Access to Justice
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Most of the innovations on this website directly or indirectly increase access to justice. However, so much work is being done to understand and increase access to justice specifically that it needs its own entry.
The Many Aspects of Access to Justice
I think it is important to break down the access-to-justice problem into several related and often overlapping problems. (Sam Harden was the first person I know of to break down access to justice in this way, although I’ve added some categories.)
In the legal profession, most of the attention is on access to lawyers. If it is not obvious that people represented by a lawyer tend to get better results than people who aren’t, there is plenty of data to back it up. However, there is no realistic plan to increase the number of legal professionals to meet the need, and—perhaps surprisingly—people rarely turn to courts and lawyers for solutions to their legal problems, anyway.
The center of the legal system is, of course, access to courts and judges. Laws and procedural rules are written by and for lawyers and courts are designed to be used primarily by lawyers. That means courts are not particularly friendly to self-represented litigants. And yet people handling their own legal matters may be the majority of court users. Helping them use the courts efficiently, therefore reducing the “lawyer advantage,” is necessary to increase access to justice in the courts.
Perhaps what people (and companies) really need is access to outcomes or solutions. Lawyers and courts are a means to an end—usually a document or order that entitles someone to money or spend more time with their children, start a company, etc. This is where most legal innovation seems to live.
Accessibility is access to justice, too. Over 12% of the population has a disability of some kind. As a matter of law—and best practices—the justice system must be designed to be accessible by everyone.
For a long time, the statutes, judicial opinions, and regulations that make up the law have been tied up in privately owned book collections and databases. More and more, those materials are available electronically, but not conveniently. This makes it hard to build a new legal research company, but also to just look up the law you need to understand in order to represent yourself.
Which brings us to understanding. There is a lot of law available for free on the internet. But just because someone can read the US Tax Code, that doesn’t mean they will be able to understand what they have read. Interpretation—applying the written law to facts—is another thing entirely.
The Access-to-Justice Gap
In recent years it has become common to talk about “the access-to-justice gap.” Usually this is used to mean the gap between those who need a lawyer and those who can afford one, but I think it can be used to cover all the above situations. Any time there is a discrepancy between the number of people who are trying to get access to one of the aspects of justice I have listed above, and those who are able to get access to it, there is an access-to-justice gap.
For example, the Legal Services Corporation periodically measures the unmet civil legal needs of low-income Americans.
In the past year, 86% of the civil legal problems reported by low-income Americans received inadequate or no legal help.The Justice Gap: Measuring the Unmet Civil Legal Needs of Low-income Americans
(Since the LSC report is often trotted out as the definitive measurement of the access-to-justice gap, I think it is important to highlight the qualifications in the subtitle. In fact, the LSC report is measuring the (1) unmet (2) civil legal needs of (3) low-income (4) Americans. It does not describe the access-to-courts-and-judges gap or the access-to-solutions gap, although it is sometimes used to do so.)
While that seems like a massive gap, on its own it doesn’t tell us much. Professor Rebecca Sandefur has focused on trying to understand the gap. For example, she has found that the people with civil justice problems rarely turn to lawyers or courts for assistance. And cost is not a major motivating factor. Most just don’t see how lawyers or courts could help, or don’t think they would make a difference.
This is all to say that there is a lot more nuance here than just a single number, and we should be careful to make sure we are using the appropriate numbers to inform our discussions.
Published on January 6th, 2022. Last updated on May 27th, 2022, by Sam Glover.