interviews, the researcher and the subject cannot be present for the engagement of the reader that follows. But the awareness of the other creates a connection between the lived experiences. After completing the interviews, the narratives collected were situated into the Human Capabilities theory. Most of the authorship in this work belongs to the individuals who provided their stories. My contribution comes from organizing their stories within a legal and academic framework. My involvement, beyond mere translation of the stories, is regrettable. It is a fact that scholars would not listen to the homeless without the proliferation of citations and footnotes. This fact relates to the core of this work; we do not accept the narratives as enough. If their stories do not conform with our format, they are rejected. This unfortunate reality forced me to do more than interpret and organize the stories. As much as possible, I tried to adhere strictly to what the participants wanted you to know. I tried not to interpret or organize, and I refused to do so when it would change the message from the subjects. Much of the structure I found in the stories derived from key themes in metaphysics, ontology, and epistemology. These themes related to human dignity and the law. But this work is an amalgamation of the subjects’ experiences, not mine. 223 For a selection of unofficial interviews, a colleague provided linguistic assistance. That is, she spoke with an accent of trauma. Sometimes I was present for these interviews, other times they followed the traditional reflexive format, and I was provided notes after the fact. Access to someone with whom the participants identified was particularly important for certain subjects who were hesitant to engage or reluctant to offer substance. During my colleague’s interactions, I was able to observe how those in the homeless population were immediately disarmed by her, lending weight to her expressed theory of experiential frequency. She could hear them, even when I could not, and they were able to recognize something in her that was not visible to me as someone without those lived experiences. The layer of complexity added by these observations (and the potential meaning therein) is reserved for future research. 82 A successful method for this kind of research, premised upon a particular theory of law, should demonstrate the created nature of law and its connective potential. The greatest leap of faith, and all research involves faith, lies with the reader. It is presumed that the reader is another legal scholar. By virtue of reading an academic work on law, you are engaged as a scholar. Especially if you are a lay person outside of the law in a traditional sense, Context Theory urges you to recognize the value of your experiences and your creative capacity in social systems. The challenge for all of us is to understand the perspectives of the poor without dismissing them as a source of law. 4.5 Method and the Confrontation of Bias All research projects have bias. The bias in this work inserts itself at multiple levels. First, it comes through the selection of individuals researched and the interviews conducted. This is the issue of selection bias. Asking residents of a homeless shelter the same questions will result in different answers when you compare it to the tent community. Similarly, asking a tent community in Canada these same questions will result in different data. All research must confront selection bias. Even the choice to use randomized sampling is a choice that affects results. Scholars have leveled forests writing about bias and research. For this project, the choice regarding who to interview was deliberate. According to Oliver Robinson, randomized sampling is likely to exclude the voices of minorities and underrepresented populations.224 Robinson reasoned that minority populations are unrepresented in random selection precisely because of their status. Minority populations may try to avoid detection, refuse participation, and likely do not trust the research process.225 Historically, the research process has been used to reify the status quo and further objectify those without power. The historic discrimination can be demonstrated in jury pools. Hayward, Hosticka, and Mitchell were among the first to study under representation in jury 224 Oliver C. Robinson, “Sampling in Interview-Based Qualitative Research: A Theoretical and Practical Guide” (2014) 11:1 Qualitative Research in Psychology, DOI: 10.1080/14780887.2013.801543 225 Ibid. 83 pools.226 Jury pools may be selected from voter registration or driving records. The selection of a jury is random, but both mechanisms prioritize populations who have the privilege of voting or driving.227 Beyond the systematic method of randomizing a sample, there is another reality which prevents minority representation. This is the fact that there are fewer individuals in a minority population, making it unlikely that they will be drawn in a random sample. The nature of random sampling and the preclusion of minority groups meant that a more deliberate method was required for this work. This specific project within Context Theory sought to study the lived experiences of the tent population along the Greenway. That is a highly specific population which requires specific and targeted sampling methods. Instead of random samples I chose a selective and convenient sampling model. The sample was derived by geography and interviews were conducted based upon who was present in the homeless community and who was willing to participate. The method was selective because I made the choice to interview homeless individuals. The choice was driven precisely because they are underrepresented in legal conversations and unlikely to be included in random methods. The method was convenient because I made my selections based upon who was in the tent community and who was willing to speak with me. It is impossible to undo the bias built into the selection of homeless individuals. (It is likewise impossible to undo the selection bias of those willing to speak with me as opposed to those who would not.) At best, I can confront the bias and discuss the factors that motivated my choice. Legal scholars, judges, and lawyers have dominated the definitions of law. We use our language to define the terms and our logic to accept and reject the validity of arguments. This fact was of immense concern to Iris Marion Young. In her perspective, disadvantaged populations have real insights and contributions which they can make to the law.228 Especially in a democratic society, the voice of a homeless 226 Hayward F. Alker, Carl Hosticka, & Michael Mitchell, “Jury Selection as a Biased Social Process” (1976) 11:1 Law and Society Review 227 Ibid. 228 Iris Marion Young, “Activist Challenges to Deliberative Democracy” (2001) 29:5 Political Theory, DOI: 10.1177/0090591701029005004 84 individual stands equal to the voice of a judge regarding the normative conditions of society. The same issue is presented in the work of Miranda Fricker. Fricker chose to study what she called “epistemic injustice.” Epistemic injustice is the harm that results in excluding the epistemology of others.229 The best example is workplace sexual harassment. In 1977, courts interpreted Title VII of the Civil Rights Act to protect women who suffered employment losses based upon their gender.230 Sexual harassment was not new in 1977, but the language for women complaining about harassment had not been recognized until that time. The convergence of Young’s work and Fricker’s work shows us how our language and structure can inadvertently create bias against disparate populations. A similar inquiry to Fricker’s work is overdue regarding how the poor are subject to the law without voice. In 2021, Minnesota courts found that there was no “undue burden” or threat of “irreparable harm” in bulldozing homeless communities in which hundreds of people were living.231 At the time of the court’s decision, the tent communities had been established for months. The communities served as a haven for the homeless during the pandemic.232 The court issued its ruling despite the desperate need of the homeless, despite the raging pandemic that placed them at greater risk in society, and with no regard to the mere 24 hours’ notice that the county issued to individuals living in the tents.233 The brutal dismissal of the homeless population differs from the struggles of other disenfranchised groups, in part, because of the namelessness of their circumstances. The transient nature of the population prevents the formation of lasting connections; there is nothing unusual to others in the community when a 229 Miranda Fricker, Epistemic Injustice: Power and the Ethics of Knowing, First Edition, (Oxford University Press, 2007). 230 Barnes v Costle, 1977 561 F.2d 983 231 Berry v Hennepin County, 2020 U.S. Dist. LEXIS 201810 232 An unconfirmed report since the interviews suggests that a class action lawsuit is forming due to the unlawful removal of tent communities. It will be interesting to see if a class can form and whether the Court of Appeals will recognize its grievance. 233 The principles of administrative law are to ensure equal access and accountability. The issues have not been litigated, but it is possible that the Minnesota Administrative rules were violated in the decision. See, Duncan H. Baird, “Judicial Review of Administrative Procedures in Minnesota” (1961) 46 Minnesota Law Review 85 person leaves and never comes back. No investigation is called. No political action committee formed. The homeless cannot access mass media platforms. The voice of the homeless cannot reach your living room. The numbers of the tortured, desperate, and dead are insufficient to motivate change when they remain unidentified. Movements must wear names. And the homeless are notoriously reluctant to offer up a “government name”.234 Without names and faces to compel compassion, the current discussion in law fails to recognize that the homeless are subject to the law and equal creators of law. The homeless define the law through their experience with administrators, judges, and lawyers. The selection of the homeless is an effort to introduce their voices into the narrative of law. The introduction of homeless voices into legal discourse fills a void in legal research. For too long, legal research has focused on those making the law. This work is an attempt to look at what “undue burden” means for those who suffer the law without proper agency or recognition. There is another level of bias involved with the groups of individuals I interviewed. There was no random way to sample homeless individuals. You can only interview those who are present, and that is a matter of chance. Homeless subjects lack definite addresses, phone numbers, and many of them refuse to use their legal names. It is a reality that most individuals have lessened physical attachments, they regularly cross county lines, and most residents in the tent city maintain numerous tent sites. Efforts to maintain contact and follow-up with subsequent interviews were often frustrated by difficulties coordinating and connecting with individuals. This difficulty affirms the need for more research. 4.6 Why We Struggle to Study Homelessness, the Realities of Chance 234 An individual identified as “Taurus” refuses to give any government officials her real name or identity. Through the course of a year, she did provide her real information. That information is not being shared out of respect for her autonomy. Despite this, her legal name was posted on an eviction notice outside her tent twenty-four hours before her stuff was to be bulldozed. 86 The frustration of locating individuals from the homeless population is not unique to those wishing to engage in scholastic endeavors. Through my work, I found that the destruction of homeless communities made it harder for state and county employees to provide assistance, even to those whose needs had already been identified. This demonstrated a key observation in the research. Law enforcement, nonprofit organizations, and state agencies rarely work together. One direct observation involved law enforcement removing a portion of the tent city. When a third party appeared the next day, an individual who worked with organizations to provide help, he discovered that the individuals he had been helping were no longer present. His organization had not been provided notice. The independent actions of law enforcement, state agencies, county agencies, and third-party organizations makes it nearly impossible to track someone. Their ignorance of context makes it nearly impossible for them to achieve their goals. This is true in the best scenario when homeless individuals want to be tracked. Such insights into the difficulty of tracking individuals are only available after long hours within the community itself. Without spending excessive amounts of time within the community, it is impossible to maintain contact and coordination with homeless individuals. The availability bias that occurs when working with a transient population complicates the nature of research as it cannot be the researcher who selects the subjects. Narratives were gathered from those who chose to conduct interviews with me. Everything was based on access. The method for this research required a willingness on the part of subjects to speak and work with a scholar. The ongoing nature of reflexive interviews favored individuals with more stability, and the willingness to engage with a scholar again and again. The ideal subjects were those who were present in a single location for months at a time; this was an impossibility due to the frequency with which the camps were cleared out by bulldozers. But it was also a testament to the individuals in this study; they made an effort to find me once they reached a new location. Because of our working relationship, and while it may be biased, I argue it was because they were offered a voice in this work, the subjects of this research were dedicated to continuing the work 87 throughout the year. This was true regardless of circumstances including: subjugation of violence, forced removal, and dangerous weather conditions. The other side is the unfortunate exclusion of many individuals from this work. Many individuals lacked the stability and trust required to have their voices represented here. Such individuals may very well have different perspectives and interpretations of law than those who contributed. On numerous occasions, individuals were simply suffering from such extreme mental health degeneration that we could not conduct interviews. The conversations were impossible to follow, and I could not decode their language. In attempting to address my biases with candor, I wish to highlight the curious fact that nearly all participants interviewed while currently homeless were women. Men in the homeless community proved significantly less willing to engage in interviews, though some men who had previously been homeless were willing to participate.235 Additionally, the interviews conducted with men in the homeless community produced less insightful information. The different engagement between men and women is an interesting phenomenon which is beyond the scope of the current work. I would also note that there were many interviews which I could not use. Some interviews were incoherent. Those who were suffering from mental health crises may have different perspectives than those who participated. On more than one occasion, we encountered someone extremely underdressed for the cold, rocking back and forth, and mumbling to herself. It is worth noting that during one such instance, my colleague removed her own jacket and shoes to comfort the individual in crisis.236 The act reminds me to maintain my humanity, especially when I am struggling to understand the other who is present before me. 235 The research suggests this was connected to the personas required for safety on the Greenway. Men were much more likely than others to adopt an aggressive, violent persona. It appeared that, for men, participation in this work could have been seen as a vulnerability and exploited by others in the homeless community. 236 The observation is not inherently relevant for this work. However, we must recognize the extreme generosity and humanity of some homeless individuals and among those who were recently homeless. On the mile walk back to the parking lot, I asked why she felt compelled to do that. We both knew the woman was likely beyond saving; the items were certainly stolen or sold within hours. My colleague responded that it was okay for her to be a little uncomfortable if it meant someone else could feel comfort. It was a reminder of how little it takes for someone in my position to improve the circumstances of someone else. 88 Both official and unofficial interviews discussed issues of mental health, but only from those who were healthy enough to engage in the dialogue could be used. Additionally, there were areas on the Greenway which I did not access for safety reasons. There was one tent in particular; it was larger than the rest, an assembly of tarp walls and blanketed roofs. There was always a guard outside that tent. There was frequently screaming heard from within the tent. Everyone on the Greenway avoided that tent and the guards who protected it. I was instructed early on in the research to avoid eye contact and keep my distance from anyone in that section. Because of the danger, there were voices and perspectives that I was unable to hear. I wish to emphasize that the danger to me was the daily life for the subjects who shared their stories, and those whose experiences pose even more of an immediate risk to one’s survival. The greatest regret for this work is that every individual interviewed and the substance of each interview could not be included. As a researcher, I had to select the interviews that were relevant. The excluded interviews guided my understanding of the homeless community, and I have done my best to incorporate their stories into the work through the issues addressed. Even in the attempt to incorporate marginalized voices, the limited nature of resources required me to include some while excluding others. 4.7 Research Methods and Ethics Beyond the issues of bias, there are additional ethical and strategic complications to conducting interviews with homeless individuals. As a scholar, the process of working with homeless individuals is largely a process of discovery. There is a different lived reality for traumatized populations, a reality which rarely presents itself to those privileged with legal training. The specific exchanges between the law and homeless populations create an inherent barrier to empathy and understanding. I have come to understand the absence of empathy as the “empathy gap.” The empathy gap is associated with Ian Shapiro and it describes the tendencies of individuals to empathize with those they perceive as better 89 off, but lacking empathy for those in socially lower positions.237The empathy gap is created by the narrative of circumstances. The story told is why it is easier to fund healthcare for the Veterans Affairs than it is for low-income civilians. We empathize with veterans because there is a story of sacrifice and “worthy” rewards. This is contrasted with the “responsibility” narrative of the poor.238 The lack of empathy does not go both ways equally. It is not for the poor to empathize with the struggles of those with power. The failure to hear the narratives of the poor is the primary generator for what Charles Mills calls “epistemological ignorance.” Epistemological ignorance is closely related to the idea of epistemic injustice. According to Mills, the unwillingness of those with power and wealth to experience the lives and stories of the poor creates an inability to empathize.239 It is not inherently intentional, but by failing to step foot on the Greenway, lawyers and scholars are precluding the foundations of empathy that we need in law. Tronto calls this preclusion, “privileged irresponsibility.”240 Privileged irresponsibility is the recognition that it is uncomfortable to be on the Greenway. It is natural that we avoid that which is uncomfortable. We avoid that which is dangerous. For those of us with the ability, we define our “responsibility” as the avoidance of chance. The student who lives on campus, studies hard, and attends review sessions is “responsible” by the standards of her professors. For those on the Greenway, they don’t have that option. The Greenway represents a different kind of student. Unlike the first student, she has to live with her parents and siblings. She works so she can contribute to the household, she misses classes to watch her siblings, and the necessities of providing family care and economic support render her less “responsible” according to academic standards. The term “responsible” is defined within an academic context. The context ignores family responsibilities, economic restraints, and collateral obligations. By defining our terms, we inherently preclude those outside of our reality from participating 237 Ian Shapiro, “Why the Poor Don’t Soak the Rich” (2002) 131:1 Daedalus 118-119. 238 Theda Skocpol, Protecting Soldiers and Mothers: The Political Origin of Social Policy in the United States. (Cambridge: Harvard University Press, 1992). 239 Carole Pateman and Charles Mills, The Contract and Domination, (Malden, MA, 2007). 240 Joan Tronto, Supra 137 90 in our institutions. In this way, our “responsibility” becomes a defense of our ignorance. The struggle of a student in financial affairs or family matters is an externality for the professor. We are absolved from asking or caring about such issues. Ignorance becomes embedded in our terminology. It defines our scope and creates a mechanism by which our empathy erodes. We listen to those with more power and we empathize with those of higher position because they reflect our institutional bias. This same construction means that we label those in desperate positions as “irresponsible.”241 A direct link between narratives and empathy can be demonstrated in the reconciliation studies conducted by Baron-Cohen. Baron-Cohen found that the best mechanisms to “heal” domestic violence occurred when perpetrators of domestic violence are forced to hear their victims. The studies demonstrate that those who utilize violence were ignorant of the harm they cause. The harm was intentional, but it was born out of a failure to consider the reality and experience of the victim. When perpetrators of domestic violence heard the stories from their victims, they lost the ability to objectify the other. Hearing the narrative of the other forced the abuser to recognize the autonomy of their victim and the violence of their actions. Narratives proved to be a key to empathy. The study found that hearing the stories of victims generates empathy, and empathy precluded further perpetuation of violence.242 In her studies on empathy and evil, Baron-Cohn defined the lack of empathy as the inability to perceive the humanity in the other.243 When we no longer hear the stories of the disenfranchised, we no longer identify them as people and we no longer empathize with their hardship. The first step in violence is to deny the humanity of the victim. This happens when we apply generic terms such as “Defendant” or “Victim.” We classify entire groups and lose the ability to see the person we are addressing. The objectification of victims is not just an issue for domestic relations, this same pattern is praised in legal writing and academic discourse. The research tells us how to use narratives to work ethically. It tells us to return humanity to our subjects, hear their individual stories, and return the voice of those who 241 Joan Tronto, Caring Democracy: Markets, Equality, and Justice, (New York University Press, 2013). 242 Simon Baron-Cohen, The Science of Evil: On Empathy and the Origins of Cruelty, (New York: Basic Books, 2011). 243 Ibid. 91 are disenfranchised. Even studies on the issues of homelessness use generic terms and fail to see individuals struggling in the cold. While it is well intentioned, policies and research cannot facilitate real assistance until they recognize the people we simply lump into a singular category. There is no “homeless” problem. There is a problem of hundreds of thousands of individuals who are homeless. The homeless individuals represented by this study deeply distrust authority because it has grouped and classified them. Having experienced legal authority in negative situations, the language used by academics triggers many homeless individuals to distrust scholars as well. From the perspective of the homeless, “research” and “data” are weapons used by those with authority to make their lives more difficult than they already are. This point was highlighted quite poignantly by one subject who, upon seeing an eviction notice from the county outside her tent, remarked that when it was time to use the law against her, they knew her government name and where to find her. But, she emphasized, they couldn’t figure that out when she needed forms to receive food assistance or medical resources. While the biases of the homeless population are often based on first-hand experience, the biases of the legal and scholarly community emerge in the shape of ignorance and carry an inherent prejudice against the dispossessed. Because of this, I found that there was a long process of informing myself on the subject and meaning of trauma and the realities of homelessness. According to scholars, researchers must be informed, and they must approach their methods with the proper appreciation for the experience and language of their subjects. I could not simply step into a tent community and begin asking questions. Without more information, I risk causing harm or reinforcing my own biases. Finding the available research into the tent community was critical before starting any research; I wanted to understand and how best to approach them so I did not create more trauma and harm. The research conducted on how to interview homeless populations followed the work of Winsome and Travis. Winsome and Travis identified complications in interview structures and methods when approaching traumatized populations.244 Winsome and 244 Kira Erwin, “Historicizing Fear: Ignorance, Vilification, and Othering”, Travis D. Boyce & Winsome M. Chunnu, (eds), First Edition, (University Press of Colorado, 2019). 92 Travis identified numerous issues; issues which were dramatic in the populations who collaborated in the current work. The problems identified by Winsome and Travis included interviewing individuals about highly sensitive subjects such as rape, drug addiction, and criminality. The questions themselves could be triggering to homeless populations. This is an ethical issue as the researcher is potentially causing additional trauma in the collection of the narrative. It also creates a methodological issue. By triggering respondents, the research loses certainty in answers. And yet, the experiences and trauma of homeless populations can provide the most valuable information. According to Nussbaum, the humanity behind fear, loss, and vulnerability is the connective link that embodies law.245 Integrating the voice of the homeless into the law requires that scholars understand individuals as full and complete humans. As a researcher, I wanted to ask about sensitive topics without retraumatizing subjects. I wanted to work in a fashion that allowed for meaningful responses that could connect to scholars. I wanted to understand homelessness within the law with all the trauma it involved. At times, pursuing these stories required the assistance of a trauma translator, Sherman, whose accent was easily identifiable to those in the homeless population.246 In addition to trauma, Winsome and Travis also identified the struggle in interviewing people who suffer from a lack of mental health resources, food security, and a long history of distrust for authority.247 A personal observation confirmed the concerns of Winsome and Travis. Within homeless camps, I observed an environment of usury. Individuals were afraid of being used and they were struggling to chisel some usable advantage for survival from their interactions. This environmental reality appears to be contradicted by the refusal of individuals to accept a gift card for their participation. I believe that a closer inspection would prove the usury and the commitment of participants was not a contradiction but consistent with a single theme. 245 Martha C. Nussbaum, Supra 119. 246 Where my interviews adopted a more formal structure, Sherman often connected with those she interviewed through jokes that granted her and the subjects control over the trauma narrative. Sherman could proceed in this way because she has personal experiences which reflect the experiences of the homeless individuals with whom I worked. 247 Winsome Chunnu Brayda & Travis D. Boyce, “So you Really Want to Interview Me?: Navigating “Sensitive” Qualitative Research Interviewing” (2014) 13:1 International Journal of Qualitative Methods, DOI: 10.1177/160940691401300115“” 93 What we ultimately learn from Winsome and Travis is that the scholars’ ability to care about law and jurisprudence is a luxury. For the homeless, their primary concern is surviving another night, finding food, and avoiding incarceration. As a researcher, I had no advantages to offer individuals who chose to share their stories. Objectively, there was no reason for anyone in the tent community to have a conversation with me. I could not function as their lawyer. I could not help them escape homelessness, and I offered no incentive for their participation. Why individuals were willing to work with me quickly became a research question in and of itself. Among the concerns with food security, randomized violence, and distrust for authority, why would any individual choose to take the time to help a legal scholar? While a detailed analysis of this question was beyond the scope of this work, one participant, previously identified in this work as Taurus, articulated her participation stemmed from a desire to save someone else, someone like her. Of all the people interviewed, Taurus was the frankest about her life and inevitable death; she held no hope for herself. But she identified the points in her life when she believed it still would have been possible to save her; she asked that this research attempt to compel intervention when it matters most. Not for her, but others like her. Taurus demonstrated an understanding of how the research could be used and wanted to take part in the process, but connecting with people like her was never a guarantee. The first question for conducting interviews in homeless communities was how to find subjects willing to engage. The solution was a method of waiting and roaming. The method is not technical or sophisticated. To gather interviews for the current work, I waited within homeless communities and walked among tent encampments. As the reader will soon learn, Courtney was the first person to engage. It was her story and dedication which made this work possible. With Courtney vouching for my intentions, the method of waiting and roaming became much more effective. This method was built from the suggestions of Winsome and Boyce.248 The method also incorporated valuable lessons from Duneier’s work and method in “Sidewalk.”249 This approach was dependent upon long periods of time, being present 248 Ibid. 249 Mitchell Duneier, Supra 159. 94 within communities, and building trust with subjects. This investment was based on the acceptance that meaningful responses and understanding of the human experiences of the homeless could not be collected by surveys or one-time interviews. Time within a homeless community generated familiarity. Eventually, homeless individuals became curious about my continued presence. After my introduction to Courtney and our growing association on the Greenway, others began to trust that I would treat them respectfully and listen to their experiences. Administrative officials, lawyers, and scholars rarely spend any time in homeless camps. If they spend any time in the community, it is short and serves an objective purpose. In the span of one year, I never saw a single agency employee befriend (or engage on friendly terms) a resident of the Greenway. I never saw the agencies or law enforcement engage the residents to help distribute resources or provide aid.250 Residents were denied humanity and autonomy at every turn. I did not want to commit the same errors as the agencies. So, the first step in the interview process was to accept my lack of control. Homeless individuals had the power to speak with me and it was vital that they retained that power throughout the process. Frequently, as I walked the Greenway, I recognized nonprofit organizations that walked the same strip of land. Some organizations, such as local churches and humanitarian organizations, pulled wagons and offered resources such as warm hats, coats, and hot food. I found that the charitable organizations were less vulnerable and easier to approach. Walking with them and discussing issues on the Greenway provided an introduction into the issues that the homeless population endure. Few of these interviews were recorded and made official, but their context and insights were still valuable. This approach also provided a marginal level of trust and credibility by association. I owe a tremendous debt of gratitude to all the organizations working on the Greenway. Those who worked hardest were nonaffiliated. It was individuals, not churches or agencies who spent the most time on the Greenway. 250 The research identified the value in being expected to help or contribute as part of the human experience. Many on the Greenway saw providing interviews as a way that they could do something for others. Prior to this work, I had not understood the dehumanizing effect of identifying the homeless as in ‘need’ without acknowledgment of what they could offer. 95 Once homeless individuals approached me, we began a slow process of trust-building. Interviews were not the immediate focus. The first step involved explaining the research, the goals of the research, and my personal background as a lawyer and scholar. Extensive information was exchanged before any data was ever recorded. While the work of Winsome and Travis served to inform the challenges to be faced in conducting this research, it did little to alter the reality of my own privilege. I have no comparable experiences with hunger, poverty, and betrayal. This raised a question of empathy. Can empathy be learned, or does the circumstance with which one empathizes have to be experienced directly? It is my contention in this work that empathy can be learned, and that ability is best developed through stories. I have used the reflexive interview method to develop and expand my ability to empathize. Through the process of conducting inductive research and penning this work, I hope I have provided a means by which the reader can likewise develop empathy for those with different lived experiences from their own. 4.8 Official Interviews and What Gets Recorded I suspect that subsequent scholars will question the information exchanged and not recorded. Such ex parte communications without the reader’s involvement may threaten the credibility of my results, but there was no better approach. Through honesty and open discussion, I hope the reader will trust my intentions. Individuals on the Greenway had to trust me before they were willing to work with me. I had to convince them to trust you before I could record their names and their stories. Once the individuals trusted me and trusted you, I was allowed to record official interviews. Official interviews, in which usable stories and narratives were provided, were only engaged after the individual was aware of her rights, after she was fully informed of the possible concerns she should know about, and after we had a discussion regarding the nature of interviews and how data would be used. The focus throughout the process was for the vulnerable populations to retain control and power of the process. For a reflexive interview to work, homeless individuals had to be completely informed and involved in the interview process. Beyond that, I 96 sought to allow them some place within this work that was more than data and less than author. This work was a collaboration to the highest degree possible. Weeks of interactions and trust building elapsed through the course of a hundred hours on the Greenway. Individuals such as Courtney and Taurus helped. They kept us safe on the Greenway and advocated for this project. Eventually, through familiarity and hard work, homeless individuals began telling me what it was that they wanted scholars to know. I wish to emphasize that distinction; it was the homeless who told me what it was that they wished you to hear. While I carefully conducted the research and developed the methodology, the narratives were theirs alone to offer. In academia, the percolation of ideas and questions from research subjects is rare. It subjects this research to greater criticism, but it also allows for the focus to remain present with the homeless populations and what they believed was important. This work compares what existing legal structures wish to know against what the homeless communities think we are missing. Before any official interviews, we shared the same stories a dozen times. We worked together throughout innumerable distractions, before I was given permission to include their narrative in my work. We agreed that I would not make them into mere data. I promised one individual, Courtney Montour, that I would include the name of her son. His name was Sebastian Mark Allen Montour. Neither Courtney nor Sebastian are data. Courtney is a mother. She is a daughter. Her father, her only consistent ally throughout her struggles, has begun to forget her name due to Alzheimer’s. Courtney was eager to engage in official interviews. She took a personal interest in the project and claimed this work as her own. Courtney wanted you to know her son’s name. More importantly, Courtney wanted you to know that this is not who she is. Courtney’s story serves to emphasize the role of existing structures in maintaining homelessness. Chance made her homeless and we keep her there. Ashley Tierney is another coauthor. Like Courtney, she is a mother. Ashley has no family. Her interest in this work was affirmation. She felt personally responsible for her circumstances and expressed a plea to readers to hear what happened. Agencies only heard the facts; she wanted someone to hear her story. She became sick and had to be hospitalized. Due to her time in the hospital, she lost her job. Without the stability of 97 employment, she lost her son. Because she didn’t have her son, she lost access to assistance. Her story demonstrates how agencies can not only further but create homelessness. Other individuals did not provide their full name. They only offered one name, but their contribution was no less significant. One individual is a member of the Ojibwe tribe. His name is Alan, and he wanted scholars to see a native perspective. Alan expressed the belief that homelessness is an equation we maintain so the rest of us can be rich. He wanted you to think about the potential lost on the Greenway. The human potential for doctors and scientists we lost because we prioritize our Techne over the risk of investing in human potential. His story provides hope for the many who are still trying to escape homelessness and for the many who have devoted their lives to helping them. Taurus is perhaps the best example of lost potential. She shared her stories of her addiction and even allowed Dr. Sherman to observe as she injected methamphetamine. While carrying out a criminal act that those in academia may find unthinkable, Taurus highlighted the medical importance of how she was doing what she was doing. Along with pain and addiction, she shared aspirations. The procedural precautions she adopted for injecting drugs betrayed her as someone who was, contrary to traditional assumptions, cautious and conscientious. Taurus had potential; she did not have opportunities. When we lost Taurus, we lost a doctor. She emphasized repeatedly that she was certain to die on the Greenway, but she was still willing to contribute to this work in the hope it may help others. Her story demonstrates how little it would take to preserve potential, if we intervened when it was still possible. The contributions of the subjects in this study were far more important than my own. They allowed access that made this research possible. Once waivers were signed and a thorough discussion regarding interviews was completed, we proceeded through unstructured interviews. The goal was to let individuals speak. Let them inform the scholars about how they experience law and what could be changed to foster more successful engagement from the homeless communities. Once the interviews were transcribed, we discussed the content and meaning of their reports to ensure I accurately represented their narratives. At that point, their work was done. I told them to trust the readers to listen. They were vulnerable and offered you 98 their worst moments in the hope that you would see their humanity. Their role in this process was unenviable, but the reader’s task also requires investment. Carrying out your responsibilities in this process will not be easy. Read reflexively and with an eye toward self-examination. Read to understand what it was that they wanted you to know. Now, it is your turn to put in the work. 99 Chapter 5: Structuration of Time and Law …His name is Sebastian Mark Allen Montour. He was born 8 pounds and 5 ounces. He was 25 inches long. Courtney wanted you to know about her son. Reading this work, I encourage you to consider how children are demarcations of time. Beyond that point, think about the nature of time. It is our invention. The days are not naturally divided. We create holidays and birthdays to mark the flow and transition of events. Time is a form of Techne, structure. Psychologically, we need it to celebrate accomplishments, mourn losses, and construct meaning. Think about your own symbols of time. Perhaps you mark time by the aging of family, the publications you write, or the regular seasons of your favorite television program. With your perception in place, imagine that you lose every symbol that tethers you to time. Courtney wanted you to know about her son because his loss continues to dominate her life. Her son represented the human need for love. He provided Courtney with meaning that could make life tolerable. Courtney’s son was her symbol of time. Hearing her story, it became clear why Courtney could not heal or recover. While agencies and scholars negotiated budgets and data, she was grappling for a narrative to explain her son’s life. Unless we can place law within the context of her loss and the nature of her time, agencies will fail to help her. As they have consistently failed her in the past. 5.1 What Time Means for the Law and Legal Scholars As a scholar, I have never considered the influence of time and its relationship with law. To the extent I subconsciously recognized time, it has always been sequential. The entire edifice of law is dependent upon cause and effect. Lawyers create time through the conditioning of contracts. Bargained-for-exchanges occur through the progression of events and the fulfillment of obligations. Time is the core operative subject of law and perhaps for that reason, we fail to consider it. What need is there to 100 consider a thing that is so predictable? Context Theory challenges us to examine the most basic of human elements, starting with the nature of time. But this is not a natural field of legal research. Looking for prior academic work on law and time proved futile. Scholars have drafted work about law as tradition. The work of Martin Krygier argued that the development of law was simply a social tradition that progressed in time.251 Tradition proved to be just another mechanism of sequential reasoning, a legally recognized sense of time. Because Krygier’s work saw law as a tradition, it naturally continued the Newtonian assumptions of time. Old bias went unexamined and became part of our doctrine in law. Similar to Krygier’s traditionalist approach, David Dyzenhaus discussed Constitutional Law and times of emergency.252 His work traced legal protections during terrorist attacks, wars, and environmental disasters. Like Krygier, he assumed linear time; events that happened in the world and how the law responded. Unlike Krygier’s work, which focused on the continuity of time, Dyzenhaus addressed temporal disruptions. Dyzenhaus wanted to know what we do when time is disrupted and the continuum of law breaks. But even that analysis prioritized the singularity of an event. Something was, something happened, and now we need to move forward. Scholarly work is riddled with accounts of law during specific times such as wars or crises, but it doesn’t discuss time itself. Practitioners of law create time through the narratives presented in court. Timeframes are opened and the past is unveiled to prove conscious actions with criminal or liable results. For a victim, the cessation of abuse may last an hour or a day. Whatever the length of the peace, it has a subjective meaning. Psychologist E. F. Loftus tracked distortions in time through abuse.253 According to Loftus, a victim needs to create separation from the event and one of the best ways to separate oneself is to psychologically alter time. Beyond that fact, the cessation of violence may provide an hour to run, a day to plan murder, or a second for self-defense. What Loftus found in his work is that a single moment can represent all three of these 251 Martin Krygier, “Law as Tradition” (1986) 5:2 Law and Philosophy, DOI: 10.1007/BF00190762 252 David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency, First Edition, (Cambridge University Press, 2009). 253 Elizabeth F. Loftus, “Memory distortion and false memory creation” (1996) 24:3 Journal of the American Academy of Psychiatry and the Law 101 realities. As lawyers, whether we label someone a victim or a criminal often depends on how we define the individual’s sense of time. Traditional legal theory is just like Newtonian physics; it requires that time be fixed and linear. The law sees abuse in terms of time and place, set fixtures that are unchangeable once carried out. The actions of a battered wife must be closely connected to the fist raised against her. Close in our time, not in hers. Even without implicit recognition, the law depends on a collective understanding of time for meaning. It is inherent in the assumptions of law that, if you engage in certain behaviors, you can predict the outcome of events that follow. The notion of linear time returns to the three assumptions of legal positivism: law must be comprised of observable parts, law maintains self-interest as the common core, and law must be objective regardless of the observer. None of the assumptions are possible without uniform and linear time. Even Nussbaum recognized the linear necessity of time. She depicted law as a form of Techne, or structured medium, by which we can control chaos and misfortune.254 A basic assumption of both law and Techne is control. In this sense, time is the element we try to control. But we need to recognize the subjective nature of time if we want to formulate a more equitable model of law. We also need to recognize alternative measures of time, such as a child and a family. The dramatic disparities between the unhoused homeless and the educated elite can be observed in the divergence of time. Nussbaum’s ten capacities inherently reflected the assumption that individuals live within a linear flow of time. But that assumption proved complicated when placed against the lived experiences on the Greenway. Scholars need to reconsider time as a metaphysical construction of law if they hope to help those who need assistance. By recognizing that time is different for the homeless, we can use the law to stabilize it. We can unify the experience for the housed and unhoused and make law a more equitable tool. Scholars will find that time is a critical factor for all the capacities identified by Nussbaum. It is easy to see how time affects an individual’s environmental control. Take 254 Martha C. Nussbaum, Supra 119. 