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Winter 2019
Image:
“Men exist for the sake of one another. Teach them then or bear with them.” – Marcus Aurelius Antoninus, Meditations, VIII:59. From the series Great Ideas of Western Man. Jacob Lawrence, 1958, painting, oil on fiberboard, Smithsonian American Art Museum, gift of Container Corporation of America, object number 1984.124.171. © 2018 by The Jacob and Gwendolyn Knight Lawrence Foundation, Seattle / Artists Rights Society (ARS), New York.

“Access to Justice” – the first open access issue of Dædalus – features twenty-four essays that examine the national crisis in civil legal services facing poor and low-income Americans: from the challenges of providing quality legal assistance to more people, to the social and economic costs of an often unresponsive legal system, to the opportunities for improvement offered by new technologies, professional innovations, and fresh ways of thinking about the crisis.



All essays in the Winter 2019 issue of Dædalus are freely accessible below. 
Click “purchase issue” to obtain a print copy. 

Image:
“Men exist for the sake of one another. Teach them then or bear with them.” – Marcus Aurelius Antoninus, Meditations, VIII:59. From the series Great Ideas of Western Man. Jacob Lawrence, 1958, painting, oil on fiberboard, Smithsonian American Art Museum, gift of Container Corporation of America, object number 1984.124.171. © 2018 by The Jacob and Gwendolyn Knight Lawrence Foundation, Seattle / Artists Rights Society (ARS), New York.
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Introduction

“Emblazoned on the facade of the United States Supreme Court building are four simple words intended to embody the overriding principle of the U.S. legal system: EQUAL JUSTICE UNDER LAW. Yet after more than 225 years, the nation still has not developed the means to fulfill this principle.”

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How Rising Income Inequality Threatens Access to the Legal System

Incentives that lead sellers to introduce quality improvements and cost-saving innovations in competitive markets also ensure that no opportunity to cheat consumers remains unexploited. That difficulty underlies many American laws. But many people lack the income necessary to pay for legal interventions against unjust treatment, preventing them from meeting basic needs, like protection against financial fraud and abusive relationships. Growing income inequality has made this justice gap worse by reducing public funds available for legal aid in real terms, while also making it more difficult for low-income people to make ends meet. Simple policy changes could ease both problems without sacrifices from anyone. Those who could afford tax increases necessary to pay for more social services, including competent legal representation for everyone, resist this step because they believe that it would make it harder to buy the special things they want. But that belief is incorrect because the supply of special things is limited. The ability to bid successfully for them is unaffected by higher taxes, which do not affect relative purchasing power.

Author Robert H. Frank
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The Invisible Justice Problem

Understanding is sparse about the lives of people who are poor and struggling economically and who need help in solving a legal problem and don’t get it. Politics over the past half-century has made them largely invisible. In that period, attacks of the right on the provision of access to justice have rested on the triumph of laissez-faire views: the fresh embrace of markets and the free-enterprise system. The upshot has been the winner-take-all economy of the past generation, in which improved access to justice is largely a nonissue. For access to become a priority of a national movement, it needs champions in national politics, not just in the legal profession. It needs powerful champions who advocate for greatly increased and improved access to justice as a primary American commitment.

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Reclaiming the Role of Lawyers as Community Connectors

With the prospect of nonlawyers stepping in to do low-fee legal work, how should the legal profession conceive of its relationship to that work and ensure that nonlawyers bolster rather than undermine the value that lawyers add to society? Lawyers should reclaim their role as connectors in their communities: interstitial figures with the knowledge, skill, and trust to help resolve disputes, move beyond stalemates, dispel tensions, and otherwise bring people and resources together in productive solutions. They should do so, at least in part, through pro bono work for poor and low-income clients. It would be a mistake to stand in the way of innovative solutions to the justice gap. But it would also be a mistake, and a deep loss, if lawyers – particularly those who do not normally represent poor and low-income clients – turned their backs on the poor and low-income segments of our society.

