Category Archives: Access to Justice
New Article: “Roadblocks to Access to Justice: Reforming Ethical Rules to Meet the Special Needs of Low-Income Clients”
New Article: Louis S. Rulli, Roadblocks to Access to Justice: Reforming Ethical Rules to Meet the Special Needs of Low-Income Clients, 17 U. Penn. J.L. & Soc. Change 347 (2014). Abstract below:
The nation’s growing justice gap has left the poor with far too little access to legal representation, even in the most serious of civil matters. With poverty rates approaching their highest levels in the last fifty years, the poor struggle to hold on to their homes, their jobs, and their families, frequently overmatched by superior resources and an abundance of opposing lawyers representing corporations, government, and well-heeled interests. Non-profit lawyers struggle to provide limited assistance to the poor in high volume, community settings, or in courtroom corridors and on telephone hot lines. It is in these non-traditional settings that lawyers should ask whether the Model Rules of Professional Conduct promote or hinder access to justice? Or, stated differently, have the Model Rules kept pace with a rapidly changing legal environment that increasingly departs from the traditional lawyering paradigm upon which our ethical rules are largely based?
Model Rule 6.5, one of the few new ethical rules adopted over the past fifteen years aimed directly at serving the poor, can be seen as proof that certain ethical restrictions on lawyers may be relaxed safely in non-profit settings, without doing any harm to the legal profession or the public. Still, this rule hardly goes far enough. Ethical restrictions on lawyers relating to document assistance, financial assistance to clients, and withdrawal of representation, to name just a few, are grounded on assumptions applicable to a profit-making paradigm. Rather than promoting legitimate interests, these limitations hinder access to justice for the poor. Comprehensive reform of our ethical rules is long overdue. The ABA should form a blue-ribbon commission designed to examine the Model Rules from the perspective of how legal services are increasing delivered to the poor and accessed by low-income communities. The members of a blue-ribbon commission should be drawn heavily from leaders of legal aid and pro bono organizations, along with state court judges, who have deep experience with the delivery of legal services to underserved communities.
New Article: Jessica K. Steinberg, Demand Side Reform in the Poor People’s Court, 47 Conn. L. Rev. 741 (2015). Abstract below:
A crisis in civil justice has seized the lowest rungs of state court where the great majority of American justice is meted out. Nineteen million civil cases are filed each year in the so-called “poor people’s court,” and seventy to ninety-eight percent of those matters involve an unrepresented litigant who is typically low-income and often a member of a vulnerable population. This Article challenges the predominant scholarly view in favor of “supply side” remedies for improving access to justice—that is, remedies focused exclusively on supplying counsel to litigants, either through adoption of “civil Gideon,” a universal civil right to counsel, or through the provision of “unbundled,” or limited, legal services—arguing that such an approach is practically and conceptually unworkable. Courts and legislatures have rejected attempts to expand a civil right to counsel and initial data suggests that the delivery of limited legal services produces anemic, if any, improvements in substantive fairness for the unrepresented. This Article sets forth a vision of “demand side” procedural and judicial reform as an alternative, or complementary, theory of civil justice. Demand side reform would charge courts, rather than parties, with the duty to advance cases and develop legally relevant narratives, thereby focusing on institutional change that would strengthen due process for the great majority of litigants in the American justice system. This proposal builds upon the Supreme Court’s recent holding in Turner v. Rogers that “alternative procedural safeguards” must be implemented to ensure due process for civil contemnors, and offers unrepresented litigants a viable mechanism for dispute resolution that—unlike the supply side approach— does not perpetuate court processes requiring party initiative and expertise.
New Article: “How a Civil Right to Counsel Can Help Dismantle Concentrated Poverty in America’s Inner Cities”
New Article: Pamela Cardullo Ortiz, How a Civil Right to Counsel Can Help Dismantle Concentrated Poverty in America’s Inner Cities, 25 Stan.L.& Pol’y Rev. 163 (2014). Abstract below:
This Article addresses the challenge of concentrated poverty and suggests that the creation of a civil right to counsel can be a powerful opportunity to enhance low-income inner-city neighborhoods, to empower those who live there, and to create new opportunities, new choices, and socio-economic mobility in our cities. It will explore several strategies that have been proposed for improving neighborhood conditions and promoting mobility and discuss the potential legal strategies that might be employed by poor residents in advancing these strategies.
New Article: “Embracing Disruption: How Technological Change in the Delivery of Legal Services Can Improve Access to Justice”
New Article: Raymond H. Brescia, Walter Alan McCarthy, Kellan Burton Potts, Cassandra Rivais & Ashley M McDonald, Embracing Disruption: How Technological Change in the Delivery of Legal Services Can Improve Access to Justice, 78 Albany L. Rev. __ (2014). Abstract below:
The legal profession is in the midst of a disruption: a monumental, transformative shift in shape and focus that will change the practice of law forever. Some lament this phenomenon. Some worry that it signals the end of Big Law, and that it will have ripple effects throughout the legal industry. Many assess the impact of these disruptions on the delivery of services to wealthier clients and corporations, who, in many instances, are the only ones able to afford lawyers in the U.S. legal market in the first place.
Clayton Christensen has coined the term the “Innovator’s Dilemma” for the phenomenon of business disruption, through which high-end producers of goods and services are “disrupted” by those entering the market on the lower end. Those disruptors are first ignored by incumbents and then those entrants find ways to serve a larger and larger segment of the market, eventually displacing the incumbents. If this theory is to be believed, true change in the market for the provision of legal services will not come from those serving wealthier clients, where many today look for the impacts of disruptive techniques and technologies. Instead, true disruption is likely to come from those serving the “lower end” of the market: the solo practitioners, legal services lawyers, and “low bono” providers of legal services. It is innovation in these corners of the market where pathbreaking disruption will take place, mostly out of necessity. What’s more, it is the low end of the market that is actually quite robust: i.e., there is a desperate need for legal services, just an inability to pay for them.
