Arbitration and Americanization: the paternalism of progressive procedural reform.

Author:Kessler, Amalia D.
Position:II. Courts of 'Small Claims and Conciliation' B. The Progressive Prototype through Conclusion, with footnotes, p. 2966-2993 - Arbitration, Transparency, and Privatization: Contextualizing and Analyzing Recent Developments in U.S. Arbitration Regimes
  1. The Progressive Prototype: Manuel Levine's Cleveland-Based "Conciliation Branch"

    In insisting that municipal courts would play a vital role in a broader program of Americanization, Progressives looked first and foremost to Judge Manuel Levine of the Cleveland Municipal Court. (126) With the support of his judicial colleagues, Levine created a specialized "Conciliation Branch" of the court in March 1913. (127) The contemporary pro-reform press praised Levine, a Republican, for his successful attempts--first as a police prosecutor and then as a judge of the Municipal Court--to clean up the corruption that had once typified Democrat-controlled Cleveland. As depicted in these reports, Levine's efforts to target such corruption and thereby bring law and justice to the city's poor, immigrant community were best understood as mechanisms of Americanization.

    Consider, for example, a piece published in 1907 by Ernest Poole, a journalist and advocate of social reform who would go on to later fame as a novelist. (128) According to Poole, the party "boss" who ran Cleveland's sixteenth ward was widely known by the local immigrant Jewish community, recently arrived from Russia and elsewhere in eastern Europe, as "the Czar." (129) While the Czar held election campaign events on a platform decorated with "the Stars and Stripes," he conducted himself in all public matters as if he were an Old World despot. (130) He "spoke in Yiddish," rather than English, and he encouraged the audience of mostly peddlers to engage in theft and to do their "best to escape the vigilance of the police department." (131) If they were caught, he promised, he would help them, aided by the many judges and prosecutors in his pocket: '"For here are our judges and our prosecutors. They are with us tonight and are with us all the time.'" (132) Among the judges in the "boss's" pocket were the justices of the peace, who earned their fees through numerous corrupt practices and whose "victims were usually ignorant working men and women who could not afford lawyers." (133) In short, as depicted by Poole, Cleveland municipal governance was not only corrupt but also under the control of foreign elements who conducted all business and politics in an alien language and culture--one that threatened core American values of property and justice under the law.

    According to Poole, strong Progressive leadership of the sort that Manuel Levine represented offered the solution to the problems of Cleveland, as well as those of the nation's other urban areas. Appointed as an assistant police prosecutor, Levine eagerly fulfilled the hopes of his backers, using his power to clean up the city. (134) This meant not only going after the Czar and his cronies, but also persuading the local Jewish immigrants that they could trust the American legal and political system to protect their interests and thus do without the Czar's patronage. Towards this end, Levine organized the peddlers in town into "a society for political independence and mutual aid," and speaking with hundreds of its members at a time, "[h]e assured them that they were not outlaws, as the Czar had said. He told them that in America Jews need not fear the police if they complied with the laws." (135) By persuading these peddlers of the justice of American institutions, he succeeded, moreover, in curbing their illegal activity, such that "since that time it is amazing how the trade in stolen goods has dropped off." (136)

    Written in 1907, Poole's article preceded Levine's election to the Cleveland Municipal Court and his subsequent establishment of a Conciliation Branch. But as depicted in articles thereafter published in Progressive newspapers, Levine's work as a conciliation judge tracked the pedagogical, Americanizing role that he had previously assumed as a prosecutor. This was precisely the point made in 1915 by Newton A. Fuessle, another journalist and novelist, in an article aptly entitled The People's Court: Making Americans by Justice. (137) According to Fuessle, "Judge Manuel Levine gave Cleveland its Court of Conciliation, just as he gave Cleveland last year its first great Fourth of July reception for newly naturalized citizens--a ... forerunner of the year's 'Americanization Day' celebrations ...." (138) As suggested by this reference to Americanization Day--a celebration organized in 1915 by Progressive lawyer Frances Kellor and the National Americanization Committee that she headed (139)--Levine's conciliation court was an instrument for promoting Americanization. "[A] forum of common sense, unfettered by technicalities" and with "judges [who] are peacemakers," the conciliation court decided disputes without lawyers "confusing] litigants" and with "[e]ach party tell[ing] his story in his own language." (140) The end result was that "Levine had done for Cleveland's immigrants what no one else had ever thought of doing. He took away the fear of the law, and stimulated them to right living and fair dealing." (141)