102 a few examples from Nussbaum. She focused on an individual’s ability to participate in political choices, to hold property, and to retain fundamental rights.255 But without the ability to live within progressive time, an individual becomes supernumerary to the environment. There are multiple ways of losing progressive time. For most of the people on the Greenway, they lost linear time through more than one mechanism. For Courtney, her son was the most dramatic destruction of her linear time. As a double injury, the law does not even recognize her experience as valid. Though not explicitly, Nussbaum implicitly recognized the nonlinear nature of law. She was aware of criticism against her theory, that human capabilities must be measured in definitive scales such as economic metrics. Against this concern, it is worth quoting her response in full: People often think of measurement as involving a numerical scale of some type. In real life, however, we are familiar with other, more qualitative styles of measurement. When the U.S. Supreme Court asks whether a given law violates the First Amendment’s guarantee of freedom of speech, the Court does not use a numerical scale on which various speech regimes are lined up; instead, it consults the text of the Constitution, its own precedents, and other pertinent historical social measures.256 Her point is clear: no one doubts the scales used by the Supreme Court to determine the veracity of the First Amendment. Beyond that, it is difficult to find a numeric scale that the courts use. It is hard to find any measurable objective scale in the courts. But despite the acceptance of fuzzy variables in law, we still do not accept fuzziness in time. We will grant the Supreme Court authority to be fuzzy but deny it to the Greenway. The legal recognition of battered woman syndrome gets close to the acknowledgment of time’s blurred edges, but not nearly close enough. In Sherman’s earlier work, she addressed a classmate’s response to a case in which a woman had killed her abuser while he was passed out drunk. From the classmate’s perspective, the act was without defense; there was no imminence to the danger. Sherman compared the circumstances to two people fighting over possession of a gun. One, the abuser, is actively trying to kill the other, the victim. The victim does not want to hurt the abuser, 255 Martha C. Nussbaum, Supra 124. 256 Ibid. 62. 103 but knows if the fight is lost, so is she. Sherman described the moment the abuser succumbs to the liquor as the moment the abuser loses his hold on the gun. The victim doesn’t see her abuser as helpless; she simply sees a moment in which he has dropped the gun. It is emergent. Her death is imminent. She clasps the opportunity by the metal grip and pulls the trigger. Through the lens of the abused, there was only a moment between her life and his. The law does not see it this way. In recognizing battered woman syndrome as a valid defense,257 the law does not acknowledge her experience of time. It does not clarify for the jury that the circumstances were such that it was self-defense. By its own definition, battered woman syndrome is a diagnosis of her brokenness, not an acceptance of her experience. The law does not recognize the perpetual moment258 of shattered time, only the vulnerability of one continually forced to relive it. While the law as a whole cannot stomach the concept, Franz Kafka was one of the few scholars and lawyers who understood and incorporated time into the law. In his novels, characters were jettisoned into events in which they lacked control over time. Circumstances transpired without linear progression. The lack of logical progression is intended to leave readers dizzied and lost within the subjective nature of Kafka’s legal system.259 Between the lines of his work, Kafka screamed that to be human was to struggle with the creation and experience of time. The resonance of Kafka’s voice was dramatic in Courtney’s narrative. The disorienting description of law in Kafka’s novels reflects the legal system as it is experienced by the disenfranchised. The assumption of time as a predictable, linear structure helps to explain how a judge could find that the destruction of a homeless community created no “undue burden” for those who lack indoor plumbing or centralized heating. It also sheds light upon how that same judge found that there was no threat of 257 This continues to be so inconsistently recognized that the majority of women serving life sentences in the United States are there for killing their abusers. 258 Sherman uses the term “perpetual moment” to describe trauma that freezes its victim in a memory or state of being. Though similar to the psychological event of a flashback, a perpetual moment has a deeper, more pervasive effect. For example: Rather than briefly dragging someone back to a memory of a traumatic event from when they were twelve years old (flashback), a perpetual moment may confine someone to the emotional state of a 12-year-old for a prolonged or semi-permanent expanse of time. This occurrence, when placed in the context of law, creates additional barriers to resources, impeding reasonable assumptions of capacity based on age. 259 Jakob Lothe, Literary Landscapes, First Edition, (London, Palgrave Macmillan, 2008). 104 “irreparable harm” to the tent population by bulldozing everything they owned. Twenty-four hours’ notice is not the same for a judge as it is for the homeless. Three months of residency, relative security, and a community is not the same for a judge as it is for someone who never spent that long in one foster home, never expected to survive that long exposed to a Minnesota winter. The different nature of time for the homeless and the legal establishment prevents judges, lawyers, and scholars from recognizing the core humanity in the homeless population. For those without the lived experiences that irreparably re-arrange time, the concept is too much to conjure from data alone. We need names. We need stories. Courtney provides a concrete example of how time is an essential element to human dignity, a necessary hurdle to surpass to integrate the ten capacities into a legal framework. In Courtney’s case, the experience of time must be recognized to facilitate access to the capacity identified as “emotional control”. 260 5.2 How Time is a Critical Element in Human Dignity and the Ten Capacities Nussbaum implicitly recognized time in her ten capacities. Her tenth human capacity recognized emotional control as a key component to living a dignified life.261 If the reader will take a moment to pause and consider the nature of emotional control, she will begin to realize the significance of time. This also provides an opportunity to look at Courtney’s relationship with her son. Consider your own values and emotional control. Think about the worst moments of your life and try to imagine living that moment forever. After years in that state, imagine a judge or scholar trying to tell you that you need to move on and move forward. The suspension in pain is exactly what Courtney felt and continues to feel. Nussbaum’s tenth capacity involves: joy, grief, anger, contempt, and fear. But each of these emotions are conditioned by time. According to scholars who study cognition, emotions are the core of identity and meaning, and emotions are preconditioned by 260 Martha C. Nussbaum, Supra 119. 261 Ibid. 105 time.262 Nussbaum defined emotions as “being able to have attachments to things and people outside of ourselves; to love others, receive love, and grieve.”263 On the surface, no one alleges Courtney is legally denied the ability to have emotions. There is no law preventing the poor from engaging in emotions and nothing directly precludes the homeless from having the emotions of love and grief. However, listening to Courtney illuminated the reality that emotional expression needs more than the absence of restrictions; emotional control has requisite conditions. To theorize law as a connective tissue requires agreement on core elements and mutual recognition of the human capacity in others. These requirements make time one of the most critical elements of law. Interviews with the homeless community emphasized that they experienced time in a completely different manner than scholars. The narrative chapters of this work seek to tangibly portray the difficulty caused by this difference. Many interviews talked about the past in the future tense, others adopted the present tense for events that happened years ago. As the stories conveyed in this work leap haphazardly between the past and the present as if they are one, the reader is encouraged to embrace that confusion—that is what it is like to become untethered from time. The desperation of not knowing precisely what is and what was is a constant for those on the Greenway. While the relativity of time is inevitable, the blind disregard for differences in time is not. Starting from the recognition that time is different for the housed and the homeless, scholars can begin to understand how the difference in time restricts someone like Courtney from exercising the basic human ability to experience emotion. 5.3 Courtney’s Living Experience with Time and Grief It was during one of the ‘observational’ periods that Courtney showed me how to use bubble wrap and emergency blankets to insulate a tent. But that is not today’s lesson. The process on display is slow and mindless; she takes a handful of toilet paper, saturates it in a mixture of petroleum jelly and an unidentified substance, and lets it soak in hand 262 Carroll E. Izard, Deborah Z. Libero, Priscilla Putnam, & O. Maurice Haynes, “Stability of emotional experiences and their relations to traits of personality” (1993) 64:5 Journal of Personal and Social Psychology, DOI: 10.1037//0022-3514.64.5.847 263 Martha C. Nussbaum, Supra 124. 106 sanitizer. These are all supplies she can easily steal from the port-a-potty provided by the city or from the Target just down the street. When she is done, the blob looks like a lump of animal fat. Something that might have been used in the thirteenth century. Huddled in her tent, I experience the Middle Ages within the twenty-first century. The blob of manufactured ‘fat’ is highly flammable and burns slightly slower than a pool of alcohol. As Courtney ignites the substance, I feel it generating heat. It is the only source of heat, and it might be enough to keep her from freezing to death as winter progresses. Technically, the County prohibits any source of open flame in the tent community, despite the fact temperatures in Minnesota can plummet to fifty below Fahrenheit. As I watch this criminal act play out, I see no alternative. Similarly, I see no alternative to stealing bubble wrap and aluminum foil. Courtney needs these supplies to survive, and the state agencies are not providing heat or insulation. The agencies simply tell Courtney that it is dangerous to have a flame in her tent. Instead of help, she gets a lecture. Or worse, law enforcement issues citations, reprimands, or arrests. Unlike how the legal concept is portrayed in law schools, Courtney faces a recurring choice of evils. She can endanger herself with an open flame or she can certainly freeze to death. The health risks posed by the open flame pair nicely with the added risk of a citation from the County. The small flame in the metal bowl echoes off the aluminum foil lining the tent’s walls. Bubble wrap procured from the post office absorbs the heat and buffers against the cold. It’s an indigent form of insulation. As the tent warms, Courtney and I begin talking about her life on the Greenway. Like Nussbaum, Courtney does not talk about time. She talks about everything around and related to time. It is only later, safe in my own linear reality, that I make the connection. Only once I am secure in my spatial reasoning that I see the contrast. I listen to Courtney’s perpetual moment play over and over again. Courtney’s grief sinks into me as I listen to her cries repeated over and over through the recorder. It is only because of the ten official interviews that I begin to understand. It took a year before I could see what she was telling me before I understood how her stories connected time and grief. Scholars will not immediately appreciate the link between losing a child and the inability to experience such grief in homelessness. I have heard judges receive 107 similar stories. They respond with the same lecture, “that is sad, but it doesn’t justify your addiction.” It takes more than a year for me to begin to hear what Courtney is saying. A year of thinking, a year spent considering the stories. Stories that took an additional year to collect. The seeds of this insight, that there exists a contextual link between family, grief, and time, dig into my palms. It is embarrassing that I missed the truth for such a long time, but that is because I am legally trained. There is a category for family law, a category for administrative law, and a category for criminal law. We don’t blend them. And we certainly don’t investigate fluffy topics such as philosophy. To invite philosophy into the conversation is to invite dragons into the courtroom. This realization is almost two years into my future as I sit beside the medieval flame in her tent. Two years from when Courtney casually remarked that she met her boyfriend when she was four months pregnant. Though her narrative includes years of transience and near-homelessness, she was not homeless until she met this man. As she navigated her second trimester of pregnancy, her involvement with this man was mere chance. It was an accident. There were two minutes in which she chose to connect with another person. And now? She continues to mutate stolen supplies into temporary warmth as she tells the story. If placed before a judge and jury, a lawyer would open the timeframe and argue that, in those two voluntary minutes, Courtney chose this condition. The law would view her timeline and label her homelessness as self-inflicted. The moment has passed but it is always recurring. A stranger asked Courtney for a light. She consciously decided to give him her lighter. The moment was infinitesimal. She consciously decided to continue a conversation with the man. If she had known the consequences of the encounter, she would have chosen differently. If given the choice between continuing a conversation and becoming homeless or walking away, she would have walked away. But in that moment, the only choice was to feel seen. For a moment, a young child who was neglected chose to be seen by another person. That was her choice. Unfortunately, Courtney could not fathom the fallout. It is not fair that two minutes should dictate ten years of her life. Such an arbitrary weight upon those moments is a violation of Nussbaum’s depiction of human dignity. But that two-minute conversation labeled Courtney as a criminal in the judicial system. Those two minutes 108 continue to keep her confined. She cannot move past that point. Of all the minutes in her life, those two define her. In many ways, we can see her punishment for being poor as the constant subjection to those two minutes. We fail to recognize them, and in doing so, we refuse to let her live past them. Of course, there is another possibility. The timeline can always be opened further. It was not the two minutes that placed her in a stranger’s path that condemned her to the tent community; instead, it was the abusive husband from whom she was fleeing. She was pregnant with his child as he blackened her eye and evicted her from their home. But that man is not being indicted for his crimes. Taking an even longer view, it was her childhood. A decade of abusive and neglectful parents who preconditioned her for abusive relationships. A father who refused her attention and care, driving her toward the man who would ask for a lighter. And yet, there is no indictment for her parents. Her mother was a social worker, a fact that I still struggle to comprehend. A woman paid by the state, with an ethic of care to tend to those in need, a woman who could help strangers, that woman was abusive at home. The duality of who she was in the world defies comprehension and yet, that is the very nature of Touché. It isillogical, so we exclude it from our analysis. We review what we can handle, which is to exclude the reality of those two minutes and the immeasurable steps that brought Courtney to them. If law ever hopes to be fair, it must recognize the continuance of that time in Courtney’s life. The legal analysis cannot move forward while Courtney is stuck in its history. In this way, Courtney’s life has been determined by two minutes. But in another sense, she had been living a perpetual moment of abuse and dysfunction since she was a child. It is our legal framework that invented the difference and attempts to impose it upon Courtney. Whether her life was determined by two minutes, or a lifetime hardly matters. It is because of a luxury of wealth and power that individuals can ignore their own vulnerability to time. Neurologists call it temporal pattern recognition.264 The brain organizes the flood of sensory inputs into meaningful patterns. Phonemes are organized 264 DeLiang Wang, “Temporal Pattern Processing” (2003) 2 The Handbook of Brain Theory and Neural Networks 109 into words and audio and visual stimulants are mapped and remembered as significant. The patterns of our brain create sequential progressions and trigger the illusion of linear development. Cause-and-effect are invented after the moment has passed.265 But those who experience trauma experience it through sensory snapshots, not by predictable progressions in time. It is not a date on a calendar but the fabric of a sweater that lingers in the mind of trauma. 5.4 Time as a Non-Newtonian Social Creation Social and political theorists have long debated what legal scholars have yet to consider, the reflexive nature of time and its meaning. According to Talcott Parsons, all meaning is a retroactive creation of time.266 Parsons argued that we do not act “rationally.” We merely act. After the act is completed, we rationalize and construct a linear progression to explain our behavior.267 This was evident in Courtney and the Greenway. There was a self-loathing presence on the Greenway. Courtney suffered loss at the hands of chance and justified it through her feelings of inferiority. Similarly, scholars justify their status as the result of hard work. But as Parson’s warns, we merely act in the world. It is only after the results that we create causation and meaning. Through this lens, it is clear that, for Courtney, the nature of chance and time are significantly different on the Greenway. Working with the homeless teaches you that it is impossible to schedule appointments or predict patterns. Courtney and those like her lack the ability to predict any intervening moment. In the early afternoon we secured her tent, and everything was clean and orderly before I left. The next morning, I arrived to shreds of fabric. Three men came in the middle of the night and robbed her at gunpoint. They destroyed her tent. There was no cause for the violence except for the fact that she was there, and she was alone. In listening to her nightmare I could see the tangible manifestations of its power, but I also know that a jury would question her testimony. We doubt the credibility of her 265 Ibid at 1165. 266 Helmut R. Wagner, “Reflections on Parsons’ “1974 Retrospective Perspective” on Alfred Schutz” (1980) 3:4 Human Studies, DOI: 10.1007/BF02331824 267 Ibid. 110 recollections and the circumstantial evidence because it does not align with our references. But the biggest question raised in a legal evaluation is the one of motivation. In the realm of cause and effect, we expect motive. We look for it. Our determinations of legal credibility often rest upon our perception of motive. For those on the Greenway, the concept of motive is far removed. When everything is beyond your immediate control, what is the need for motive? When every act is disconnected from consequence and every consequence lacks a triggering act, what is the purpose in planning and calculation? I looked through the holes in her tent, the clean slices, exacted from the outside. Three men came in the middle of the night and destroyed her tent. The violence was senseless, but so is everything else on the Greenway. Nussbaum never worked within homeless communities to see the direct effect of time and human dignity. Beyond her ten capacities was the inherent assumption of time. Nussbaum told us that the ability to play was a vital core to human dignity, but she did not recognize that play was a product of having “free time”. Affiliation was another core. But affiliation requires the ability to coordinate within time. Life is lived through time. And there is no environmental control without the control of time. But the immediate focus for Courtney was on emotions and time. It was a privilege to receive Courtney’s story and it can be a new source of insight for the law. From Courtney’s stories about pregnancy, the casual references to months or weeks as measured by maternal recognition, I would expect a baby to rest upon her hip as she spoke. Based on my work for the court system, my immediate suspicion was that the state removed her child from her. Losing parental rights is highly traumatic and it is not something I wanted to force Courtney into revealing. But as she continued to talk, we continued to circle the subject of her baby. Of all the topics we discussed throughout the course of a year, this topic was most meaningful to her. This story is what she wanted you to know about her life. During our interviews, she specifically stated that she wanted the readers to hear about her son. She wanted you to know that her baby boy was named Sebastian Mark Allen Montour. Courtney did not care about the nature of time or law. That is a luxury for us as we sit at home. What Courtney cared about was the pain she felt and the trauma of her son. In her condition, she wondered if her son was ever real. In that condition, it was 111 no wonder that she struggled to comply with agency regulations. It was no wonder that she fell outside our Techne. Techne is something we made without her input, which we then imposed upon her without consideration for her contextual experience. The assumptions of our law completely overlook Courtney’s experience. Her life revolved around her son. In some interviews, he was the only piece of coherent information she conveyed. She would whisper his name as if to wish him into her arms. After repeated references to Sebastian, I drew the courage to ask her more about him. The situation was worse than I feared. Eight months before the bubble wrap and tin foil, Courtney gave birth to Sebastian. “He was okay until about two hours into my labor,” she explained. “Then, his heart just stopped beating.” For the first time, I watched as Courtney began to cry. She lost her baby, and no one had asked if she was okay. No one on the Greenway had the time to concern themselves with others. As legal scholars, I desperately hope that we can care enough to hear her. Nussbaum would have us see her humanity within the law. Legal Scholars such as Geoffrey Hazard would agree and go so far as to define the Human Condition as the very core of all law.268 Hazard argued that the categorical imperative is the origin of law, without the empathy to hear and understand, there is no foundation for jurisprudence.269 But how do we understand that which we have never experienced? Courtney and I are almost complete opposites. Is it possible for me to empathize with her pain and build it into my work as a scholar and lawyer? After years of listening, reading, and thinking, I do not have an answer. 5.5 Homelessness Dooms You to the Reincarnation of Time After a year on the Greenway, I began to understand the savage redundancy of time. But only to a limited extent, to the extent that I was not forced to live its reality. When the sun was out and the day was warm, individuals worked to secure their tents against the wind. Before the sun sets, individuals scavenged for food and resources. When the sun went down, the helpless hunkered down against the gunshots that 268 See generally, Geoffrey C. Hazard Jr., “Humanity and the Law” (2004) 16 Yale Journal of Law & Humanities+H1072 269 Ibid at 79. 112 ricocheted off the embanked walls of the Greenway. At the end of each day, there was another. Each day would be the same as the one before. Always the same. Amidst the gang violence, addiction, and necessity, there was no differentiation between the days. There were no birthday celebrations, no Christmas parties, no graduations to mark the passage of time. One woman told me that the greatest accomplishment of her day was when she “doesn’t have to suck dick” for food or drugs. She admitted the achievement was rare. The same woman was also a friend of George Floyd. The many murals that inspired the community were constant reminders of her loss. Liberal iconomania of his death is an insult to his humanity. But that is no worse than the Republican rhetoric which labels a victim a criminal, but only when his murderers are in uniform. Another resident on the Greenway described her existence as merely living to die. She described each day as getting a little worse. She grew older, weaker, more vulnerable, and more tired. But there was never any hope of escaping. Hope required measurement. It needed some footing which could be used to improve from one day to the next. She also told me that there was no support. There was only the futile effort of the individuals and the agencies to keep her from dying, but not enough to help her recover. What she described was an existence consumed with itself; every effort exerted to prolong the inevitable. The dehumanizing effect of time was repeatedly observed in this research, it just isn’t recognized in legal research. According to political theorist, Hannah Arendt, there are three expressions of time.270 There is the immediate time of biological needs, then there is the time of human progression, and finally there is the infinite time of the cosmos. The first expression of time is meaningless. It is the compulsion of animals, and it represents the need for survival. Arendt’s theory came from the Greeks. To them, life stuck in biological time was not worthy of human existence. Biological time was a concern for slaves and animals, but not for people. As individuals, the Greeks sought to live beyond biological time to create meaning and community. The same struggle exists on the Greenway. It exists throughout Minneapolis. 270 Hannah Arendt, The Human Condition, Second Edition, (University of Chicago Press, 2013). 113 Unhoused people eat. They defecate either in an overflowing port-a-potty or on the street. They sleep with a heavy dose of drugs to survive until tomorrow. The durability of each activity performed is immediately exhausted. Each day they wake to repeat the same tasks over and over; ad nauseam . Arendt argued that the biological time is rendered meaningless by its necessity and incessant repetition. This is where Arendt, Nussbaum, Courtney, and the others on the Greenway intersect. Individuals stuck in biological time are held captive to the labor needed to sustain life.271 The work Courtney devotes to fixing her tent is undone by high winds that surge throughout the day. Biological time renders the individuality between Courtney and the men who attack her meaningless. Courtney and other encampment residents are condemned to the same activities and same needs. Being an individual requires time to invest. Nussbaum’s emphasis on play, affiliation, and the entirety of her ten capacities involve the human individual. But there is no individual if there is only a redundant need. If winds do not destroy Courtney’s tent, then meaningless violence undoes her work. It is not just Courtney. Day after day, I watched the same people fix the same holes in their tents, reinforce the same walls, and replace old bubble wrap with new bubble wrap. There was no time to create. There was no time to form a community. Need left no gaps to develop a political identity. There was only the need to survive. But it was more than a tent that enslaved Courtney to necessity. Few scholars will be familiar with public transportation that ventures beyond the thoroughly sanitized system of campus buses or the metro lines that ferry businessmen and academics through affluent districts. The academic community is unlikely to understand the complications and frustrations that accompany real public transportation. In Minneapolis, the buses take hours to traverse the city. When required, Courtney spends a day traveling ten miles to make appointments. The difficulty of transportation was thoroughly addressed in Erin Murphy’s meta-study on homelessness and public transportation.272 Murphy’s work identified the problem with public transportation: 271 Ibid. 272 Erin Roark Murphy, “Transportation and homelessness: a systematic review.” (2019) 28:2 Journal of Social Distress and the Homeless, DOI: 10.1080/10530789.2019.1582202 114 This review clearly demonstrates the historical lack of attention that has been paid to transportation as a primary variable of interest in the homelessness literature. Not only is transportation largely overlooked in the homelessness literature, but research indicates that transportation planning and engineering continue to struggle to meet the needs of low-income communities at large.273 The issues and lack of understanding noted by Murphy goes deeper than this study. Courtney would take hours to travel to an appointment with the housing authority. While she was traveling, her tent was robbed or ransacked. Time spent waiting for a bus was time missed collecting food and resources. And after traveling for a day, she waited hours for an overworked social worker in the hope of receiving a housing voucher or food assistance—neither of which would keep her warm and sheltered when she returned to the Greenway that night. On numerous occasions, Courtney took the day to travel to the Department of Human Services. Because of the lack of time, she failed to see a social worker, and she returned to her tent to discover that her possessions had been stolen. Lindsay Phillips studied perceptions of homelessness and noted the social belief that homeless individuals are lazy.274 Based on observations, they are not lazy as much as they are overwhelmed. They are also acutely aware that the effort they exert does not correlate with any benefit. I wonder how many of us would continue to ‘work hard’ if there was no reasonable basis to believe the amount of work expended had anything to do with the outcome. I cannot help but address the hypocrisy of the “deserving poor” theory. The justification and ideology behind denying services is that government assistance deters hard work. The same theory is applied to argue for lower corporate taxes and insane tax provisions that help perpetuate continued wealth. Apparently, those who draft legislation think they should keep the fruits of their labor, implying they will refuse to work hard if any of their economic productivity is taxed. Every day of Courtney’s life is difficult work. Every day is controlled by the necessity of trauma and nature, but she has no 273 Ibid. at 104. 274 Lindsay Phillips, “Homelessness: Perception of Causes and Solutions” (2015) 19:1 Journal of Poverty, DOI: 10.1080/10875549.2014.951981 115 position to demand a salary or services for the work she performs. Our Techne does not recognize the work of the poor, the caretakers, or selfless. The nature of Courtney’s work on the Greenway is a matter of waiting and redoing. It is an endless cycle of time in which Courtney has no markers for progress, no external objectives, and no hope of escaping. You cannot search for jobs when you are desperately searching for food. You cannot search for jobs when you are waiting for the same bus to get to the same appointment. Day after day, being homeless is a fulltime job that works individuals every minute of every day. Even the effort to bathe and clean yourself is endless. Nothing is clean on the Greenway. The county left blue tubs of clean water, but they are not cleaned, checked, or refilled. Hand sanitizer is removed from bathrooms and most establishments will not allow Courtney to utilize the bathroom to clean her face and hands. There is no hope without the ability to stay clean, to connect with other people, or progress in time. 5.6 Courtney’s Experience with Domestic Abuse and Time Courtney tells me that she is only here because she fled an abusive husband. She only married an abusive husband because she had abusive parents. She is an addict, and at least one of her parents was an addict. There is a tragic reincarnation of time on the Greenway. It makes individual lives redundant, but it also passes between generations like the Original Sin. The only difference is that we blame Courtney for her predicament while simultaneously preventing her from getting out. She is homeless because the man who asked her for a lighter, the man who would become her boyfriend, said he would father the child. She did not choose to be homeless. She chose the only option she thought she had, a man who said that they would have a family together. He was a Romeo.275 He opened doors and fulfilled a human need for love and affection. He disguised himself as a key human capacity, the reception of love. He used her need for a dignified life to betray 275 For discussion on sex-trafficking and the inequalities and strategies of abusers, see: Catharine A. MacKinnon, “Trafficking, Prostitution, and Inequality” (2011) 46:2 Harvard Civil Rights-civil Liberties Law Review 116 her. Betrayal is a necessary part of life. We all lie to ourselves about a promotion, a medical condition, or the chance of winning the lottery. Courtney’s need to believe in love and family was human, but it is the reason she is being punished by our legal institutions. Then as now, Courtney is desperate for meaning and frantic for some mechanism of control. But there is no control and there can be no meaning without the ability to live in linear time. Her life is a lived experience of the 1993 film “Groundhog Day”. Prior to the film’s release, the studio repeatedly pressed the writers for a “reason” to answer why Bill Murray’s character kept reliving the same day. The most adamant suggestion was that he should be cursed by a gypsy. The proposal was carried far enough that it was even written into the film. Through circumstances of luck and an unrelated scandal, the scene was never filmed, and the audience embraced the film without an explicit meaning for the protagonist’s plight.276 The producers’ search for purpose is analogous to our view of law. As legal scholars and professionals, we want a reason; this desire impacts Courtney’s ability to access law in a meaningful way. When Courtney appears in court, we want to know what happened, why she is here. As with the studio for Groundhog Day, we would like to see a circumstance in which it is her fault. But this concept of cause-and-effect is a product of a linear reality; Courtney does not have the privilege of that experience. As she tells her stories through official and unofficial interviews, I see her living through her trauma again. Each day brings her back to her loss. Tears fill her eyes as Courtney tells me about events that happened during and immediately before the birth of her son. Courtney left her abusive husband for a man in a tent who promised to love her unborn child. She did not choose to be homeless but choosing him meant homelessness. She tells me that she went into labor chasing her boyfriend down the Greenway. By then, the Romeo had consumed the poison and his true self was all that remained. This man to whom she had given a light was just as abusive as the husband from whom she fled. He is an aggressive man, and their relationship is fraught with conflict. In separate interviews, she explains that he hits her until she 276 Conversation with writer, Danny Rubin. 117 succumbs to grand mal seizures. On the Greenway, he is feared for his violence and erratic rage. These stories explain the profound guilt that mixes with her expressions of grief when she speaks of Sebastian. Still, she stays with him because he is the known danger. Without him, she is fair game for rape, prostitution, and exploitation on the Greenway. She explains that she has picked the lesser of the evils. Because he is so dangerous, and because she is his property, other people leave her alone when he makes it clear she is his. The three men who slashed her tent did so after he stormed off and left an avenue for her isolation. Courtney tells me that there are good and bad consequences to becoming the property of a dangerous person. Courtney tells me that, at least with her current boyfriend, she can learn how to moderate his rage. She has learned how to protect her head when he hits her. It is a choice few in the legal profession will ever confront, the known abuser versus the certainty of unknown abuse from an unidentified source. The depth of the human tragedy Courtney’s relationship embodies is beyond this project. It is a difficult truth that Courtney loves her abuser. This is a fact I personally struggle to recognize, but that struggle is from the position of a privileged male living in the United States. The development of Context Theory forces me to recognize the contradictions that embody human life. Even more importantly, it is not my place to question her love for the man who may have already killed her. My judgment does little to keep her warm or help her escape domestic violence. In separate interviews, Courtney tells me that he is going to kill her. At this point, I cannot know if her prediction has already come true; I have been unable to contact Courtney for the past few months. But even as she initially predicts her future, I can see the truth in her fear. There are no domestic violence services for her. There is no therapy for him. They have no place to go. They are locked together on the Greenway in circumstances that will only make the situation worse. It is a superfluous existence in which no matter what she does, she will be hurt and abused; the toll of the trauma is far deeper than any analysis data can reveal. Courtney does not remember why they were fighting on the night Sebastian was to enter the world. Nor does she remember why she was chasing him. She remembers slipping on the ice and feeling her water break as her back hit the ground. She remembers 118 crying for his help. She tells me that she screamed for him. Courtney yelled that she was going into labor. From the ground she pleaded for his help. He ignored her. As she wriggled on the ice-stained asphalt, the pedestrians ignored her too. He asked her for a light. He said he would love her unborn child. She wanted to believe she could have a family. She was on the ground, physically injured, emotionally hurt, and in labor. Eventually, someone called 911 because an ambulance arrived and took her to the hospital. It is meaningless to ask how long she cried alone before she received medical help. Her life is disconnected from the flow of time, but she estimates that it took a few hours before help arrived. She was taken to the emergency room and delivered her son without any support. She could not cry out for the boyfriend who left her on the ice. The only other names she knew belonged to other homeless individuals on the Greenway. At least, she could name her son. Courtney wants you to know that her son was born 8 pounds and 5 ounces. He was 25 inches long and his heart stopped beating two hours into her labor at the hospital. There was nothing the doctors could do. When Courtney returned to the Greenway, her boyfriend didn’t comment on the lack of a child in her arms or the absence of a baby bump beneath her coat. He was angry at her for being gone, oblivious to where she had been and what she experienced. Addiction and depression are inherently selfish. Like a blackhole, they pull the individual inward. The troubling thing about empathy and understanding is its multiplicity. Her boyfriend wants control just as lawyers and judges seek control. I have witnessed ambitious attorneys and scholars grow cruel and bitter in their failed dreams. Hope doesn’t merely die. It ferments. It is tempting to portray her boyfriend as the villain of this story, and he is, but he is also a victim. That is the duality of empathy. It is impossible to recognize the humanity of Sebastian and not the humanity of his abusive 119 father. Similarly, we cannot recognize the cruelty of Courtney’s boyfriend without seeing the demon within us all.277 Her boyfriend, the man who loves her and whom she loves, was angered by her absence. He seeks control and Courtney is the only thing within his grasp. He is so focused on survival and meaning that he is incapable of seeing her grief. Even after she told him about her trip to the hospital and the death of the child, the child he claimed he would love, they never discussed it. They never discussed her pain. It is likely that this abusive man was also feeling a loss and grief. But he could never express something that could be perceived as weakness and maintain his role on the Greenway. He didn’t know how to discuss the loss and no one else on the Greenway knows Sebastian’s name. 5.7 When Chance Strikes and Techne Fails, We Seek Blame Courtney said she was depressed in the days after the birth. “I was just sad because I realized that I’ll never get to see my son again because I decided to do drugs when I should’ve had his interests” in mind. Medical journals could challenge whether she chose to do drugs. It is an addiction which has usurped control over her life. As I witnessed the violence, the gunfire, and the cold, I began to understand. Drugs presented the only exit to her circumstances. Drugs helped her sleep and continue to function through the cold. Without drugs, there is freezing to death. It is yet another choice that was not hers to make. Now, she feels guilty and unworthy, and the drugs take away the pain. The drugs help her slip outside of time, but they also cause greater guilt. She is arrested for prostitution and drug possession. She is judged by the legal system, fined, and given a longer record. For her, it is external proof that she is a degenerate. It pushes her deeper into her addiction. She spirals into a bottomless cycle of time, addiction, and self-hatred. The only gift the legal system has given her is desperation. The only tool she has to 277 Professor Ibrahim Gassama reminds us that, within each of us, there is a criminal. Human atrocities are human, by definition, they are shared by all. We have yet to see the circumstances that would make us abusive and violent, but that does not mean such circumstances do not exist. 120 exercise her escape from desperation is a few hours of getting high. The sense of loss over her son devastates her. “All I’ve ever wanted was a child. From day one, I had a connection with him and he...” her voice falls out of the air and I wait for her to continue. “I loved him, and then, I don’t know what happened.” Courtney had no medical insurance and no money to pay the hospital. The hospital allowed her to hold her son for a moment. I do not know how long she was hospitalized or how much time she had with Sebastian, but it is subjective. To her, it will never be enough. Housed and insured, a mother would have decades with her son, the privilege to watch him progress and grow. But Courtney was given a moment to hold his lifeless body. That was all the time they were allowed together. A housed and insured mother would have therapy and a community to mourn his death. She would have a support structure, grief counseling, and pathways. A housed mother facing such a loss would never recover the full measure of her loss, but she would be allowed to acknowledge the loss. Courtney is given no time to recover. She has no one to talk to and no space to grieve. No one recognizes Courtney’s loss. Fundamentally, Sebastian is the reason Courtney chooses to speak to me. He is the reason she attempts to stay clean enough to remember who I am, to communicate how to meet with her. His existence is why she is willing to share the most intimate details of her life with a community of scholars who did not mourn his death. Her motivations are deeper than academic curiosity. What drives her throughout this work makes me feel a sense of shame. I am trying to complete a work of academic prestige and satisfy the initial shock that brought me here. But she wants you to know. She wants someone to know that her son exists. She cannot say it in the past tense. She explains that “I just started crying. I was all alone, nobody was there.” She gave birth without a partner and the staff left her alone to mourn. The hospital said she could come back for Sebastian’s body, but she never did. She doesn’t have any money to bury or cremate her son. There was no wake. She had no funeral. She had mere minutes to say “hello” and “goodbye” to her only son. Since then, she has been prevented from adequately feeling his loss. Without family and friends, she has no one to talk to about 121 Sebastian. She is constantly depressed but has no time in which she can give voice to her depression. Rituals of death do not exist on the Greenway. What need is there to mourn death when it is life that offers misery? As Courtney talks about Sebastian, she begins to sob. Between desperate gasps of air, I can hear her tell me that she will never see his first day of school. She tells me that she had an opportunity for everything she wanted, and she threw it away over an abusive boyfriend and a crippling drug addiction. Her boyfriend will beat her if she cries, and he doesn’t want to talk about Sebastian. Chance is deeply connected to our relationship with time, as if time and chance are branches from the same tree of existence. We fall in love because of where we are situated at a particular moment. A person like Courtney can fall victim to chance. She never decided to become a victim. She did not decide to lay on the ice as her son’s birth morphed into his death. Courtney was evicted from the hospital without a penny, childless. She returned to her tent to find that all her possessions had been stolen. She was forced to start over. Having given birth just the day before, she was back on the streets trying to find food and protection. On the Greenway, housed pedestrians avoid her. People with apartments and houses take photos of her as they pass the walking bridges over the path. The flash of their cameras mocks the scars of the street and its people. Fascination draws many to the bridge that straddles the Greenway. There, they observe Courtney like an animal in a cage. Though the photos cannot reflect reality, both parties see the bars. This observation is not drawn from stories but from observations. The Greenway is a stretch of land donated for public use. The purpose is not to house the homeless, but to provide a recreational path for everyone else. The spot where most of the tents gather is in a dip; the arc of the bridges causes it to feel like a cage. Those who bike through the area often yell at the homeless to wear masks, as if Covid is the key threat to a community left unhoused in a Minnesota winter. Some walk the path and stop to take photos like souvenirs. Others capture the view from the bridges. In a small parking lot at one end of the block, ‘zookeepers’ from nonprofit organizations and churches hand out food and coffee. The timing is predictable; the ‘animals’ begin to gather before the van or truck arrives to distribute the meager sustenance. But if this is a zoo, it is those in the cages who pay the price of admission. 