ACCESS TO JUSTICE

Abstract

A senior citizen named Yu Chu Huang relied on fixed public benefits and rented an apartment in Chinatown, San Francisco, for over a decade. His landlord raised the rent beyond the limits set by law in the city. He and his wife thought they had to move or even face eviction and maybe homelessness if they could not find an alternative home. The Asian Law Caucus brought his case to the city’s Rent Board. The Board not only lowered the monthly rent but also awarded Mr. Huang $12,000 in excess payments that he paid contrary to the law.1Sam is a third-grade student with autism. His mother had sought assistance and accommodation from the school without success ever since Sam was in kindergarten. Because Sam’s academic skills are above average, the school kept Sam in a general education classroom even though the stimulation was excessive for Sam, leading him to refuse engagement with academic work and also giving rise to multiple tantrums each day. As a result, Sam was unable to participate academically and was falling behind in school. Sam’s mother encountered delay tactics from school personnel, and they even tried to intimidate her to halt her advocacy for Sam. Sam’s mother turned to a legal services organization. The lawyer successfully advocated for an evaluation of Sam seven months earlier than the school had planned and argued for an intensive behavioral support plan on a trial basis. When the school district refused to hold a team meeting to address Sam’s placement due to COVID-19 school closure, the attorney demanded a virtual meeting. Sam’s needs for a smaller, highly structured academic setting were established at the meeting, and the school and Sam’s mother agreed that Sam would start third grade in a substantially separate classroom while having an option to join a mainstream classroom for subjects where he excels. The legal services attorney’s help ended the impasse that was harming Sam’s academic progress.2A military veteran with serious mental health issues applied for disability benefits but was repeatedly denied over the course of a decade. Like many veterans, she did not understand why the claim was denied or how to appeal, so she repeatedly filed the same claim. No one ever requested her medical records from the base where she served. She eventually found help from a legal services attorney, who obtained her records. The records showed resistance by the military doctors to consistently reported symptoms. The new inquiry resulted in a retroactive disability compensation award dating back to the initial application in the mid-1990s, with back payments totaling almost $250,000.3In New Jersey, a twenty-four-year-old, single mother (“Janet”) faced imminent homelessness after she fled abuse by the father of her toddlers. She came to New Jersey to live with her brother, only to learn that her brother’s landlord would not allow him to house her and her children. Janet applied for emergency shelter assistance but was denied help on the ground that she caused her own homelessness. A lawyer from Northeast New Jersey Legal Services stepped in and showed that Janet was forced to leave her home or be subjected to further abuse, and that she did have a plan of action in place when she left. She also showed that Janet’s abuser continued to threaten her.An administrative law judge immediately overturned the denial and granted Janet emergency assistance. Janet and her children were placed in a shelter and subsequently found an apartment, where they are safe. Janet is free from domestic violence and working to ensure opportunities for her children.4These are success stories. They reflect how legal help made the difference for people facing crises in housing, education, and benefits, despite their rights. Consider the experiences of veterans trying to navigate the system to obtain the health and education benefits they have earned. It can take more than half a year for veterans’ benefits complaints even to be heard. Lawyers help. One study showed that when veterans get legal assistance, their claims are 144% more likely to be successful than are claims filed without assistance.5 Legal assistance improves the accuracy and completeness of benefits applications, which, in turn, makes the application review process more efficient, easing the administrative burden faced by state governments.Others are not so fortunate. Many Americans who cannot afford legal help routinely forfeit these basic rights because they are unable to access free or subsidized legal assistance. The fact that individual rights can often be realized only with the help of expensive legal advice means that inequality is hard-wired in the American legal system.Many people know this fact when it comes to criminal law,6 but far less attention is paid to unequal access and barriers to justice involving issues of civil law: contracts, torts, employment law, veterans’ benefits, housing, family law, medical insurance, education rights, debt collection, and anything else that is not a criminal matter. Civil law affects many more people than are ever directly involved in the criminal process. These issues affect the daily lives of people even when they do not know their rights or do not have the means to claim them. The law does not enforce itself.Indeed, for every success story, many more people are turned away from help, and still more never made their way to a legal services office, court, or agency. In 2021, three of four low-income households experienced one or more civil legal problems, and a majority said these problems had substantial effects on their finances, their relationships, their safety, or their mental or physical health.7 Further, 92% of those low-income individuals surveyed reported receiving no or inadequate legal assistance related to the civil legal problems substantially affecting them.8 The need for legal assistance has been exacerbated by the global pandemic: access to civil justice has been