Category Archives: Access to Justice

Recent LPE Blog Entries of Note

Recent LPE Blog Entries of Note:

New Article: Civil Probation

New Article: Nicole Summers, Civil Probation, SSRN. Abstract below:

The scholarly literature on the eviction legal system has repeatedly concluded that eviction courts are courts of mass settlement. Landlords’ attorneys pressure unrepresented tenants into signing settlement agreements in the court hallways in a factory-like process, and judges approve the agreements with a perfunctory rubber stamp. Yet while we know most eviction cases settle, no one has asked, much less answered, the salient follow-up question: what are the terms of these settlements? Based on the results of a rigorous study of a representative sample of eviction cases, this Article answers that question, and in doing so, generates a novel theory about the eviction legal system. The Article demonstrates empirically that the substantial majority of eviction settlements in the study jurisdiction contain a distinct set of interlocking terms that amount to what the Article labels “civil probation.” Civil probation is the civil analog in the eviction context to probation in the criminal context. Specifically, it is the imposition of court-ordered conditions on a person’s tenancy that, if violated, can result in swift eviction with few procedural safeguards. This Article is the first to conceptualize the phenomenon of civil probation and identify its existence in the eviction legal system. Through detailed data analysis, the Article empirically documents the prevalence of civil probation and describes its key features in the study jurisdiction. The Article then advocates for a new understanding of the eviction legal system as a whole through analysis of civil probation’s consequences. First, a shadow legal system exists that operates alongside the statutory system that formally governs eviction proceedings. This shadow system undermines the rule of law and threatens public regulatory enforcement. Second, an ideology of control underlies the eviction legal system. Landlords, through the imposition of civil probation, use eviction filings not simply to recover possession or to collect rent, but rather as mechanisms to more tightly control, monitor, and regulate their tenants’ conduct. And third, a phenomenon of “net-widening” of the eviction legal system is likely occurring, akin to the phenomenon that scholars have documented in the context of criminal probation. Civil probation motivates landlords to initiate eviction filings they would not initiate otherwise, and in doing so expands the reach and scope of the eviction legal system. The Article offers specific recommendations for reform based on these conclusions.

New Article: Demand-Side Justice

New Article: Alissa Rubin Gomez, Demand-Side Justice, Georgetown Journal of Poverty Law & Policy Volume 28, Issue III (2021). Abstract below:

The civil justice gap is well-known, well-documented, and widening. Although judges, practitioners, and scholars have attempted for more than fifty years to increase the supply of civil legal services available to those in need, demand continues to dramatically outstrip supply. This article argues that given the static (or worsening) state of the civil justice gap, and the millions of Americans who do not even seek legal help for problems that otherwise might fall within that gap, legal literacy is paramount. Our colleagues in the public health profession use health literacy to help prevent health problems and temper demand for health services, and in fact, high levels of health literacy lead to fewer emergency room visits and better health outcomes. Health literacy is regularly included in public K-12 education. This article contends that we should try a similar approach for legal literacy. Legal literacy has the potential to prevent problems from reaching the point of needing formal legal intervention; it also can empower individuals to take advantage of existing legal protections on their own or make informed decisions regardless of the ultimate outcome. Increased legal literacy might also mean that Americans come to legal aid before problems are too far-gone and with more realistic expectations about results and remedies. After decades of chasing after supply-side solutions, it is time to look at demand.

New Article: “Investigating Access to Justice, the Rural Lawyer Shortage, and Implications for Civil and Criminal Legal Systems”

New Article: Lisa R. Pruitt & Andrew Davies, Investigating Access to Justice, the Rural Lawyer Shortage, and Implications for Civil and Criminal Legal Systems, Research Methods for Rural Criminologists (2022 Forthcoming). Abstract below:

Access to justice (A2J) is associated with a number of metrics aimed at assessing the extent to which people enjoy equal access to courts, including pre-trial means for resolving disputes. While the concept is typically associated with civil justice systems, many factors associated with that context overlap with criminal justice system concerns. Central among these and of growing significance in the rural context is a worsening attorney shortage. When lawyers are not readily available, A2J is undermined, and costs to litigants and courts rise.

Many quantitative factors measured in relation to A2J are unidimensional and have limited ability to reveal the full complexity of impediments to accessing legal processes. Simple metrics include attorney counts and caseload data. In both the civil and criminal contexts, the more revealing studies deploy mixed methods; in studying indigent defense, interviews with key stakeholders have proved particularly effective. Surveys of litigants, attorneys, and judges have proved highly informative, too, especially in rural settings without infrastructure for tracking data. Ethnographic research remains rare in both criminal and civil contexts. Meanwhile, law scholars often frame their work more explicitly in terms of constitutional and other legal issues, e.g., attorney ethics, implicated by access.