122 As I spend more time with Courtney, I see that she is still trying to mourn her son, but she has no space and no time to do so. A few moments to hold her deceased son is all that she was allowed. I cannot think of a greater pain than the agony Courtney must feel. It is granted that I will never birth a child and I cannot fathom that connection. But this was especially important for Courtney. She has so little in this life. Even her past is eradicated by her addiction and her circumstances. Most people on the Greenway have lost connections with family as well as with their memories. They are defined by the endless repetition of their addictions, trauma, and struggle for survival. It is a recurring observation that the traumatic memories remain even after all the happier images are stripped by addiction. The individual becomes an archive of that individual’s worst moments. As it is with the nature of time, Courtney has no conceivable future. A child is all she ever wanted. She tells me that she always wanted to be a mom. She wanted to give her son more than she had and help him avoid the paths that led her to the Greenway. Children are a demarcation of time. She wanted to watch her son grow, to celebrate birthdays, and to see some progress in her world. But that is a luxury that the homeless do not have. In later interviews, I will learn that Courtney has had a miscarriage as well. The loss of two children has tormented her. Without healthcare, housing, food, or any assistance her life appears hopeless. Progress is impossible as she struggles to survive one beating after the next. One night of avoiding being shot. One day trying to get high. One hour trying to be okay and forget the death of her children or the circumstances that ruined her life. The cities are full of wealth and affluence and yet here is a woman who cannot afford more than two minutes to mourn her son. Even our metaphors involve financial exchange, as the question of time is always “what can you afford?” What is worse than the pain is that she feels guilty for the pain. She feels bad for feeling bad and abuses herself for causing all the turmoil of her life. In her mind, she murdered her baby. She repents each day. She identifies the drug addiction and abuse as punishment for her life. The moment her son died, she was shattered. Without counseling or a space to grieve, she cannot move forward. 123 Courtney’s grief is juxtaposed by the tourists who take photos and call down on her. It is compounded by my own ignorance and obliviousness. I have witnessed a dozen women like Courtney in court each week. And yet, I have never seen any of them. I know them as case numbers but not as people. Our timelines intersect for a brief instant. The court calls their case, we issue a sentence, and then we part ways. They return to the vicious cycle, and I move forward. Toward celebrations, challenges, and external markers of progress. The timeline of law is oblivious to Courtney. We maintain an ignorance of her struggle and her humanity. I have stood by the burning toilet paper and sanitizer for warmth, and I cannot imagine what it is like to depend upon such meager comfort for survival. I have felt threatened and in danger on the Greenway, and my experiences are just a fraction of what she has experienced—only a fragment of what everyone on the Greenway experiences. Before beginning this research, several law enforcement officers said they wouldn’t enter the Greenway without a weapon and a flak vest; they strongly suggested I choose a different topic for my work. On a few occasions, Courtney calls 911. No one responds. The only times I see law enforcement, they are holding eviction notices or guarding a bulldozer. But everyone in uniform knows what this place is. If I had fully known the danger, I do not know if I would have chosen to step into this. My ignorance versus reality seems to compound the idea that ending up on the Greenway isn’t a choice. I did not speak to anyone who chose this, knowing what it was. In interview after interview, Courtney sobs and says his name. My experiences with the death of family members cannot compare to Courtney’s loss. In facing my own losses, I had space and time to mourn. I was allowed the time to recover and heal. Her loss is not immediately relevant to administrative law or our legal institutions, but it should be. The fact that her subjection to time and her inability to mourn are “externalities” in the context of law is part of the problem. The critical issues that prevent Courtney from accessing stability and housing are disconnected from the legal analysis adopted by policymakers. As lawyers and scholars our framing precludes recognizing the intangible things she needs most. Nothing about her circumstances is a factor for housing or a consideration in criminal sentencing, but it 124 should be. How we treat each other and the perspectives we take are foundational for our laws. For Minnesota residents, integrity in law must start on the Greenway. It must exist in the bureaucracy and the administration of agencies. An adequate framework of law must protect Courtney’s ability to mourn the death of her son. 5.8 What Contextual Time Looks Like in the Law For the law to recognize the contextual nature of time, it must recognize Courtney’s needs. It must give her time to mourn. But the ability to mourn is only possible when the immediate needs of survival are satisfied. Providing Courtney with the space to grieve means alleviating the concern that she will freeze to death during that process. Courtney needs housing, but she needs therapy for the trauma this past year—and all the others. She needs help with an addiction that is so cripplingly severe that even the life of her son was insufficient for her to quit. When the law minimizes the power of that addiction, it conveys to her that she was incapable of loving her child. Instead of judging her, as I am guilty of doing, we need legal options to help her. Few people can relate to an addict on the Greenway, but a mother who lost her son should speak to our universal humanity. It is from that place that Nussbaum would have us construct better laws and policies. That is the entire meaning of critical examination, connection to humanity, and imagination. We need to start our analysis with the mother who is trying to grieve loss. Not with the prostitute we have labeled a social blight on our society. I cannot help but wonder if our disregard of Courtney is because she exists outside our collective construction of time. If Arendt was correct, then being enslaved by animalistic time puts Courtney outside of humanity.278 If Nussbaum was right, then Courtney is not living a dignified life.279 I wonder if that is why judges and lawyers disregard Courtney. The language of law and the timeline in law places her outside of our field of vision. This is the story that Courtney wanted you to hear. She wanted you to 278 According to Arendt, to be controlled by biological time is to be reduced to the status of an animal or slave. Non-human entities lack the ability to craft meaning. It is the human ability to create time that allows us to engage and define ourselves. See Hannah Arendt, Supra 249. 279 The core of her ten capacities is organized around a dignified life. See, Martha C. Nussbaum, Supra 124. 125 know her son. And yet, I wonder if your perception of time and your formalities of Techne will allow you to see what she is trying to say. It is from this place of trying to understand that we need to find a new way of legal interpretation. That is what Context Theory proposes. It is a method of seeing the law and asking about the necessities to living a dignified life. I hope no one thinks that burning hand sanitizer to survive is consistent with the dignity we owe to human life. A dignified life cannot exist in the same space as the denial of time to mourn the death of your son. And yet, this is the reality our laws and institutions created. I am desperate to understand how the laws allowed Courtney to live in these conditions and how we can make improvements to alleviate this kind of suffering within our state. The first step requires us to change the narrative of law by incorporating Courtney’s story. Nussbaum’s ten capacities can be applied just as easily to the narrative of the law as to what is needed for a dignified life. Before emotional capacity can be affirmed, it must be recognized. Before the law can recognize the importance of emotional capacity, scholars must allow emotion into their analysis. The first step is emotional. The first step is the anger of readers who hear Courtney’s story and begin demanding a better model of law. 5.9 Law’s Linear Time, an Antagonist to Reincarnation Time is not recognized within legal scholarship. Most likely, it is too abstract for the firm grounding of law. This is likely why Nussbaum based her ten human capacities in more concrete concepts such as emotional and environmental control. But even the most concrete solutions are erroneous without resolving the underlying issues. Without addressing underlying causes, solutions such as voucher programs and housing assistance are destined to fail. Conventional efforts maintain that vouchers and housing are the solution to homelessness. Though Courtney does want housing, her solution is more complicated. The insights Courtney offered during our interviews are supported by research. Minnesota is in triage with stories like that of Corinne Lewis, a 59-year-old grandmother 126 who waited six years for a housing voucher and lost it before she could secure housing.280 Most scholars attribute the failure of programs to end homelessness to the lack of federal funding. Rice and Sard have tracked the decline of federal funding within the state of Minnesota since 2004. In 2004, the state decided to end homelessness by 2010. However, between 2004 and 2010 homelessness only increased and the state lost more than 700 housing vouchers due to declines in federal support.281 One fundamental flaw in the existing voucher programs is the legal discrimination against the homeless. Eleven states prohibit private landlords from discriminating against individuals with Section 8 vouchers. Minnesota is not one of those states. Bell, Sard, and Koepnick found that states with anti-discrimination laws have a lower denial rate and greater success securing stable housing for homeless individuals. In non-discrimination states, there is a 14.8 percent denial rate of vouchers. This is compared to a 78 percent denial rate in states that allow landlords to discriminate against Section 8 recipients.282 Living in a state in which discrimination is allowed means that even if Courtney secures a voucher, she is unlikely to find secure housing in which she can use that voucher. With a housing crisis that leaves young professionals desperate for any space available, what incentive is there for a landlord to rent to homeless individuals? Housing vouchers also require Courtney to find the landlord and secure an inspection of the property. This is where time becomes a critical component that current legal scholars fail to consider. Courtney takes multiple buses to get to vacant apartments for rent. Each ride on the bus costs her money out of pocket and each ride can take multiple hours. She can spend her entire day on the bus trying to review apartments to no avail. 280 Marlys Harris, After six years, she finally got Section 8 housing – and then lost it, (April 15, 2013), online: MinnPost < https://www.minnpost.com/cityscape/2013/04/after-six-years-she-finally-got-section-8-housing-and-then-lost-it/?gclid=Cj0KCQiAhf2MBhDNARIsAKXU5GSHXBzwWVBzmS8q-ujQKJg3hjbnii_Bt-5RGqBrIQVjhEtpuwYrt64aArNyEALw_wcB.> 281 Barbara Sard & Douglas Rice, Cuts in Federal Housing Assistance are Undermining Community Plans to End Homelessness, online: Center on Budget and Policy Priorities <https://www.cbpp.org/research/cuts-in-federal-housing-assistance-are-undermining-community-plans-to-end-homelessness> 282 Alison Bell, Barbara Sard, & Becky Koepnick, Prohibiting Discrimination Against Renters Using Housing Vouchers Improves Results, online: Center on Budget and Policy Prioriteis <https://www.cbpp.org/research/housing/prohibiting-discrimination-against-renters-using-housing-vouchers-improves-results> 127 Without help from the state and without someone to help her navigate the system, she is predestined to fail. But time is not such an easy thing to fix, and transportation is beyond the scope of this project. Additionally, housing is not the primary thing that Courtney wants. What Courtney explains is a greater failure of the state to assist homeless individuals. She complains that even those who secure a voucher and find housing are left without assistance. A voucher provides an individual with four walls and a roof, but it does nothing to help with addiction, trauma, or grief. Legal scholars are singularly focused on defined problems. Scholars see homelessness as the mere absence of housing, but they fail to look at greater issues; they do not seek to understand the concept of a ‘home’. Courtney has more insight into her needs than any of the social workers, agencies, or non-profit organizations interviewed. Her proposed solution is a complete integration; housing with therapy, cognitive training, job training, food security, and a space to recover and reestablish a stable hold on the world. Her insights help me generate questions for the next round of interviews. I want to know more about the isolated silos that constitute the state’s administrative agencies. My curiosity is also piqued by the absence of any social workers on the Greenway. Fortunately, the opportunity for a candid discussion presents itself with Roy Willett. 128 Chapter 6: From Behind a Desk I am not a client, a customer, nor a service user. I am not a shirker, a scrounger, a beggar nor a thief… I am a man, not a dog. As such, I demand my rights. I demand you treat me with respect.283 His name is Roy Willett. He is not a homeless individual but an employee for the Department of Human Services (DHS) with the State of Minnesota. Throughout the course of this work, I had the opportunity to interview the mayor’s office, the county commissioners, and numerous program directors for various housing programs. Among all the interviews conducted with agency officials, Roy is the only one included in the final product. This is not to suggest a lack of value in the other interviews, but the perspective Roy offered was unique. Roy is a stably housed individual who manages to embody the perspectives and needs of the homeless population. Among all the agency interviews, Roy was the only individual with experience on the ground. He expressed concerns that agency policy is directed by academics and political hires. What I heard from Roy was that the agencies are increasingly bureaucratized. Policy is drifting further from the Greenway and settling itself within academic theory. Most importantly, Roy provided proof that the Context Theory of law can work in an agency setting. His compassion and advocation for those in his care have placed him in a precarious position within the agency, but he holds firm and defends those in need. Roy is one individual. But he is making a real difference. He changed my perspective as I reviewed our interviews, and he gives me hope that we can make the agencies work for those in need. 283 Margaret Doyle & Nick O’Brien, Reimagining Administrative Justice: Human Rights in Small Places, First Edition, (Palgrave Pivot, 2019). 129 6.1 Roy Willett, An Uncommon Kind of Man Among Silos of Classification I chose to speak to Roy because his agency, the Department of Human Services (DHS) has a direct hand in serving the homeless population. It is also worth noting that Roy is a former minister. Perhaps the educational difference between a minister and a lawyer explains the division between him and the lawyers who shrug at the homeless conditions. Whether by education or inherent disposition, Roy has a gift for listening. Even during our interview, Roy managed to make me feel like I am the one being heard. As I took his testimony, I identified Roy’s ability to create time and space; his gift has been sharpened by years of listening to the silence between words. Roy has the specific skill Courtney needs. As lawyers, we are trained to extract testimony. We ask questions with knowledge of the answer and with a predetermined goal. That is not how Roy asks questions. Roy builds space and recognition. He allows the individual to elicit the testimony without agendas. As I interviewed Roy, I could not escape a simple question: If DHS has people like Roy, then why does the problem persist? Understanding Roy’s skill, I examined how the state was using his gifts. As a social worker for Minnesota, Roy wears two hats. He is a Skills Development Specialist and a Designated Coordinator for Community Based Services. The titles already establish an issue. To me, and what I imagine to be most people, the dual roles that Roy is forced to fill is a bit confusing. Both job descriptions require some explanation. And then there is the explanation needed for why one person is serving in two positions. Luckily, Roy is not only an expert listener. He explained concepts and situations with patience and care. What the dual role means is that Roy is responsible for developing the care plans for individuals who are adjudicated into the state system. Roy develops plans with one hat, and then implements those plans with his other hat. The fact that two hats are strangely united within Roy’s duties means that they are divided for everyone else. If Courtney is placed into DHS for assistance, it is possible that one social worker will write the plan and another social worker will implement it. That issue aside, neither plan nor implementation can occur unless someone like Courtney is allowed to seek care from DHS. 130 Tackling homelessness would logically fall under the purview of DHS, and it does, but the umbrella is not as expansive as it should be. Roy only has power to help when the Courts grant him authority. In practical terms, the court has discretion to direct anyone unable to tend to their own needs to Roy. Throughout our conversations, he talked about his experiences in the courtroom. His voice fluctuated between the cold, methodological language of the courts and the warmer, more emotive dialect of the population he serves. In assessing his skills and the intended purpose of Roy’s work, I saw hope for individuals like Courtney. I saw a possibility for those deemed in need of services by our courts. But serving those I might identify as most in need is not exactly what he does. Roy’s job requires that he writes programs and structures daily therapy for individuals. He also designs staff training, program writing, and works with psychiatrists and psychologists on issues of individual medication. The combination of services echoes Courtney’s expressed needs. When asked directly “What do you need?”, Courtney suggested a comprehensive program. Not just housing, but job training, rehabilitation, therapy, and a life coach. Courtney told me that the problems she faces are far greater than housing instability. Her issues encompassed every aspect of life and education of which she had been deprived; in many ways, her perpetual moment of trauma trapped her in the mind of a child. To heal, she needs guidance on everything from what to eat to how to budget to how to build basic relationships. But we do not provide the services that she needs most. Our institutions lack the ability to see the whole person; rather, each fragment of her broken circumstances is plucked individually for inspection. Roy works at a comprehensive level and has had remarkable success in his work. But Roy is unique. When Courtney was fortunate enough to receive assistance, services were isolated into specialized departments. This approach is generally referred to as agency silos. The state lacks the ability to meet the needs of the complete individual; instead, it offers to meet one of a person’s individual needs. 131 According to Steve Bundred, the effect of isolating specialized services into individual silos is the fracturing of knowledge and creation of agency competition.284 What Bundred described in academic literature is exactly what Courtney described in her experience. She can receive drug treatment from one agency but needs to apply for another agency if she wants therapy for trauma. Food stamps are a separate entity, and so is the housing authority. She can receive job training, but that is difficult to find and none of the agencies are entirely certain of the process or responsibilities. Each agency gets a glimpse of Courtney. By spending fifteen to twenty minutes with her, each agency views her through a sliver of broken glass, only noting the momentary reflection it captures. But none of them see her as a complete person. None of them know the complete story. This means that none of the agencies are working with her comprehensively. And those who are writing the policies on what assistance she receives and how she can receive it are not the same people working with her directly. The law alienated Courtney from those who provide care. Just as it alienated care providers from one another. Roy works the way the law could. He serves as a connective agent to bring various components together. What Courtney needs is a Roy. One person to see her as a person; someone to help her grieve. But she also needs him to organize the administrative chaos that is homelessness. Roy’s job allows him to determine when individuals take medication and how they take medication. He also works around therapy sessions to build a complete integrative plan for 24-hour care for people placed in his care. Roy works with a collage of experts to serve each client as a whole package. Courtney is high functioning, but like most of the people on the Greenway, she needs assistance. Most individuals I encounter need medication, therapy, and training. Many do not have a high school diploma; some admit they do not know how to cook an egg. Even if vouchers provided reliable housing, it would not be enough. I asked Roy if he has ever worked on the Greenway. Confidentiality prevents him from discussing any specific cases. The private details of an individual’s struggle belong 284 Steve Bundred, “Solutions to Silos: Joining Up Knowledge” (2006) 26:2 Public Money and Management, DOI: 10.1111/j.1467-9302.2006.00511.x 132 to them. I am mindful of this just as I am mindful that the only information included in this work is that which participants specifically wanted you to know. But just as my respect for the privacy of these individuals limits my recitation to general information, Roy could only speak in general terms. He could only tell me about past cases in nondescript language. He could connect his experiences with Courtney’s story. He didn’t answer the direct question, but the information I needed was there. 6.2 Inhuman Services on the Greenway During our interviews, Roy told me about a particular individual who came into his care from the streets of Minneapolis. A migrant from Somalia, she was referred to him while homeless. Roy does not say that she came from the Greenway, but the demographic is similar. Courtney is Indigenous. The sad reality is that every official participant in this work, everyone who testified from the Greenway, is a minority. In fact, the only Caucasian participants who cooperated with official interviews were those with power. Individuals such as Roy, the Mayor of Minneapolis, or County Commissioners. Roy does not tell me that this nondescript person came from the Greenway. But she was Somalian, homeless, and from Minneapolis. What Roy explained is that she was a common case for DHS; from the broad strokes, she was also representative of the interviews collected for this work. The predictable risk factors existed. The way trauma spirals into tragedy was all too familiar. She was an individual who bounced around from family member to family member. The only difference I could see from this person and those currently on the Greenway was that she had family. Among those on the Greenway, it was a rare privilege to have a family member with whom you could stay when it was dangerously cold. It was simply another unexamined privilege; the ability to call for help. Even more vital, the expectation that someone would answer that call. Most of the people on the Greenway do not have family they can call for assistance or support. Or their family is in the tent with them. They sleep in alleyways, tent cities, bus stops, and unimaginable locations. The unidentified woman Roy told me about was of interest to me because of the gap we see between mental health, addiction, homelessness, and adjudication. The gap between the needs of the tent community and 133 the services our agencies provide is incredible. And according to scholars on the subject, the gap is getting wider. There is more need and less support. Marta, Felgueiras, Bauer, Einarsson, and Cancellieri studied this gap extensively.285 What they described was the gap that occurs for people who are “too well off” but cannot afford basic services. The gap occurs when someone gains employment and makes minimum wage. Theoretically, they can pay their bills and no longer need the state’s support. Such individuals fall off a cliff and lose their services. Minimum wage does not provide insurance. There are no benefits. At minimum wage, individuals working full time cannot afford to pay their rent. Scholars are adamant that minimum wage is no longer sufficient, but it remains the threshold for denying benefits. Liana Fox studied minimum wage and reasonably concluded that it is approximately forty percent below the poverty line.286 This means that an individual on minimum wage would need a forty percent pay increase before they could provide for their basic needs. Fox’s conclusion did not include luxuries or entertainment. Basic human functions, excluding the particularities which most of us consider vital, are beyond the working class. This concept is incredibly helpful when looking at housing on the Greenway. Interviews with nonprofit organizations revealed that the Area Basic Income (ABI) for Minneapolis is approximately one hundred thousand dollars per annum.287 That means the government expects the average person in a Minneapolis suburb to make a hundred thousand dollars a year. The Department of Urban Housing and Development sets housing assistance at thirty percent of the ABI. So, for those needing assistance, low-income rent is established at thirty thousand dollars a year. According to the Minnesota Minimum Wage Report from 2021, individuals on minimum wage can expect to earn between seventeen thousand and twenty thousand dollars a year.288 285 Marta Rey-Garcia, Ana Felgueiras, Annette Bauer, Torbjörn Einarsson, Giulia Cancellieri, Social Innovation for Filling the Resource-Needs Gap in Social Services: New Governance Arrangements, First Edition, (Routledge, 2018). 286 Liana Fox, “Minimum wage increasingly lags poverty line” (2007) Economic Policy Institute 287 Data on ABI was collected from the Powderhorn Park Neighborhood Society. I am grateful for the group of volunteers working to help their neighbors. They helped provide access and information when it was needed. 288 Research and Statistics, Minnesota Department of Labor & Industry, Minnesota Minimum-wage Report, (David Berry, Brian Zaidman, Ender Kavas, & Gideon Ondieki, 2021). 134 While minimum wage and the resource allocations available are far from adequate, the problem of homelessness necessitates additional steps prior to evaluating wages. The idea that anyone on the Greenway can work 40 hours a week, without substantial assistance, is laughable. The potential of participants is extraordinary, but their lives are riddled with addiction, trauma, and obligations of survival. They need help before they can work. This means that Roy and those who are like him cannot serve the general homeless population. His mandate is to serve those the court deems in need of services. This is an interesting bar and an elusive standard. We have created a legal fiction and people like Courtney do not qualify. Somehow, the homeless are too poor and too unstable for the state to assist them. We cannot hide from the fact that we created the legal standards. Our courts determine when someone is so incapacitated that they need assistance from the state. There is even a statute for courts to interpret: “Incapacitated person” means an individual who, for reasons other than being a minor, is impaired to the extent of lacking sufficient understanding or capacity to make personal decisions, and who is unable to meet personal needs for medical care, nutrition, clothing, shelter, or safety, even with appropriate technological and supported decision making assistance.289 The meaning of this language is a matter for the court to decide. But there should be no doubt that Courtney cannot provide for her “personal needs for medical care, nutrition, clothing, shelter, or safety.” I heard the gunfire. I saw the scraps that were once her tent. And yet, my testimony would not suffice to get her the services she needs. Her immediate danger is insufficient. The legal standard we created tries to balance between an individual’s autonomy and our communal obligation to assist those in need. The act amounts to a funny fiction beyond the scope of this work. Our laws place such priority on autonomy that we would rather allow someone to die and suffer as an independent person than provide state services. Of course, the preference for “autonomy” is notably defined by those who are 289 Minnesota Statute, §524.5-102, 2022, subd 6. 135 not in need of state services. That is, those without the choice before them choose “respect” over survival. One wonders about our motives and whether we truly respect Courtney’s dignity when we refuse to sponsor her therapy or food. It is also interesting, and within the scope of this work, that our government has a framework in which we are amenable to providing government support. To some extent, we do have Nussbaum’s ten capacities built into law; they are just hidden. Somewhere we drew a line between acceptable government interference and unacceptable intervention. Legal scholars argue that the primary root for civil commitments is the parens patriae theory for governance.290 Parens patriae is Latin for “parent of the fatherland.” The theory holds that the state is obligated to tend to citizens who need assistance and cannot attend to themselves. But for some reason, we push homelessness to one side of the parens patriae and exclude it from more extensive services. Legal Scholars have even developed theories of assistance which could be used to help. James Wright provided one theory behind our assistance. In his work “The Worthy and Unworthy Homeless” Wright argued that we differentiate people based on our perception.291 Wright argued that the worthy homeless are those who are struck by misfortune. This might be a medical condition, an accident, or any event beyond their control—any event we can foresee happening in our own lives. He compared this to the unworthy; those who are homeless by their own hand. The unworthy are those like Courtney. According to Wright, there is a narrative of choice.292 Courtney chooses to do drugs, so she chooses to be homeless. It is her choice that allows us to legally differentiate her circumstances from those that require intervention. We can justify our absence of help due to her decisions. But I expect Nussbaum would challenge this distinction. Human dignity is not a matter of choice. After close examination, I see no point at which Courtney made a decision to abandon love or play. I cannot find the precise point in time when anyone on the Greenway decided they would rather live in a tent than feel a sense of meaning and control. If we 290 George S. Swan, “A New Emancipation: Toward an End to Involuntary Civil Commitments” (1973) 48:5 Notre Dame Lawyer 291 James D. Wright, “The worthy and unworthy homeless” (1988) 25:5 Social Science and Public Policy: Welfare, Black Crime And The Homeless, DOI: 10.1007/BF02695744 292 Ibid. 136 consider Nussbaum’s ten capacities as a floor for dignified living, we lose the capacity to make arbitrary decisions regarding who is worthy of help. Under this approach, we would start with dignity. Questions of income or fault could only be addressed after the establishment of dignity. Those within the institutions have more of a choice than Courtney. The legal tool we currently use is discretionary. Those who wield it have the comfort with the capacity to deliberate and extend resources. Our tools are deployed by a county’s district attorney, but I fail to see it used for those freezing to death on the Greenway. The standard used by the courts is whether an individual is a threat to herself or others. Minnesota law specifically states that an individual can be placed under Roy’s care when “the patient has a mental illness or developmental disability or is chemically dependent and is in danger of causing harm to self or others…”293 A review of the statute shows that what the legislature contemplated was nothing less than ensuring the human dignity of everyone. No attorney or judge will claim that they are trying to effectuate a withholding of human dignity. And yet, we fail to help thousands every day. Those who are chronically homeless and constantly in danger do not qualify for services. 6.3 The Choice Not Given, Respect Versus Survival No one asked Courtney her opinion on the statute. When the committee came together to debate the language, Courtney was not invited to the table. If Courtney finds herself in the courtroom, the judge will give her courtesy’s input on what she wants to happen, but the ultimate matter is decided by experts. Experts are the legal term we give to scholars. Scholars will determine if she meets the definition for assistance, but will scholars listen to Courtney when she tells them what she needs? Crucially, when Courtney has encountered the law, she was not brought before a judge who could decide if she qualifies for Roy’s care. Instead, she was put in jail. Experts decided she was a criminal before a judge had the opportunity to determine if she needed assistance. As a criminal, she doesn’t qualify for Roy’s help. 293 Minnesota Statutes § 253B.051, 2022, subd 2. 137 Independently, Roy does not have the power to commence care and the law providing for care does not apply strictly to homelessness. In 2019, Minnesota suffered 103 official deaths of homeless individuals who died from exposure or drug overdose while in tents.294 This number precludes the number of homeless individuals who died of subsequent consequences from the lack of shelter, nutrition, and comorbid conditions brought on by addiction. As temperatures dipped into an arctic freeze, there were no officers or social workers helping the tent community. People simply died and were not discovered until someone else began rummaging through their tent for supplies. If given the opportunity to be considered by the court, most on the Greenway could be adjudicated and committed into the care of Roy and DHS. That is where we lack the resources to adequately implement the law. That is where Roy can help us see what is necessary to help those in need, but we need to advocate for a greater government role. Legal scholars have argued that if the standard to commit someone like Courtney is too relaxed, we remove autonomy from individuals. The academic debate about care was illustrated by Michael Fine. In “A Caring Society” Fine considered who should decide what counts as care, who should extend care, and how care interacts with individual autonomy.295 Fine made compelling points for a democratic society. From his perspective, a judge or lawyer verged into authoritarianism if they became arbitrary; withholding or directing care based upon their personal judgment. To Fine, values of human dignity are a collaborative construction. If the collective agrees that Courtney does not deserve the resources Roy can provide, then it is not for one scholar to change the entire direction of administrative law. The counter to Fine’s strawman fear of authoritarian judges was presented by Iris Young. Young and Hunold considered this issue in their essay “Justice, Democracy, and Hazard Sitting.”296 What Young identified was that we already have a degree of authoritarianism in our legal language for care. Fine assumed that a deliberative process determined that Courtney did not need assistance. But Courtney was never at the debating 294 Michelle Bruch, Supra note 6 295 Michael D. Fine, A Caring Society?: Care and the Dilemmas of Human Services in the 21st Century, 2006th Edition, (Red Globe Press, 2006) 296 Christian Hunold & Iris Marion Young, “Justice, Democracy, and Hazardous Siting” (2002) 46:1 Political Studies, DOI: 10.1111/1467-9248.00131 138 table. Whether a judge decides her case based upon compassion or based upon the flip of the coin, both outcomes are arbitrary to Courtney. She is a part of our democratic system, and she is currently denied a voice in her own future. The articulated concern from Young and Hunold is that our procedures do not allow Courtney a voice in the process. They noted that “public officials rarely consult groups that lack effective organization, because they have few incentives to do so or are unaware of their existence.297 The definition of need is based upon the elite, those who already fall into an identifiable, organized group. Need is based upon their world view and perspectives. This makes any argument that extended services would violate Courtney’s autonomy fallacious. Scholars who crafted such arguments never considered asking Courtney what she wants. Our modern division of worthy and unworthy made the choice for Courtney. Our system condemned her and then declared it was for her “own good.” Our legal divisions are a metaphysical line between those we find to need assistance and those we determine do not. Rarely do we think about consulting them, and when we do, rarely do we treat them as anything other than data. The Department of Urban Housing and Development provides funds to make Section 8 vouchers possible; this is an example of parens patriae. By this one example, we already crossed the arbitrary line in attempting to provide some care; we simply fail to provide adequate care. The extent of our public welfare, when we extend help and when we promote independence, is debated among economic theorists. Most scholars argue about some degree of self-interest. This argument was presented in the analysis of economist Olli E. Kangas.298 Kangas provided a survey of the economic literature that argued welfare is a class based determination. If enough people like Courtney can mobilize, then they can create a coalition for government support.299 The alternative is still self-interested. If the economic powers can provide just enough support, they can keep Courtney from mobilizing and asking for more. Neither theory bodes well for returning dignity to the administration of homelessness. 297 Ibid. at 88. 298 Olli E. Kangas, “Self-interest and the common good: the impact of norms, selfishness and context in social policy opinions,” (1997) 26:5 The Journal of Socio-Economics, 475-494. 299 Ibid. 139 Context Theory merely hopes to see individuals placed back into consideration in a meaningful way. Not as voters, economic earners, or scatterplots, but individuals within a contextualized life that includes meaning and value. This proposition was the motivation articulated by Nussbaum, Arendt, and Young. When I spoke with Roy, it struck me that he didn’t need citations or reminders to treat Courtney with humanity. But the legal community is sustained by footnotes and Immanuel Kant provides vital authority in the debate. Kant provided an academic articulation of the golden rule, which strikes against the economic measure of an individual’s value. act that you use humanity, whether in your own person or in the person of any other, always at the same time as an end, never merely as a means.300 Individuals, no matter what their circumstances, are not voting blocks for elections or statistics for funding. It is easy to read this as a shaming of institutions, but Context Theory found that the problems are more nuanced than good and evil. Agencies are exhausted, underfunded, and continuously obstructed from treating individuals as people. The problem stretches much deeper than the organizational structure or federal funding. The fundamental flaw revealed in the research is the legal system’s failure to prioritize human care. Context Theory provides a framework through which to integrate empathy and care into the legal system. The research found that the theory of parens patriae can be utilized to implement Nussbaum’s ten human capacities. The first step requires that we include voices of the homeless in the dialogue. Agency meetings, where decisions are made, exclude their voice. Courtney knows what she needs better than those who have never spent a night in the tents. She knows what she needs better than I do. DHS and HUD can prove that they value human dignity by incorporating those who are impacted into the decision-making process itself. There may be no substantive change, but at least Courtney or her neighborhood representative would get a voice. At least they would be given an opportunity to speak and exist as more than numbers. The process of law is one thing, and the substance of law is something else. With a homeless perspective, agencies can begin to use the law to implement services with a 300 Immanuel Kant, Mary Gregor, and Christine M. Korsgaard, Groundwork on the Metaphysics of Morals, (Cambridge: Cambridge University Press, 1998, 1785). 