Category Archives: Access to Justice

Wisconsin Law Review Symposium on Access to Justice

Lots of good articles. See below:

Democracy, Civil Society, and Public Interest Law by Catherine Albiston

Public interest law organizations (PILOs) play a significant role in democracy and American society. Historically, they have enabled underrepresented voices to be heard in the political process and have vindicated public values by enforcing civil rights laws. They also have shaped and expanded the public sphere through litigation, media coverage, and their association with social movements seeking social change. As public interest law expanded dramatically in the 1960s and 1970s, it came to mean much more than pro bono representation of the poor. Courts and lawyers recognized public interest litigation as a legitimate form of political expression and civic participation.

The Keys to the Kingdom: Judges, Pre-hearing Procedure, and Access to Justice by Colleen F. Shanahan

Judges see themselves as—and many reforming voices urge them to be—facilitators of access to justice for pro se parties in our state civil and administrative courts. Judges’ roles in pro se access to justice are inextricably linked with procedures and substantive law, yet our understanding of this relationship is limited. Do we change the rules, judicial behavior, or both to help self-represented parties? We have begun to examine this nuanced question in the courtroom, but we have not examined it in a potentially more promising context: pre-hearing motions made outside the courtroom. Outside the courtroom, judges rule on requests such as motions to continue or for telephone appearances that allow parties to participate in and access the hearing room. These requests have significant consequences for the party, do not implicate the merits of the underlying case, and are a pared-down environment in which to examine the interaction of judicial behavior and procedures.

Studying the “New” Civil Judges by Anna E. Carpenter et al.

We know very little about the people and institutions that make up the bulk of the United States civil justice system: state judges and state courts. Our understanding of civil justice is based primarily on federal litigation and the decisions of appellate judges. Staggeringly little legal scholarship focuses on state courts and judges. We simply do not know what most judges are doing in their day-to-day courtroom roles or in their roles as institutional actors and managers of civil justice infrastructure. We know little about the factors that shape and influence judicial practices, let alone the consequences of those practices for courts, litigants, and the public. From top to bottom, we can describe and theorize about our existing civil justice system in only piecemeal ways. Given legal scholarship’s near complete focus on federal civil courts, the stories we tell about the civil justice system may be based on assumptions and models that only apply in the rarefied world of federal court. Meanwhile, state judges and courts— which handle ninety-nine percent of all civil cases—are ripe for theoretical and empirical exploration.

Simplicity as Justice by Kathryn A. Sabbeth

Simplification of the legal system has attracted attention as a means of improving access to justice. A major motivation driving reform is the perception that pro se litigants have flooded the courts and begun clogging up the wheels of justice. Ordinary people do not know rules of procedure, evidence, or substantive law; do not handle their cases effectively or efficiently; and have, the argument goes, generated a “pro se crisis.” A number of states and localities have responded by increasing the availability of legal services, funding programs that offer solutions ranging from limited assistance to full representation, and a few legislatures have even established a statutory right to counsel for particular categories of cases. Given the expense of advocates’ labor, however, most jurisdictions have sought instead to improve litigants’ ability to handle their legal matters on their own. As an alternative to providing litigants with representatives who could help them navigate the courts, a growing number of commentators propose simplifying proceedings to obviate the need for such representation. Methods of simplification include creating form pleadings, introducing technology, and relaxing formal rules that could confuse lay litigants. Proponents of simplification claim that it will decrease the time and cost of proceedings, help litigants meet the technical requirements of the fora in which they appear, and increase litigants’ satisfaction with the process.

Toward Universal Deportation Defense: An Optimistic View by Michael Kagan

One of the most positive responses to heightened federal enforcement of immigration laws has been increasing local and philanthropic interest in supporting immigrant legal defense. These measures are tentative and may be fleeting, and for the time being are not a substitute for federal support for an immigration public defender system. Nevertheless, it is now possible to envision many more immigrants in deportation having access to counsel, maybe even a situation in which the majority do. In this paper, I make no real predictions. Instead, I offer a deliberately—perhaps even blindly— optimistic assessment of how concrete steps that have already been taken could grow into a system of universal deportation defense. In the process, I try to identify what still needs to happen for this to be achieved, and offer some thoughts on how this might change the practice of immigration law in the United States.

