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3/22/76 - American College of Trial Lawyers
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The original documents are located in Box 2, folder "3/22/76 - American College of Trial
Lawyers" of the Carla A. Hills Speeches at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 2 of the Carla A. Hills Speeches at the Gerald R. Ford Presidential Library
FINAL
54
AMERICAN COLLEGE OF TRIAL LAWYERS
MARCH 22, 1976
GOOD MORNING, I AM so PLEASED TO BE HERE. I CAME FROM
ST. JOHN'S ISLAND THIS MORNING. THE WATER TAXI IS QUITE AN
EXPERIENCE. I THOUGHT FOR A MOMENT THAT I HAD FOUND THE
BERMUDA TRIANGLE,
BUT, THE CAPTAIN OF THE BOAT WAS VERY FRIENDLY, HE
SHOWED ME HOW TO ADJUST MY LIFE JACKET, THEN HE LOANED ME
HIS BOOK TO READ ON THE WAY OVER -- IT WAS CALLED "JAWS".
So, WHEN I SAY I AM PLEASED TO BE HERE -- YOU KNOW THAT
IS AN UNDERSTATEMENT,
I WAS ALSO IMPRESSED WITH THE LATIN SUB-TITLES FOR THIS
MORNING'S SESSION, HAVE YOU NOTICED THEM?
AT FIRST I THOUGHT I WAS READING A RECIPE FOR CARRIBEAN
CONCH (KONK) CHOWDER -- PRO-SPICE, ADD-SPICE AND RE-SPICE.
BELIEVE ME, I'VE HAD MEXICAN PEPPERS THAT WOULD TASTE LIKE A
WATER CHASER AFTER THE CHOWDER WE HAD DOWN HERE SATURDAY NIGHT.
FORD a LIBRARY GERALD
-2-
BUT, MY REMARKS THIS MORNING ARE DISTINCTLY LESS SPICY
AND MORE PRO-SPICE -- FOR IN KEEPING WITH THE THEME OF THIS
SESSION, I THOUGHT IT MIGHT BE USEFUL TO TAKE A BICENTENNIAL
VIEW OF THE EXTENT TO WHICH LITIGATION CAN OR SHOULD PLAY A
ROLE IN THE FORMULATION OF NATIONAL POLICY.
As MEMBERS OF THE LEGAL PROFESSION, HOW SHOULD WE VIEW
THE CURRENT MUSHROOMING OF LITIGATION AS THIS NATION ENTERS
ITS THIRD CENTURY? DOES IT ENDANGER OR ENHANCE THE PROSPECTS
OF PROTECTING AND MAINTAINING THE VALUES OF OUR DEMOCRATIC
SYSTEM?
HAVING SPENT ALMOST ALL OF MY ADULT LIFE AS A LITIGATOR,
I CAN TELL YOU FROM PERSONAL EXPERIENCE THAT THE PROCESS OF
LITIGATION LOOKS VERY DIFFERENT TO THE COURT AND THE LITIGATOR
THAN IT DOES TO THE FEDERAL AGENCY WHOSE PROGRAM IS INVOLVED
IN THE LITIGATION.
LET ME ILLUSTRATE WITH A PERSONAL, BUT NOT UNCOMMON,
INCIDENT,
-3-
LAST YEAR, ONE WEEK AFTER I CAME TO HUD, THE FEDERAL
DISTRICT COURT IN CHICAGO ENTERED AN ORDER TO SHOW CAUSE
WHY I SHOULD NOT BE HELD IN CONTEMPT FOR FAILURE TO PRODUCE
A VOLUMINOUS QUANTITY OF DOCUMENTS. I DID NOT KNOW THAT
I HAD FAILED TO PRODUCE ANY DOCUMENTS, NOR THAT THE DEMANDED
PRODUCTION WAS PROCEEDING, NOR THAT THE HEARING WAS CONTINUED.
IN FACT, I DID NOT FIND OUT ABOUT THE ORDER UNTIL
SEVEN MONTHS LATER WHEN THE COURT ACTUALLY HELD THE HEARING
AND THE NEWSPAPERS WERE REPORTING THAT THERE WAS A REAL
POSSIBILITY THAT I MIGHT FIND AN IMMEDIATE RESPITE FROM MY
HECTIC SCHEDULE IN THE QUIETUDE OF A CHICAGO JAIL,
THANKS TO SOME FAST ACTION AND HARD WORK OF MY STAFF
AND THE CIVIL DIVISION, WE MANAGED TO LOCATE THE REMAINING
DOCUMENTS AND THE UNWANTED VACATION IN CHICAGO WAS AVOIDED,
I RELATE THIS ANECDOTE TO EMPHASIZE THAT WHERE YOU
STAND ON THE ROLE OF LITIGATION MAY WELL DEPEND ON WHERE
YOU SIT. THUS AFTER THE PAST ONE YEAR AND 13 DAYS, IT IS
INEVITABLE THAT THE VIEWS I EXPRESS ARE HUD-ORIENTED.