140 new direction. The orientation Nussbaum suggested would have our agencies provide services when an individual’s standard of living falls below the dignified levels. This is not such an easy change. After procedural adjustments to include the voice of those on the Greenway, we need a dedication in law to provide more social workers on the ground. Roy used to spend entire days on the ground. He used to work in homeless shelters and meet individuals where they lived. Roy doesn’t do that anymore. He is centrally located in one facility while the problems remain inequitably dispersed. The problem is bigger than Roy. 6.4 Barriers to Context and Rottweilers on the Greenway On the Greenway, I never saw a social worker. I saw a few individuals who brought food and blankets, locals without any government affiliation. I saw church groups. I saw a few non-profits. The only presence from the state was law enforcement. The tenure of their presence was palpable. Law enforcement were there to enforce and arrest. Individual officers may have had high intentions, but they did not have the resources or training to provide meaningful assistance. To adopt Nussbaum’s view of human dignity, we need to take administrative procedures out of office spaces and get capable individuals into daily contact with the tent community. We need to get people like Roy back on the street. It was clear that Roy was frustrated with the state and the system. He is not alone in that frustration. Throughout interviews with social workers and agency employees there was a continued theme of frustration. Through my work with the homeless, I saw the roots of that frustration. I saw how the perpetual moment of each individual proved a barrier to services. Courtney provided one of the more memorable examples of this frustration effect. As much as I wanted to help, I struggled. And I did not have hundreds of clients or the complications of balancing numerous appointments. Roy spends his whole day organizing client affairs, meeting professionals, and providing services. I was trying to manage a handful of participants and found it difficult. At times I felt as if Courtney was actively trying to sabotage any efforts to assist her. 141 An important note, my struggle was an indicator of privilege and represented my understanding as a scholar compared to the life of the Greenway. It was easy to grow weary as Courtney repeatedly failed to complete simple paperwork because I was not living through what she was living through. Despite concerted efforts on my part, Courtney never completed basic paperwork required for assistance. I would wait for hours as she sat in her tent for no reason. At least no reason that was discernible to me. At times, I would wait because she was meeting another individual, usually a drug dealer. Still, I tried to encourage her in order to get her connected to assistance; I tried to focus on housing and food. She was rarely interested in those essential needs. Rather, she complained that she wanted a rottweiler puppy. She never asked me to drive her to view an apartment or to connect with a social worker, but she asked me to drive her so she could get a puppy. As frustrated as I felt in moments like that, I cannot imagine how demanding the work is for Roy. I do not know how I would balance a large client load as a state employee. I was frequently baffled by Courtney’s requests. When given the option to purchase fresh food, she would buy candy. When given a hotel voucher by a non-profit, she would leave to visit or stay with her friends on the street. I was pulling my hair trying to illuminate a rational decision and all I could think about was the irrationality of rational choice. From a scholarly perspective, Courtney made every decision incorrectly. From the position of the current literature, therefore, she is labeled as the “undeserving” homeless. In order to change that status, all she has to do is make the rational decision and she could start to build her way out of the street. But the requirement that those in circumstances like Courtney’s make rational decisions in order to be worthy is precisely the problem with the current approach. What I perceive as rational and irrational is based on my training and experience; I have the benefit of being able to see what is considered a rational choice. Courtney does not. At this point in the theoretical framework, Context adds insight into the law and homelessness. The law should not and cannot effectively impose a structure (Techne) upon Courtney and expect her compliance. That reduction of her experiences would be equivalent to drafting a constitution for North Korea and expecting immediate and lasting peace in the region. The construct alone is not sufficient to change patterns of thinking or 142 behavior. Individuals see the world through their own history and experiences. The law developed with a specific worldview that reflects the history and experiences of those who study and practice law. As a legal scholar, to disregard food and shelter in favor of a puppy is irrational. For Courtney, wanting a puppy is as rational as wanting a stable home. My failure to understand her world does not negate her experiences and her analysis of the situation. Neither does my acknowledgment that I do not understand mean that Courtney’s view is correct. What the research observed is that the topic of rational and irrational is addressed in separate conversations that are simultaneously conducted by parties who exist in two separate realities. Not only are the conversations different in the fundamentals, but the distance between the views is impassible. Courtney’s desire for a rottweiler puppy highlighted my failure to understand, as a scholar. In reflecting back on the interviews and experiences, it also brought to light her need and effort to attain one of Nussbaum’s ten human capacities. A rottweiler puppy would not have been helpful in finding housing or security, but I made the mistake of seeing the puppy as the objective end. Our continued conversations were not about a puppy. In the developing context and learning to see the situation, I saw the real issues. It was only long after the fact that I realized I had been wrong. What I saw was only the objective reality from my perspective. Objectively, Courtney was hungry and exposed in the Minnesota winter. Each day was a contest with death but, in my view, she cared less about secure housing than she did about getting a puppy. Maslow’s hierarchy of needs identified safe and secure housing above companionship and play.301 Courtney’s preference was an irrational violation of her needs, at least according to Maslow. In contrast, Nussbaum did not place her capacities in a hierarchy. When the ranking system is removed and the needs are simply identified, the puppy would be a rational choice for Courtney to want. The discussion about a puppy continued for a few weeks. Each time it was raised, I was trying to help her complete paperwork, secure housing, and move toward a more “dignified” life. It took an embarrassingly long time to see my violation as the same violation committed by the agencies. I determined what was in Courtney’s best interest 301 Abraham Maslow & K. J. Lewis, “Maslow’s hierarchy of needs” (1987) 14:17 Salenger Incorporated 143 and pushed her in that direction. This assumption, and the corresponding disregard of Courtney’s expressed feelings, made it feel like I was the only one who was trying to get her off the streets. I got frustrated that Courtney would not listen to me. As I look back on those conversations now, I can see the burden shift to my shoulders. After listening and being on the Greenway, I can identify my frustration as her failure to conform to my perspective—my failure to listen to her lived experiences. My assumptions were wrong. Dissecting my errors is important to understand how we establish similar faults in our legal system. My first mistake, and the first error of our agencies, was that I could not expect Courtney to behave as I would in her circumstances. Use of drugs and alcohol hinder the development of adolescent brains and can ultimately neuter an individual’s cognitive development. Scholarly work concludes that early drug use stalls a person’s maturity from the point of use.302 Courtney began using methamphetamine when she was 12 years old. Before her addiction, she suffered a traumatizing childhood which likely impacted her brain’s development. Courtney ran away from home while she was still a child. Her first pimp gave her drugs and sedated her when she was still a pre-teen. Our legal system would not have considered Courtney an adult when she became addicted, but the system is not designed to acknowledge that her cognitive development has not advanced since that point. Her parents did not immediately report her missing. For weeks, she was subjected to sexual abuse and given drugs to keep her placated. When she finally escaped, due to law enforcement’s intervention, she was already an addict. These pieces of her story permanently altered her ability to grow and exist in linear time. It is important to recognize where Courtney is at in her development if we want to help her. That is what Context is about. Seeing the individual in front of you, with the complete and complicated history that they bring to the situation. The law should adapt to meet Courtney where she is without the expectation of where she should be. In a world in which our institutions adopted that approach, the cruelty of the Greenway could not be sustained. I do not feel good about how I felt each time she asked for a puppy. Though disguised beneath my desire for her to be successful, 302 Lindsay M. Squeglia & Kevin M. Gray, “Alcohol and Drug Use and the Developing Brain” (2017) Current Psychiatry Reports, DOI: 10.1007/s11920-016-0689-y 144 my frustration was a quiet form of victim blaming. Teenage Courtney was not given the opportunity to choose or avoid the path that led her to the Greenway. Addiction was not what she wanted for her life. Now, Courtney has limited control over her choices and her rationale does not align with my worldview. To her, candy may be the rational choice because it is the only joy she can choose.303 It is one of the few choices she is allowed to make. The news is quick to disparage the poor when they uncover instances of people on food stamps buying lobster or steak. That perspective reflects our failures. Poor people desire good food, they want the same things everyone else wants. Somehow, we think they do not deserve these things because of their status. Society does not stop at condemning the purchase of steak or candy; we deny people like Courtney the right to want such things. We deny their experiences and perspective. Enjoyment must be earned through economic production. Though not expressed in those explicit terms, that is the core complaint to welfare programs. “I work hard for my lobster, why should someone poor get it for free?” This position ignores the human want that we all experience. Such theories ignore the Federal Reserve’s reporting that household debt in the United States hit a record of $14.6 trillion in the spring of 2021.304 That means the average household in the country has $90,460 in debt. The majority are eating metaphorical lobster we cannot afford. But because we created a Techne from our perspectives and not Courtney’s, we justify our decisions while we judge hers. Our frustration and expectations prevent us from seeing either the differences or the similarities. Our perspective must shift to see both how we are the same and how we are different. Instead of becoming frustrated over Courtney’s desire to have a puppy, we should try to understand her desire. Scholar James Tully suggested a method for understanding. If correct, understanding is not just a positive tool in law, but it is necessary in the modern age. According to Tully, our increasing multiplicity is bound to generate conflict and tension in the legal system.305 The United States is growing more diverse with race, 303 Matthew Desmond provides an instructive insight on this point. See, Matthew Desmond, Evicted: Poverty and Profit in the American City, First Edition, (Crown, 2016). 304 Bill Fay, Demographics of Debt: Key Figures Behind America’s Consumer Debt (February 2022), online: <https://www.debt.org/faqs/americans-in-debt/demographics/> 305 James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity, First Edition, (Cambridge University Press 1995). 145 religion, and perspectives. What one group defines as just is unjust to another. If law is to continue to exist, Tully encourages us to accept the rationality of the other and begin a process of understanding their position.306 Tully advised us to dissolve our differences and engage in a dialogue until we can establish new foundations. Scholars need to engage with Courtney on questions of “fairness” “justice” and “peace.” I should not lecture Courtney on Nussbaum’s theory. I should discuss the theory with Courtney, understand what it means to her, and begin to look at how we can implement the capacities together. I did not grow up on Lake Street. I have never had to survive on the Greenway. Those in the homeless population have wildly different perspectives on the foundations of law and equity based on their experiences. I was raised in a stable environment, with a healthy diet, and attentive parents. Judges and lawyers have the economic capacity to plan and help others, but they lack the experience to understand what it means to be homeless. All we see is the frustrating inability for homeless individuals to simply quit drugs and get themselves off the street. We judge them for what we identify as failure without trying to view ourselves consistently with their experiences. Scholars have no idea what kind of world exists on the Greenway. For those who are homeless, they understand the situation, but they do not have the resources to create change. It took time and introspection to begin to understand the stories I heard on the Greenway and the behaviors of those who remain there. Courtney grew-up trying to avoid beatings from her pimp. As a child, she was starved and concerned with finding a meal. And now Courtney is trying to avoid freezing to death. She hopes her boyfriend does not kill her while she sleeps or that gang members do not rape her in the night. The frustration and irritation we might feel toward people who are not like us is another, quieter form of abuse. That frustration is an extension of our privilege. Our judgment on moral character precedes any effort to understand. Roy confirmed the research. What he described was what I felt and saw in this work. Social workers are subject to high demands, low controls, and low support. This combination of factors results in high burnout rates and low retention among 306 Ibid. 146 administrative employees.307 The work of Hansung and Stoner suggested the lack of empathy and service is not entirely the social worker’s fault. Poor funding and unreasonable demands on employees makes it impossible for any individual to spend as much time with any client as I was able to spend with Courtney.308 I cannot empathize with those on the Greenway and ignore the struggle of our agency employees. Both groups are placed in impossible circumstances. 6.5 Roy’s Insights and Techne as a Tool Roy helped me understand how difficult it must be to work as a DHS employee. Funding is tight and the legislatures push to cut what little is available. Roy told me that the system is trending away from empathy in favor of “efficiency.” Current research, and my own interviews, conclude that Roy is correct. Scholars indicate that the low level of control comes from bureaucratic centralization.309 According to Joan Arches, we have centralized social services to provide “quality control” and reduce costs. What she expressed in her work is that this has only created high caseloads and a loss of control.310 Lack of control rarely leads to efficient or empathetic outcomes. Social workers are frustrated by low funding and the centralization of social work. Roy said that we centralized services so we could save money. Roy also suggested that this destroyed job satisfaction. He cannot help an individual. Just as Courtney is superfluous on the Greenway, he predicts he will become superfluous in DHS. It is agency policy which controls, not empathy and not the caseworker. This is why Courtney must navigate the web of buses to get to a social worker. It is an example of prioritizing budgets over individuals. In this instance, it is the individuals working as social workers that we undermine. Roy expressed that we give them too little training, too many cases, and too little support. 307 Kim Hansung & Madeleine Stoner, “Burnout and Turnover Intention Among Social Worker: Effects of Role stress, Job Autonomy, and Social Support” (2008) 32:3 Administration in Social Work, DOI: 10.1080/03643100801922357 308 Ibid. 309 Joan Arches, "Social structure, burnout, and job satisfaction." Social work 36, no. 3 (1991): 202-206. Joan Arches, “Social Structure, Burnout, and Job Satisfaction” (1991) 36:3 Social Work 310 Ibid. 147 As individuals burn out of jobs in social work, new employees steps-in to fill the cracks. The new employees do not know Courtney, not like I know her. Not like a caseworker with a stable caseload and support systems in place could get to know her. At the ground level there is little institutional knowledge and almost no working knowledge of the population itself. Courtney and those like her become a name and a number on a clipboard. Overworked and underpaid, those who go into the profession to help people quickly identify they are unable to help people in the current system; the disillusionment leads to understaffed support systems across the country. Efforts to get Courtney off the street are met with bureaucratic regulations. Through interviews and research, I was disturbed to find even agency employees don’t seem to know who makes the rules or how the guidelines are created. Roy said that he has worked with a few people over the course of years. This allows him to build trust and establish a relationship with individuals. That trust is critical when it comes to taking medication and following procedures to help them develop better cognitive skills. Generally, social workers cannot build that same level of trust. It is important to note that Roy is on the verge of retirement. He began in social work before the centralization. He started when it was still possible to form individual connections. He is retiring, in part, because of the changes in DHS. Roy is frustrated by the increasing difficulty of helping his clients, for reasons that appear motivated by funding. As I went on to future interviews and interactions, I did my best to channel Roy’s calm and patience. In the thick of it, it was easy to forget that individuals who were chemically dependent or suffering from illness were still people. Once their addiction or their issue is diagnosed, that label overshadows the rest; the system is designed to implement protocols in response to certain categories. But those who struggle with addiction and mental illness are not always keen to have someone else make their decisions. The effect of labeling and channeling individuals onto a proverbial conveyer belt is degrading for those involved; those same identifications and responses can be humanized by a level of trust and respect between the individual and the social worker. That is why Roy focuses on relationships with people. It is his skill to listen and make someone feel heard. He can usually get someone to take medication or cooperate when other agency employees cannot. He receives calls when he is off work, requests for him 148 to speak with a client to deescalate a situation. His success is no secret, he has worked to build trust over time. Like the liquidus population of social workers who succumb to frustration, I wanted individuals on the Greenway to think like me. I listened to Courtney waiting for my turn to inform and help her, not with the intention of hearing her. Repeatedly, I found myself wishing I had heeded the words of the officers who encouraged me to pick a different topic. I wanted to walk away as it felt my every effort was met with resentment and resistance. At the core, my struggle stemmed from the fact that those on the Greenway refused to act like trained lawyers. I wanted people to act according to my view of rational and irrational. After months of attempting to help, I wanted to take control away from Courtney and others like her. I wanted to force ‘rational choice’ on those without the opportunities and experiences I have had. It did not take long for me to desire to act as many of the agencies do—to impose a set of rules and label those outside the rules as unworthy. The issues faced in addressing homelessness compounded as the research continued. I saw the seeds of institutional failings in my own frustrations. I wanted to “fix” problems; I began to identify why so many in the system believed taking control from individuals was the only way to reach success. I also knew that if I deprived Courtney of her autonomy, I would prevent her from learning to make decisions for herself. She needed more than someone else to make her decisions to build the foundations for stable housing and food security. Depriving those in the homeless community autonomy denies them the opportunity to live a dignified life. When the systems take control for the sake of a ‘successful’ outcome, we deny individuals the ability to think, decide, and grow. Without participation in the process, individuals become as superfluous within the system as they are on the Greenway. But the research identified the roots of a core question for agency employees and social workers. How do we respect autonomy and help individuals make the decisions necessary for a better life? If everyone on the Greenway had the skills they needed, then social work would be unnecessary. It is not simply resourcing that most in the homeless community need. Life on the Greenway is ripe with trauma. Individuals need mentorship and support, therapy, and medical assistance. A roof is not enough to help the unhoused. 149 I can identify that taking away Courtney’s autonomy and ability to make decisions won’t help. Someone else making the ‘right’ decisions for her won’t help her to make those decisions for herself. A recurring failure of the systems identified in this work is the attempt to wrestle control away from individuals to make their decisions. Each step of control by the system forms a layer of Techne, another story of a structure built on a cracked theoretical foundation. Each break in the structural integrity requires additional building, more Techne to fix the problem. The systems seek control because it reduces uncertainty. By eliminating risk and chance, we also eliminate the job satisfaction for those in social work. Instead of risking a wrong decision, we eliminate individuals’ ability to make decisions. Techne, as a collective structure, is not evil. The structure can be a tool for good to help people like Roy assist people like Courtney. It is a tool for social order, but we cannot allow that tool to have complete control. We must look at the context of the situation. We must constantly recraft our tools to match the circumstances. Before we reach for control, we need to reach understanding. The control approach removes the ability to create relationships that establish trust. Those relationships require empathy, and empathy requires more than a passing glance at a clipboard. Tully’s work concluded that it requires a willingness to take the perspective of the other. Roy has those relationships. Roy can work with an individual and they can develop greater foundations for all ten capacities. But that kind of relationship takes time and resources. For scholars, it is critical to point out that this kind of work does not receive funding. No one was going to pay for this research to be done.311 Any solution to homelessness requires relationships. It requires time. Trust built over a long period of time. Funding and resources so agency employees can spend the time necessary on each case. Agency workers need the discretion to exercise trust instead of cemented regulations that dictate their actions. Scholars presume that our education automatically entitles us to respect. But education doesn’t make us better people. It simply makes us more privileged and gives us better tools. 311 Here I must note that The University of British Columbia provided tremendous support. But despite their support, the institution could not provide housing costs, insurance, or an income while this work was being conducted. It took a joint income of two full-time jobs and sacrifices on the part of my family to see this work through to completion. 150 6.6 Meaning of a Rottweiler I saw the desire for a puppy as childish and irrational; upon reflection, it was simply human. Courtney was alone and afraid. She wanted companionship, protection, and company. Those were not the irrational emotions of a small child or an incompetent adult. My immediate reaction to the rottweiler was just wrong. Especially in a world of complete transience, dominated by random chance, Courtney wanted a companion. Her desire for a puppy encompassed several of Nussbaum’s ten capacities. She wanted love. She wanted play. She wanted control. It was not just a puppy, but everything a puppy represented. How could I say the desire for any of those fundamentally human experiences was irrational? According to Hannah Arendt, the first human right is the right “to be.”312 This was not explicitly recognized in Nussbaum’s theory, but it existed at the core. The foundational right “to be” is destroyed when there is no consequence attached to one’s efforts or intentions. For most in the homeless population, it does not matter what they do. To the world, a homeless person on the Greenway is largely superfluous. When we pass by, we avoid eye contact. Looking away affirms irrelevance. Judges rarely look at drug addicts as more than their addiction. In law, we study the homeless and the addicts for academic purposes, building our own futures on their struggles. But how often do we learn their names? Scholars will use this work as a citation to support their own work. Courtney will not matter. She supports this work just as she will support the work of others. Collectively, we will use her and forget that she existed. To the advocates and administrative employees, Courtney is just a name on a clipboard. She is a reason for funding. This approach denies Kant’s moral imperative to not use others as a means but treat them as their own ends.313 Because of my training and background, I am unable to develop this work without usury. I try to give Courtney a voice and include her as a 312 Serena Parekh, “A meaningful place in the world: Hannah Arendt on the nature of human rights” (2004) 3:1 Journal of Human Rights, DOI: 10.1080/1475483042000185215 313 Allen W. Wood & Onora O’Neill, “Kant on Duties Regarding Nonrational Nature” (1998) 72:1 Proceedings of the Aristotelian Society, DOI: 10.1111/1467-8349.00042 151 person worthy of a story, worthy of rights. I can only hope that scholars will hear her and do the same. But I will receive a degree and she will not. No matter what someone like Roy decides to do, there is no easy solution for someone like Courtney. Her inability to make prudent choices frustrates efforts to provide care; as the frustration levels escalate, the system will be forced to take control from her. In this way, she doesn’t determine what services she receives, and her good behavior is treated the same as her delinquent behavior. While there is no easy solution, Arendt and Nussbaum would have us start by seeing. Take a moment to genuinely consider how much time and attention you pay to the homeless. For most of us, we give little more attention than that which is required to cross the street. It is an inconvenience to consider the unhoused. We may see them as a security concern. We fear the effect of homeless people on our right to the “quiet enjoyment” of our property. If we see them at all, it is not as equals. The shared struggles of life provide the best hope for connection and meaning. Courtney and others in the homeless community feel a sense of doubt and insecurity as much as any of us. If we can recognize that core we can connect and build. That is the true nature of Nussbaum’s work. But it is the nature of that doubt that drives us apart. It is a matter of faith and practice that we can reach beyond our needs to help others with theirs. Unfortunately, this is a practice which we have too little experience and no real encouragement to pursue. Patience and empathy are not curriculum offered in law schools. It is not just our perception that harms individuals living in homelessness. On the Greenway, the physicality of life is just as bad. Courtney may be raped on any given night, robbed, stabbed, or traumatized without reason or cause. She may call the police but expects no response or assistance. On the Greenway she lives in a world where her actions are devoid of any meaning or relationship to consequences. In such a state, it is comedy to tell her that she needs to help herself. Liberal self-help is no avail to the superfluous population. If Courtney works hard to find a job, she will still be a homeless prostitute going into interviews. She has no references and no connections to help her. Not like the judge who can call upon an entire network of professionals. The effect is known as the 152 “Network Gap.” There is surprisingly little scholarly work conducted on the Network Gap.314 What it means is that Courtney has no professional references. There is no one who will refer her for a job, co-sign a loan, or provide her with leverage for economic advantage. The absence of a network she can leverage needs more research, but it is just another example of another issue we fail to recognize. Because we fail to recognize the context of Courtney’s situation, there are innumerable barriers to her success that we cannot see. Because we cannot see these barriers, there is no hope of Applied Equality. If she makes any money, it will be stolen by an abusive boyfriend and used to fuel his fentanyl habit. At one point, Courtney was so desperate for assistance that she faked being a heroin addict to receive resources from the state. She has never done heroin, but there were no programs that would assist her as a methamphetamine addict. What does it say about our institutions that an addict for methamphetamine has to pretend to use heroin so we will help her? The fact that she would lie about her addiction implies that she wanted help. The fact that she had to lie means that help was not available for her. Her world and struggles are so foreign to us that we do not even understand the terms or conditions by which she must live. Before we can understand we must make the effort. We need to start by seeing the difference and trying to bridge the gap. This broader Context makes it understandable that she wants a dog. She is written off by everyone both on and off the Greenway. The legal system and our administrative agencies see her as a problem to be cured and not a living person with stories and trauma. The need for meaning is intimately woven into the Human Capabilities theory. Courtney needs meaning for her miscarriage and her stillborn child. Without time to mourn or experience the loss, she is haunted by questions of meaning. The complication to finding housing with a rottweiler fall second to her need for a living companion. After experiencing brokenness and death, it is reasonable that Courtney craves life. Her boyfriend abuses and uses her as an object. Her friends on the Greenway are transient. 314 A review of scholarly work provided no results of the network gap for services. The best source comes from the “Close the Gap Foundation.” See, Close the Gap Foundation, online: < https://www.closethegapfoundation.org/glossary/network-gap.> 153 Courtney has been starved for connection since childhood. Seeing the puppy for what it meant in the space of a dignified life, I know my judgment was cruel and misplaced. As the reader, I want to tell you that Courtney did not get a puppy. But she did get a cat. She called him Garfield and placed a pink, unicorn collar around his neck. Courtney’s love of unicorns was brought up often in interviews. On one occasion, Taurus stole a unicorn onesie for Courtney and she wore it for months on end. Courtney’s love for unicorns goes back to her childhood; Taurus’ gesture of friendship speaks to the desire for connection. The needs on the Greenway are no less complex than what we experience in our own lives. Though the immediate need to survive can overshadow intangible needs, they are no less important for human dignity. Garfield means Courtney is responsible for something beyond herself. Even when those in the homeless community procure housing, the majority do not stay. From research and observations, individuals receive housing without community and it is not enough. Many get bored or lonely and leave. Courtney’s cat gives her a reason to stay, to keep her companion. In the months after Garfield came into Courtney’s life, she expressed less loneliness and anxiety when her boyfriend would disappear for days. She was more interested in accessing food and taking care of herself. The immediate response from Courtney was incredibly positive. For the first time since we met, she was actively trying to improve. No social worker would ever encourage Courtney to get a cat. The state and DHS would not consider a cat essential. The state looks at resources in objective terms without thinking about their meaning. Assistance means housing without considering the nature of a home or what someone needs. The ten capacities are not about objectives, but about our relationship to each other and the world. As Garfield grows Courtney can measure the passage of time. As she bonds with her cat, she can begin a process of recovery. No law would consider the cat relevant to a dignified life. It is not inherent in Nussbaum’s human capacities as objective ends, but Garfield is an entry point for Courtney to return to linear time. I have a photo of Courtney holding Garfield. Her tent was covered in a foot of snow and the setting looks like a post-apocalyptic disaster. But there she is, smiling, with her cat. Though everything around her is gray and bleak, the fluffy orange kitten pressed 154 to her cheek exudes brightness and warmth. I keep the photo close as I consider her stories. Watching them together, I was reminded of my late father playing with his dog. A small link between people that helps us come together; the bond we share with animals and our need to play. In legal scholarship, it appears like such an insignificant detail, but it means everything. 6.7 Updated Status on Courtney My final meetings with Courtney were after the completion of our interviews. Dr. Sherman and I made deliberate efforts to remain in contact with the participants in this study. After our interviews, Courtney was able to secure housing through HUD and voucher programs. Courtney invited us to help her move and we were delighted to oblige. When we last spoke, Courtney had been on a track for recovery. It appeared that she was looking for work and building a network. The major barrier remained her loneliness. Her housing was contingent on her being the only occupant; she expressed concern that she would ‘crack’ and let her boyfriend know where she was living. The apartment complex was home to many other addicts and formerly homeless individuals. As she did not know any of them, she expressed a ‘close but not quite’ feeling that increased her isolation. The easy access to drugs and other addicts also made her vulnerable to relapse. The last report from Courtney was that her boyfriend came to her residence. He beat on the door and demanded entry until the police arrived. Due to multiple instances of him showing up and demanding entry, she was evicted for creating a public nuisance—something that will prevent her from getting another voucher. This is known as the One Strike policy and the impact on victims of domestic violence is horrifying.315 Victims, even when they escape, are at the mercy of their abusers. 315 Claire M. Renzetti, “”One Strike and You’re Out” Implications of a Federal Crime Control Policy for Battered Women.”, (2001), 7:6, Violence Against Women, 685-698. 155 After her eviction, we lost contact with Courtney. Because the county bulldozed the tent community, we lost access to the entire network. Prior to the bulldozing of the tent communities in Minneapolis, Dr. Sherman and I had developed a network of individuals that collectively made it possible to receive updates and share information. Because the policies of the agencies so effectively destroyed access to those relationships, I have no way to know Courtney’s fate. The decimation of that community raises a question regarding the volatility and services of agencies themselves. Context Theory challenges us to ask, what does the ‘selective blindness’ for certain groups and experiences mean for the structures we create? The next narrative provides insight into the ontology of our agencies to better position us to answer that question. 156 Chapter 7: Ontological Security of Institutions The combination of economic disruption, cultural disruption ― nothing feels solid to people ― that’s a recipe for people wanting to find security somewhere. And sadly, there’s something in all of us that looks for simple answers when we’re agitated and insecure.316 There is an unspoken equation of economic privilege; a percentage of poverty is required to preserve a percentage of wealth. Just as trust is placed in the invisible hand that guides market forces, there is a belief system imbedded in the equation: Those who are deserving, will rise. Those who are not, will fall or remain stagnant. It is the belief system that demands we accept the results of the formula. 317 The stratification of society necessarily demands a bottom layer. If we believe the system works, the bottom layer was always going to be the bottom layer; those at the top were always meant to be at the top. Conversely, if the unspoken equation cannot be trusted to select the best for prosperity and the worst for poverty, a perilous question enters the mind: what separates us from life or death on Lake Street? As a society, the trust placed in mysterious forces serves to relinquish the ultimate authority to create and guide institutions. That is, we accept that those who fall through the cracks of the social safety net are the natural result of the unspoken equation. As applied in this study, Courtney should get better and get past her homelessness. If she doesn’t, it is Courtney, not the institutions, who failed. But time on the Greenway revealed how the inadequacies of our institutions prevent the most vulnerable from accessing resources. In Courtney’s case, the separations between institutions made it nearly impossible for her to get the help she needed. The lack of collaboration between 316 Barack Obama, speech delivered on September 8, 2017, at the Economic Club in Chicago. 317 The idea of capitalism expressed within religious sentiment is the theory of Guy Debord. His work, “Society of the Spectacle” argues that we have granted religious authority and logic to the free market. Capitalism is no longer an economic system, but a religious philosophy. See, Guy Debord. Society of the Spectacle. Bread and Circuses Publishing, 2012. 157 agencies and the inability for the State to provide a holistic response left Courtney isolated and unable to navigate the steps necessary to access the resources that were, at least in theory, available. But it is not simply that the lack of a comprehensive, institutional response makes it difficult to escape homelessness; the way institutions are structured to respond when an individual seeks assistance can actually lead to homelessness.318 Just as the lack of meaningful collaboration among and between institutions makes it difficult to access services, failures in communication prevent those providing services from seeing the context of an individual’s circumstances. Without context, the system quickly adopts the inherent assumption that the individual is to blame for any hardship faced. This assumption not only disregards the potential role institutions have in creating harmful situations, it ignores the possibility that ‘fault’ is not a factor. This study and the application of Context Theory found the use of fault-centric services319 with associated trigger-terminations320 was prevalent across government agencies, perhaps most blatantly in the case of Ashley Tierney, who is discussed later in this chapter. When faced with a life-threatening illness that required lengthy hospitalization, Ashley discovered the full weight of institutional bias not simply as a barrier to resources, but as a weapon designed to push her further into poverty and despair. For Ashley, the institutional assumptions, especially those built into the legal institution, created actual harm. It is not only government agencies and service providers who impute fault onto people like Ashley. Without broader context, scholars and practitioners would likely 318 An underlying assumption that those at the bottom are to blame for their circumstances appeared to play a significant role in both the insufficient responses and the harmful responses seen throughout the study. Interestingly, the advent of COVID-19 was paired with an understanding that those who were struggling were not necessarily to blame for their circumstances. While the policies implemented prevented many more from ending up homeless, they were temporary and failed to address pre-existing homelessness. 319 The concept and terminology for fault-centric services was developed by Ryan W. Peterson and Dr. M. Esther Sherman. A fault-centric service is a service or resource provided to low-income persons or families and is based upon a series of pre-service verifications to effectively disprove fault in order to receive assistance. Fault-centric services are often tied to trigger-terminations that sever services pending additional verification or renewed applications. The focus on fault was often seen through the imposition of drug testing requirements in cases without any evidence of drug use or abuse in a person’s history. Additional examples appeared in child support, housing, and income verifications, among others. The use of fault-centric services with dramatic trigger-terminations is particularly prevalent in CHIPS cases in Minnesota. 320 The concept and terminology for trigger-terminations was developed by Ryan W. Peterson and M. Esther Sherman. Trigger-terminations are built-in to fault-centric services, intended to sever benefits and require a new application for often trivial omissions or delays. Even a one-hour delay in responding to case worker requests can result in termination of benefits and require a new application. 158 come to the same conclusion: Ashley was responsible for losing her child and becoming homeless. But that conclusion is only supported by select facts viewed in the absence of Context. While the fault-centric services approach is easy to condemn, it is also easy to understand how it developed and why it remains. The unspoken equation is expected to render results that are acceptable. Those seeking fault-centric services do not have the power or resources to advocate for a different perspective of their circumstances. Those building the structures that offer those services have a vested interest in maintaining the fault-centric view. Without a fault-centric approach, the troubling question resurfaces: if those in need are not to blame, how can we be certain that we will never be in that position? Perhaps we inherently assume that we are safe from the tent city as an excuse to avoid contemplating the structure around us. Such an assumption is possible when law is crafted into its own stable institution, with an idea that law is concrete and measurable. To maintain this view, law must be as strong and stable as the brick and mortar of ancient cathedrals. As ancients disguised vulnerability through the development of monolithic structures, towering temples and pyramids, we deny our susceptibility to a broken system by maintaining a concrete idea of law—one in which our fates are independent from the perils of others. But research on the Greenway revealed the extent of our security to be more analogous to the cheap fibers of tent walls, a millimeter of fabric that separates us from the violence outside. The reality of chance gives little regard to the status I conflate with protection. So, why do I still assume I am protected? 7.1 Assumptions of Ontology The assumption that law is a protective, stable structure is built into the ontology of the legal academy. In this work, “ontology” is defined as the subject you seek when you need a solution. A historian will look to the past to understand the present. A psychologist will look to an individual’s experiences to understand behavior. Legal scholars, unsurprisingly, look to the law. None of the conclusions are necessarily 159 incorrect, but each answer is formed by the starting position. And each starting position depends upon assumptions of value and reliability within that field. As used in this work, it is important to emphasize the term “ontology” refers to the institutions scholars find significant in the study of law. This term and its use are unusual within the law and borrows heavily from sociologists. The modern idea of an institution came from Emile Durkheim. Durkheim defined an institution as any system of beliefs or modes of behavior which are instituted by the collective.321 According to Durkheim, to live without any institutions is to live an existence in complete isolation. Through this lens, each institution contributes to the development of the individual and society. Family teaches values. Religion teaches morals. Interactions within the modern world are programed by pre-existing institutional structures. As legal scholars, we assume the continuation of our ontology, our significant institutions. We act on the assumption that courts, academies, and laws will exist tomorrow. Though the assumptions are evidenced by behavior, they are rarely (if ever) considered in the practice of law. Lawyers practice family law without questioning the existence of families. As seen in the investigation of time, the law works within an ontological medium without questioning its substance. To open the ontology of family law would be to question the meaning of family. Even though Nussbaum’s ten capacities presume the existence of stable institutions, she did not address them directly. For example, Nussbaum’s sixth capacity, practical reason, requires educational institutions.322 Nussbaum’s conceptualization of Sense, Imagination, and Thought also requires institutions. Just as there is no law in isolation, collaboration among individuals does not exist without institutions. While the connection between development and institutions is readily identifiable, the concept of luck inherent in that development requires closer examination. On this point, the work of Bernard Williams merits review by legal scholars. Williams raised an idea that, on its face, appears counterintuitive: “moral luck.”323 In the legal context, morality is viewed as being within an individual’s control. The legal framework imposes 321 Emile Durkheim, “The Rules of Sociological Method: and selected texts on sociology and its method” Steven Lukes, (ed), First Edition, (Simon and Schuster, 1982). 322 Martha C. Nussbaum, Supra 124. 323 Bernard Williams, Moral Luck Philosophical Papers 1973-1980, First Edition, (Cambridge University Press, 1981). 160 responsibility for “moral” choices. In this frame, the idea of luck and morality do not appear related to one another. Williams questioned that apparent disconnect when he identified that values are not just programmed by an abstract concept of family, but by your family. It is not a theoretical religion that imposes morals; it is your religion. My values and morals are different as a product of the family into which I was born and the community in which I was raised. Williams poignantly identified that your morality is a product of your luck, not your choice.324 It is shaped not simply by the institutions, but by the institutions within reach. Traditionally, legal scholars have focused on the institution of law as encompassing courts, constitutions, and statutes. While those are the primary/formal institutions identified in legal scholarship, the importance of the primary institutions does not negate the existence of secondary/informal institutions. When the court issues a family law order, the resulting consequences to the family are often beyond the domain of law. Regardless of how closely they may be connected, the court does not determine how a child’s view of social issues may be altered by that order. For legal scholarship to hold relevance, it is vital to expand ontology in law. By limiting law’s connection with broader institutions through a narrow ontological view, traditional legal scholars effectively sever the channels of communication necessary to address inequality in law. But the belief that law is its own, separate institution is deeply held by those who align with Legal Positivism. As Legal Positivism expanded in popularity through the 20th and into the 21st century, the natural result was increased power in statutes, courts, and attorneys. Professor of Law, Roger Cramton, documented the proliferation of the legal institution from the 1900s until today.325 What Cramton found is that law in the United States is now an industry which accounts for more than $50 billion dollars annually.326 That number is limited to legal fees alone and does not include damages or rulings issued by the courts. That number also excludes the costs of legal education, subscriptions to legal services such as 324 Ibid. 325 Roger C. Cramton, “”The Most Remarkable Institution”: The American Law Review” (1986) 36:1 Journal of Legal Education. 326 Ibid. 161 Westlaw, and operational costs for the state and federal judicial systems. According to the American Bar Association, there are now a total of 1.34 million lawyers across the country.327 The shift to Legal Positivism did more than expand power, it amplified the assumption that the thing lawyers study is different. Law is special; therefore, legal scholars are unique. The isolationist view is self-serving and caters to the arrogance of lawyers and legal scholars. By separating law from other institutions, law becomes inaccessible to those without legal education—strengthening the idea that those with legal education are somehow special. According to Alice Woolley, the proliferation of legal logic and reasoning, combined with educational requirements and bar restrictions, gives a heightened air of professionalism to the legal community.328 Woolley argued that this air is false, simply a byproduct of isolating law as an institution. Woolley identified that the isolation of law creates and furthers inequalities within the legal system.329 As lawyers and scholars independently assign definitions to words and interpret meaning from statutes, law adopts a language that is distinct from surrounding institutions. The considerations of those outside the law are excluded. Unlike a historian who looks to history to explain the present or a psychologist who looks to experiences to explain behavior, lawyers look only to law in order to define law. It is not that lawyers look to law to explain events or circumstances, it is that the isolation of law prevents any analysis of what is outside of law. Law is a separate, complete circle into which no other considerations may enter. In opposition to the traditional view of law as a separate institution, a critical element of Context Theory is the conceptualization of law as the medium of communication between institutions. The foundation for this idea was built upon Nikolas Luhmann’s theory of subsystems.330 In this view, the law is the binding material that connects and regulates the separate subsystems. Each subsystem is an ontology of its 327 ABA, New ABA data reveals rise in number of U.S. lawyers, 15 percent increase since 2008, (May 11, 2018), online: ABA < https://www.americanbar.org/news/abanews/aba-news-archives/2018/05/new_aba_data_reveals/#:~:text=Share%3A,attorneys%20in%20the%20United%20States.> 328 Alive Woolley, “The Problem of Judicial Arrogance” (2016) Legal Ethics 329 Ibid. 330 Niklas Luhmann, The Paradox of System Differentiation, First Edition, (1990). 162 own. Law maintains harmony between ontologies; it balances family values, educational opportunities, and economic forces. But for it to work, legal practitioners and scholars need to open and understand all subsystems themselves.331 Legal scholars need to address the broader context of ontology to understand how the law operates on the Greenway. To address the homelessness problem, the law cannot continue to act within a formulaic structure without acknowledging the repercussions. Recognized or not, the law creates interactions between formal and informal institutions. Each judge has a predetermined idea of a family, but it may not match those in the courtroom. A sister may be declared by social bonds and experiences, but not by the law. This is the distinction between the formal and the informal understanding. Without recognizing the existence of informal institutions, the law cannot hope to recognize the individuals. In applying Context Theory, law is not limited to its own definitions without the understanding of broader interpretations. Legal scholars and practitioners would be well served by the adoption of Herbert Spencer’s structural-functionalist approach to defining the mission and purpose of an institution.332 His approach is simple: If you want to know why an institution exists, look at the work it performs. This is closely aligned with Nussbaum’s functional roots for her Human Capabilities theory. Like Nussbaum, Spencer argued that institutions should be studied through the function that they serve. Spencer understood an institution as a created entity designed to perform specific work.333 In his approach, an institution can be analyzed based upon what it does, how it impacts society, and what we have done to modify the institution through time. By this measure, law is not defined by scholars. Law is defined by the impact that it has upon society. Law is the Greenway. Similarly, family is not defined by the judge, but by the ties between individuals and how they respond to each other. To Spencer, it would not matter how adamantly lawyers defended the judiciary as an institution of justice. If observations showed that the judiciary perpetually manifested inequity and 331 This paper will use the terms “subsystem” and “institution” interchangeably. 