crucial for low-income people dealing with job loss; insecure housing; access to educational accommodations, most notably for students with disabilities; and domestic violence exacerbated by the stress of living in isolation in close quarters.Access to civil justice is an ideal betrayed by practice in the United States for millions of low-income Americans. Ensuring access to the machinery of the law should be a bigger part of the equality agenda for the United States and hence for advocates. Just as criminal legal processes and systems have defects, the civil justice apparatus both reflects and aggravates inequalities in society. Despite this, there is surprisingly little support for civil legal assistance. Perhaps people think that access to justice is just a problem for lawyers to solve.9 Perhaps policy makers see legal assistance as a Band-Aid and prefer to spend their capital on more radical change. Or perhaps the lack of support reflects deeper issues of language and compassion fatigue. Whatever the reason, legal assistance for those who cannot afford other legal services is a necessary component of a just society. Meaningful change calls for detailed considerations of the scope and origins of the situation, arguments for reform, explanations of why reforms do not happen, and reasons to believe the situation can improve.10To someone without money and without legal training, asserting legal rights is a mystery and an obstacle. Our justice system is inaccessible to millions of poor people. Every day, we fail to keep the “equal justice under law” promise engraved on the front of the grand United States Supreme Court building. Legal help matters whether or not a case goes to court. Senior citizens are caught in unscrupulous scams. Disaster survivors struggle to get back on their feet. Small business owners are stymied by debt. Even knowledge that law can help is often inaccessible in these circumstances.Individual rights often cannot be realized without laws meant to protect those rights. And laws do not enforce themselves. Those without money and legal training are often unaware that their problems involve legal rights. Even when armed with that knowledge, too many individuals lack the specific knowledge and time needed to assert those rights. Assistance can make all the difference.Despite contributions from private and public sources, legal services offices for low-income people turn away half to two-thirds of those eligible for help because the offices simply do not have enough resources.11 Some communities have responded with innovations, such as self-help kiosks in their housing and municipal courts to assist people without lawyers, legal advice hotlines, high-volume legal services clinics staffed by law schools, and lawyer-of-the-day programs available in courts.12 But many other places lack these resources.13 Americans living in rural communities or on Indian reservations, elderly people, and others in many states effectively have little or no ability to find legal advice or assistance.14My focus here is on civil justice, but the risk of jail time due to unpaid civil fines and fees blurs the distinction between civil and criminal law. Debtors’ prison is supposed to be banned in the United States, but in practice, an inability to pay fees results in loss of liberty for thousands of people.15 Such fines and fees do not efficiently raise revenues for government.16 Some states suspend driver’s licenses for unpaid fees and fines, which increases economic distress and emotional stress and puts jobs, school attendance, and transportation to medical appointments in jeopardy for affected families.17Here’s the bigger picture. Nearly one in five Americans now qualify for federally supported civil legal assistance because they live at or below 125% of the poverty level.18 Americans who cannot afford legal help or who are otherwise unable to make use of civil legal assistance routinely forfeit basic rights. It is neither the facts of their cases nor the governing law that is to blame. It is their poverty—and the accompanying lack of legal assistance. When people forfeit their rights simply due to absence of counsel, we all suffer; the law does not enforce itself. In civil cases, the law requires litigants to act.By a conservative estimate, fewer than twenty percent of the legal problems experienced by low-income people receive legal representation. All around the country, legal services offices are routinely turning away eligible clients. One office I visited in 2016 had to close intake of new cases after two days each month. Who is turned away? Victims of the financial crisis, innocent tenants whose housing is in buildings subject to foreclosure, veterans, people with disabilities, people vulnerable to domestic violence (which itself increases when the economy is difficult), and people whose disability, race, ethnicity, or national origin exposes them to the daily assaults of direct and indirect bias.Legal advice and advocacy can make all the difference for people at risk of eviction or foreclosure, unemployment, hunger, and domestic violence. Returning veterans, parents in child-custody disputes, and small-business owners having difficulty meeting the terms of creditors are deeply affected by the lack of access to civil legal assistance. Legal services needs are much greater than the available funding. Reports from local offices that provide civil legal assistance to low-income clients indicate that between fifty percent and eighty percent of clients are turned away due to a lack of resources.19The sole federal source of funding, the Legal Services Corporation, is a nonprofit created and funded by Congress. Its federal appropriations fall far short of what it would take simply to keep up with inflation and population growth, and the “justice gap” is even larger in light of increased legal needs due to economic dislocations, medical crises, and natural disasters.20Local communities, especially in