-4-
HUD CURRENTLY IS PARTY TO SOME 3,000 SUITS. THE GREAT
MAJORITY OF THESE CASES INVOLVE FORECLOSURE ACTIONS AND
ROUTINE QUESTIONS OF FACT AND COMMERCIAL LAW THAT DO NOT
DIFFER GREATLY FROM SIMILAR ACTIONS BROUGHT IN THE PRIVATE
SECTOR. THEY HAVE LITTLE OR NO EFFECT ON DEPARTMENTAL POLICY,
BUT, AN EVER-INCREASING NUMBER OF CASES ARE BEING FILED
AGAINST HUD WHICH CHALLENGE ITS ADMINISTRATIVE AND POLICY
DECISIONS. WE HAVE BEEN CHALLENGED:
-- FOR THE IMPOUNDING OF FUNDS FOR HOMEOWNERSHIP
SUBSIDIES;
-- FOR FAILING TO PROVIDE OPERATING SUBSIDIES TO
APARTMENT BUILDINGS;
-- FOR REFUSING TO IMPLEMENT A STANDBY PROGRAM TO
ASSIST HOMEOWNERS IN DANGER OF FORECLOSURE;
-- FOR ESTABLISHING ALLEGEDLY INADEQUATE PROCEDURES
TO PROTECT TENANTS AGAINST IMPROPER EVICTIONS;
-5-
-- FOR APPROVING RENT INCREASES;
-- FOR REFUSING TO REHABILITATE RATHER THAN TO
DEMOLISH PARTICULAR DWELLINGS;
-- FOR APPROVING PARTICULAR SITES FOR THE
CONSTRUCTION OF APARTMENTS;
-- FOR REFUSING TO PAY FOR THE REPAIR OF ALLEGEDLY
DEFECTIVE CONDITIONS FOUND IN FEDERALLY-INSURED
HOMES;
-- AND, FOR MANY OTHER ABUSES TOO NUMEROUS TO LIST
HERE.
TODAY, A WHOLE HOST OF ISSUES ARE BEING RAISED BY
INDIVIDUALS WHO OWN, BUILD, FINANCE, LIVE IN, WANT TO LIVE
IN, OR OBJECT TO HOUSING BUILT WITH HUD SUBSIDIES OR
INSURANCE, OR WHO OBJECT TO THE MANNER IN WHICH LOCALITIES
ARE INTENDING TO USE COMMUNITY DEVELOPMENT FUNDS OBTAINED
THROUGH HUD.
THIS LITIGATION DOES HAVE A SUBSTANTIAL EFFECT -- FOR
BETTER AND FOR WORSE -- ON THE MANNER IN WHICH THE DEPARTMENT
WORKS. BUT, IT MAY NOT BE PROVIDING THE RELIEF OR EVEN THE
OUTLET FOR PROTEST THAT MANY OF THE PLAINTIFFS ARE SEEKING.
-6-
SINCE 1968, THE JUDICIARY HAS BEEN FAR MORE WILLING
TO QUESTION ADMINISTRATIVE CHOICES THAT ONCE WERE VIEWED
AS FALLING WITHIN THE SOLE DISCRETION OF THE DEPARTMENT.
