Western Michigan University Thomas M. Cooley Law Review - Volume 32 | 2015

WESTERN MICHIGAN UNIVERSITY THOMAS M. COOLEY LAW SCHOOL BOARD OF DIRECTORS Don LeDuc, President and Dean Hon. Louise Alderson, Vice Chairman Thomas W. Cranmer Sharon M. Hanlon Hon. Stephen J. Markman James C. Morton Edward H. Pappas Hon. Richard F. Suhrheinrich

James W. Butler III Scott A. Dienes Hon. Jane E. Markey Kenneth V. Miller Lawrence P. Nolan, Chairman Hon. Bart Stupak Dennis A. Swan

Cherie L. Beck – Corporate Secretary

Kathleen A. Conklin – Chief Financial Officer, Treasurer

PROFESSOR, FOUNDER, AND PAST PRESIDENT The Honorable Thomas E. Brennan DEANS EMERITI Michael P. Cox, Dean and Distinguished Professor Emeritus Keith J. Hey, Dean and Distinguished Professor Emeritus Robert E. Krinock, Dean and Professor Emeritus (deceased) DISTINGUISHED PROFESSORS EMERITI Curt Benson Kathleen Butler Karen Chadwick Pat Corbett Mark Dotson Judith Frank Emily Horvath Eileen Kavanagh R. Joseph Kimble John Marks Lawrence Morgan Nora Pasman-Green Philip Prygoski Charles Senger Brent Simmons Gina Torielli Cynthia Ward Nancy Wonch

David Berry Evelyn Calogero Dennis Cichon David Cotter Cynthia Faulkner Elliot Glicksman Peter Jason Peter Kempel (deceased) Dorean Koenig Dan McNeal Maurice Munroe James Peden John Rooney Chris Shafer Norman Stockmeyer Ronald Trosty William Weiner Ann Miller Wood

Ronald Bretz Terrence Cavanaugh Julie Clement Mary D’Isa Norman Fell James Hicks John Kane Mara Kent Dena Marks Helen Mickens Charles Palmer Ernest Phillips Marjorie Russell Jane Siegel John Taylor William Wagner F. Georgann Wing

PROFESSORS EMERITI Sherry Batzer Lewis Langham Donna McKneelen Dan Ray

James Carey Ashley Lowe Florise Neville-Ewell Kevin Scott Karen Truszkowski

Heather Garretson Paul Marineau Norman Plate Lorna Patricia Thorpe-Mock

DEANS Don LeDuc President, Dean, and Professor of Law Tracey Brame Assistant Dean and Professor of Law

Christine Church Associate Dean and Professor of Law

Lisa Halushka Assistant Dean and Professor of Law

Laura LeDuc Associate Dean of Planning, Assessment & Accreditation

Jeffrey L. Martlew Associate Dean and Professor of Law

Charles C. Mickens Associate Dean of Innovation and Technology

Nelson P. Miller Associate Dean and Professor of Law

James D. Robb Associate Dean of External Affairs

Duane A. Strojny Associate Dean and Professor of Law

Ronald Sutton Assistant Dean and Associate Professor

Kathy Swedlow Assistant Dean and Professor of Law

Amy Timmer Associate Dean and Professor of Law

Charles R. Toy Associate Dean of Career and Professional Development

Joan Vestrand Associate Dean and Professor of Law

Paul J. Zelenski Associate Dean of Enrollment & Student Services

PROFESSORS Frank C. Aiello Brendan Beery Paul Carrier Mark Cooney Renalia DuBose Anthony Flores Marjorie Gell Richard C. Henke Tonya Krause-Phelan Daniel W. Matthews Marla Mitchell-Cichon Monica Nuckolls Robert Savage Dan Sheaffer Jeffrey Swartz Christopher Trudeau

Tammy Asher Erika Breitfeld Terrence Cavanaugh Victoria Cruz-Garcia David Finnegan Dustin Foster Katherine Gustafson Barbara Kalinowski Gerald MacDonald Michael McDaniel Michael K. Molitor Kimberly Oâ&#x20AC;&#x2122;Leary Devin Schindler Paul Sorensen David Tarrien Gerald Tschura Victoria Vuletich

Gary Bauer Jeanette Buttrey Bradley Charles Lisa DeMoss Gerald Fisher Karen Fultz Christopher Hastings Linda Kisabeth Mable Martin-Scott Nelson Miller Martha Moore Lauren Rousseau John N. Scott Stevie J. Swanson Patrick Tolan Joan Vestrand

ADJUNCT PROFESSORS Mustafa Ameenuddin Byron Babbish Brendon Basiga Chad Brown Joseph Burgess Gerald Cavallier Michael Costello Thomas Curran Michelle Donovan James Dworm Donald Frank Rachel Glogowski Donald Hinkle Michael Hughes Sue Ellen Krick Adam Levine Matthew Marin Gary Mitchell Patrick Muscat Steven Owen Kevin Peterson Kerry Przybylo Robert Rothman Sara Schimke Carly Self Ben Shotten Cari Sullivan Gregory Ulrich Graham Ward

Rosemarie Aquilina Anne Bachlefifer Kenzi Bisbing Melissa Brown William Burleson Steven Cernak James Cunningham Stacey Dinser Thomas Doyle Steven Fantetti Craig Frederick Judith Gracey Aletha Honsowitz Dale Iverson Michael Leffler Ronald Lowe Claire Membiela Paul Monicatti Nicholas Nazaretian Joseph Parrish Margaret Philpot-Baditoi Archana Rajendra Ronald Sangster Charles Schutze Frank Seyferth Beth Simonton-Kramer Beth Swagman Vanophem, John Marie Wolfe

iii

Andrew Arena Sam Badawi Scott Brinkmeyer Robert Buchanan Eric Carver Martha Cook Janice Cunningham Robert Donaldson Mike Dunn Robert Fleming Richard Garcia Christi Henke Catherine Hoort Julie Janeway Shari Lesnick Peggy MacDougall Robert Metzgar Mikhail Murshak Peter Oâ&#x20AC;&#x2122;Connell Andre Perron John Pierce Dale Reitberg Traci Schenke Kim Seace Michael Shea Robert Stocker Brad Sysol Michael Walton Zena Zumeta

WESTERN MICHIGAN UNIVERSITY THOMAS M. COOLEY LAW REVIEW HILARY 2015 BOARD OF EDITORS Jared Schultz Editor-in-Chief Greg Masters Interim Editor-in-Chief Charlynn Turner Symposium Editor

Melissa Gilchrist Managing Editor

Matthew Elzinga Articles Editor

Rachel Sexton Subcite Editor

William Bellor-Yeh Interim Articles Editor

Michelle Easter Solicitation Editor Elizabeth Devolder Interim Solicitation Editor

Dawn Beachnau Administrator (In Memoriam)

ASSISTANT EDITORS Angie Bailey Nemer Baki Debra Berg-Simon Kevin Berkowitz Daron Berman Alison Center Taycee Friar Lauren Frieder

Sarah Grodek Erin Haney Ken Kharha James Klinedinst Mark Messerschmidt Scott Miller Candis Najor Sumayya Saleh

Scott Sawyer Jerrod Simpson Cristina Solis Stephanie Wever Holliann Willekes Qiong Zhao

SENIOR ASSOCIATE EDITORS Minyon Bolton Melissa Inchauste Jenn Jager

Rose Kleff Ben Lesnick

Taneashia Morrell Jordan Wilson

ASSOCIATE EDITORS Dalton Carty Tiffany Cerniglio Andrew Doezma

Sarah Harris Caleb Loomis

Nick Sato Kristi Trigg

Honorary Members Chief Judge Gerald E. Rosen U.S. District Court, Eastern District of Michigan The Honorable Marilyn Kelly Former Chief Justice, Michigan Supreme Court The Honorable Jennifer M. Granholm Former Governor, State of Michigan Joseph Kimble, Distinguished Professor Emeritus Western Michigan University Thomas M. Cooley Law School Chris Shafer, Distinguished Professor Emeritus Western Michigan University Thomas M. Cooley Law School The Honorable Richard F. Suhrheinrich United States Court of Appeals, Sixth Circuit The Honorable Clifford W. Taylor Former Chief Justice, Michigan Supreme Court The Honorable Thomas E. Brennan Western Michigan University Thomas M. Cooley Law School The Honorable Dennis C. Drury Judge of the Fifty-Second District Court, Retired The Honorable Robert P. Young, Jr. Chief Justice, Michigan Supreme Court Kara Zech Thelen Faculty Advisor

vii

JOHN D. VOELKER AWARD This award is presented to the Senior Associate Editors of the Western Michigan University Thomas M. Cooley Law Review who made the most significant contributions to publication of the Law Review. Hilary 2015 Recipient: Ben Lesnick EUGENE KRASICKY AWARD This award is presented to the Assistant Editors of the Western Michigan University Thomas M. Cooley Law Review who made the most significant contributions to publication of the Law Review. Hilary 2015 Recipients: Mark Messerschmidt, Jerrod Simpson DAWN C. BEACHNAU AWARD This award is presented to the member of the Western Michigan University Thomas M. Cooley Law Review Voting Board of Editors who made the most significant contribution to the Law Review through leadership and dedication. Hilary 2015 Recipient: Matthew Elzinga

viii

WESTERN MICHIGAN UNIVERSITY THOMAS M. COOLEY LAW REVIEW TRINITY 2015 BOARD OF EDITORS Greg Masters Editor-In-Chief Elizabeth Devolder Interim Editor-In-Chief

Melissa Gilchrist Managing Editor

Charlynn Turner Symposium Editor

Kendall Perry Interim Managing Editor

Christopher Marker Interim Symposium Editor

Rachel Sexton Subcite Editor

William Bellor-Yeh Articles Editor Mark Cooney Faculty Advisor

Nick Brown Business Editor

Erika R. Breitfeld Faculty Advisor

Sarah Colling Solicitation Editor Dawn Beachnau Administrator (In Memoriam)

ASSISTANT EDITORS Angie Bailey JD Baldwin Debra Berg-Simon Kevin Berkowitz Alison Center Nardeen Dalli

Taycee Friar Sarah Grodek Zachariah Green Marisa Grifka Jennifer Hanna Mariam Ibrahim Scott Miller

Kyle Oâ&#x20AC;&#x2122;Mara Cristina Solis Skyler SpurlingNewsome Stephanie Wever Holliann Willekes

SENIOR ASSOCIATE EDITORS Dalton Carty Tiffany Cerniglio

Andrew Doezma Sarah Harris Caleb Loomis

ASSOCIATE EDITOR Ian Rothe

Nick Sato Kristi Trigg

JOHN D. VOELKER AWARD This award is presented to the Senior Associate Editors of the Western Michigan University Thomas M. Cooley Law Review who made the most significant contributions to publication of the Law Review. Trinity 2015 Recipient: Dalton Carty EUGENE KRASICKY AWARD This award is presented to the Assistant Editors of the Western Michigan University Thomas M. Cooley Law Review who made the most significant contributions to publication of the Law Review. Trinity 2015 Recipients: Holliann Willekes, Cristina Solis DAWN C. BEACHNAU AWARD This award is presented to the member of the Western Michigan University Thomas M. Cooley Law Review Voting Board of Editors who made the most significant contribution to the Law Review through leadership and dedication. Trinity 2015 Recipient: Charlynn Turner

xii

WESTERN MICHIGAN UNIVERSITY THOMAS M. COOLEY LAW REVIEW MICHAELMAS 2015 BOARD OF EDITORS Elizabeth Devolder Editor-In-Chief Karen Wentz Interim Editor-In-Chief

Kendall Perry Managing Editor

Christopher Marker Symposium Editor

Rachel Sexton Subcite Editor

William Bellor-Yeh Articles Editor

Rachel Kovelle Interim Subcite Editor

Sarah Colling Interim Articles Editor And Solicitation Editor

Nick Brown Business Editor

Mark Cooney Faculty Advisor

ASSISTANT EDITORS JD Baldwin Debra Berg-Simon Nardeen Dalli Zachariah Green

Marisa Grifka Jennifer Hanna Sarah Harris Mariam Ibrahim Kyle Oâ&#x20AC;&#x2122;Mara

Cristina Solis Skyler SpurlingNewsome Holliann Willekes

SENIOR ASSOCIATE EDITOR Dalton Carty Ian Rothe

ASSOCIATE EDITORS Matthew Secrest Samuel Warren

xiii

xiv

JOHN D. VOELKER AWARD This award is presented to the Senior Associate Editors of the Western Michigan University Thomas M. Cooley Law Review who made the most significant contributions to publication of the Law Review. Michaelmas 2015 Recipient: Ian Rothe EUGENE KRASICKY AWARD This award is presented to the Assistant Editors of the Western Michigan University Thomas M. Cooley Law Review who made the most significant contributions to publication of the Law Review. Michaelmas 2015 Recipients: Mariam Ibrahim, Sarah Harris, and Zachary Green DAWN C. BEACHNAU AWARD This award is presented to the member of the Western Michigan University Thomas M. Cooley Law Review Voting Board of Editors who made the most significant contribution to the Law Review through leadership and dedication. Michaelmas 2015 Recipient: Elizabeth Devolder

WESTERN MICHIGAN UNIVERSITY THOMAS M. COOLEY LAW REVIEW Hilary 2016 BOARD OF EDITORS Karen Wentz Editor-In-Chief

Kendall Perry Managing Editor

Christopher Marker Symposium Editor

Bailey Vos Interim Managing Editor

Courtney Sierra Interim Symposium Editor

Rachel Kovelle Subcite Editor

Sarah Colling Articles Editor and Solicitation Editor

Daniel Boocher Interim Subcite Editor

Patrick MacRae Interim Solicitation Editor

Nicholas Brown Business Editor

Jacob Witte Interim Articles Editor

Mark Cooney Faculty Advisor

ASSISTANT EDITORS Sheila Burke Lisa Thomas

Jennifer Hanna Nardeen Dalli Luciana Viramontes

Katie Plegue Julie Lawler-Hoyle

MANAGING ASSOCIATE EDITORS David Beaumont Ben Wyss

xvii

SENIOR ASSOCIATE EDITORS Matthew Secrest Samuel Warren Kyle Oâ&#x20AC;&#x2122;Mara

ASSOCIATE EDITORS Inna Volkova Jason Puscas Ananya Juneja Natasha Eversole Alicia Kellogg Matthew Blunt Nadia Chami

xviii

xix

JOHN D. VOELKER AWARD This award is presented to the Senior Associate Editors of the Western Michigan University Thomas M. Cooley Law Review who made the most significant contributions to publication of the Law Review. Hilary 2016 Recipients: Kyle O'Mara and Samuel Warren EUGENE KRASICKY AWARD This award is presented to the Assistant Editors of the Western Michigan University Thomas M. Cooley Law Review who made the most significant contributions to publication of the Law Review. Hilary 2016 Recipients: David Beaumont, Jason Puscas, Luciana Viramontes, and Benjamin Wyss DAWN C. BEACHNAU AWARD This award is presented to the member of the Western Michigan University Thomas M. Cooley Law Review Voting Board of Editors who made the most significant contribution to the Law Review through leadership and dedication. Hilary 2016 Recipients: Sarah Colling and Christopher Marker

Contents

Volume 32

2015

Issue 3

From the Editor ...........................................................................xxiv Articles Improving Relative Foster Care Placement Decisions in Michigan Tobin Miller ............................................................................ 243 False Promises of Food Safety: Why Homeland Security Should Care About Your Dinner Jessica A. Kragness ................................................................. 265 Beyond Rationality: Using Integral Theory to Understand the Evolution of Law and Legal Systems Timothy D. Batdorf ................................................................... 293

xxii

FROM THE EDITOR The Western Michigan University Thomas M. Cooley Law Review board of editors is pleased to bring you the final issue in Volume 32. For the first time in its 34-year history, the Law Review has been led by an editor-in-chief located outside of Michigan. Our Tampa Bay campus opened in 2012, and our editorial board now reflects the diversity of our campus locations. The geographical spread of our campuses further reflects an existing and important Cooley distinction – the nationwide impact of our graduates. Since 1972, Thomas M. Cooley has graduated more than 20,000 students, who now practice all over the United States. Cooley’s influence is not limited to Michigan alone, and the content of our Law Review reflects this nationwide scope. With this edition, we have also progressed to an online collaborative editing process. With editors in multiple states, it became essential for us to embrace new technologies that would allow our team to work together efficiently and to develop the comradery among our members that makes the work of publishing the Law Review tolerable. Change is not easy, particularly when it involves technology and very detailed scholarly work, and I want to thank our members for their flexibility, adaptability, and extra effort, and our authors and readers for their patience, as we learned to make this new system work. You will notice four terms of editors contributed to the publication of this edition, and we have chosen to include the masthead for all four terms to best recognize everyone’s contributions. This issue features three articles which propel the law forward. I am wildly excited about each. Tobin Miller’s article about relative foster care placements in Michigan is well timed and important – particularly to the children and families that would benefit from kinship care. I cannot imagine the frustration of a grandparent, aunt, uncle or sibling who is fit and wants to care for the children of their family member, yet who cannot navigate the foster care process quickly enough to obtain custody. Overworked members of state agencies tasked with caring for many children need as much legal support as possible to initiate and complete placement with relatives quickly, for the benefit of the children’s stability. Mr. Miller’s work at the Michigan Office of the Children’s Ombudsman, among other experiences, gives his recommendations the weight of practical experience, a quality xxiv

distinctly valued by Western Michigan University Thomas M. Cooley Law School and this Law Review. We are excited to get his ideas into the hands of readers and researchers. Jessica Kragness contributes an article that intersects two topics of ongoing, recent popular concern: homeland security and food safety. In recent years, a number of documentaries on food safety, as well as public comments by health and nutrition experts and enthusiasts, have decried changes to our food production and supply. Concurrently, ongoing small-scale terrorist attacks have threatened the safety of average citizens in their daily living routines. Since 9/11, many processes in this country have undergone significant changes – and Ms. Kragness identifies food-security processes that require more of our attention, to the benefit of both our health and our safety. I applaud the author’s efforts to bring more attention to these potential threats. Finally, I am enthusiastic to share Timothy Batdorf’s expansive, interdisciplinary article discussing the future of the law, in light of the history of human consciousness. In my twelve years helping small businesses succeed through advertising (my career before law school), I found that successful businesses don’t just respond to social trends already occurring, but they anticipate change. Practitioners must consider not just how the law is practiced now, but how the legal profession will grow and develop in the future. This article does a lot of heavy lifting – condensing significant findings in philosophy, science, sociology, and psychology – and its implications are significant to any practitioner thinking about how to practice better. Much as the creators of Star Trek considered what was possible, and then saw the world achieve a lot of their ideas, this article considers the best of what we can do as lawyers. It is my sincere hope that expressing these ideas in the pages of our Law Review will help legal practitioners integrate a more comprehensive worldview in their practice: relating to more clients, uncovering more solutions, building more bridges, and multiplying success for both the legal practitioner and their clients. I am pleased to share all these articles with optimism for what lies ahead. —ELIZABETH DEVOLDER

xxv

IMPROVING RELATIVE FOSTER CARE PLACEMENT DECISIONS IN MICHIGAN TOBIN MILLER* INTRODUCTION ................................................................................. 243 I. A BRIEF LEGAL HISTORY OF RELATIVE FOSTER CARE PLACEMENTS .......................................................................... 247 II. CURRENT PROCEDURES FOR MAKING PLACEMENT DECISIONS .... 250 III. PROPOSED IMPROVEMENTS ......................................................... 257 CONCLUSION ................................................................................... 262 INTRODUCTION If a parent is temporarily unable to provide proper custody or care for his or her child, then Michigan law provides that parent with several options to establish an alternate caregiver for the child.1 Similarly, if a Children’s Protective Services (CPS) worker determines that a parent is temporarily unable to safely maintain custody of his or her child, then the worker may allow the parent to voluntarily place the child with a friend or relative in lieu of court-

* Chief Investigator, Michigan Office of Children’s Ombudsman (OCO). Mr. Miller received a B.A. and M.A. fromMichigan State University and a J.D from Thomas M. Cooley Law School. He was admitted to the Michigan bar in 1997. Mr. Miller has worked in child welfare for 18 years, including positions with the State Court Administrative Office (SCAO), the Michigan Department of Health & Human Services (MDHHS), and the OCO. While with SCAO, he authored early editions of the Child Protective Proceedings Benchbook: A Guide to Abuse & Neglect Cases, the Juvenile Justice Benchbook: Delinquency & Criminal Proceedings, and the Lawyer-Guardian ad Litem Protocol. While with MDHHS, Mr. Miller worked in the legal affairs office on child welfare issues. Mr. Miller is currently Chairperson of the Children’s Law Section (CLS) of the State Bar of Michigan. On behalf of CLS, Mr. Miller authored an amicus curiae brief filed in the Michigan Supreme Court in In re COH. The author wishes to thank his two mothers: one who was able to care for him day to day, and one who was unable to do so. He loves them both. 1. See MICH. COMP. LAWS ANN. § 700.5103 (Westlaw 2015) (discussing power of attorney); MICH. COMP. LAWS ANN. § 700.5201 (Westlaw 2015) (discussing minor guardianship); MICH. COMP. LAWS ANN. § 722.26c (Westlaw 2015) (discussing third-party custody).

244

W. MICH. U. COOLEY LAW REVIEW

[Vol. 32:3

ordered placement of the child.2 If CPS authorities must remove a child from parental custody due to alleged abuse or neglect, then the authorities may seek to place the child with his or her relatives instead of with an unrelated licensed foster parent.3 When a child is removed from a parent’s custody, caseworkers must ask the parent to identify relatives who may be able to serve as foster parents, which preserves the parent’s limited right in these circumstances to choose an alternate caregiver for his or her child.4 Placing a child with relative foster parents may ameliorate the trauma and sense of dislocation a child often feels upon removal from parental custody, and thereby reduce behavioral problems and frequent moves to new placements.5 A relative foster care placement provides the court options to achieve permanency for the child by restructuring the child’s family, perhaps avoiding termination of parental rights.6 The “fit and willing relative” may serve as a permanent caregiver through adoption, guardianship, or permanent placement.7 On the other hand, failure to place a child with a fit and willing relative during the initial phase of the child-protective proceedings makes it far less likely that a relative will serve later as a permanent caregiver because the child 2. MICH. DEP’T OF HEALTH & HUMAN SERVICES, CHILDREN’S PROTECTIVE SERVICES POLICY MANUALS PSM § 713-01, at 19–20 (2015) [hereinafter PROTECTIVE SERVICES MANUALS]. 3. MICH. COMP. LAWS ANN. § 712A.13a(1)(e) (Westlaw 2015) (defining foster care to include care of a child in a relative’s home by court order). 4. See In re Sanders, 852 N.W.2d 524 (Mich. 2014) (stating an incarcerated parent may direct placement of children removed from the other parent’s physical custody); PROTECTIVE SERVICES POLICY MANUALS, supra note 2, PSM § 715-02, at 9; MICH. DEP’T OF HEALTH & HUMAN SERVICES, CHILDREN’S FOSTER CARE MANUAL FOM § 722-03B, at 2 (2014) [hereinafter FOSTER CARE MANUAL]. 5. See Leonard Edwards, Examining the Benefits and Challenges of Placing Children with Relatives, CASA FOR CHILDREN (Nov. 2011), http://www.casaforchildren.org/site/c.mtJSJ7MPIsE/b.7792495/k.8FF1/JP_1_Edwa rds.htm; David M. Rubin, MD, et al., Impact of Kinship Care on Behavioral Wellbeing for Children in Out-of-Home Care, 162 ARCHIVES OF PEDIATRICS & ADOLESCENT MED. 550, 550, 554 (2008). 6. See MICH. COMP. LAWS ANN. § 712A.19a(6)(a) (Westlaw 2015); In re Mason, 782 N.W.2d 747 (Mich. 2010). 7. MICH. COMP. LAWS ANN. §§ 710.21–710.70 (Westlaw 2015) (discussing adoption); MICH. COMP. LAWS ANN. § 712A.19a(7)(c) (Westlaw 2015) (discussing guardianship before termination of parental rights); MICH. COMP. LAWS ANN § 712A.19c(2) (Westlaw 2015) (discussing guardianship after termination of parental rights); MICH. COMP. LAWS ANN § 712A.19a(7)(b) (Westlaw 2015) (discussing permanent relative placement); MICH. CT. R. 3.976(A)(4) (discussing permanent relative placement).

2015]

RELATIVE FOSTER CARE

245

will often have bonded to his or her current caregivers, and removing the child may be psychologically damaging.8 The Michigan Department of Health & Human Services (DHHS) and private foster care and adoption agencies do frequently place children with relative foster parents. In May 2016, Michigan had 4,118 children residing with relative foster parents. By comparison, Michigan had 5,762 children residing in unrelated foster homes.9 These figures reflect that less than half of the children placed in outof-home care reside with relatives. Agencies do deny placement to fit and willing relative caregivers even though the placement appears to be in the child’s best interests.10 Despite widespread recognition of the benefits of relative foster care placements and a legal preference for such placements, foster care agencies may still ignore interested relatives or draw unsupported conclusions regarding their appropriateness as a foster parent for their kin. Consider the following typical scenarios: Scenario 1 A child is born drug-positive, suffers withdrawal symptoms immediately following his birth, and is removed from his mother’s custody at the hospital. The maternal grandmother visits the mother and child at the hospital, learns of the removal, and requests that CPS place the grandchild in her care. Several years earlier, CPS investigated two complaints concerning the grandmother’s care of the newborn’s mother but did not find the grandmother responsible for child abuse or child neglect during either investigation. CPS now documents the grandmother’s CPS history and places it in the grandchild’s case file for transfer to the foster care worker. The local 8. See MICH. DEP’T OF HEALTH & HUMAN SERVICES, ADOPTION SERVICES MANUAL ASM § 0610, at 2–3 (2013) [hereinafter ADOPTION SERVICES MANUAL] (discussing the importance of psychological attachment of the child with their foster parent). 9. Fact Sheet, MICH. DEP’T OF HEALTH AND HUMAN SERVICES, (June 21, 2016), http://www.michigan.gov/documents/dhs/FIA-FactSheet_389389_7.pdf? 20140327105003. 10. See, e.g., In re Pops, No. 328818, 2016 WL 1719203 (Mich. Ct. App. April 28, 2016) (per curiam) (reversing termination of the father’s parental rights in part because the agency failed to comply with law and policy concerning placement of the child with a relative, who had cared for the child since birth). Relatives denied placement frequently complain to the OCO concerning the denial. This author is the Chief Investigator for the OCO. See author biography, supra *.

246

W. MICH. U. COOLEY LAW REVIEW

[Vol. 32:3

DHHS office contracts with a private child-placing agency for the newborn’s foster care services, and that agency places the newborn in one of its licensed foster homes, with foster parents who intend to adopt children from the child welfare system. The private agency notes the grandmother’s CPS history. The agency conducts a home study but neither recommends placement of the newborn with his grandmother nor documents its placement decision as required by Michigan law. Because the agency fails to notify the grandmother and others of its placement decision, the grandmother does not realize that she has a right to ask the child’s attorney to review the decision. Frustrated by the agency’s apparent neglect of her request, the grandmother regularly telephones the foster care worker’s supervisor to complain. The grandmother’s complaints, coupled with her CPS history, lead the agency and the child’s attorney to conclude that placement of the newborn with his grandmother would not be in the child’s best interests. After termination of parental rights, which occurs approximately 15 months after the child’s placement in foster care, the maternal grandmother applies to adopt her grandson; but the agency recommends denial of the grandmother’s request primarily due to the length of time that the child has resided in the foster home. The child’s foster parents eventually adopt him. Scenario 2 CPS removes four children, ranging in age from 6 to 13, from their parents’ custody due to parental substance abuse and deplorable home conditions. The father requests that the children be placed with his sister, who has cared for the children for short periods in the recent past. Due to the aunt’s contact with the children in the recent past, the foster care worker suspects that the aunt has enabled the parents’ substance abuse and would not prevent the parents from having unsupervised contact with the children. The worker denies the aunt’s placement request (which would have kept all four siblings together), documents that decision by checking a box next to the statement “best interest of the child” on the applicable form, and provides a copy of the decision to the aunt. The aunt asks the children’s attorney to review the decision, but the aunt never hears back from the attorney. The children are placed in two separate foster homes and visit one another only once a month during their 18month stay in foster care.

2015]

RELATIVE FOSTER CARE

247

Although Michigan’s laws governing relative foster care placements are “among the most clear and directive” in the nation, Michigan agencies still have significant discretion when determining a child’s placement.11 Under current state law, there is little meaningful review of agency compliance with procedural requirements or the agency’s placement decisions. This article proposes several changes to Michigan law that would improve supervising agency compliance with applicable law and ensure meaningful review of an agency’s decision to deny a relative’s request to have a child placed under his or her care and supervision. First, the article provides a brief historical survey of the law governing relative foster care placements. Next, it explains the current procedures for finalizing placement decisions during the 90day pre-disposition phase of child protective court proceedings with an emphasis on agency discretion in determining a relative’s fitness to serve as a foster parent and the lack of meaningful review of that discretion. Finally, the article proposes statutory amendments to strengthen the procedures governing relative foster care placements. I. A BRIEF LEGAL HISTORY OF RELATIVE FOSTER CARE PLACEMENTS In 1996, the Michigan Lieutenant Governor’s Children’s Commission (known as the Binsfeld Commission) established, as one of its goals for the Michigan child welfare system, that “when children are removed from their parents, timely and appropriate placement with extended family members (kinship care) will be used as an alternative to foster care whenever possible.”12 To help meet this goal, the Commission recommended that “actual (not cursory) efforts shall be made early regarding availability and appropriateness of a relative placement,” and that the Family Independence Agency (now DHHS) make a decision regarding relative placement within 90 days of a child’s removal from home.13 In response to the Binsfeld Commission’s recommendations, the Michigan Legislature enacted Michigan Compiled Laws (MCL) 11. Foster Care Licensing—Summary & Analysis, GRANDFAMILIES.ORG, (last updated 2014) http://www2.grandfamilies.org/FosterCareLicensing/FosterCare LicensingSummaryAnalysis.aspx#ft7 (stating Michigan is one of 15 states that provide relatives denied placement with some procedural protections). 12. MICHIGAN BINSFELD CHILDREN’S COMMISSION, Goal Three: Permanency Planning, IN OUR HANDS: REPORT OF THE BINSFELD CHILDREN’S COMMISSION 34 (1996). 13. Id. at 35, 60.