332 Donald W. Harper, “Structural Functionalism” (2011) 25:6 University of Leicester: School of Management: Management Journal 333 Donald W. Harper, Supra 298. 163 disparity, without internal changes, then the perpetuation of such inequity was the mission of the judiciary.334 7.2 Ontological Connections Between Education, Family, and Law Context Theory was informed, in part, by adopting Spencer’s approach and applying it to study the ontological assumptions that motivate state agencies. The personal narrative included in this chapter reflects the ontology of law as it is and emphasizes how the definition needs to be expanded. The story is used to identify how the current function of the institutions is to create and further inequality. There are two explanations for law’s creation of inequality through the ontology of subsystems: Either inequality is a product of institutional ignorance, or legal institutions were designed to perpetuate and maintain inequality. If we observe the damage caused by the legal institutions, and we do not act to change them, can we say there is a difference between accidental disparity and institutional design? The view adopted in this work is that the inequality of our legal institutions is a product of ignorance.335 A judge who finds no “undue” burden to the evisceration of a homeless community acts from a failure to inspect his ontological assumptions. The separation between the judge’s worldview and the lived reality of those on the Greenway imbeds ignorance into the process. It is ignorance that makes the judge incapable of considering that such an assembly of individuals and tents could be a valuable community. While ignorance explains the decision, it does not excuse the result. Once the damages are revealed, we are obligated to correct the errors. As seen through many of the narratives collected in this study, ignorance of ontological relationships can create dramatic and unforeseen consequences. The destruction of a tent community displaces 334 The statement is highly argumentative and should not be understood as disparaging to the judiciary. It merely reflects a truth that lawyers and judges have the power to change the judiciary. If the consequences of court action are negative, and there is no change to fix the problem, then the failure to correct the problem is no different than an active desire to maintain the problem. 335 This does not negate the reality that institutions in the U.S. were designed with prejudicial intent and many actors within the institutions manifest that design. However, the goal of this work is to create a dialogue toward reducing inequality. Beginning with the inequality that stems from ignorance allows the discussion to move forward. 164 families. The creation of insecurity and family dispersion is detrimental to education. Each part of the network of subsystems is impacted to reproduce homelessness. The same judge or scholar who would ignorantly disband a community would likely blame the unhoused for their condition. The fault-centric approach is built upon a foundation of ignorance. Context Theory requires that ignorance be acknowledged and addressed, a necessary step before the consideration of human dignity is possible. Consider Nussbaum’s first capacity: Life. She defined Life as the ability to live a normal lifespan without premature death.336 This study did not find that the law directly prohibits individuals from enjoying life. But life is dependent upon medical assistance. It requires institutions which facilitate healthy living. You cannot live a healthy lifespan without fresh foods and vegetables, sanitary living conditions, exercise, and basic preventative medicine. Scholars operate within a legal ontology so seamlessly that they fail to see it. The judge who shops at Wholefoods has no reason to reflect upon the impoverished mother who struggles to collect food from the trash bins outside her hotel room. Like time, the entirety of Nussbaum’s theory depends upon ontology. Robert Kralingen encouraged legal scholars to consider a framework of ontologies when studying law. He argued that ontology in law is framed by the priorities of the institution, the scope of its actions, the conditions in which it acts, and enumerated instances of its intervention.337 Kralingen’s template provides a readily available framework in which to examine institutions and consider the implementation of Nussbaum’s ten capacities. As another example, consider Nussbaum’s fourth capacity: Sense, Imagination, and Thought.338 This capacity cannot be reached without education in some form. An individual learns how to use sense and imagination. But the ontological problem gets deeper than educational institutions alone. Educational performance is closely related to family institutions.339 You cannot provide Nussbaum’s fourth capacity without looking at the relationships between education, family, and economic opportunity. 336 Martha C. Nussbaum, Supra 124. 337 Robert Van Kralingen, “A Conceptual Frame-based Ontology for the Law” (1997). 338 Martha C. Nussbaum, Supra 124. 339 Ludger Woessmann, “How Equal Are Educational Opportunities? Family Background and Student Achievement in Europe and the United States” (2004) 165 According to Milind Sohoni, Minnesota has the worst achievement gaps in the country.340 Kids born in affluent communities in Minnesota receive more funding and higher quality education than most public schools in the United States. This is due to Minnesota’s higher property taxes.341 At the other end of the spectrum, students in poor neighborhoods in Minnesota struggle with basic literacy. Currently, Minnesota’s state Constitution guarantees a “uniform system of public schools” which the state supreme court has interpreted to mean an “adequate” education. What is “adequate” is a question for the human capacities. It is also an institutional question regarding funding and support for public schools. The United States does not acknowledge a right to literacy.342 Former Minnesota state supreme court justice, Alan Page, argued that there needs to be an amendment to the state constitution. The guarantee for education in the state of Minnesota was drafted in 1857. It reflects the ontological disparities and biases of that time. According to Justice Page, an amendment is needed to reflect the current value on education and eradicate the ontological bias built into the institutions from 1857.343 Justice Page would have an amendment which guaranteed quality education. This might look like uniform funding across the state, regardless of area code. The argument from Justice Page is present within the institutions. In addition to the invaluable information provided by Roy, this work owes a great debt to Andrea Inouye. Andrea is the Director of Strategic Partnerships for Affordable Housing. Like Roy, Andrea has a distinct skill. She can see the connections that legal scholars miss. Currently, she works within the city of Minneapolis and we spoke at length about 340Milind Sohoni, Education equity: What’s ailing Minnesota?, (March 5, 2021), online: MinnPost < https://www.minnpost.com/community-voices/2021/03/education-equity-whats-ailing-minnesota/> 341 In the United States, school funding depends almost entirely on property taxes. These taxes are not distributed at the city, state, or federal level. Rather, they are divided up by school districts, creating an impassable gap between schools in wealthy neighborhoods and those only a few miles away. In extreme cases, the measure of one block can determine whether a child becomes literate. The 16th Amendment effectively bars a federal property tax that could otherwise provide more equitable distribution. 342 Koby Levin, “Detroit literacy lawsuit ends without a ‘right to read’ precedent. Advocates say they’ll keep fighting”, (2020) Chalkbeat Detroit, online: < https://detroit.chalkbeat.org/2020/6/10/21287272/detroit-lawsuit-ends-without-right-read-precedent#:~:text=Advocates%20say%20they'll%20keep%20fighting.,-By%20Koby%20Levin&text=The%20Detroit%20literacy%20lawsuit%2C%20a,all%20students%2C%20is%20officially%20over.> 343 Josh Verges, Will changing MN constitution improve achievement gap? Alan Page and local fed bank leader think so, online: TwinCities.com <https://www.twincities.com/2020/01/08/alan-page-mn-constitution-achievement-gap-kashkari-fed-bank/> 166 education and homelessness. She made it clear just how closely housing, family, and education are linked. Andrea works within 18 schools where 10-15 percent of students experience homelessness.344 She devised a two-prong program to create stability for students in an effort to increase ontological security of the family and of the education system. She calls the first prong the Housing Stability Fund. It provides one-time emergency assistance in the amount up to $1,500 for families.. The goal is to keep students in stable housing. Andrea explained that keeping people in a fixed location keeps kids in fixed schools. This provides familiarity with teachers and helps build community connections. The second prong provides three years of rental assistance. Families pay 30 percent of their income toward rent and the city pays the remaining balance to the landlord. The model is identical to Section 8 vouchers with HUD, but it is funded and controlled by the city. Between the two prongs, the city of Minneapolis is trying to retain ontological security for students. To break the cycle of poverty, students need a stable home and access to stable schooling. Despite city, state, and federal efforts, homelessness is not dissipating, and children continue to be displaced. The problem involves something deeper than funding. There are assumptions structured into the law that prohibit effective resolutions. The way scholars view subsystems is not the same as how homeless individuals experience those same institutions. Until that difference is understood, homelessness will persist. Until Context is considered, the cycle of poverty will remain unbroken. 7.3 Operational Definition of Ontology The program Andrea described grapples with an additional layer of ontology: ontological security. Anthony Giddens defined ontological security as the security of being. It is a highly abstract concept that merits discussion. The original idea for Giddens’ work came from psychoanalyst R.D. Laing in 1960.345 Laing wrote about 344 This information is gathered from an official interview. 345 Catarina Kinnvall & Jennifer Mitzen, “Ontological security and conflict: the dynamics of crisis and the constitution of community” (2018) 21:4 Journal of International Relations and Development, DOI: 10.1057/s41268-018-0161-1 167 existential insecurity. Due to the abstract nature of the concepts addressed by Giddens and Laing, it is necessary to root ontological security with examples. For elementary students in Minneapolis, ontological security exists when going to school is certain. Not just any school, but the same school with the same teachers and the same friends. Ontological security exists when students have certainty that they will be able to eat. Not only food, but healthy food that is predictably available. Ontological security exists when students have certainty about where they will sleep. The knowledge that necessities are and will continue to be available is a privilege that many students do not experience. This fundamental uncertainty prevents students from having ontological security; ontological security is vital to Nussbaum’s theory. Ontological security can also be thought of in the context of Maslow and the hierarchy of needs. Maslow stated that individuals need to have assurance that five core needs are met: physiological, safety, love and belonging, esteem, and self-actualization.346 The base needs must be met before an individual can address higher needs. Maslow argued that an individual needs to meet their physiological needs and safety needs before they can meet their needs for love, esteem, and self-actualization. Nussbaum’s theory does not refute Maslow’s needs, but it does complicate them. In Nussbaum’s theory, the needs are not hierarchical but integrated. The need to eat is not higher than the need to experience love and belonging. In different moments, one need may be prioritized, but there is not a definitive order. Nussbaum’s definition of human dignity requires all the needs to be met. While Maslow’s framework would treat a therapy animal as a privilege one must acquire after securing other needs, Nussbaum’s view allows the companionship of an animal to be connected to a dignified life, not a product of status or class.347 The idea of ontological security also complicates Maslow’s view of needs. Esteem is a product of institutions. Feeling esteem requires predictability and stability within the institutions that create esteem. Institutions are how individuals relate to the 346 Saul McLeod, “Maslow’s Hierarchy of Needs” (2007) 1:1 Simply Psychology 347 While the culture of therapy animals in the United States has been largely exploited by those in positions of privilege, the legitimate purpose of therapy animals and their effectiveness cannot be overstated. For many, a therapy animal is essential to immediate survival. For more, see Role of pets and animal assisted therapy in suicide prevention - PMC (nih.gov). 168 world. Students who have never spent an entire school year in the same school are unlikely to develop healthy esteem. According to Laing, individuals create buffers in the world to protect us from our mortality and insignificance. We are all subject to uncertain death, but connectivity with institutions provides a sense of continuation within the fabric of society. My faith in the continuity of educational institutions allows me to perform the work that achieves self-actualization. It is the interaction with institutions that frames identity and molds the opportunities available to an individual. This connection with institutions works on two levels. At the first level, institutions create continuity. For impoverished students, school is a stable source of lunch348 and a connection to role models who are present and predictable. At a second level, stable ontologies are a guarantee that the world continues. Ontological continuation makes it possible to take a sick day without worrying that your family will collapse.349 Ontological continuation also creates room for playing, it allows us to interact with other species, it ensures our bodily integrity and affirms Nussbaum’s capacities. It is only with the certainty that our institutions will continue that we can live a dignified life. The continuation of ontologies is what Pierre Rosanvallon found so significant about the role of law. Rosanvallon defined law as the reflexive process that connects institutions and transcends time.350 Law is the reason we have one society within the tangled mess of isolated subsystems. According to Rosanvallon, law is also what makes institutions predictable and stable through time. Some scholars have already applied ontological perspectives to the study of law. Vicki Lens adopted an ontological frame in her study of Supreme Court opinions. In her work, she saw each opinion as a continued debate within society—a debate within conflicting subsystems. According to Lens, the 348 There is active legislation in several states to remove access to school lunches for poor families. 349 This is closely connected to resources. Those without paid benefits in the United States typically cannot afford to take a day off work, no matter how sick they are. Much of the pushback over COVID-19 lockdowns in the U.S. were linked to this lived reality. Additionally, expansion of at-will employment in the United States serves as threat over many who do have benefits but cannot afford to lose their jobs. At-will employment does not require a reason or advance notice for termination. Despite being salaried and working for the State, judicial law clerks in the State of Minnesota are classified as at-will employees. 350 Pierre Rosanvallon, Supra 145. 169 history of decisions within courts was one long conversation about critical issues such as gender, race, and equality.351 As Giddens uses the term “ontological security”, it is the human need to wrap ourselves in routine and protect ourselves from the uncertainties of chance. How we choose to do that, for Giddens, defines our institutions. As a sociologist, Giddens focused on the macro analysis of collectives. To Giddens, scholars operated on the same macro level, but Nussbaum’s Human Capabilities theory looked at the role of ontological security for individuals. The stability and performance of institutions is defined by the impact on individual lives. Lawyers argue that ignorance of the law is no defense, but neither should it be a defense to remain ignorant about what the law does to indigent individuals. We must apply the same standard to the institution of law that the institution imposes on individuals. We must listen to people like Ashley Tierney. 7.4 Application of Ontology and Ashley Tierney Ashley Tierney provides a concrete example of how ontological assumptions affect those who are struggling. When she was hospitalized and on the brink of death, Ashley trusted the state agencies to help her and her family. As a single mother with a developmentally disabled son, Ashley had previously worked with agencies to ensure she had the resources she needed to provide him with support. From those experiences, she reasonably believed she could seek assistance from the agencies during a moment of crisis. Her view of the agencies was skewed by the nature of her prior experiences. A single parent seeking assistance for a disabled child is not seen as depending on fault-centric services. Rather, the diagnosis of her child placed her in a position where she was viewed as needing help through no fault of her own. But when she was most desperate, she was directed to fault-centric services that placed the burden on her to disprove the hypothetical mistakes she made that caused her to need help. How she was viewed by the institutions is why the institutions failed. 351 Vicki Lens, “Supreme Court narratives on Equality and Gender Discrimination in Employment: 1971-2002” (2003) 10 Cardozo Women’s Law Journal“” 170 Ashley is categorically different from Courtney. Though Courtney had not always been homeless, she had a long history of instability, drug addiction, and criminal activity. Conversely, Ashley was successful by the standards of the Greenway. She had a long history of employment. She worked overtime to pay her bills. While Ashley could not afford higher education and her family history precluded her from a university degree, she could work two jobs. Even that was not enough, but she survived by augmenting her income with a hodgepodge of institutional support. For many, intervention and agency support provide a source of ontological security. In Ashley’s case, it was her reliance on agency support that threatened her ontological security. Not because she suddenly made too much money or no longer needed assistance, but because the services she received prior to her illness were based on the needs she had as a single parent with a young, developmentally disabled son. She and her son received housing assistance through the Department of Housing and Urban Development (HUD), food assistance through the Supplemental Nutrition Assistance Program (SNAP), and cash assistance was provided from the Temporary Assistance for Needy Families (TANF). The patchwork of institutional support was enough for Ashley and her son to remain in stable housing, have reliable food, and survive. It is worth noting that the institutions did not provide enough to help Ashley get out of poverty. With all the support, she still had to work time and a half just to pay her bills. She did not have the luxury of free time. Like others in the homeless community, survival was all that was possible. There was nothing extra to invest. No free time for playing or pursuing a better education. But there was another issue. Ontological security requires stability individuals can rely upon. The sporadic, contradictory, and undependable nature of agencies was a continued theme on the Greenway. Even agency employees recognized this fact in interviews, contextualized by the fact that they were doing their best with the resources available to them. Ashley’s story revealed how the lack of ontological security, not just access to housing but the knowledge that the housing will remain accessible, is a barrier to human dignity. From her hospital bed, Ashley made one phone call for help. Previously, she had made hundreds of calls, navigated the institutions to ensure that her and her son had what they needed. But the call for help was different. Because of that single call, the institutions that 171 had been helping her became her greatest obstacle. On paper, that call transformed her from a hard-working single parent to an unemployed woman seeking fault-centric services. I first met Ashley when she was living out of a motel. She had been a resident in Powderhorn Park before the county bulldozed the tents and removed residents. It was only because of COVID-19 that private individuals and government agencies opened donations and allowed homeless individuals to stay in certain rooms in select hotels. Despite this purported good fortune involved in the pandemic, Ashley’s security was on a week-by-week basis. Throughout months of working with Ashley, it was always a last-minute contribution that allowed her to remain in the hotel. Each week she packed and prepared to leave without anywhere to go. She spent each week frantically making phone calls to private individuals, begging for money and assistance. It became a fulltime job to keep her room during dangerously cold weather and in the middle of the pandemic. Ashley’s sudden homelessness and her residence at the hotel was a product of Methicillin-Resistant Staphylococcus Aureus (MRSA). She described an irritating scratch on her skin. Nothing noteworthy, at first, but occasional scratching was enough for the supergerm to infect her. Almost every individual is host to MRSA. It lives on skin and inside nasal cavities. For most, it’s harmless. However, if it is introduced to the blood, it is incredibly dangerous. There was nothing Ashley did to contract MRSA. It was a matter of bad luck. She had no history of drug use or addiction and no risky behavior. But even if she had, there was nothing she could have knowingly done to avoid the illness. The supergerm resulted in months of hospitalization. Ashley showed me scars across her arms from countless surgeries. Her right arm is permanently deformed. Despite the metal in her arm and the fusion of bones, the law considers Ashley fit enough for work. Whether she was determined to be ineligible for disability or had not yet tried, it was too late. She was plunged into debt from unconscionable medical bills related to an unpreventable illness. On average, one day in the hospital costs $2,607.00.352 As an employee making minimum wage, Ashley did not have medical insurance to cover her 352 Bill Fay, Hospital and Surgery Costs, (October 2021), online: Debt.org < https://www.debt.org/medical/hospital-surgerycosts/#:~:text=Hospital%20costs%20averaged%20%242%2C607%20per,you%20stay%20overnight%2C%20costs%20soar.> This amount does not include the cost of any surgery or specialty procedures. 172 bills.353 Neither did she have insurance to cover her costs for the months she was incapacitated and hospitalized. According to the Kaiser Family Foundation, the number of jobs providing healthcare has dropped in recent years. In 2001 roughly 68 percent of jobs provided healthcare. In 2008, that number had dropped to 62 percent and it has since fallen even lower since COVID-19.354 As of January 11, 2021, only 49 percent of the United States population had an option for health insurance through their employment.355 The medical bills were compounded by the lost income. She was too sick to work. What she described was a toggle between life and death in the hospital as she struggled to combat the disease. And adding to the expenses was the increased expense for childcare, food, and resources so she could be in the hospital. She needed help. Before MRSA, Ashley had never missed a rent payment. She paid more than 30 percent of her income to housing, which is typical for the individuals living around the Greenway. During our interviews, Ashley told me that it was all she could do to call Child Protective Services (CPS) to have her son removed and placed somewhere safe. That was the one call. She was in the hospital, without family or support, and she needed to know her son would be safe. So, she called. Her son’s name is Aden. He was eight years old when CPS arrived at the hospital and took him from her care. Aden is non-verbal and suffers from a rare genetic disorder. Because of the support she had received from other agencies, Ashley assumed that CPS would place her son in a safe environment while she struggled to survive. But on paper, that call converted her to a single, unemployed woman.356 Ashley made the same ontological assumptions that any scholar would make. It was reasonable to assume that the institution would help her son while she recovered. But that is not what happened. That is the disconnect between the ontology of agencies and 353 Persons working full time are not typically eligible for state-funded health insurance, even if they do not make enough to purchase private insurance. 354 Kaiser Family Foundation, “2018 Employer Health Benefits Survey” (2013). 355 Vaughn Himber, Employer-Sponsored Health Insurance Statistics: What The Data Tells Us, (October 20, 2022), online: eHealth Insurance < https://www.ehealthinsurance.com/resources/small-business/how-many-americans-get-health-insurance-from-their-employer> 356 The social safety net is almost entirely tied to employment and children. As soon as Ashley lost her job and was no longer considered to be a parent caring for a child, she no longer qualified for support from the agencies she previously relied on. 173 the experiences of homeless individuals. Aden was placed in foster care and that was nine months from our first interview. For CPS to assist Aden, CPS needed an order from the court stating that he was in need of protection. CPS initiated the court case and Aden was deemed a “Child in Need of Protective Services.” The court adjudicated Ashley as being inept as a parent and placed barriers to her reunification. Technically, the court was correct. When Ashley made the phone call, she could not care for Aden. But the law does not distinguish between a mother who is incapacitated by drug addiction and a mother who is medically incapacitated by illness. The legal implications do not depend on whether she placed him in the care of the state or if the state intervened to protect him. In the agency’s perspective, Ashley is no different than the mother who exposes her child to drugs and abuse. The order from the Court does not recognize her effort to protect her son. It is legal authority saying she failed her child, and the state must intervene. She failed her son because she became ill. She lost Aden because she made a call to protect him. As a lawyer, it is hard to look into such gross abuse, no less one that was sanctioned by the court. The courts and agencies identified Ashley as a risk to her child. The law cannot differentiate Ashley from a mother whose addiction results in the child’s endangerment. To the court, Ashley was an unfit mother. To Ashley, being poor was treated as a criminal offense. Because we do not look at the context in application of the law, we could not separate Ashley from a truly abusive and dangerous mother. Because of that call, Ashley was not allowed physical contact with her son. She was treated like all parents involved in CHIPS cases. Parents in these cases are prevented from seeing their children in two ways. First, the court can order that no contact occur for the safety of the child. Second, the court can allow or even order contact, knowing the parent does not have the resources to access those visits. In the second case, it is not simply that parents cannot not access visits, it is that failure to attend visits is used to confirm the parent is unfit. Ashley found herself in the second scenario. She was not prohibited from contact with her son, but she had no car to travel to visitations and COVID-19 changed visitation procedures—removing any flexibility that could have played in her favor. Contact was not officially prohibited, but the agency was not making it easy or trying to help. From 174 the agency perspective, she was in the fault-centric services system. The burden was on her to prove she deserved help. Because of the length of her hospitalization, Ashley lost her job. She lost her apartment. She lost all her belongings. Ashley left the hospital with nothing but debilitating debt. As she was no longer caring for a child, she no longer qualified for assistance from HUD, SNAP, or TANF.357 The only help Ashley received was from her mother who provided her with a tent to pitch at Powderhorn park. Ashley said her first action when she left the hospital was to contact CPS to see her son. Ashley repeated this claim through tears. During the months we worked together, I watched her plead to see her son. Every interview was consumed with the same question: How is it possible for the courts to do this to a human being? Ashley was not just talking about her. She knew Aden was suffering. Because of his disability, he had never been separated from Ashley before. She expressed guilt and fear in every interview. After two formal interviews, she told me that she did not even know where her son was located. The very agencies she asked for help were the barrier to her reunification. Her son would not be returned until she could demonstrate that she had stable housing, secure income, and the ability to care for Aden. 7.5 Fault-Based Services and Nussbaum’s Capacities Ashley’s call for help created a situation where she needed to prove that she could provide Nussbaum’s capacities for herself and her son. The agency didn’t frame things within Nussbaum’s theory, but that was the effect. Ashley needed to show the agencies that she had a stable home, means to provide food, emotional capacity for childrearing, and the ability to ensure Aden’s education. What CPS required was essentially that Ashley prove she could provide the ten capacities for Aden before he could be returned. Ashley had to independently acquire all of those things before and could have established support through the agencies. But there was a catch: she had to do it without 357 She may have been able to receive substantially reduced support from these agencies. However, she could not simply have the amounts or resources adjusted. The changes required that she start at the beginning of the application process and seek fault-centric services. 175 the support of the agencies that provided assistance when she had been caring for Aden. Until she returned to caring for her son, she did not qualify for any of the services she previously received. This is what the absence of ontological security looks like. One phone call and the agencies went from allies to enemies. Ashley considered her life before the CHIPS case to be a phantasmagorical dream. She expressed that she was lulled into a false state of placidity by enough support to keep her from drowning, but without sincere intention to help her out. The betrayal that Ashley described is akin to having the institutional rug pulled from beneath her. She depended upon the institutions and then one day, for reasons incomprehensive to her, they turned. It is critically important that scholars understand Ashley’s experience is not unique. Nor is her response to it. Without feeling ontologically safe, those on the Greenway will never trust the law or our legal institutions. Based on their shared experiences, distrust is the only reasonable response. People living on the edge of the Greenway need the guarantee that institutional support is available and will continue. Ashley staked her family’s well-being on the assumed ontological security of the state agencies. With one call, she lost her rental assistance, food assistance, and cash assistance. The agencies responsible for allocating resources do not offer the same support to single individuals. According to those agencies, Ashley no longer has a dependent child to support. Caught between institutions, Ashley cannot get assistance without her son. She cannot get her son until she proves she doesn’t need the assistance. It is an impossible situation created by the structural nature of agencies. CPS is independent from the agencies that provided her with support. This means that, though they can require Ashley to demonstrate stability, they cannot offer support or resources to make that possible. The agencies that had previously supported her did so because she was a single mother with a disabled child. For those agencies, Ashley became a single individual once Aden was in the care of CPS. From the time Aden entered the system, Ashley had one year to regain custody, or she would risk losing her parental rights forever. The court’s standardized approach to CHIPS cases meant Ashley was placed in a system that was never meant to work for her. 176 The standard view of the court has a built-in assumption that parents are at fault for losing custody. Because of that assumption, Ashley’s path to regain custody required things like parenting classes and drug testing—neither of which had any basis in her case. Additionally, the rigid structure of CPS placed emphasis on her showing up when she was told, rather than offering flexibility to make contact with her son possible. The visitations with Aden were prearranged at a facility across town and could not be altered. As seen with Courtney, the trip by bus could take Ashley as much as eight hours to travel to a one-hour visitation. If she missed a visitation due to transportation, it was counted against her. Throughout the process, the burden was on Ashley to show she had fixed her alleged mistakes. This removed any opportunity for understanding or sympathy. Workers at CPS are used to parents claiming they did nothing wrong; that type of manipulation is standard in CPS cases. Ashley’s repeated pleas for help went nowhere. Throughout the time I worked with Ashley, I watched her struggle to find housing while trying to attend mandatory parenting classes. She looked for work while riding the bus. She made frantic calls between appointments in an effort to retain her hotel room. I watched as her caseworker scheduled meetings and planned requirements for Ashley, but Ashley’s availability was not considered in that process. Ashley expressed that she felt like she was being punished for calling the state and asking for help. As lawyers and legal scholars, it is easy to argue that the intent of the system is not to punish but to ensure the safety of children. But that would be meaningless to Ashley. She watched her son struggle because he was thrust into an environment with people who did not know how to work with him. She was his safe space. She was the one who had cared for him. The institution of law could not see her side of the situation. Prior to being hospitalized, Ashley was struggling to survive. Afterward, she lost her son, her housing, her livelihood, and the state’s response was to terminate her resources and place additional requirements on her. Through our time together, I saw the mental turmoil Ashley’s engagement with the agencies created. Early on, Ashley expressed anger. Later, she expressed the desire to give up and surrender to what she increasingly saw as inevitable. 177 When Ashley chose to call for help, she assumed that the institutions worked because they had helped to sustain her for years. But the very institutions she relied upon severed her family. By the time you read this, it is likely that Ashley has lost her parental rights. The agency’s goals are officially oriented toward family reunification, but the agency assumes every person has a car, has free time to make appointments, and has the independent means to sustain a family. In essence, the agency assumed Ashley had the same power and resources as an affluent individual. Those responsible for reunification do not understand the lived reality of people like Ashley. It is a product of our Techne that most of us live within institutions and never consciously consider them. For individuals in positions of power, such as scholars and lawyers and judges, it is easy to see agencies dependable. If we are wrong, we are unlikely to suffer any consequences as a result of that mistake. Unlike Ashley, our entire worlds do not rise or fall on whether we can access basic services in a fault-centric system. As with time, individuals experience institutions in different ways depending on social and economic status. It is possible to implement changes to the institutions to increase the ontological security of those most vulnerable, but only if the rigid formalities are willing to bend for something other than privilege. 7.6 Agency Solutions to Ontological Insecurity The problem with the identified philosophic barriers in the law is that there is no tangible solution. Ontological security is a vital concern and individuals in Ashley’s position need predictability and certainty regarding agencies. But that does not suggest an easy remedy for how agencies can incorporate ontological security. Interviews with David Hewitt provided a place to start. I must once again express my gratitude to the agency workers who helped with this project. David is a supporter of Context Theory, and his efforts to implement improvements is clear from his work. David is the director of the Office to End Homelessness for Hennepin County. He has 25 employees and helps distribute approximately $100 million in services throughout the county. The goal of David’s office is to help individuals avoid homelessness. David did not frame his work through ontological security, but that is what his agency is trying 178 to provide. In discussions, David illuminated many aspects of the homelessness problem that I had not heard from others or seen in the research. Perhaps the most powerful idea David expressed was related to his involvement of indigent voices into the development and distribution of resources. His words on this issue are worth quoting at length as what he expressed was immediately relevant to Ashley’s experience. [involvement of indigent voices] is certainly something that’s a value of ours in the housing stability area, and we want to make sure we’re holding ourselves to that standard. It’s also something I think we can continually improve on and I hope to do so. We have coming up requests for proposals for supportive housing, capital dollars for families who’ve been involved with child protection. We’re working with our child protection area and making sure we have families who have been involved with child protection as part of our process, again, for both evaluating the proposals that come in, and telling us about the trade-offs that are important. David’s agency was not involved with Ashley, but his team is trying to avoid the trauma Ashley experienced by inviting those who have been subject to CPS into the decision-making process. David’s process is exactly what I would hope to see for all state agencies. David’s agency operates on the same foundations and premise as the theory developed in this research. He said that they did a study of homelessness a few years ago in which they involved “folks who’ve been chronically homeless” and asked them, “What is most important to you?” Critically, his agency listened to responses, drafted proposals based upon the answers, and once proposals were completed, they “brought a group [of homeless individuals] together just to look at the proposals and give us their feedback on each and every one of them.” David’s agency is a city entity, but he has incorporated homeless voices into the process at two stages. David wants to focus locally, and his goal is to facilitate greater engagement between his agency and the community. He does this at the first stage by asking homeless individuals about the problems they face. He does this at the second stage by asking homeless individuals for feedback regarding the policies his agency creates. Once again, it is worth quoting him at length. We have tried to broaden our community engagement beyond the provider community that brings absolutely an invaluable perspective. It is an imperfect proxy for the perspective of the folks who are actually using 179 those services or have used those services, and that voice needs to be at the table as well. Community engagement with agencies involves an additional issue regarding who runs agencies and who the agencies hire. Roy made the same observation. Agency heads are like scholars and judges, often wealthy and successful. They come from prestigious backgrounds, and they are picked to lead agencies based on their pedigree—not for their experience on the ground. What both Roy and David identified as a concern within agencies is the empathy gap created by the lack of experiential diversity. If agency leaders never experienced ontological insecurity, if they never confronted the issue, then how can they appreciate the volatile circumstances in Ashley’s life? In addition to the involvement of those with lived experience, there is another viable solution which David did not mention. That is the idea of horizontal accountability between agencies. Horizontal accountability is the requirement that the Department of Human Services, Department of Urban Housing and Development, and the Department of Agriculture must work together, share information, and collaborate. I can only imagine how much of a difference this would make in Ashley’s life. If CPS were in communication with the agency providers, maybe the system would start to separate her from fault-based services and provide assistance she needs for the return of her son. Currently, the United States only exercises vertical accountability within agencies. Roy reports to his superiors at DHS but has no obligation (or ability) to coordinate with HUD or CPS. This is how Ashley fell between various agencies. Each organization trusted that the others would help her and there was no umbrella to coordinate state actions and concerns. Thomas Schillemans argued that we discourage horizontal accountability because it is expensive, but that is a mistake. Schillemans’ research with agency designs suggested that horizontal accountability fosters inter-agency collaboration.358 The redundancy involved in vertical and horizontal accountability increases institutional reliability. For people like Ashley, the result would 358 I would also like to recognize the response of Judge Karen Duncan when asked about “administrative economy.” While Judge Duncan has never published, she is an advocate for efficiency. Greater investment into our agencies results in better execution, and that is the true measure of “economy.” 180 be ontological security. Horizontal accountability creates a continuum between HUD for housing, DHS for food security, and CPS for Aden’s wellbeing. Schillemans’ research also found that horizontal accountability ensured that errors were discovered by seemingly redundant agencies. Admittedly, and horrifically, there is no error in Ashley’s predicament. Ashley experienced the agencies as they were intended to run, but collaboration would have illuminated how institutional operations created barriers for Ashley—barriers that were not the result of her failings but the product of their inability to view context. Finally, Schillemans found that horizontal accountability mitigated information asymmetries.359 Implementing horizontal accountability would mean that DHS would have all the information about Ashley’s CHIPS case, giving them the opportunity to provide broader context to her circumstances. Making more information available would help those like Ashley plan and predict agency actions. It would help people like her to take an active role in their own cases. For implementation, horizontal accountability would require agencies to collaborate. Child Protective Services and the Department of Agriculture would coordinate to ensure that Ashley received food assistance during her efforts to reunify with Aden. This approach would leave no more cracks for individuals to fall between. 7.7 Falling Between the Cracks At some point, Ashley was evicted from the hotel. The funding keeping her housed on a week-by-week basis ran dry when the public determined that the pandemic had come to an end. Finding secure housing and obtaining ontological security had been impossible for Ashley. Without the support of the state agencies, Ashley lacked the time and resources to complete everything the Court required. Like the other participants in this work, Ashley’s final condition is unknown. It is hopeful, and incredibly naive, to think that she was reunited with her son. After one year, the Court starts moving toward permanent separation. That means the law 359 Thomas Schillemans, “Redundant accountability: The joint impact of horizontal and vertical accountability on autonomous agencies” (2010) 34:3 Public Administration Quarterly 181 will no longer consider Ashley a mother. Aden will be subject for adoption. That connection will be permanently separated. The law only requires “reasonable” efforts for reunification, but that is interpreted through the economic lens of the agencies. There was never real support for Ashley. Beyond the ontological betrayal Ashley experienced is another crisis experienced by many people on the Greenway. They simply are not heard. When they speak, their voices are relegated to “anger” or “immaturity.” Ashley’s inability to retain calm composure when discussing the loss of her son counts as a lack of credibility. The continued failure to hear the poor in their terms is an epistemological failure. As lawyers and scholars, what we know is mathematical and logical. Our heritage means that knowing is citing or formulating. We do not consider community stories to be a source of law or knowledge. Fiction is a source of entertainment but holds little practical application. Perhaps the hardest part of Context Theory is seeing the other on her terms. This means seeing the source of anger and seeing their source of authority. It does not mean seeing every source as equivalent. One of my favorite aspects of studying on the Greenway was working with the Native community. As a scholar, I am inspired by the work of Dr. Val Napoleon. One passage of her work is particularly relevant to this project. When discussing Native law, Napoleon cited another scholar whose work directly relates to the lesson we must learn. It is one thing to simply listen to the stories and quite another thing to think with and through them, to identify the law they contain, and to apply them to pressing practical problems—thereby affecting practical consequences.360 360 Val Napoleon and Hadley Friedland “An Inside Job: Engaging with Indigenous Legal Traditions through Stories” (2016) 61:4 McGill Law Journal, 725-756 (citing, Bruce Granville Miller, Oral History on Trial: Recognizing Aboriginal Narratives in the Courts, (Vancouver: UBC Press, 2011). 