THIS PHENOMENON IS EXPLAINED BY A NUMBER OF FACTORS:
-- URBAN DISCONTENT AND RIOTS OF THE 1960's WHICH
MADE THE COURTS AND THE GENERAL PUBLIC MORE
AWARE OF GHETTO CONDITIONS AND THE IMPORTANCE
OF PROVIDING A "SAFETY VALVE" OR POINT OF ACCESS
FOR THOSE AFFECTED;
-- ENACTMENT IN THE 1960's OF A BROAD RANGE OF
URBAN AND LOW INCOME HOUSING PROGRAMS, WHICH
AFFECTED THE LIVES AND ASPIRATIONS OF A GREAT
NUMBER OF PEOPLE AND ELICITED STRONG REACTIONS;
-- THE CONTINUED DECAY OF URBAN AREAS;
-- THE CONTINUED CONCENTRATION OF MINORITY GROUPS
IN OUR CORE CITIES;
-7-
-- THE RISING EXPECTATIONS OF POOR PEOPLE FOR
A BETTER LIFE -- FOOD, HOUSING, EDUCATION,
HEALTH CARE -- AND FOR A FULL AND FAIR
OPPORTUNITY TO HAVE THEIR COMPLAINTS HEARD;
-- GREATER AVAILABILITY OF LEGAL SERVICES FOR
CITIZENS, PARTICULARLY THE POOR, AFFECTED
BY GOVERNMENT ACTION;
-- LIBERALIZATION OF CLASS ACTION AND STANDING
RULES MAKING THE COURTS MORE ACCESSIBLE TO
CITIZENS SEEKING TO CHALLENGE GOVERNMENT
ACTION;
-- GREATER COMPLEXITY OF GOVERNMENT PROGRAMS
SEEMINGLY GIVING RISE TO MORE INCIDENTS OF
AMBIGUITY OR INEQUITY;
-- SHARPER CONFLICTS BETWEEN THE EXECUTIVE AND
LEGISLATIVE BRANCHES PRODUCING MORE LEGITIMATE
COMPROMISE AND RESULTING IN AN INCREASING
NUMBER OF BASIC QUESTIONS ON WHICH A JUDICIAL
REFEREE IS NEEDED.
-8-
THESE FACTORS COUPLED WITH THE DEMISE OF OTHER AVENUES
OF REDRESS FOR INDIVIDUAL FRUSTRATIONS HAVE BROUGHT MORE
AND MORE CASES INVOLVING GOVERNMENTAL POLICY INTO COURT.
EVEN A QUARTER CENTURY AGO, PARTICULARLY IN OUR OLDER
URBAN COMMUNITIES, THE LOCAL POLITICAL ORGANIZATION PROVIDED
THE CITIZEN WITH A POINT OF ACCESS TO GOVERNMENT BUREAUCRACY,
A LATE SOCIAL SECURITY CHECK, A SOUGHT-AFTER PUBLIC JOB, A
GOVERNMENT LOAN WERE GRIST FOR THE ORGANIZATION MILL -- FOR
IT HAD ACCESS TO THE INCUMBENT WHO WOULD NEED THE ORGANIZATION'S
HELP TO WIN FUTURE ELECTIONS,
BUT, THE ERA OF THE LOCAL POLITICAL ORGANIZATION HAS
WANED. TODAY, THE PHENOMENON OF THE MEDIA CANDIDATE WITH
MASSIVE CONSTITUENCIES IS VERY MUCH WITH US, THE COURTS
NOW PROVIDE THE MOST AVAILABLE MEANS OF MAKING THE GOVERNMENT
LISTEN.
THUS, RESORT TO LITIGATION HAS INCREASINGLY BEEN THE
TOOL FOR CITIZENS SEEKING REDRESS,
-9-
ON THE PLUS SIDE, IT FORCES THE EXECUTIVE BRANCH TO
FACE ISSUES IT MIGHT HAVE PREFERRED TO DELAY OR TO OVERLOOK.
AND, IT INDUCES THE EXECUTIVE TO TAKE GREATER CARE IN
INTERPRETING AND IMPLEMENTING LEGISLATIVE MANDATES,
ALSO, IT ENCOURAGES THE PREPARATION OF SOUND ADMINISTRATIVE
RECORDS TO SUPPORT DISCRETIONARY DECISIONS IN THE RECOGNITION
THAT THEY MAY BE USED IN LITIGATION.
SIMILARLY, IT ENCOURAGES THE CONSIDERATION OF ITEMS
LIKELY TO CONCERN THE LITIGATOR AT THE TIME THAT PROGRAM
PROCEDURES ARE BEING DRAFTED.
BUT, IT ALSO HAS MINUSES,
IT CAN HOBBLE AN AGENCY so THAT IT CANNOT EQUITABLY
IMPLEMENT A PROGRAM,
IT CAN AFFECT THE CREDIBILITY OF THE COURTS BY CASTING
THEM IN THE ROLE OF PROGRAM ADMINISTRATORS MANDATING OR
INITIATING PROGRAMS OF CONSIDERABLE COMPLEXITY,
-10-
AND, FINALLY, IT PUTS THE DEPARTMENT IN AN ADVERSARY
POSITION so THAT A COURT VICTORY -- PROCEDURAL AS WELL AS
SUBSTANTIVE -- TENDS TO BE REGARDED AS A VINDICATION OF
THE CHALLENGED POLICY AND THUS REINFORCES IT.
