Advancing Equal Access to Justice: Barriers, Dilemmas, and Prospects

Hon. Tani G. Cantil-Sakauye

Volume 67, Issue 5, 1181-90

Keynote Address: University of California Hastings College of the Law, November 12, 2015

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How to Regulate Legal Services to Promote Access, Innovation, and the Quality of Lawyering

Gillian K. Hadfield and Deborah L. Rhode

Volume 67, Issue 5, 1191-224

Scholars and critics have for decades advocated change in the professional regulation of legal services markets in order to solve the ever-widening gap in access to justice. One of the central obstacles to change has been concern about the impact of opening legal markets to new practitioners and business models on central professional values such as competence, loyalty, and independence. This Article argues that good regulatory solutions are available to ensure that more open and flexible professional models—ones that allow the practice of law by alternative providers and business structures—deliver high quality, lower cost, greater innovation, and more access to those currently excluded from our justice systems. Part I explores the rationale for regulating the legal services market, and argues that oversight structures should be more responsive to differences in the risks that consumers face in various legal contexts. Part II surveys regulatory options: prescriptive, performance based, management based, and competitive or meta-regulation. Part III reviews the promising strategies that the United Kingdom has recently pioneered to promote access, innovation, and quality. Part IV analyzes regulatory options for the United States and the applicability of U.K. approaches in this country. Attention also focuses on the contributions and limitations of Washington’s recent program to recognize limited license legal technicians. We conclude with proposals for more effective national regulatory models.

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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.

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Bridging the Justice Gap in Family Law: Repurposing Federal IV-D Funding to Expand Community-Based Legal and Social Services for Parents

Stacy Brustin and Lisa Martin

Volume 67, Issue 5, 1265-98

Parents in family court overwhelmingly proceed pro se; however, in child support courtrooms, government attorneys representing the state child support agency frequently play a pivotal role. These attorneys represent the state’s ostensible interests in ensuring that children are financially supported and in preventing welfare dependence; they do not represent individual parents. The outcomes of child support proceedings have profound, long-term constitutional and financial implications for parents, yet litigants rarely understand their rights or the role of the government.

Originally, the goal of state child support enforcement efforts was to recapture the costs of welfare expenditures. In 1990, two-thirds of cases involved families receiving public assistance. However, this number has declined dramatically and public assistance cases constitute only fourteen percent of the states’ caseloads. Recognizing that cost recapture is no longer a sustainable mission, the federal program administering the funding of state support agencies has attempted to rebrand the mission to one promoting shared parenting. Although well-intentioned, this shift in mission has led to proposals that would further increase government involvement in private family law matters and threaten due process for parents determining whether and how to share parenting responsibilities.

Rather than enlarging the government child support apparatus, it is time to reevaluate the role of the state and devise new mechanisms for ensuring effective family dispute resolution. This Article proposes that state child support agencies focus on areas in which the government has a clear state interest and specialized capability, for example, identification of income and assets; collection and distribution of child support payments; and administrative enforcement. Rather than continuing to fund state cadres of child support enforcement attorneys and expand their involvement in private family law disputes, the Article suggests that Congress and state legislatures redirect funding to community-based legal and social services organizations that can provide expertise, neutrality, and a range of assistance in custody, parental access, and child support matters involving low-income families.

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From Victims to Litigants

Elizabeth L. MacDowell

Volume 67, Issue 5, 1299-330

This Article reports findings from an ethnographic study of self-help programs in two western states. The study investigated how self-help assistance provided by partnerships between courts and nongovernmental organizations implicates advocacy and access to justice for domestic violence survivors. The primary finding is that self-help programs may inadvertently work to curtail, rather than expand, advocacy resources. Furthermore, problems identified with self-help service delivery and negative impacts on advocacy systems may be explained by the structure of work within self-help programs and the nature of partnerships to provide self-help services. The Author uncovers previously unseen impacts of self-help programs on survivors and on the resources to help them. She concludes with a discussion of the implications for future research directions and describes what can be done now to improve self-help services for survivors.

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A Comparison Between the American Markets for Medical and Legal Services

Ben Barton

Volume 67, Issue 5, 1331-66

America’s access to justice woes are paradoxical. We have more lawyers than every country except India and more lawyers per capita than every country except for Israel. We spend more on law as an absolute amount or as a percentage of GDP than any other country. At the high end, we provide best legal services in the world.

And yet we barely provide any legal services to the very poor, and our lawyers cost too much for the working poor or even the middle class. We graduate so many juris doctors that as many as a third fail to find work as a lawyer, despite clear signs of demand within the middle class. Why the mismatch between supply and demand? Why do we spend so much on law and provide so little? It turns out there is another American market for professional services that shares some of the same puzzling features: medicine. We spend more than any other country on law and medicine, and yet we have relatively poor outcomes in both.

