Access To Justice:A Roadmap For Reform

Introduction I. Barriers in the Civil Justice System A. Financial B. Structural C. Doctrinal D. Political II. Reform Strategies A. Self-Help and Non-lawyer Service Providers B. Right to Counsel in Civil Cases C. Pro Bono Service D. Unbundled Services and Innovative Delivery Structures E. Research F. Legal Education Conclusion INTRODUCTION It is a shameful irony that the nation with one of the world's highest concentrations of lawyers does so little to make legal services accessible. (1) According to the World Justice Project, the United States is tied with Uganda for sixty-seventh out of ninety-seven countries in access to the justice system and affordability of legal services. (2) "Equal justice under law" is one of America's most proudly proclaimed and routinely violated legal principles. It embellishes courthouse doors, but in no way describes what goes on behind them. Millions of Americans lack any access to justice, let alone equal access. Over four-fifths of the poor's legal needs and two- to three-fifths of the legal needs of middle-income Americans remain unmet. (3) This Article analyzes the causes of the justice gap and identifies the most promising responses. Part I explores barriers in the justice system, including financial, structural, doctrinal and political obstacles to greater access to legal services. Part II looks at strategies for reform, such as self-help and non-lawyer service providers, broader rights to counsel in civil cases, more pro bono assistance, unbundled services and innovative delivery structures, additional research concerning access to justice, and more attention to these issues in law schools. I. BARRIERS IN THE CIVIL JUSTICE SYSTEM In principle, America is deeply committed to individual rights. In practice, few Americans can afford to enforce them. (4) The barriers have financial, structural, doctrinal and political dimensions, each of which are discussed in turn. A. Financial Money may not be the root of all evil, but it is surely responsible for much of what ails the current legal aid system. Americans do not believe that justice should be for sale, but nor do they want to pay for the alternative. Even before recent budgetary cutbacks, there was only one legal aid lawyer per 6415 low-income individuals in the United States. (5) In some jurisdictions, poor people must wait two years before seeing a lawyer for matters not considered an emergency, and other jurisdictions exclude such cases altogether. (6) The United States federal government spends slightly more than one dollar per person for legal aid. (7) At this funding level, not much due process is available. Compared to other advanced economies, America spends less per legal aid case and has fewer institutions such as advice and ombudsperson agencies to assist with routine needs. (8) As a consequence, more individuals are priced out of the legal system than in other comparable countries. For example, one survey reported that in the United States, thirty-eight percent of poor individuals and twenty-six percent of middle-income individuals took no action in response to a legal problem, compared with five percent in England and ten percent in the Netherlands. (9) Moreover, the recent economic downturn has made a bad situation worse. High rates of unemployment, bankruptcies, foreclosures, and reductions in social services created more demands for legal representation at the same time that many of its providers have faced cutbacks in their own budgets. (10) The federal budget for legal aid has been cut by almost a fifth since 2010. (11) In effect, understaffed and overextended legal assistance programs are often asked to do more with less. As a result, millions of Americans find that legal protections available in principle are inaccessible in practice. B. Structural A more structural set of problems involves the absence of any coherent system for allocating assistance and matching clients with the most cost-effective service provider. …