BUT, FAR MORE IMPORTANT, IT SEEMS TO BE INCREASINGLY
CLEAR THAT THE THOUSANDS OF PROTESTORS WHO CHALLENGE THE
DECISIONS OF HUD, HEW, AND A HOST OF OTHER FEDERAL AGENCIES
ARE SEEKING AID THAT CANNOT IN THE LONG RUN BE PROVIDED
THROUGH THE JUDICIAL BRANCH OF GOVERNMENT,
I SUBMIT THAT THE DILEMMA OF THIS GATHERING VOX POPULI
PITTED AGAINST THE REASONABLE, JURIDICAL LIMITS OF OUR
DEMOCRATIC SYSTEM POSES A FUNDAMENTAL CHALLENGE TO OUR
TRADITIONAL INSTITUTIONS -- BECAUSE, IN FACT, OUR IDEALS
AND OUR TRADITIONS ARE NOT AUTOMATICALLY ACCEPTED BY LARGE
AND DIVERSE GROUPS OF AMERICANS -- PARTICULARLY THOSE WHO
BELIEVE THAT OUR ACCEPTED INSTITUTIONS DO NOT SERVE THEM
FAIRLY.
-11-
EIGHT YEARS AGO THE AMERICAN ASSEMBLY OPENED ITS
REPORT ON "LAW AND A CHANGING SOCIETY" BY STATING:
"OUR CHANGING SOCIETY NOW FACES CHALLENGES
TO PUBLIC ORDER AND TO THE REALIZATION OF AMERICAN
IDEALS GREATER THAN ANY SINCE THE CIVIL WAR -- THE
CLUSTER OF PROBLEMS KNOWN AS THE URBAN CRISIS."
IT SEEMS TO ME THAT A KEY ISSUE ON OUR COLLEGIAL
CALENDAR -- AS WE VIEW OUR BICENTENNIAL PROSPICE -- IS
THE NEED TO PROVIDE REALISTIC REDRESS TO URBAN PROTESTORS.
WE CANNOT CLOSE OUR EYES TO THE PROBLEM -- IT IS WITH US,
AND, IT IS CRITICAL TO THE FUTURE OF OUR SOCIETY.
My PREMISE IS THAT THIS PROBLEM BREAKS INTO TWO
DISTINCT PARTS:
-- GRIEVANCES THAT ARE SUSCEPTIBLE TO SOLUTION
THROUGH TRADITIONAL JUDICIAL PROCEEDINGS, AND
-- GRIEVANCES THAT ARE NOT,
-12-
EVEN WITH THE FIRST CATEGORY, WE HAVE IN THIS COUNTRY
A CRISIS OF MAJOR PROPORTIONS. WE HAVE SO BURDENED OUR
JUDICIAL SYSTEMS, STATE AND FEDERAL, THAT THEY ARE HAVING
SERIOUS TROUBLE HANDLING THOSE DISPUTES WHICH THEY ARE BEST
EQUIPPED TO RESOLVE, IF THEIR EFFECTIVENESS IS TO BE
PRESERVED, IT IS PATENTLY OBVIOUS THAT WE HAVE TO DO SOME
LARGE-SCALE PRUNING.
WE HAVE, I BELIEVE, OVER-INDULGED OUR DESIRE TO SETTLE
EVERY DISPUTE AND EVERY SOCIAL SHORTFALL WITH THE TRAPPINGS
OF FORMAL TRIAL PROCEEDINGS,
OUR CRIMINAL SYSTEM ALREADY SHOWS CRACKS -- AND MANY
RESPECTED LAW ENFORCEMENT OFFICERS CHALLENGE THE LEGAL
PROFESSION TO DEVELOP INNOVATIVE IDEAS TO REDUCE THE BURDEN
ON LAW ENFORCEMENT AND ON THE COURTS,
SERIOUS STUDIES QUESTION THE NEED FOR THE FULL APPLICATION
OF OUR CRIMINAL LAWS TO SOME OF THE SO-CALLED VICTIMLESS
CRIMES. EMPIRICAL STUDIES WITH THE CASUAL DRUNK AND THE
ROUTINE TRAFFIC OFFENDER SUGGEST THAT THESE MATTERS DO NOT
NEED THE PROTECTIONS AFFORDED BY OUR CRIMINAL SYSTEM AND THAT
DIFFERENT PROCEDURES CAN BE DEVELOPED FOR THEM TO RELIEVE
THE BURDEN THEY PLACE UPON OUR COURTS,
-13-
EXPERIMENTS WITH OTHER OFFENSES GIVE HOPE THAT
RECIDIVISM CAN BE REDUCED, THAT FIRST-TIME OFFENDERS
CAN BE DETERRED FROM REPEATED CRIMINAL ACTIVITY THAT
SO BURDENS OUR CRIMINAL SYSTEM,
SEVERAL AREAS OF THE COUNTRY ARE EXPERIMENTING
WITH PROJECT MISDEMEANANT, WHERE LAY COUNSELLORS GIVE
SPECIAL ATTENTION TO FIRST-TIME OFFENDERS IN THE HOPE
OF CATCHING THEM IN TIME.
