Category Archives: Access to Justice

New Article: Power and Possibility in the Era of Right to Counsel, Robust Rent Laws & COVID-19

New Article: Erica Braudy and Kim Hawkins, Power and Possibility in the Era of Right to Counsel, Robust Rent Laws & COVID-19, 28 Geo. J. Poverty L. & Pol’y 117 (2021). Abstract below:

New York City (NYC) finds itself in an unprecedented housing crisis as the coronavirus (COVID-19) pandemic reveals with devastating force that safe, sustainable and affordable housing is both a human right and a public health necessity. The profound humanitarian and economic devastation of COVID-19 puts millions of New Yorkers at risk of eviction—especially those within Black and Latinx communities. In addition, the pandemic hit just as the legal landscape for tenants was transformed through landmark legislation ensuring the Right to Counsel in eviction proceedings and sweeping reforms of New York’s rent laws. The unparalleled COVID-19 pandemic, the influx of hundreds of new tenant attorneys resulting from the Right to Counsel, and the robust rent law reforms fundamentally alter the role and powerful potential of housing advocacy and the very function of NYC’s Housing Court. These three forces provide an opportunity for housing attorneys representing low-income tenants to imagine new and creative ways to provide housing security and build tenant power.

This Article canvasses the fundamental shifts in the NYC housing landscape and the movement to expand tenants’ rights. It urges lawmakers to take bold action to avoid an eviction pandemic and shield tenants from homelessness and crushing debt. Next, it lays a blueprint for housing attorneys, both experienced and novice, to aggressively use the new tenant-friendly rent laws, creatively maximize underused tools, and leverage their collective strength to re-envision housing as a human right. The combination of the Right to Counsel, which has filled the ranks with passionate tenant attorneys, an empowered and progressive state legislature, and a vibrant tenants’ movement has created a powerful force to demand comprehensive and far-reaching housing and racial justice for all New Yorkers and redefine the housing world that lies beyond the virus.

New Article: “The Federal Rules of Pro Se Procedure”

New Article: Andrew Hammond, The Federal Rules of Pro Se Procedure, 90 Fordham L. Rev. 2689 (2022). Abstract below:

In recent years, more than a quarter of all federal civil cases were filed by people without legal representation. Yet, the Federal Rules of Civil Procedure refer to pro se litigants only once, and the U.S. Supreme Court has not considered in over a decade the question of what process is due to unrepresented civil litigants. Many judicial opinions in these cases go unpublished, and many are never appealed. Instead, the task of developing rules for pro se parties has taken place inside our federal district courts, whose piecemeal and largely unnoticed local rulemaking governs thousands of such litigants each year.

This Article illuminates this neglected corner of the federal courts. It collects and analyzes every pro se–specific rule and practice—nearly 500 in total—in the ninety-four federal district courts. This Article first categorizes these rules and then digs deeper into the most resource-intensive practice—the appointment of counsel—in the roughly forty district courts that maintain a pro bono program. In doing so, this Article unearths the procedures unrepresented litigants must follow when they walk into federal court.

In addition to its descriptive contribution, this Article pushes the bench, bar, and academy to revisit these federal rules of pro se procedure. It considers how to improve the process of making such local rules to better consider the needs of pro se litigants. This Article points the way forward for civil justice reform in the federal courts.

New Article: “The Impact of Right to Counsel to the Poor: Evidence from New York City Housing Courts”

New Article: Ellen Liaw, The Impact of Right to Counsel to the Poor: Evidence from New York City Housing Courts, SSRN. Abstract below:

Access to the formal justice system is presumed in the United States, yet it remains out of reach to most poor. One crucial context is eviction in housing courts where the difference in legal access is stark between landlords and tenants. To mitigate such disparity, New York City introduced a novel policy in 2018 to provide right to counsel in housing courts for income-eligible tenants facing eviction. Taking advantage of the staggered roll-out schedule on the zip code level, I estimate the causal effect of the policy change using a difference-in-differences approach. Despite no statistically significant impact on eviction filings, I find a 16.9 percent decrease in quarterly evictions. The results demonstrate positive impacts of tenant representation on evictions in the short run.