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New Article: Isonomy, Austerity, and the Right to Choose Counsel

New Article: Janet Moore, Isonomy, Austerity, and the Right to Choose Counsel, 51 Indiana Law Review 167 (2018). Abstract below:

People who can afford to hire criminal defense attorneys have a Sixth Amendment right to choose a lawyer who is qualified, available, and free from conflicts of interest. The same right to choose counsel is routinely denied to people who need government-paid defense lawyers because they cannot afford to hire attorneys. In prior work, I invoked democratic theory to argue that this de jure discrimination blocks constitutional law formation by poor people and should be eliminated. This Article extends the analysis by explaining how a different theoretical approach—one grounded in libertarian commitments to private enterprise and austerity in public funding—shaped the nation’s first pilot study on counsel choice in a public defense setting. Those commitments sharply limited the measure of counsel choice offered and left the study with insufficient data to support generalizable conclusions. Thus, the study underscores questions about whether an equal right of counsel choice can be meaningful under conditions of austerity and might actually aggravate instead of ameliorate system deficits. The Article concludes that while meaningful counsel choice for poor people may be elusive, the constitutional interests at stake nevertheless warrant elimination of overt class-based discrimination from the vindication of a fundamental right.

New Article: “Pleading Poverty in Federal Court”

New Article: Andrew Hammond, Pleading Poverty in Federal Court, forthcoming Yale L.J. (SSRN Mar. 2018). Abstract below:

What must a poor person plead to gain access to the federal courts? How do courts decide when a poor litigant is poor enough? This Article answers those questions with the first comprehensive study of how district courts determine when a litigant may proceed in forma pauperis in a civil lawsuit. This Article confirms that district courts lack standards to determine a litigant’s poverty and often require litigants to answer a stunning array of intrusive questions to little effect. As a result, discrepancies in federal practice abound — across and within district courts — and produce a pleading system that is irrational, inefficient, and invasive.

This Article makes four contributions. First, it codes all the poverty pleadings currently used by the 94 federal district courts. Second, the Article shows that the flaws of these pleading procedures are neither inevitable nor characteristic of poverty determinations. By comparing federal practice to other federal means tests and state court practices, the Article demonstrates that a more streamlined, yet rights-respecting approach is possible. Third, the Article proposes a coherent in forma pauperis standard — one that would align federal practice with federal law, promote reasoned judicial administration, and protect the dignity of litigants. Such a solution proves that judges need not choose between extending access to justice and preserving court resources. In this instance and perhaps others, judges can serve both bedrock commitments of the federal system. Fourth, the Article illustrates how to study procedure from the bottom up. Given the persistent and widening levels of inequality in American society, no account of civil procedure is complete without an understanding of how poor people litigate today.

New Article: “Improving Access to Justice in State Courts with Platform Technology”

New Article: J.J. Prescott, Improving Access to Justice in State Courts with Platform Technology, 70 Vanderbilt L. Rev. 1993 (2017). Abstract below:

Access to justice often equates to access to state courts, and for millions of Americans, using state courts to resolve their disputes — often with the government — is a real challenge. Reforms are regularly proposed in the hopes of improving the situation (e.g., better legal aid), but until recently a significant part of the problem has been structural. Using state courts today for all but the simplest of legal transactions entails at the very least traveling to a courthouse and meeting with a decision maker in person and in a one-on-one setting. Even minimally effective access, therefore, requires time, transportation, and very often the financial wherewithal to miss work or to pay for child care. In this Article, I investigate the effects of altering this structural baseline by studying the consequences of introducing online platform technology to improve citizen access to justice. In courts that adopt the technology, citizens are able to communicate with law enforcement, prosecutors, and judges to seek relief or negotiate a resolution through an online portal at any time of day. Examining many months of data from half a dozen adopting state courts, I present evidence that introducing this technology dramatically reduces the amount of time it takes for citizens to resolve their disputes and satisfy any fines or fees they owe. Default rates also plummet, and court personnel, including judges, appear to engage constructively with citizens when using the platform. From the perspective of state courts, disputes end more quickly, the percentage of payments received increases, and it takes less time for courts to receive those payments. Even citizens who do not use the platform may benefit from the technology’s introduction, presumably because they find they face less congestion when they physically go to a courthouse.

 

New Article: “Surrogate Lawyering: Legal Guidance, Sans Lawyers”

Tremblay, Paul R., Surrogate Lawyering: Legal Guidance, Sans LawyersSurrogate Lawyering: Legal Guidance, Sans Lawyers, Georgetown Journal of Legal Ethics (2017). [Abstract below]

Innovative thinkers within the access-to-justice (ATJ) movement have been experimenting with creative ideas for delivering meaningful legal guidance in an efficient way to clients struggling with civil legal needs. These efforts respond to the long-standing crisis in the delivery of legal services to disadvantaged persons, and the overwhelming need for legal advice in areas such as debt collection, housing, family, and immigration. One such imaginative proposal is what this Article calls “surrogate lawyering.” This innovation envisions public interest law firms using some scarce lawyer time to train and advise community-based organization (CBO) staff members to respond, in real time and in context, to the legal problems their constituents encounter. Crafted well, and complemented by technological aids being developed by ATJ entrepreneurs, surrogate lawyering could effect a substantial improvement in the lives of the clients in need.