Disruption of the legal services industry has the potential for bringing real benefits to low- and moderate-income consumers of legal services. What this Article attempts to do is identify ways that disruption can occur in the provision of legal services to improve access to justice, particularly for low- and moderate-income individuals and families. While many recent entrants into the market for legal services risk running afoul of charges of unauthorized practice of law, those who are providing free services through the internet appear to be acting in compliance with lawyer rules of professional responsibility. This Article will review both the for-profit and non-profit models of technology-enabled legal assistance and assess the extent to which each may comply, or not comply, with unauthorized practice of law requirements. It will then review current efforts of non-profits to deliver technology-enabled services, and describe one initiative in detail that involved the creation of a web-based application to assist homeowners facing foreclosure in New York State.
Given the need in low- and moderate-income communities for affordable legal services, perhaps disruption in this market has its benefits: at a minimum, it offers a way to improve access to justice for communities and individuals underserved by the present—and expensive—modes of delivering legal services in the United States. This article explores those benefits, but also highlights some of the concerns that arise when technology is used to improve access to justice.
New Article: Clare Pastore, Gideon is my Co-Pilot: The Promise of Civil Right to Counsel Pilot Programs, 17 U.D.C. L. Rev. 75 (2014).
Symposium Issue Published: “50 Years After the “War on Poverty”: Evaluating Past Enactments & Innovative Approaches for Addressing Poverty in the 21st Century”
Symposium Issue Published by the Boston College Journal of Law and Social Justice: “50 Years After the “War on Poverty”: Evaluating Past Enactments & Innovative Approaches for Addressing Poverty in the 21st Century”:
Introduction by Emily F. Suski
by Ann Cammett
Abstract: Since the 1960s, racialized metaphors describing dysfunctional parents have been deployed by conservative policymakers to shape the way that the public views anti-poverty programs. The merging of race and welfare has eroded support for a robust social safety net, despite growing poverty and economic inequality throughout the land. This Article begins by describing the […]
by Davida Finger
Abstract: The Legal Services Corporation (“LSC”), formed as part of President Lyndon B. Johnson’s War on Poverty, was one of many initiatives aimed at providing low-income individuals with equal access to justice. Today, the increasing number of people living in poverty, coupled with decreased funding for legal services, has resulted in a significant justice gap […]
by Alex J. Hurder
Abstract: This Article examines the changes to the Individuals with Disabilities Education Act (“IDEA”), which were intended to reconcile the Act with the No Child Left Behind Act of 2001, and the effect those changes have had on the education of children with disabilities. The Article highlights the important role that parents were given in […]
by Francine J. Lipman & Dawn Davis
Abstract: Fifty years ago, President Lyndon B. Johnson declared the War on Poverty. Since then, the federal tax code has been a fundamental tool in providing financial assistance to poor working families. Even today, however, thirty-two million children live in families that cannot support basic living expenses, and sixteen million of those live in extreme […]
by Patricia E. Roberts
Abstract: Fifty years ago, President Lyndon B. Johnson launched the War on Poverty. The Legal Services Program of 1965, along with the Legal Services Corporation formed in 1974, considerably increased civil legal aid to America’s poor. Yet today, there is only one legal aid attorney for every 6,415 people living in poverty. Veterans, comprising 4.6% […]
Call for Papers: “Conference on Advancing Equal Access to Justice: Barriers, Dilemmas, and Prospects”
Call for Papers: Conference on Advancing Equal Access to Justice: Barriers, Dilemmas, and Prospects, University of California Hastings College of the Law and Stanford Center on the Legal Profession, Stanford Law School, November 12-13, 2015, San Francisco, California. Deadline for submissions: Nov. 12, 2014.
Full details after the break.
New Report: “Accessing Justice in the Contemporary USA: Findings from the Community Needs and Services Study”
New Report: Rebecca L. Sandefur, Accessing Justice in the Contemporary USA: Findings from the Community Needs and Services Study (American Bar Foundation 2014). Abstract from SSRN below:
A new study of the civil justice experiences of the American public, the Community Needs and Services Study, finds widespread incidence of events and situations that have civil legal aspects, raise civil legal issues and are potentially actionable under civil law. Most are handled outside the context of the formal justice system. These events are common and can be severe in their impacts. People experiencing these situations typically do not receive assistance from lawyers or other formal third parties.
In 2013, two-thirds (66%) of a random sample of adults in a middle-sized American city reported experiencing at least one of 12 different categories of civil justice situations in the previous 18 months. For the whole sample, the average number of situations was 2.1; for people who reported situations, the average number reported was 3.3. The most commonly reported kinds of situations involved bread and butter issues with far-reaching impacts: problems with employment, money (finances, government benefits, debts), insurance, and housing. Poor people were more likely to report civil justice situations than were middle-income or high-income people. African Americans and Hispanics were more likely to report such situations than Whites.
People reported that almost half (47%) of the civil justice situations they experienced resulted in a significant negative consequence such as feelings of fear, a loss of income or confidence, damage to physical or mental health, or verbal or physical violence or threats of violence. Adverse impacts on health were the most common negative consequence, reported for 27% of situations.
Typically, people handled these situations on their own. For only about a fifth (22%) of situations did they seek assistance from a third party outside their immediate social network, such as a lawyer, social worker, police officer, city agency, religious leader or elected official. When people who did not seek any assistance from third parties outside their social circles were asked if cost was one barrier to doing so, they reported that concerns about cost were a factor in 17% of cases. A more important reason that people do not seek assistance with these situations, in particular assistance from lawyers or courts, is that they do not understand these situations to be legal.