This chapter, written for an anthology on Research Methods for Rural Criminologists, begins with a broad introduction to A2J. Next, it turns a geographic lens on the A2J landscape, highlighting spatial and place-specific issues as a prelude to discussing rural deficits, including the lawyer shortage. The chapter concludes by discussing rural criminal justice, with a focus on indigent defense. Tribal courts are beyond the scope of this chapter.

New Article: Praxis and Paradox: Inside the Black Box of Eviction Court

New Article: Lauren Sudeall & Daniel Pasciuti, Praxis and Paradox: Inside the Black Box of Eviction Court, forthcoming Vanderbilt Law Review 2021. Abstract below:

In the American legal system, we typically conceive of legal disputes as governed by specific rules and procedures, resolved in a formalized court setting, with lawyers shepherding both parties through an adversarial process involving the introduction of evidence and burdens of proof. The often-highlighted exception to this understanding is the mass, assembly-line processing of cases, whether civil or criminal, in large, urban, lower-level courts. The gap left unfilled by either of these two narratives is how “court” functions for the average, unrepresented litigant in smaller and non-urban jurisdictions across the United States.

For many tenants facing eviction, elements of the “typical” formal legal process are absent, resulting in an experience that only loosely resembles what is taught in law school. This Article is based on a first-of-its-kind interdisciplinary, multi-year, mixed-methods study of suburban and rural dispossessory (eviction) courts in Georgia that aims to contribute to the knowledge gap described above. Through detailed quantitative analysis of case files and qualitative data gleaned from court observation and stakeholder interviews, and its unique focus on courts outside of a major city, it provides a clearer picture of how eviction court in such jurisdictions operates in practice and what resulting variations in process mean for case outcomes.

Ultimately, the Article demonstrates that while one set of laws may govern throughout the state, the process for applying and enforcing those laws is highly localized, dependent on the nature of place and the attitudes of the stakeholders involved. While smaller, lower-volume courts have fewer caseload pressures and appear to prioritize procedural justice, the process they conduct functions less like a traditional legal proceeding and more as a vehicle for rent collection. Paradoxically, elements typically associated with fair process—like the opportunity to respond to legal claims through filing an answer or the scheduling of a hearing on the merits—do not always manifest in substantively improved outcomes for tenants, given the structure of the underlying law. The Article concludes by reflecting on what these observations suggest about the limitations and effectiveness of different forms of legal assistance and how court processes, regardless of their locale and the people who operate within them, can maximize access to justice.

New Article: “They had access, but they didn’t get justice”: Why Prevailing Access to Justice Initiatives Fail Rural Americans

New Article: Michele Statz, Robert Friday & Jon Bredeson, “They had access, but they didn’t get justice”: Why Prevailing Access to Justice Initiatives Fail Rural Americans, forthcoming Geo. J. Poverty L. & Pol’y (SSRN Mar. 2021). Abstract below:

In the U.S, access to justice (A2J) initiatives are developed by people and institutions in urban areas. Accordingly, A2J supports are often premised on technological, professional, and infrastructural capacities that simply do not exist in many rural regions. Until now, no one has empirically examined the consequences of this metrocentric approach. Drawing on over three years of mixed-methods research across the Upper Midwest, this Article offers an urgent response: Not only are A2J “solutions” intrinsically insufficient in rural areas, but they compound existing stress and are even experienced as humiliating by many low-income rural residents. By introducing the role of dignity—and what, or who, best provides it in the rural A2J context—this Article offers a novel and necessary intervention in access to justice scholarship and policies.

Bringing together empirical data with policy analysis, we argue that prevailing A2J initiatives are flawed at three primary levels: (1) A failure to meaningfully recognize the limits of rural infrastructural capacity and the complex barriers low-income rural residents in particular navigate; (2) A presumption that anyone in a crisis situation, let alone someone facing these barriers, can effectively be their own attorney; and (3) A professional understanding of justice that is critically at odds with rural individuals’ own expectations. Our response is not to offer one more rural A2J “silver bullet” initiative, though we do discuss what A2J options may offer more locally relevant experiences of justice. Instead, we highlight broader tensions that emerge when dominant narratives around “access” are held against the lived expertise of those who daily experience rural attorney shortages and other structural inequities. As the Article demonstrates, this profound mismatch of expectations is hugely consequential, resulting in forms of “access” that are in rural areas experienced as barriers to justice.