This Article discusses the central puzzle in law and medicine: why do we pay so much and get so little? Law and medicine serve three different, very distinct American populations: the wealthy, the very poor, and the working poor. The wealthy and corporations get the very best in the world services. The very poor get at least some access to services. The working poor, however, are often worst off in America. Too “wealthy” to qualify for government subsidized services and too poor to pay out of pocket for a doctor or lawyer, this population is often squeezed out. The Article then asks what role professional regulation and education plays in this dynamic, and considers whether legislative help is very likely in law, using the passage of the Affordable Care Act as a model.

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Can a Little Representation Be a Dangerous Thing?

Colleen F. Shanahan, Anna E. Carpenter, and Alyx Mark

Volume 67, Issue 5, 1367-88

Access to justice interventions that provide a little representation, including nonlawyer representation and various forms of limited legal services, may be valuable solutions for low- and middle-income Americans. However, a thoughtful approach to improving access to justice efforts should recognize that a little representation may have risks. In particular, one potential risk of a little representation is that while it provides assistance with a discrete legal need in a specific moment, the nature of the assistance is incompatible with challenging the law. As a result, individual litigants do not have the benefit of legal challenges in their own cases, and our legal system develops devoid of law reform that reflects the needs of low- and middle-income litigants.

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Litigants Without Lawyers: Measuring Success in Family Court

Marsha M. Mansfield

Volume 67, Issue 5, 1389-426

As thousands of litigants access our court systems without lawyers, the debate whether these litigants receive procedural and substantive justice has intensified. Nationwide, eighty percent of those accessing the court system in a family law matter do so without the assistance of a lawyer. As the numbers continue to increase exponentially and access to free or low cost legal services diminishes, courts, lawyers, legal service organizations, and law schools throughout the country continue to experiment with alternates to full-scale representation that can provide self-represented litigants with adequate legal assistance.

Although some researchers have analyzed the overall success ratio for cases where legal representation has been offered or provided in contrast to limited scope or no legal assistance, little measurement has been undertaken to quantify the success of these courthouse clinics over self-representation. The project described in this Article is an attempt to measure that success.

This Article describes the legal landscape for family law litigants across the nation and efforts to provide access to justice for self-represented litigants. The Article then explains a study of self-represented family law litigants in Dane County, Wisconsin. Two groups of cases are analyzed: family law cases processed through the Dane County court system during 2010 where neither party was represented by counsel, and cases, during the same time period, where self-represented litigants received legal assistance from students at the University of Wisconsin Law School’s Family Court Clinic. A survey of those users was undertaken to determine whether the services provided enabled self-represented litigants to successfully complete the legal task for which they sought assistance.

The Article then discusses methodologies and reforms that may better address the needs of self-represented litigants. This study has implications for restructuring legal practice as well as for improving self-help initiatives.

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Collection Texas-Style: An Analysis of Consumer Collection Practices in and out of the Courts

Mary Spector and Ann Baddour

Volume 67, Issue 5, 1427-67

As many as forty-four percent of Texans with credit files have nonmortgage debt in collection; this is more than ten percent above the national average. The Authors provide a snapshot of collection practices employed in Texas over a two-year period following the enactment of new court rules governing the litigation of most collection cases. Using a combination of quantitative and qualitative methods, they consider data in three general categories: (1) consumer complaints to the state and federal agencies; (2) court outcomes over a two-year period along with related demographic data; and (3) court observations conducted in five counties with a review of the websites for each of the courts within those counties. The Authors find that for many Texans, consumer debt collection means threats and intimidation that disrupt their family and work lives. While they also found that the default judgment rate in consumer collection cases was slightly lower than reported in a previous study, they found that it appears to be growing, signaling that more work remains to be done. The Authors recommend a number of reform efforts that include steps to increase the quantity and quality of information provided to consumers at all stages of the collection process and to increase enforcement of existing protections. To the extent that court proceedings remain an integral part of that process, the Authors also recommend further standardization of court procedures to ensure only valid claims are raised. They also encourage courts to actively participate in efforts to ensure that the protection of consumer rights does not stop at the courthouse door.

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Designing the Competition: A Future of Roles Beyond Lawyers? The Case of the USA

Rebecca L. Sandefur and Thomas M. Clarke

Volume 67, Issue 5, 1467-92

Most of the civil justice problems Americans experience never receive service from an attorney. Indeed, daily around the country, thousands of people arrive at court not only without a lawyer to represent them, but also without an understanding of where to go, what to do, or what will happen while they are there. Many jurisdictions are experimenting with models for assisting unrepresented people through the use of “roles beyond lawyers,” roles staffed by people who are not fully qualified attorneys but perform some of the tasks traditionally performed only by attorneys. One interesting aspect of these developments is their source: courts and bar associations, stewards of the jurisdictional core of the legal profession, are in a sense designing their own competition as they create these new roles that nibble at the U.S. legal profession’s strong monopoly on both representation and legal advice. This project creates frameworks for evaluating the functioning and impacts of these emerging programs, with a particular focus on their potential to contribute to solving the contemporary crisis in access to justice, sometimes termed the “justice gap.” One framework identifies elements on which any such program should be evaluated, focusing on the key challenges of appropriateness, efficacy, and sustainability. The other framework identifies key choice points in program design that are likely to affect programs’ success at meeting the three key challenges.

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