Family Law and the New Access to Justice

Abstract

Civil litigation reform has so consistently and predictably benefited a certain set of defendants, at the expense of a certain set of plaintiffs, that it has understandably come to be assumed antithetical to access-to-justice values. The view, however, looks different in family court, where reformers are implementing transformative changes that are consistent with access-to- justice values: these reforms are delivering dispute-resolution mechanisms that are faster, cheaper, and easier to maneuver, particularly for self- represented litigants. This Article explores whether the optimistic prospect suggested by this experience—of reform that promotes rather than inhibits access-to-justice values—is inherently limited to family law. Does the experience with family court reform offer insights that transfer to other contexts, or is family law simply too exceptional? On the one hand, family law disputes are unique in some truly important ways. It is difficult, for example, to conceive of a convincing analogue for postdivorce parenting, and what we mean by “justice” can be fundamentally different for domestic-relations litigants than for others. On the other hand, reform in family court has been driven in part by concerns about cost and speed that are hardly unique to domestic-relations litigants. This Article suggests that some features of family court reform may transfer to other contexts. Chief among these features is an emphasis on triage rather than standardization as the touchstone of a fair and effective specialized court. This Article first sets out the view from family court, describing the reforms that are taking root and arguing that they serve access-to-justice values. It then assesses whether the core attributes of family law make the field too exceptional for these reforms to have any transferable application to other contexts. Having established that domestic-relations litigants and the institutions that serve them are concerned about reducing cost and increasing speed, this Article observes that these objectives no doubt transfer to other contexts, and so it is worth focusing on some of the essential qualities that family court reformers have used to balance efficiency and individualized justice.