This Article assesses the ethical implications of the surrogate lawyering venture. It concludes that the lawyers who advise the CBO staffers would not inadvertently trigger an attorney-client relationship with the constituents/clients who benefit from the staffer’s guidance. Nor would those lawyers have agency-driven commitments to the constituent/clients. The public interest law firm likely would, though, have attorney-client duties to the CBO, and would need to account for that reality in its operations. The Article does conclude, though, that the surrogacy model generates a significant concern involving the unauthorized practice of law (UPL), and the lawyers’ assistance with that activity.

The Article proceeds to critique the UPL concerns, demonstrating that neither the constituent/clients nor the legal profession would be likely to suffer any appreciable harm by permitting surrogate lawyering ventures to operate. The Article closes with suggestions for some adjustments to the usual UPL constraints that would permit surrogate lawyering strategies while minimizing any risks associated with that means of delivering legal advice.

New Article: “Dangerous Warrants”

Sekhon, Nirej, Dangerous Warrants, Washington Law Review, Vol. 93, (2018) [Abstract below]

The Supreme Court has cast judicial warrants as the Fourth Amendment gold standard for regulating police discretion. It has embraced a “warrant preference” on the premise that requiring police to obtain advance judicial approval for searches and seizures encourages accurate identification of evidence and suspects while minimizing interference with constitutional rights. The Court and commentators have overlooked the fact that most outstanding warrants do none of these things. Most outstanding warrants are what this article terms “non-compliance warrants”: summarily issued arrest warrants for failures to comply with a court or police order. State and local courts are profligate in issuing such warrants for minor offenses. For example, the Department of Justice found that the municipal court in Ferguson, Missouri issued one warrant for every two of its residents. When issued as wantonly as this, warrants are dangerous because they generate police discretion rather than restrain it. Nonetheless, the Supreme Court has, most recently in Utah v. Strieff, treated non-compliance warrants as if no different from the traditional warrants that gave rise to the Fourth Amendment warrant preference.

This article argues that non-compliance warrants pose unique dangers, constitutional and otherwise. Non-compliance warrants create powerful incentives for the police to conduct unconstitutional stops, particularly in poor and minority neighborhoods. Their enforcement also generates race and class feedback loops. Outstanding warrants beget arrests and arrests beget more warrants. Over time, this dynamic amplifies race and class disparities in criminal justice. The article concludes by prescribing a Fourth Amendment remedy to deter unconstitutional warrant checks. More importantly, the article identifies steps state and local courts might take to stem the continued proliferation of non-compliance warrants.

New Article: “Delaware’s Constitutional Mirror Test: Our Moral Obligation to Make the Promise of Equality Real”

Strine, Leo E., Delaware’s Constitutional Mirror Test: Our Moral Obligation to Make the Promise of Equality Real (September 22, 2017). U of Penn Law School, Public Law Research Paper No. 17-43. [Abstract below]

This lecture, delivered as the 2017 James R. Soles Lecture on the Constitution and Citizenship at the University of Delaware, addresses whether Delaware has lived up to the constitutional principles of equality. Delaware, although a part of the Union, was a slave state, and after the Civil War, a Jim Crow state. It was slow to embrace the ruling in Brown v. Board of Education, although Delaware Chancellor Collins J. Seitz had ruled for the black plaintiffs in Belton v. Delaware and ordered their admission to the formerly all-white schools. Ultimately, a metropolitan desegregation remedy was put in place by the federal courts in the late 1970s, after state officials dragged their feet and failed to implement an effective plan for desegregation.

The Court’s remedy effectively desegregated the New Castle County schools and prevented the creation of schools with high concentrations of poverty. In the 1990s, the State sought and obtained freedom from court supervision, arguing that it had gone beyond the court’s mandate in desegregating schools and could be trusted to ensure the rights of all children. Now, it is 2017. What has happened?

Delaware’s major city, Wilmington, remains divided among four school districts with a majority suburban voting base, created by the State to implement the court-ordered desegregation plan, but these school districts no longer seek to create racial balance in their schools. Wilmington now has elementary schools that are overwhelmingly high-minority and high-poverty. Middle schools of the same kind exist, and persistent economic and educational gaps between white and black children exist. During this period of resegregation, crime has grown in northern New Castle County to the point where Wilmington has a murder rate among the highest in the nation. Drop-out rates and youth crime rates among black kids far exceed those among white kids.

Yet, no extra resources have been given to the schools that face the greatest challenges and, in fact, in terms of the most important resource — teachers — the staff in urban schools have less experience than the staff in suburban schools with high income and low minority populations.

In this lecture, Chief Justice Strine asks whether Delawareans, having said we could protect the rights of our black children, are prepared to face the constitutional mirror test, and to recognize that kids who have less, need more — especially kids and families who have been victimized by hundreds of years of discrimination.