New Article: Institutional Design for Access to Justice

New Article: Emily Taylor Poppe, Institutional Design for Access to Justice (forthcoming UC Irvine L. Rev., 2021). Abstract below:

Decades of empirical research have confirmed the prevalence of troublesome situations involving civil legal issues in everyday life. Although these problems can be associated with serious financial and social harm, they rarely involve recourse to lawyers or formal legal institutions. Contemporary scholars and practitioners increasingly integrate this reality into the definition of access to justice. They understand access to justice to be concerned with equality in the ability of individuals to achieve just resolutions to the problems they experience, regardless of whether they pursue formal legal action. To achieve this goal, an emerging international set of best practices calls for access to justice interventions that are proactively targeted to those groups most in need of assistance, linked to other social service providers, aimed at addressing problems early to avoid escalation, and customized to the user’s capabilities. In stark opposition to such an outward-facing, multi-faceted approach, the civil justice system is structured to respond only to formal legal claims. We have few auxiliary institutions that provide alternative avenues to resolution, and several barriers that inhibit their ability to address civil legal problems. As a result, access to justice, as contemporarily understood, is largely an orphan issue—a social problem for which no institution bears responsibility. In this Article, I propose an agenda of institutional reforms to better align key social institutions with a contemporary, evidence-based understanding of access to justice. These institutional reforms would enhance individuals’ ability to access justice, within or without the courthouse walls.

New Article: Producing Justice in Poor People’s Courts: Four Models of State Legal Actors

New Article: Tonya Brito, Producing Justice in Poor People’s Courts: Four Models of State Legal Actors, 24 Lewis & Clark L. Rev. 145 (2020). Abstract below:

This Article examines how judges and government attorneys produce justice in poor people’s courts, which are characterized by a substantial volume of cases, socioeconomically disadvantaged litigants, and an absence or asymmetry of representation. The Article’s findings are drawn from an extensive qualitative empirical study of one type of poor people’s court, specifically family court proceedings where the state is pursuing child support from low- and no-income noncustodial fathers. Focusing on the judges and government lawyers who handle these cases, and drawing from their own accounts as well as on ethnographic in-court observations, I identify four distinct models of state legal actors that emerge from the study’s empirical data: navigators, bureaucrats, zealots, and reformers. These models are distinguished by the legal actors’ perceptions of the cases they handle, their conception of their role in the cases, their approach to enforcement and decision making, and how they produce justice in legal disputes involving poor and disadvantaged people.

Navigators are morally conflicted by the cases they see in poor people’s courts and, though they express sympathy for poor fathers who cannot pay support, they are also somewhat defensive about their own role and report feeling as if they themselves are in a bind. I refer to their enforcement and decision-making approach to the cases as a harm-reduction strategy because they attempt to keep the cases spinning in place to avoid the harshest outcome—civil incarceration— for poor fathers who fail to pay support. Bureaucrats view these cases as “open and shut” and, espousing a legal formalist approach, believe that they are simply doing their job without regard to questions of moral judgment. They deemphasize the discretion they enjoy and contend that they are evenhandedly administering justice. Zealots, by contrast, express hyper-moralistic views of the parents in child support cases and perceive the poor fathers uniformly as deadbeat dads. The judges and government attorneys who fall into this category view themselves as righteous child advocates and pursue an aggressive enforcement approach in order to make fathers into more responsible citizens. Finally, reformers have a nuanced and sophisticated understanding of the moral complexities raised in these cases. They report being troubled by what is happening to the families in their courts and, through their efforts at change, take on the role of internal reformers.

This Article contributes theoretical insight into the scholarly debate about the meaning(s) of access to justice. Through an empirically rigorous and grounded exploration and analysis of how civil justice works in poor people’s courts, this Article finds that justice is not one story, but many.

New Article: The Welfarist Right to Counsel

New Article: Shaun Ossei-Owusu, The Welfarist Right to Counsel, UCLA Law Review (Forthcoming) (Nov. 3, 2020).

The Sixth Amendment right to counsel is typically and often exclusively understood as a criminal procedure protection. From the law school training of attorneys to the legal knowledge imparted to lay people by popular culture, this right is seen as solely within the province of the criminal justice system. This widely held belief is fragmentary and incomplete. Despite its reasonableness, this penal primacy has marred our ability to understand the contours and limitations of indigent defense.

New Article: Remixing Resources

New Article: Lee Anne Fennell, Remixing Resources, Yale Journal on Regulation (Forthcoming)(2021).

This essay argues for an approach to resource access that connects rather than separates questions of efficiency and distribution. It proceeds from the premise that putting together the most valuable combinations of resources—including human capital—is of central and increasing normative importance. Structuring law to facilitate these combinations should be a primary task for property scholars working in the law and economics tradition. Doing so requires engaging with the processes through which complementary resources produce value in a modern society, recognizing how property doctrines work to put together and keep together complementary resource sets, and confronting the ways in which material inequality and unremediated injustice stand in the way of realizing valuable complementarities. Because a complementarity-based vision of property holds the potential to promote efficiency and distributive goals simultaneously, it illuminates how an integrative approach might offer policy-relevant traction toward both objectives.