Just posted — my Drake Law Review paper on simplification: Some First Thoughts on Court Simplification: The Key to Civil Access and Justice Transformation.
Here is the abstract:
Given the discrepancy between access to justice needs and the resources that are realistically made available, current incremental approaches are almost bound to fail. The only realistic path to providing 100% of litigants with meaningful access to justice is through a simplification approach that both increases the accessibility of the legal system and reduces its costs. Indeed, we may now be in a rare moment of opportunity in which the interests of courts, bar, and legal aid align in favor of such an approach. This Article discusses the causes of excess complexity, the beginnings of simplification in current innovations, and recommends a number of short- and long-term approaches to fundamental simplification, including reconsideration of issues of burden of pleading and production. Among the suggestions is a possible reworking of the Federal Rules (and particularly their state derivatives). Those Rules are now almost one hundred years old and date back to a time when almost everyone in court had lawyers and no one, not even the government, had the luxury of technology—not even photocopiers.
I very much hope that this paper helps spark an ongoing discussion in court bar and legal aid communities about this approach — and particularly about how to get moving on the topic. What research, what pilots, what incentives, and what partners?
By the way, the whole issue of the Drake Law Review is on Access, and has some great work in it.