ANOTHER EXPERIMENT INVOLVES DIVERSION COUNSELING,
HERE THE CRIMINAL TRIAL OF THE FIRST-TIME OFFENDER IS
DELAYED, WITH HIS OR HER CONSENT, AND COUNSELING IS
PROVIDED BEFORE PROSECUTION. IF THE COUNSELING SUCCEEDS,
THE CRIMINAL CHARGE IS DISMISSED, AND SOCIETY IS SPARED
THE COST OF YET ANOTHER TRIAL, DIVERSION COUNSELING MAKES
PARTICULAR SENSE IN VIEW OF THE FACT THAT IT IS OFFERED
ONLY TO THOSE PERSONS WHO, IF CONVICTED, WOULD MOST CERTAINLY
BE PLACED ON PROBATION,
IN THE CIVIL FIELD, STATE LAWS AND PROPOSALS PROVIDING
FOR NO-FAULT DIVORCES AND NO-FAULT RESOLUTION OF TRAFFIC
ACCIDENTS ALSO CONSTITUTE USEFUL EXPERIMENTS IN THE EFFORT
TO REDUCE CASELOADS,
-14-
WHETHER ANY OR ALL OF THESE PARTICULAR IDEAS ARE
SOUND IS NOT NOW THE ISSUE. RATHER THESE IDEAS SHOULD
BE SEEN AS THE TYPE OF EXPERIMENT THAT WE MUST CONSIDER
IN ORDER TO MAINTAIN A FUNCTIONING JUDICIAL SYSTEM TO
COPE WITH OUR LITIGATION EXPLOSION.
WHEN I REFLECT UPON THE THOUGHT THAT THIS ORGANIZATION
AND OTHERS HAVE BROUGHT TO THIS PROBLEM, AND SEE HOW FAR
WE MUST GO TO ACHIEVE A SOLUTION, I HAVE REAL CONCERN AS
TO THE LIKELIHOOD OF FASHIONING A SOLUTION FOR THE SECOND
PART OF MY THESIS:
WHAT DO WE DO TO RESPOND TO THE MILLIONS OF INDIVIDUALS
WHO SEEK AN OUTLET FOR THEIR COMPLAINTS AND FRUSTRATIONS?
SOCIETY NEEDS A SAFETY VALVE TO LET OFF THE STEAM
OF THEIR PROTEST -- AND THEY NEED -- IN MORE CASES THAN
WE YET REALIZE -- MEANINGFUL RELIEF TO THEIR INDIVIDUAL
COMPLAINTS THAT ARE NOT, AND I SUGGEST, CANNOT BE PROVIDED
THROUGH TRADITIONAL PLAINTIFF VERSUS DEFENDANT ADVERSARY
PROCEEDINGS,
LET ME GIVE YOU TWO EXAMPLES.
-15-
LAST FALL, I WAS ENGAGED IN WHAT MIGHT BEST BE
DESCRIBED AS A BROUHAHA WITH ABOUT 800 ANGRY HOMEOWNERS
IN CHICAGO WHOSE MORTGAGES FOR THE MOST PART WERE HUD-
INSURED. THEY FEARED THE LOSS OF THEIR HOMES BY REASON
OF FORECLOSURE AND THE DETERIORATION OF THEIR NEIGHBORHOODS
RESULTING FROM THE DECAY THAT SETS IN WHEN A HOUSE STANDS
EMPTY THROUGH THE LONG MONTHS IT TAKES TO COMPLETE
FORECLOSURE AND RESALE.
THEY WERE DEMANDING THAT HUD -- IN EFFECT -- CHANGE
THEIR MORTGAGE CONTRACT -- TO PROHIBIT LENDERS FROM FAST
FORECLOSURES, TO REQUIRE LENDERS TO PROVIDE DEFAULT COUNSELING
AND TO MANDATE THAT LENDERS ACCEPT PARTIAL PAYMENTS,
AT THAT MEETING I TRIED TO EXPLAIN THAT ONLY A FEW
WEEKS EARLIER HUD HAD ISSUED INNOVATIVE NEW GUIDELINES
GOVERNING LENDERS TARGETED TO THESE PRECISE CONCERNS,
FOR EXAMPLE, WE PROVIDED THAT IT WOULD BE GROUNDS FOR
HUD TO STOP DOING BUSINESS WITH A LENDER WHICH FORECLOSED
BEFORE THE BORROWER WAS AT LEAST THREE MONTHS BEHIND IN
HIS PAYMENTS, FORECLOSED WITHOUT CONTACTING THE BORROWER
FIRST, OR REFUSED TO TAKE PARTIAL PAYMENTS UNDER SPECIFIED
CIRCUMSTANCES.
