Eighteenth-century constitutional commitments guaranteeing rights-to-remedies were shaped when members of the propertied classes were the prototypical litigants and governments' criminal justice systems were nascent. Twentieth-century egalitarian norms expanded the imagination of what justice could produce, and courts turned into sites of democracy. The particular and peculiar practices of adjudication produce, redistribute, and curb power among disputants who disagree in public about the import of legal rights. But new procedures—alternative dispute resolution (ADR)—encourage, and sometimes require, disputants to mediate or to arbitrate disputes privately as a predicate to or in lieu of using the public forum of courts.

In New York, millions of civil litigants each year fight for the necessities of life without the aid of a lawyer because they are unable to afford one. While the state courts strive to provide access to justice for all constituents, this ideal becomes a promise unfulfilled due to the lack of available civil legal services for low-income populations. In this essay, I discuss access to justice in the state courts from the perspective of my role as Chief Judge of the State of New York.

When the quality of lawyering is inadequate, courts are frustrated in their adjudicative role. Nowhere is this more apparent than in cases involving immigrants hoping to fend off deportation. As an appellate judge on a court whose immigration docket reached 40 percent of our caseload, I have too often seen deficient legal representation of immigrants. Although courts are reactive, resolving cases before them, judges can systematically promote the fair and effective administration of justice.

The landmark case of “Gideon v. Wainwright” (1963) ensured the right of criminal defendants across the country to the effective assistance of counsel, but the overwhelming consensus is that the promise of “Gideon” has not been kept. Although there are significant differences in the delivery of indigent defense services across the country, there are four general reasons for the failure of “Gideon” that obtain across every jurisdiction and collectively cover much of the explanatory terrain.