182 The Greenway taught me that listening is a skill. I was fortunate when a former resident of tents, Alan, took the time to teach me what law can look like outside of our Western tradition. There is a way to hear stories, as lawyers and scholars, without relegating them to data or dismissing them completely. But first, we must be open to the idea that there is a source of knowledge that is not our own. Our tradition calls it epistemology, but it can be equally conceptualized as bad medicine. 183 Chapter 8: Epistemology as Bad Medicine If one thinks about racism by examining only one wire of a cage, or one form of disadvantage, it is difficult to understand how and why the bird is trapped. Only a large number of wires arranged in a specific way, and connected to one another, serve to enclose the bird and to ensure that it cannot escape.361 Nancy Rosenblum described the epistemological issues in discussions of law and politics. According to Rosenblum, the prevalent problem for modern scholars is not an issue with what scholars do not know. Neither is it an issue with scholars thinking they know something they do not. The problem with modern scholarship for which Rosenblum expressed acute concern pertained to the engrained conception of what it means to know.362 For scholars, “knowing” is an empirical process of data collection and analysis. Rosenblum’s work pointed to inadequacies in the assumptions that underlie that process. Without deliberate contemplation, scholars rely on metaphysical and ontological assumptions to justify epistemology. In this line of scholarship and reasoning, Ashley Tierney’s anger and frustration are not relevant to the court. Her tears carry no legal weight and provide no factual basis for the court to consider. Legal analysis does not consider Nussbaum’s ten capacities; the law does not provide space for human dignity as a legal consideration. This approach extends beyond the legal structures to other institutions. DHS does not consider how play might be relevant for the distribution of food stamps; HUD does not ponder how interactions with other species might be foundational to stable housing. 361 Iris Marion Young, Supra 44. 362 Nancy L. Rosenblum & Russell Muirhead, A Lot of People Are Saying: The New Conspiracism and the Assault on Democracy, First Edition, (Princeton University Press, 2020). 184 The research collected for this work aligns with Rosenblum’s primary concern: meaningful change cannot occur until law considers epistemological alternatives. While it may be possible to implement change into the existing system, the structure and function of the institutions of law makes that doubtful. According to Thomas Kuhn, whose academic research focused on revolutions within scientific research, it is unlikely that there will be a shift in paradigms until the current structure collapses. 8.1 Kuhn and Epistemological Resistance of Law Kuhn’s point can be seen tangibly as the housing crisis nears a breaking point. To address the desperation, legal epistemologies bend and strain to make themselves adaptable. During COVID-19, Minnesota had a near-total prohibition on evictions.363 This was not a product of sudden empathy but a shift in the knowledge and understanding of law. Suddenly, a global pandemic forced so many people into financial despair that the system could no longer operate on a fault-centric approach. Faced with this conflict of worldview, the law splintered to adapt. However, it is necessary to note that the adaptations were temporary. In a circumstance when the law could clearly identify no-fault situations that would typically result in eviction, the law adapted. But the adaptation was not sustainable. Effectively, housing laws were simply not allowed to be enforced.364 Put differently, when empathy entered the legal structure, the legal structure stopped applying the law. Context Theory raises the question: can law and context coexist? From this work and other research, the answer appears to be: Maybe. Though the more persuasive position appears to be: Yes, but only if the legal structures are demolished and rebuilt with integration in mind. Kuhn’s work focused on the shifting paradigms within scientific fields, but his findings carry weight in law. As scholars, we hold a theory and a belief system. Scholars justify the system and patch it together as new models and discoveries challenge the theoretical core. Once the challenges become insurmountable—as seen 363 Minnesota, Department of Human Services, Minnesota COVID-19 Response, 2021, online: < https://mn.gov/covid19/for-minnesotans/get-help/housing.jsp> 364 See generally, Nino C. Monea, “Eviction Moratorium Litigation: What Courts Said, and What Courts Missed.” (2021) 51:1 U.Balt. L. Rev., 185. 185 during COVID-19—the epistemology breaks, and a new theory becomes the standard model.365 Our current epistemological model focuses on empiricism and is rooted in Legal Positivism, the structure of law is based on the concrete and the tangible. But it is a structure engrained with a series of privilege-based assumptions.366 Even attempts to address disparities often result in the integration of poverty-based assumptions367 rather than the elimination of privilege-based assumptions. The law chooses to focus on syllogisms at the exclusion of alternative models for knowing. Nussbaum’s Human Capabilities theory attempted to shift knowing into a more humanistic direction. Her work encouraged scholars to engage in self-examination, to consider the humanity of others, and to exercise imagination in generating solutions.368 This final section focuses on Iris Marion Young’s epistemological concerns for law. We focus on logic and exclude those who lack legal education. From the legal perspective, the “riots” in Minneapolis were carried out by individuals and groups who acted with knowledge and intent to violate the law. From the perspective of many of those involved, the “protests” were a natural response to the State’s violation of the social contract. For people in historically discriminated communities, the law had never been a source of justice; the motivation to blindly adhere to the law was not only irrational, but unconscionable. The legal system labeled individuals as rioters. Because the individuals lacked the legal language to challenge that narrative, their complaints fell on deaf ears. 365 Thomas Kuhn, The Structure of Scientific Revolutions, First Edition (University of Chicago Press, 1962). 366 The concept and terminology for privilege-based assumptions in the structure of law and agencies was developed by Ryan W. Peterson and M. Esther Sherman. Privilege-based assumptions are layers of unspoken expectations that are present but remain invisible to those who already meet those expectations. Critically, privilege-based assumptions in law and other institutions must be inherent and unarticulated. It is the silent factor of privilege-based assumptions that prevents legal scholars from identifying or analyzing the impact. For example: Many states require drug testing for those on parole and parolees are given less than four hours to go to a specific location and submit to testing. This includes the privilege-based assumption that transportation, childcare, and communication methods are available to every parolee at a certain level. Because this assumption is not articulated (the statutes do not read, “for those with a vehicle who received notice and have stable childcare, drug testing will occur…”) there is a built-in disadvantage for those who do not have those privileges. This skews the system toward privileges that are not identified or acknowledged. It is important to note tech organizations have used similar terminology and concepts, particularly in identifying aspects of racial profiling and disparities in automated systems. 367 The concept and terminology for poverty-based assumptions in the structure of law and agencies was developed by Ryan W. Peterson and M. Esther Sherman. Poverty-based assumptions are ingrained beliefs that assign levels of fault, impute expectations of low intelligence, and cause the system to adopt paternalistic responses in a structural way. That is, a poor person is often assumed to be at fault for circumstances, unable to comprehend things or manage finances, and ultimately requires oversight for decision-making. Importantly, this is an expectation based only on a person’s poverty level, not any case-specific fact. Poverty-based assumptions appear most often in fault-centric services from government agencies and in specialty courts in the field of law. 368 Martha C. Nussbaum, Supra 158. 186 Admittedly, there was no mechanism for the law to hear their complaints. The meaning manifested in the words of individuals could not comport to the current function and structure of law. When laws are broken and intent is called into question, the intent that must be shown is that the criminal act was done intentionally. Throwing a brick through a window is a criminal act. The law may ask if the brick was intentionally thrown through the window, but it will not consider if it was thrown with the intent to seek justice or to gain notice from a system more comfortable with imprisonment than conversation. To the institution of law, it is not rational to break the law to seek justice or gain notice. This gap in rationality was addressed by Bent Flyvbjerg, who warned that legal rationality justifies and maintains power structures.369 As lawyers and legal scholars, our legal rationality blurs with rationalization; we use it to justify power structures that generate inequality. Because of the rationality adopted in legal epistemology, the law does not hear Ashley’s ontological concerns. Because the experience of time is not subject to a positivist methodology, scholars fail to see Courtney’s experience of time. These differences matter. The ability to understand these differences determines if Applied Equality is possible. Throughout my experiences on the Greenway, I never interviewed a homeless individual with the ability to elucidate their struggles in terms acceptable to legal institutions. Even if Courtney could articulate her desire for connection and control, the law would not consider such human needs as legally relevant to homeless camps. Even if Ashley could get the court to acknowledge she was temporarily unable to care for Aden because of an unavoidable medical condition, the law would not find that factually distinct from abandonment or drug addiction. She would still be subject to the same poverty-based assumptions that determine her fate. While both Courtney and Ashley conflicted with legal epistemology, the most profound example I found was in the form of an Indigenous man named Alan. When I met Alan, he was no longer homeless but remained precariously close to that edge. Living in extreme poverty and having come from the Greenway, he carried the 369 Bent Flyvbjerg, Rationality and Power: Democracy in Practice, First Edition (University of Chicago Press, 1998). 187 knowledge of homelessness with the reverence it was due. Like the others I interviewed, Alan did not discuss epistemology. Instead, Alan told stories. In his portrayal of circumstances, he held tightly to his people, demonstrating a reliance on narrative that emphasized a broader history. With his stories, he beckoned the legal community to listen to more than words. He hoped his experiences would be a source of understanding for those who had never stepped beyond Western traditions. In each interview with each participant of this study, I asked what they wanted you to know. I asked what they wanted the legal community to hear. Alan wanted to tell you about history, culture, and the meaning of law to his native population. Alan wanted to help scholars break free of restrictive epistemologies. Alan offered his personal story as a reflection of the struggle between Western ideals and native heritage, a struggle between positivism and traditions as sources of knowledge and identity. What I found in listening to his words over and over again was the foundation of knowledge. More than anything else, Alan provided an answer for how “to know.” 8.2 Wall of Forgotten Natives For one of the interviews with Alan, my colleague and I joined him in a coffee shop where he worked. It was cold and dreary outside, the early days of Minnesota winter. By that point in the research and interview process, it felt like every day was waiting for or recovering from winter. The weather easily joked about in the housed community is less jovial in the homeless population. There is more that must be done to avoid dying in the winter. Grey light bled through the tinted windows as we gathered around cups of coffee and Alan spoke about the art exhibit in the building. There was a spark to his voice when he spoke about the artwork. An Indigenous exhibit would be there the next month and Alan encouraged my colleague to see it. The three of us sat for a while and talked around the unspoken reality of what we were there to do: talk about homelessness. While that section of the conversation didn’t offer any meaningful facts or substantive debate, it was important for me to witness as a scholar. In speaking about homelessness, pride is rarely a topic of discussion. As lawyers and scholars, pride does 188 not naturally connect with the circumstances of homelessness. But for those who have experienced it, the link is powerful. Pride is a fundamental consideration. Many on the Greenway have family they could technically call, but they won’t. Some know that the people they could call won’t help. In Taurus’ example, her last attempt to visit home was to pick up mail regarding SNAP. Instead of allowing her inside, her mother shot out the tires of the vehicle as she arrived. Taurus was unable to complete her paperwork; the person who drove her to her mom’s was no longer willing to help. Others in the tent communities have family members who are unwilling to hear the tears on the other end of the phone. Stories of mothers and sisters and brothers and cousins crying and begging are plentiful on Lake Street. Stories of ambition and success and ‘almost making it’ are just as plentiful. There is a percentage of the homeless population who could call family for help, but they are too proud. For some, it is easier to die than admit your addiction and failure to your family. But pride is not limited to the currently homeless. Many who have been homeless and ‘made it out’ could impact the system for the better if they shared their stories, their own experiences with the failures in the system. It is easy for me to say because I am not in that category. But the conversation around coffee was a reminder that they do not owe us their stories. The personal horrors of others are not an entitlement for the academic community. Courtney, Ashley, Alan, Taurus, none of the people with whom I spoke owed me anything. Some spoke with me because they believed they could help someone else. Some spoke with me because they wanted proof of existence. Alan didn’t want to talk to me. Not about that. He was proud to be Indigenous. He was ashamed to have been an addict. We began by talking about art, so we didn’t have to talk about pride. Alan grew up in Northern Minnesota and moved onto the Greenway. Some of the facts in Alan’s story came out in the wrong order. After listening to the interviews again, I know the stumbling was part of the story. There were pieces of his pride left in parentheticals when I listened closely. When he first moved to Minneapolis, he moved to Southside. He described that time as moving into a “bit of a hell hole.” Conditions were so bad that he and his partner quickly moved out. He didn’t want her to be in that environment. That was the first fracture of pride he let slip. He wanted more for her. 189 After the ‘hell hole’, Alan devoted himself to work. He said it was a “nose to the grindstone kind of thing”. Alan stressed that he knew how to work. Contrast was implied. My colleague prodded him as to what he meant. He expanded to say he meant that he didn’t think others in his community worked hard enough. He saw his own people as lazy, reliant on welfare and handouts. That was the idea he embraced from childhood, the dominant piece of ‘culture’ that he adopted from the white world. By every measure, Alan did everything right. He got a job, made good money, was loving and loyal to his partner. Alan bought into the system of ‘whiteness’ and adapted his behavior for the social expectations around him. But it didn’t matter. Despite working hard and following the cultural narrative, Alan found himself homeless, an addict. There were moments in the interview when the gray light seemed to strip him of color. That was one of them. He became an addict. He was an addict. Some part of him would always be an addict. The tense never seemed to come out as a delineation of time as much as an admission. The things he criticized in others from his community became his dominant features. There was a circle of trauma that he didn’t know how to escape. Alan wanted readers to know about the Native Wall. The Wall was a large homeless encampment in South Minneapolis. There were about 150 tents positioned along the southern edge. More than 300 Indigenous people camped with their families along the Wall. Just like the encampments in Powderhorn park and on the Greenway, the Wall community was displaced by the city. To those outside of that world, it was a nuisance to be removed. Alan wanted me to know what it meant before it was torn apart. He wanted you to know. Alan tried to get the name changed. He argued that the “Wall of Forgotten Natives” should have been called “America, the Brutal.” After all, homelessness in the Native population had been ongoing for centuries. He informed me that my own community in Blue Earth used to be a reservation for his people. Until more fertile land was needed. Slowly carving away his people’s territory and their pride, until they were relegated to “The Wall of Forgotten Natives.” Alan was adamant that it is not just homelessness, but a whole framework within our legal and political institutions. Alan presented the problem as a much larger issue than affordable housing or discriminatory laws. What Alan identified can be framed as a concern regarding a 190 harmful epistemology. The problem Alan hit hard was that we value our logical regressions more than we value individual people. Our legal framing makes us blind to the errors of our own methodology. Alan wanted to rename The Wall of Forgotten Natives because it wasn’t enough to say they had been forgotten. Indigenous Peoples had been and continue to be brutalized. The wound of homelessness across the country was inflicted by more than turning away. Alan expressed the problem as a core issue within American culture. He blamed capitalism most significantly, but he did not ascribe to any ideology. Alan was not even against capitalism; he was for prioritizing individuals and seeing what is important in society. For Alan, the problem was not about economic models or theories. It was about people. The problem wasn’t about money, it was about humanity. Alan’s hopes and fears about a better system sounded a lot like Martha Nussbaum and Iris Marion Young. The ten capacities are about seeing individuals and creating a paradigm in which every person can live a dignified life. What Alan shared was that the mechanisms of law, what we consider valid within the law, prevents such considerations. What Alan argued was that the epistemology of law is contrary to a dignified life for all individuals. According to Alan, there is a particular formula within American jurisprudence. A formula derived from capitalism. It sneaks into law through our predominant neo-liberal roots, and it requires a third of us be downtrodden. He talked around the unspoken equation of economic privilege. Alan identified the homeless individuals on the Greenway as refugees. He called them refugees from a system that devalued them in favor of market profits. Agency employees complain about drug addiction and difficulty working with homeless populations. But Alan identified addiction and abuse as resulting from the agencies’ actions. He spoke of homeless individuals fleeing oppression. Courtney fled an abusive husband. She had no legal protections. Ashley was fleeing from debt and struggling against the agencies that took her child. It all connected to epistemologies and what it is we think we know. Alan wanted you to know that he used to live a “dignified” lifestyle. That was until he “fell down”. He started abusing drugs. The connection is critical to our understanding of law and homelessness. He fell down. He started using drugs. In that 191 order. We categorize the homeless as deserving or undeserving without understanding an individual’s path. Scholar Noah Zatz described how state aid targets “deserving poor” by filtering it through rational restrictions.370 According to Zatz, there is little state aid for those who caused their condition. Those who find themselves in the fault-centric services mechanism are unlikely to get the help they need. Those are the undeserving poor. No, those are identified as the undeserving poor. Zatz challenged the analytics used to determine who is deserving and who is not. Courtney would be considered undeserving because of her addiction. But in another frame, her only choice was between abusive men and her struggle for survival. The label placed on her changes depending on where we choose to start her story. The context matters. The framework by which we determine if someone is deserving of aid is erroneous. Alan wanted to return to steady work. Alan was a homeless addict who wanted to be a positive role model for his child. He wanted a healthy family and strove for the “American dream”. But his desire was not enough. Alan was not the beggar asking for a dollar. He sought work and tried to fit the American model. What finally pulled Alan out of homelessness and addiction was not state services or legal assistance. Alan received something the current system does not see as relevant. Alan found a mentor and a new perspective. Alan was struggling in an epistemology that valued him as a financial investment. From an economic standpoint, Alan was a failure. He was running in the wrong direction and abusing himself for his faults. 8.3 Replacing Epistemology with Medicine The irony in Alan’s story is that it was only after he abandoned Western epistemologies and goals that he was able to free himself from his addiction. There is a lesson that is worth understanding; somehow, magic words from the right person changed Alan’s life. One mentor changed his epistemology and his trajectory. If one 370 Noah D. Zatz, “Poverty Unmodified: Critical Reflections on the Deserving/Undeserving Distinction” (2012) 59 UCLA Public Law & Legal Theory Series 192 mentor can do that, one person simply using their voice, imagine what the might of an entire agency could enact. If it wanted to. If it tried. What Alan wanted you to know is a lesson on false medicine. When translated to legal scholarship, the lesson on false medicine is a lesson on epistemology. Positivism and liberalism are false medicines just as much as drug addiction. Alan’s point was unchanged whether we were discussing drugs or ideology. False medicine was about quelching your own insecurities. It was about the voices in your head, and it was a determination of which voice would control the narrative. Alan’s story was deeply discomforting because it proposed that scholars are using false medicine. To Alan, avoiding the homeless is avoiding the self. Scholars avoid the homeless by structuring logic and ordering knowledge in empirical terms. The homeless are externalities, invisible to the scholar, and thus, the scholars can continue their work without guilt. Whether our methodology prevents us from seeing or we consciously look away, the end result is the same. We affirm our own structures of knowledge. We reify what is true and further exclude those who lack access to our privilege. Alan adopted a view of medicine that was carefully constructed. He said it was different from the medicine in Western culture. The Western culture’s medicine is prescribed by a doctor and manufactured by pharmaceutical companies. There is a structure and a procedure in place, just like in law. Epistemologically, that is how we distinguish medicine from drugs. It is why OxyContin is a medicine and methamphetamine is an illegal substance. It is the source of origin that is valued. The sale of methamphetamine won’t boost profits for shareholders. Just like Western law, Western medicine is conducted by professionals in appropriate dress using appropriate language. Alan wanted to get you to think about medicine and law more broadly. Law can be found anywhere. Like drugs, it can be helpful, or it can be destructive. Its existence does not depend on men in robes. Using law correctly, as Alan prescribed, would allow us to see Nussbaum’s ten capacities and implement them into our legal frameworks. Currently, law is being used as a false medicine to numb society. It is used to destroy tent communities, criminalize victims, and maintain power structures. If Alan is correct, that is the purpose of law. 193 Alan described medicine as the tools we use to deal with life. Native medicine is cultural. Like native law, it is based on oral traditions and relations among and between tribal members.371 With that background, it makes sense to talk about Native medicine as Native law. As Alan explained his idea of medicine, I saw how it applied to the homeless for as much as their experienced trauma as their antidepressants. Alan talked about using the false medicine of drugs and alcohol as escapism. But he warned me that you can also use rationality as an escape. The entire construction of law is an escape from vulnerability. Wendell Berry identified the spread of libertarian ideology as a form of bad medicine.372 The liberalism from colonization destroyed communities that had formed through emotional bonding. Now, that same liberalism ravages the colonizers today. Rational models of law cut through the emotions and human elements of law. Bruno Latour makes a similar point in his book “We Have Never Been Modern.” According to Latour, our age is defined by the positivist approach, but all the issues we confront are created socially and politically.373 The problem of misinformation, insurrection, and the violent invasion of Ukraine cannot be resolved by a “rational” approach. Science will not prevent the poor from dying on the Greenway. We need to have a conversation as a community and fix the way we think. Feminist scholars have been pushing this argument for some time. We need a new frame for thinking about law. The positivist structure we maintain holds that emotions are irrelevant. In a structure that focuses on the certain, the subjective is superfluous. Our law creates proofs that are absolute, but those same proofs preclude the struggling and hungry. In Nussbaum’s framework, the formulaic approach also precludes the core of law, human empathy and compassion. According to Nussbaum we cut the needy and the hungry from our analysis because we want to cut all misfortune from our legal epistemology. We view homeless people in disgust because they are an existential danger to our sense of self. Our 371 Andrea Laforet, “First Nations Cultural Heritage and Law: Case Studies, Voices, and Perspectives”, (2011) 34:1 Museum Anthropology, DOI: 10.1111/j.1548-1379.2010.01108.x 372 Wendell Berry, The Unsettling of America: Culture & Agriculture, First Edition, (Catapult, 2015). 373 Bruno Latour, We Have Never Been Modern, (Cambridge, Harvard University Press, 2012). 194 positivism is a way for us to hide from our own humanity. According to Inmaculada de Melo-Martin and Arleen Salles: For Nussbaum, not only is disgust liable to give us bad guidance, particularly in political and legal affairs, but because it makes us shrink from our own animality and mortality, and encourages us to see weak individuals as objects of disgust, it undermines respect for human dignity.374 Alan might suggest that disgust is necessary for the oppressive outcome of our system because it creates a barrier between me and the object of my disgust. But the human mind is complex; we do not reject the homeless outright. Rather, we justify our position through our epistemology in the same way we justify their despondency. That is how we separate “us” from “them”. A few western legal scholars touched upon this idea, but only by affirming the positivist structure. Robert Cooter defined law as obligations backed by sanctions. The primary sanctions we use in the West are economic. Cooter’s work showed us that it was through the economization of law that we became dominated by econometrics.375 The value of an individual in the modern economy is their earning capacity. But Alan stated that we need more. He said it was this need for more that causes us to pursue forms of bad medicine. Alan described bad medicine as a buffer between the individual and reality. A good medicine helps an individual cope with reality. Law as a proper medicine can facilitate growth, both interpersonal and collective. As a form of bad medicine, law can divide us and plague us. Based on research and observations on the Greenway, we use law in a bad way. It is the pill we swallow to avoid the fates of others. It is inoculation against the truth that the same fates are possible for us. 374 Immaculada Meo Martin & Arleen Salles, “On Disgust and Human Dignity” (2011) 45:2 The Journal of Value Inquiry 375 Robert Cooter, “Expressive Law And Economics” (1998) 27:S2 The Journal of Legal Studies, DOI: 10.1086/468036 195 8.4 Medicating the Buzzkill of Reality Early in his relationship, Alan continually told his partner, “Please don’t be a buzzkill. Just let me enjoy my buzz for a minute.” Alan needed a buzz because he was in pain. But the pain was not physical. The pain Alan described was blood memory. It is what is called epigenetics in Western medicine. Epigenetics explains how traumatic experiences activate dormant genetics.376 In the courtroom, we attribute a victim’s erratic behavior to instability. The court identifies reasonable and unreasonable responses to trauma. But medical science does not support this view. Trauma may have literally changed a victim’s genetic expression. Perhaps more troubling, such traumatic activation of genetics can be hereditary.377 Western traditions are used to blame the homeless. We tell the homeless to work harder and ignore their circumstantial limitations. Alan told me that “if white folks want to think for one minute that they’re not affected by their own blood memory, they’re fooling themselves.” That cautionary instruction has haunted me throughout the project. Alan’s words forced me to consider my own blood memory. What I inherited from my family and what I am leaving behind for my daughter. Even if I cannot remember my great-grandfather, his influence trickles down and impacts my perspective. Alan’s lesson on blood memory became a core consideration of Context Theory. It is built into the process through self-examination and self-criticism. A realization that we need to think about our own luck and trauma if we are to practice law and scholarship in humane ways. According to Alan, our current epistemology is our bad medicine. Alan said that the city of Minneapolis used the American Indian organizations to identify all the homeless encampments. Using informal networks, the city identified camps and demolished them. Alan explained that Indigenous leaders thought they were identifying tent locations for the implementation of services and support. The city was acting to help, but 376 Joanne Ryan, Isabelle Chaudieu, Marie-Laure Ancelin, & Richard Saffery, “Biological underpinnings of trauma and post-traumatic stress disorder: focusing on genetics and epigenetics” (2016) 8:11 Epigenomics, DOI: 10.2217/epi-2016-0083 377 Natan Pf Kellermann, “Epigenetic transmission of Holocaust trauma: can nightmares be inherited?” (2013) 50:1 The Israel Journal of Psychiatry and Related Sciences 196 the definition of “help” was very different for the two populations. Homeless people were deemed to be a risk for public safety; officials considered the best option to force them into shelters. It was a very “ends justify the means” mentality. But Alan’s explanation showed why most homeless individuals do not consider shelters to be an option. The homeless and the agencies work from different epistemologies. Beyond the differing views of “help”, agencies often act without cultural or racial awareness. That is, the agencies act as if they do not see color, ignoring all of the other places in society where color is quite obviously seen. Indigenous Peoples were told to go to Harbor Lights, but American Indians weren’t welcome there. They weren’t allowed at St. Stephen’s, they weren’t allowed at St. Catharine’s, and they weren’t allowed at any of the church shelters. Other individuals reported that the church shelters required church attendance, and many Indigenous Peoples refused to sacrifice their own cultural and religious beliefs. At facilities such as Harbor Lights, there are feuds and rivalries with other ethnic minorities. Racial dynamics and conflicts between groups are ignored by agencies. As a racial minority, Alan was told that he was going to get his “ass kicked.” Alan said poverty and desperation have a way of activating dormant genetic codes and triggering violence. In practice, this means the actions of agencies not only create homelessness, but we create violence. Alan showed me how the conditions created by our laws ensure that a person can only protect his own. Scarcity turns people on one another. The racial and cultural divides seen in prisons are mirrored in the homeless communities. In shelters, it is the only way to survive. Trauma imbeds itself into the person and into the community. Replicating itself and multiplying. Our framework of legal positivism excludes the mentality and perspective of those trying to survive within the system. In acknowledging the hereditary nature of trauma, I came to question if positive responses can be resurrected too. There is very little medical research on the positive power in epigenetics. But my Western logic dictates that if trauma can be inherited, then perhaps success can be passed through blood. The positive reversal of Alan’s trauma is the question: What amount of support and encouragement can activate latent genetic codes? What recent scholarship does exist found that positive practices may reverse 197 adverse genetic effects of trauma and stimulate healthier immune responses.378 But currently, we do not consider that within law. Alan shared stories about intimidation by aggressive men at shelters. He said the police would not help them because it is not a crime to bully somebody. Alan said that Minneapolis will neither help them nor let them camp. Tents are moved from one community to another as the city pushes people to relocate. Each time the city acts, individuals lose their tents and the few possessions they had. Each time the law is imposed, the tent community disbands and then comes back together a few miles or a few blocks away. Alan said he was begging for permission to escape the violence. Tents collected as disenfranchised people tried to integrate into a community. Alan was never a part of any community. He is half Indigenous and half Caucasian. He is rejected by both communities. Alan drank and smoked for years, but it was one day when Alan was staying with friends that he fell into something worse. His friends invited him to join them for something he initially thought was marijuana. It was crack. 8.5 Sometimes Falling Feels Like Flying The imagery Alan used is familiar to many people who have described the effects of crack and methamphetamine. Alan said he went floating over to them, “like Bugs Bunny going after his carrot cake.” Others on the Greenway described something very similar. In Alan’s words, “I took one hit, and from then on, it was a 10-year love affair.” Back to the nature of time and the relevance of circumstances, the law does not look for the relevance of this moment. Alan did not decide to be an addict. He decided to spend time with friends. He decided to feel good for a day. He made a choice which, in context, is no different than that of any judge, lawyer, or scholar. Not everyone who tries meth or crack is an addict for 10 years. And not every long-term addict is homeless. Alan wanted readers to recognize that many suburban users 378 Sabrina Venditti, Loredana Verdone, Anna Reale, Valerio Vetriani, Micaela Caserta, & Nichele Zampieri, “Molecules of Silence: Effects of Meditation on Gene Expression and Epigenetics” (2020) 11 Frontiers in Psychology, DOI: 10.3389/fpsyg.2020.01767 198 began methamphetamine because they were trying to increase performance and maintain appearances.379 Meth addicts can be successful businesswomen and mothers; taking Adderall to meet impossible social demands. This reality provides a critical distinction between the homeless and the housed. Suburban addicts can hide their addictions. They can wait for a bed to be available at a discrete clinic. The homeless have no private space. They have nowhere to wait. Their fights, their trauma, their addictions are dramatized for the passing public. Those in the homeless community described methamphetamine as creating a sense of wellbeing. For a short period of time, life is okay. The pain stops. The struggle to find food, stay safe, and the self-loathing that goes with homelessness abate while the drug works its way through your system. That feeling of need and that struggle is not isolated to the homeless. The wealthy use drugs too. Some use it to feel better, like Alan. Others use uppers to increase performance. In both cases, we abuse bad medicine to comply with a false cultural structure. In a recent study on suburban addiction, a 35-year-old Caucasian female described her drug use. She is wealthy and successful. She described herself as the last person you might suspect of being an addict, but in her words: I’d get up and clean the whole house up, and cook, have a big dinner ready, and felt happy. That’s the devil in methamphetamine because it makes you happy. And you don’t know why, and you don’t really care. Personally, I never associated it with being high. At that point I was not doing enough to get the high, high feeling. Just enough to, wow, I feel great. I feel good; let’s paint the house.380 It is the same frame Taurus used when she injected methamphetamine into her veins. She didn’t want to get high; she wanted a few hours to not be in pain. A wealthy white woman and a homeless minority share the same demand for existence. But one is criminalized, and the other is socially praised for being a great mom and a great wife. 379 Miriam Williams Boeri, Liam Harbry, & David Gibson, “A Qualitative Exploration of Trajectories Among Suburban Users of Methamphetamine” (2009) 3:3 Journal of Ethnographic and Qualitative Research 380 Ibid. 199 Both the mother using drugs to conform to impossible standards and the homeless trying to survive until tomorrow are operating under an external myth. It is only our epistemology that separates them.381 Until we confront our social pain and cultural conditions of our epistemology, we are fighting a hopeless war against homelessness. In 2020, approximately one in every five prison inmates was incarcerated for drug possession.382 The statistics suggest that we, as a culture, are medicating. When Alan fell, he was not the only person who ended up on the street. Alan’s family relied on him as the breadwinner. Suddenly, his family was also homeless. Alan was living in a van and his partner was living at the Minnesota Indian Women’s Resource Center with his daughter. He became a slave to drugs and was seen as a degenerate within society. From his perspective, he fell because he was fighting an endless struggle to live a respectable life. The failure made him a bitter person. Alan turned against the state and all its agencies. Alan struggled for objective indicators that he was enough. He had always pushed his daughter to do well in school. He always told her that America’s the greatest country in the world. “You work hard, you can get somewhere. You can do this.” Alan doesn’t believe that lie anymore. He is not against the United States, but he is against confusing a person’s success with their job, education, and economic value. The more Alan medicated his problems, the deeper he buried his desire and longing to belong. A positivist epistemology caused him to medicate more and push deeper. As a “half breed” he was rejected by both communities; his system rejected medicine from both worlds. Alan explained that our medication depends on our life experiences and origins. Alan defined medicine as the thing that “makes you feel different.” In an uncomfortable moment of candor, he told me that running was my medicine. It was my release and escape. The words hit some internal truth. The thing I value as an asset is a means by which I escape. Scholars utilize their formalities and logic in the same way; it is a buffer 381 Robert Pirsig describes the classificational differences best. When asking natives on the reservation “what kind of dog is that” he gets the response, “that is a good dog.” Prisig wanted an Aristotelian classification, i.e., what species is that? The native perspective is non-Aristotelian and classified the animal based upon its quality. See, Robert M. Pirsig, Zen and the art of motorcycle maintenance: An inquiry into values. (Random House, 1999). 382 Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2022, online: Prison Policy Initiative <https://www.prisonpolicy.org/reports/pie2022.html> 200 and a security from the world. I use running like Alan used drugs. Like scholars use methodology and judges use precedent. It helps us escape our responsibilities. The medicine we reach for depends on what we’re exposed to in life. “White people call that peer pressure and peer groups. Well, my peer group when I was growing up in high school was a bunch of druggies. That’s the medicine I grew up with.” Until you find a different outlet and different avenue, you are going to medicate with what you know. As the discussion settled, Alan straightened in his chair. The switch from mentee to mentor was visible. He didn’t just want to share a story, he wanted to communicate a truth. Alan called this part “a big clincher” and “a secret thing”. I report it in full because it is powerful and worth holding. I’ll tell you this. What you fill your heart up with dictates what kind of medicine you need. Do you fill your heart up with love, empathy, caring for others? Then your medicine is going to be volunteering and donating and being good to people. Are you mean, mad, and angry with people? Are you apathetic to their problems? Well, then your medicine is going to be either apathy or drugs, ignorance, pretending that your eyes don’t see something, and you’re medicating like that. We all use medicine in some form or another. But not all of us read the labels. When the medicine you take is legally and socially acceptable, you are not forced to confront how you use it. To Alan, identifying the medicine we use is the first step to understanding how we use it and why we need it. If law is the substance between subsystems, the connection to every institution, what is it exactly that fills us? If the outpouring of law is inequity, the execution of law a maintenance of power, what can we say is its purpose? The law carries a reflexive ability to fill the heart with good and to be a powerful tool for the betterment of humanity. To reach that point, we must first recognize our ideology and bias as a form of medicine. Lawyers and scholars must recognize the vulnerabilities we medicate away with research and knowledge. In Arthur Schopenhauer’s work on ethics, he argued that compassion is only possible through self-identification. To a certain extent I have identified myself with the other man, and in consequence the barrier between ego and non-ego is for the moment 201 abolished; only then do the other man’s affairs, needs, distress and suffering directly become my own.383 Alan greatly contributed to this work by calling out that our current epistemology of law prevents identifying the self with the other. Legal syllogisms do not consider the lived experience of those on Lake Street. The prevalence of privilege-based assumptions prevents judges from experiencing the law in the same way Courtney experiences law. Our current model is rooted in liberalism; it prevents us from helping people like Alan, Ashley, Taurus, and Courtney. I hope Alan’s definition of a buzzkill hits as hard for you as it did for me. When we reach a point where we are medicating so hard on false medicine, anything can be a buzzkill. Making eye contact with the homeless, confronting acceptable addictions, or recognizing vulnerability to MRSA and other illnesses are all buzzkills. No one wants to kill their buzz because they would have to confront whatever it is that causes them to reach for medication. 8.6 Law’s Avoidance of Buzzkills Alan explained to me that this is how people end up not paying their bills. Paying bills is a buzzkill. Few individuals on the Greenway developed the soft skills necessary to navigate society. Most grew up in circumstances that meant they were always going to make a choice, “I can go to the store and get something to eat, I can go to the store and get something to drink, or I can pay my electric bill.” When you investigate intergenerational trauma, you see a cycle that leads to “fuck it.” Mitchell Duneier defines “fuck it” as the moment an individual abandons hope.384 When we last spoke, Ashley was nearly there. No matter what she did, she was going to lose Aden. It made sense that she could no longer see the point in trying. Without any hope for improvement, there was no reason to attempt any form of improvement. What is worse is the legal refusal to see such moments. The judges and agencies told Ashley to try harder. I am a participant in those conversations, and I know the 383 Arthur Schopenhauer, On The Basis of Morality, First Edition, (Hackett Publishing, 1998). 384 Mitchell Duneier & Ovie Carter, Supra 159. 202 discussions that take place away from the public. We all know Ashley will lose her children, but we lie to her face in open court. We know Courtney’s life is in shambles, but we tell her to get clean or go to jail. The fact that we look down on the Greenway and those who call that place of hurt home to “try harder” only makes the inevitability of their pain worse. That is what our epistemology does. It lies to us, and we must pretend the lie is real.385 Alan grew up watching his dad go to work and then come home and eat himself to sleep. His mother was mean. He was persecuted by the native population and the Caucasians. He used drugs because there was no hope of anything better. When homelessness is presented as an inevitability from the time of your birth, why waste resources on education? Why devote time and energy to establishing good credit? Agency workers expressed frustration that those in the homeless population do not try to get out. Embracing the full context of their circumstances, I could not identify a reason why they should. From every angle, any appearance of improvement in their lives is false and fleeting. Alan was correct when he said that a portion of people need to be poor for capitalism to work. Capitalism is driven by scarcity, and scarcity requires some people to have less or none.386 It is like the flow of ocean currents. Warm water rises and cold water falls. Saltwater falls and pushes freshwater up. The inequality in the ocean causes currents. But if there is an equalization. If the density of water is equalized across the globe, there is no flow. Capitalism requires flow. And flow requires inequity. But to Alan’s point, we could moderate the flow. We could hold a basic level of distribution for human dignity, but that would force us to question the absolute logic of our system. More importantly, for the conceptualization of human dignity, capitalism pits individuals against each other. In a hierarchical society, your success is a danger to me. My success is a danger to you. To maintain order in this system, those at the top must be able to differentiate themselves from those at the bottom. We need to know there is truth 385 The agencies and judges are also victims to this ideology. The recognition of hopelessness is not malicious, at least not in my experience. Without services or authority, those who care and have power have no tools. The individuals in the legal system want to help, but the system itself is bigger and precludes individual intervention. 