248

W. MICH. U. COOLEY LAW REVIEW

[Vol. 32:3

722.954a. This statute requires DHHS and private child-placing agencies “to identify, locate, notify, and consult with relatives” within 30 days of a child’s removal from parental custody and to finalize a placement decision within 90 days of a child’s removal.14 The agency must give interested relatives and others written notice of the agency’s placement decision.15 The child’s lawyer-guardian ad litem (LGAL)16 may petition the court to review the placement decision.17 In addition, the federal Personal Responsibility and Work Opportunity Act of 1996 addressed relative foster care placement.18 The new federal law encouraged states to “consider giving preference to an adult relative over a non-related caregiver when determining a placement for a child, provided that the relative caregiver meets all relevant State child protection standards . . . .”19 However, Michigan did not accept Congress’ invitation for 14 years. The Michigan Legislature passed a relative-preference bill in 2010, adding subsection (5) to MCL 722.954a, which now states: Before determining placement of a child in its care, a supervising agency shall give special consideration and preference to a child’s relative or relatives who are willing to care for the child, are fit to do so, and would meet the child’s developmental, emotional, and physical needs. The supervising agency’s placement decision shall be made in the best interests of the child.20

14. MICH. COMP. LAWS ANN. § 722.954a(2), (4)(a) (Westlaw 2015). 15. Id. § 722.954a(4)(b) (Westlaw). 16. The LGAL is an attorney appointed to represent the child during court proceedings and advocate for the child’s best interests. See MICH. COMP. LAWS ANN §§ 712A.17c(7), 17d (Westlaw 2015). 17. MICH. COMP. LAWS ANN § 722.954a(6) (Westlaw 2015). 18. Personal Responsibility & Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105 (codified in scattered sections of 42 U.S.C.A. (Westlaw 2015)). 19. 42 U.S.C.A. § 671(f)(19) (Westlaw 2015). 20. MICH. COMP. LAWS ANN. § 722.954a(5) (Westlaw 2015); see also MICH. COMP. LAWS ANN. § 722.952(l) (Westlaw 2015) (stating that a “supervising agency” may be “the department if a child is placed in the department’s care for foster care, or a child placing agency in whose care a child is placed for foster care.”).

2015]

RELATIVE FOSTER CARE

249

In 2008, the federal Fostering Connections to Success and Increasing Adoptions Act21 required state agencies to diligently seek out relatives, specified the content of the notice that interested relatives must receive, and made federal financial assistance available to states to support relatives obtaining guardianship of children in the foster care system.22 In response to this legislation, the Michigan Legislature amended MCL 722.954a to add subsection (3), which now states: (3) The notification of relatives . . . shall do all of the following: (a) Specify that the child has been removed from the custody of the child’s parent. (b) Explain the options the relative has to participate in the care[23] and placement of the child, including any option that may be lost by failing to respond to the notification. (c) Describe the requirements and benefits, including the amount of monetary benefits, of becoming a licensed foster family home. (d) Describe how the relative may subsequently enter into an agreement with the department for guardianship assistance.24 Also in 2008, the Michigan Legislature enacted statutes giving courts authority to establish guardianships for children in foster care with both relatives and non-relatives, and giving DHHS authority to provide those guardians with a monthly assistance payment.25 In 2014, the Michigan Supreme Court addressed the interplay between the preference for placing a child with a relative and the statutory provision allowing a court to appoint a guardian for a child following termination of parental rights. A key issue of In re COH 21. Fostering Connections to Success and Increasing Adoptions Act of 2008, Pub. L. No. 110-351, 122 Stat. 3949 (codified at 42 U.S.C.A. § 671(29) (Westlaw 2015)). 22. 42 U.S.C.A. § 671(29) (Westlaw 2015). 23. For example, a relative may visit with the child, transport the child to medical or counseling appointments, or supervise parenting time. 24. MICH. COMP. LAWS ANN. § 722.954a(3)(a)–(d) (Westlaw 2015). 25. 2008 PA 200, amending MICH. COMP. LAWS § 712A.19a; 2008 PA 203, amending MICH. COMP. LAWS § 712A.19c; and 2008 PA 260, adding the Juvenile Guardianship Assistance Act, MICH. COMP. LAWS § 722.871 et seq.

250

W. MICH. U. COOLEY LAW REVIEW

[Vol. 32:3

was the duration of the relative placement preference.26 In COH, the Court held that “although . . . MCL 722.954a creates a statutory preference for placement with relatives, the plain language of MCL 722.954a limits the applicability of the preference to only the initial stage of the process, i.e., immediately after a child is removed from his or her parents’ care and during the statutory review period established in MCL 722.954a(3).”27 Thus, the relative-placement preference in MCL 722.954a(5) applies only to the initial placement decision. The COH Court cited with approval an unpublished Michigan Court of Appeals case holding that the relative-placement preference did not apply to the decision to grant a person consent to adopt a child from the child welfare system.28 The problems of changing a child’s placement, and the lack of a preference for relative caregiver placement later in a case, places additional stress on the accuracy and fairness of the initial placement decision. Because of its importance to both child and relative, procedural safeguards should be enacted in Michigan law to improve agency practice and allow the court to review the agency’s placement decision during the initial phase of the proceedings. II. CURRENT PROCEDURES FOR MAKING PLACEMENT DECISIONS Child protective proceedings are divided into two phases: an adjudicative phase and a dispositional phase. During the adjudicative phase, the court determines by trial or plea whether the child has been abused or neglected. The adjudicative phase may begin with a preliminary hearing, at which the child’s foster care placement is addressed.29 The dispositional phase begins with a hearing at which 26. In re COH, 848 N.W.2d 107 (Mich. 2014). 27. Id. at 115. In COH, the Court applied the version of MCL 722.954(a) in effect prior to 2010. Id. at 115, n. 7. The “statutory review period” referenced by the Court is now contained in MCL 722.954a(6). 28. In re AEG, No. 316599, 2013 WL 5951709, at *5 (Mich. Ct. App. Nov. 7, 2013) (per curiam) (holding that the statue was not intended to apply to adoption decisions after termination). Following termination of parental rights, courts typically commit the involved children to the Michigan Children’s Institute (MCI), a division of MDHHS. The MCI superintendent serves as the guardian of children committed to the institute and thus has authority to consent to their adoption. See MICH. COMP. LAWS ANN. § 400.203 (Westlaw 2015); MICH. COMP. LAWS ANN. § 400.209(1) (Westlaw 2015). 29. MICH. COMP. LAWS ANN. § 712A.13a(2), (9) (Westlaw 2015). Note that a child may be removed from parental custody without a prior court hearing, or following an ex-parte hearing involving only a CPS worker and a judge or referee.

2015]

RELATIVE FOSTER CARE

251

the court formalizes the child’s placement and orders parents to comply with the agency’s case service plan, which prescribes services to permit reunification of parent and child.30 The laws and policies described in this section outline a series of related predisposition procedures intended to identify appropriate relative placements for children and finalize decisions regarding those placements within 90 days after a child’s removal from parental custody. A court’s order of disposition is typically entered no later than 91 days following the child’s removal from home.31 At a preliminary hearing, “[t]he court must inquire of the parent, guardian, or legal custodian regarding the identity of relatives of the child who might be available to provide care.”32 A court must direct the supervising agency to “identify, locate, notify, and consult with relatives to determine placement with a fit and appropriate relative who would meet the child’s developmental, emotional, and physical needs.” 33 The supervising agency has 30 days to complete these tasks.34 Although this section of statutes does not contain a definition of “relative,”35 the Michigan Juvenile Code defines relatives as adult individuals within the fifth degree of relationship by blood, marriage, or adoption; spouses and former spouses of those individuals; and the parents of a putative (alleged biological) father.36 Both CPS workers (at the time of removal from parental custody) and foster care workers (after removal if the child is not immediately placed with a relative) must take steps to identify, locate and consult MICH. COMP. LAWS ANN. §§ 712A.14a–14b (Westlaw 2015). In these instances, the court reviews the decision to remove the child from his or her home at the preliminary hearing. 30. MICH. COMP. LAWS ANN. §§ 712A.18(1), 18f(4) (Westlaw 2015); see generally MICH. COMP. LAWS ANN. § 712A.19b(4) (Westlaw 2015) (stating if a parent has been found responsible for serious abuse or neglect of a child or sibling, the court may terminate parental rights at the initial disposition hearing); MICH. COMP. LAWS ANN. § 722.638 (Westlaw 2015) (listing the circumstances requiring a request to terminate parental rights at the initial disposition hearing). If the court terminates parental rights at the initial disposition hearing, court decisions regarding permanent placement of the child may occur at approximately the same time as the decision regarding relative-foster care placement under MCL 722.954a(4), 90 days after removal. Id. 31. Id. 32. MICH. CT. R. 3.965(B)(14). 33. MICH. COMP. LAWS. ANN. § 722.954a(2) (Westlaw 2015). 34. MICH. CT. R. 3.965(D). 35. MICH. COMP. LAWS. ANN. § 722.952 (Westlaw 2015). 36. MICH. COMP. LAWS. ANN. § 712A.13a(1)(J) (Westlaw 2015).

252

W. MICH. U. COOLEY LAW REVIEW

[Vol. 32:3

with potential relative caregivers.37 Workers ask parents and older children to identify appropriate relatives. A series of forms and letters assists workers with notifying relatives, documenting relatives’ interest, and obtaining leads on other relatives who may be interested in placement of or contact with the child but who are unaware of the child’s removal from parental custody.38 In some instances, workers make only the “cursory efforts” to comply with these initial requirements that the Binsfeld Commission counseled against 18 years ago—they either fail to seek out and notify relatives of the removal or fail to properly document relatives’ expressed interest.39 The failure to identify and properly document relatives’ interest obviously undermines the statutory process, making it unlikely that a relative will receive fair consideration for placement. Even if an interested relative is identified as a possible placement for the child, the placement must clear several more obstacles. To allow the agency to immediately place the child with the relative, the relative must meet the same requirements as persons seeking to become licensed foster parents. If the interested relative fails to meet these requirements for immediate placement, the agency may approve an exception to the requirements and later place the child in the relative’s home. However, such exceptions are completely within the agency’s discretion to grant or deny. In addition, to obtain placement, a relative must live within 75 miles of the home from which the child was removed (unless it is in the child’s best interest to be placed with a relative who lives farther away). Finally, placements that keep siblings together are given preference over relative placements that would separate siblings.40 37. MICH. COMP. LAWS. ANN. § 722.954a(2) (Westlaw 2015). 38. PROTECTIVE SERVICES MANUALS, supra note 2, at 10–11. Workers are required to document interested relatives on the form DHS-987. Form DHS-988 allows relatives to provide contact information for other relatives who may be interested in placement or contact; form DHS-989 allows an identified relative to indicate whether he or she is interested in placement or contact; and the agency worker must send the form DHS-990 to all interested relatives to notify them of the procedures for obtaining placement or maintaining contact with the child. Id. 39. MICHIGAN BINSFELD CHILDREN’S COMMISSION, supra note 12, at 60. 40. PROTECTIVE SERVICES MANUALS, supra note 2, at 7–8, 11. This distance limitation is intended to facilitate reunification of child and parent. Modified Settlement Agreement at 42–44, Dwayne B. v. Snyder, No. 2:06-cv-13548. See also 42 U.S.C.A. § 671(29) (Westlaw 2015) (originating the requirement to keep siblings together).

2015]

RELATIVE FOSTER CARE

253

To evaluate an interested relative for immediate placement, workers make a home visit to verify the identities of relatives and other household members and to observe home conditions. A criminal history check on all household members, and a central registry check on all adult household members is performed.41 Placement in a relative’s home is prohibited if any member of the household (adult or juvenile) has a felony conviction for: (1) child abuse or neglect, (2) spousal abuse, (3) a crime against a child or children (including pornography), (4) a crime involving violence, or (5) a physical assault or battery, or a drug-related offense within the last five years. Placement is also prohibited if a member of the household is a juvenile who has been adjudicated for a sexual offense.42 If a household member is listed on the DHHS central registry, a child may only be placed in the home by court order.43 The agency must also investigate if any relative or a household member has a conviction for any good-moral-character offenses, which include felony controlled-substance offenses, bribery, fraud, false claims, or theft. 44 These convictions create a presumption against good moral character, and may prevent placement in the relative caregiver’s home. 45 The child’s supervising agency must evaluate the circumstances surrounding the offense and may make an exception to allow placement with the relative. 46 The agency must evaluate the age of the offense, whether services successfully rectified the problem leading to the offense, and whether the offense poses a risk to child safety. 47 41. See MICH. COMP. LAWS ANN. § 712A.13a(11) (Westlaw 2015) (stating that criminal background checks and central registry clearances are statutorily required). 42. PROTECTIVE SERVICES MANUALS, supra note 2, at 12–14. 43. FOSTER CARE MANUAL, supra note 4, at 6–7; see also MICH. COMP. LAWS ANN. § 722.622(c) (Westlaw) (creating a central registry); see generally Id. §§ 722.622(f), (j) (Westlaw); MICH. COMP. LAWS ANN. § 628d(1)(d) (Westlaw 2015); Id. § 628d(1)(e)(2)(c) (Westlaw) (stating a person is placed on the MDHHS central registry if CPS finds by a preponderance of the evidence that a person has committed “child abuse” or “child neglect,” as those terms are defined in Michigan’s Child Protection Law, and future risk to the child is high or intensive, or a petition is filed in court). 44. See MICH. ADMIN. CODE r. 400.1152 (listing “good moral character” offenses). 45. Id. at 400.1151(1). 46. Id. at 400.1152(3). 47. FOSTER CARE MANUAL, supra note 4, at 7–9; In re Pops, supra note 10.

254

W. MICH. U. COOLEY LAW REVIEW

[Vol. 32:3

Relative caregivers must become licensed as foster parents unless the child is Native American or the relative refuses licensure and the agency approves a waiver of licensure.48 The relative’s household must be financially stable, meaning that the relative must be able to take placement of and support the child without the benefit of a foster care maintenance payment. A county director or, in certain counties, a child welfare administration director must approve a waiver. At the time the child is removed from parental custody, caseworkers may be unfamiliar with the child’s extended family members and thus are more likely to place the child with a licensed unrelated foster family. A licensed foster family has been studied, trained, and licensed by the state to provide care, so caseworkers may err on the side of caution by choosing them over a child’s family member who is unknown to the caseworker. Caseworkers also may misjudge the strength of the relationship between child and relative, the relative’s ability to protect the child from the abusive or neglectful parent,49 or, conversely, the relative’s willingness to facilitate reunification of child and parent. In these instances, the agency may simply conclude that placement with the relative is not in the child’s best interests. Before the court enters an order of disposition, a supervising agency must prepare a case service plan and submit it to the court and parties.50 The case service plan must document the agency’s efforts to identify, locate, notify, and consult with relatives of the child.51 “The plan shall provide for placing the child in the most family-like setting available and in as close proximity to the child’s parents’ home as is consistent with the child’s best interests and special needs,” and specify “[t]he type of home or institution in which the child is to be placed and the reasons for the selected placement.”52 Although the agency’s case service plan documents the 48. FOSTER CARE MANUAL, supra note 4, 12–14. The Federal Indian Child Welfare Act and the Michigan Indian Family Preservation Act mandate placement preferences for relatives and foster homes licensed by the child’s tribe. See 25 U.S.C.A. § 1915 (Westlaw); MICH. COMP. LAWS ANN. § 712B.23 (Westlaw). 49. If a child is placed with an unlicensed relative, the court must find “that the conditions of custody at the placement and with the individual with whom the child is placed are adequate to safeguard the child from the risk of harm to the child’s life, physical health, or mental well-being.” MICH. COMP. LAWS ANN. § 712A.13a(5) (Westlaw 2015). 50. MICH. COMP. LAWS ANN. § 712A.18f(2) (Westlaw 2015). 51. MICH. COMP. LAWS ANN. § 722.954a(2) (Westlaw 2015). 52. MICH. COMP. LAWS ANN. § 712A.18f(3)(a) (Westlaw 2015).

2015]

RELATIVE FOSTER CARE

255

agency’s proposed placement of the child, the court’s order of disposition actually specifies and formalizes the child’s placement.53 The agency has less than three months to complete its plan because court rules require an order of disposition to be entered no later than 91 days after a child’s removal from home.54 This 91-day period for entry of a dispositional order corresponds to a 90-day deadline in MCL 722.954a(4), which requires: (4) Not more than 90 days after the child’s removal from his or her home, the supervising agency shall do all of the following: (a) Make a placement decision and document in writing the reason for the decision. (b) Provide written notice of the decision and the reasons for the placement decision to the child’s attorney, guardian, guardian ad litem, mother, and father; the attorneys for the child’s mother and father; each relative who expresses an interest in caring for the child; the child if the child is old enough to be able to express an opinion regarding placement; and the prosecutor.55 The form DHS-31 notifies a relative denied placement of the child of his or her right to ask the child’s LGAL to review the agency’s placement decision. If the LGAL determines that the denial was not in the child’s best interest, then the LGAL may petition the court for review of the agency’s decision. MCL 722.954a(6) states: (6) A person who receives a written decision described in subsection (4) may request in writing, within 5 days, documentation of the reasons for the decision, and if the person does not agree with the placement decision, he or she may request that the child’s attorney review the decision to determine if the 53. MICH. COMP. LAWS ANN. § 712A.18(1) (Westlaw 2015). 54. See MICH. CT. R. 3.972(A) (“trial must commence as soon as possible, but not later than 63 days after the child is removed from the home unless the trial is postponed . . .”); Id. at 3.973(C) (“When the child is in placement, the interval [between trial and disposition] may not be more than 28 days, except for good cause”). 55. FOSTER CARE MANUAL, supra note 4, at 16 (requiring the supervising agency to document its placement decision in Form DHS-31 and provide it to the persons listed in the statute).

256

W. MICH. U. COOLEY LAW REVIEW

[Vol. 32:3

decision is in the child’s best interest. If the child’s attorney determines the decision is not in the child’s best interest, within 14 days after the date of the written decision the attorney shall petition the court that placed the child out of the child’s home for a review hearing. The court shall commence the review hearing not more than 7 days after the date of the attorney’s petition and shall hold the hearing on the record.56 This statutory provision, which contains only a limited right for a relative to obtain review of the agency’s decision to deny him or her placement, may be ignored without consequence to the agency. Supervising agencies frequently fail to document their placement decisions on the form DHS-31 and distribute it to the listed parties. When the agency fails to notify interested relatives of the agency’s decision, the relatives cannot exercise even their limited right to review of the agency’s decision, and the other parties and attorneys, including the child’s LGAL, have no opportunity to review the agency’s placement decision. Even if the agency does complete and properly distribute the form DHS-31, the form merely requires the agency to support its placement decision – not to explain why it denied the relative placement. Moreover, the form allows agencies to support their placement decisions by checking boxes on the form. An agency’s failure to meet the 90-day deadline for finalizing its placement decision may make it difficult to move the child to a relative’s home from a non-relative’s home where he or she was initially placed. In some circumstances, a non-relative foster parent may appeal to the Foster Care Review Board (FCRB) a foster child’s removal from the foster parent’s home.57 However, a non-relative foster parent may not appeal a child’s move if “[t]he change in placement is less than 90 days after the child’s initial removal from his or her home, and the new placement is with a relative.”58 The 90day limit in this provision coincides with the 90-day deadline for the placement decision in MCL 722.954a. Following the 90-day period, a child may only be moved to a new placement if there are allegations 56. See also MICH. CT. R. 3.966(B) (mirroring the requirements in MICH. COMP. LAWS ANN. § 722.954a(6) (Westlaw 2015).). 57. MICH. COMP. LAWS ANN. § 712A.13b(2)(b) (Westlaw 2015). 58. Id. § 712A.13b(1)(b)(iii) (Westlaw).

2015]

RELATIVE FOSTER CARE

257

against the child’s foster parent of maltreatment, or if the move is determined to be in the child’s best interests.59 If an agency wishes to move a child into a relative’s home but has failed to formalize that decision within 90 days of the child’s removal from home, then the child’s current foster parent may appeal the proposed move to the FCRB.60 If the FCRB disagrees with the agency’s proposed move, then upon the agency’s request, the court must review the decision.61 In other words, the preference for placement of a child with a relative no longer applies, and the agency may decide whether to seek court review of the FCRB’s decision. III. PROPOSED IMPROVEMENTS Michigan’s relative foster care placement procedures have some key problems: agencies’ failure to comply with statutory requirements to identify, locate, notify, and consult with relatives; agencies’ failure to timely document their placement decisions as required by statute; the lack of a requirement that the agency document a reason for refusing placement to a willing relative; and the lack of meaningful review of an agency’s placement decision. The following proposed improvements to Michigan law governing relative foster care placements would remedy these problems. First, MCL 722.954a(1) should be amended to require the court, in all cases following a preliminary hearing, to order the supervising agency to comply with MCL 722.954a. Although Michigan Court Rule 3.965(D) requires a court to direct the supervising agency to identify, locate, and consult with relatives following a preliminary hearing, this court rule does not require courts to order agencies to fulfill all of their statutory duties, and the State Court Administrative Office model form order does not include such a provision.62 This amendment would address the lack of consequences for agencies that do not exercise due diligence in identifying and involving relatives or documenting a placement decision within 90 days of a child’s removal from home. The amendment would make it easier to subject 59. Id. § 712A.13b(1)(b)(iv)(4)–(6) (Westlaw). 60. Id. § 712A.13b(2)(b) (Westlaw). 61. See Id. § 712A.13b(5) (Westlaw). If the child has already been committed to the MCI, the MCI superintendent must review the agency’s decision upon the supervising agency’s request. Id. 62. MICH. CT. R. 3.965(D)(5). This statutory change would result in the State Court Administrative Office amending its model court form for orders following preliminary hearings, SCAO Form JC 11a.

258

W. MICH. U. COOLEY LAW REVIEW

[Vol. 32:3

an agency to the court’s contempt powers for neglect of its statutory responsibilities toward relatives.63 The statute currently states that supervising agencies “shall comply with this section . . . .”64 Second, MCL 722.954a(4)(a) should be amended to require documentation of the reasons for denying an identified relative placement of a child. In addition to requiring documented reasons supporting the chosen placement, the statute should require the agency to articulate case-specific reasons for denying a relative’s request to serve as a child’s caregiver. Agencies satisfy the current requirement to justify their placement decisions by checking boxes on the DHS-31 form. The caseworker need only check a box next to a statement, such as, “attempts to identify relatives were unsuccessful” or “available relatives do not meet current DHS standards for placement.” As a matter of basic fairness, a relative who has come forward to serve as a foster parent for the child deserves to receive in writing specific reasons for the agency’s refusal to place the child with him or her. The proposed requirement would align the statute with other Michigan laws that require agencies to state in writing their reasons for denying foster home licensure, thereby facilitating judicial review.65 This proposed amendment would also mirror provisions contained in Arizona law.66 Third, MCL 722.954a(4)(b) should be amended to add the court to the list of entities that must receive the 90-day notice of placement decision. The current statute requires that only the following persons receive the placement-notice decision: “the child’s attorney, guardian, guardian ad litem, mother, and father; the attorneys for the 63. See MICH. COMP. LAWS ANN. § 712A.26 (Westlaw 2015) (defining the court’s contempt powers in cases under the Michigan Juvenile Code); MICH. COMP. LAWS ANN. § 600.1701(g) (Westlaw 2015) (defining the court’s authority to punish contemnors for disobeying court orders). 64. MICH. COMP. LAW ANN. § 722.954 (Westlaw 2015). 65. MICH. ADMIN. CODE R. 400.12325(5)(b). When recommending to the Division of Child Welfare Licensing (DCWL) that a foster home license application be denied, a child-placing agency must provide the applicant with a written statement of facts supporting the recommendation. Id. DCWL must provide a license applicant with “notice in writing of the grounds of the proposed . . . denial . . . .” MICH. COMP. LAWS ANN. § 722.121(2) (Westlaw 2015). 66. ARIZ. REV. STAT. ANN. § 8-514.03 (Westlaw 2015) (“If the department determines that a kinship foster care placement is not in the best interest of the child, the department shall provide written notification to the applicant . . . which shall include the specific reason for denial, the applicant’s right to appeal and the process for reviewing the decision”).

2015]

RELATIVE FOSTER CARE

259

child’s mother and father; each relative who expresses an interest in caring for the child; the child if the child is old enough to be able to express an opinion regarding placement; and the prosecutor,” yet the court itself is not one of the required entities.67 The form DHS-31 does suggest that the court will be copied on the form, but the caseworker is not legally required to send it to them. Imposing a legal requirement on the supervising agency to send the completed form to the court will likely improve agencies’ performance in identifying, locating, notifying and consulting with a child’s relatives, and increase the frequency with which the form is actually completed and sent to the listed parties. Fourth, MCL 722.954a(4) should be amended to add a subsubsection (c) that would require the agency’s written placement decision to contain notice of a relative’s right to request court review of the decision as explained below. Although the form DHS-31 currently contains a notice of the relative’s limited right to review, there is no legally required notice of rights in the law. If the proposed right to court review of the agency’s decision is implemented, the statute should also contain a provision requiring an agency to notify relatives who have been denied placement in writing of their right to court review of the denial. As noted above, Arizona’s statute requires relatives to receive written notice of the right to and a procedure for review of a placement denial.68 Fifth, MCL 722.954a(6) should be amended to require a child’s LGAL to request a court hearing when a relative, who has requested placement of the child, has been denied placement by the supervising agency, and the relative asks the LGAL to petition the court for review. The current statute only requires a LGAL to review such requests from a relative and determine whether the supervising agency’s placement decision is in the best interests of the child.69 The proposed amended statutory provision would state: (6) A person who receives a written decision described in subsection (4) may request that the child’s attorney petition the court to review the placement decision to determine if the supervising agency has complied with this section and if the decision is in the child’s best interest. Within 14 days 67. MICH. COMP. LAWS ANN. § 722.954a(4)(b) (Westlaw 2015). 68. ARIZ. REV. STAT. ANN. § 8-514.03 (Westlaw 2015). 69. MICH. COMP. LAWS ANN. § 722.954a(6) (Westlaw 2015).

260

W. MICH. U. COOLEY LAW REVIEW

[Vol. 32:3

after the date of the request, the attorney shall petition the court for a review hearing. The court shall commence the review hearing not more than 7 days after the date of the attorney’s petition and shall hold the hearing on the record. Under current law, the LGAL determines whether to file a petition seeking review of the placement decision and is therefore the final decision-maker regarding relative foster care placement denials.70 Under the proposal, an LGAL may still argue that placement with a relative is not in the child’s best interest, but the court would make the final decision regarding the placement. This proposal would provide interested relatives who are denied placement with an objective and final decision on their fitness early in the court proceedings, which would facilitate later permanency decisions. Because the “relative preference” contained in MCL 722.954a(5) does not apply after the first 90 days following the child’s removal from home, a relative who was not seriously considered for or was denied initial placement of the child is at a significant disadvantage if that relative later seeks permanent placement of the child through guardianship, adoption, or permanent foster care placement.71 The child will usually have bonded to the foster parents with whom he or she was initially placed, and depending upon the child’s age, the length of that placement, and the foster parent’s desire to serve as a permanent placement for the child, the agency may be compelled to refuse to move the child to the relative’s home at a later point in the proceedings.72 The agency’s initial efforts regarding relative placement are not relevant to later permanency decisions, and interested relatives face higher evidentiary burdens at later stages of the proceedings.73 The opportunity for court review of the initial placement decision will 70. Id. 71. Id. § 722.954a(5) (Westlaw). 72. ADOPTION SERVICES MANUAL, supra note 8, § 713-01 at 2–3. 73. See In re JLM, No. 318585, 2014 WL 1618362, at*1, *3 (Mich. Ct. App. April 22, 2014) (per curiam) (stating that when reviewing the Michigan Children’s Institute (MCI) superintendent’s decision not to grant consent for relatives to adopt a child, the agency’s initial efforts to place the child with relatives are not relevant to the superintendent’s later decision); MICH. COMP. LAWS ANN. § 710.45(7) (Westlaw 2015) (stating that “arbitrary and capricious” is the standard of review of the MCI superintendent’s decision to withhold consent to adopt a child, a finding which must be supported by clear and convincing evidence).