New Article: “A Solution Hidden in Plain Sight: Closing the Justice Gap by Applying to Legal Aid the Market Incentives that Propelled the Pro Bono Revolution”

New Article: Benjamin C. Carpenter, A Solution Hidden in Plain Sight: Closing the Justice Gap by Applying to Legal Aid the Market Incentives that Propelled the Pro Bono Revolution, forthcoming Chapman L. Rev. Abstract below:

The legal profession is now thirty years into the pro bono revolution, and the bar is more committed, in both word and action, to access to civil justice than at any other time in its history. Yet for most of the sixty million Americans who cannot afford a lawyer, the bar’s commitment provides little solace. Despite all the resources the bar has put into pro bono over the past thirty years, those living at or near poverty still do not receive legal help for almost eighty-six percent of their legal needs. In fact, lawyer participation in pro bono has become stagnant over the past decade, and the World Justice Project just ranked the United States 109th out of 128 countries in access to affordable civil justice. Meanwhile, law firm revenues rocket upward. In 2019, revenue at each of the nine largest law firms was greater than the combined operating budgets of the country’s 700 legal aid organizations. Revenue at one firm alone doubled the combined budgets of all legal aid organizations. Yet, as the ABA advocates for additional public funding of legal aid, law firms themselves pitch in less than four one-hundredths of a percent of their revenue. A fair question is what is truly motivating the bar—is it a foundational commitment to closing the justice gap, as it professes, or protecting its own investment in pro bono for the benefit of its members. If the bar is serious about closing the justice gap, it must not simply capture and leverage its advances in pro bono, but it must also commit to increasing its support for legal aid—in action, not just words—as it has with pro bono. While history has shown that this shift will not happen simply by encouragement and aspirational appeals, there is a blueprint for accomplishing this: the market incentives that moved big firms to enthusiastically embrace pro bono over the past few decades provide a solution hidden in plain sight. This article explores those incentives, sets out a proposal for how to apply those incentives to increase legal aid funding, and calls on the bar to live up to its public commitment to equal justice.

New Article: “The Effects of Legal Representation on Tenant Outcomes in Housing Court: Evidence from New York City’s Universal Access Program”

New Article: Michael T. Cassidy & Janet Currie, The Effects of Legal Representation on Tenant Outcomes in Housing Court: Evidence from New York City’s Universal Access Program, NBER, Mar. 2022. Abstract below:

Housing is one of the areas where it may be most critical for poor people to have access to legal representation in civil cases. We study the roll-out of New York City’s Universal Access to Counsel program (UA), using detailed address-level housing court data from 2016 to 2019. The program, which became law in August 2017, offers free legal representation in housing court to tenants with income at or below 200 percent of the federal poverty guideline. We find that tenants who gain access to lawyers are less likely to be subject to possessory judgments, face smaller monetary judgments, and are less likely to have eviction warrants issued against them. Lawyers have larger effects in poorer places and in those with larger shares of non-citizens. UA also reduces executed evictions in these locations. Our results support the idea that legal representation in civil procedures can have an important positive impact on the lives of poor people.

-Thanks to Susan Bennett for the heads up!

New Article: “From “Hearing” to Listening: Access to Justice and Indirect Displacement”

New Article: Emily McWey, From “Hearing” to Listening: Access to Justice and Indirect Displacement, 110 Geo. L.J. 151 (2021). Abstract below:

When local government policies cause households and communities to become homeless, those affected are entitled to due process. Yet when the government displaces households through zoning-induced gentrification, it often acts as the perpetrator of the harm, adjudicator of disputes, and favored party on appeal. Regardless of the merits of such disputes, that process raises prohibitive access-to-justice barriers.