poor states, may depend on the federal funding even as many try to find other sources of support for the lawyers, paralegals, and tech resources. In fact, most legal aid funding in the United States comes from non-federal sources, but those other sources have been strained.One very creative source is Interest on Lawyers Trust Accounts (IOLTA). Ordinary lawyers often hold funds in trust for clients, and through this program, the interest earned on funds in client trust accounts strengthens justice by serving those who cannot afford to pay for legal representation. It represents an ingenious idea, but it works well only when interest rates are substantial. When interest rates and client funds held in trust decline, the funds available to support legal services fall dramatically.States and local governments, in addition to the federal government, provide support for civil legal services for low-income Americans, but the level of state and local support varies widely.21 Agricultural workers and Native American service areas in particular depend on federal dollars for more than half of the dollars contributed to civil legal assistance.22 Women make up about seventy percent of the low-income clients served by the legal aid programs receiving federal aid, and perhaps women’s political and economic disadvantages help to explain the limited support and attention to civil legal aid.23 Over half of those served by these programs identify as members of racial and ethnic groups that are not white/Caucasian, and this fact, too, may help explain the chronic underfunding of the programs.24Despite the enormous needs, legal services programs supported by the federal government have had to lay off attorneys and paralegals. Scores of legal services programs have closed offices over the past ten years. When an office in a rural area closes, the next-closest office may be two days away by car, literally inaccessible to a poor person who lacks transportation. Without legal help, even those who make it to court face steep problems. In a survey of trial judges from across this country, more than sixty percent of the responding judges reported that unrepresented litigants failed to present necessary evidence, committed procedural errors and ineffective cross-examination, and failed to present enforceable orders to the court.25 Judge Griffin Bell, former Attorney General of the United States, reflected that “it does not matter how fair our laws may be, if access to their enforcement is denied or unavailable.”26For example, being represented by a lawyer in landlord-tenant disputes results in dramatically better outcomes for tenants.27 In Boston, ninety percent of landlords have lawyers in housing court, and ninety percent of tenants do not.28 The Boston Bar Association reported on a randomized controlled study that showed that compared with those without legal representation, tenants with full legal representation fared twice as well in terms of retaining possession and almost five times as well in terms of rent waived and monetary awards.29 Indeed, across a wide range of problems, having access to a lawyer is associated with better outcomes.30 So those without such access face compounded problems: their underlying legal problems compounded by the lack of better outcomes that access to counsel facilitates.Access to counsel varies across states. Fordham Law School’s National Center for Access to Justice developed the Justice Index.31 The Index assesses four categories—attorney access, self-representation, language access, and disability access—and produces a score for each state on a scale of 0 to 100, with 100 representing full access to justice. Massachusetts, with a score of 63.79, performed significantly above the national average score of 39.41. New Jersey is ranked twenty-third nationally in overall access to justice, with a score of 39.03; New York scored similarly at 39.09; Mississippi performed the worst, scoring 14.70. And in rural regions and on Indian reservations, the prospects of finding cell-phone service, mass transportation, or any avenue to legal advice are shockingly dim.The United States overall makes a poor showing in comparison with other countries with respect to access to civil justice. On access to justice in civil matters, the United States is ranked thirty-sixth internationally, behind most high-income countries as well as behind Rwanda, Poland, and Malaysia.32 The United States is far from the exemplar that many claim it to be.Getting the help of a lawyer is one way to access justice, and it is crucial when the laws are complex and when courts and agencies are opaque and cumbersome. The benefits at stake are not just those for the people most directly affected, because unmet legal needs spiral into high social costs. A tenant who cannot resolve a conflict with a landlord may well end up homeless. A domestic violence victim who lives in fear may be unable to show up for her job. A veteran who cannot access preventive health care may well develop acute and debilitating medical conditions. A task force of the Boston Bar Association found that every dollar spent on legal assistance for low-income individuals returns between one and five dollars to the Commonwealth in savings to foster care, emergency housing, emergency health care, and other social services.33 Civil legal aid service providers in Georgia helped their clients obtain $36.3 million in Social Security benefits, and programs provided by similar organizations in Tennessee helped secure $1.3 million in cost savings from a reduction in the need for emergency homeless shelters.34 In 2015, civil legal aid recipients in Maine spent fewer nights in the state’s emergency and homeless shelters, which saved an estimated $2.6 million.35 All these studies show a simple truth: legal-aid representation benefits us all.We all save money when other people can pay their bills, avoid foreclosure or eviction, prevent foster care placements for their