-16-
THEIR REACTION WAS STRIDENT SCORN. I WAS PUZZLED
UNTIL I SPOKE A DAY TO TWO LATER WITH A QUIETER REPRESENTATIVE.
THEN IT BECAME APPARENT TO ME THAT WHAT THEY WANTED WAS
NOT STRICTER GUIDELINES TO GOVERN LENDERS BUT INSTEAD THE
RIGHT TO PLEAD THE SUBSTANCE OF OUR NEW GUIDELINES AS A
BAR TO A FORECLOSURE SUIT. THEY WANTED THE LEGAL FOOTING
TO CHALLENGE IN COURT EACH FORECLOSURE ACTION BROUGHT
AGAINST THEM.
THEY WERE NOT INTERESTED IN THE ENUNCIATION OF BROAD
POLICY AND WERE NOT CALMED BY THE ANNOUNCEMENT THAT HUD
WOULD STOP DOING BUSINESS WITH MORTGAGE COMPANIES WHICH
PRECIPITOUSLY FORECLOSED,
THE FACT THAT IT WAS THEN PUBLIC KNOWLEDGE THAT WE
HAD COMMENCED DISCIPLINARY ACTIONS AGAINST A GROUP OF
LARGE MORTGAGE COMPANIES BECAUSE OF THEIR ABUSES WAS FOR
THE ANGRY 800 IN CHICAGO, AND I SUSPECT FOR THE HUNDREDS
OF THOUSANDS SIMILARLY SITUATED, AN IRRELEVEANT FACTOR,
BUT CAN WE SERIOUSLY CONSIDER THE CREATION OF NEW
LEGAL RIGHTS, ENFORCEABLE IN FEDERAL COURT WHICH PERMIT
EVERY SUCH HOMEOWNER TO ARGUE TO A COURT WHY HE OR SHE
SHOULD BE RELIEVED OF HIS MORTGAGE CONTRACT?
-17-
EVEN IF THE JUDICIAL SYSTEM COULD STAND IT, CAN THE
ECONOMICS OF THE INDUSTRY SURVIVE SUCH AN ONSLAUGHT?
THE SECRETARY OF HEW HAS EVEN GREATER PROBLEMS.
LAST JUNE HIS DEPARTMENT ANNOUNCED THAT IT WAS
PROPOSING TO SHIFT ITS CIVIL RIGHTS ENFORCEMENT EFFORTS
INCREASINGLY TOWARDS A SYSTEMATIC AND AWAY FROM A
COMPLAINT-ORIENTED APPROACH.
HEW's PROPOSAL WAS COMPELLED, IN PART AT LEAST, BY
THE TEN-FOLD INCREASE IN INDIVIDUAL COMPLAINTS MAKING IT
INCREASINGLY DIFFICULT FOR THE DEPARTMENT TO BE RESPONSIVE,
DESPITE SUBSTANTIAL STAFF INCREASES,
THEIR PROPOSAL MET WITH OVERWHELMING OPPOSITION FROM
VIRTUALLY EVERY ORGANIZATION IN THE CIVIL RIGHTS FIELD.
LAST WEEK THE DEPARTMENT WITHDREW THE PROPOSAL, STATING
THAT IT WOULD ATTEMPT TO INVESTIGATE AND RESOLVE EACH
COMPLAINT SUBMITTED TO IT WHILE NOTING THAT IT WOULD BE
EXTREMELY DIFFICULT TO COPE WITH THE BACKLOG AND RISING
VOLUME OF FILINGS, IT DECLARED THAT IT WOULD SEEK PUBLIC
PARTICIPATION IN THE DEVELOPMENT OF NEW APPROACHES TO CIVIL
RIGHTS ENFORCEMENT.
-18-
THESE EXAMPLES ILLUSTRATE THE DILEMMA. HAVING CREATED
INCREASING EXPECTATIONS, HAVING PLEDGED BILLIONS OF DOLLARS
EACH YEAR TO SECURE BETTER FOOD, DECENT HOUSING, QUALITY
EDUCATION, PROPER MEDICAL CARE -- AND MORE EFFECTIVE LEGAL
SERVICES -- HOW DO WE RESOLVE DISPUTES THAT ARISE OUT OF
OUR ADMINISTRATION OF THOSE GRANTS?