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More Markets, More Justice

People lack access to justice because the law is complex and expensive to use. Basic mechanisms of market competition can reduce both the complexity and the cost of law while securing law’s principal function in society, which is to coordinate a community around a shared understanding of what is and what is not allowed. Creating markets for rules will make for better law and better legal systems by allowing people and organizations to select the rules and dispute-resolution processes that are best for them in a market in which providers of regulation compete on terms of cost and quality. Legal rules require special protection to make sure they deliver a more just, equitable world for all; this protection can be provided through a “superregulator,” which licenses providers of law and legal services to sell their services in competitive markets.

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Access to What?

The access-to-justice crisis is bigger than law and lawyers. It is a crisis of exclusion and inequality. Today, access to justice is restricted: only some people, and only some kinds of justice problems, receive lawful resolution. Access is also systematically unequal: some groups – wealthy people and white people, for example – get more access than other groups, like poor people and racial minorities. Traditionally, lawyers and judges call this a “crisis of unmet legal need.” It is not. Justice is about just resolution, not legal services. Resolving justice problems lawfully does not always require lawyers’ assistance, as a growing body of evidence shows. Because the problem is unresolved justice issues, there is a wider range of options. Solutions to the access-to-justice crisis require a new understanding of the problem. It must guide a quest for just resolutions shaped by lawyers working with problem-solvers in other disciplines and with other members of the American public whom the justice system is meant to serve.

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The Right to Civil Counsel

The U.S. Constitution grants no categorical right to counsel in civil cases. Undaunted, the legal profession’s renewed effort to improve access to justice for low-income unrepresented civil litigants includes a movement to establish this right. How this right is implemented turns out to be as important as whether such a right exists. To be effective, any new right must be national in scope, adequately funded, and protected from political influence. Lawyers must be available early and often in the legal process, so that they can provide assistance for the full scope of their client’s legal problem and prevent further legal troubles. A right to civil counsel should encompass proceedings where basic needs are at stake, and not be influenced by inadequately informed judgments of who is worthy of representation.

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The New Legal Empiricism & Its Application to Access-to-Justice Inquiries

The United States legal profession routinely deals with evidence in and out of courtrooms, but the profession is not evidence-based in a scientific sense. Lawyers, judges, and court administrators make decisions determining the lives of individuals and families by relying on gut intuition and instinct, not on rigorous evidence. Achieving access to justice requires employing a new legal empiricism. It starts with sharply defined research questions that are truly empirical. Disinterested investigators deploy established techniques chosen to fit the nature of those research questions, following established rules of research ethics and research integrity. New legal empiricists will follow the evidence where it leads, even when that is to unpopular conclusions challenging conventional legal thinking and practice.

Author D. James Greiner
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The Public’s Unmet Need for Legal Services & What Law Schools Can Do about It

Civil legal services in the United States are increasingly unaffordable and inaccessible. Although the causes are complex, law schools can help in three ways beyond simply offering free legal clinics staffed by lawyers and students. Law schools can teach the next generation of lawyers more efficient and less expensive ways to deliver legal services, ensure that educational debt does not preclude lawyers from serving people of modest means, and conduct and disseminate research on alternative models for delivering legal services. These strategies will not solve all of the problems that exist, but they hold the promise of meaningfully improving the affordability and accessibility of civil legal services.

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Access to Power

The traditional approaches to “access to justice” obscure the current distribution of economic, social, and political power, and how that distribution favors those who have power and burdens those who do not. Consequently, the traditional approaches foreclose possibilities for a truly just society. In the law clinic we led together for five years, we developed models of lawyering with our students and community partners focused on how lawyers can contribute to the redistribution of power in society from those who accumulate and deploy it to those who are deprived of it.

Authors Sameer Ashar and Annie Lai
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The Center on Children & Families

The University of Florida Levin College of Law Center on Children and Families addresses the instability many children face due to a wide range of challenges. They include poverty, violence, and the criminalization of youth of color. They also include inadequate health care, substandard educational opportunity, and the general failure of systems designed to support, protect, and treat children who are classified as dependent, delinquent, or otherwise in need. The Center’s model rests on five premises that Professor Barbara Woodhouse and colleagues identified in their scholarship as essential for addressing crises rather than mitigating symptoms: curriculum, scholarship, conferences, advocacy, and clinics. Over the years, the Center has held numerous conferences to advance groundbreaking, practical research on family law and children’s rights and has held youth summits in connection with those conferences to engage with youth on relevant legal issues. These efforts remain at the conceptual heart/core of the Center’s work.