386 Barbara Harriss-White, “Poverty and Capitalism” (2006) 41:13 Economic and Political Weekly 203 in a fault-centric approach; otherwise, it is possible for anyone to end up poor. The law is the tool we use for measurement. Those who evade taxes by exploiting loopholes are not criminals. Those who steal food for their children are. That is the structure of law in the United States. Throughout our interviews, Alan showed remarkable insight into federal law. He identified the basic order of things. States get mandates from the federal government; agencies get mandates from agency heads; the legislature sets certain conditions to meet and mandates to fill. Frequently, mandates are pushed without funding, placing those under the mandate against a towering bureaucracy. Alan’s understanding matches perfectly with Roy’s concern and the various interviews with agency employees. Alan told me that we are up against an impossible system. It’s individuals against ideologies and we’re only effective in our prime. From your late 20’s to your early 40’s, that’s the only time somebody’s going to listen to you. The problems we are trying to tackle are hundreds of years in the making. We need long term solutions and goals, but we only give credit on a short-term basis. When you get past 40, you’re too old. When you’re under 20, you don’t have enough experience. We only got this little, short time to where we can be influential. That’s the view Alan expressed. Of course, money expands those age cutoffs in either direction. Alan identified that he was able to break his addiction because of luck. There was no state program or agency intervention that helped him get out. He found people like him and a community that helped him with his pain. Alan was still in a “love affair with meth” when he found his mentor. He had just lost his job. He had to walk to his sister’s house to shower or his nephew’s house when it got dangerously cold. Alan and his family had spent the $5,000 he had saved when he was working. His 401k was gone too. He was on welfare and felt like he was at his lowest point. When he talked about being on welfare, the connection between him and my colleague felt tangible. They both knew how it felt to pay with food stamps. Even when the cashier doesn’t make eye contact, the shame is there. Alan collected assistance from the Mille Lacs Urban Tribally Assisted Nutrition Fund, TANF, and SNAP. The thing with pride and homelessness is that it doesn’t just prevent people from seeking help. It takes time for pride to rebuild. It will take time for Alan to see value in himself after 204 draining every bank account to zero. He expressed shame and said that he felt like nothing more than a fat and lazy drug addict. It was at that desperate point when he sought help from a place called the Father’s Program for help. The Father’s program was run by a Native fellow in his 70’s. That is how Alan met his mentor. The program Alan applied for was intended for 17 to 24-year-olds. Alan was desperate, but the program was not intended for him. They had no money for him. When the program director told him, Alan hit bottom. Alan broke down and told the man everything, every area of his life that he saw as desperate and hopeless. It was a cathartic moment before the right person. The man, who became his mentor, offered him an opportunity. He showed Alan that we are all struggling for four walls and a roof. That the struggle continues no matter who you are. Homeless people on the Greenway are struggling for some sense of community and safety. They medicate their pain with whatever they have accessible. Off the Greenway in luxurious houses, we work long hours and struggle to survive each day. We medicate through expensive vacations and the consumption of resources we are lucky enough to afford. The man took the time to identify with Alan, to see his humanity, and that was everything. That man changed the entire trajectory of Alan’s life by seeing him. Our legal system should learn from Alan’s story. Judges and agency employees should look deeper into the medication of individuals and the choices they make. It is not as simple as personal choices. It is not that societal apathy is purely to blame. There is a middle ground, but we need Context to find it. To individuals reading this, seeing and hearing can be the best form of medicine. My colleague shared her stories with Alan. The two of them bonded over the absurdity of their experiences in the system. They talked about blood trauma, her from the perspective of a Jewish woman and him as a Native man. They talked about the fears they carry for their children. Over the course of several interviews, I shared my personal stories with Alan. We found laughter and connection. We found common ground. We bonded over stories of running, homelessness, and shared moments of humanity. A middle-aged man from the Ojibwa tribe and a young white scholar from Southern Minnesota found good medicine in seeing and hearing one another. If it is possible for the two of us to relate, there is hope for others. Taking the time to see the humanity in someone else’s story 205 breaks the phenomenological barrier. The very act of listening and hearing can be enough. 8.7 One Good Update I made numerous trips back to the city in an effort to find Alan. I went to the old coffee shop where he worked, but he was no longer employed there. My immediate reaction was fear but this once, I was given hope. His former coworkers were excited to tell me that he quit his job and took a position as an Outreach Coordinator for the University of Minnesota. They gave me his information, and I tried to track him down. While I did not “find” Alan to connect with him personally, I found his influence. He is working in the native community, helping youth find their way off the street. It is worth recognizing the cultural significance involved in his recovery. Throughout this work, I visited numerous shelters, but the most impactful shelter was the American Indian Community Development Corporation in Minneapolis. The entity is led by a native man named Michael Goze. The native shelter was the only one that never closed and did not discriminate based on religion or ethnicity. In a show of humanity, Goze took me to meet his wife and children. The full scope of interviews with Michael and Alan is beyond anything that can be replicated here. But the work and advocacy within the native community is inspiring. Goze designed the shelter himself. His goal was to create a place where he and his family would want to stay. The positivist perspective would design a place for efficiency, but Goze prioritized humanity. I regret losing contact with Alan, but I am grateful he is serving the community. I hope you have heard his words that the power of influence he wields can be magnified. We all need a little more good medicine. 206 Chapter 9: A Return to Chance And the man that has anything bountifully laughable about him, be sure there is more in that man than you perhaps think for.387 The tent was filled with miscellaneous items, none of which could block out the frost-bitten wind. By the time I breached the threshold of this particular fabric structure, I had already spent several months on the Greenway conducting interviews; I knew what to expect when I entered a tent, but it wasn’t always like this. I am ashamed by my internal response to the first time I was invited in. My stomach clenched in fear. I spent hours talking to a man who called himself “N.O.” His name is two separate letters, a personal branding that separated him from how he saw himself. It was early in my research when he invited me into his home. I had a lot to learn, and I have tried to reflect upon that fear and what it means. Luckily, after months in the community, I learned to see the invitation into a tent as an invitation into a home, something more meaningful than I could have initially understood. There are similarities between the tents. Most of the spaces were cluttered, often with items that were acquired through unconventional means. I learned to check for needles and pay close attention to the environment. But this space was different. Unlike the haphazard organization I had seen elsewhere, the piles of things in this tent were neatly gathered. There was visible order despite the chaos associated with living in a tent. The setting, how it stood out from other tents on the Greenway, suited the woman who brought me inside. Through this work, you know her as Taurus, and this entire work could be sustained by her narrative alone—though only a glimpse is provided here. Taurus was in her twenties and had lived on the street, in some form or another, for most of her life. The reason this work does not include more of her stories is not because it shouldn’t; it is because I still have not found the right words to make you see her. While others were quick to tell me what they wanted you to know, she did not make things that easy. Taurus was a vital asset and a friend on the Greenway. She watched Courtney’s tent when she left. She would even “purchase” Christmas presents for my 387 Melville Herman. Moby Dick. Strelbytskyy Multimedia Publishing, 2020. 207 family and me. She wanted nothing and expected nothing, which makes it more difficult to share her insights. Most of the people I met on Lake Street wore their dreams like the jersey of their favorite player. They knew they would get out of the homeless population someday. They knew they were destined to be a success of some kind. Most of the people I met held hope in the form of fantasies. They did not always believe their own visions of grandeur, but optimism was the fabric of their outer layer. The same could not be said of Taurus.388 Taurus is the one who told me that the Greenway is where she was going to die. While others shared stories and ideas of what could help them, Taurus never did. Every conversation with Taurus was framed by the certainty of her death, not the hope for a different life. In many ways, this made our conversations the most optimistic of all the interviews. She did not speak to me with any design to secure her own safety; she spoke with me because she wanted to leave something better for the generation that came after her. She never believed I could help her, but she thought it was possible for this work to help someone else. Early on, I asked her what I could do for her. If I could snap my fingers and give her anything, I asked her what she would want. Without hesitation, she said: “Put a bullet in my head and don’t let me see it coming.” She said she knew she was going to die on Lake Street. The only thing anyone could offer was an end to the pain. Perhaps because of this morbid self-awareness, Taurus was one of the few people who made almost no attempt to use the others. She did not want their resources because she did not see any hope. And yet, I frequently found her cleaning the Greenway. She would walk the strip around her tent, collecting used needles, and piling garbage; her hopelessness allowed her to focus on trivial improvements. Her ‘trivial’ impact was powerful. When I sat down on the floor of her tent, she sat across from me. Unlike other visits to other tents, I had been invited in with a purpose. I felt like a sheltered kid as I observed her movements. In her presence, I was acutely aware of the privilege of an ignorant childhood. In one interview, Taurus told me a story from when she was nine 388 The stories about Taurus are told in first person to maintain continuity. However, most of the interviews with Taurus were conducted by my colleague, M. Esther Sherman. This section of the work is composed of notes, recorded interviews, and first-person observations made by both my colleague and myself. – did you get permission from Taurus to use them? You’ll need to ensure there was ethics approval. 208 years old. She had been at a family member’s house when one of the adults sent her to the other room to retrieve an “eight ball” off a table. Obediently, she got up as directed and searched for a magic eight ball. Not finding anything ball-like, she returned empty handed. The adult berated and was violent toward her for failing to do what she was told. After the degrading rant and physical show of disapproval, the adult turned to a seven-year-old child and sent him to retrieve the eight ball. The child immediately returned with the drugs. When Taurus told me the story, she was furious. Her eyes, so often immersed in humor, were drenched in rage. She was not angered by how she was treated, but she was livid that a seven-year-old child had already been so exposed to drugs that he could identify an eight ball. She spent several minutes expanding on how that child wasn’t given a chance at life, how he never got the opportunity to be a kid. As she fumed, I wondered if she had forgotten she was nine years old in that same story. Life had not afforded Taurus the courtesy of a sheltered childhood, but she was empathetic enough to grieve another child’s innocence. Even on the Greenway, Taurus noticed every crack in the hearts of others and knew how to connect as if they shared the same pain—this was especially true with Courtney. Though around the same age, Taurus took on a maternal role with Courtney and did what she could to keep her safe. But it was more than physical safety that Taurus tried to provide. When Taurus stole the onesie for Courtney, she stole a similar one for herself. I do not recall what creature was portrayed on hers, but I know the fact they matched meant a great deal to Courtney. As dark as Taurus found the nights to be, as deep as her wounds went, she still knew how to offer connection when it mattered most to someone else. An unexpected chill lurched through the tent floor and brought me back to the task at hand. I wrapped my jacket tighter, and Taurus prompted me to start recording. We spent a few moments exchanging jokes as she gathered what she needed and prepped the needle. She showed me how to properly tie off an arm and how to find a vein. She told me how important it was to remain hydrated. She talked me through the medical reason for ‘shooting up’ when you inject methamphetamine. She stressed the necessity of using 209 filtered water, clean needles, and properly sanitizing surfaces and skin. Her movements appeared effortless; she was practiced and meticulous. The image of the blue band wrapped around her arm and the pulsing black vein that begged for the needle will remain with me forever. Her voice was calm and even. She wasn’t desperate for a fix. Taurus had a set number of times that she would try to hit the vein; if she couldn’t get it in that, she didn’t get high. Her use of methamphetamine was calculated to bring physical relief from the infused disks in her back and the stiffness of hard living. Taurus was a walking contradiction, a medically sensitive and cautious meth user. She didn’t shake or display signs of paranoia or withdrawal. She walked me through the process as she shot up meth, and we both sat in silence as it took effect. My experiences working for the Minnesota courts primed me to think she might become neurotic, dangerous, and potentially detached from her own mind. Her response embraced none of those descriptions. It was more like watching someone with ADHD take their medication; she breathed deep and relaxed as if calm was the high for which she yearned. Through my experience with Taurus, I could tell when she was using. She became erratic and difficult to follow when she came down. She was her most articulate and logical self in the space immediately after she used. As the substance hit her system, I asked what she felt. She said she felt like she could have two hours without pain. The image in my mind of drug abuse never looked like her. It didn’t look like a girl who wanted to forget the spinal injury she suffered as a toddler. The idea of a ‘meth head’ never looked like a girl who was sexually abused as a child who spent much of her life trying to protect everyone around her. Taurus looked nothing like the stereotype embedded in the mind of every lawyer and social worker. As I watched her prepare the needle, all I saw was the small child who didn’t know how to make the pain stop. As she carefully found the vein and injected the substance, I saw the doctor she might have been if someone had been there when she needed it most. As I watched her carefully place the used needle in a medical waste bag, I wished she could experience more than a couple of hours without pain. After several interviews in which I learned she did not want to talk about hope or potential, I asked where we could have intervened. I asked if there was a point in her life 210 that she could identify as crucial to her survival. I adopted her candor and asked where we might be able to intervene for someone else. She said she had been working as a janitor doing a night shift at a local business. It didn’t pay terribly well, but she liked the hours, and it was consistent. When she started there, it was a temporary gig. When she took the job, she didn’t think it would become something she loved. But it was. It was the right fit for her. She had steady work, steady income, and she was even in stable housing for the first time in years. She said the work was good for her, it gave her time alone, and she was happy. After some time, she was offered a permanent, full-time position. She didn’t think she could do it, so she didn’t take it. Her temporary job turned into a permanent position for someone else. She ended up back on the street. When asked for any moment in time, any number of resources or assistance, when asked what she needed for her entire life to be different, she told me about that moment. She said that when she was offered the job, she just needed one person beside her to tell her she could do it. The voice in her head that said she would mess it up was too loud. The fear she had about ruining something she had come to love was too overpowering. She said her entire life could have been altered by one person telling her that she was enough. It is not just that she could have been a doctor. It is that it would have taken so few words to get her there. 9.1 The Power of a Few Words The importance of this research is not the location of tent communities or the ways our system currently fails the homeless population. The most powerful thing I learned is that it matters when we listen to the voices of others. In the academic and legal setting, we contemplate resources and policy decisions that can have a positive effect on homelessness. But we do not consider the conversations that could save lives. The one person within this study who saw a favorable outcome was the one who found a mentor when he was at his most desperate point. The person within this study most willing to identify the points when intervention would have been possible did not say that money would have fixed it; she said she needed someone to believe in her. 211 The tragedy is not just that when we failed Taurus, we lost a doctor or a lawyer or a nurse. The heartbreaking reality is that we lost a doctor or a lawyer or a nurse because we were unwilling to sit with her, to have a conversation with her. We lost her potential because we said nothing. I wonder if we would care if it was personal. Would you give a hundred dollars to save your mother’s life or even buy her another year of life? The fact is that Courtney is a mother, but I watched as people refused to give her a mere dollar. I know my family would give me a million dollars to save my life. Factually, my parents already paid millions to keep me alive. And yet, they vote against policies that would cost them slightly more in taxes to save people just like me. The economic and social reality of our collective loss is not the intended focus of this work. I recognize that at some point the cost of helping others shifts. I’m not arguing for more financial assistance to the poor. I’m not even arguing for a change in public policy. We are so far removed from that conversation. There is no point in arguing for the balance of ledgers when entire columns are precluded from the spreadsheet. There are myriad fallacious arguments against equality. Notions of hard work preclude taxation and distribution, slippery slope arguments raise fear of communist societies, and then there is simply the selfishness inherent within us all that wants to keep everything we have. Like economists Ji-Won Park and Kim Chae Un, I do not advocate for perfect income equality and resource distribution.389 Such arguments are idealistic but that doesn’t preclude advocates from demanding taxes and distributions such that everyone has the same income. But the idea of Applied Equality is not merely an economic calculation, and neither are Nussbaum’s human capacities. What is missing from the institution of law is recognition that the poor are people. The foundation for the human capacities is the effort to see the experience of the other in a meaningful way. In law, our methods have gone too far to remove stories. We need stories for their ability to connect us. As lawyers and scholars, we need to learn how to write stories through an honest and compelling narrative. At an even deeper level, what is missing is self-examination. We rely upon our institutions and our logical constructions to protect us from the dark spaces inside of 389 Ji-Won Park, and Chae Un Kim. "Getting to a feasible income equality." PloS One 16, no. 3 (2021). 212 ourselves. At some point, economic factors become a consideration. At some level, we need to look at the aid we supply and whether it is financially justified. But we are nowhere near that point. We are idealistically driven by economic considerations with little credit given to investment in human potential. I see little reason to search for the economic balance between costs of care and individual potential when we cannot even see valuing an individual as a potential reality. Even if an individual’s alleged capacity should become a consideration, I lack the authority to determine where we should set our demarcations. How much we should spend on human investment is a discussion we are forced to have. The construction and utilization of our institutions is our collective problem. But the reality of this project is far bleaker than a balance of economic aid and financial return. Current legal considerations are dominated by economics and quantitative analyses.390 I just want to bring people back into the conversations about law. Humanity is the focus of this work. It is law’s interaction with the human experience that Context Theory demands we consider. I cannot profess to be an expert in humanity. We are all different in our experiences. That was the premise of the work. Lawyers and scholars must recognize that we all live within our own phenomenological reality. I have shared the stories of the Greenway with you, but those are second hand. You did not get to speak with Taurus. My representation of her feelings and thoughts is filtered through my lived experiences. My summation of the stories is then interpreted and reassembled in you as the reader. If I want to speak to humanity personally, I must speak of the one person I know. The last story, and the only story I can report without acting as a filter, is my own. I share it now in the hope that it might inspire you to consider your own assumptions. My story is a result of this research. It is the culmination of what Courtney, Ashley, Alan, and Taurus wanted us to learn. And it is what I hope you will try to do within yourself. The purpose for sharing these stories, even my own, is for the reader to 390 My entire dispute with Law and Economics as a school is the priority is places upon economic considerations. It is worth recognizing that the school can quantify inequality and advocate for distribution, which Context Theory supports, but the focal point of the two philosophies is diametrically opposed. 213 connect to lived experiences beyond their own—to move the reader toward empathy and understanding. But what you choose to do is ultimately in your control. 9.2 The Boy Who Got Lucky It would be disingenuous to demand the stories of the Greenway and not include my own. To share the intimate details of grief, shame, and vulnerability of others while hiding behind objective protections of scholarship would stain this work with cowardice. I do worry about the response from my friends and family upon reading this chapter. The fear I feel is connected to the lesson in pride and the warning Alan shared. Be honest. Do not allow pride to breed silence. I also recognize that honesty in this context is based on my memory and recollection. The filter of life experiences has been altered by the stories of the Greenway. As I look at my own history, there are hundreds of stories in which I am the hero. But I know for each story where I succeed, there is another where I fail. For every story where I brought healing, there is another where I caused pain. Those on the Greenway were willing to share their unflattering truths, and it would be wrong for me to withhold my own. On another level, it would be hypocritical to ask you to examine yourself and not provide my own introspection. The last narrative included in this work is the story of two young men. For this story, I did not need to conduct any interviews. Readers will find sparse references in footnotes, as there is no existing literature to help tell this story. But I am already familiar with both individuals. As the culmination of stories, I hope this gives you permission to inspect your own life. I hope you can question your own experiences. When you are honest, how close have you come to the Greenway? Having heard the narratives and digested what was said, the last step for me as an author is to consider one final question: Is the only difference between them and me that I got lucky? The two young men are cousins—my cousin and myself. I cannot tell the full story from his perspective, but in all meaningful ways, we were identical. In reporting my own experiences, I intend to demonstrate how close a lawyer and legal scholar was to the tent community. The information shared here is new to nearly everyone who knows me. It is my goal, through sharing this information, that I may induce the same introspection 214 in you as a reader. Honesty in the law begins with honesty in the self. It is only fair that as the advocate for Context Theory, I continue the process that started on the Greenway. This story has taken me decades to accept. Decades to acknowledge that I am not special; I am lucky. Despite my eventual acceptance of this fact, I still struggle. Like everyone on the Greenway, I want to believe that I am unique. I want to believe that I was chosen. I credit my lack of control to this impulse. I still fight for meaning and domination over my environment. Even when we know it is futile, we cannot surrender control, and we cannot accept our reality. But over time, I have come to recognize the extreme destruction my need for control has brought upon those who love me. The truth is not simply that I work hard, it is that I bury emotion through work. Few people who know me know that I am an anxious person. That is intentional. I bury anxiety through status. It pushes people away and gives me a hard exterior. I use bigger words than I need to. I intellectually bully those around me to prove that I am not the thing I fear myself to be, stupid and weak. I hope that it is universal that our pain causes us to perpetuate pain. If it is not universal, then I am simply cruel, and this is another mechanism of self-deception. But I think the continuation of pain is what we talk about when we talk about karma. I think that is part of the lesson Alan wanted me to know. Blood trauma finds its way into all of us. I have been using bad medicine to ‘cure’ my unspoken ailments.391 The fact that I am a lawyer tells you how much I still need to construct a Techne to protect myself; I still need an external structure of affirmation and authority. The fact that I am drawn to rules and that I crave the order of a courtroom is indicative of my personality. Maybe that is why we become lawyers and scholars. We want to help people, but helping others also provides power and a degree of control. There is a certain level of ego necessary to believe you can save the world. That should not preclude the effort, but it is important to recognize the truth. Despite dedication from agencies and experts and 391 Recent work by medical doctor Gabor Mate suggests that environmental conditions of stress and repression not only make us lonelier and less happy, but may also be the cause for increased disease and illness. His work shows that our social conditioning is making us sick, and through our genetics, making future generations vulnerable to illness and disease. See, Gabor Mate, MD and Daniel Mate, The Myth of Normal: Trauma, Illness, and Healing in a Toxic Culture (New York, New York Publishing, 2022). 215 individuals failing to resolve homelessness after more than forty years of devotion to the cause, what makes me think that I can do it now? A lot can be learned from introspection, especially about conflicts and our need to control. If we are willing to go back into history and cross disciplines, we can learn from George Hegel. Hegel informed us about the “Master-Slave Dialectic.”392 The unfortunate name describes those who have power and those who seek power within society. What Hegel attempted to capture was the definition of reality. We are all the protagonists in our own film. We all need others to recognize our status, which requires them to recognize our ascribed meaning and defined value. In practice, Hegel’s work means that the fight between my wife and I, as related to the dishes, has little to do with the dishes. At one level, it is about relationship dynamics. What work is important enough for me, and what is menial work. Culturally, we might ascribe ‘less important’ tasks to “woman’s work.” But there is a deeper level to Hegel. I want to be the scholar fixing the world, I want to be an eccentric genius who lacks the time for dishes. My wife is a scholar, writer, and painter. We fight over the right to define our own world and what role we play within it. Conceding is not merely doing the dishes; it is allowing her to define my role. If I submit, then I accept my role as an object in her world rather than relegating her to be a secondary character in my story. As applied to our study, lawyers have power but none of us have privilege. I want my friends and family to accept my experiences and emotions, but we all see it differently. If I accept their reality, then I become an object in their world. If they accept my reality, then they are the actors in my story. Because we cannot share a single mind, we fight over the definition of reality. This is where Context becomes important. As the lawyer trying to help, it is my reality, and I am the narrator of this universe. Courtney is the object of the story. Trying to help without awareness of Context subjugates those in the grip of our system. But law school did not teach me Context. In Hegel’s theory, and within the boundaries of Context, law school taught me domination. Like psychologists trying to diagnose and treat themselves, lawyers build restrictions and regulations to satisfy our 392 Georg Wilhelm Friedrich Hegel, Phenomenology of Spirit, First Edition, (Motilal Banarsidass, 1998). 216 need for control. Even this work, an attempt to recognize the inevitability of chaos, is a clever trick to mask control. In telling my story, I hope to relinquish Techne and embrace the luck that kept me from homelessness and addiction. Some years ago, in a rural area of Minnesota, there were two cousins of similar height, weight, and phenotypic presentation. Genetically, there was little that separated them. Sociologically, they both had two parents and two siblings. They were both the only male children in their respective households. I did not recognize the significance of being the only male until later. Even without overt expectations from friends and family, gender roles in the Midwest screen the interpretation of events. Even without trying to apply a pressure of masculinity to childhood, ideas of gender mean both boys were viewed, and viewed themselves, through cultural expectations. As a young man in the Midwest, I lived the reality of my essence. What I mean is that I felt defined by expectations. Even though it was unconscious, I was a construction of roles before I was a person. Like how a hammer does not exist before we need to drive a nail. We invent the hammer to perform the function. The function defines the existence of the hammer. As the sole male, I felt defined by expectations before my birth. The weight of this was heightened by the fact I was born into a highly paternalistic family. I do not fault my father or grandfather. Paternalist structures are not inherently bad. Structures of control and domination are bad. Structures of enrichment and care are good. The nature of my upbringing, a paternalistic organization, simply defined where I looked for mentorship and direction. In every sense, I mean it as a compliment to the men in my family. The men in my family were tall and robust. The veins in their arms rose like mountains from their flesh. As a young man, I looked upon them in awe. I had living examples of what I was to “become.” The expectations I felt spoke to me. If Sartre was correct, then even before we can determine who we are, we are determined by expectations. Sartre thought this was an inherent facet of humanity. In my case, it meant that Ryan Peterson was born to inherit the farm, become captain of the hockey team, and build upon the financial success of his father and grandfather.393 393 The formula “existence precedes essence” is attributed to Jean-Paul Sartre. See, Jean-Paul Sartre. "Existentialism Is A Humanism, tr. Carol Macomber." (2007) 217 Instead, I never really learned how to skate. I could slide around on ice, but nothing like my father. Rather than excelling in my father’s sport, it was my sister who joined the hockey team. My sisters were the ones who achieved financial success while I squandered myself on advocacy and humanitarianism; things that did not fit within the values of my family structure. I do not regret that particular decision, but no matter how proud I feel about my work, I am always haunted by the feeling of failure. Family events in large houses remind me of what I cannot afford. Conversations with family members about jobs are embarrassing; they cannot understand why I choose to do valuable work without demanding lucrative pay. The memory of what was expected makes it hard to appreciate the work that I do now. No matter how important it is objectively, I cannot release my subjective past. The conflict I feel now does not provide a true understanding of my luck. To understand how fortunate I am, not in financial terms, but in terms of my culture, values, and disposition, I need a better comparison. I need my cousin. I need to see a shared blood memory and how it could have been completely different. Only with such a close comparison can I see the true nature of luck and its influence on my own life. My cousin and I both lived in an artificial reality. He didn’t have the addition of the family farm and the expectations that accompanied it. He had hunting. A vein of outdoorsmanship with his father taking weekend trips to the hunting stand. We both had military families. Notions of valor and duty catapulted me into the military academy. It was there that I witnessed rape firsthand. The senselessness of taking control and inflicting fear because you are afraid. It was meaningless. But that was the point. Meaningless violence is the most effective form of dehumanization. I don’t know if my family understood why I left, or if this is another indication of my shortcoming. I will never know what my friends, family, or network see when they look at me. What people see is based on internal, often unarticulated expectations. We are incapable of seeing one another as we are. We are incapable of seeing someone else’s view of us as it is. My cousin and I both guessed at what version of us others wanted to see. We used our imaginations to see ourselves and tried to act in accordance with that image. I wish we could have talked about it, but communication was not part of the masculine script. 218 What was scripted were the summers spent fishing. We went to my aunt’s or grandmother’s cabin for weeks on end. In all respects, there was nothing special about either of us. I remember being very close to my cousin. We were equally matched on the Nintendo-64. He showed me how to take a fish off the hook. He taught me how to relax as the waves rocked the boat. The differences that existed between us as children were not what you would expect if viewed from the perspective of our eventual outcomes. While he was healthy, I was a very sickly child. Illness and hospitalizations formed the roots of my insecurity. And from insecurity, grew hostility. And from hostility, emerged a sharp bitterness that I turned against anyone who attempted to get close. The fact is, I am an amazing liar. Colleagues know me as a lawyer or scholar. Athletes know me as a professional runner. I pretend to be whatever people expect, and I have become very good at adapting. I no longer know what I want or who I really am. Alone, I have no role to play. Without pretending to be, without responding to some external expectation, there is no “me”. My story begins with sickness, much of which predates my memory, but the physical and emotional scars are still with me. Asthma, crooked legs, and a battery of childhood illnesses meant that I was neither strong nor fit. On numerous occasions, documented through my mother’s writing, doctors told my parents to say goodbye. My lungs quit breathing. My heart quit beating. My brain went quiet as blood rested. Reactivated by a shock to my heart I was not resurrected to life. Doctors said I was merely saved from death, but life would be hard, and it would be spent in illness. It was precisely because of such ailments that my cousin could always outrun me. Our parents sent us to the same Christian camp. It was there that a priest told me that Buddhism was Satanic. The same priest who told me all I had to do was pray to get better. He stressed that God wanted this for me and did this to me. The hatred I felt toward his words was resurrected in conversations with Taurus. I once asked her, “What is the least helpful thing you have been offered on the Greenway?” she responded, “Prayer.” I see that form of religion as another example of the Techne we create—a priest offering access to prayer to make us believe we are safe from chance. At Christian camp, my cousin flew like a bullet when we played capture the flag. I sat in the grass or was forced to stand immediately before the flag. Any exercise made 219 my body convulse; days spent on a nebulizer after trying to run, days sacrificed, just for two minutes of running. My cousin was always stronger than I was. If I could present us both as children now, I would bet on his physical ability and determination over mine. We share the same intellectual deficits, but my added physical ailments should have made me the homeless addict. I know that my present was shaped and defined by my past. I still remember the nebulizer treatments when I was young and fragile. Through middle school, I needed a machine to breathe. While friends could run and fight, I sat in the dining room, strapped to a hose. I sat in the corner by the sliding glass door. The mask injecting air into my lungs like an extinct trilobite pumping its eggs into my stomach. I still sit in baths for hours every day. The water relaxes me. Showers and baths were the only time the braces straightening my legs could be removed. I do not remember the braces. This was reported to Dr. Sherman, my mother’s way of forwarding me information about my childhood. My mother and I do not talk about my early days or my development. I am told that I used to scream as a child. I do remember the awkwardness of my legs. I remember vague memories of the discomfort of standing. I remember knowing I was different from the other boys. I remember not understanding. Mostly, I remember crying. Long hours spent alone. Sitting in my closet. Frequently playing on my Gameboy and later reading a book. For some reason, I was always more comfortable alone. Today, my body is a patchwork of scars. There are clean and surgical strikes across my neck from intubation. I have divots carved from my chest from ports to receive medication. My back and knees hold a pattering of scars where skin has been removed. The worst is a long and thick stitching which separates my left arm from my shoulder. Doctors made the incision to remove a growth between my humerus, ulna, and radius. Doctors said that the surgery required them to scrape the growth plates clean. No one expected my left arm to grow. As I grew, the expectations for me dwindled. I could feel the hope for a healthy boy slowly dying. It was difficult not to see the faith and confidence disappear from my parents’ eyes. I felt their expectations of me wither as medical and academic complications continued to multiply. When I think about the Greenway, I think about that look. I did not want to be a disappointment. But it is worse when you try. If you tried and 220 you failed, then you were a failure. It is better to be lazy than it is to be a failure. I think we forget that look. I think we have all seen it in some form and we have chosen to forget it. I was lucky that I was allowed to forget, but my cousin is a different story. My cousin and I make a fascinating comparison. From a nearly identical sociological origin, we see the development of a lawyer. We see a scholar with multiple advanced degrees and a powerful professional network. We find a character working a secondary gig as a professional runner. That is my story. It’s the story of a man whose spine was so twisted he could not walk and whose lungs could not function on their own. It is the potential we fail to see in Courtney and Taurus. If a child destined to die can grow-up to be more, then what could they have become? If there is any divergence between my cousin and I, it is the significance of wealth. Given all the resources it took to make me, what would Courtney have become with a little bit less? We all want to be special and unique. I want to be chosen. I struggle with the reality today. I want to say that my success, after the labels and illnesses, is an indication that I deserve to be where I am. It is so easy to look at my own struggle and think about how easily Taurus could have worked harder. Taking credit elevates our ego, where seeing the institutions and the social constructions strips us of our emotional armor. It is why it is so easy for those who succeeded to judge those who did not.394 I need to keep people around me who check me. I want to be special. But at the core, I was more wealthy than special. I had access to things that others did not. The compliment I most struggle to accept is “you’re such a hard worker.” Behind the compliment is the recognition that I am not special. As much as I bristle at the choice of words, they fail to convey an even harder truth. The truth is that I am not a hard worker. I am privileged. I had money and money covers mistakes. My cousin could have done more with less. I can recognize that Taurus thinks faster and is likely more intelligent as a matter of raw IQ. It took a million dollars to keep me alive. It took another 394 In Rome, successful generals were given a parade through the city streets. It is widely reported that a slave stood behind the general during the proceeding and whispered “Memento mori” into his ear. The translation means “remember you are mortal.” The message was intended to keep success from inflating the individual and remind him of his vulnerabilities. The moto grew and transformed throughout religious studies, philosophy, and cultural studies. It seems that we have lost this lesson today. See, John Lancaster Spalding, ed. Discourses of epictetus. Appleton, 1904. 221 million to get me into power and privilege. That is nothing I did. It is the luck that I was born into. While my childhood illness and ailments, in a nation of privatized healthcare, should have resulted in my death, my family had the resources to ensure my future opportunities. The trajectory they purchased led to years of school, impressive jobs, a prolific network of professionals who provided me with encouragement. Once you fall down the path of poverty, it is nearly impossible to get out. Similarly, once the assentation of privilege starts, it continues whether you try or not. My path split from my cousin in high school. The divergence was solidified by the time we reached our late teens and early twenties. We both moved into law. He was always the defendant. The initial split is worth investigation. This is where I hope personal introspection can tell us more about our political and legal structures. 