2015]

RELATIVE FOSTER CARE

261

ensure that the agency thoroughly considered the relative for placement and made a reasoned decision not to place the child with the relative. Ensuring a reasoned decision early in the process may deter relatives from inappropriately seeking permanent placement of a child and appealing the court’s later decisions, delaying permanency for the child.74 Moreover, allowing an interested relative to request a review hearing (as other states do) would assign Michigan courts a larger role in reviewing agency placement decisions without unduly burdening the courts. California law requires courts at disposition hearings to review agency efforts to identify, locate, and notify a child’s relatives to ensure that the agency’s efforts were “diligent.”75 Florida law requires courts to review agencies’ refusal to place children with relatives and include reasons for these refusals in their dispositional orders.76 Requiring courts to review agency compliance with applicable law in all cases, as in California and Florida, also would undoubtedly improve agency compliance with the statutory requirements and result in better placement decisions. However, as explained above, other proposed improvements—especially subjecting an agency to the court’s contempt power for failure to comply with MCL 722.954a, and requiring an agency to provide the court with a copy of its 90-day placement decision—would encourage agency compliance with the statutory procedural requirements, thus obviating the need for court review of agency 74. See In re COH, No. 309161, 312691, 2013WL 3198142 at *1 (Mich. Ct. App. June 25, 2013) (per curiam) (showing that if the grandmother had been initially considered, the children would have been placed in a permanent residence sooner) (overturned by In re COH, 848 N.W.2d 107 (Mich. 2014) (holding that the preference for relative custody terminates after the initial placement)); MICH. COMP. LAWS ANN. § 710.41(2) (Westlaw 2015); MICH. COMP. LAWS ANN § 710.56(2)–(4) (Westlaw 2015) (a child may be placed in a home for purposes of adoption during the pendency of an appeal, but the adoption must not be finalized until appeals are exhausted). 75. ANN. CAL. FAM. CODE § 7950(a)(1) (Westlaw 2015); (stating that “Before any child may be placed in long-term foster care, the court shall find that the agency has made diligent efforts to locate an appropriate relative and that each relative whose name has been submitted as a possible caretaker has been evaluated as an appropriate placement resource.”); CAL. R. CT. 5.965(f). 76. FLA. STAT. ANN. § 39.521 (Westlaw 2015); (“If the court does not commit the child to the temporary legal custody of an adult relative, the disposition order shall include the reasons for such a decision . . .”); FLA. R. CT. 8.340(c)(8).

262

W. MICH. U. COOLEY LAW REVIEW

[Vol. 32:3

compliance with those requirements in all cases, as is the case under California law. Regarding substantive review of the agency’s placement decision, requiring an interested relative to request court review of the decision would limit the court’s participation in the placement decision to those cases involving an actual dispute. If no relatives came forward to request placement, or if an interested relative accepted the agency’s reasons for denying the relative’s placement request, then there is no reason to devote time in court to reviewing the agency’s actions.77 Furthermore, it seems unlikely that interested relatives will seek court review of all agency denials. The proposed amendment to MCL 722.954a(4)(a) that would require agencies to document casespecific reasons for denying placement with a relative will likely limit the number of relatives who request court review of the agency’s placement decision. Relatives who receive due consideration and specific reasons for being denied placement generally are less likely to seek court review of the agency’s placement decision. If the agency does not articulate a satisfactory reason for denying a relative’s placement request, then the relative may request court review through the child’s LGAL. These proposed procedures will help to limit use of court resources to decide genuine disputes regarding a child’s placement. CONCLUSION Michigan law recognizes the important role that relatives of children removed from parental custody may play in the children’s lives and establishes procedures to implement a preference for relative foster care placements. In many cases, children’s supervising agencies fully comply with the applicable law and policy and reach reasoned decisions regarding the children’s placements. However, in too many cases, agencies do not diligently fulfill their statutory 77. In addition to judicial economy, limiting court review of a supervising agency’s placement decision to disputed cases would preserve a child’s eligibility for federal title IV-E funding of foster care costs. See 45 C.F.R. § 1356.21(g)(3) (federal financial participation in the costs of a child’s care “is not available when a court orders a placement with a specific foster care provider”); CHILDREN’S BUREAU, U.S. DEP’T. OF HEALTH & HUMAN SERVS., CHILD WELFARE POLICY MANUAL 8.3A.12, question 3 (available at http://www.acf.hhs.gov/cwpm/ programs/cb/laws_policies/laws/cwpm/policy_dsp.jsp?citID=31) (stating a court may resolve a bona fide placement dispute without affecting eligibility for federal funding).

2015]

RELATIVE FOSTER CARE

263

responsibilities to identify and evaluate relatives willing to care for these children and to document their placement decision within 90 days of a childâ&#x20AC;&#x2122;s removal from parental custody. These failures may unnecessarily fragment families. The proposed improvements would help ensure agency compliance with their duties concerning relative foster care placement by improving documentation requirements and making court resolution of placement disputes available to interested relatives. The proposals would give relatives seeking placement of their kin what they deserve: fair and timely consideration of a commendable request.

FALSE PROMISES OF FOOD SAFETY: WHY HOMELAND SECURITY SHOULD CARE ABOUT YOUR DINNER JESSICA A. KRAGNESS* I.INTRODUCTION ............................................................................... 265 II.THE USDA AND THE HMSA ........................................................ 271 III.THE CALIFORNIA CONNECTION ................................................... 274 IV.HOW MAD COWS CAN TEACH US A LESSON ABOUT OUR SECURITY ............................................................................... 278 V.WHY AGROTERRORISM SHOULD TERRIFY US ............................... 283 VI.CONCLUSION ............................................................................... 289 I.

INTRODUCTION

When Americans think of terrorism, they undoubtedly conjure images of the Twin Towers in flames1 or the Pentagon with a hole blasted into its side.2 Now, a man concealing a bomb in his underwear is not just a hypothetical security exercise—on Christmas Day in 2009, Umar Farouk Abdulmutallab made this scenario a reality.3 These sensational stories captivate the country’s attention so * Jessica A. Kragness received her LL.M. in Criminal Law and Advocacy from Western Michigan University Thomas M. Cooley Law School in 2015 and her J.D. from Western Michigan University Thomas M. Cooley Law School in 2011. She received her Bachelor of Arts in Psychology from Hope College in 2010. Ms. Kragness currently serves as an Associate Attorney with the Grand Rapids Law Group. Special thanks go to Professor Michael C.H. McDaniel for his guidance throughout the research process. 1. LIFE MAGAZINE, ONE NATION: AMERICA REMEMBERS SEPTEMBER 11, 2001, at 103 (Robert Sullivan ed., 1st ed. 2001) (“[I]n bringing down the Twin Towers of the World Trade Center and demolishing a section of the Pentagon, the terrorists inflicted symbolic as well as literal wounds upon the multi-chambered heart of America. The gravest damage was done in a place where, long ago, ideas of liberty were sanctified and where, ever since the country’s founding, a mighty economic engine has been housed.”). 2. Id. (“The strike in Washington, D.C., was even less subtle, tearing at the very notion of U.S. power and might.”). 3. “Underwear Bomber” Changes Plea to Guilty, CBS NEWS (Oct. 12, 2011, 2:10 PM), http:// www.cbsnews.com/stories/2011/10/12/national/main20119175. shtml?tag=cbsnewsMainColumnArea. Abdulmutallab attempted to kill the nearly 300 people on board Northwest Airlines Flight 253 bound for Detroit by smuggling

266

W. MICH. U. COOLEY LAW REVIEW

[Vol. 32:3

that the steak sitting on the plate in front of most Americans4 may not even register as a potential security threat. In fact, the “fields and pastures of America’s farmland might seem at first to have nothing in common with the towers of the World Trade Center or busy seaports” but unfortunately, that is not the case.5 The American farmland and the nerve center of New York City are “merely different manifestations of the same high-priority target, the American economy.”6 There is an interesting mental block between the farm itself and what lands on the dinner table, much of which is attributable to the federal government’s current monopoly on the food system in America.7 As the focus has shifted away from the state and local government’s role in the food system,8 everyday Americans are relatively content to pick up their cellophane-wrapped rump roast and trust that the United States Department of Agriculture’s (USDA) sticker on the packaging provides everything they need to know about that piece of meat: whether the animal that it came from was healthy;9 whether it was slaughtered in a sanitary facility;10 and most importantly, whether someone with the right credentials was overseeing the whole process.11 Americans have lulled themselves into a shocking sense of false security by presuming that meat is safe a bomb on the plane in his pants and earned himself the nickname “the Underwear Bomber.” Id. 4. See Andrea M. Repphun, Pigs-In-A-Blanket: How Current Meat Inspection Regulations Wrap America in False Security, 16 DRAKE J. AGRIC. L. 183, 183 (2011) (“Meat plays a central role in the American diet.”). 5. Kevin H. Govern, Agroterrorism and Ecoterrorism: A Survey of IndoAmerican Approaches Under Law and Policy to Prevent and Defend Against These Potential Threats Ahead, 10 FLA. COASTAL L. REV. 223 (2009). 6. Id. 7. See Margaret Sova McCabe, Reconsidering Federalism and the Farm: Toward Including Local, State and Regional Voices in America’s Food System, 6 J. FOOD L. & POL’Y 151, 152 (2010) (“[F]ederalism and its progeny created distance between Americans and their food, contributing to the sense that Americans do not shape the food system, but allow it to shape us.”). 8. Id. 9. Michael B. Abramson, Mad Cow Disease: An Approach to its Containment, 7 J. HEALTH CARE L. & POL’Y 316, 355 (2004). 10. Id. at 342–43. 11. See U.S. Dep’t of Agriculture Food Safety Inspection Service, Slaughter Inspection 101, http://www.fsis.usda.gov/wps/portal/fsis/topics/food-safetyeducation/get-answers/food-safety-fact-sheets/production-and-inspection/slaughterinspection-101/slaughter-inspection-101 (last modified Aug. 9, 2013).

2015]

FALSE PROMISES OF FOOD SAFETY

267

to eat,12 despite the fact that they have no idea where this food actually came from.13 Indeed, most Americans seem unaware of the Secretary of Agriculture’s opinion that “the absence of a terrorist attack on the agricultural sector has been more by luck than by design.”14 Looking only at the numbers and setting aside the other consequences for now, a “successful attack on American livestock might cause between ten and thirty billion dollars in damage to the national economy . . ..”15 The large variance in possible cost reflects the very nature of the food industry itself—it encompasses not only direct losses but also potentially infinite indirect losses: Direct economic losses due to the cost of destroying disease-ridden . . . livestock, and the cost of disease containment; and indirect costs and multiplier effects resulting from disorder in agricultural sectors relying on agriculture (transportation and retail) and from the loss of export markets (trading partners embargoing particular U.S. agricultural products).16 America has a remarkably meat-centric diet, fed by an industry that encompasses the entire life cycle of ten-billion animals.17 To keep an industry of that size moving (and keep the production profitable), factory farming has become the norm in American food production, using “industrial-scale facilities where tens of thousands of animals are crowded together in tight conditions . . ..”18 Unfortunately, even when putting aside the controversial issue of 12. Repphun, supra note 4, at 184. 13. Id. (“[I]t is debatable how many Americans truly know where their meat comes from.”). 14. A. Bryan Endres & Jody M. Endres, Homeland Security Planning: What Victory Gardens and Fidel Castro Can Teach Us in Preparing for Food Crises in the United States, 64 FOOD & DRUG L.J. 405, 406 (2009) (internal quotation marks omitted). 15. Govern, supra note 5, at 238 (emphasis added). 16. Id. at 237 (internal quotation marks omitted). 17. Anastasia S. Stathopoulos, Note, You Are What Your Food Eats: How Regulation of Factory Farm Conditions Could Improve Human Health and Animal Welfare Alike, 13 N.Y.U. J. LEGIS. & PUB. POL’Y 407, 409 (2010). 18. Food & Water Watch: Food Safety Consequences of Factory Farms, CT FARM FRESH EXPRESS, LLC (Mar. 2009) http://www.ctffe.com/blog/2009/03 [hereinafter Food & Water Watch].

268

W. MICH. U. COOLEY LAW REVIEW

[Vol. 32:3

whether such facilities are humane,19 the conditions on these factory farms raise two important issues20 for the security of our food system: unsanitary conditions21 and extreme confinement of the animals.22 Any facility that houses thousands of animals produces a tremendous amount of waste. A farm with 2,500 dairy cows produces as much waste as a city of 411,000 people23 but with a very important difference: livestock waste is not treated at a sewage treatment plant and is allowed to wash into lagoons surrounding facilities.24 Anything dropped on facility floors will eventually be washed into lagoons, which can number in the hundreds and be as much as thirty feet deep.25 While this runoff process may sound harmless, “a testing of the waste from factory-farmed pigs revealed various toxic substances, including ammonia, methane, hydrogen sulfide, carbon monoxide, cyanide, phosphorous, nitrates, and heavy metals, in addition to . . . over [100] types of illness-causing pathogens.”26 The Centers for Disease Control and Prevention (CDC) has designated many of the chemicals already found in factory farm lagoons as toxic enough to be possible agents for a terrorist attack.27 The question arises: how might an enemy use or add to these already-toxic substances to convert them to a biological weapon? Research reveals no government strategy or initiatives to address these toxic lagoons; some factory farms even use the contents of these lagoons to fertilize their crops, which are then fed back to the animals.28 Even without the intentional introduction of a disease or poison, animals in factory farms contract illnesses simply from “exposure to 19. See Jo Warrick, They Die Piece by Piece, WASH. POST, Apr. 10, 2001, https://www.washingtonpost.com/archive/politics/2001/04/10/they-die-piece-bypiece/f172dd3c-0383-49f8-b6d8-347e04b68da1/. 20. Stathopoulos, supra note 17, at 413. 21. Id. 22. Id. 23. Food & Water Watch, supra note 18. 24. Id. 25. Stathopoulos, supra note 17, at 414. 26. Id. 27. See Ctr. For Food Safety & Applied Nutrition, Risk Assessment for Food Terrorism and Other Food Safety Concerns, U.S. FOOD & DRUG ADMIN. (Oct. 7, 2003), http://permanent.access.gpo.gov/lps111988/rabtact.html (including “arsenic, lead, mercury, and pesticides, dioxins, furans, and polychlorinated biphenyls (PCBs), all of which may be used to contaminate food”) [hereinafter CFSAN]. 28. Stathopoulos, supra note 17, at 415.

2015]

FALSE PROMISES OF FOOD SAFETY

269

high levels of toxins due to the concentration of waste . . ..”29 “These unnatural conditions threaten the safety of America’s food supply by acting as breeding grounds for disease and the spread of pathogens responsible for foodborne illnesses.”30 The fact that the industry already allows such questionable conditions raises alarm not only as to how easily an enemy could quietly exploit the conditions (going unnoticed until a full-fledged national disaster occurred), but also regarding the animals’ incredible susceptibility to disease, a danger created by the meat industry’s standard practices. The meat industry is knowingly allowing factory farmers to keep their animals in a perpetual state of risk. To produce enough animals to fuel an industry that processes 309 cattle per hour,31 the animals must be stuffed into extremely confined spaces.32 The already filthy conditions of the farms are further exacerbated by the animals living in such close quarters, resulting in a drastic impact on the animals’ immune systems.33 The weakened immune function in factory-farmed animals is a serious concern since the spread of disease becomes almost certain once one animal becomes ill.34 Not only is a disease likely to infect the remaining animals in the facility once introduced into the community, but some diseases may also infect the animal handlers, enter the air, or pollute the water.35 Farmers treat the waste of sick animals no differently – they wash it into the containment lagoons surrounding a facility along with the other untreated animal waste. Once in a lagoon, the toxic runoff may enter the local water supply by seeping into the ground, or if the lagoon is overwhelmed with rainwater, washing into local bodies of fresh water.36 29. Id. at 412. 30. Repphun, supra note 4, at 200. 31. Warrick, supra note 19. 32. Stathopoulos, supra note 17, at 415. 33. See Lewis W. Smith, Forum—Helping Industry Ensure Animal Well-Being, U.S. DEP’T OF AGRIC. (Mar. 2005), https://agresearchmag.ars. usda.gov/2005/mar/form/ (“[W]hen livestock are unduly stressed, they undergo physiological changes that can increase their chances of catching and spreading diseases.”). 34. See Stathopoulos, supra note 17, at 416. 35. See Jay P. Graham et al., The Animal-Human Interface and Infectious Disease in Industrial Food Animal Production: Rethinking Biosecurity and Biocontainment, 123 PUB. HEALTH REP. 282, 290 (2008). 36. See Stathopoulos, supra note 17, at 414–15.

270

W. MICH. U. COOLEY LAW REVIEW

[Vol. 32:3

Meat is a particular concern because of its “central role in the American diet,”37 and because of its controversial regulation within the United States.38 While “public concern over food safety was stimulated over a century ago, modern meat inspection regulations provide a false sense of security for consumers because they are neither consistently followed nor enforced.”39 In January 2008, an investigation into a California meatpacking plant resulted in the largest beef recall in history.40 An undercover video shot in the plant showed that they included and packaged meat from cattle that passed a before-death inspection but became “downed”41 before slaughter, in violation of the Federal Meat Inspection Act (FMIA) regulations.42 California enacted legislation specifically to prohibit the purchase and butchering of non-ambulatory animals, although the U.S. Supreme Court struck down the legislation on January 23, 2012, despite such concerns.43 This Article will discuss how the enforcement and enactment of regulation is essential to preventing agro-terrorism. Part II will discuss the USDA’s role and limitations in the meat industry. In a review of past solutions, the Humane Methods of Slaughter Act (HMSA) will be examined from its historical roots to its most current incarnation. Part III will examine the California law that was challenged in the U.S. Supreme Court and why that case could have had profound implications for the rest of the country. To address the importance of taking action, Part IV will examine mad cow disease and its impact, because that disease in particular provides an important lesson in food security. Part V will delve further into the concept of agro-terrorism including its history and why the meat industry is particularly vulnerable. Part VI will address the Department of Homeland Security’s (DHS) efforts to organize a 37. Repphun, supra note 4, at 183. 38. See generally Warrick, supra note 19. 39. Repphun, supra note 4, at 186. 40. Andrenna L. Taylor, From Downer Cattle to Mystery Meat: Chapter 194 is California’s Response to the Largest Beef Recall in History, 40 MCGEORGE L. REV. 523, 523 (2009) (explaining that 143 million pounds of beef were recalled). 41. Repphun, supra note 4, at 186 (“A downed animal . . . is ‘unable to stand or walk without assistance.’ . . . There is an increased probability that downed animals, which have a higher likelihood of carrying diseases and bacteria, will transmit these diseases and bacteria to humans by the placement of their contaminated meat into the food supply.”). 42. Id. at 190. 43. Nat’l Meat Ass’n v. Harris, 132 S. Ct. 965 (2012).

2015]

FALSE PROMISES OF FOOD SAFETY

271

national response plan in the event of a food-industry-related incident. II.

THE USDA AND THE HMSA

The laws governing food safety in the United States implicate two main federal agencies: the USDA and the Food and Drug Administration (FDA).44 This Article will concentrate on the USDA because its jurisdiction focuses solely on the production and processing of meat, poultry, and eggs.45 Interestingly, the USDA lacks any authority to regulate activities at the farm level,46 and its food safety branch, the Food Safety and Inspection Service (FSIS), does not enter the process until animals reach the processing plants for slaughter.47 This set-up thus begs the question: who is handling security at the farms themselves? And who is responsible for overseeing the security of these farms? The answer, it seems, is that the federal government is not involved.48 To further complicate matters, the USDA must struggle with two “often-conflicting missions when it comes to food: safety and promotion.”49 The USDA is stuck between maintaining the status quo (which, in turn, maintains public confidence in the meat industry’s product) and upsetting the balance to address any safety issues while still attempting to maintain the public’s trust. Unfortunately, the end result of the balancing act most often tips in favor of promotion over safety: “[E]nforcement problems arise because the industry is primarily concerned with productivity and profit.”50 When the U.S. General Accounting Office reported to Congress on the USDA’s implementation of the HMSA, they found that they could not assess noncompliance because the documentation 44. Caroline S. DeWaal, From Hand to Mouth, via the Lab and the Legislature: International and Domestic Regulations to Secure the Food Supply, 40 VAND. J. TRANSNAT’L L. 922, 922–23 (2007). 45. Endres, supra note 14, at 433. 46. Stathopoulos, supra note 17, at 434. 47. See Federal Meat Inspection Act, 21 U.S.C.A. §§ 601–603 (Westlaw 2016); see also 7 C.F.R. § 2.53 (2009). 48. See Stathopoulos, supra note 17, at 434, 437 (stating that the USDA has no regulatory authority at the farm level and the FDA, while it is arguable that it could have such authority pursuant to its mandate to prevent communicable diseases, currently is not exercising it). 49. DeWaal, supra note 44, at 932. 50. Repphun, supra note 4, at 194.

272

W. MICH. U. COOLEY LAW REVIEW

[Vol. 32:3

by the FSIS branch of the USDA was incomplete and inconsistent.51 Compounding the problem is the report of several veterinarians who work within the processing plants who believe that the “frequency of noncompliance with the act is likely to be underreported.”52 In fact, these veterinarians also report that some of the consumer safety inspectors from the FSIS are not even aware of the regulatory requirements.53 The history of meat regulation begins with the Humane Slaughter Act, first passed in 1958 because of cruelty concerns in processing facilities.54 Congress had “determined that using humane methods of slaughter prevented the needless suffering of livestock, resulted in safer and better working conditions for employees, and brought about improvements in products and economies of slaughter operations, among other benefits.”55 While the Humane Slaughter Act was primarily passed as an anti-cruelty measure, the above statement recognizes the Act’s security implications, since the meat that enters the American food industry is the product “improved” by the Act’s implementation. This original version of the Humane Slaughter Act was extremely limited in that it only applied to facilities that wanted to sell meat to federal government agencies.56 Twenty years later, in 1978, Congress passed the HMSA,57 which applied to all federally inspected meat-processing plants.58 In 2002, Congress amended the HMSA, directing the Secretary of Agriculture to report findings to Congress regarding non-ambulatory livestock in the slaughter process.59 This amendment sought to resolve the problem of processing downed animals even though “[t]he slaughter of downed animals for human consumption poses a significant risk to public safety.”60 Then the United States experienced its first known 51. U.S. GEN. ACCOUNTING OFFICE, GAO-04-247, HUMANE METHODS OF SLAUGHTER ACT: USDA HAS ADDRESSED SOME PROBLEMS BUT STILL FACES ENFORCEMENT CHALLENGES i (2004), http://www.gao.gov/new.items/d04247.pdf [hereinafter GAO REPORT]. 52. Id. at 17. 53. Id. 54. Pub. L. No. 85-765, 72 Stat. 862 (1958). 55. GAO REPORT, supra note 51, at 6. 56. Id. 57. 7 U.S.C.A. § 1902 (Westlaw 2016). 58. GAO REPORT, supra note 51, at 6. 59. See Humane Methods of Slaughter Act of 1978, Pub. L. 107-171, § 10815, 116 Stat. 134, 532 (2002). 60. Repphun, supra note 4, at 187.

2015]

FALSE PROMISES OF FOOD SAFETY

273

case of mad cow disease, and the FSIS initially banned the slaughter of all non-ambulatory cattle.61 That prohibition proved fleeting, however, as the FSIS modified the HMSA in 2007 to allow for a case-by-case determination as to whether downed cattle should proceed to slaughter.62 It was not until the historical California recall63 that the USDA issued a blanket prohibition on the slaughter of downed cattle in 2009.64 One would think that the blanket prohibition would mean that downed cattle are no longer used anywhere in the food industry. Unfortunately, as a result of noncompliance and loopholes in the federal food system, that is not the case.65 Most Americans probably do not realize that factory farmers have “found a cheap way to both increase protein consumption in their cattle, pigs, and poultry and to make use of their dead, dying, or diseased animals: they simply grind them up and render them into animal feed.”66 Now, because of mad cow disease implications, feeding cattle back to cattle is more tightly regulated than any other species,67 but there is no ban on feeding cattle to other species of livestock.68 For example, this loophole allows factory farmers to feed cattle parts to poultry.69 Poultry farmers commonly sweep the floor of chicken coops and then feed to cattle the sweepings that include feces, other refuse, and spilled poultry feed comprised of cattle.70 Other important cattle-specific loopholes allow leftover food from restaurants and other foodprocessing facilities to be fed back to cattle while calves may be fed milk replacer that contains cattle blood.71 In fact, the dangers of feeding cattle back to cattle were recognized in 1996 after the 61. 62. 63. 64. 65. 66.

Id. at 193. Id. See generally Taylor, supra note 40. 9 C.F.R. pt. 309.3(e) (2010). See Stathopoulos, supra note 17, at 432. Id. at 418; see also The Reality of Feed at Animal Factories, FOOD DEMOCRACY (Oct. 15, 2007), https://fooddemocracy.wordpress.com/ 2007/10/15/the-reality-of-feed-at-animal-factories-equivalent-to-gigo-garbarge-ingarbage-out/. 67. Stathopoulos, supra note 17, at 418. 68. The Reality of Feed at Animal Factories, supra note 66. 69. Id. 70. See Food & Water Watch, supra note 18; see also Stathopoulos, supra note 17, at 441 (calling the refuse “poultry litter”). 71. See Stathopoulos, supra note 17, at 441 (stating that plate waste could contain cattle tissue).

274

W. MICH. U. COOLEY LAW REVIEW

[Vol. 32:3

multiple incidents of mad cow disease in the United Kingdom (U.K.) raised international alarm.72 In 2004 alone, “the FDA found close to [100] American companies violating the 1997 mad cow feed regulations, either by maintaining poor manufacturing practices that could result in mixing cattle parts into cattle feed or by failing to label feed containing cattle parts.”73 Considering that there are already significant loopholes in a policy meant to protect public health, the ineffective oversight and enforcement of the feed ban renders its adequacy questionable.74 III.

THE CALIFORNIA CONNECTION

In January 2008, an undercover investigator for the Humane Society of the United States captured video at a California slaughterhouse showing the slaughter of “downer cattle” (cattle that is unable to stand on its own) without a second inspection as required by federal law.75 The violation was serious enough to lead to the recall of 143 million pounds of beef as well as the implementation of a new federal rule “prohibiting downer cows from being slaughtered under any circumstances.”76 California, however, enacted a state law (599(f)) that went a step further: any downed animal, regardless of species, must be removed from the slaughter process and be euthanized.77 National Meat Ass’n v. Harris challenged the California state law.78 Section 599(f) was written as an anti-cruelty law that would “raise the bar for the ethical treatment of livestock in California and represented a moral decision by Californians that just because an animal may be destined for slaughter, it should nonetheless be treated 72. See generally Variant Creutzfeldt-Jakob Disease, CTR. FOR DISEASE CONTROL AND PREVENTION (Oct. 7, 2014), http://www.cdc.gov/prions/vcjd/ index.html [hereinafter CDC]; see also Stathopoulos, supra note 17, at 432. 73. Stathopoulos, supra note 17, at 432. 74. See generally Abramson, supra note 9, at 340 (“Government-sponsored inquiries have concluded that the feed ban is ineffective and its inadequacies could lead to incidents of [Mad Cow Disease] in the United States.”). 75. Taylor, supra note 40, at 532; Ben Goad, Supreme Court: Case to Test California’s Meat Law, PRESS ENTER. (OCT. 19, 2011, 10:51 PM) http://www.pe.com/articles/law-626421-california-animals.html. 76. Goad, supra note 75. 77. CAL. PENAL CODE § 599(f) (Westlaw 2016), invalidated by Nat’l Meat Ass’n v. Harris, 132 S. Ct. 965 (2012). 78. Brief for the State Respondents at i, Nat’l Meat Ass’n v. Harris, 132 S. Ct. 965 (2012) (No. 10-224), 2010 WL 5149238.

2015]

FALSE PROMISES OF FOOD SAFETY

275

in a manner that does not inflict unnecessary pain and misery.”79 The National Meat Association (NMA) acted immediately, filing suit against the State of California in federal district court “seeking declaratory and injunctive relief barring the application of Section 599[(f)] to federally inspected swine slaughterhouses”80 and arguing that the new state law was preempted by the FMIA81 as amended by the Wholesome Meat Act of 1967 and the HMSA.82 State law may be expressly or impliedly preempted by Congress or federal agencies.83 Express preemption occurs when “federal law explicitly preempts state law,” while implied preemption occurs whenever “federal law [is] intended to occupy the legislative field or where state law conflicts with federal law, either because it is impossible to comply with both laws or because state law stands as an obstacle to accomplishing the purposes of the federal law.”84 However, as the Ninth Circuit Court of Appeals noted in National Meat Ass’n v. Brown, when the state law is dealing with matters that have been historically regulated by the states, like health and animal welfare, there is a strong presumption against preemption.85 Section 599(f) barred all slaughterhouses from buying, selling, or receiving a non-ambulatory animal; processing, butchering, or selling the meat products of a non-ambulatory animal; and holding a nonambulatory animal without taking immediate action to humanely euthanize it.86 Federal law, on the other hand, permits the slaughter of non-ambulatory animals if they are separated and pass an ante 79. Elizabeth B. Wydra, Occupy the Barnyard: Meat Industry Asks Supreme Court to Help Crush Anti-Cruelty Law, HUFFINGTON POST (Nov. 8, 2011, 5:34 AM), http://www.huffingtonpost.com/elizabeth-b-wydra/national-meat-associationv-harris_b_1081781.html. 80. Nat’l Meat Ass’n v. Brown, 599 F.3d 1093, 1096 (9th Cir. 2010), cert. granted sub nom. Nat’l Meat Ass’n v. Harris, 131 S. Ct. 3083 (2011) (mem.), vacated, Nat’l Meat Ass’n v. Harris, 680 F.3d 1193 (9th Cir. 2012). 81. Brown, 599 F.3d at 1097. 82. Preview of United States Supreme Court Cases, AM. BAR ASS’N, http://www.americanbar.org/publications/preview_home/10-224.html (last visited Feb. 13, 2016). 83. Brown, 599 F.3d at 1097 (citing Barrientos v. 1801-1825 Morton LLC, 583 F.3d 1197, 1208 (9th Cir. 2009)). 84. Brown, 599 F.3d at 1097 (citations omitted). 85. Id. (citing Wyeth v. Levine, 129 S. Ct. 1187, 1194–95 n.3 (2009)). 86. See CAL. PENAL CODE § 599(f) (Westlaw 2016), invalidated by Nat’l Meat Ass’n v. Harris, 132 S. Ct. 965 (2012).