The threat of homelessness is undeniably a substantial private interest for due process purposes. When this threat arises from government-driven policies, due process becomes particularly critical. For that reason, while the existing access-to-justice discourse about direct displacement is important, this Note reveals that access-to-justice barriers in the context of indirect displacement through zoning-induced gentrification are perhaps even more fundamental.

To illustrate the necessity of such research, this Note examines a recent case in which Ms. Sharon Cole, a pro se litigant, navigated the entire available process—from the zoning hearing to the final appeal—to defend herself and her community against indirect displacement caused by zoning-induced gentrification. The facts and substantive law over-whelmingly supported her community’s position, but Ms. Cole was denied a meaningful opportunity to be heard. By the end of the process, the government had initiated and subsidized the harm, and the legal system legitimated, facilitated, and—worst of all—erased it.

New Article: The Overreach of Limits on “Legal Advice”

New Article: Lauren Sudeall, The Overreach of Limits on “Legal Advice”, 131 Yale L.J. Forum 637 (2022). Abstract below:

Nonlawyers, including court personnel, are typically prohibited from providing legal advice. But definitions of “legal advice” are unnecessarily broad, creating confusion, disadvantaging self-represented litigants, and possibly raising due-process concerns. This Essay argues for a narrower, more explicit definition of legal advice that advances, rather than undercuts, access to justice.

New Article: Mapping the Civil Justice Gap in Federal Court

New Article: Roger Michalski & Andrew Hammond, Mapping the Civil Justice Gap in Federal Court, forthcoming Wake Forest L. Rev. 2022. Abstract below:

Unrepresented litigants make up a sizable and normatively important chunk of civil litigation in the federal courts. Despite their importance, we still know little about who these pro se litigants are. Debates about pro se litigation take place without sufficient empirical information. To help fill some of the gaps in our understanding of pro se litigants, this Article takes a new approach by mapping where pro se litigants live.

Using a massive data set of 2.5 million federal dockets from a ten-year period, we obtained addresses of non-prisoner pro se litigants. We then geolocated these addresses and cross-referenced that information with demographic and economic Census data. This approach does not tell us anything about pro se litigants directly, but it allows us to describe where pro se litigants live and identify the communities they inhabit. While this method has limitations, it avoids many drawbacks of other methods.

We stress two main findings. First, most pro se litigants are profoundly ordinary. Typically, they do not hail from demographic or economic outliers. For example, most pro se litigants do not live in either the wealthiest or the poorest neighborhoods. Instead, their neighborhoods represent the middle class, with a few outliers that match the general population of outliers. Our findings present pro se litigants as a radically democratic element in federal courts. They, perhaps more than any other type of litigant, force federal courts into contact with a surprisingly representative sample of the general public. Second, there are two notable exceptions to this representativeness. Even after accounting for population and income, pro se litigants are more likely to reside in communities that are not homogenously white. And numerous rural communities feature fewer pro se litigants than expected. These findings deepen and complicate conventional narratives about pro se litigation and provide new impetus for doctrinal and policy debates about how the federal courts and Congress can and should respond to self-represented litigants.

New Jotwell Review: Court Personalities and Impoverished Parents

New Jotwell Review: Ezra Rosser, Court Personalities and Impoverished Parents, Jotwell, Nov. 19, 2021 (reviewing Tonya L. Brito, Producing Justice in Poor People’s Courts: Four Models of State Legal Actors, 24 Lewis & Clark L. Rev. 145 (2020))

I hope this review convinces people (a) that Brito’s article is great, and (b) it is worth reading!

New Article: Ten Ways of Looking at Movement Lawyering

New Article: William P. Quigley, Ten Ways of Looking at Movement Lawyering, 5 How. Hum. & C.R.L. Rev. 23 (2020). Abstract Below:

History shows us that social change comes about when directly impacted people get together and demand justice in social movements. The world needs more lawyers who will partner with and learn alongside the people struggling for justice. That is what movement lawyering is. This is an introduction to Movement Lawyering for those who are just learning about it. And a refresher for those familiar with the idea who want more information.