children, and obtain health care and social services that let them contribute to their communities. In Florida, one study estimated savings of $4.24 million due to legal services responding to domestic violence and homelessness risks.36 In Nebraska, legal aid clients received more than $2.5 million in parental child support, alimony, unemployment, and other financial awards in one year.37 These victories keep kids in school, prevent homelessness or domestic violence, reduce the cost of one child in foster care, and improve access to health care.Ensuring access to justice reduces suffering and saves money. It is also a stated commitment of the United States. James Sandman, the former president of the federal Legal Services Corporation, explained that one of the most fundamental of American values is “equal justice for all, without regard to economic status.”38 The Supreme Court of the United States has “Equal Justice for All” etched above its doors. In the federal judicial oath, every judge taking the bench promises to “administer justice without respect to persons, and do equal right to the poor and the rich.” Schoolchildren recite the Pledge of Allegiance to a nation that promises “justice for all.”In contrast, any person excluded from the court system is politically degraded. “Such a person has no rights—not even the right to have rights … [meaning] the most basic of all rights: the ability to appear before a government official and argue that one is entitled to recognition as a potential holder of rights.”39 So wrote law professor Alexandra Lahav in her important book, In Praise of Litigation.40Despite our shared values, access to civil justice is not an issue high on political agendas or even in the consciousness of people who are not directly affected. Access to justice is never going to be equal if “equal” here means identical experiences, regardless of the wealth of the individuals involved. But this country could assure a minimum threshold of accessibility, and doing so would considerably close the gap between our country’s stated ideals and reality.Stepping back from our immediate situation in the United States, it is worth seeing how rights are building blocks of the rule of law, and the rule of law produces stability and security for entire nations. A sturdy rule of law strengthens the climate for businesses and serves workers, their families, and consumers. It avoids the risks of unrest and promotes trust in basic institutions and society. Former Chief Judge Hunstein, who served on the Supreme Court of Georgia for twenty-six years, put it this way:Equal access to justice contributes to healthy communities and a vibrant economy. No community thrives when people are homeless, children are out of school, sick people are unable to get health care, or families experience violence. Likewise, when a person’s legal problem is addressed in a timely and effective way, the benefit ripples out and helps that person’s family, neighbors, employer and community.41Work with societies emerging from violent conflict—for example, in parts of the former Yugoslavia and in Rwanda—underscores the importance of building or rebuilding trust in legal systems.42 Economic investments will not come to communities that lack functioning courts and widely held perceptions that the rule of law is in force. Without those practices, rights are not secure. Laws do not matter if people cannot enforce them. Even more fundamentally, access to justice means strengthening our own best selves and avoiding our worst. Justice Thurgood Marshall once said, “In recognizing the humanity of our fellow beings, we pay ourselves the highest tribute.”43 That is what access to justice is all about, and that is what we can advance if we all work together.44The case for expanding access to the law in the United States is strong whether justified by cost savings, national ethos, social stability, or merely respect for individuals—or by concern about inequality as an issue of morality, law, and even security. Alleviating suffering, delivering on the promises made by law and the nation itself, saving money, promoting social stability, enacting shared values—these are pretty darn good reasons. And yet the shortfall in community support for legal assistance is persistent and chronic. Since the economic downturn of 2008, exacerbated by the pandemic and its attendant economic dislocations, legal needs of people who are poor or risk sliding into poverty have skyrocketed, and yet funding sources for legal services have diminished.When the administration of President Donald Trump called for ending all federal funding for legal services, the head of the Office of Management and Budget, Mick Mulvaney, responded by twice introducing legislation to terminate the Legal Services Corporation.45 Luckily, those efforts failed, but so too have efforts to expand funding for legal services. Law school deans have urged Congress to keep and expand the funding for legal services, and so did general counsels of leading U.S. corporations. But the shortfall between need and funding persists even with a change in political administrations.Political contests over federal funding for lawyers for poor people are not new. Growing from the War on Poverty work of the 1960s, the federal Legal Services Corporation was enacted as a bipartisan commitment. The law was signed in 1974 by President Richard M. Nixon. President Nixon’s message described the federal legal services program as “a workhorse” in the effort to secure equal rights in America. President Nixon explained, “[E]ach day the old, the unemployed, the underprivileged, and the largely forgotten people of our Nation may seek help. Perhaps it is an eviction, a marital conflict, repossession of a car, or misunderstanding over a welfare check—each problem may have a legal solution. These are small claims in the Nation’s eye, but they loom large in the hearts and lives of poor Americans.”46Opponents of federally funded legal