276

W. MICH. U. COOLEY LAW REVIEW

[Vol. 32:3

mortem inspection.87 The NMA argued that the FMIA preempted state regulation of federally inspected slaughterhouses88 through an express preemption clause,89 pursuant to the Supremacy Clause of U.S. Constitution.90 The NMA purported that Congress clearly intended to preempt state laws that add to or contradict federal standards.91 The NMA further argued that the Ninth Circuit erred when it ruled that the “presumption against preemption” required a narrow interpretation of the preemption clause at issue.92 The Ninth Circuit ruled that the FMIA did not preempt Section 599(f) because the state law addressed the kind of animals that could be slaughtered at a federally inspected slaughterhouse; not the premises, facilities, or operations of a slaughterhouse.93 The NMA disagreed, arguing that the state was attempting to do exactly what the preemption clause prohibited; states cannot intrude on “the FMIA’s comprehensive standards for ‘premises, facilities, and operations’ at federallyinspected establishments.”94 In other words, California had dressed its law up like an anti-cruelty law in a blatant attempt to overcome the preemption issue and directly legislate rules that would affect the operations at all California-based federal slaughterhouses.95The NMA also objected to the Ninth Circuit analogizing the California law to other state laws banning the slaughter of horses because a downer is a transitory condition—not a “type” of animal.96 87. See Brief for Petitioner at 17, Nat’l Meat Ass’n v. Harris, 132 S. Ct. 965 (2012) (No. 10-224), 2011 WL 3739469. 88. See id. at 26. 89. See 21 U.S.C.A. § 678 (Westlaw 2016) (“Requirements within the scope of this chapter with respect to premises, facilities and operations of any establishment at which inspection is provided under subchapter I of this chapter, which are in addition to, or different than those made under this chapter may not be imposed by any state.”). 90. See U.S. CONST. art. VI, cl. 2 (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, and any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”). 91. See Brief for Petitioner, supra note 87, at 29. 92. Id. at 19. 93. See Brown, 599 F.3d at 1099. 94. Brief for Petitioner, supra note 87, at 43. 95. See generally id. 96. Id. at 58.

2015]

FALSE PROMISES OF FOOD SAFETY

277

The State of California argued that the purpose of Section 599(f) was twofold: “to better protect human health and to prevent the inhumane treatment of downed animals.”97 Relying on the “savings clause” in the FMIA, which states “[t]his chapter shall not preclude any [s]tate . . . from making requirement[s] or taking other action, consistent with this chapter, with respect to any other matters regulated under this chapter,” California (and the Ninth Circuit) believed that there was no express preemption in this situation.98 The State of California argued that it was not attempting to regulate the premises, facilities, or operations of the slaughterhouses—it was regulating the kind of animal that could be slaughtered.99 Furthermore, the Ninth Circuit added that they found no preemption by implication because the language of the “savings clause” in the FMIA “shows that Congress did not intend to occupy the field of slaughterhouse regulation, so only conflict preemption is at issue.”100 The Ninth Circuit went on to hold that there was also no conflict preemption because it was possible to comply with both the California law and the FMIA at the same time.101 The FMIA inspection requirements only apply to animals that will be slaughtered for human consumption, while Section 599(f) says that downer animals will never be slaughtered for human consumption.102 According to Section 599(f), downer animals never enter the process that ends in human consumption, so they fall outside the regulations of the FMIA.103 Unfortunately, the U.S. Supreme Court did not agree with the State of California.104 In a succinct holding, the Court clarified that “[t]he FMIA regulates slaughterhouses’ handling and treatment of non-ambulatory pigs from the moment of their delivery through the end of the meat production process,” and that Section 599(f) “endeavors to regulate the same thing, at the same time, in the same place—except by imposing different requirements. The FMIA expressly preempts such a state law.”105 97. 98. 99. 100. 101. 102. 103. 104. 105.

Brief for the State Respondents, supra note 78, at 6. Id. at 11 (citing 21 U.S.C.A. § 678 (Westlaw 2016)). See Brief for the State Respondents, supra note 78, at 11. Id. at 11–12 (internal quotation marks omitted). Id. at 12. Brief for the State Respondents, supra note 78, at 12. See generally id. See generally Nat’l Meat Ass’n v. Harris, 132 S. Ct. 965 (2012). Id. at 975.

278

W. MICH. U. COOLEY LAW REVIEW

[Vol. 32:3

The implications of the Court’s decision run far deeper than whether a California law passes constitutional muster. “California is the country’s cultural and regulatory bellwether. Regulations passed in California often become laws elsewhere, at both the state and federal level.”106 The “California Effect”107 could have led to national change in animal welfare legislation as each state followed in California’s footsteps . . . or, more appropriately here, hoofprints. Instead, the federal regulations, which are barely followed, continue to be the standard of safety for food on American kitchen tables. IV.

HOW MAD COWS CAN TEACH US A LESSON ABOUT OUR SECURITY

Even though the 1997 feed ban specifically addressed mad cow disease, all three of the documented cases of mad cow disease in the United States occurred after 2001.108 In fact, it was not until December 23, 2003, that the USDA announced that a cow had tested positive for mad cow disease in Washington State.109 Mad cow disease is instructive for homeland security purposes because of the type of illness it is and how it spreads. Mad cow disease is the common name for a disease clinically referred to as Bovine Spongiform Encephalopathy (BSE).110 Cows with the disease develop tiny holes in nerve cells and parts of the brain, giving the brain a sponge-like appearance.111 BSE spreads when cattle ingest the nervous system tissue of an infected cow,112 which was the focus of the previously discussed feed ban.113 Scientists believe that BSE originated from the inclusion of mammalian protein in cattle feed that began after World War II.114 Some forty years later, a change in the beef-rendering process is believed to have created the right environment for BSE; allowing the 106. Baylen J. Linnekin, The “California Effect” & the Future of American Food: How California’s Growing Crackdown on Food & Agriculture Harms the State & the Nation, 13 CHAP. L. REV. 357–58 (2010). 107. Id. 108. See CDC, supra note 72. 109. See Abramson, supra note 9, at 316. 110. Id. at 320. 111. Id. at 321–22. 112. See Stathopoulos, supra note 17, at 430. 113. Abramson, supra note 9, at 323–24, 340. 114. Id. at 323–24.

2015]

FALSE PROMISES OF FOOD SAFETY

279

agent that causes BSE to survive rendering and be passed on to living cattle through the process of feeding cattle to cattle.115 Cattle infected with BSE show a wide range of clinical signs including nervousness; skin tremors; a strange high-stepping movement of the back legs; difficulty rising; reluctance to enter yards, cross concrete, or go through doorways; and aggression toward other cattle and people.116 The progression of the disease, from the onset of initial symptoms to death, can take anywhere from two weeks to six months, while the incubation period can last from four to six years.117 No test currently detects the disease in live cattle, and all infected cattle die.118 On March 20, 1996, scientists from the U.K. announced findings that linked BSE to ten cases of a human disease called the new variant Creutzfeldt-Jakob Disease (vCJD).119 Further experimental and epidemiologic studies supported the theory that eating cattle infected with BSE causes an occurrence of vCJD in humans.120 “vCJD is a devastating disease. It[s] symptoms include mood swings, numbness, hallucinations, and uncontrolled movements. In its final state, vCJD results in a dementia similar to the severity of dementia in Alzheimer’s Disease.”121 Such dementia results in patients becoming completely immobile and mute.122 There is no known treatment for vCJD,123 and consumers cannot protect themselves from vCJD as no amount of cooking can prevent the disease from spreading once it is present in the meat.124 vCJD is fatal.125 Transmission of vCJD may occur in several other ways besides eating BSE-contaminated beef. The CDC reported a transmission of vCJD through a blood transfusion between an infected donor and a previously healthy recipient.126 vCJD can also be transmitted through 115. See id. at 324. 116. See id. 117. See PA-1705 USDA ANIMAL AND PLANT HEALTH INSP. SERV., BOVINE SPONGIFORM ENCEPHALOPATHY: AN OVERVIEW (Oct. 2006), https://archive.org/details/CAT30983734 [hereinafter BSE OVERVIEW]. 118. Id. 119. See Abramson, supra note 9, at 326. 120. See BSE OVERVIEW, supra note 117. 121. Abramson, supra note 9, at 327 (citation omitted). 122. Stathopoulos, supra note 17, at 431. 123. CDC, supra note 72. 124. See Stathopoulos, supra note 17, at 431. 125. CDC, supra note 72. 126. Id.

280

W. MICH. U. COOLEY LAW REVIEW

[Vol. 32:3

physical contact with brain tissue or cerebrospinal fluid,127 which is the same manner BSE transmits from cow-to-cow or cow-to-human. Other known routes of transmission include “grafts of dura matter (a tissue that covers the brain), transplanted corneas, implantation of inadequately sterilized electrodes in the brain, and injections of contaminated pituitary growth hormone derived from human pituitary glands taken from cadavers.”128 The use of BSE or vCJD as a weapon depends mainly upon a group or individual’s capability of obtaining a sample of the disease and their ability to significantly reproduce it. While such reproduction is not as simple as ordering a bacterium from a catalogue, the ability of any terrorist organization or radical individual should not be underestimated. For instance, the Rajneeshee cult possessed a relatively advanced laboratory facility in which they successfully reproduced and weaponized salmonella typhimurium (which causes gastroenteritis and diarrhea in humans and other mammals but is used in mice to study typhoid).129 One of the top members of the cult was educated in the United States as a nurse, and another member had the laboratory skills necessary to run the research facility.130 Radical groups frequently include educated people, and even if they do not have any in their membership, they may always enlist “the services of unscrupulous physicians.”131 The occurrences of BSE in the United States had a profound effect on the country in a relatively short amount of time. The meat industry suffered an economic blow that took several forms.132 Meat processed in the United States was banned in more than forty countries including Japan, Mexico, and South Korea, which accounted for over 80% of U.S. beef exports.133 Cattle prices dropped 127. Creutzfeldt-Jakob Disease Fact Sheet, NAT’L INSTITUTE OF NEUROLOGICAL DISORDERS AND STROKE, http://www.ninds.nih.gov/disorders/cjd/detail_cjd. htm#186503058 (last visited Dec. 10, 2011). 128. Id. 129. Christopher M. Thompson, The Bioterrorism Threat by Non-State Actors: Hype or Horror? 17 (Dec. 2006) (unpublished M.A. thesis, Naval Postgraduate School), http://calhoun.nps.edu/bitstream/handle/10945/2416/06Dec_Thompson. pdf?sequence=3&isAllowed=y [hereinafter Hype or Horror]. 130. W. Seth Carus, Bioterrorism and Biocrimes 26 (Ctr. for Counterproliferation Research Nat’l Def. Univ. Wash., D.C., working paper, 2001), http://www.fas.org/irp/threat/cbw/carus.pdf. 131. Id. 132. Abramson, supra note 9, at 317. 133. Id.

2015]

FALSE PROMISES OF FOOD SAFETY

281

20% while meat producers’ stocks declined.134 “In 2003, U.S. beef exports were valued at $3.95 billion and accounted for 9.6% of U.S. commercial beef production.”135 In the year following the announcement of BSE on American soil, export quantities declined 82%.136 “Results suggest that total U.S. beef industry losses arising from the loss of beef and offal exports during 2004 ranged from $3.2 billion to $4.7 billion . . . .”137 The USDA and FDA responded with changes to their regulations138 that would affect the entire federal food industry. “The regulations introduced in 2004 led to changes in cattle procurement, employment, employee training requirements, food safety plans, capital investments, and marketing opportunities for the beef industry.”139 The costs of the combined regulatory changes resulted in a “net economic cost to the beef industry in 2004” of approximately $200 million.140 Indeed, the term “mad cow disease” has become common knowledge throughout the United States,141 and citizens now know that the current safety mechanisms in place to protect their meat can fail. It is also important to recognize that the multi-billion dollar effect on the U.S. economy resulted from a single case of BSE—a disease that was immediately recognizable and containable. It is important to examine the BSE outbreak in the U.K. because “[t]he potential magnitude of social impacts arising from a food terrorism incident may be best illustrated by examining the effects of the Bovine Spongiform Encephalopathy . . . crisis in Great Britain in the 1990’s.”142 Although BSE was first discovered in the U.K. in 1986, it was not until 1996 that scientists announced that the disease could be spread to humans.143 During that ten-year period, the British government assured its citizens that everything was fine, BSE was an 134. Id. 135. BRIAN COFFEY ET AL., KAN. STATE UNIV., THE ECONOMIC IMPACT OF BSE: A RESEARCH SUMMARY 4 (2005), https://krex.k-state.edu/dspace/bitstream/handle/ 2097/12460/EconomicImpactofBSE.pdf?sequence=1&isAllowed=y [hereinafter RESEARCH SUMMARY]. 136. Id. 137. Id. (emphasis added). 138. BSE OVERVIEW, supra note 117. 139. RESEARCH SUMMARY, supra note 135, at 3. 140. Id. at 4. 141. Abramson, supra note 9, at 317. 142. CFSAN, supra note 27. 143. Id.

282

W. MICH. U. COOLEY LAW REVIEW

[Vol. 32:3

“animal” disease, and British beef was safe.144 When the media announced that ten people had already been infected or died of vCJD, the U.K. erupted in mass panic.145 Even though the toll of human fatalities—137 deaths to date—was lower than the death toll from many other diseases, the effects of this public health crisis were widespread and long-lasting. Bans on imports of British beef lasted for several years. Furthermore, the public’s shattered confidence in government forced the creation of a new food regulatory authority, the Foods Standards Agency. The slaughter of millions of cattle and other BSE control measures, together with depressed markets for British beef, crippled the country’s cattle industry. . . . Fear and anxiety may contribute to reduced confidence in the political system and government, and may result in political destabilization, as was seen in Great Britain during the mad cow crisis.146 The difference between the reaction in the U.K. and the reaction in the United States is attributable to one simple thing: knowledge. By the time the media reported the first BSE case in the United States, five years had passed since the announcement that BSE could affect humans.147 The U.S. government knew the disease and its impact, and reacted immediately to reduce the threat to its citizens. The U.K. did not have that advanced warning when BSE appeared on its soil. It took ten years148 of testing before the British government or the international community knew exactly what they were dealing with. What happens when the United States faces a new disease or variant that officials cannot immediately recognize? After all, “[t]he cost in terms of damages is directly proportional to the time it takes to diagnose the disease. The longer it takes to diagnose a disease, the more it could spread and cause potentially extensive losses of production and exports due to sanctions against the U.S.”149 We know because we learned it from our British brothers. 144. 145. 146. 147. 148. 149.

Id. Id. Id. See CDC, supra note 72; see also Abramson, supra note 9, at 326. See CFSAN, supra note 27. Govern, supra note 5, at 257.

2015]

FALSE PROMISES OF FOOD SAFETY

283

Amazingly the effects on the United States resulted primarily from a single incidence of mad cow disease; the very first case discovered in 2003.150 On one hand, some Americans may feel comforted by how quickly the country responded. On the other hand, the experience showed how the country was completely unprepared to handle a widespread outbreak of an unknown disease.151 It was not until the country suffered the devastating effects of September 11, 2001, that the executive branch stepped in and started making some changes to food security in the United States.152 V.

WHY AGROTERRORISM SHOULD TERRIFY US

Agroterrorism is a subset of bioterrorism defined as “as the deliberate introduction of an animal or plant disease with the goal of generating fear, causing economic losses, and/or undermining [social] stability.”153 More generally, bioterrorism is “the threat or use of biological agents by individuals or groups motivated by political, religious, ecological, or other ideological objectives.”154 Although the United States has already experienced several examples of deliberate food contamination155 in addition to the unintentional occurrence of mad cow disease,156 Americans are not beating down the doors of their local officials demanding action to correct the inadequate regulation of the meat industry.157 This complacency is likely because the USDA is very good at the “promotion” part of its mission,158 and Americans believe what the USDA says—that meat in this country is safe.159

150. Abramson, supra note 9, at 316. 151. See id. at 319. 152. See generally DEP’T OF HOMELAND SEC., COMPILATION OF HOMELAND SECURITY PRESIDENTIAL DIRECTIVES (2008), https://www.gpo.gov/fdsys/pkg/ CPRT-110HPRT39618/pdf/CPRT-110HPRT39618.pdf [hereinafter HSPDs]. 153. JIM MONKE, CONG. RESEARCH SERV., RL32521, AGROTERRORISM: THREATS AND PREPAREDNESS 1 (2007), http://fas.org/irp/crs/RL32521.pdf. 154. Henry S. Parker, Agricultural Bioterrorism: A Federal Strategy to Meet the Threat 2 (Nat’l Def. Univ., Paper No. 65, 2002). 155. CFSAN, supra note 27. 156. CDC, supra note 72. 157. See Abramson, supra note 9, at 319. 158. See generally DeWaal, supra note 44, at 931. 159. See generally Abramson, supra note 9, at 319.

284

W. MICH. U. COOLEY LAW REVIEW

[Vol. 32:3

The first and largest bioterrorist attack in the United States occurred in the fall of 1984 in The Dalles, Oregon.160 Members of the Rajneeshee cult attempted to influence the outcome of a local election by sprinkling a home-brewed salmonella concoction in salad dressings, coffee creamers, and salads in restaurants and a supermarket hoping to sicken enough residents on Election Day to keep people out of the voting booth.161 This particular attack is important to highlight because of its covert nature—the attack was not attributed to the cult until they took responsibility for it and the use of an agent that is normally non-lethal.162 The Rajneeshee cult settled in the small county of Wasco on land purchased by the cult’s founder, Rajneesh Chandra Mohan and was initially friendly with the local residents.163 The local community resisted the cult’s wishes to expand its commune and imposed building violations on the cult.164 The cult perceived this reaction from the local community to be so threatening that members began patrolling the edges of the commune with weapons to protect themselves from the outside world.165 The cult believed its primary problem was “undue interference by the Wasco County commission and the constraints imposed by the area zoning and land use restrictions.”166 The cult’s plan was to gain influence in the political community, and then institute changes. They undertook two plans of action: (1) the cult allowed thousands of homeless people to live in the commune and registered them all to vote; and (2) the cult made the Wasco population too sick to vote.167 The cult initially wanted to cause a typhoid outbreak, but the risk was too great that such an attack would be attributed to the cult so S. typhimurium, a form of salmonella, became the bacterium of choice.168 The cult ordered it legally through a state-licensed medical 160. Philip Elmer-DeWitt, America’s First Bioterrorism Attack, TIME MAGAZINE (Sept. 30, 2001), http://www.time.com/time/magazine/article/ 0,9171,176937,00.html. 161. Id. 162. Hype or Horror, supra note 129, at 17. 163. Id. at 18–19. 164. Id. at 19. 165. Id. 166. Id. at 20. 167. Id. at 21. 168. Id. at 23. The cult showed interest in a number of biological agents, including Salmonella typhi (which causes typhoid fever), Salmonella partyphi, Francisella tularensis (which causes tularemia, an agent used in Cold War

2015]

FALSE PROMISES OF FOOD SAFETY

285

firm from a Seattle-based company and then manufactured the liquid form of the bacteria at the commune.169 The cult tested their plan a year before the elections by poisoning the drinking water of Judge William Hulse and Ray Matthew, both members of the Wasco County Commission.170 Then the cult poured the liquid S. typhimurium into salad bar bowls, salad dressing, and coffee creamer in ten different restaurants.171 The S. typimurium made 751 individuals sick and sent 45 of them to the hospital.172 While the deliberate food contamination examples in the United States have not had catastrophic death tolls,173 Americans should count themselves lucky.174 In China in 2002, nearly 40 people died and 200 were hospitalized when the owner of a fast-food restaurant poisoned one of his competitor’s foods with rat poison.175 For a case closer to home, in 1970 a postgraduate student in Canada tainted his roommates’ food with Ascaris suum, and the parasite caused acute respiratory failure in two of the victims.176 Moving beyond intentional acts by private parties, World War II was replete with examples of state-sponsored agroterrorism.177 Since September 11, 2001, both the Central Intelligence Agency (CIA) and the Federal bioresearch), Enterobacter cloacae (which has a high mortality rate but not in normally healthy people), Neisseria gonorrhoeae (which causes the STD gonorrhea), Shigella dysenteriae (which causes severe dysentery), and Human Immunodeficiency Virus (the AIDS virus). Id. 169. Id. at 23, 25 (“The cult undoubtedly obtained the necessary laboratory equipment and pulled the technical expertise from an ordinary laboratory technician for suitable production of a biological weapon.”). 170. Id. at 26. 171. Id. at 27. 172. Id. 173. See generally CFSAN, supra note 27. In 1984, a religious cult contaminated salad bars with S. tyhimurium to disrupt an election, causing 751 cases of the disease and 45hospitalizations; in 1996, a laboratory worker infected coworkers’ food with Shigella dysenteria type 2 that made12 people ill; and in 2003, a supermarket employee poisoned 200 pounds of ground beef with an insecticide and, even though it was only sold in one store, 111 people fell ill, including approximately 40 children. Id. 174. Endres, supra note 14, at 406 (citing the Secretary of Agriculture’s comment that he is surprised that agriculture has not been the subject of a terrorist attack because it is so easy to do so). 175. CFSAN, supra note 27. 176. Id. 177. See Govern, supra note 5, at 229.

286

W. MICH. U. COOLEY LAW REVIEW

[Vol. 32:3

Bureau of Investigation (FBI) actively investigate terrorist threats to the U.S. food supply.178 The threat to the U.S. food supply is more than theoretical. When U.S. troops entered the caves and safe houses of members of the al Qaeda terrorist network in Afghanistan in the months following the September 11th attacks, they found hundreds of pages of U.S. agricultural documents that had been translated into Arabic. A significant part of the group’s training manual is reportedly devoted to agricultural terrorism—specifically, the destruction of crops, livestock, and food processing operations.179 What is remarkable about agroterrorism is that while “[t]he consequences of any biological attack against the U.S. food and agriculture industries could be devastating,”180 the government has no effective way to identify an attack and attribute it to a particular perpetrator.181 Bioterrorism’s effects “can also be symptomatic of a natural epidemic or disease outbreak,” which makes determining whether the effects were deliberate the most difficult aspect of dealing with any type of biological attack.182 While the characterization of any outbreak as intentional or unintentional implicates whether the country will respond, “as specified in its natural security and defense strategies,” that determination is not necessarily related to the outbreak’s impact.183 In the BSE example, the U.S. lost billions of dollars because of just one occurrence, although the disease was not introduced intentionally. In contrast, the 178. See also CFSAN, supra note 27. The CIA was investigating the possibility that one of al Qaeda’s leading experts in chemical and biological warfare was trying to poison food bound for British troops, which came about because it was discovered that a militant in London was working for a catering company and ricin had been found in his apartment. The FBI issued a bulletin in September 2003, warning that terrorists might use nicotine and solanine to poison food or water supplies. The alert stemmed from the terrorist manuals and documents recovered in Afghanistan that referred to both substances as poisons. Id. 179. Id. 180. Parker, supra note 154, at 53. 181. See ELIZABETH L. STONE BAHR, BIOLOGICAL WEAPONS ATTRIBUTION: A PRIMER 2 (2007) (unpublished M.A. thesis, Naval Postgraduate School), http://calhoun.nps.edu/bitstream/handle/10945/3483/07Jun_Bahr.pdf?sequence=1. 182. Id. at 3. 183. Id. at 7.

2015]

FALSE PROMISES OF FOOD SAFETY

287

salmonella outbreak in Wasco County, Oregon had a smaller financial impact, but took time for the government to re-classify the outbreak from unintentional food poisoning to an intentional bioterror attack attributed to the Rajneeshee cult.184 President George W. Bush issued 21 Homeland Security Presidential Directives (HSPDs) in the wake of September 11, 2001, many of which addressed food security either directly or indirectly.185 HSPD-5 tasks the DHS with “establishing a National Incident Management System that provides for a standardized coordinated response to a national incident.”186 HSPD-5 also requires DHS to establish a National Incident Management System that coordinates federal agencies, as well as the different levels of government (from local to state to federal), and non-governmental and private agencies so that everyone knows who they should contact and what they should do in the event of any national disaster regardless of the scale or type.187 The National Response Framework (NRF) addresses food-supply security in the wake of a national crisis, and the USDA’s Food and Nutrition Service is responsible for all aspects of nutritional assistance within the United States.188 The USDA mandate is found within one of the NRF’s Emergency Support Function (ESF) Annexes (ESF #11), which exist to “provide the structure for coordinating Federal interagency support for a Federal response to an incident.”189 ESF #11 also covers animal and plant disease and pest response in addition to the general task of food safety and security.190 The food-specific mandates of ESF #11 play a supporting role in other parts of the mandate, including ESF #8 (Public Health and Medical Services Annex) and ESF #10 (Oil and Hazardous Materials Response Annex).191 Part of the mandate of ESF #10 is to provide “assistance in the disposition of livestock and poultry contaminated with hazardous materials.” This mandate is redundant because ESF 184. 185. 186. 187.

See Hype or Horror, supra note 129. See Endres, supra note 14, at 426; see also HSPDs, supra note 152. Endres, supra note 14, at 406. FED. EMERGENCY MGMT. ADMIN., NATIONAL INCIDENT MANAGEMENT SYSTEM (2008), http://www.fema.gov/pdf/emergency/nims/NIMS_brochure.pdf. 188. See Endres, supra note 14, at 427. 189. FED. EMERGENCY MGMT. ADMIN., EMERGENCY SUPPORT FUNCTION ANNEXES: INTRODUCTION i (2008), http://www.fema.gov/pdf/emergency/nrf/nrfesf-all.pdf. 190. Id. at ii. 191. Id. at 8-6, 10-11.

288

W. MICH. U. COOLEY LAW REVIEW

[Vol. 32:3

#11 tasks the USDA as “ESF Coordinator” in the Agriculture and Natural Resources Annex with the primary lead in the disposition of disease-contaminated livestock and poultry.192 ESF #11 also has the primary function of ensuring the safety and security of the commercial food supply through the USDA’s Food Safety and Inspection Service: [ESF # 11] [i]ncludes the execution of routine food safety inspections and other services to ensure the safety of food products that enter commerce. This includes the inspection and verification of food safety aspects of slaughter and processing plants, products in distribution and retail sites, and import facilities at ports of entry; laboratory analysis of food samples; control of products suspected to be adulterated; plant closures; foodborne disease surveillance; and field investigations.193 That statement alone has pretty broad implications for the USDA’s responsibilities to keep our food safe without even taking into consideration the other “supporting” roles the USDA has been given in the other ESF annexes. The USDA is granted much-needed help from other federal agencies, however, because “[i]f a terrorist act is suspected in connection with an outbreak, the USDA . . . notifies the Weapons of Mass Destruction Unit of the Department of Justice (DOJ)/Federal Bureau of Investigation (FBI).”194 Food safety and security mandates are broad for a reason. After delving into the risk analysis for “food terrorism,” the “FDA has concluded that there is a high likelihood, over the course of a year, that a significant number of people will be affected by an act of food terrorism or by an incident of unintentional food contamination that results in serious foodborne illness.”195 What renders agroterrorism (or, as the Centers for Food Safety and Applied Nutrition (CFSAN) puts it, “food terrorism”196) so terrifying is secrecy197 and its relative 192. Id. at 10-11. 193. Id. at 11-12. 194. Id. at 11-18 (“The USDA . . . , other appropriate federal law enforcement agencies, and the DOJ/FBI conduct a joint criminal investigation.”). 195. CFSAN, supra note 27. 196. See id. 197. See Govern, supra note 5, at 236.

2015]

FALSE PROMISES OF FOOD SAFETY

289

ease to execute;198 after all, “virtually all bioterrorists seek to keep their use of biological agents a secret, because in many instances success depended on the lack of appreciation that a disease outbreak was intentional.”199 Furthermore, infectious disease experts at the CDC have concluded that sabotaging the food and water supply in the United States is the “easiest means of biological attack largely because such attacks (albeit on a small scale) have been successful in the past.”200 VI.

CONCLUSION

The United States can act to increase security in the meat industry immediately, as well as begin a process that is necessary for the health and safety of the American public. The bulk of the responsibility will fall upon the USDA to make sure our meat is safe because it holds jurisdiction over the meat and poultry industry.201 The USDA must ensure, without exception, that its alreadyexisting policy is being enforced everywhere. There is no reason for modern meat regulations to “provide a false sense of security for consumers because they are neither consistently followed nor enforced.”202 Congress and federal agencies enact regulations to answer public concerns and protect citizen safety. The USDA cannot play fast and loose, slackly enforcing rules that affect meat sold to consumers in supermarkets and used in the National School Lunch program.203 The status quo in our slaughterhouses cannot be that “inspectors are often disciplined for stopping the line to address HMSA violations, and some are unaware that the HMSA even exists.”204 While the meat industry’s clear purpose is to make money, the USDA must balance the profit motive, reminding the industry that some lost productivity to investigate the slaughterhouse is a small concession to prevent an outbreak that mirrors the U.K’s BSE nightmare.205 The federal government receives numerous reports that al Qaeda is planning the demise of the agricultural sector,206 and the 198. 199. 200. 201. 202. 203. 204. 205. 206.