    What enabled Levine to deploy the "Conciliation Branch" of the municipal court as such an effective method of Americanization? The official Progressive line was that by simplifying procedure, courts of small claims and conciliation eliminated the technicalities that prevented the just outcome from emerging as a self-evident truth. In Smith's words, "after rules of pleadings, procedure, and evidence have been eliminated, there is nothing left for the lawyer to do." (142) Progressive lawyers were thus careful to insist that, unlike the European model of the conciliation court rejected by their nineteenth-century predecessors, these new American courts did not afford what Max Weber termed "kadi justice" --namely, a form of personalized justice, which hinged on the judge's high status within the community (and concomitant ability to secure deference to his judgments). (143) Instead, Progressive lawyers argued, courts of small claims and conciliation merely enforced generally applicable rules of law in a procedurally simplified and therefore more cost-effective manner.

    In seeking to distance small claims and conciliation courts from kadi justice, Progressives frequently referred to Harun al-Rashid--the Abbasid Caliph of late eighth- and early ninth-century Baghdad who was famously depicted in the Arabian Nights as a quintessentially just ruler. (144) Consider, for example, the following passage from the 1924 report of the ABA's Committee on Small Claims and Conciliation Procedure: "The justice of the case [in courts of small claims and conciliation] is determined ... not as the arbitrary ruling of an untrammeled despot and not as the merciful dispensation of a Haroun-el-Raschid, but according to law." (145) In much the same way, Smith rejected the notion that Levine was a "Haroun-al-Rashid, the inference being that he dispense^] a sort of Oriental justice without regard to rules of law." (146) Although Levine's court "exercises wide equity powers," it was, Smith claimed, "[f]undamentally ... a court of law." (147) Underlying this effort to distance small claims and conciliation courts from kadi justice was an inchoate understanding among Progressive legal elites that an institution in which the judge's legitimacy hinged on his high communal standing, rather than his legal knowledge, did not necessarily play to their strengths.

    But while Progressive lawyers tended to insist that courts of small claims and conciliation based their decisions on generally applicable law, their counterparts in journalism were not so sure. A close examination of Levine's Cleveland-based court, they implied, revealed that it was the judge's position of leadership within the Jewish immigrant community, rather than his legal knowledge, that accounted for his success in promoting conciliation and establishing the court's legitimacy. As Poole was careful to highlight, Levine came from the same Jewish immigrant community as "the Czar" and his corrupt compatriots. (148) He was "a Russian Jew" who had learned "the meaning of despotism" as a young man exposed to "the flogging of women and children by Cossacks and police." (149) Having heard "in secret meetings" about "the American Constitution ... [and] the Declaration of Independence," Levine had managed to "escape[] across the Russian frontier and had come to America, full of hopes and dreams and ideals of this mighty free Republic." (150) Horrified to discover that, just as a czar controlled Russia, so too a czar controlled much of Cleveland, he became despondent. But then he discovered "Hiram House," one of the first settlement houses in the country, and "[h]ere, from George Bellamy, the head worker [and founder] of the House, he began to get other ideas of American city life." (151) Infused with these Progressive ideas, Levine began teaching himself English, "joined a social reform club," and while "work[ing] sixteen hours a day" somehow managed to earn a law degree through night school. (152)

    Having pulled himself up by his own bootstraps--with the assistance of Progressive reformers--Levine was an object lesson in what Progressive urban reform could achieve. He and his Progressive backers were thus determined that he should be the one to persuade his fellow immigrants to turn their loyalty from the (local and foreign) czar to American law and justice. As Poole explained, "through the help of Bellamy and other friends, [Levine] was appointed an assistant police prosecutor." (153) And in selecting Levine for the position, the District Attorney remarked: "'I ... [did so] ... because I knew I could trust him to show his own people, the immigrants, that, in spite of all they had learned, there was such a thing as justice in America--equality before the law.'" (154) In short, Poole concluded, Levine's success proved that immigrants themselves had a special role to play in solving the "immigrant problem" then facing American cities:

    There are many men of this stamp...

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