Author Shani M. King
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Techno-Optimism & Access to the Legal System

For legal technologists, apps raise the prospect of putting the law in the hands of disadvantaged people who feel powerless to deal with their legal problems. These aspirations are heartening, but they rest on unrealistic assumptions about how people living in poverty deal with legal problems. People who are poor very rarely resort to the law to solve their problems. In the situations when they do seek solutions, they confront educational and material impediments to finding, understanding, and using online legal tools effectively. Literacy is a significant barrier. More than 15 percent of all adults living in the United States are functionally illiterate, meaning that, at best, they read at the fourth-grade level. Inadequate access to the Internet and limited research skills compound the challenges. To reach people from marginalized groups, access-to-justice technologies need to be integrated with human assistance.

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Marketing Legal Assistance

Much of the American conversation about access to justice focuses on regulatory barriers to new forms of service delivery and treats regulatory resistance as the primary problem to be solved. Meanwhile, obstacles to consumer awareness and engagement have received less attention. This essay reverses the order of analysis and considers strategies for expanding access first from a marketing perspective. What models of legal assistance have been most successful in building consumer awareness and trust? To what extent can successful marketing help to sidestep or overcome regulatory resistance? And what are the implications for reformers interested in expanding access to justice?

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Community Law Practice

Community-embedded law practices are small businesses that are crucial in addressing the legal needs that arise in neighborhoods. Lawyers in these practices attend to recurring legal needs, contribute to building a diverse profession, and spur community development of modest-income communities through legal education and services. Solo practitioners and small firm lawyers represent the largest segment of the lawyer population in the United States, yet their contributions to addressing the legal needs of modest-income clients are rarely recognized or studied. This essay sheds light on the characteristics, motivations, and challenges these law practices face in providing access to justice to modest-means communities.

Author Luz E. Herrera
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The Role of the Legal Services Corporation in Improving Access to Justice

The Legal Services Corporation is the United States’ largest funder of civil legal aid for low-income Americans. The LSC funds legal-aid programs that serve households with annual incomes at or below 125 percent of the federal poverty guideline. Legal-aid clients face a wide variety of civil legal problems: wrongful evictions, mortgage foreclosures, domestic violence, wage theft, child custody and child support issues, and denial of essential benefits. This vital work is badly underfunded. The shortfall between the civil legal needs of low-income Americans and the resources available to address those needs is daunting. Federal funding is necessary because support for civil legal aid varies widely from state to state. The LSC uses the “justice gap” metaphor to describe the shortfall between legal needs and legal services. Narrowing the gap is central to the LSC’s mission.

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Participatory Design for Innovation in Access to Justice

Most access-to-justice technologies are designed by lawyers and reflect lawyers’ perspectives on what people need. Most of these technologies do not fulfill their promise because the people they are designed to serve do not use them. Participatory design, which was developed in Scandinavia as a process for creating better software, brings end users and other stakeholders into the design process to help decide what problems need to be solved and how. Work at the Stanford Legal Design Lab highlights new insights about what tools can provide the assistance that people actually need, and about where and how they are likely to access and use those tools. These participatory design models lead to more effective innovation and greater community engagement with courts and the legal system.

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Simplified Courts Can’t Solve Inequality

State civil courts struggle to handle the volume of cases before them. Litigants in these courts, most of whom are unrepresented, struggle to navigate the courts to solve their problems. This access-to-justice crisis has led to a range of reform efforts and solutions. One type of reform, court simplification, strives to reduce the complexity of procedures and information used by courts to help unrepresented litigants navigate the judicial system. These reforms mitigate but do not solve the symptoms of the larger underlying problem: state civil courts are struggling because they have been stuck with legal cases that arise from the legislative and executive branches’ failure to provide a social safety net in the face of rising inequality. The legal profession and judiciary must step back to question whether the courts should be the branch of government responsible for addressing socioeconomic needs on a case-by-case basis.