See CFSAN, supra note 27. Govern, supra note 5, 236 n.59. CFSAN, supra note 27. Endres, supra note 14, at 433. Repphun, supra note 4, at 186. See McCabe, supra note 7, at 152. Repphun, supra note 4, at 192–93. See CFSAN, supra note 27. See id.

290

W. MICH. U. COOLEY LAW REVIEW

[Vol. 32:3

CDC207 and CFSAN208 are warning Americans that their food is simply not safe from harm. The USDA must stop cowing to meat industry interests alone. The federal government must also address the factory-farming process, even though these steps involve changes to current policy. The USDA should not be kept outside the doors of the factory farms. The USDA’s FSIS “derives its regulatory authority from the Federal Meat Inspection Act (FMIA), the Poultry Products Inspection Act (PPIA), and the Egg Products Inspection Act (EPIA),” none of which addresses farm-level operations.209 Congress must amend those statutes to fill the current void of on-farm regulations, create national uniformity in the quality of the meat being produced at federal slaughterhouses, and shield the federal government from preemption issues with state governments.210 Furthermore, the USDA is clearly the best agency to oversee on-farm practices because its mission already encompasses food, food security, agriculture and the assistance of rural communities.211 The concept of expanding the USDA’s jurisdiction to on-farm activities also fits into the mandates outlined in Homeland Security Presidential Directives212 with the creation of the NRF and the NRF’s ESF #11.213 If the USDA is required to take the lead in the disposition of disease-contaminated livestock and poultry,214 that disposition should not pertain only to processing plants (where the USDA’s regulation is currently restricted) but also to farms where the animals came from. With the field investigatory authority granted in ESF #11,215 the courts cannot assume that the NRF meant to hobble the lead investigatory agency in the field of food security from running down every lead— including those that lead to the farm. The authority for farm-level inspections should not be limited to reactionary investigation, but must expand to include inspection of daily operations in order for the government to ensure that the meat entering the food industry came 207. See generally CDC, supra note 72. 208. CFSAN, supra note 27. 209. Stathopoulos, supra note 17, at 435, 436. 210. See generally Goad, supra note 75. 211. See About the U.S. Department of Agriculture, U.S. DEP’T AGRIC., http://www.usda.gov/wps/portal/usda/usdahome?navtype=MA&navid=ABOUT_U SDA (last visited Feb. 7, 2016). 212. See HSPDs, supra note 152. 213. See FED. EMERGENCY MGMT. ADMIN., supra note 189, at ii. 214. Id. at 10-11. 215. Id. at 11-12.

2015]

FALSE PROMISES OF FOOD SAFETY

291

from a safe and sanitary facility. Such authority would encompass not only the sanitation concerns of the factory farms, but would also address the animal feed issues and eviscerate the loopholes that leave the American public open to harm. While the issue of agroterrorism is a huge concern, the United States has a long way to go to adequately protect its food supply. There are already a number of good regulations in place that simply need to be enforced. Even though September 11, 2001 brought with it immense government restructuring and a new way of thinking about our security, new programs will only work if the foundation of existing programs are functioning properly. In the food industry, while there are changes that need to be made, enforcement is critical; otherwise, new regulations are nothing more than political gamesmanship to lull the country into believing it is safe. Americans deserve much more than that false promise.

BEYOND RATIONALITY: USING INTEGRAL THEORY TO UNDERSTAND THE EVOLUTION OF LAW AND LEGAL SYSTEMS TIMOTHY D. BATDORF* ABSTRACT We are at a unique moment in human history. An incredible amount of information is widely available and shared instantaneously on a global basis. All of human knowledge is open for inspection and evaluation. We now face an important question: how do we integrate all of the world’s knowledge into a meaningful and comprehensive whole? For the past several decades, philosopher and writer Ken Wilber has been working on exactly that question using a methodology he calls integral methodological pluralism. Wilber’s methodology is easily summarized: everybody is right. In other words, no human mind is capable of 100% error. Everybody—every society, culture, religion, science, and field of study—has important, but partial, truths to offer. The knowledge quest, therefore, is not about who is “right” and who is “wrong” but about finding ways to fit all of the various truths together. Wilber’s groundbreaking approach has revealed some interesting truths about human development that, in turn, have significant implications for the law. Nothing in the law exists without the intervention of the human mind. Every law, regulation, and statute—and all of their subsequent * Timothy D. Batdorf, LL.M. in Taxation, University of Miami School of Law (1998), J.D., DePaul University College of Law (1994), B.A. in Political Science, Albion College (1991). The author is a member of the State Bar of Michigan and practices elder law, estate planning, probate and trust administration, and facilitative mediation in Berkley, Michigan. He is a past president of the International Alliance of Holistic Lawyers and has written a book called The Lawyer’s Guide to Being Human and several articles for a variety of legal publications. He is a past speaker for the Institute of Continuing Legal Education at the University of Michigan and the American Law Institute. The author is an avid student of Integral Theory and is currently writing a book that applies integral theory to the law.

294

THOMAS M. COOLEY LAW REVIEW

[Vol. 32:3

interpretationsâ&#x20AC;&#x201D;and every legal theory, legal procedure, and legal system, are a direct result of human consciousness. As human consciousness evolves, so, too, does the law. Law reflects the underlying consciousness that creates it. Because law is a construct of human consciousness, it is incumbent upon us to understand how human consciousness develops and its implications for the law.

2015]

INTEGRAL THEORY

295

TABLE OF CONTENTS

I.INTRODUCTION II.INTEGRAL THEORY A. STAGES OF DEVELOPMENT i. Stages One to Six: From Archaic to Pluralistic ii. The Second Tier: Beyond the First Six Stages of Development iii. Response to Criticism iv. Stage Theory Explained B. LINES OF DEVELOPMENT C. QUADRANTS i. Quadrants and Tetra-Evolution ii. Tetra-Evolution: A Historical Example III.LAW AS SCIENCE A. REDUCTIONISM B. LIMITATIONS OF SCIENCE AND REDUCTIONISM IV.BEYOND REASON A. GREEN LEGAL PROCESS B. COLLABORATIVE LAW C. THE SHARING ECONOMY D. GREEN CONTRACTS E. Green Transactional Law i. Intellectual Property ii. Employment Law iii. Real Estate iv. Estate Planning v. Business Planning F. THE INFORMATION AGE G. THE FUTURE OF GREEN LAW V.INTEGRAL LAW A. INTEGRAL LAW: A PRACTICAL EXAMPLE B. TODAY’S INTEGRAL LAWYERS C. AN INTEGRAL LEGAL SYSTEM VI.CONCLUSION

296 297 297 298 302 303 304 306 311 312 315 317 320 323 325 328 332 333 334 336 336 336 337 337 337 338 339 340 343 345 348 353

296

THOMAS M. COOLEY LAW REVIEW I.

[Vol. 32:3

INTRODUCTION

One of the great contributions of Post-Modernism is the understanding that individual beliefs and perceptions are inherently shaped by worldviews. In other words, there is not one monolithic, pre-established, preordained, and “correct” view of reality. Quoting philosopher and writer Ken Wilber: [A]ll of our individual perceptions are, to some extent, embedded in particular worldviews. Within those worldviews, we still possess abundant freedom of choice; but worldviews generally constrain what we will even consider choosing. We moderns do not, for example, often get out of bed with the thought, “Time to kill the bear.” Each worldview, with its distinctive characteristics, stamps itself all over those born within it, and most individuals do not know, or even suspect, that their perceptions are occurring within the horizons of a given and rather specific worldview. Each worldview, operating for the most part collectively and unconsciously, simply presents the world as if it were the case. Few question the worldview in which they find themselves, just as a fish is unaware it is wet.1 Over the course of the past hundred years, scientific research has confirmed that human consciousness is unfolding in stages and further, that the rational, scientific worldview that forms the basis for our modern legal system is not the pinnacle of human evolution.2 In fact, several stages exist beyond the rational stage, which means our modern legal system—with its emphasis on objective evidence, rationality, and empiricism—is evolving towards a stage beyond rationality. Human consciousness (and the legal system which reflects that consciousness) is evolving towards a post-modern, postconventional, and post-rational stage.

1. KEN WILBER, ONE TASTE: DAILY REFLECTIONS ON INTEGRAL SPIRITUALITY 244–45 (2000). 2. See KEN WILBER, INTEGRAL PSYCHOLOGY: CONSCIOUSNESS, SPIRIT, PSYCHOLOGY, THERAPY 197–217 (2000) (referencing the work of Abraham Maslow, Jean Piaget, Jean Gebser, Jane Loevinger, Lawrence Kohlberg, Carol Gilligan, Clare Graves, Jenny Wade, Michael Commons, Sri Aurobindo, Susanne Cook-Greuter, and Jürgen Habermas, among dozens of others).

2015]

INTEGRAL THEORY

297

To understand how human consciousness is evolving, and its implications for the law, we must first discuss Wilber’s Integral Theory. II.

INTEGRAL THEORY

Integral Theory seeks to integrate all of human knowledge into a new and emergent worldview that accommodates all previous worldviews, including those that have historically been at odds with each other such as: science and religion; Eastern and Western philosophies; and pre-modern, modern and post-modern worldviews. This article introduces Integral Theory and then uses that theory to reveal the correlation between the evolution of human consciousness and the evolution of law and legal systems. In that regard, this article focuses on three core concepts of Integral Theory: stages of development, lines of development, and quadrants.3 A.

STAGES OF DEVELOPMENT

Many people equate the term “evolution” with biological evolution, but evolution is not just a biological affair. Research has shown that human consciousness evolves too. For instance, anyone who has ever studied psychology knows the name Abraham Maslow, the American psychologist famous for his hierarchy-of-needs theory. Maslow showed that, as individuals develop and mature, they move through various stages of needs, from satisfying their most basic survival needs (eating) to satisfying their highest needs (selftranscendence). A fundamental premise of Maslow’s theory is that higher stage needs do not become pressing until lower stage needs are met. Of course, satisfying the needs of an earlier stage does not mean they disappear (we still need to eat), but simply that they have been satisfied to the extent that other, higher needs can now be expressed. Abraham Maslow may be the most famous of the developmental stage theorists, but literally dozens of others have shaped and defined their own particular fields including Michael Commons, F.A. 3. We will not be focusing on “states” or “types,” which are also key concepts of Integral Theory. An in-depth survey of Integral Theory is beyond the scope of this article. For those who wish to gain a thorough understanding of Integral Theory, please refer to Wilber’s works, especially The Integral Vision (for an introduction to the theory) and Sex, Ecology and Spirituality: The Spirit of Evolution (for comprehensive footnotes on Wilber’s sources).

298

THOMAS M. COOLEY LAW REVIEW

[Vol. 32:3

Richards, Jean Piaget, and Sri Aurobindo (cognitive development); Clare Graves and Jenny Wade (values); Robert Kegan (orders of consciousness); Jane Loevinger and Susanne Cook-Greuter (selfidentity); Lawrence Kohlberg and Carol Gilligan (moral development); and Jean Gebser (worldviews). Although many people have studied human development, we do not need to rely upon their research to confirm development for ourselves. Dramatic and obvious changes occur from early childhood into adulthood. We learn to walk and talk, then to take care of our basic needs, and gradually, if all goes well, we continue to grow, becoming less selfabsorbed and more selfless throughout our adult lives. i. Stages One to Six: From Archaic to Pluralistic While we can understand human development through the framework of our own subjective experience, scientific research has confirmed that much larger patterns are at work. Developmental scientists have confirmed that individuals, cultures, and societies evolve in the following general developmental stages. a. Stage One: Archaic Roughly 100,000 years ago, with the initial development of the neocortex, symbols began to emerge in human consciousness. At this stage, survival is of the utmost importance. A distinct and separate sense of self has not yet emerged. This is the stage of the first human societies (survival bands and early tribes) and is present today in infants and elderly patients with advanced dementia.4 b. Stage Two: Magic With the further development of the neocortex allowing more complexity of thought, a new stage of human consciousness emerged. This stage began roughly 50,000 years ago and is significant because it allowed for the emergence of concepts in the human mind. Thinking at this level is magical and animistic with beliefs in spirits, curses, and spells that determine events. Social structures involve kinship, ethnic tribes and villages where family 4. See JEAN GEBSER, THE EVER-PRESENT ORIGIN 43–45 (1985) (referring to this stage as the archaic structure); THE ESSENTIAL PIAGET: AN INTERPRETIVE REFERENCE AND GUIDE 216–19 (Howard E. Gruber & J. Jacques Vonèche, eds., Jason Aronson, Inc., 1995) (referring to this stage as sensorimotor); KEN WILBER, SEX, ECOLOGY AND SPIRITUALITY 218–24 (Shambhala, 2nd ed. 2000); DON EDWARD BECK & CHRISTOPHER C. COWAN, SPIRAL DYNAMICS MASTERING VALUES, LEADERSHIP, AND CHANGE 197–202 (1996) (referring to this stage as the Beige or Survival/Sense vMEME).

2015]

INTEGRAL THEORY

299

relations and a shared bond with the ancestors form the glue that holds society together. From a legal standpoint, customs and traditions created order (such that it was), and customs largely depended upon the particular tribe or village. Law was not a distinct and separate entity. No written rules or system of actual laws yet existed. In modern times, this stage first emerges in children between the ages of one and three, although it is still seen in some adult populations (remote tribal villages).5 c. Stage Three: Egocentric Egocentric consciousness first emerged roughly 10,000 years ago. This is the first stage in human development where a separate individual self emerges, which is distinct from the larger group or tribe. Power and domination plays a significant role at this stage, as the paradigm is “survival of the fittest.” At this stage, it is important to maintain respect, defend reputation, and fight for what you want. Impulses are immediately gratified, and consequences are of little concern. Historically, this stage’s social structures include feudal empires where powerful lords offer protection in exchange for obedience and labor. In modern times, this stage first emerges in children between the ages of three and six and is still seen in the adult population (biker gangs and inner city gangs).6 d. Stage Four: Mythic The mythic stage of development began roughly 5,000 years ago. This is the first stage where societal rules and roles become significant, and where concrete-operational thinking first emerges in human consciousness.7 At this stage, it is important to sacrifice one’s self to God’s will or to a higher purpose. The mythic stage seeks to 5. See GEBSER, supra note 4 at 45–60 (referring to this stage as the magic structure); THE ESSENTIAL PIAGET, supra note 4 at 457–58 (referring to this stage as preconceptual or preoperational); WILBER, supra note 4 at 224–27; BECK & COWAN, supra note 4 at 203–14 (referring to this stage as the Purple or KinSpirits v MEME). 6. See WILBER, supra note 4 at 227–28 (referring to this stage as late preoperational and magic-mythic); BECK & COWAN, supra note 4 at 215–28 (referring to this stage as the Red or PowerGods vMEME); 1 LAWRENCE KOHLBERG, THE PHILOSOPHY OF MORAL DEVELOPMENT: MORAL STAGES AND THE IDEA OF JUSTICE: ESSAYS ON MORAL DEVELOPMENT 17 (1981) (referring to this stage as the preconventional level). 7. See WILBER, supra note 4 at 232–33; THE ESSENTIAL PIAGET, supra note 4 at 458–61. For example, concrete-operational thinking is where a person interprets a text literally and is unable to understand the deeper, metaphorical or hidden meaning.

300

THOMAS M. COOLEY LAW REVIEW

[Vol. 32:3

bring stability and order by enforcing principles of righteous living and controlling impulsivity through guilt. “Good” versus “evil” comes fully into play. Rules and laws more fully emerge, but “law” as a separate and distinct entity is largely unknown. Morals, hygiene, and food are all jumbled together as “law.” This stage is the foundation of ancient nations and is where origination myths are used to consolidate several smaller tribes into one nation of “true believers” or “chosen people.” This stage first emerges in children between the ages of seven and eight and still represents a large percentage of the adult population on the planet today (those “hardcore believers” and “fundamentalists” whether religious or not).8 e. Stage Five: Rational The next stage is the rational stage, which first appeared on a large-scale basis approximately 300 years ago with the Age of Enlightenment. At this stage, formal-operational thinking (reason) first emerged in human consciousness.9 The rational stage introduced the scientific method and the belief that technology could conquer Mother Nature (think Industrial Revolution). Individuals at this stage strive for autonomy and independence by seeking the “good life” through material abundance, as status and wealth become primary drivers for behavior. The rational worldview can best be summarized as: “[t]he world is a rational and well-oiled machine with natural laws that can be learned, mastered, and manipulated for one’s own purposes . . . the laws of science rule politics, the economy, and human events.”10 Nowadays, if development goes well, the rational stage first emerges in children between the ages of nine and fourteen.

8. See GEBSER, supra note 4 at 61–73 (referring to this stage as the mythic structure); THE ESSENTIAL PIAGET, supra note 4 at 458–61 (referring to this as concrete-operations); WILBER, supra note 4 at 232–35; BECK & COWAN, supra note 4 at 229–43 (referring to this as the Blue or TruthForce vMEME); KOHLBERG, supra note 6 at 18 (referring to this stage as the conventional level). 9. See WILBER, Supra note 4 at 241; THE ESSENTIAL PIAGET, supra note 4 at 461–63. Formal-operational thought is characterized by the ability to operate on thoughts (not just concrete, physical reality) in which reason produces a more abstract understanding of mathematics, logic, and philosophy. A formal-operational thinker can tell you the logic behind how something works, or develop a mental plan or strategy for accomplishing a task, rather than actually having to conduct action in the concrete, physical world to see how to accomplish the task. 10. WILBER, supra note 2, at 50.

2015]

INTEGRAL THEORY

301

A substantial percentage of the adult population is currently operating at this stage of development (“corporate America”).11 Perhaps most significantly, at this rational stage, the concept of “law” is fully differentiated as a separate and distinct entity apart from morals and religion (the separation of church and state). William Blackstone’s Commentaries on the Laws of England, in which Blackstone attempts to rationally explain English common law, is one example of the early emergence of rationality in law. A more modern example is the Hand Formula (cost-benefit analysis) that focuses on the “objectively reasonable person.”12 Our current legal system, with its emphasis on precedent, reason, objective evidence, and the production of billable hours is predominantly situated at this rational, materialistic stage. f. Stage Six: Pluralistic At the pluralistic stage, pure rationality is questioned as too limiting—a straightjacket that reduces the whole of reality into abstract theory. This stage understands that there are too many variables to make everything logically explainable, and thus it rejects a “mono-rational” approach as too simplistic, formalistic, and superficial. The pluralistic stage seeks to deconstruct basic assumptions, and first emerged on a widespread basis approximately fifty years ago. At this stage of development (also called the postmodern and relativistic stage) understanding multiple perspectives becomes critically important. For example, those individuals who were willing to express their alternative viewpoints in the 1950s and 1960s spawned the civil-rights movement, the anti-war protests, environmentalism, the women’s movement, the gay-rights movement, and more recently, the multiculturalism and diversity movements.13 11. See GEBSER, supra note 4 at 73–102 (Gebser refers to this stage as the mental structure); THE ESSENTIAL PIAGET, supra note 4 at 461–63 (referring to this stage as formal-operations); WILBER, supra note 4 at 240–44; BECK & COWAN, supra note 4 at 244–59 (referring to this as the Orange MEME or StriveDrive v MEME); KOHLBERG, supra note 6 at 18 (Kohlberg refers to this as stage five or the social contract orientation of the post-conventional, autonomous or principled level). 12. United States v. Carroll Towing Co., 159 F.2d 169, 174 (2d Cir. 1947). 13. See GEBSER, supra note 4 at 97–102, 434 (referring to this stage as the “integral structure,” which can create some confusion because it is different than what Wilber calls the “integral stage”); WILBER, supra note 2 at 158–73; BECK & COWAN, supra note 4 at 260–73 (referring to this as the Green or HumanBond v MEME).

302

THOMAS M. COOLEY LAW REVIEW

[Vol. 32:3

The pluralistic stage emphasizes relationships and community. Organizational decision-making is generally made by consensus, with all opinions shared and equally valued. All forms of hierarchy are disdained. This stage seeks to refresh spirituality, not in the dogmatic or rigid way of the mythic stage, but with an emphasis on personal growth and mutual understanding. If development goes well, this stage first emerges in individuals between the ages of fifteen and twenty-one. This stage can be seen in the adult population today (sometimes labeled “cultural creatives”).14 The critical-legalstudies movement is one example of the early emergence of the pluralistic stage in law. The influence of this stage can now be seen in holistic law, collaborative law, restorative justice, sharing law, and therapeutic jurisprudence. ii. The Second Tier: Beyond the First Six Stages of Development It is important to note that, according to some developmental theorists and researchers (e.g., Clare Graves and Ken Wilber) the six stages discussed above (archaic, magic, egocentric, mythic, rational, pluralistic) only constitute the first-tier of human consciousness. Wilber, for example, hypothesizes at least twelve different stages with three distinct tiers. Put into perspective, the modern U.S. legal system, which is predominantly situated at the rational stage, is located at the fifth of twelve possible stages on Wilber’s scale. Even the pluralistic stage, which is currently the “cutting edge” of law in the United States, is only situated at the sixth of twelve possible stages!15 Nevertheless, according to these theorists, entering the second-tier represents a momentous leap in human consciousness: As [the second-tier] peaks, scales drop from our eyes enabling us to see, for the first time, the legitimacy of all of the human systems awakened to date. They are forms of human existence that have a right to be. The systems are seen as dynamic forces that, when

14. See PAUL H. RAY & SHERRY RUTH ANDERSON, THE CULTURAL CREATIVES: HOW 50 MILLION PEOPLE ARE CHANGING THE WORLD 4 (2000). 15. See BECK & COWAN, supra note 4 at 275, 287 (describing the Systemic v MEME and the Holistic vMEME); SRI AUROBINDO, THE LIFE DIVINE 974 (Sri Aurobindo Ashram Trust, 2005) (describing the stages of illumined mind, intuitive mind, overmind, and supermind).

2015]

INTEGRAL THEORY

303

healthy, contribute to the overall viability of the Spiral and, as a result, to the continuation of life itself.16 Stated another way, at the first-tier stages, everyone believes that their particular worldview is the “correct” view. Environmentalists (stage six) think capitalists (stage five) are destroying the planet. Capitalists think environmentalists are too mushy and idealistic. Fundamentalists (stage four) think environmentalists and capitalists are both misguided and need salvation. An individual operating at second-tier consciousness sees that all of the worldviews expressed at the earlier, first-tier stages are important and necessary, but also partial. At times it is necessary to access egocentric power (stage three), or mythic order (stage four), or rationality’s drive (stage five), or pluralistic sensitivity (stage six). Everyone is “right,” but only partially right. When the second-tier fully emerges, an individual is capable of understanding and integrating the various first-tier stages into a meaningful and systematic whole. The emergence of secondtier consciousness has huge implications for the law and for legal systems, which this article discusses in section five. iii. Response to Criticism One criticism of developmental stage theory is that it is too linear. The criticism objects to oversimplification, arguing that: “human beings are far too complex to be easily pigeonholed into these sorts of categories” and no theory can predict how a person will think, feel, and act at any given time.17 While this criticism has validity, it fails to fully understand how developmental stage theory works. For instance, rather than think of stages in a strictly linear fashion, think of stages as “waves” or “streams.” In other words, developmental stage theory is more analogous to quantum physics in that it focuses on probabilities and tendencies, not predetermined givens. An individual human being, at any given moment in time, is more like a fluctuating admixture, swirl, mesh or stream of potential thoughts, feelings, and actions. While stage theory cannot precisely predict how any particular individual will think, feel, or act at any given moment in time, it can predict tendencies of behavior. For instance, a person at a certain stage of development is more likely to respond in 16. BECK & COWAN, supra note 4 at 276. 17. Corey DeVos, Culture, Climate, and Consciousness: Growing Green, INTEGRAL LIFE (April 12, 2011), https://www.integrallife.com/integral-post/ growing-green.

304

THOMAS M. COOLEY LAW REVIEW

[Vol. 32:3

ways that are consistent with that stage. However, depending on the circumstances, they might also respond in ways that are below (regression) or beyond (peak experience) their stage. iv. Stage Theory Explained Developmental stage theory has shown that the general trend in human development is towards the adoption of a broader and deeper perspective. By studying large numbers of people over an extended time period, scientists have observed changes in mental patterns as human beings develop.18 These scientists, who have studied a wide variety of different aspects of human development, have all drawn very similar conclusions. What they have concluded is that human development gives rise to a decrease in egocentrism and an increase in care and compassion. As an individual develops, they move from focusing on “me” to “we” to “all of us”; or, stated another way, from “egocentric” to “ethnocentric” to “world-centric”; or, yet another way, from “pre-conventional” to “conventional” to “postconventional.” The work of the late American psychologist and Harvard professor Lawrence Kohlberg is an excellent example of how developmental stage research has been conducted. Kohlberg discussed moral development in terms of three major stages: (i) preconventional (egocentric), (ii) conventional-conformist (ethnocentric), and (iii) post-conventional (world-centric).19 In conducting his research, Kohlberg posed the following type of moral dilemma: “A man’s wife has a terminal illness; the local drugstore has a medicine that will cure her; the man can’t afford it; does he have the right to steal it?”20 Based on interviews with dozens of people over the course of two decades, Kohlberg found that there were basically three types of answers to this question: yes; no; and yes, depending.21 Regardless of the answer, Kohlberg always probed further to discover why the participant responded in the way that they did. Kohlberg discovered the typical underlying rationale of the person who answered “yes” sounded something like: “Because what’s right is what I say is right. If I want to steal it, I’ll steal 18. See WILBER, supra note 2, at 38-39. 19. KEN WILBER, THE FOURTH TURNING: IMAGINING INTEGRAL BUDDHISM 20 (2014). 20. Id. 21. Id.

THE

EVOLUTION

OF AN

2015]

INTEGRAL THEORY

305

it . . . .”22 This type of response is very egocentric and self-centered, or what Kohlberg labeled as “pre-conventional.”23 Kohlberg found the typical rationale of the person who answered “no” was explained as: “Well, that would be against the law. Society tells me that I can’t steal, so I would never do something like that, that would be wrong.”24 This type of response is very group-centered and ethnocentric, or what Kohlberg labeled as “conventional.” Finally, Kohlberg identified the typical rationale of the person who answered “yes, depending” as: “Well, life is worth more than [the cost of this medicine], so in this case, yes, of course I’d steal it to save a life.”25 This type of response is very highly principled, universally oriented, and world-centric, or what Kohlberg labeled as “post-conventional.”26 Kohlberg’s study of moral development was longitudinal, posing the same question to the same people over a period of several years. Most significantly, Kohlberg found that, over time, “if a person ever switched stages, it was always in a higher direction, either from the first egocentric ‘Yes’ to ethnocentric ‘No,’ or from ethnocentric ‘No’ to the second, world-centric ‘Yes, [depending]’”27 In essence, Kohlberg discovered that, if a person’s answer ever changed, it moved in a specific direction or sequence and furthermore, these stages could not be altered, skipped, or reversed! Evidence from a wide variety of sources confirms that, as human beings evolve, they become less egocentric, more selfless, and are able to hold more perspectives in awareness.28 Additionally, everyone starts from scratch. Every human being starts from the earliest stage, and if all goes well, works their way up to the higher stages. Once an individual has attained a certain stage, they have permanent access to that stage because it has become a permanent structure in consciousness. As a simple example, once an individual learns to write, the capacity for writing becomes a fixed structure in consciousness and does not have to be re-learned every time that individual wishes to write. In addition, each stage transcends and 22. Id. 23. Id. 24. Id. 25. Id. 26. Id. Rosa Parks, Nelson Mandela, Mahatma Ghandi and Martin Luther King, Jr. are examples of people who operated at a post-conventional moral stage. 27. Id. at 20–21 (emphasis added). 28. See WILBER, supra note 2, at 44.

306

THOMAS M. COOLEY LAW REVIEW

[Vol. 32:3

includes the lower stages. Each stage is a fundamental ingredient of all subsequent stages, which is why a writer does not have to go back and re-learn every incremental step of the writing process whenever they wish to write. In sum, developmental stage theory offers useful guiding generalizations about human behavior and provides a solid framework for understanding the larger patterns of human development over time. To better understand stages of development and Integral Theory in general, it is also imperative to understand lines of development. B.

LINES OF DEVELOPMENT

In a rational culture—like the current legal culture in the United States—great emphasis has been placed on IQ, an individual’s “intelligence quotient.” Law firms, legal departments, and judges seek to hire “the best and the brightest,” those students who graduate at or near the top of their law school class. Cognitive development has been valued above all else. To a great extent, placing emphasis on high IQ makes sense. Intelligent attorneys are more likely to be successful, particularly in our current modern, rational legal system (stage five). At the same time, we often see limitations in this type of onedimensional thinking. For instance, highly intelligent lawyers can be emotionally immature (incapable of considering another’s feelings), or interpersonally challenged (not playing well with others), or morally underdeveloped (acting unscrupulously). Just because a lawyer is intellectually gifted does not mean that they will act maturely, or get along with their coworkers, or behave virtuously. In fact, an intellectually gifted lawyer who is morally underdeveloped can and often does wreak havoc within the work environment, or upon clients and the legal system. Even worse, because our modern, rational legal culture tends to emphasize high IQ above all else, we automatically assume that an intelligent lawyer will be highly proficient in most other areas, when, in fact, they may not be. A classic example is the highly intelligent lawyer who becomes managing partner but lacks the interpersonal skills necessary to successfully manage others.

2015]

INTEGRAL THEORY

307

In 1983, developmental psychologist and Harvard professor Howard Gardner introduced the concept of “multiple intelligences.”29 Building on this idea, Wilber introduced the concept of “lines of development” to demonstrate that not only do human beings have multiple intelligences beyond mere cognition (IQ), but these intelligences all develop in a similar developmental stage sequence. Thus, even though lines of development are distinct from each other, they all develop along the same basic stage sequence (different developmental lines, same basic developmental stages). To illustrate, Wilber created an ingenuously simple chart that integrates the work of various developmental researchers and theorists.

