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Why civil courts’ larger problems can’t be simplified away

Tad Simons
Thomson Reuters

One core tenet of the court-simplification movement is the idea that pro se litigants should be able to navigate the legal system themselves in order to have access to the justice they seek. But what if that approach turns out in some instances to be counter-productive, especially in civil court?

What if, by simplifying the courts — and expecting low-income people without representation to make productive use of the do-it-yourself tools available to them — the courts are inadvertently hindering access to justice? What if the systemic imbalances are so great, and the socioeconomic issues involved so oppressive, that no amount of simplification will help? And what if, by trying to empower pro se litigants, we are paradoxically disempowering them, by providing them just enough legal rope to hang themselves, but not enough to pull them out of the cycle of poverty, despair, and dysfunction that landed them in court in the first place?

In a nutshell, that’s the argument offered by lawyers Colleen Shanahan and Anna Carpenter in the most recent issue of the independent academic journal Daedulus, which dedicated its entire Winter 2019 issue to essays on access to justice.

In their article, “Simplified Courts Can’t Solve Inequality,” Shanahan and Carpenter make the counterintuitive argument that more simplification isn’t necessarily better, especially if it means ignoring the consequences of growing inequality. Reform is definitely necessary, they agree, but it should be done with the understanding that civil courts are overwhelmed and are being asked to take on a social role for which they were not designed: namely, adjudicating matters arising from socioeconomic need, but without the resources to actually help people solve the underlying issues that initially brought them to court. 

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