Lifting the “American Exceptionalism” Curtain: Options and Lessons from Abroad
Earl Johnson Jr.
Volume 67, Issue 5, 1225-64
Contrary to its public rhetoric promising “justice for all” and “equal justice under law,” access to civil justice in the United States is “exceptional” only in a negative sense. The Rule of Law Index ranks our nation next to last among the world’s thirty-one “richest” countries. A major reason for this is that most of our fellow industrial democracies have a right to counsel in civil cases and invest from three times to ten times more than the United States on civil legal aid. Beyond these differences, the United States has much to learn from research and other developments in foreign countries. Studies in England about how poor and moderate income deal with their justiciable problems suggest that unmet “effective demand” for lawyer services is substantially less than unmet “legal needs” recorded in legal needs studies—because even with a right to counsel many people instead resolved their problems in other ways. A study in Canada found that those in the upper income quartile spent 167 times more than those in the bottom quartile resolving their legal problems, even though their problems often were less disruptive than those the bottom quartile confronted. A survey of past and present innovations covers the following: (1) Belgium’s problematic system that encourages individual lawyers to provide as much representation as they can while at the same time limiting what the government will pay out for the total amount of legal services rendered each year; (2) Dutch “lokets,”a nationwide network of offices where people can receive advice and brief assistance from a paralegal staff; (3) Dutch “Rechtwijzer 1.0 and 2.0,” online dispute assistance and online dispute resolution; (4) English “McKenzie friends” which allows nonlawyers to accompany unrepresented litigants to the courtroom and render limited assistance; and (5) partially subsidized lawyers for the lower middle classes and legal expense insurance for the middle classes found in several European countries.