29. HOWARD GARDNER, FRAMES OF MIND: THE THEORY OF MULTIPLE INTELLIGENCES 9, 17 (1983). Prior to Gardner, it was assumed that intelligence was a single general capacity. Gardner was revolutionary in identifying seven distinct intelligences: (1) linguistic, (2) musical, (3) logical-mathematical, (4) spatial, (5) bodily-kinesthetic, (6) intrapersonal, and (7) interpersonal.

308

THOMAS M. COOLEY LAW REVIEW

Figure 1. Some Lines of Development.

[Vol. 32:3

2015]

INTEGRAL THEORY

309

310

THOMAS M. COOLEY LAW REVIEW

[Vol. 32:3

Figure 1 highlights six different lines of development: (1) needs, (2) worldviews, (3) cognitive, (4) values, (5) orders of consciousness, and (6) self-identity.30 Each line has been extensively studied by different developmental researchers. For example, Abraham Maslow based his life’s work on researching the “needs” line, while Jean Gebser focused on “worldviews,” and Jean Piaget devoted his efforts to the “cognitive” line. Each line represents a different human intelligence or capacity. The brilliance of Integral Theory is that it not only highlights the developmental sequence of each line, but it also takes a cross-paradigmatic approach and finds correlations among the various lines. Acknowledging the existence of various lines of development highlights the fact that no specific field of study is whole and complete within itself. For example, while Piaget’s research is absolutely brilliant in describing the cognitive line, it has much less to say about moral development. Focusing exclusively on any one line only partially describes human behavior because it does not cover the broad spectrum of human capacities. Also, by taking a cross-paradigmatic approach, we begin to see how different lines of development are independent and distinct from each other, yet they also interact and relate to each other. As one example, Gebser’s rational worldview stage correlates to Piaget’s formal-operational stage of cognitive development. According to Piaget, the formaloperational stage generally arises around the age of eleven when children begin to think in a more sophisticated and abstract manner and have the capacity for higher-order reasoning. Piaget’s formaloperational stage correlates to Gebser’s rational worldview, which incorporates abstract thinking, questioning, and analysis. In reality, IQ tells us very little about an individual’s moral development, or interpersonal development, or emotional development, or spiritual development. IQ is significant but is not all encompassing.31 According to Integral Theory, if we truly want a 30. KEN WILBER, THE INTEGRAL VISION: A VERY SHORT INTRODUCTION TO THE REVOLUTIONARY INTEGRAL APPROACH TO LIFE, GOD, THE UNIVERSE, AND EVERYTHING 112-113 (2007).Figure 1 is missing some significant lines of development such as the emotional, interpersonal, moral, spiritual, kinesthetic (somatic), and psychosexual lines. 31. ANDRE MARQUIS, THE INTEGRAL INTAKE: A GUIDE TO A COMPREHENSIVE IDIOGRAPHIC ASSESSMENT IN INTEGRAL PSYCHOTHERAPY AT 106 (2008) (stating “the cognitive line leads the other lines because cognition, broadly defined, constrains what one can be aware of”). Cognitive development is the most significant line of development as it is necessary but not sufficient for the

2015]

INTEGRAL THEORY

311

comprehensive understanding of an individual’s capacities, we must assess all relevant intelligences (lines of development) and not just cognition (IQ). In that regard, Integral Theory identifies over two dozen distinct lines but primarily emphasizes a select few: (1) cognitive, (2) moral, (3) emotional, (4) spiritual, and (5) interpersonal.32 Finally, on an individual basis, the overall average of the developmental stages of the various developmental lines is called the individual’s “center of gravity” or “average” consciousness. In practical terms, if we say that an individual is predominantly operating at a stage five (rational) center of gravity, we are simply saying that, if we average all of the stages of that individual’s significant lines of development, his or her center of gravity is stage five (rational)—a fuzzy calculation, to be sure.33 C.

QUADRANTS

The concept of “quadrants” helps us better understand the complex, multifaceted process of human evolution. As stated previously, evolution is not just a biological affair. Individual human consciousness evolves, and cultures and systems evolve too.34 Perhaps most significantly, they all evolve together, a concept Wilber calls “tetra-evolution.”35

development of all the other lines. It has been estimated that cognitive development is typically one-half stage ahead of the other lines. Id. 32. See WILBER, supra note 2, at 28. 33. One of the more frequently used assessments for determining an individual’s “center of gravity” is Susan Cook-Greuter’s Leadership Maturity Assessment Instrument. 34. JÜRGEN HABERMAS, COMMUNICATION AND THE EVOLUTION OF SOCIETY 98–99 (Thomas McCarthy trans., Beacon Press, 1979) (1976) (stating “cognitive developmental psychology has shown that in ontogenesis [the development of the individual] there are different stages of moral consciousness, stages that can be described in particular as preconventional, and post-conventional patterns of problem solving . . . . The same patterns turn up again in the social evolution of moral and legal representations”). University of Frankfurt philosophy professor and author Jürgen Habermas observed that the same structures of consciousness can be found in the individual self and its cultural setting—in the micro and macro branch of the evolution of human consciousness. Id. 35. Wilber, supra note 2 at 184.

312

TH HOMAS M. COOLEY C LA W REVIEW W

[Vol. 332:3

i. i Quadrants and Tetra-E Evolution drant chart that beautiffully illustraates Willber has creeated a quad tetra-ev volution. Wilber’s W charrt offers a ssimple but comprehenssive map off the evoluttion of: (i) individual human conssciousness, (ii) culture and worldv view, (iii) so ocial systemss and the ennvironment, aand (iv) thee human bod dy and brain.36

Figuree 2. Quadran nts Focused oon Human B Beings. e Figure F 2, abo ove, the firstt thing to nootice is that iit is In examining divided d into four quadrants: (i) the uppper-left quaadrant (the “I” quadran nt) addressees “Self and Consciouusness,” (ii) the lower--left quadran nt (the “Wee” quadrant)) addresses ““Culture annd Worldview w,” (iii) thee lower-righ ht quadrant (the “Its” quuadrant) adddresses “Soccial 36. The T “map” term minology suggests the chart’ss usefulness inn identifying whhere human beings b have beeen, where hu uman beings ccurrently are, aand where hum man beings might m be headed d—in a variety y of contexts.

2015]

INTEGRAL THEORY

313

System and Environment,” and (iv) the upper-right quadrant (the “It” quadrant) addresses “Brain and Organism.” These quadrants represent significant but different aspects of reality.37 The upper-left (UL) quadrant, or the “I” quadrant, addresses “Self and Consciousness,” which is the inside or inner-subjective experience of the individual human being. The UL quadrant is the domain of thoughts, feelings, and intuitions. The diagonal line that runs through the UL quadrant represents the various stages of inner development through which individual human beings progress, from instincts to magical thinking, to egocentrism to the mythic self, and so forth.38 The lower-left (LL) quadrant, or the “We” quadrant, addresses “Culture and Worldview,” which is the inside or inner-subjective aspects of human beings in relationship. The LL quadrant is the domain of the unwritten rules of relationships, social glue, and cultural values and worldviews. The diagonal line that runs through the LL quadrant represents the various stages of worldviews through which human cultures progress, from archaic to animistic-magical, to power gods to mythic order, etc.39 The lower-right (LR) quadrant, or the “Its” quadrant, addresses “Social System and Environment,” which is the outside or outerobjective (measurable and quantifiable) aspects of human beings in relationship and the human environment. The LR quadrant is the domain of social systems, bio-systems, political and legal systems, etc. The diagonal line that runs through the LR quadrant represents the various stages of growth through which human social systems evolve, from survival clans to ethnic tribes to feudal empires to early nations, etc.40 The upper-right (UR) quadrant, or the “It” quadrant, addresses “Brain and Organism,” which is the outside or outer-objective (measurable and quantifiable) aspects of the individual human being, like the mass of a human body, or body chemistry, or brain waves. The diagonal line that runs through the UR quadrant represents the various stages of biological and neurobiological evolution.41 37. Ken Wilber, Introduction to the Integral Approach (and the AQAL Map) 29 (2006) http://www.kenwilber.com/Writings/PDF/IntroductiontotheIntegral Approach_GENERAL_2005_NN.pdf. 38. Id. 39. Id. 40. Id. 41. Id.

314

THOMAS M. COOLEY LAW REVIEW

[Vol. 32:3

What is most fascinating is the correlation between the same stages in the different quadrants. For example, beginning with the UL quadrant, we notice that the fifth stage is labeled “achiever self,” which represents the rational, self-interested individual (the “modern man”). Moving counter-clockwise around Wilber’s quadrant chart, we notice that the corollary fifth stage in the LL quadrant is labeled “scientific-rational” and “modern.” This label represents the worldviews and cultures that emerge at the fifth stage in the LL quadrant. Stated another way, when enough individuals attain the fifth stage (“achiever self”) in the UL quadrant, they form “modern” cultures with a “scientific-rational” worldview in the LL quadrant. The modern, scientific-rational legal culture that has emerged over the past three hundred years is an example of this type of fifth stage culture. Continuing counter-clockwise around Wilber’s quadrant chart, we notice that the corollary fifth stage in the LR quadrant is labeled “industrial” and “corporate states.” Again, when there are a sufficient number of individuals who attain the fifth stage (“achiever-self”) in the UL quadrant, they form “modern” cultures with a “scientificrational” worldview in the LL quadrant. Together, they create an “industrial” environment and a “corporate state” social system in the objective world, or the LR quadrant. The modern, rational legal system that has emerged over the past three centuries is an example of this type of fifth stage system. Completing our analysis, we notice that the fifth stage in the UR quadrant is not clearly delineated. Wilber hypothesizes that physical, structural changes occur in the human brain in conjunction with the evolution of individual consciousness, cultures, and systems. Research on brain plasticity tends to support Wilber’s hypothesis.42 In this discussion, we have moved counter-clockwise around the quadrants chart (Figure 2), but tetra-evolution does not necessarily move in such an exact fashion, from individual consciousness (UL) to culture (LL) to systems (LR) to neurobiology (UR). Evolution is not a neat and tidy process. It is possible that a particular system (LR) impacts individual consciousness (UL), or a change in neurobiology (UR) impacts individual consciousness (UL), or a change in culture (LL) impacts neurobiology (UR), etc. Our example is not meant to suggest that evolution moves in only one direction. The non-linear 42. See NORMAN DOIDGE, M.D., THE BRAIN THAT CHANGES ITSELF 46-47, 293-294 (Viking, 2007).

2015]

INTEGRAL THEORY

315

way in which tetra-evolution unfolds suggests that a system impacts and influences the evolution of individual and collective consciousness, as well as the physical brain itself. An exchange is happening in all directions, at all times, between and among the quadrants, as they act upon and influence one another. ii. Tetra-Evolution: A Historical Example In 2002, Leon Humphreys, a 60-year-old, unemployed, auto mechanic, was fined for a minor traffic violation. Refusing to pay his ticket, Mr. Humphreys offered to engage in trial-by-combat with the ticketing officer using “samurai swords, Ghurka knives or heavy hammers.”43 The court rejected Mr. Humphrey’s offer and, not surprisingly, increased his fine. For his part, Mr. Humphreys was quoted as saying that combat was a perfectly reasonable way to resolve the legal matter adding, “it would have been a fight to the death.”44 While Mr. Humphrey’s stunt brought him a certain amount of notoriety, as well as a large fine, his proposal was rejected by the court. No modern court would ever resolve a legal matter with combat. Yet, for hundreds of years, trial-by-combat was a perfectly legitimate way to resolve conflict. Why is that so? Why is it now rejected? The short answer is that trial-by-combat reflected the consciousness of a “mythic” culture (stage four). Trial-by-combat was the best way Medieval Europeans could devise to resolve conflict given their particular worldview and level of consciousness. But in our modern, scientific-rational culture (stage five), we totally reject any legal process based upon mythic values. Reviewing Wilber’s quadrant chart (Figure 2) again, we notice that the fourth stage in the UL quadrant is labeled “mythic self,” which correlates with the fourth stage in the LL quadrant (“mythic order”) and the fourth stage in the LR quadrant (“early nations”). At this mythic stage of development, individuals believe that outcomes are determined by an All-Powerful-Other who keeps track of the rules, counts up “rights” and “wrongs,” and offers final judgment based upon obedience to the rules.

43. See David Sapstead, Court Refuses Trial by Combat, THE TELEGRAPH, Dec. 16, 2002, http://www.telegraph.co.uk/news/uknews/1416262/Court-refuses-trialby-combat.html. 44. Id.

316

THOMAS M. COOLEY LAW REVIEW

[Vol. 32:3

When there are a sufficient number of fourth stage mythic self individuals (UL), they form fourth stage mythic order cultures (LL), and these mythic order cultures create mythic-based legal systems (LR). Put simply, mythic individuals operating in a mythic culture create conflict resolution systems that reflect their mythic consciousness, where the Hand of God is said to intervene and determine whose cause is just, as in the ancient process of trial-bycombat. Interestingly, the trial-by-combat system was nearly as complex as our own modern, rational legal system. The trial-by-combat (or mythic) legal system had to address a wide variety of issues such as: (a) jurisdiction (property had to be worth a certain amount or combat was not warranted), (b) the use of champions (some localities allowed champions while others did not), (c) exemptions (women were excused from battle as were men over 60 years of age and younger men with certain disabilities), (d) sentencing (losing a battle meant excommunication, prison time, even death), and (e) appeals (how to prevent the loser’s family from seeking revenge against the winner).45 Trial-by-combat fueled an entire economic system. Fees were instituted for the privilege of having a duel and to record a duel. Fines were imposed if the duel was fought improperly, or if combatants fought in a prohibited location. In one case, a woman paid a fee to hinder a duel between her husband and her brother.46 Eventually, the trial-by-combat system was questioned as more people realized that the innocent were not always victorious in battle. Adjustments were made to try to level the playing field and help God identify the just from the unjust. In one case, a married couple in Germany engaged in trial-by-combat to resolve a marital dispute (a rare case in which a woman was involved in combat). To ensure fairness, the husband was placed in a tub buried up to his waist, and his left arm was tied to his side.47 He was given a short baton to use against his wife, who was armed with a paving-stone sewn into the end of one of her lengthened sleeves.48 The wife could move freely around the tub, looking for an “opportunity to deliver a crushing argument with the paving-stone.”49 By making these adjustments, Medieval Europeans recognized that trial-by-combat was oftentimes 45. 46. 47. 48. 49.

GEORGE NEILSON, TRIAL BY COMBAT (1891). Id. at 39–40. Id. at 8. Id. Id. at 9.

2015]

INTEGRAL THEORY

317

unfair, the better fighter usually won, and the better fighter was not always the “just” or “innocent” party. Put simply, the trial-by-combat system was beginning to be questioned by rationality. Eventually, trial-by-combat could not stand up to reason. In town after town, trial-by-combat disappeared while judges “found reasons, and made them, for disallowing a mode of trial in which they could have little faith, and which the people at large by no means loved.”50 Trial-by-combat officially ended in Spain in 1522 and in France in 1547.51 Although it fell out of favor much earlier, attempts to end trial-by-combat were unsuccessful in England until 1819.52 From a quadrant analysis, we see that, at the beginning of the 16th century, the idea that controversies should be settled by combat – to discover God’s will – began to be questioned. Individuals began moving from fourth stage “mythic” to fifth stage “achiever” or rational self (UL). As this transition took place, scientific-rational (stage five) cultures began to emerge from previous mythic order (stage four) cultures (LL). Over time, these emerging scientificrational (stage five) cultures developed scientific-rational (stage five) systems (LR), such as rational legal systems. Of course, this transition did not occur overnight. It took several centuries for society to fully embrace legal systems based upon science and reason. III.

LAW AS SCIENCE

Perhaps nowhere was the emergence of a legal system based upon science and reason more apparent than in William Blackstone’s Commentaries on the Laws of England, “the first important and the most influential systematic statement of the principles of the common law,” taking the haphazard English common law and making it “appear to be a coherent and rational system.”53 That the most ambitious rationalization of English law which had yet been undertaken, should have been written in the eighteenth century, is itself impressive 50. Id. at 72. 51. Id. at 17. Private duels still existed, but publicly sanctioned trials were abolished. 52. See id. at 72. 53. DANIEL J. BOORSTIN, THE MYSTERIOUS SCIENCE OF THE LAW: AN ESSAY ON BLACKSTONE’S COMMENTARIES 3–5 (University of Chicago Press ed. 1996) (1941).

318

THOMAS M. COOLEY LAW REVIEW

[Vol. 32:3

evidence of the power that the new scientific technique held over men’s imaginations. Blackstone was, in a sense, doing for the English legal system what Newton had done for the physical world, and what Locke had done for the world of the mind.54 In fact, Blackstone had to present law as a science because the Enlightenment’s paradigm demanded it. Science was gaining widespread acceptance as “Newton and Locke became symbols – and highly popular symbols – of the new science.”55 In fact: [In the 17th and 18th centuries, Newton’s] Principia was to be reprinted at least eighteen times, and to be presented to layman in countless popular books. . . . While Newton had been showing how men could methodize the physical world, Locke had demonstrated man’s ability to understand himself. . . . As the layman’s enthusiasm for the method of science was growing, philosophers were pushing forward, developing its latent possibilities, and applying the method to new fields.56 But law as science could not progress until there was “widespread emergence of Reason (formal operational), not just in a few individuals (which had often happened in the past), but as a basic organizing principle of society itself (which had never happened in the past) . . . .”57 During the Enlightenment, reason had become a basic organizing principle of society: “[T]he ‘Age of Reason’ simply means that access to the space of reason was now common enough that the ‘center of social gravity’ – the basic organizing principles of society – shifted from mythic-rational to rational structures (as evidenced legally, politically, institutionally) . . . .”58 In this new world, it became critically important for law to appear as a rational system. Blackstone’s genius was to inject rationality into the common law – “[b]ehind every legal term, as behind every rule of 54. Id. at 11–12. 55. Id. at 13–14. 56. Id. at 14–15. 57. WILBER, supra note 4, at 380. The ancient Roman legal system was one of the first known legal systems to incorporate rationality. However, collective consciousness had not yet evolved to sustain that system. 58. Id. at 385. Wilber uses the term “mythic-rational” to signify the transitional phase between the mythic stage and the rational stage.

2015]

INTEGRAL THEORY

319

law, there lurked a rational principle which the student must try to discover.”59 Until Blackstone, English common law was seen as a haphazard assortment of rules with no cohesion. As a result of Blackstone’s work, the rational human mind could now become actively engaged in law: Blackstone described the “science of law” which he conceived had been “committed to his charge, to be cultivated, methodized and explained.” Again and again in the course of his work he recurred to the theme that his subject was a proper exercise for man’s reason. He urged the prospective lawyer “to lay the foundation for his future labours in a solid scientifical method,” and reminded him that “law is to be considered not only as matter of practice, but also as a rational science.” To say that legal institutions could be rationalized and reduced to discoverable first principles was simply another way of saying, in eighteenth-century terms, that rational man was not wasting his time in studying the law.60 Within a century and largely as a result of Blackstone’s work, significant changes were made to how the law was taught to prospective lawyers. In the late 1870s, Harvard Law School Dean Christopher Columbus Langdell revolutionized legal education by arguing that “law should be taught ‘scientifically,’ the same way that one would study an organism. Just as one studies an organism cellby-cell, one must study the law case-by-case.”61 Langdell’s case law method is now taught in most law schools today: [Langdell’s] claim to fame was the notion that we should break down areas of law into their component parts and study them piece by piece, much as a biological organism could be broken down into component systems (digestive system, nervous system, skeletal system), all the way down to the level of individual organs and cells. In a similar manner, the body of civil law could be broken down into 59. BOORSTIN, supra note 53, at 22. 60. Id. at 20 (footnotes omitted). 61. DOUGLAS LITOWITZ, THE DESTRUCTION (2006).

OF THE

YOUNG LAWYER 39

320

THOMAS M. COOLEY LAW REVIEW

[Vol. 32:3

components of torts, contracts, and property, and then further divided into subsystems such as offer, acceptance, consideration, breach, and damages, such that each of these topics could be analyzed “scientifically” by looking at the cases dealing with them.62 What began with Blackstone was institutionalized by Langdell. While Blackstone injected rationality into the law, Langdell turned the study of law into science. While these efforts significantly advanced the law and legal systems, their potential downside did not become apparent until the latter half of the twentieth century. A.

REDUCTIONISM

Looking again at the quadrant chart (Figure 2), we see that all events have right-hand (UR and LR), “exterior,” or objective components, and they also have left-hand (UL and LL), “interior,” or subjective components. Because all events have right-hand (exterior or objective) components, it is easy to focus exclusively on those physical or material (right-hand) aspects, collapsing all events to their objective, exterior components. Thus, as Wilber points out, it is always tempting to reduce “interiors” (or depths that require arduous interpretation) to “exteriors” (or surfaces that can be easily seen).63 This process is known as reductionism, where interior, subjective components are reduced to their exterior, objective correlates.64 Reductionism has played a significant role in law and legal theory over the past three centuries.65 Right-hand theorists like utilitarian legal philosopher Jeremy Bentham have reduced all of human motivation to the lowest common denominator. Bentham wrote: “[A] 62. Id. 63. WILBER, supra note 4, at 445. 64. In this context, reductionism is the belief that “rationality is the great and final omega point of individual and collective development, the high-water mark of all evolution. No deeper or wider or higher context is thought to exist. Thus, life is to be lived either rationally, or neurotically. . ..Since no higher context [beyond rationality] is thought to be real, or to actually exist, then whenever any genuinely transrational occasion occurs, it is immediately explained as a regression to prerational structures. . .” WILBER, supra note 4, at 211. 65. In contrast, historically in China, great emphasis has been placed on the Left-Hand (UL and LL) components to informally restrain behavior through moral and cultural expectations. PATRICK H. GLENN, LEGAL TRADITIONS OF THE WORLD: SUSTAINABLE DIVERSITY IN LAW, 310-314 (2007).

2015]

INTEGRAL THEORY

321

person commits a crime only if the pleasure he anticipates from it exceeds the anticipated pain . . . .”66 Of these theorists, Wilber writes: In an empirical-sensory world, there is only empiricalsensory motivation (what else could there be?). Since we are all strands in the great empirical web, we must all share something in common, and what all living beings have in common – the lowest common denominator, in fact – is the pursuit of physical pleasure and the avoidance of physical pain.67 Physical pleasure and physical pain is as far into the depths as right-hand theorists are willing to go.68 Physical pleasure and pain are so fundamental that everyone experiences them, which means everyone can readily observe and understand these basic, fundamental sensations: Of course, it is one thing to say that we are all linked at that fundamental level of pleasure/pain . . . . It is quite another thing to say that we all have only that level of motivation. . . . Significance is here completely collapsed to fundamentalness, and the [right-hand theorists] thus arrive at the common weakest-noodle motivation . . . .69 Glorifying exteriors presupposes the “weakest-noodle motivation” for all of human behavior; and unfortunately, modern legal theory has been greatly influenced by this notion.70 As one example, the law and economics movement still advances the pleasure and pain theory, albeit with a slightly different twist, where pain is equated with cost and pleasure with benefit: As [Bentham] put it on the first page of the Introduction to the Principles of Morals and Legislation, “Nature has placed mankind under the governance of two sovereign masters, pain and pleasure . . . They govern us in all we do, in all we say, in all we think.” Another name for pain . . . is cost; and for pleasure, benefit; so Bentham is claiming 66. 67. 68. 69. 70.

RICHARD A. POSNER, FRONTIERS OF LEGAL THEORY 52 (3d ed. 2001). WILBER, supra note 4, at 436 (footnote omitted). Id. at 437. Id. Id. at 437.

322

THOMAS M. COOLEY LAW REVIEW

[Vol. 32:3

that all people, all the time, in all their activities, base their actions (and words, and thoughts) on costbenefit analysis.71 According to the law and economics theorists, there is no other possible motivation for human behavior than costs and benefits. Of course, when referring to “costs” and “benefits,” these theorists are referring solely to financial costs and benefits. Thus, in determining how much care a reasonable person should take to avoid an accident, they use the following analysis: The accident will occur with probability P and impose a cost [called] L, for loss, while eliminating the possibility of such an accident would impose a cost on the potential injurer, a cost [called] B (for burden). The cost of avoiding the accident will be less than the expected accident cost (or benefit of avoiding the accident) if B is smaller than L discounted (multiplied) by P, or B<PL. In that event, should [the potential injurer] fail to take precaution (perhaps because he does not reckon the cost to the accident victim a cost to him) and the accident occur, he is properly regarded as being at fault.72 Put simply, liability depends upon whether the cost of preventing the accident is less than the loss from the accident multiplied by the probability of the accident occurring. This description summarizes the “calculus of negligence” as formulated by Judge Learned Hand in United States v. Carroll Towing.73 The Hand Rule, as it has come to be known, is canonized in the law, and for many reasons, rightly so. On the plus side, the Hand Rule represents a radical new departure in thought and continues rationality’s march towards expanded world-centric awareness, beyond mere egocentrism and ethnocentrism. The rational nature of a cost-benefit analysis seeks to discover and affirm what is good and fair for all human beings, not just for me or my family or my nation. “[I]t is reason, and reason alone, that allows me to step outside my own natural inclinations and act for the benefit of others . . . .”74 The 71. 72. 73. 74.

POSNER, supra note 66, at 55 (emphasis added). Id.at 37. United States v. Carroll Towing Co., 159 F.2d 169, 174 (2d Cir. 1947). WILBER, supra note 4, at 458.

2015]

INTEGRAL THEORY

323

Hand Rule is revolutionary in that it asks the would-be injurer to “reckon the cost to the accident victim” in determining whether or not to act.75 B.

LIMITATIONS OF SCIENCE AND REDUCTIONISM

Yet nearly seventy years later, we see significant limitations to this reductionist approach. Perhaps nothing better illustrates that point than the infamous 1970s Ford Pinto cases. From a pure costbenefit analysis, these cases can be summarized succinctly. The cost of making the vehicles safer was calculated by adding an $11 part to 12.5 million vehicles, at a total cost to Ford of $137 million dollars.76 The benefit of preventing deaths, injuries, and vehicle damage by adding the part was estimated as potentially eliminating 180 burn deaths at a value of $200,000 each, avoiding 180 burn injuries valued at $67,000 each, and eliminating 2,100 burned vehicles valued at $700 each. Avoiding the burn deaths saved the company an estimated $36 million dollars; avoiding the burn injuries prevented $12 million in payouts; and preventing the burned vehicles saved $1.47 million in property damage. The total benefit was calculated at only $49.53 million.77 Since the benefits of preventing $49.53 million in deaths, injuries and vehicle damage was much less than the costs of $137 million to make the Pinto safer, Ford felt justified in its decision not to alter the Pinto’s design.78 To put it bluntly, the cost-benefit analysis affirmed that it was acceptable for 180 people to burn to death if it cost $11 per vehicle to prevent those deaths.79 For many people, including those people who sat on juries in the 1970s, this type of cold, calculated analysis was horrifying, and Ford paid dearly for it. The obvious downside of a pure right-hand approach, as Ford Motor Company later realized, is that it takes an entirely partial view, a view that marginalizes “interiors” – emotions, morality, spirituality – all the while proclaiming itself as a complete and total view of reality. 75. POSNER, supra note 66, at 37. 76. Christopher Leggett, The Ford Pinto Case: The valuation of life as it applies to the negligence-efficiency argument (Spring 1999), http://users.wfu.edu/palmitar/ Law&Valuation/Papers/1999/Leggett-pinto.html. 77. Id. 78. Id. 79. Id.

324

THOMAS M. COOLEY LAW REVIEW

[Vol. 32:3

Reductionists proclaim that all “real” knowledge is scientific or empiric knowledge. Because advances in the “hard” sciences have been so dramatic over the years, human sciences, like law, have been dismissed, marginalized, and eventually consumed by an empiric, positivistic, scientific paradigm. Our modern legal culture has been shaped by this paradigm, as evidenced by our obsession with the superficial, the exteriors, or only those things that can be measured and quantified.80 Over the past three centuries, the reductionists have managed to cleanse and disinfect the law of all “interiors” (emotion, psychology, morality, spirituality).81 As Supreme Court Justice Oliver Wendell Holmes, Jr. once stated: “I often doubt whether it would not be a gain if every word of moral significance could be banished from the law altogether . . .”82 Unfortunately, in our fervor to rationalize the law and turn it into a science, we have lost that which is most meaningful and most significant: The problem was that for all the good that came of their [Blackstone, Langdell, Holmes, etc.] work – and the analytical tools they provided are clearly essential – one message was clear: Not only are morality and 80. One obvious example is the billable hour. “With a few strokes on a keyboard, a manager can see how many hours an associate has billed, the cash value of the billable time, and a comparison of the attorney to others in the office in terms of profitability. In some firms, the weekly billings and dollar value are distributed to all lawyers so that they can chart each other’s progress. Notice how these programs focus exclusively on quantitative factors (time, money, profitability) to the exclusion of qualitative factors (service, client satisfaction).” LITOWITZ, supra note 61, at 85. 81. By minimizing “interiors,” like psychological issues, we overlook factors that could play a significant role in determining legal outcomes. This type of analysis assists us in our ability to rationally explain results. Contrary to the reductionist’s view, delving into psychological depths does not detract from rationality, but adds to it. One example is how judges may treat people who look like them or who come from their same socioeconomic background more favorably, which the author of a 2013 law review article referred to as “unselfconscious cultural elitism.” Amazingly, the abstract notes that “despite the attention paid to income inequality, implicit bias research, and judicial bias, no other scholar to date has fully examined the ramifications of implicit socioeconomic bias on the bench.” Michelle Benedetto Neitz, Socioeconomic Bias in the Judiciary, 61 CLEV. ST. L. REV.,137 (2013). 82. Oliver Wendell Holmes, Justice, Supreme Court of the U.S, The Path of the Law, Address before Boston University School of Law (Jan. 18, 1867), in 110 HARV. L. REV. 991, 997 (1997). Holmes’ statement was likely a rational (stage five) reaction to overly rigid fundamentalist (stage four) morality.