Rather than just identify the problem, Chief Justice Strine outlines a potential reform plan that would reorganize the New Castle County schools so that Wilmington was part of one well-resourced and geographically compact Northern New Castle County school district. This would allow for the selection of a high quality educational leader who could put in place a coherent plan to address the needs of poor children.

The Chief Justice also suggests the following: a 220-day school year; a full day, including an early arrival option with breakfast, after-school homework time, nutritious snacks, and activities; and a requirement that students grade seven and up engage in an after-school activity year round.

Because this plan is focused on poverty, it addresses racial inequality in a race-neutral way—nearly 60% of black families in Delaware are at or below 200% of the federal poverty level, as compared to 26% of white families. The plan also addresses the needs of all twenty-first century families as the extended school year would reduce the need for expensive summer camps and tutors; the extended school day and added extracurricular activities would reduce before and after-care costs for working parents; and the addition of nutritious meals during the school day would reduce the burden on impoverished families.

Further, the plan can be scaled up and implemented across the state, cutting redundancies and inefficient overhead costs throughout Delaware school districts and providing a coherent district-wide approach to classroom instruction.

In terms of how it can be financed, Chief Justice Strine points out that Delawareans pay far lower tax rates than they did when the state was more prosperous. He notes that failing to invest in education will continue to cost Delawareans in terms of crime, lost jobs, and hopelessness, finally asking, “[H]ow can we afford not to if we really care about our constitutional commitment to equality?”

Op-Ed: “Courts Sidestep the Law, and South Carolina’s Poor Go to Jail”

Timothy Williams, Courts Sidestep the Law, and South Carolina’s Poor Go to Jail, New York Time, October 12, 2017. [“One homeless man has been arrested or cited 270 time on the same charge…”]

New Article: “Tipping the Scales of Justice: The Role of the Nonprofit Sliding Scale Law Firm in the Delivery of Legal Services”

-, Mitch, Tipping the Scales of Justice: The Role of the Nonprofit Sliding Scale Law Firm in the Delivery of Legal Services (September 21, 2017). Univ. of Wisconsin Legal Studies Research Paper No. 1424. Available at SSRN: https://ssrn.com/abstract=3040840 [Abstract below]

Most research on providing legal services for low-income clients has focused on (1) government-funded programs, (2) private donor-funded programs, and (3) pro bono programs. Despite the valuable services these programs provide, a well-documented justice gap persists. Other models for the delivery of legal services exist, but are not well known or understood. One such approach has existed for years without scholarly study: the nonprofit organization that only serves low-income clients and receives its funding primarily on the basis of sliding-scale fees paid by clients. Based upon the author’s personal experience starting a nonprofit Sliding Scale Law Firm (SSLF), and informed by interviews with attorneys working at SSLFs across the country, Part I of this article describes the structure of these nonprofit SSLFs. Part II addresses the role that the SSLF model fills in the overall system of legal service delivery: SSLFs reduce the justice gap by providing services to clients who cannot obtain free legal services, but cannot afford to hire an attorney at prevailing market rates.

New Article: “Beyond Earned Citizenship”

Muneer I. Ahmad, Beyond Earned Citizenship, 52 Harv. L. Rev 258 (2017). [Abstract Below]

For more than a decade, a single rubric for legalization of the 11 million undocumented people in the United States has dominated every major proposal for comprehensive immigration reform, and continues to do so today: earned citizenship. Introduced as a rhetorical move intended to distinguish such proposals from amnesty, the earned citizenship frame has shaped the substantive
provisions of the legislation by conditioning legalization on the performance of
economic, cultural, and civic metrics. In order to regularize status, earned citizenship
would require undocumented individuals to demonstrate their ongoing societal contributions at multiple intervals over a probationary period of many years, and they would remain subject to deportation for failure to do so. Such a behavioral approach expresses a particular moral basis for legalization and a normative vision of citizenship, and it aspires to place millions of people on a path to citizenship. And yet, despite the centrality of earned citizenship in contemporary immigration debates and the magnitude of its ambition, there has
been virtually no scholarly treatment of its substance, ideology, or normative
claims. While the election of Donald Trump has rendered progressive immigration
reform improbable in the next several years, this is all the more reason to examine the failed logic and structure of recent reform proposals. This Article explores the origins and illuminates the deep structure of earned citizenship, and it critically evaluates its virtues and shortcomings as matters of politics, morality, policy, and law. Although laudable for its inclusionary promise, earned citizenship suffers from serious and previously unaddressed theoretical and conceptual flaws that reinscribe the moral claims of restrictionists, illuminate and imperil our larger understandings of citizenship, and invite consideration of alternative frameworks for legalization. The rightward electoral shift has closed a window for progressive reform for now, but when it is next pried open, a different moral and legal framework for legalization may be required.