services in the 1960s included then-Governor Ronald Reagan, perhaps due to clashes with lawyers representing Cesar Chavez and farmworkers; as President, Reagan sought to eliminate all federal funding for legal services.47 Congress joined in a pitched political battle and, with the support of the American Bar Association, preserved the Legal Services Corporation but reduced its funding and placed restrictions on the work that could be done with federal support.48Funding for civil legal assistance remained steady during the administration of President George H.W. Bush, and funding even grew substantially during the presidency of Bill Clinton, whose wife Hillary Clinton had previously served as chair of the Legal Services Corporation board. But when President Clinton’s administration agreed on reforms to public assistance in signing the 1996 Personal Responsibility and Work Opportunity Act, that meant accepting further restrictions on the types of work permitted to LSC grantee legal services organizations. LSC-funded organizations could no longer bring class action lawsuits challenging the administration of public benefits, and they could no longer represent immigrants lacking legal authority to be in the United States.49 The Supreme Court rejected one specific restriction on advocacy on behalf of an individual client challenging welfare benefits.50 Nonetheless, organizations receiving federal funds remain barred from engaging in or encouraging others to engage in political or election-related activities.51Why do people oppose support for civil legal assistance for poor and often desperate people? I have been trying to understand the sources of the opposition, because simply saving money is an insufficient motivation. As Americans, we spend more money on Halloween costumes for our pets than we do to support legal services for poor people.52 Adjusted for inflation, the federal grant for civil legal assistance has remained lower in recent decades than it was in 1976 when the program was founded.Two oddly contradictory reasons may offer some explanations of the persistently inadequate support in the United States for legal assistance for those who cannot afford it. The first is general dislike of law, rights enforcement, and lawsuits in general; the second is a view of injustices as too large to be met simply by increasing legal assistance to individuals, given the existing state of laws and institutions. Some even deeper explanations will then be explored.It is not hard to find cultural objections to lawyers, lawsuits, and law. William Shakespeare’s line “First thing we do, let’s kill all the lawyers,” though often ripped from its context, summarizes familiar attitudes.53 Lawyers are not well-liked. Think of all the jokes about lawyers. Critics complain that law and regulation are burdens on freedom.54 Lawsuits are particularly understood as burdensome due to the time, money, stress, and reputational risks involved. Classic author Voltaire supposedly said, “I was never ruined but twice, once when I lost a lawsuit and once when I won one.”55 Law as inaccessible and inscrutable may be nowhere more hauntingly portrayed than by lawyer-author Franz Kafka in his parable “Before the Law,” which depicts a person being told by the doorkeeper not to enter, bribing the doorkeeper to no effect, and waiting years for the door to the court to open before dying before the closed door.56A world papered with law is the opposite of an ideal society, suggested the accomplished law professor Grant Gilmore, who ended his book on legal history this way:The better the society, the less law there will be. In heaven there will be no law, and the lion shall lie down with the lamb. The values of an unjust society will reflect themselves in an unjust law. The worse the society, the more law there will be. In hell there will be nothing but law, and due process will be meticulously observed.57If this world actually were heaven, perhaps there would be no need for law. But, given our less-than-heavenly world, the objections to law seem to arise when people imagine burdens if they are on the receiving end of legal claims, rather than considering their own potential need for law’s protections. Maybe people imagine law as burdensome, as red tape, as obligation without conveying desires for less justice. Or maybe some people desire less justice for other people but not less for themselves.Periodic political fights over whether the federal government should finance lawyers for poor people reveal opposition to two forms of lawyering for the poor. First, full-service lawyering includes the possibility of bringing class action lawsuits, which are more efficient than bringing a series of similar individual cases—yet this form of action is off-limits for federally funded legal services. Second, law reform through legislative action and elections are means foreclosed to legal services offices funded by the federal government. Those restrictions may reflect views that government funds should not be used to sue or change the government. Other restrictions reflect political opposition to the rights of farmworkers, people receiving public assistance, and undocumented immigrants.There also may be expectations of under-enforcement baked into many government budgets. The Veterans Administration, for example, would have to pay out more in benefits if the processes were more easily navigated and enforced by eligible individuals. The barriers to enforcement, though, mean that benefits remain beyond reach for many who have valid legal claims. When laws are not enforced, perhaps they were not meant to be real. Saving money is given greater priority than enforcing the rights of the poor.Insufficiencies of law enforcement fall disproportionately on those with fewer resources. Perhaps not surprisingly, then, respect for law is in jeopardy, especially among those who lack access to it. While president of the American Bar Association, Justice Lewis Powel