2015]

INTEGRAL THEORY

325

spirituality not fundamental to the enterprise [of law], they are at best marginal and at worst antithetical to the lawyer’s goals.83 And thus “while Holmes, his colleagues, and their progeny may have produced a system unexcelled in its ability to train the mind to produce airtight, unassailable legal arguments, they also managed to marginalize most of human experience.”84 IV.

BEYOND REASON

“[E]volution stops for nobody. . .each stage passes into a larger tomorrow. And if today is rationality, tomorrow is transrationality, and there is not a single scientific argument in the world that can disagree with that, and every argument in favor of it.”85 The pluralistic stage (stage six) is a post-rational, post-modern and postconventional stage, referred to as “the green stage” or just “green.” This colorful terminology is commonly used to describe a variety of activities that arise at this stage of consciousness (“green living,” “green building,” and “green consumption”).86 On an individual basis, the green stage emerges when “many of those who have ‘succeeded’ start asking. . . ‘Is that all there is?’ 83. STEVEN KEEVA, TRANSFORMING PRACTICES: FINDING JOY AND SATISFACTION IN THE LEGAL LIFE 7 (1999). 84. Id. (emphasis added). 85. WILBER, supra note 4, at 550–51. 86. Many different developmental theorists have referred to this stage as “green.” For example, both spiral dynamics theory and integral theory refer to this stage as “green.” In his 1970 best-selling book, The Greening of America, then Yale law professor, Charles Reich was one of the first to describe emerging green consciousness, which he also called Consciousness III. Reich believed that green consciousness first arrived in the summer of 1967 “when the full force of the cultural revolution was first visible.” CHARLES A. REICH, THE GREENING OF AMERICA 239 (1970). In a 2010 interview Reich explained how he decided to use the word “green” when describing this emerging consciousness: “I was thinking of the blossoming of many different kinds of people, and many different kinds of cultural pursuits, many kinds of music and art and so forth. I wasn’t really thinking of the way it’s now thought of: everything becoming uniformly green in the ecological sense. I intended it to be multi-coloured as the ‘60s always was to me, so it was an exuberant title for me.” The Greening of America turns 40: Q&A: Charles Reich, by Daniel Schwartz, CBC News, updated Sept. 27, 2010. Reich’s use of the word “green” to describe the blossoming of many different kinds of people, cultural pursuits, music, art, etc., and his reference to green as “multicolored,” are apt descriptors for the pluralistic stage (stage six) of consciousness.

326

THOMAS M. COOLEY LAW REVIEW

[Vol. 32:3

Fancy homes, expensive cars and material abundance may have been achieved, but at a significant price. . . . The rest who have not ‘made it’ begin to recognize basic inequity in the vertical hierarchy and want to see things level out so all can be ‘have enoughs.’”87 For some people, green emerges when they face difficult life issues, like depression or anxiety, addiction, divorce, the loss of a loved one, or any issue that forces them to look inside. From an organizational standpoint, green managers seek to empower employees as they begin to recognize that employees have motivations other than just financial gain. “In [green] organizations, you find emphasis on physical/psychological wellness programs . . . self-managed teams . . . and diversity/sensitivity training to help personnel recognize differences and reduce interpersonal problems.”88 Relationship skills are highly prized at this stage: “Interpersonal skills are often at a peak because constructive, warm interaction is so integral to self-satisfaction. Intuition and insight are valuable commodities here, so individuals strive to polish skills like empathetic listening.”89 Unlike the prior rational stage (stage five), the green stage (stage six) embraces the significance of emotions and relationships, as it seeks to address “core concerns” – those issues that are often unspoken but no less real than tangible interests.90 The green approach is very different from the rational approach, which focuses

87. BECK & COWAN, supra note 4, at 261. 88. Id. at 264. See also Brigid Schulte, End of the Corner Office: D.C. Law Firm Designs Its New Space for Millennials, Wash. Post, June 21, 2015, http://www.washingtonpost.com/local/social-issues/the-end-of-the-corner-office-abig-dc-law-firm-designs-its-new-space-with-idealistic-millennials-inmind/2015/06/21/8851f3e6-15e5-11e5-9518-f9e0a8959f32_story.html. (in which green consciousness is also shaping the way law offices are being designed. “In the new space, all offices—for the junior associates and paralegals as well as senior partners—will be the same size. No one gets a conference table. Everyone has one guest chair. All offices will have glass walls in front, rather than a solid wall and door—the better to share the light throughout the office and the more to signal transparency, democracy and connection. Corner spaces, no longer symbols of individual power, are designed as team meeting rooms for group collaboration. . .”) Id. 89. BECK & COWAN, supra note 4, at 261. When the green stage unfolds, other lines of development (emotional and interpersonal lines) become just as significant as IQ. 90. See ROGER FISHER AND DANIEL SHAPIRO, BEYOND REASON: USING EMOTIONS AS YOU NEGOTIATE 15 (2005).

2015]

INTEGRAL THEORY

327

primarily on physical, material, and tangible interests.91 Thus, green (stage six) allows for greater depths of understanding, which is why it is often viewed as the fullest expression of rationality: The whole point of rationality and its capacity for multiple perspectives is. . .to put oneself in the shoes of others and thus find a mutual enrichment and appreciation of differences. [Green] is the same worldcentric rationality, but now celebrating all the multiple perspectives and not merely steamrollering them into monotonous uniformity.92 The green stage is relativistic and non-hierarchical. Maintaining harmony in relationships and within a group is a highly cherished value. Collaboration is paramount, and decision-making by consensus is best, if it can be achieved. All input is welcome as everyone’s perspective is acknowledged and respected. Green individuals thrive on belongingness and shared experiences within a community. Green renews a sense of spirituality, not in a dogmatic or rigid way, as is the case with the earlier mythic stage, but in terms of creating inner harmony through self-awareness. Individuals who are operating at the green stage of consciousness typically refer to themselves as spiritual but not religious. Greens have many different names including “cultural creatives” and “conscious consumers.”93 Regardless of what you call them, the 91. “In today’s [rational] legal culture, the measure of all things is money. Consistent with the law’s emphasis on material self-interest and the profit motive as the driving force of humankind, the legal remedy prescribed for almost every injury, whether economic (such as breach of contract) or noneconomic (such as sexual harassment) is money damages to be transferred from one disconnected stranger to another.” Peter Gabel, Law, in IMAGINE WHAT AMERICA COULD BE IN ST THE 21 CENTURY: VISIONS OF A BETTER FUTURE FROM LEADING AMERICAN THINKERS 337, 347 (Marianne Williamson ed., 2000). 92. WILBER, supra note 4, at 483; see also id. at 533 (explaining the development of green is a “move beyond instrumental and ego-centered [formaloperational] rationality (Verstand) into dialogical, dialectical, intersubjective reason (Vernunft).”). 93. PATRICIA ABURDENE, MEGATRENDS 2010: THE RISE OF CONSCIOUS CAPITALISM 93 (2005) (explaining green consumers are also called LOHAS (Lifestyles of Health and Sustainability) consumers.) (“The LOHAS market is comprised of five sectors: (1) Sustainable Economy (green buildings, renewable energy, socially responsible investing); (2) Healthy Living (natural and organic

328

THOMAS M. COOLEY LAW REVIEW

[Vol. 32:3

demographics are clearly shifting. “By 2005, 63 million Americans— or 30 percent of the adult population—were part of [the green] market . . . .”94 More significantly, “[n]inety percent of [green] customers prefer to buy from companies that share or reflect their values . . . .”95 For lawyers, this last statistic is particularly eye-opening as the growing green market demands green lawyers and seeks a legal process that aligns with their core, green values.96 Green clients will go the extra mile to preserve relationships and maintain harmony – even in potentially high-conflict situations. Of course, a natural reciprocity exists between green clients who want to explore alternative legal approaches and green lawyers who seek alternative ways of practicing law. A.

GREEN LEGAL PROCESS

A green legal process differs substantially from our modern, rational legal process. A green process is widely accessible, giving everyone a voice, as it seeks to include all interests. Green process is often situated within the context of an ongoing relationship or a community, so it seeks broad participation to develop a wide base of support. From the perspective of quadrant analysis, the sensitive green stage (stage six) emphasizes the “I” (UL) and the “We” (LL) quadrants, whereas the rational-scientific stage (stage five) emphasizes the “It” (UR) and “Its” (LR) quadrants. With green process, there are no “experts” who hold special knowledge and no formulas for determining who is right and who is wrong. Guidelines are offered but there are no steadfast rules. Transparency is paramount. Green avoids hierarchies. Everyone speaks for themselves. Green makes room for the whole person – including the emotional and spiritual aspects. According to green: “[i]f we can’t include the food, nutritional supplements and personal care); (3) Alternative Healthcare (wellness, complementary and alternative care [e.g., homeopathy]); (4) Personal Development (mind, body, spirit products and services from CDs to seminars) and (5) Ecological Lifestyles (ecological or recycled products, ecotourism and travel).”). 94. Id. 95. Id. 96. Simultaneously, green lawyers understand that their clients seek lawyers who not only share their values but live their values in the way they practice law and live their lives.

2015]

INTEGRAL THEORY

329

physical, emotional, mental, and spiritual dimensions of ourselves, we can’t be fully open and so we can’t create outcomes that include all aspects of our reality.”97 Thus, what is relevant in the context of green legal process differs substantially from what is relevant in our modern, rational legal system. Whatever is subjectively relevant is relevant in a green process. Whereas, in our current legal system, relevance is narrowly defined to include only that evidence which tends to prove or disprove a claim. For green, the issue of “objective relevance” is irrelevant. By expanding the concept of relevance, green process is able to uncover hidden dimensions (depths) which underlie the conflict. Consider the following story: [W]hen a young boy, Sam, threw a rock through the window of a neighbor’s car, the parties turned to mediation first to resolve the crime. Mediation uncovered child protection concerns: Sam’s single mother, Helen, had a serious substance abuse problem and wasn’t providing adequate parental care. When all parties decided to take the child protection case to a Circle [a green process], the process revealed that Helen was trafficking in drugs and that her neighbor, Sally, had been threatening to call the police. When Helen could neither find a job nor get help with her drug abuse, she began to take out her frustrations on Sam. In the month before the incident, she had become suicidal. As this information came to light, the process shifted first from mediation to a single Circle and then to multiple Circles: one for the child protection issue, one for the drug trafficking issue, and a healing and support Circle for Helen and Sam. Each process included different people, though with overlap. Sally, for example, became a strong supporter of both the son and his mother in the Circles.98 As this example shows, green legal process (stage six) offers a depth of understanding that is simply unavailable in our current rational legal system (stage five). Green seeks to understand what is happening, and why it is happening, and to build relationships within 97. KAY PRANIS ET AL., PEACEKEEPING CIRCLES: FROM CRIME TO COMMUNITY 17 (2003). 98. Id. at 154–55.

330

THOMAS M. COOLEY LAW REVIEW

[Vol. 32:3

a community, whereas the adversarial nature of our current legal system undermines relationships in its efforts to determine who is “right” and who is “wrong.” Consider the following story: After a long, expensive, and emotionally charged civil litigation, John, who won his suit against Fred, expressed deep regret. Fred had been a lifelong friend and business partner. In the court process, John believed they both had been driven to distort the truth and exploit their respective weaknesses. Their relationship of many years was finished. So, too, were all the relationships between John’s and Fred’s families and among their friends who were pressured to choose sides. For John, the money won now seemed far less significant than the loss of relationships. Most important, John regretted what the experience did to him: it drew out “the worst parts of my character.” He believed the adversarial nature of the process had compromised many of his values. He didn’t like who he had become.99 Our current legal system creates “winners” and “losers,” to determine who is “right” in the eyes of the law. Because of this, our system creates incentives for bad behavior like distorting the truth or playing on another’s weakness.100 Short-sighted goals like winning the lawsuit supersede more important and meaningful goals like maintaining one’s integrity or restoring longstanding relationships.101 As author and professor Peter Gabel notes: 99. Id. at 49. 100. In addition, our current modern (stage five) legal system favors wealthy litigants who can afford to pay for ongoing legal representation. A wealthy litigant does not have the same incentive to engage in civil discussions with the opposing party and can “win” the lawsuit by creating the perception (whether true or not) that they are willing to outspend the other side. 101. Former lead prosecutor A.M. “Marty” Stroud III admitted he was more interested in winning than serving justice. “In 1984 (at the time of the trial), I was 33 years old. I was arrogant, judgmental, narcissistic, and very full of myself. I was not as interested in justice as I was in winning.” See Lynda Warren, Prosecutor Apologizes for Sending a Man to Death row for 30 years for a Murder He didn’t Commit, DAILYMAIL.COM (Mar. 20, 2015, 3:49pm), http://www.dailymail.co.uk/ news/article-3004771/I-not-interested-justice-winning-Prosecutor-apologizessending-man-death-row-30-years-murder-didn-t-commit.html accessed on June 27, 2015. In our current legal system, litigation can be driven by the desire to win at all

2015]

INTEGRAL THEORY

331

Our legal culture declares that disputes are to be resolved through an adversary system that defines differences as antagonistic clashes of conflicting interests; that fosters hostility, mutual deprecation, and lying; and that rejects any moral objective that might inform the process beyond the parties’ own selfinterested goals. Protection of the “rights of the individual” is thought to require that each side treat the other with skepticism and mistrust, to demean the other’s position while exaggerating the virtue of your own, to use cross-examination to undermine the testimony of even those you believe to be truthful, and to conceal any information that might be harmful to your side unless your opponent extracts it from you under penalty of perjury . . . .102 Gabel goes on to say: [T]he basic rules of substantive law that are used to resolve disputes – embodied in, for example, the law of contracts, torts, corporations, and property – assume that people are essentially unconnected monads whose principal desire is to pursue their own material self-interest in the competitive marketplace, and whose principal social concern is limited to protecting their persons and property against unwanted interference by others. Even the Constitution, often thought to be among the world’s great documents in securing social justice, provides no recognition of the human longing for community, for social connection, for the authenticity of mutual recognition, for the creation of a society that fosters our awareness of the sacredness of life itself and of the natural world.103

costs as winning is inexorably tied to self-worth. Because depths are disavowed in our current legal system, we have been largely unaware of these hidden psychological motivations. 102. Gabel, supra note 91, at 340. 103. Id. at 341. (explaining that the U.S. Constitution is fifth stage, rational document and not a green, sixth stage document).

332

THOMAS M. COOLEY LAW REVIEW B.

[Vol. 32:3

COLLABORATIVE LAW

Collaborative law is an example of how green values are shaping the law today. A key aspect of collaborative law is that collaboratively trained lawyers agree not to represent their clients in an adversarial court proceeding if the collaborative process fails.104 In other words, the parties must hire new lawyers if the collaborative process does not resolve the matter. This type of agreement builds strong incentives for the parties and their lawyers to work together towards a mutually agreed-upon solution. In accordance with green values, the collaborative approach is participant-driven and non-hierarchical in nature. There is no judge or jury. The collaborative process focuses on empowering the parties to make the best decisions for themselves with the support of their lawyers and team of advisors (financial planner, accountant, psychologist, etc.). The collaborative process often requires that the parties be taught communication skills. Because conflict involves intense emotions, the parties are taught to speak to each other in ways that are mutually respectful. Collaborative lawyers are trained to facilitate these types of discussions in a non-adversarial manner. Therapists and coaches are often used to assist the parties. In contrast to our modern, rational legal system, the green collaborative approach does not attempt to obtain the “correct” legal result as determined by precedent or a court of law. Rather, the correct result is the one that is mutually agreeable to knowledgeable participants. In our rational (stage five) legal system, parties look to maximize their own selfish interests – to enforce their own rights to the maximum extent provided by law. In contrast, the green collaborative process stresses the impact on everyone involved, such as the negative impact of divorce on minor children. Collaborative process asks participants to focus on the big picture and not 104. What is Collaborative Practice? INT’L ACAD. OF COLLABORATIVE PROF’LS, (May 13, 2016, 3:54 PM), https://www.collaborativepractice.com/public/about/ about-collaborative-practice/what-is-collaborative-practice.aspx. Collaborative participation agreements generally include the following type of language: “We commit ourselves to settling this case without going to Court.” STUART G. WEBB & ROD D. OUSKY, THE COLLABORATIVE WAY TO DIVORCE 192 (2006). Collaborative retainer agreements also include language limiting the scope of the representation. “[Attorneys] will not engage in court proceedings, and all professionals are disqualified from acting further if one party terminates the collaborative process or initiates court action.” FORREST S. MOSTEN, COLLABORATIVE DIVORCE HANDBOOK 132 (2009).

2015]

INTEGRAL THEORY

333

exclusively on their own selfish interests. The collaborative process recognizes that different participants have different needs, so participants are asked to use their best efforts to create options that meet everyone’s needs. The following chart highlights key differences between our modern, rational legal process and the green legal process: Rational Legal Process Hierarchical; Status-Based Results-Oriented Competitive; Win-Lose; Individualistic Absolute Rules Analytical; Rational Objective (Right-Hand Path) Court-Based Resolutions Experts Hold the Knowledge; Top-Down Approach Evidence must be objectively relevant to be admissible in court C.

Green Legal Process Non-Hierarchical; Pluralistic Process-Oriented Consensus-Seeking; Relationship Building Relativistic Guidelines Humanistic; Holistic Subjective (Left-Hand Path) Negotiated Resolutions Looks to Group Wisdom; Grassroots Approach Whatever is subjectively relevant is relevant to the process

THE SHARING ECONOMY

The green pluralistic stage (stage six) is not only shaping the conflict resolution process but also the world of transactions. In 2012, the American Bar Association published Janelle Orsi’s book Practicing Law in the Sharing Economy: Helping People Build Cooperatives, Social Enterprise, and Local Sustainable Communities. The “sharing economy” is an economic model based upon green values such as cooperation, sharing, and generosity. The sharing economy is also known as the relationship economy, the cooperative economy, the grassroots economy, the new economy, and the collaborative economy. As Orsi writes: Sometimes, the best way to picture the sharing economy is to list the phenomena and practices that

334

THOMAS M. COOLEY LAW REVIEW

[Vol. 32:3

are beginning to comprise it: cohousing communities, community gardens, social enterprise, communityowned enterprises, shared commercial kitchens, carsharing groups, ecovillages, local currencies, barter networks, time banks, gift economies, community land trusts, grocery cooperatives, worker cooperatives, community-supported agriculture, communitysupported kitchens, credit unions, creative commons licensing, housing cooperatives, childcare cooperatives, renewable energy cooperatives, tool lending libraries, co-working spaces, and collaborative consumption.105 The sharing economy is a green economic model that is grassroots in nature. As Orsi describes: The sharing economy is not a top-down solution, meaning that it will not be imposed by a set of legislated policies. We also don’t need to wait for a large organization or company to offer the solution to us. The sharing economy is being built, from the ground up, by every individual and group that chooses to begin consuming, transacting, and/or making a livelihood in a new way.106 As the sharing economy expands, more green lawyers will be needed to reform the law to meet the needs of this new, unfolding green consciousness. D.

GREEN CONTRACTS

Another way to understand green law is by the contracts it creates. Green contracts are markedly different from the standardized contracts that are currently available. All parties have a hand in creating a green contract, in contrast to the standardized, one-size105. JANELLE ORSI, PRACTICING LAW IN THE SHARING ECONOMY: HELPING PEOPLE BUILD COOPERATIVES, SOCIAL ENTERPRISE, AND LOCAL SUSTAINABLE ECONOMIES 2–3 (2012). 106. Id. at 3. Interestingly, Orsi acknowledges that collaborative lawyers could easily transition to the practice of sharing economy law: “[C]ollaborative lawyers, of whom there are now many thousands, could easily step into sharing economy law practice.” Id. at 28. Perhaps this is because collaborative lawyers and sharing economy lawyers share the same underlying green consciousness structure.

2015]

INTEGRAL THEORY

335

fits-all contract we typically see today.107 “[T]he sharing economy is built on agreements we make with each other, uniquely tailored to our individual needs. . . . [All parties] give input to shape the agreement.”108 Having input from the parties makes sense in this context because green contracts reflect the importance of the ongoing nature of relationships. From the perspective of a green lawyer, “[a]greements are like roadmaps to relationships, and they are living documents that may be referenced throughout the relationship and adapted as relationships adapt.”109 In contrast to asymmetrical, standardized contracts, “where parties divide rights and responsibilities,” green contracts are highly collaborative as the parties seek to “share decisions, share responsibilities and costs, share the benefits and rights, and so on.”110 This level of sharing is only possible because parties are in a relationship with each other. Thus, green lawyers go to great pains to be sensitive to the relationships of the parties. For instance, rather than reduce every possible contingency to writing, as is often the case with most of today’s contracts, green lawyers draft agreements that define a process for amicably resolving any unaddressed or unexpected contingencies. Thus, alternative dispute resolution (ADR) provisions are indispensable in green contracts.111 Finally, green lawyers pay particular attention to tonality in their writings. Orsi writes: “Legalese-filled contracts with adversarial language will not be appropriate to the relationships our [green] clients envision. The tone and approach we take in writing 107. Our modern, rational legal system, with its focus on efficiency and status, values the use of contracts with fixed terms that favor those in power who have wealth, status and prestige and are offered to consumers, employees, tenants, etc. on a take-it-or-leave-it basis. With these types of contracts, there is little to no concern for the relationship, and thus, little to no room for dialog or negotiation. 108. ORSI, supra note 105, at 98. 109. Id. 110. Id. 111. Id. at 147 (“Any unresolvable disputes between the [parties] . . . . shall be submitted to [facilitative] mediation. A mediator shall be chosen by both [parties], or if they cannot so agree, each [party] shall select one person and the two selected people shall, together, select a third person to act as mediator. The chosen mediator shall conduct at least one mediation session per week for three weeks, with both [parties] present, unless the dispute can be resolved sooner. Each session must last up to two hours, unless the dispute is resolved sooner. Each [party] agrees to participate in the mediation in good faith and make reasonable efforts to resolve the dispute quickly. If no agreement is reached after three mediation sessions, the [parties] agree to submit the dispute to arbitration as set forth in this Agreement.”).

336

THOMAS M. COOLEY LAW REVIEW

[Vol. 32:3

agreements will seek to nourish clients’ cooperative attitudes and human relationships.”112 E.

Green Transactional Law

The green, pluralistic stage (stage six) is influencing a wide variety of legal areas including intellectual property, employment law, real estate, estate planning, and business planning. i. Intellectual Property Green lawyers explore ways to share intellectual property rights to incentivize creativity and innovation. One example is the Creative Commons, a nonprofit founded in 2001, which has developed a number of alternative licensing agreements for copyrighted works: “The most open Creative Commons license lets others distribute, remix, tweak, and build upon the work, even commercially, so long as credit is given to the author of the original creation. On the other end of the spectrum, the most restrictive Creative Common license only permits others to download and share the works, with attribution to the author, but changes cannot be made to the original work and commercial use is prohibited.”113 Several other licensing options exist, which balance the need for protection of intellectual property with the strong desire to share the work. ii. Employment Law In the green, sharing economy, people are motivated to engage in collaborative and supportive business relationships outside of what is typically considered an employment relationship. Our modern legal system, with its implicit assumptions about employment, places strict limitations on how people can work together. According to Orsi: “[O]ur employment law framework may be one of the greatest barriers to the creation of more cooperative and sustainable

112. Id. at 99. With contracts, Orsi often prefers to use the words “agrees to” instead of “shall” because “agrees to” sounds friendlier. Id. at 111. 113. Id. at 540–41.

2015]

INTEGRAL THEORY

337

economies.”114 Green lawyers are helping to minimize the restrictive impact of regulations on collaborative working relationships. iii. Real Estate Green individuals consider the bundle-of-rights associated with land ownership to create sharing opportunities. Green lawyers explore “how shared use arrangements, shared financing, shared management, and other cooperative arrangements can help us to establish economically sustainable ways of managing land . . . .” 115 This includes: (i) finding alternative relationships to land beyond mere ownership versus rental (e.g., residence ownership), (ii) minimizing stressful financial burdens by avoiding inflexible, longterm debt situations, and (iii) sharing aspects of home ownership to ease the burden on individual homeowners.116 iv. Estate Planning Traditional estate planning focuses primarily on quantitative factors (saving taxes) without much thought to qualitative factors (family relationships). Green lawyers emphasize qualitative factors like maintaining family harmony, quality-of-life, elder law, and endof-life planning. One example of green’s impact is the introduction of financial therapy, where green lawyers work with other professionals to identify and explore their client’s habits and beliefs about money and wealth. Green lawyers seek to prevent family conflict that results from “misunderstandings, perceptions and beliefs dating from early childhood, which gradually bubble to the surface long after the death of the family matriarch or patriarch.”117 v. Business Planning Green lawyers help clients form businesses that are humanistic, socially responsible, “horizontal” (where decision-making is shared), community-focused, and mission-oriented. Examples of newly emerging green organizations include low-profit limited liability companies (L3Cs) and benefit corporations (B Corps), both of which share the common characteristics of having an organizational mission 114. Id. at 367. 115. Id. at 463. 116. Id. at 469–70. 117. Ronald A. Sages & Sonya L. Britt, Introducing Clients to Family Therapy, 151 TR. & EST. 31, 32 (March 1, 2012), available at 2012 WLNR 16793026.

338

THOMAS M. COOLEY LAW REVIEW

[Vol. 32:3

and core underlying values that drive decisions. While most corporations seek to maximize profits and make market-driven decisions, green organizations seek to benefit society and make mission-based decisions.118 F.

THE INFORMATION AGE

In discussing green law, we cannot overlook the impact of technology as the Information Age creates a more egalitarian exchange between lawyers and their clients. “[T]he Web is cracking the information monopoly that has long been the source of many lawyers’ high incomes and professional mystique. Attorneys charge an average of $180 per hour. But many Web sites.. . now offer basic legal forms and other documents for as little as $14.95.”119 As a result, many green clients feel empowered to create their own legal documents and hire lawyers on a limited, consultative basis: As The New York Times reports, “Instead of asking lawyers to draft contracts at a cost of several thousand dollars,” clients now find the proper forms online – and then take “the generic documents to lawyers, who customize them at a cost of several hundred dollars apiece.” The result, says the Times, is that the legal industry “may be on the verge of fundamental changes . . . [that] could reduce the demand for traditional services and force lawyers to lower fees.”120 According to best-selling author and Yale law graduate Daniel Pink, lawyers must adapt to this changing environment and focus on their (green) empathic abilities as a key point of differentiation: Much basic legal research can now be done by English-speaking lawyers in other parts of the world [for much less money]. Likewise, software and Web sites . . . have eliminated the monopoly lawyers once had on certain specialized information. So which lawyers will remain? Those who can empathize with their clients and understand their true needs. Those 118. ORSI, supra note 105, at 159. 119. DANIEL H. PINK, A WHOLE NEW MIND: MOVING FROM THE INFORMATION AGE TO THE CONCEPTUAL AGE 46 (2005). 120. Id. (quoting Jennifer Lee, Dot-Com, Esq.: Legal Guidance, Lawyer Optional, NEW YORK TIMES, Feb. 22, 2001.).

2015]

INTEGRAL THEORY

339

who can sit in a negotiation and figure out the subtext of the discussion that’s coursing beneath the explicit words. And those who can look at a jury, read their expressions, and instantly know whether they’re making a persuasive case. These empathic abilities have always been important to lawyers—but now they’ve become the key point of differentiation in this and other professions.121 G.

THE FUTURE OF GREEN LAW

We probably will not know green’s full impact on the law for several more decades. However, we can say that green law emerged in the late 20th century when the law began to experience “the simultaneous, synchronistic appearance of multiple, alternative approaches to law that use psychologically beneficial and humanistic ways to resolve legal issues.”122 As law professor and author Susan Swaim Daicoff points out: Although these developments may at first glance appear unrelated, they share a desire to resolve legal disputes and matters in ways that are psychologically optimal for the people involved, both in procedure and substantive outcome. They seek to preserve interpersonal relationships and the relationships between people and their communities. They avoid doing harm to people and seek to maximize the emotional well-being of all involved. In doing so, they explicitly go beyond simple legal rights, duties, and obligations to focus on a broad array of concerns embedded in the particular legal matter presented.123 Although we do not know exactly how green law will unfold in the future, we do know that green law has arrived.

121. Id. at 159. 122. SUSAN SWAIM DAICOFF, LAWYER, KNOW THYSELF: A PSYCHOLOGICAL ANALYSIS OF PERSONALITY STRENGTHS AND WEAKNESSES 170 (2004) (describing that green alternative approaches include: procedural justice, therapeutic jurisprudence, problem-solving courts, restorative justice, collaborative law, transformative mediation, holistic lawyering, creative problem solving, etc.). See also PRANIS, supra note 97, at 154–55. 123. DAICOFF, supra note 122, at 170.

340

THOMAS M. COOLEY LAW REVIEW V.