9.3 The Split and Defiance of Expectation My own story is what I recall the best, but my cousin and I discussed our mutual experiences. Being white, male, and wealthy did not protect us from being ashamed. Teachers pulled us from class, announced our names in front of our peers. They took us to special education. I do not know for certain what caused my cousin to start heroin. I know he started getting into trouble in high school. Drugs were already a hushed conversation, a taboo subject to discuss within the family. I know the young man with whom I enjoyed bonfires and fishing trips began slipping away at an early age. I also know how I felt during that same time and what he told me. As he began to fall into the quieter tones of family drama, I began to pull back from him. I didn’t know how to redefine who I was as long as I stood next to him. I was tired of being the sick child. I was tired of being bullied, called names, and tortured in school. My parents sent me to a private high school; this gave me an opportunity to start over as someone new. I checked recently and the tuition alone costs more than the average yearly income for a married couple in the state of Minnesota. My cousin was sliding into drugs while I was provided with private tutors. Even before the private school, I had personal trainers. Professionals who charged hundreds of dollars an hour to 222 make my body and mind strong. My cousin had an average family of socioeconomic standing. And it was not enough to protect him. My family had the resources to ‘fix’ the things that did not comport with their view of what a son should be. That is what separated us. I know how much anger and hatred we both felt. It is not a joke to say that either of us could have been a school shooter. While I did not have those thoughts, I know enough to know the psychology aligned with my experiences. It is hard to explain how isolating and damaging it is to be pulled into special education. Maybe this has changed, but my experiences with the school system for my own child suggest that it hasn’t. In my time, I sat next to children who suffered from nonverbal disabilities. I was never given the tools to understand my psychology. All I knew was that my classmates isolated me. I associated with those who could not walk or talk or read. I lost all sense of value in myself, as did my cousin. Now I know how dangerous it is to see no value in yourself. Our judges and scholars bemoan the destruction of an individual future. But in that place, there is no future. Sitting at a table for those in special education, being called “retarded” by teachers and peers, there is no future. I remember sitting in speech therapy and knowing just how broken and stupid I sounded. Of course, I would never say that to a child today, but those were the emotions that lived in my head. I was embarrassed to speak because my tongue betrayed me. I could not say my own name or the names of my sisters. The “R” and the “L” were particularly difficult. It is no wonder I mask my trauma with words like phantasmagorical. I love difficult and complicated words because they are an opportunity to prove the young boy is dead. I know I wanted to destroy my future. I suspect my cousin had the same intention. What we don’t see is that, if there is no hope for tomorrow, there is no reason to avoid pollution today. There is no reason not to spend everything on a hedonistic binge. My past is not drug free. Like my cousin, I sought ways to feel better. I sought ways to forget the feeling of a living trash heap. You cannot tell us we are wasting our future. It is insulting. You tell kids to better themselves. You do this as you put us in special education. At the same time as you provide none of the psychological tools or supports needed to combat the confirmation bias. I survived because my family had the wealth to 223 find experts. People who could help me transform my anger into something socially acceptable. I need to pause and acknowledge that I am still angry. Power and education do not silence the memory of those years. I can mask it, but we can never outgrow it. And I lose the ability to hide my anger when I confront the assumptions surrounding poverty and discrimination. I am angry about Courtney, Ashley, Taurus, and Alan. I understand that I see myself in them, but I do not think this is wrong or inappropriate. What is wrong is for the rest of scholars to pretend that there is nothing of Taurus inside their research questions. It is wrong to see Courtney as data without seeing her pain and fear. It is not wrong to let anger motivate your work. It is wrong to pretend that your work is completely objective without any motivational bias. Even worse, it is wrong to watch violence and injustice and fail to use your privilege to help. My cousin started to resent his parents for placing him in special education. While I wasn’t there, I was present as my own peers tormented me for being different. That is why I preferred to be alone. In my own space, there was no one to tease me or taunt me. The desire to be liked and the pressure to assimilate is overpowering. Like my cousin, I grew resentful. His backlash thrust itself upon his parents, peers, and himself. I speculate that he turned to comfort where he could find it. The story fits with Courtney and Taurus. They are women while he is a man. They are Native American and African American while he is Caucasian. They could be nothing alike and yet, against impossibilities, they share a similar demon and solution. I think my cousin just wanted to feel good for once. He wanted a peer group that didn’t torment him. I wish I could go back and share my stories with him. As young men, we were prevented from disclosing certain vulnerabilities to each other. If I could, I would tell him about the “friends” who would wrestle me to the ground and jam my joints back into my shoulders and wrists. Physical pain and humiliation from the people I thought of as allies. I would tell my cousin about the dares I would perform in the hope of momentary recognition. Their only intention was to humiliate me, and it succeeded. I was willing to do anything for recognition and they abused that need. How frustrating that we cannot share our pain and embarrassment. No one on the Greenway has family they can call upon. Taurus’ mom shoots at the vehicle when she 224 returns home. My cousin and I sit silently, unable to share the pain we both feel. Unable to take comfort in a real alliance and familiarity. If we had shared our stories, maybe he would have avoided the needle. If I had told him what I was experiencing, maybe he would not have sought the drug dealers for companionship. Even today. My network of lawyers, scholars, and judges is not based on my strength. It is rooted in our mutual recognition. The most powerful men I know struggle. I just wish they would recognize that struggle in others and use it for sympathy and compassion. Both my cousin and I wanted to feel something other than “retarded.” I use an improper term because it is the word that I heard from teachers and students. It is wildly inappropriate, but the revulsion of such a word is why I must use it. Because that is what we were told as children. By people in authority. By teachers, including our special education teachers. My peers threw snowballs and chased me off the playground, calling me “retarded.” When chased from the offices, chased from the classrooms, and chased from respectability; we run to the Greenway. Lawyers, scholars, and the affluent fail to see that it is our judgment which gives them nowhere else to go. It is our language that isolates them. Because both my cousin and I were young men, the key priority was to hold the emotion inside. Never let them see you cry. Never let them see the pain they caused. Prostitutes on the Greenway cannot perform their jobs without the numbing agents in their veins. A woman shows me burn marks on her back. A “john” used her flesh as an ashtray. She refuses to cry. Not a word escapes her lips. As lawyers, scholars, or administrators, we don’t understand that she sees us the same way she sees her pimp. She will never let you see her cry. It didn’t matter that my parents and sisters weren’t the ones throwing rock-filled snowballs. When it comes to pain, there is only the “I” and then there is the other. Even those who love us are the “other.” My parents never saw me cry. They did not see me hit the punching bag until my knuckles bled. I explained my bruised knuckles and bloody hands, just as I explained the stains on the bag, it was an abundance of ambition. Just as my father used to brag about screaming in the shower as feeling returned to his feet. After practicing on the ice for hours in thirty below, he was proud of the pain he felt. Even before I knew, I would wonder, what was he really hiding? What was it that prevented him from seeing the 225 bloody bag and seeing something more than athletic ambition? Or, watching me run sprints. Throwing-up on the side of the track and passing-out as my heart struggled to keep pace. We see others but we never understand. Our data-centric approach and culture avoids the question “why?” My mother and my father had no idea what I felt inside. They never asked the right questions and they accepted the easy answers I offered to all the other ones. They didn’t know that I had detention every day after school during the entire eighth grade. I was deemed a problem student because I struggled to learn. I was divergent. My teacher mistook my inability for insolence. I don’t think they noticed that I came home late. My teacher didn’t ask me why I hated her. And I did. I was afraid of her; I was afraid of the material. She assumed I was a problem and never asked me why I hated her. Like overworked agency employees, she was burned out and didn’t have the capacity to see what I needed. Neither of us had the resources we needed. I know my cousin was in a similar special education program. I know he was tormented, and I know teachers called him “retarded.” We both grew angry. There is no comparison between what we faced and what Courtney faced. We still held the power of white male privilege. But we must address the common pain that unites us all. We must see how that pain manifests and diverges. My cousin turned to drugs to dull the pain, just like Courtney. I am no less guilty of dulling what I felt, but my choices were socially acceptable. In both terms, our failure to see causes greater pain and greater harm. 9.4 Recognizing Pain as a Human Expression and a Bridge The research on empathy is quantified. It shares the same philosophic plight as legal research and political research. We look for data to describe emotion. We try to find statistical regressions that maximize productivity or create stronger human bonding. But the answers cannot be found in data. The same way that data alienates the participants, our focus on data and statistically significant results alienates us from each other. It kills the stories we need to see and connect. It is the stories we never share that we need the most. 226 Within this vein, there is a disclosure that I have never shared. Driving home from Thanksgiving, it was just my father and I in the car. I was in graduate school, studying counseling psychology. My sophomoric mind began using the techniques I learned from my own father. I was trying to show off. I wanted to prove how smart I was. But unfortunately, it worked. My father made a disclosure. Probably because he was dying from cancer. He told me what my family does not know. And now I wonder, did he suffer frostbite for athletic ambition, or was it an effort to distance himself from the vulnerable child of his past? He told me how one horrible moment influenced his marriage, how it determined who he married, why he never dated in school, and who he became. In one disclosure I saw my father, myself, and my cousin. Instead of playing minor league hockey, how easy would it have been for him to turn to drugs? Instead of academics and sports, how quickly could I have fallen into heroin and addiction? Unlike my father, I cannot hide my history from my family. Everything was seen. But it doesn’t matter. My family doesn’t comment on my days in special education. My father never talked about losing his temper as he patiently tried to get me to read a simple sentence. My memory of the incident is clear. Sitting on his lap, the book is far below the expectations for my grade. We spend an hour on a single sentence. Correction, my father saw me cry. But only once. I didn’t even cry when a brick of ice split my skull in the eighth grade and sent me to the emergency room. Physical pain is nothing compared to the psychological. After an hour of struggling to read and failing, I felt humiliated. Worse, I knew I was a disappointment. I saw his frustration. I wanted to please him. I wanted to make him proud. It was such a simple task. It should have been such a simple task. I know it was easy for others, but it was hard for me. That knowledge made it worse. He left in a huff, pushing me off his lap. He didn’t intend to be cruel, but he could not hide how he felt. As an adult, I can revisit that moment and I don’t think he was disappointed in me. I don’t think he was ashamed. But that is all that I saw in his face. If my cousin felt that, there is no mystery as to why he turned to drugs. I remember when my entire family took a trip to Hawaii. I cannot disregard the privilege of that statement as I write about homelessness and poverty. We had the financial ability to fly five people to Hawaii for an entire week. But only four members of my family went. 227 My family thought I was too young to appreciate the trip, so I was sent to my cousins for a week. Being left behind hurts. Left behind in school. Left behind by friends. My family even left me behind. It was isolating. When we are left behind, we go to the Greenway. I remember that week. My aunt made us read for an hour every day. That week, I was envious of my cousin. I would pretend to read as the hourglass slowly ceded its sand to gravity. Being forced to read in a corner, without the ability to read, created a temporal rift. I began to imagine that I was reading on Pluto where gravity was 1/5 of the Earth. How else can you explain the stubborn refusal of sand to fall? I spent an entire hour jealous because my cousin seemed to enjoy the time. My childish perspective prevented me from seeing his pain. I only saw him reading a book that was above my comprehension. I could not contemplate his fear and struggle to read. I could only watch his face and the absence of anything I felt internally. Just like I could only see my father’s face and see the shame and disappointment I felt inside. I could not see his own pain. There is no objectivity, even now, I struggle to see others on their own terms. But especially then, the only world I could see was my world. My cousin did not have a large house. We were forced to share a twin bed. He would sprawl and push me off the edge. I would lay awake as my eyes glazed into the dark ceiling above me. During those hours, I missed my bed, and I missed my family. I thought they had left me behind because they did not want me. Even at that age, I felt the pressure of gender. I was supposed to be the heir. The only male. And they simply left me behind. My grandfather was a success. My father was a success. Both strong men. Both leaders who supported their families. Both role models. But I was left behind. I remember the pressure from both my father and grandfather. Now I see the simple love, but love creates unfair burdens and expectations. My grandfather bought me a tiller, seeds, and helped me plant a garden. He wanted me to become a farmer, like him. I have a painting of him and my grandmother. His arms ripple with power and strength. He looks like a movie star with an ease and composure that is only possible with extreme power and certainty. I knew I would never be certain. I knew I would never have power. But that is all I wanted. It is the only thing I thought I needed, what I thought I was expected to have. No one defined power for me. They just looked at me like the runt. Like the dream that failed to matriculate. 228 Even as a young man, I felt the pressure without knowing what it was. Again, I realize that the sexism of a man is separate from being a woman. I was assumed to be powerful and dominant. I was looked upon as an heir. But the expectations, no matter how benevolent and hopeful, had an impact. I was never going to be the smart and strong man that my family wanted me to be. I was always going to be a disappointment. That is just what I felt. As a young man, I was supposed to stamp the world with my will. The feeling of being a male contrasted with reality. Who and what I was, a far cry from what I thought society expected from me. I could not stamp the world when I couldn’t read. I could not take command when my lungs and legs refused to support me. I could not even say my own name without sounding ridiculous and embarrassed. I was left with a responsibility that was impossible to complete. No one wanted to be friends with the “retard.” They threw snowballs at me duringrecess. Teachers made me face the wall for an hour while other kids played. My family ignored me or chose not to address my struggles. That was the only recognition I received. I was not the star pupil. Teachers told me I was hopeless. In poor communities, I hear the same story from high school kids. Teachers and principals are handing them pamphlets—employers who will hire a high school dropout. It is a complete lack of expectation. I am too familiar with that feeling. Painfully aware of the wasted hope in the lone male heir who was born too stupid and too slow to rival the most mediocre of expectations. My family doesn’t understand. They still don’t speak of my cousin. When they do, he is always the villain or the taint in our bloodline. Of course, we never say as much. But it is not about what is said. It is about what we avoid saying. It is about the looks you get when you ask how he is doing or where he is living. It is not about what we say, but the hushed tone and the discrete way in which we say it. I’m trying to imagine what isn’t said to Courtney. How probation officers and social workers spoke in hushed and muted tones. In their minds, nothing was said that would cause damage. But what they don’t say is screaming at someone like Courtney. The same is true for Taurus. When given an opportunity to avoid falling back into homelessness, she needed someone. When offered a job, she needed a voice to tell her that she deserved the position and that she was capable. Without that voice, it is the abuse and criticism which dominates her mind. 229 I don’t know for sure what my cousin felt. I don’t know what Alan felt or Taurus felt. I only know what I felt and what others have told me. That is the premise of this work. We are all isolated in our own phenomenological reality. We all live and experience the world in isolation. If there is a single message, it is that we need to break the isolation. Don’t let the unspoken dominate conversations. Don’t let fear prevent you from connecting. The day my father revealed his trauma changed our relationship. From that moment, he was no longer the same. He became human. I could see him as a person with feelings and not as a tool or caretaker for me. We need that moment, but between those with power and those in poverty. I am intentional in directing the criticism toward the judges and scholars against the wealthy and affluent. As a child, I did not have access to the feelings and fears of my teachers. I saw their hate and judgment, and that is all I saw. And while Ashley is not a child, she does not have access to our world. Once we bridge the gap, we can address her acceptance and willingness to engage. But the first move is ours. My cousin is not Courtney, but I know what my cousin shared with me. I know what parts of reality we shared. As lucky and different as we are from Courtney and Alan, I know the parts of our lives we have in common. With those common elements, I see why my cousin made friends with the dealers and the addicts. It is the same reason my father never dated and avoided people. It is the same reason I wake up in the middle of the night to study. We were all bitter and angry. We are all scared. I dealt with my fear by promising myself that I would always be the smartest person in the room. The chip on my shoulder drove me to destruction. I dealt with it like my father. I drove to high intensity and pushed until I went numb. I see now that my cousin and I both sought ways to destroy ourselves. Alan would call it our medicine. We did not pick our medicine. We simply found what worked. The medication and destruction were no different for me than for those living on the Greenway. I spent decades trying to destroy myself in the hopes that my methods would destroy my failure. It worked in part. No one remembers that little boy. When they see me, they see no traces of him. But as successful as I was, my cousin sought his own ways to destroy himself. And his worked better. We both realized that if we could kill the memories and the stink, then it was worth the loss to lose ourselves. 230 My parents put me into a private school. It was there that I starved myself of sleep to read. It was there that I learned how wealth could be a weapon. Money bought me tutors and books. Time taught me that everything is rewritten. We cannot accept that someone in special education became a lawyer. We cannot accept that a student previously labeled “retarded” could con his way into our institutions. We rewrite the past to make it heroic. My family has rewritten my past. If it is ever discussed, it is spoken in terms of my ability. “The child was so smart he memorized the books and didn’t need to read.” That is not my past. That is the past we want. They rewrote my cousin and myself. They made differences where we were similar. The real difference is that my cousin had less money. He was not able to pay for the same privilege. Instead of private school, books, and tutors, he did what he could to escape. He turned to heroin. I began running simply in the pursuit of going numb. I started running ten miles a day. The school praised my athleticism without seeing its origins. My cousin never had that option. He started marijuana. We both went numb, but my method was valued and encouraged. My method gave me privileges and praise. It created a network of relations, people willing to help the young man who “works so hard.” 9.5 Hope Comes from Pain The pain we feel is a bridge that can connect us. Last I knew, my cousin was living in the tunnels of Las Vegas. While I still do not like family events, I will attend any event with my cousin. We see parts of each other that the family misses. Just like it was with my father. When he told me his story, he became an individual and not an icon. While my story is nothing compared to Courtney or Ashley, it is through my pain that I can come to empathize with their world. Their stories remove the labels. Sharing the story of prostitution and drug addiction removes the stigma and presents the person behind the stereotype. I struggle more now. My father is dead. My cousin is homeless. My friends who helped with this project are scattered across the city. Either scattered or dead. All the while, I watch the United States Supreme Court eviscerate our rights. I see the demise of 231 empathy and compassion within our institutions. Agencies are overworked, budgets shrink, and our crises grow more menacing. Frankly, it all feels fairly hopeless when I take an objective perspective. But that is the key. My friends and family are enduring the same muck as I am. We have one world, and whatever its condition, we share it together. I am grateful for the stories of pain. I am encouraged that the women and minorities who occupy the Greenway would trust me with their lives. Reflecting upon my own story, I am inspired by the things we have in common. Even on the Greenway, there were moments of warm coffee and bowls of soup. There were stories and mutual recognition. If chance throws me to the Greenway, at least I will have a few friends to help me construct my tent. It isn’t much. It is far less than what was promised. But I will have Courtney, Taurus, Ashley, and Alan. And those four are more than enough. Seeing everything now, I just wish I could tell them that simple truth. They are enough. They always were. 232 Chapter 10: Conclusion “Be careful how you speak about yourself for your words will become your daughter’s mother tongue”395 My greatest fear is my own conviction in failure. What began in the introduction as the experience of a shock goes far deeper than I understand. I do not know why some of us are induced to empathy while others are hardened by the same experience of shock. Unsaid within my own story is the risk of a sociopath. An individual so driven by his own pain that he is ignorant of others. The kind of CEO who clashes over political issues of family planning, a political leader who buries opposition, or a cold scholar who obsesses in his own office. I still do not know why some of us are brought to empathy while others take deeper refuge within Techne. When I discuss the “shock,” I am discussing empathy. I am struggling with the core question of: “how do I know that I am an empathic person?” While I have yet to answer that question, I have found a possible direction towards the journey. According to Tronto, there are four phases of “care” or what I am referring to as empathy.396 The blend of care and empathy is nuanced and valuable. As Jolanda Van Dijke noted in her research, care without empathy is flat and static.397 Blending the two allows for greater illumination between the two, which can create better services and better administration.398 The first phase I am referring to as “empathizing about.” Empathy requires recognition in the first place. We cannot hold empathy when we are ignorant of the existence of others. In daily life, we are all aware of other individuals, but it is extremely rare for us to intentionally suspend our own reality and listen. The first step provides the greatest obstacle which I do not know how to overcome. I do not know how to make you care. I don’t know how to make you “see.” In 395 Bunmi Laditan, Dear Mother: Poems on the hot mess of motherhood. 396 Joan C. Tronto, Supra 137 397 Jolanda van Dijke, Inge van Nistelrooij, and Joachim Duyndam, “Care ethics: An ethics of empathy?”, (2019) 26:5 Nursing Ethics, 1282-1291. 398 The use of care as empathy to enhance administrative services is demonstrated in the work of Okkonen, Takala, and Bell. See, Ida Okkonen, Tuomo Takala, and Emma Bell, “Practicing care in qualitative organizational research: moral responsibility and legitimacy in a study of immigration management.”, (2021) 21:1 Qualitative Research in Organizations and Management. 233 the research of Suzanne Keen, empathy is rooted in narratives.399 We are literary creatures who depend upon connections and narratives for stimulation. But if there is any value in the second chapter of this work it is to demonstrate the long history of neutering our empathetic roots. Our intellectualization, built into our culture and history, makes it difficult to even perceive the suffering of the other. I cannot imagine how many people I passed, how much I ignored, because I was anxious about this work. Even our virtuous pursuits become obstacles of empathy. Against this truth, I desperately look for footholds up the rocky bluffs to understand how someone can learn to see. Law offers no solutions, but counseling psychology suggests that there is hope in pain. Specifically, there is hope in existential pain. Counseling psychologist Siebrecht Vanhooren has built his practice on the kind of experiences which annihilate his clients’ reality. A divorce, a death, or bankruptcy can force an individual to consider everything that she systematically took for granted.400 Such moments are rare because we try to avoid them. Unfortunately, when they do occur, we are remarkable at looking away from them. Literary critique Jeanne Schulkind understands the ability to turn away. According to her work, it is a writer’s ability to steer us into pain and unpleasantries, with the ability to show us more aspects of reality, which make great literature enjoyable. Schulkind argued that: The individual in his daily life is cut off from reality, but at rare moments receives a shock. These shocks or ‘moments of being’ are not as [Virginia Woolf] had imagined as a child, simply random manifestations of some malevolent force but ‘a token of some real thing behind appearances.’401 The fascinating aspect of the description is that reality exists but what is missing is our ability to see it. In this way, empathy is not merely a lofty emotion or externality for the courts, it is deeply connected to our ability to live and think within the real world. The Greenway exists whether our wealth and power allow us to recognize it or not. We must learn to pay attention if we are to be empathetic, but learning to see is the 399 Suzanne Keen, “A Theory of Narrative Empathy.” (2006) 14:3 Narrative, 207-236. 400 Siebrecht Vanhooren, “Existential Empathy: The Challenge of ‘Being’ in Therapy and Counseling” (2022) 13:8 Religions, 752. 401 Virginia Woolf, Moments of Being, First Edition, (Mariner Books, 1985). 234 most difficult aspect of empathy. We need stories, but we need to listen to them with our own heart open and the recognition of our own vulnerability. I do not control that step in this process. Vulnerability is a gift only you can give to yourself. Do you choose to hear Taurus and recognize her humanity, or are your more comfortable blinded by your Techne? If you choose to see then you must learn to act. Just as it is unempathetic to remind blind, it is worse to see and do nothing. Tronto’s remaining elements of care, which I am using as empathy, refer to taking action. The dual nature of seeing and acting is also present in Simon Baron-Cohen’s definition of empathy. She defines empathy as: Our ability to identify what someone else is thinking or feeling and to respond to their thoughts and feelings with appropriate emotions. This suggests at least two stages in empathy: recognition and response.402 Once a person sees the other, she must assume some responsibility for the other.403 This means you are not allowed to turn away from the uncomfortable gaze of Courtney or Taurus. You are not allowed to rationalize your own feeling of responsibility by restructuring reality such that you are the hero and they are the villain. Being ignorant is not merely a problem of knowledge: it is a problem of ethics. You cannot be a “good person” without seeing discrepancies in what we think of as “the good.” This may be resources, justice, opportunities, or the ten human capabilities. Once you see the need and take responsibility, you can provide the services. It is necessary to once again admonish our cultural instincts. Giving money is not the same as giving services. It does not make you empathetic to place a dollar in the collection plate at church. Tronto discusses this point at length: It would be possible to conceive of giving money as a form of care-giving, though what this form of giving usually does is to enable someone else to do the necessary care work. If I give money to a homeless person on the street, she or he must convert that money into something else that will satisfy a need. In this regard, providing money is more a form of taking care of than it is a form of 402 Simone Baron-Cohen, Supra 240 page 18 403 Joan C Tronto, Supra 137 235 care-giving. The reason to insist upon the distinction is important. Money does not solve human needs…404 It is all too common to hear empathy justified through donations or through professional obligations. A judge defends his empathy because he is a judge. A judge must be empathetic, but the nature of his work obligates him to ignore externalities. He cannot see the poverty of defendants accused of theft. He cannot consider the ache for meaning behind an addict using methamphetamine. A judge applies the law, and the law fails to consider sociology, psychology, or the stories of individuals who are in court. The law creates a lack of caring. It prevents a judge from providing attention to those who stand before him. Justifying an application of rules, which we define as law, becomes a substitute for seeing individuals and sharing in their experiences. This is where the final phase of empathy is inserted. It is the feedback from those who told their story. It is the conflict I felt on the Greenway with the desire to take control from Courtney. Empathy is a losing battle. I cannot take control, and yet I cannot sit passively and watch the destruction. I must sit and listen. I must hear how my work and care are received if I am truly an empathetic person. This is particularly difficult for professionals and experts. We want to take control to “fix” problems. The nature of empathy is that there is nothing to fix. This is a communal problem by which we share our stories, our pain, and our understanding. 10.1 Why I Failed It takes a lot more than hard work and desire to be successful. Our culture and sociological programming do not like any counter-narrative to the work ethic; it runs against the tenets of individualism and the prerequisites of positive law. Following the wisdom of this work, I have come to believe that such values are designed to protect ourselves and not our systems. As an immediate example, if I believe that all I need to do is work hard, then I have power over the success of this work. I can define an objective goal of acceptance and impact, measured against my subjective experience of hard work, 404 Joan C Tronto, Supra 137 page. 107. 236 and ensure my success. If this work fails, then I can blame the world and insulate myself. I fulfilled my requirement: I worked hard. That means the failure must be on you. The realization brings a conversation to mind. An eminently wealthy friend defends her wealth by asserting her hard work. She “earns” her wealth because she works long hours at her job. The response from someone with significantly less privilege was to point out an obvious fact: many single moms work incredibly hard at two jobs to make less than a 10th of her pay. The working poor are also working hard and frequently working longer, but they don’t make enough to pay the bills. It is this narrative that allows us to designate the deserving and undeserving poor. This unchallenged story prevents us from Applied Equality because we never need to look beyond our own ego. We justify fault-based services and avoid any examination of context. It is a sociological cancer that has infected our legal profession, and it begins in the individual. If I can accept a more forthright examination of this work, I can admit that the goals need to change. It is possible that this research inspires an entire revelation of legal research and thought. More likely, it will sit in an archive with no readership beyond the scholars who had to approve it for degree requirements. Among those scholars, it is likely an academic obligation and not a sincere invitation to begin a more empathetic process. Their very frame of reference may prevent them from seeing the true goal: Making them think about their work and their contribution as a human being. Accepting both possibilities, with the probability of the latter, is difficult. It is hard to do precisely because I have placed so much of my time and myself into this work. I think we do that with all work that matters. We identify as the work itself, and the acceptance of the work is either an affirmation of our worth or a condemnation of how we have spent our time. I know I have limited influence over you as the reader. Even in this, there is a lesson I hope we can learn. We need to reorient our goals, which I believe I have accomplished for myself. I satisfied the initial shock as best as I could, especially given the limits of research. The investments I made in this work are still relevant. Hard work still matters, but it matters because it has been deeply satisfying for me. I understand this as one of the derivations from Bad Medicine. It is not a matter of what. What matters are the questions of why and how. As long as we remain possessed by our objective and binary categorizations, we 237 will struggle to grasp this lesson. Once I released the final control of this work, I could see it and enjoy it far more. After reflection, I can say that it no longer matters whether a large audience enjoys this research. I enjoyed this work. It became an avenue for personal changes and self-examination. This work has brought me closer to whole. For me, that has been enough. As the recipient of this gift, I want to share it with my reader. There is a liberation in pursuing work for its personal satisfaction. In objective terms, this project was expensive and consuming. It is unlikely to provide any “objective” benefits. But subjectively, I would never replace the time on the Greenway. Ironically, I think the subjective goals and self-inspection will also generate a better legal system. The final challenge to my reader is a remnant of one of my first goals. I wanted to create a conversation between Courtney, the agencies, and yourself. I wanted to create contact where time and geography prevent relationships. The narrative structure was designed to place Courtney’s voice in your head. It was an opportunity for you to meet her, if only on this page. I think this goal is still worth pursuing. In my first rendition, I wanted the conversation as a marker of my success. More importantly, I believe the conversation can be constructive to you if you are willing to engage. I had my experiences, and I have grown in their light. The last move is an opportunity for you to enjoy the same reflection. It is an invitation for you to do the work so you can reap the same benefits. The challenge you face in the final stage of this work is creating a conversation as a single individual. It touches upon the very core of thinking and what it means to have a discussion within the self. I cannot tell you how to have this discussion. I believe it starts with questions, and I can guide you through the questions I saw in the narratives. It was the very nature of those questions which compelled me to examine my own circumstances. I suggest you reflect upon your own questions from the stories you were told. If I have done my job correctly, then it is the voices of the Greenway who will carry you through this final process. The Greenway taught me how to ask questions. More importantly, it taught me how to practice the skill of listening. As lawyers and scholars, we need to step aside from our pedigree. Leave behind the social assumptions that we have answers because we have 238 education and status. We may have answers for legal doctrine, but law is a collective creation. It is not ours to define. Instead of assumed knowledge, assume ignorance. Being open was a tremendous benefit to me: it taught me how to ask what it is that I needed to know. Through the process of questions, we can hope to discover what it means to know with a little less obstruction from our personal phenomenological lens. When we question ourselves and our institutions honestly, we begin to see our vulnerability. It is difficult to accept that academic degrees, job titles, and bank accounts do not protect us from misfortune. It is hard to accept the proposition that “hard work” won’t provide us with the safety and recognition we crave. Instead of leading us to health, our refuge in Techne has merely precluded the good fortune that makes life enjoyable. Removing ourselves from chance and danger also removes us from the potential for empathy and understanding. It is human to suffer. We cannot isolate that part of ourselves without removing our humanity. Questions are the antithesis to Techne. We may not like the answers we receive, but at least we can begin the process of understanding and accepting. What I hope to happen next is to inspire self-examination. Dare I say that I hope to trigger a few existential crises in my readers? Absolutely. If a crisis throws you into shock and forces you to generate your own questions, then this project was an objective success. If you fall too deep in your own existence, then remember, you can always come back to Techne for some institutional support. There is no conclusion to this work. It is a process. A process which has proved highly valuable to me, and I hope it can provide similar insights to the creation of meaning for you. While I cannot control this process, I can suggest the questions I faced when conducting the work. 10.2 Guiding Questions Throughout this work, I was continually struck by the luck in my life. This is perhaps the greatest question from the research. I would encourage you to think about the forms of luck in your own life. Instigated by comparing stories from the Greenway with my own experiences, I was troubled by how powerfully distant events could impact my success. It truly is the butterfly effect in which microevents can dramatically alter the 239 trajectory of your life. For example, I was lucky that a certain individual named Steve Prefontainewas a fast runner. It is not an exaggeration to say that I am a scholar because Prefontaine was a runner. His speed and legacy, even before I was aware of his identity, unwittingly changed my life as a young man. I was lucky because Prefontaine ran at the University of Oregon. The university and the city embraced his legacy. This lent credibility to a distance runner trying to get into their law school. Other schools would have seen less value in a distance runner. But the University of Oregon saw it as a reason to bestow a large scholarship. Without the money, I could not afford law school. It was not my grade point average or extra-curricular activities that made law school possible. It was a particular admissions team with a particular perspective. Prefontaine made Eugene, Oregon “Track Town USA.” And it was Track Town that made me a scholar. I was also lucky that Judge Ross Leuning was a graduate of the University of Oregon School of Law. The Judge is also a distance runner. Our running was a common vein: it was stronger than our shared experience in law school. Running created an understanding that did far more than secure my job. It granted me an employer who understood me. Luck presented me with a mentor who taught me far more than my legal education. When I am honest, who I am is a product of the mentorship I have received. That mentorship has continually stumbled into my life as a product of good chance. If I ignore the luck in my life, I grow cruel to others around me. I worked hard, but I am not here because of my hard work. I am here because my work combined with my good fortune. Another aspect of luck taught from the Greenway is the discovery of all the people who care for you with patience and intelligence. It is the core difference between Alan and Taurus. Why one escaped and the other vanished. Every scholar, judge, and lawyer with whom I have worked has had someone advocate for them. No doubt, my partner, the eminent Dr. M. Esther Sherman, is such an individual. There is perhaps no better example than Professor Alexandra Flynn. Without her, this work does not exist. I did not control her support. I can recognize her sacrifices and express my gratitude, but the best I can do is to pay it forward. Professor Flynn did not create a set of rules to make 240 this project viable. She simply listened. She accepted my process. In moments of need, she provided support. I hope that the method here can help you recognize your luck and dependence when it comes to support in your life. If Courtney had been born to my parents, she may have become a judge. With her parents, I may be the homeless addict. Even the fact that I was born into a family with two older sisters is relevant to my success.405 We do not choose our family, but our family has incredible power to influence us. No one on the Greenway had a constructive family. But it is more complicated. As the comparison between myself and my cousin shows, even with a strong family, there is not a guarantee. That is what I learned from Ashley. Our security is as thin as the tent walls. We cannot fight it, but we can recognize it. We can work to build better institutions and more secure support. Beyond the good luck, consider all the instances of bad luck avoided. I remember driving to Kansas in the middle of the night when the car ahead of me struck a deer. Another twenty seconds and it is my car. Twenty seconds and it is my life which is lost. There is no legal scholarship if I die. I was lucky. Courtney suffered the ill luck of giving the wrong man a light. There is a very human reason we avoid luck. It is not all Powerball winners. It is disease, bankruptcy, and death. If we look close enough, we lose the ability to dictate what is healthy and what is disease. Running can be a disease. Taking forms of the amphetamine, Adderall, can be healthy. The key is not to turn away when questions make you uncomfortable. If we are to build a better system of laws, we must face that which we wish to turn away. Finally, I would urge you to think about all the luck of which you are ignorant. I do not know how many times I was nearly assaulted while completing this work. Luck takes the form of the Lottery in Babylon.406 We have no control over the lottery. We have no choice in whether or not we get to play. We do not know who draws the numbers, and we do not even know when our number is called. All we know is that the lottery 405 In a fascinating study, scholars discover that boys with older sisters experience greater cognitive development and growth. As opposed to older brothers and any other relatives, older sisters are more likely to engage and encourage young men. The differences is demonstrable in the development of young boys. See, Pamela Jakiela, Owen Ozier, Lia Fernald, and Heather Knauer, “Policy Research Working Paper: Big Sisters”, (2020) online: < https://openknowledge.worldbank.org/bitstream/handle/10986/34687/Big-Sisters.pdf?sequence=1> 406 Jorge Luis Borges and John M. Fein, “Lottery in Babylon,” (1959) 33:3 Prairie Schooner, 203-207. 241 distributes good and bad in various degrees. All we know is that the lottery is compulsory. These questions can help us create a better legal system, but we must allow them into our psyche and our analysis. It is not a statute that we need to change. Neither is there any precedent to overturn. We are the barrier to a better system. We have created these institutions, and it is hoped that through these questions, we can make them better. It has been my experience that vulnerability builds connections. I have experienced this in court, with my family, and with students. It is a difficult step to take. Asking questions and making ourselves vulnerable invites chance to wreak the worst havoc. But it also invites hope. 10.3 A Future Worth Studying A byproduct of my own method forced me to look ahead and ask about things that still make me uncomfortable. One of my greatest discomforts is engagement with the quickly developing radical right within the United States. I work for the state. I work with selfless individuals such as Roy Willett, Judge Martinez, and Andrea Inouye. The argument that such individuals comprise a “Deep State” or have some hidden agenda is infuriating. Such individuals make far less than they could, work longer hours, and do it without recognition. I am inclined to defend them with great prejudice as I am inclined to defend myself. Within Context Theory, I can recognize my anger, but I cannot let it govern my research or response. I suspect that the rise in conspiracy theories, hate crimes, and violence in my own country is a product of greater forces. I strongly suspect there is a context to the January 6 Insurrection and the rise in militia groups. The same way our legal language and system have disenfranchised those on the Greenway, we have ignored the rural, the poor, and the struggling. This does not condone the rise in conspiracy theories but suggests that there is something to be recognized in our times. If we look into the Context of agency organization and communication, I believe we will find a system that has ostracized the people within the United States. As lawyers and scholars, we struggle to understand the administrative state. We expect people 242 working two jobs in alienating conditions to have the same degree of legal competence as lawyers and agency heads. Our legal methods have ignored them and excluded them. It is possible that the “Deep State” is simply an attempt to make sense of a system we have created. Our agencies and our legal system exist in a complicated context. We are born into this context and we have the power through recognition to help guide it moving forward. The context is a powerful stream that carries us, but our reflection and recognition is an oar which can give us a marginal degree of direction. That might be all we get. Whether it is the Greenway or the “Deep State” we are carried away by currents beyond our control. But maybe an oar is all we need. Through future development of Context Theory, I hope we can find out. 243 Bibliography Books Arendt, Hannah, The Human Condition, Second Edition, (University of Chicago Press, 2013). Austin, John L., How To Do Things With Words: The William James Lectures delivered at Harvard University in 1955, First Edition, (Oxford Academic, Oxford University Press, 1975). 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Thesis/Dissertation
eng
Law
Vancouver : University of British Columbia Library
Attribution-ShareAlike 4.0 International
Graduate
Flynn, Alexandra
Applying context theory : the narrative of homelessness and law
Text