Authors Colleen F. Shanahan and Anna E. Carpenter
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Corporate Support for Legal Services

The gap in pro bono legal services provided by corporate legal departments and large private law firms is not surprising: The formalization of pro bono work by large firms has been underway on a significant scale for far longer than it has within corporations. This process has made large firm pro bono efforts more efficient and effective through improved practices. It has also led firm leaders and lawyers generally to expect more volunteerism of this sort. Companies that apply their resources, business experience, or other assets have successfully expanded the impact of their pro bono hours. Because of the scale of this need, and because legal-services lawyers have specialized expertise that corporate lawyers can’t easily replicate, corporate pro bono efforts will not, on their own, close the justice gap. But these efforts have the potential to contribute significantly more to the ability of legal-aid organizations to serve their clients, and to help close this gap.

Author Jo-Ann Wallace
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Justice & the Capability to Function in Society

All over the world, civil legal problems are ubiquitous. But while all groups in every society that has been studied experience civil justice problems, these problems and their consequences do not fall equally. Socially disadvantaged people report more problems, more serious problems, and more negative consequences from them. The lack of legal capability – the lack of the capacity to understand and act on justice problems – plays a key role in creating these inequalities. A growing evidence base should support and enable global, national, and other policy-makers to achieve stated policy goals and enable people to respond effectively to the myriad legal problems that can threaten their aspirations and well-being.

Authors Pascoe Pleasence and Nigel J. Balmer
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Why Big Business Should Support Legal Aid

Corporations are part of the fabric of society. As members of American society – often, very powerful and influential ones – corporations have a deep interest in the health of the nation’s democracy, a mainstay of which is the system of justice writ large. The concept of justice for all is so important to this democracy that the founders placed it in the Constitution’s first line. But the system is not perfect. Attaining equal justice for all citizens and governing by the rule of law too often are merely aspirations. Corporations have a stake in ensuring that their disputes with others are resolved fairly, in a legal system that is viewed as treating all litigants equally under the law, regardless of size, wealth, or power. Corporate engagement in strengthening legal services in the United States is, in this way, an expression of corporate self-interest.

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Executive Branch Support for Civil Legal Aid

For government, access to justice is about more than legal justice. Legal services are essential tools to enable government programs to achieve a wide range of goals that help to provide an orderly, prosperous, and safe country. Recent efforts have transformed how some federal and state government officials think about and use civil legal aid to get their work done. Key in convincing them has been empirical evidence about the effectiveness and cost-efficiency of including legal services alongside other supportive services.

Author Karen A. Lash
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Why Judges Support Civil Legal Aid

To fulfill their role as neutral deciders in an adversarial legal system, judges need lawyers. Unrepresented litigants tax the court system and burden the people who work in it. Judges around the country, of all political stripes, are resolute in their support of civil legal aid. Judges support civil legal aid because they value equal justice and the protection of the disadvantaged. They support legal aid because it assists in the efficient and effective administration of the courts they run. They also support legal aid out of self-interest, because it makes their work lives less threatened and more effective.

Author Fern A. Fisher
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Lawyers, the Legal Profession & Access to Justice in the United States: A Brief History

Ideally, justice is a universal good: the law protects equally the rights of the rich and powerful, the poor and marginal. In reality, the major share of legal services goes to business entities and wealthy people and the prestige and prosperity to the lawyers who serve them. This essay deals with the history of access to justice – chiefly civil justice – and with the role of lawyers and organized legal professions in promoting and restricting that access. In the last century, legal professionals and others have taken small steps to provide access to legal processes and legal advice to people who could not otherwise afford them. By doing so, they have inched closer to the ideals of universal justice. Though the organized bar has repeatedly served its own interests before those of the public, and has restricted access to justice for the poor, it has been a relatively constructive force.

Author Robert W. Gordon