[Vol. 32:3

INTEGRAL LAW

[A]s so many researchers have pointed out, if the [green] pluralistic wave succeeds in differentiating the many cultural systems into numerous meta-systems, it cannot yet integrate them. This is why [green] postmodernism tends to end up in mere fragmentation, alienation, and despair. Only with the next wave of consciousness development—that of the integral or holistic wave—are the numerous differentiated systems brought together into an integrated tapestry that, while honoring their important differences, sets them in an integrated context that finds unity and wholeness as well.124 The integral worldview arises in direct response to the immediately preceding green, pluralistic stage.125 But the integral worldview—what some theorists call second-tier—is “a momentous leap” forward because it is the first time in history that a stage of consciousness fully embraces the concept that all prior stages hold significant truths.126 The integral worldview embraces and honors different perspectives, sees value in different perspectives, but also sees the limitations of the lower, first-tier stages.127 Most significantly, and in stark contrast to the green stage, a person who is operating at an integral (or second-tier) worldview understands that all opinions are not equally valid.128 There is a natural hierarchy of worldviews; some worldviews are more advanced than others. Integral is called “second-tier” to denote the significant shift in consciousness that occurs when moving from the green, pluralistic stage into the higher, integral stages. All first-tier stages (the green 124. Ken Wilber, Sidebar C: Orange and Green: Levels or Cousins? 5 (2007), http://www.kenwilber.com/writings/read_pdf/109 (emphasis omitted). 125. The use of the word “integral” can be confusing because it has been used by many different theorists in a variety of contexts. For example, Gebser uses the word integral to describe the green stage (stage six). Wilber originally used the word integral to describe the seventh stage (following the green stage) but more recently, he has used the word integral to describe the eighth stage (Wilber now refers to the seventh stage as “holistic”). Here, the word “integral” is used loosely and denotes an “integral worldview,” the shift from the post-modern worldview to an integral worldview, or the shift from the first-tier to the second-tier. 126. Wilber, supra note 2 at 51. 127. Id. 128. Id. at 51–52.

2015]

INTEGRAL THEORY

341

stage and below) share the common belief that their particular worldview is the “right” worldview: Each of those first-tier memes thinks that its worldview is the correct or best perspective. It reacts negatively if challenged; it lashes out, using its own tools, whenever it is threatened. [Mythic stage] order is very uncomfortable with both [egocentric stage] impulsiveness and [rational stage] individualism. [Rational stage] achievement thinks [mythic stage] order is for suckers and [green stage] bonding is weak and woo-woo. [Green stage] egalitarianism cannot easily abide excellence and value rankings, big pictures, or anything that appears authoritarian, and thus it reacts strongly to [all prior stages], and anything post-green.129 Only at second-tier consciousness is a person capable of seeing that all prior, first-tier stages hold significant truths. With an integral worldview, “one can, for the first time, vividly grasp the entire spectrum of interior development, and thus see that each level, each meme, each wave is crucially important for the health of the overall spiral.”130 Wilber describes: Because second-tier consciousness is fully aware of the interior stages of development – even if it cannot articulate them in a technical fashion – it steps back and grasps the big picture, and thus second-tier thinking appreciates the necessary role that all of the various memes play. Using what we would recognize as vision-logic, second-tier awareness thinks in terms of the overall spiral of existence, and not merely in the terms of any one level. Where the [green stage] uses early or beginning vision-logic in order to grasp the numerous different systems and contexts that exist in different cultures, second-tier thinking goes one step further and begins to integrate those pluralistic systems into integral and holistic spirals and holarchies . . .. These holarchies include both interior and exterior levels of 129. Id. at 51. 130. Id.

342

THOMAS M. COOLEY LAW REVIEW

[Vol. 32:3

development, in both vertical and horizontal dimensions, resulting in a multileveled, multidimensional, richly holarchical view.131 The chart below offers a very simple example of how an integrally informed lawyer might view specific advantages and limitations of some of the lower first-tier stages: Advantage Egocentric (Stage 3) Mythic (Stage 4) Rational (Stage 5) Pluralistic (Stage 6)

Power is necessary at times Order, honor, loyalty Achievementoriented, success and progress Egalitarian, pluralistic, idealistic

Limitation Might makes right Inflexible, overly rigid Greedy, materialistic, competitive to a fault Slow to take action, fragmented, naïve

An integrally informed lawyer sees the advantages and the limitations of each of the lower stages and is thus able to integrate those stages into a larger contextual framework. As a result, an integrally informed lawyer is able to activate each of the lower stages when necessary and can work effectively with people operating at any of the lower stages: [S]ince each wave is “transcend and include,” each wave is a fundamental ingredient of all subsequent waves, and thus each is to be cherished and embraced. Moreover, each wave can itself be activated or reactivated as life circumstances warrant. In emergency situations, [integrals] can activate [egocentric stage] power drives; in response to chaos, [integrals] might need to activate [mythic stage] order; in looking for a new job, [integrals] might need [rational stage] achievement drives; in marriage and with friends, close [green stage] bonding.132 131. Id. at 51–52. 132. Id. at 51.

2015]

INTEGRAL THEORY

343

An integral worldview offers a flexible-flowing perspective. It is flexible in that it “can enter the conceptual worlds of the first six [stages]. . .and interact with them on their frequencies, speaking their psychological languages. [An integral] respects (while not necessarily agreeing with) their world views, modes of expression, and unique habits, customs, and cultures.”133 An integrally informed lawyer allows other people to be who they are. As a result, they are able to operate upon and influence other individuals operating at the lower stages. The integral worldview is flowing in that it is in touch with the natural evolutionary process. In the words of Clare Graves, “each successive stage, wave, or level of existence is a [stage] through which developing people pass on their way to [the next higher stage] of being.”134 An integrally informed lawyer understands that all stages are yet another stage of development to grow through and beyond. Thus, an integrally informed lawyer sees that it takes time to grow through each stage, and individuals and societies cannot be forced to grow too far too fast. As a result, an integrally informed lawyer is not overly attached to any particular viewpoint, nor pushes any particular viewpoint, but integrates viewpoints into a comprehensive and meaningful whole. From an integral worldview: “Life is a kaleidoscope of natural hierarchies [holarchies], systems, and forms. Flexibility, spontaneity, and functionality have the highest priority. Differences and pluralities can be integrated into interdependent, natural flows.”135 The integral worldview has a clear grasp of the natural developmental process that is unfolding, individually and collectively, and is able to offer flexible and functional solutions to difficult problems—problems that are impossible for lower, first-tier stages to resolve. A.

INTEGRAL LAW: A PRACTICAL EXAMPLE

To further this discussion, and discuss how integral thinking might apply in a specific legal situation, consider the following proposal for resolving an international business dispute: If a dispute develops between a buyer of coffee in the United States and a supplier from Central America, 133. BECK & COWAN, supra note 4, at 277. 134. Id. 135. WILBER supra note 2, at 52.

344

THOMAS M. COOLEY LAW REVIEW

[Vol. 32:3

the legal resolution of the dispute should perhaps begin with a period of meditation and a sharing of food and music, followed by a telling of respective stories and a period of questioning (not “cross examination”) aimed at resolving the dispute in accordance with the aspiration to a spiritual and ethical ideal.136 This proposal is based on a first-tier, green approach. This green proposal assumes that the green worldview is universally applicable and available to everyone (they believe the green worldview is the correct worldview and shared by all). Significantly, integral understands that this green approach is developmentally unsound.137 In other words, integral knows that the green worldview is not universally true and not universally available. Not everyone shares green’s worldview! In fact, most people don’t. Not everyone values the warm benefits of a meditation session, with the sharing of food, music and stories – particularly while engaged in an international business dispute. Further, if an egocentric (stage three) U.S. buyer and a green (stage six) Central American coffee supplier are engaged in conflict, an integrally informed person understands that the third-stage buyer and the sixth-stage supplier are operating from two completely different worldviews, two different internal worlds. The egocentric coffee buyer might think, “This is a pure power game. . . I must beat the other side into submission.” The idealistic green coffee supplier might think, “Perhaps we can meditate together, share some food, music and stories, and resolve this dispute to a higher spiritual and ethical ideal.” Without the skilled 136. Gabel, supra note 91 at 347. 137. Integral understands the natural developmental process. Thus, if someone from each stage were locked into a room, the mythic, fourth stage person would see the egocentric, third stage person as barbaric, and the rational, fifth stage person as status- and money-seeking (thus, going to hell). The rational, fifth stage person sees the mythic, fourth stage person as too rigid and trapped in their myths, and the pluralistic, sixth stage (green) person as too soft and mushy. The pluralistic, sixth stage (green) person thinks the rational, fifth stage person has destroyed the environment and the soul of the universe; all other, prior stages are misguided but okay. With integral, no one knows what to think. They don’t particularly like the integral person but can’t figure out why. One thing is clear: the integral person doesn’t need to fight for the correctness of their worldview. Integral finds ways to get along with and understand the previous levels. See Levels, Lesson 4, Part 1, COURSE ONE: ESSENTIAL INTEGRAL, www.coreintegral.com.

2015]

INTEGRAL THEORY

345

intervention of an integrally informed mediator, any meeting between the egocentric buyer and the idealistic coffee supplier will end in disaster.138 Significantly, an integral mediator is able to successfully intervene in this first-tier dispute because the mediator acknowledges different depths (natural hierarchies) and is able to offer a developmentally sound solution. An integrally informed mediator can translate from the green stage (stage six) to the egocentric stage (stage three) and from the egocentric stage (stage three) to the green stage (stage six). Without the skilled intervention of an integrally informed mediator, the idealistic green coffee supplier (stage six) would be absolutely shocked by the barbarism of the egocentric buyer (stage three), and the egocentric buyer would view the coffee supplier’s attempts at hand-holding as a weakness to be exploited. B.

TODAY’S INTEGRAL LAWYERS

Estimates suggest that roughly one percent of the population is operating from an integral worldview, or from second-tier thinking.139 Finding an integral lawyer can be difficult, as the mainstream legal culture is largely situated at the rational stage (stage five) moving towards post-modern, pluralistic green (stage six). In other words, access to the integral worldview is at least one full stage beyond today’s current legal culture. Nevertheless, there are examples of lawyers who appear to be way ahead of their time. One example is lawyer and mediator Woody (Forrest) Mosten. Here is a brief excerpt from Mosten’s website in which he describes his unique brand of mediation (the bracketed information has been inserted to identify the various stages being referenced):

138. For over two hundred years, the U.S. legal system has been operating under a scientific-rational paradigm. Because our modern, rational legal system is beyond an egocentric (stage three) person, a stage three person sees our current fifth stage legal system as a pure power game where he won because of power or lost because he “got screwed” (someone more powerful won). A green person (stage six), who is operating at a level that is beyond our current legal system, sees significant flaws in the system including the fact that it does not address the “real” issues – interpersonal dialogue and the expression of feelings working towards mutual understanding and healing. Green views our legal system as overly formalized, analytical and mechanistic. See Gabel, supra note 91 at 347. 139. Ken Wilber, THE INTEGRAL VISION AT THE MILLENNIUM, (last visited July 22, 2015) http://www.fudomouth.net/thinktank/now_integralvision.htm.

346

THOMAS M. COOLEY LAW REVIEW

[Vol. 32:3

I employ strategic planning and a full toolbox of mediation tactics. I work with parties and counsel to design a process that will resolve their dispute. While I prefer low-key, safe, and a facilitative tone and format [green, stage six], I increase directive [mythic, stage four] and evaluative [rational, stage five] approaches where necessary. My article, “Muscle Mediation,” [egocentric, stage three] demonstrates that I can play hard-ball [egocentric, stage three] if necessary in order to settle a case. I have pioneered the use of pre-mediation private sessions with parties in order to prepare them to maximize success [rational, stage five] at the joint sessions. I prefer non-confidential briefs so that counsel can educate and persuade the other side and help bring reality and dissonance into risk analysis. [rational, stage five] I urge parties and counsel to both make opening statements to encourage participation in the process and stimulate discussion that motivates movement. [green, stage six] No two mediations have ever been identical—I am usually retained due to my creative and innovative approach to designing format and helping develop comprehensive and workable settlements. [integral] I am both patient and tireless. I never give up and often my confidence is the single factor that motivates conflicted parties to reach settlement. Conflict is pernicious—ending it with dignity and a workable solution frees parties to cut losses and move on with their lives. I urge parties to focus on one variable. . . “Can I Live with This Agreement?”140 140. Forrest S. Mosten, Style of Mediation, MOSTEN MEDIATION, www.mostenmediation.com/legal/mediation.html (last visited March 6, 2014). Mosten is also the “father” of unbundled legal services, which is an example of integral’s flexibility and fluidity. Forrest S. Mosten, Unbundling Legal Services, MOSTEN MEDIATION, http://www.mostenmediation.com/books/unbundlinglegal. html (last visited Nov. 19, 2015). The concept of unbundled legal services is a way to deliver discrete task legal services, which provides the client with greater control over legal representation. Id. Thus, if a client only wants advice, the lawyer will

2015]

INTEGRAL THEORY

347

Mosten’s website demonstrates his ability to identify and access the various first-tier, developmental stages. For example, if Mosten’s mediation approach were purely green (which many facilitative mediators are), his website would emphasize equal participation in the process, the need for mutual understanding and healing, and the emotional and inter-personal aspects of the process. A green mediator would not highlight his ability to engage in “muscle mediation” or play “hard-ball” (stage three), and a green mediator would not think it significant to try to “maximize success” (stage five) or engage in “risk analysis” (stage five). The fact that Mosten mentions all of these issues is evidence that he is able to create psychological resonance with individuals operating at a variety of lower, first-tier stages. To be perfectly clear, although Mosten is being offered as an example of a second-tier lawyer, integral law does not require that all lawyers become facilitative mediators, or that all conflicts be resolved through the use of facilitative mediation. In fact, just the opposite is true. An integral legal system works to integrate various conflict resolution processes that have been developed at the lower, first-tier stages such as problem-solving courts, early neutral evaluation, arbitration, mediation-arbitration, arbitration-mediation, evaluative mediation, facilitative mediation, collaborative process, and traditional litigation, among others. First-tier lawyers tend to favor one approach over the others. Even first-tier mediators will advocate for one specific type or style of mediation process. But second-tier, integral lawyers understand that no single approach is the best for all situations. Certain techniques are better at certain times in certain situations. In this regard, integral lawyers are acutely aware that the vast majority of lawsuits settle under our current legal system. Therefore, integral lawyers focus on how to efficiently and effectively reach the “best” (most solid) settlement agreement for the given circumstance. An integral lawyer uses the appropriate technique(s) for the circumstance, without being unduly attached to any one particular technique. only offer advice (the lawyer may suggest when further consultations are necessary). A lawyer who offers unbundled services may ghost-write documents for a client, or review and comment upon what the client has already written. Lawyers protect themselves and their clients by ensuring the scope of representation is limited (as allowed under the ethics rules) and that the limited representation is discussed with the client and clearly understood.

348

THOMAS M. COOLEY LAW REVIEW

[Vol. 32:3

Thus, if the disputing parties are heavily identified with green pluralism (stage six), an integral lawyer will likely recommend some form of facilitative mediation or collaborative process that allows the parties to speak with each other, understand each other, and work through their legal issues together. On the other hand, if an integral lawyer is representing a green (stage six) client who is facing an egocentric (stage three) opponent, the integral lawyer will not favor facilitative mediation or collaborative process because the opponent will likely use the process to gain some type of power advantage (the opponent will not engage in good faith).141 In that situation, a courtenforced judgment may be the best option. Integral lawyers seek to create positive outcomes, or “wins” for their clients, opposing parties, and society. To accomplish this, an integral lawyer must be “adept at resolving paradoxes, creating abundance, and engineering Win:Win:Win outcomes. . .”142 Additionally, an integral lawyer must be able to “show how ‘both and’ is superior to a forced choice of ‘either or.’”143 To do so, an integral lawyer must look “for ways to increase the range of options, available niches, maneuvering space, and expanded 144 opportunities . . . .” Many of us are familiar with the concept of “win-win,” where two opposing parties look to find a mutually beneficial solution for both parties. Creating a “win-win-win” not only includes a positive outcome for the two opposing parties but also for the greater good. For lower, first-tier stages, creating a “winwin-win” sounds like some form of voodoo magic, but for secondtier lawyers, it is the only truly sustainable option. C.

AN INTEGRAL LEGAL SYSTEM

Attempting to make specific predictions about the future of integral law has a high probability of making the prognosticator look foolish.145 However, based upon existing developmental stage 141. Alternatively, if an integral lawyer is representing an egocentric (stage three) client, the integral lawyer will not betray integral values in representing the client. The integral lawyer will work to expand available options to satisfy the client while also maintaining his or her integrity throughout the process. 142. BECK & COWAN, supra note 4, at 283. 143. Id. 144. Id. 145. Making any predictions is risky business, but it becomes easier if we focus on the “deep structures” involved. Wilber distinguishes between the concept of “deep structures” (the deep, identifying pattern, code, canon or regime) and the

2015]

INTEGRAL THEORY

349

research, we are able to make some general predictions about how an integral legal system might look.146 For instance, an integral legal system is geared towards the functional, efficient, and effective resolution of conflict by integrating the best aspects of the lower, first-tier stages and minimizing their counter-productive aspects. An integral legal system thus seeks to minimize: (i) the overly simplistic “good versus evil” approach (mythic, stage four); (ii) the overly competitive and materialistic aspects that entrench positions and prolong conflict (rational, stage five); and (iii) the never-ending dialog in search of mutual understanding (green pluralism, stage six).147 Most significantly, an integral legal system accounts for five Integral Theory concepts: quadrants, stages, lines, types, and states.148 We have previously discussed quadrants, stages and lines concept of “surface structures” (variations in form). WILBER, supra note 4, at 68. For instance, rationality is the underlying deep structure of all modern, rational legal systems. But modern legal systems vary in their surface structures—the ways in which they manifest. On the surface, civil law systems are different than common law systems, but both are deeply rooted in rationality. At this time, we do not know how an integral legal system will fully manifest. Its deep structure appears to have been established, but it lies dormant as mere potentiality until its surface structures emerge. Currently, green (stage six) surface structures are being formed and coming into existence. It is extraordinarily difficult to predict surface structures of any future legal system but much easier to identify its deep structure. See id. 146. It must be remembered that regression is always a possibility. The ancient Roman legal system, with its many rational elements, disappeared into the Dark Ages. Several centuries later, rational legal systems emerged once again. The evolutionary process does not always proceed in only one direction. 147. A typical lawyer operating within our modern legal system will seek every possible advantage, seeing the legal process as a competitive endeavor, in which the lawyer must zealously advocate on behalf of the client to obtain the best possible measurable result (the maximization of monetary gain or minimization of loss). Measuring success in this way is not inherently good or bad but definitely takes the focus away from other factors. On the other hand, green lawyers seek to introduce “depths” by placing emphasis on the emotional and relational aspects. For green lawyers, success is defined by how the parties subjectively feel at the end of the day. The green approach can provide certain benefits, but green often devolves into endless discussions, without adequate resolution. 148. This article does not address the concept of “shadow,” which is another important concept in Integral Theory. Shadow represents unconscious material that we (individually and collectively) hide, deny, repress, and disown. In our modern, rational legal culture, for instance, emotions and spirituality (the non-rational) oftentimes remain in shadow. These issues are taboo, not open for discussion.

350

THOMAS M. COOLEY LAW REVIEW

[Vol. 32:3

and will now briefly revisit those concepts and also introduce the concepts of types and states.149 With regard to quadrants (Figure 2 above), an integral legal system holds a comprehensive worldview and is capable of efficiently identifying and properly addressing a wide variety of issues including psychological, social, cultural, spiritual, systemsbased, and brain chemistry issues, among others.150 For instance, our modern, rational legal system is absolutely mystified by most psychological issues. Conflict is often prolonged because mental health issues are either ignored or misunderstood. Our current legal system is frustrated by the psychological depths it cannot see or understand. Because an integral legal system is comprehensive and informed by all quadrants, it is able to quickly identify the most pressing issues and address those issues immediately and appropriately, regardless of whether they are legal issues or otherwise.151 With regard to stages, an integral legal system recognizes that different conflict resolution processes are effective for different people at different stages of development. An integral legal system is flexible and fluid in offering a wide variety of conflict resolution techniques to address varying developmental stages. While the emerging green legal system offers a wide assortment of approaches to resolve conflict, those approaches have not been fully integrated Denying these issues does not make them go away but distorts our view of reality as we only recognize culturally approved aspects of reality. 149. It may seem daunting to apply all of these concepts. With time and practice, taking an integrally informed view is just as easy as writing a sentence or reading a book or solving a basic math problem. Becoming integrally informed is yet another structure in consciousness that can be permanently (and relatively easily) accessible once it is attained. 150. See WHAT IS THE INTEGRAL APPROACH?, http://joinintegrallife.com/what-isintegral/ (last visited Nov. 19, 2015). An integral legal system recognizes the interconnection and interdependence of the four quadrants. This is significant because a higher-order legal system (an integral legal system) can positively impact overall development (tetra-evolution)â&#x20AC;&#x201D;the development of individual and collective consciousnessâ&#x20AC;&#x201D;just like our modern legal system impacts the evolution of people who are operating at lower stages (the egocentric and mythic stages). Id. 151. Using quadrants is a way to touch all the bases. Id. In conflict, we might consider several questions: What psychological, emotional, and spiritual issues are involved? (UL) What cultural and relational issues are involved? (LL) What systems-based issues are involved? (LR) What neurological or brain chemistry issues are involved? (UR).

2015]

INTEGRAL THEORY

351

into a comprehensive whole. An integral legal system provides great precision in offering the most appropriate conflict resolution technique(s) for the given conflict. In an integral legal system, various conflict resolution techniques have been integrated into a comprehensive and workable overall system. In addition, because hierarchies are widely recognized, an integral legal system naturally seeks to operate as a conveyor belt, transforming consciousness as an inherent part of the process. An integral legal system supports the expansion of consciousness from “me” (egocentric) to “we” (ethnocentric) to “all of us” (world-centric). With regard to lines, an integral legal system accepts that humans are multi-dimensional beings who have a wide variety of capacities, strengths and weaknesses. An integral legal system does not fall into the simplistic, one-dimensional analysis of “good versus evil.” Nor does an integral legal system venerate an individual with only a high intelligence quotient (like our current legal culture) or only a high emotional quotient (like a green culture), because an integral legal system acknowledges varying strengths and weaknesses along multiple developmental lines. Thus, in conflict, an integral legal system supports each party’s individual strengths while limiting the negative effects of their weaknesses. In an integral legal system, conflict resolution techniques are selected based upon capacities along multiple lines. For instance, an integrally informed lawyer will select a very different conflict resolution process if one of the conflicting parties has a high IQ but acts unscrupulously (morally underdeveloped), as compared with a situation in which all of the parties are operating at a post-conventional (highly advanced) moral stage. An integral legal system accounts for different “types” of people. In this context, types are analogous to flavors. There is no hierarchy with types. In other words, no type is any better than any other type – just different. One of the most famous typologies is the Myers-Briggs Type Indicator, which divides the human personality into sixteen different personality types.152 From a conflict-resolution perspective, it is critical to understand that different personality types respond to conflict differently.153 For instance, on the Myers-Briggs scale, an ISTJ (a person who is analytical with sound practical judgment) 152. The 16 MBTI Types, THE MYERS & BRIGGS FOUNDATION, http://www.myersbriggs.org/my-mbti-personality-type/mbti-basics/the-16-mbtitypes.htm (last visited Nov. 19, 2015). 153. See WHAT IS THE INTEGRAL APPROACH supra note 150.

352

THOMAS M. COOLEY LAW REVIEW

[Vol. 32:3

responds to conflict much differently than an ENFJ (a person who is idealistic and values connection with other people).154 An integral legal system acknowledges and integrates all of these types, the many flavors of being human. An integral legal system accounts for varying “states” of consciousness. States vary greatly from meditative states to altered states to peak experiences. The great spiritual traditions (Christian mysticism, Vedanta Hinduism, Vajrayana Buddhism, Jewish Kabbalah, etc.) recognize three natural states of consciousness: (i) the gross state (analogous to a waking state), (ii) the subtle state (analogous to a dreaming state), and (iii) the causal state (analogous to a deep sleep state).155 In a gross or waking state, we are predominantly aware of the physical, tangible and material aspects of reality.156 In a subtle or dreaming state, we are predominantly aware of the intangible aspects of reality – thoughts, feelings, dream images, and intuitions.157 The subtle state also includes flow experiences, powerful visions, and mystical experiences.158 The causal or deep sleep state is the finest, most subtle experience possible, sometimes referred to as “witnessing consciousness” or “consciousness without content.” The causal state is where our ongoing internal dialog stops, even if its cessation is only temporary—a peak experience. The causal state is experienced as vast emptiness or openness, and although thoughts and dreams still arise, there is a blissful release of attachment to them.159 An integral 154. See The 16 MBTI Types, supra note 152. It would be interesting to identify how different types of people at different stages of development respond to conflict. For example, how does a mythic (stage four) ENFJ respond to conflict? What about other types at other stages? 155. See KEN WILBER, INTEGRAL SPIRITUALITY: A STARTLING NEW ROLE FOR RELIGION IN THE MODERN AND POSTMODERN WORLD 4, 83, Figure 3.1 (2007). 156. See KEN WILBER, INTEGRAL MEDITATION: MINDFULNESS AS A PATH TO GROW UP, WAKE UP, AND SHOW UP IN YOUR LIFE 96 (2016). 157. Id. at 96-97. See also JUNPO DENIS KELLY ROSHI & KEITH MARTIN-SMITH, THE HEART OF ZEN 21 (2014). 158. Id. 159. If a state of consciousness stabilizes (e.g., if a person has stable access to causal witnessing) that state has become a permanent structure in consciousness, or what Wilber refers to as a “state-stage.” See WILBER, supra note 155 at 83, Figure 3.1. Interestingly, as human consciousness evolves, we become more aware of the subtler aspects of reality, and our legal systems adapt to reflect this new awareness. As a simple example, 300 years ago, it would have been unthinkable to compensate an injured person for non-economic damages such as pain and suffering and emotional distress.

2015]

INTEGRAL THEORY

353

legal system acknowledges that states of consciousness impact the legal process. As an obvious example, if a conflicting party is operating under an altered state (highly intoxicated), that party’s state of mind will disrupt the conflict-resolution process. At the other extreme, if a facilitative mediator is stably situated at causal, that facilitator has the capacity to witness their thoughts and feelings without becoming mired in them, which allows the facilitator to remain emotionally neutral and more fully present during the process.160 Even further, if the conflicting parties can be taught to access calm, meditative states of mind—and to gain some separation from an over-identification with their thoughts, stories, and beliefs— the conflict resolution process can be greatly expedited.161 VI.

CONCLUSION

An ancient curse says: “May you live in interesting times.”162 Unfortunately, we do. We are faced with major problems in both our political and legal systems. Our political system is awash in money that influences everything we do, from how our politicians seek election to where they focus their attention after the election. Political battles are effectively shaped by three different first-tier worldviews: (i) mythic (pre-modern), (ii) rational (modern), and (iii) pluralistic (post-modern).163 As a result, politicians cannot agree on much of anything, whether it’s prioritizing our political issues, or agreeing on the basic facts surrounding an issue. For its part, our modern legal system is built upon the false notion that intellectual combat – through the written and spoken word – is the best way to resolve all conflict. Even further, our rational legal system dismisses anything that is non-rational including emotional, psychological, moral, relational, and spiritual issues.164 In essence, we are using eighteenth century legal technology to resolve twenty-first century problems. 160. A facilitator’s ability to remain neutral and present in the face of conflict might also require that the facilitator engage in deep psychological work to identify and integrate any emotional triggers that they might have. 161. One method for stabilizing witnessing consciousness is through meditation practice, particularly a daily concentration meditation practice. 162. Robert Kennedy, Address to the National Union of South African Students at the University of Cape Town (June 6, 1966). 163. See generally Wilber supra note 4; DeVos supra note 17. 164. It is conceivable that legal malpractice could include the failure to consider the psychological impact of the legal process upon the client. Is it a lawyer’s responsibility to consider the client’s psychological health and well-being when

354

THOMAS M. COOLEY LAW REVIEW

[Vol. 32:3

Added to all of that, our world is growing increasingly complex, while the stakes have never been higher. The rise of global terrorism, massive environmental degradation, and a world made ever-smaller by increased communication and transportation technology (where an upheaval in any part of the globe affects us all) are just a few of the problems we now face. Given this level of complexity, it is imperative that we adopt the most sophisticated worldview we can. Put simply, we must be able to see our problems if we are to face them. For that, we need a comprehensive map of reality. Integral theory is that map. Developmental research has confirmed that we are evolving beyond rationality towards the creation of post-rational cultures and post-rational systems. To do this, we need integrally informed lawyers capable of developing innovative legal technologies that create simple, effective and efficient solutions to our first-tier legal problems. Creating an integral legal system is not some sort of utopian vision of the future, but the most pragmatic way to address our current, real-world problems.

selecting a legal process to resolve conflict? If clients are automatically placed in the litigation meat-grinder without considering less extreme options, should that be considered legal malpractice?

WESTERN MICHIGAN UNIVERSITY THOMAS M. COOLEY LAW REVIEW SPECIAL PATRONS Mike Korn

David C. Whipple LAW FIRM BENEFACTORS Bailey, Smith & Bailey, P.C. The Honorable Avern Cohn Krause, Moorehead & Draisen, P.A.

2015 DISTINGUISHED BRIEF REVIEW PANEL Professor Erika Breitfeld Professor Mark Cooney Professor Carly Self

Professor Bradley Charles Professor David Finnegan Professor David Tarrien