WE ARE ADDRESSING THE GROWING SOCIAL AND ECONOMIC
PROBLEMS OF GROUPS, BUT, WE SHOULD BE MORE CONCERNED THAT
OUR "MASS SOLUTIONS" WILL ERODE OUR UNIQUE RELIANCE ON
THE INDIVIDUAL AND OUR PROTECTION OF INDIVIDUAL RIGHTS,
WHERE IN OUR SYSTEM DO WE PROTECT THE INDIVIDUAL'S
RIGHT TO DISSENT FROM OUR GROUP POLICIES, TO PROTECT THE
APPLICATION OF THEM TO HIM WHEN THEY MEAN THE DIFFERENCE
BETWEEN A HOME OR NONE, BETWEEN A GOOD EDUCATION OR A
LESSER ONE, ADEQUATE NOURISHMENT OR HUNGER OR HEALTH?
HAVE WE CREATED GROUP RIGHTS WITHOUT REMEDIES?
I SUGGEST THAT THE FIRST STEP TOWARD FINDING AN
ANSWER IS TO CONCEDE THAT THE COURTS ARE OF ONLY MINOR
USE IN SOLVING THIS PROBLEM AND THAT THE PROBLEM IF LEFT
TO THE COURTS COULD LITERALLY SWAMP THE SYSTEM.
-19-
SECOND, WE MUST IN THE DEVELOPMENT OF OUR SOCIAL
PROGRAMS PROVIDE A RECOGNITION OF OUR INABILITY AT THE
FEDERAL LEVEL TO FASHION NATIONWIDE REMEDIES FOR LOCAL
PROBLEMS.
To QUOTE FROM LAST YEAR'S REPORT OF THE AMERICAN
ASSEMBLY ON "Law AND A CHANGING SOCIETY":
"EVERY EFFORT SHOULD BE MADE TO REDUCE
UNWARRANTED REGULATION OF HUMAN AFFAIRS BY
GOVERNMENT.
WITHIN BROAD NATIONAL
POLICY GUIDELINES, RESPONSIBILITY FOR THE
DEVELOPMENT AND IMPLEMENTATION SHOULD BE
PLACED AT THE MOST FEASIBLE LEVEL PERMITTING
EFFECTIVE CITIZEN PARTICIPATION."
THE BLOCK GRANT AND THE REVENUE SHARING FUNDS THAT
THE FEDERAL GOVERNMENT GIVES TO CITIES ARE RESPONSIVE
TO THIS POINT. To THOSE WHO FEAR THAT LOCAL GOVERNMENTS
MAY DISTORT NATIONAL POLICIES, I REPLY THAT NATIONAL
GOVERNMENT CANNOT ADEQUATELY RESPOND TO LOCAL PRIORITIES
AND INDIVIDUAL DEMANDS,
-20-
ONE LOOK AT THE 96,000 UNITS OF HOUSING THAT HUD
HAS TAKEN BACK SHOULD BE A FORCEFUL REMINDER THAT THERE
IS A BETTER WAY.
THIRD, EACH OF OUR MAJOR FEDERAL DEPARTMENTS MUST
RESPOND MORE DYNAMICALLY TO INDIVIDUAL COMPLAINTS --
WE MUST BE MORE "CONSUMER RESPONSIVE" IN DEVELOPING OUR
PROGRAMS.
BEFORE I WENT TO CHICAGO LAST FALL, I HAD PUBLICALLY
STATED THAT WE WOULD CREATE A TOUGH OFFICE OF CONSUMER
AFFAIRS -- ONE THAT WAS NOT JUST A TOKEN TO "CONSUMERISM".
I RETURNED WITH AN ABSOLUTE DETERMINATION TO DO SO,
WE NOW HAVE AT HUD, A NEW OFFICE OF ASSISTANT SECRETARY
FOR CONSUMER AFFAIRS AND REGULATORY FUNCTIONS WHICH WILL NOT
JUST LOG IN COMPLAINTS. THIS OFFICE WILL:
-- HELP US DESIGN OUR POLICIES WITH A CLEAR
UNDERSTANDING OF HOW THEY AFFECT CONSUMERS;
-- PROVIDE CONSUMERS WITH THE OPPORTUNITY TO
PRESENT THEIR VIEWS BEFORE ANY PROGRAM IS
LOCKED INTO FINAL DESIGN;
-21-
-- AND, PROVIDE CONSUMERS WITH ACCESS TO RELEVANT
BACKGROUND MATERIALS so THAT THEIR VIEWS CAN
BE FACTUALLY SUPPORTED.
I WANT REAL CONSUMER IMPUT BEFORE WE FORMULATE POLICIES
so THAT WE DEFUSE THE KIND OF ANGRY REACTION THAT GROWS
WHERE THERE HAS BEEN INADEQUATE COMMUNICATION.
To THIS SAME END WE ARE PROVIDING AN ADMINISTRATIVE
COMPLAINT SYSTEM COVERING OUR COMMUNITY DEVELOPMENT BLOCK
GRANT PROGRAM, WE HAVE FOUND THAT THIS APPROACH GIVES US
THE CHANCE TO RESOLVE THE ISSUE BEFORE IT REACHES THE COURT.
ACTIONS OUTSIDE THE EXECUTIVE BRANCH CAN HELP TOO,
WE HAVE TRIED TO WORK WITH CONGRESSIONAL STAFFS TO OBTAIN
GREATER CLARITY IN ENACTMENTS TO AVOID AMBIGUITIES WHICH
CAN GIVE RISE TO LAWSUITS,
OUR TRIPARTITE SYSTEM OF GOVERNMENT HAS ACCOMMODATED
TREMENDOUS CHANGES OVER THE PAST 200 YEARS.
-22-
DEMOGRAPHICALLY WE HAVE GROWN FROM 4 TO 215 MILLION
PERSONS, OUR BIRTH RATE HAS DECLINED FROM 55 PER 1,000 TO
15 PER 1,000 PERSONS, OUR LIFE EXPECTANCY HAS INCREASED
FROM ABOUT 40 TO OVER 70 YEARS, OUR AVERAGE HOUSEHOLD SIZE
HAS DROPPED FROM ABOUT 6 TO ABOUT 3 PERSONS.
ECONOMICALLY WE HAVE CHANGED FROM A PREDOMINATELY
RURAL NATION IN WHICH 95 PERCENT OF THE POPULATION LIVED
IN RURAL AREAS TO A PREDOMINATELY INDUSTRIAL NATION WERE
75 PERCENT OF OUR POPULATION LIVE IN URBAN AREAS.
My GOOD FRIEND, MURRAY SCHWARTZ -- FORMER DEAN OF
THE UCLA LAW SCHOOL -- SUMMED UP OUR BICENTENNIAL CONDITION
WHEN HE SAID: "WE ARE AN AGING, URBAN, INCREASINGLY NON-
WHITE POPULATION, WITH SMALLER FAMILIES AND FEWER CHILDREN
-- A FAR CRY FROM THE POPULATION WHICH RATIFIED THE
CONSTITUTION OF THE UNITED STATES AND THE BILL OF RIGHTS."
WE MIGHT ALSO ADD THAT WE HAVE MORE AND MORE TO DO --
AND LESS AND LESS TO DO IT WITH -- AS WE INHERIT THE SKIMPY
REMAINS OF ALL THAT HAS BEEN CHOPPED, DUG OR PUMPED FROM
OUR ENVIRONMENT IN THE ENSUING YEARS,
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YET, AS WE ENTER OUR THIRD CENTURY, WE ARE NO LESS
PROUD -- THAN OUR FOREBEARS -- OF OUR SYSTEM OF GOVERNMENT
THAT HAS GUARANTEED ALL AMERICANS GREATER INDIVIDUAL
FREEDOMS (ECONOMIC, SOCIAL AND POLITICAL) THAN ANY SYSTEM
so FAR DEVISED BY HUMANKIND,
IF THE PROSPICE BEYOND THIS BICENTENNIAL YEAR SEEMS
BLURRED AND BURDENED BY THE VAST COMPLEXITIES OF A NEW
AGE OF CIVILIZATION, NOW IN ITS INFANCY -- WE KNOW, AT
LEAST, THAT WE HAVE THE WIT, THE WILL AND THE INCENTIVE
TO MEET AND BEST OUR GRAVEST CHALLENGES.
IF WE DID NOT, THIS COLLEGE OF LEADERSHIP WOULD HAVE
NO PLAUSIBLE REASON TO CONVENE,
I AM PRIVILEGED TO HAVE BEEN A PARTICIPANT.
AND NOW, WITH YOUR PERMISSION -- AND YOUR NEEDED
"GODSPEED" -- I MUST GET BACK TO THAT BOAT, MY LIFE
JACKET, AND "JAWS".