I thought folks might be interested in my new Judicature article, Access to Justice: The Emerging Consensus and Some Questions and Implications. It will be in the forthcoming Jan-Feb 2011 issue. Thanks to Judicature, one of my favorite publications, for carrying it.
The article makes the case that there is a far broader consensus than we generally realize about what needs to be done to achieve full access to justice. It does so by weaving together statements of state and local court, bar, and legal aid leadership organizations and of individual leaders, and examples of actual projects and initiatives that reflect those perspectives. These show that the three major institutional constituencies not only have clear views about what they themselves need to do, but that the views of each constituency are shared and supported by the other two. Indeed, the consensus is broad enough to provide the needed foundation for joint action to build the needed comprehensive system, and we should celebrate it and build on it.
Specifically, the article postulates the following agreed directions:
Court simplification and services. Courts must become institutions that are easy-to-access, regardless of whether the litigant has a lawyer. This can be made possible by the reconsideration and simplification of how the court operates, and by the provision of informational access services and tools to those who must navigate its procedures.
Bar service innovation. The bar must, through the expansion of flexible services such as discrete task representation and pro bono, con- tinue to become more cost effective and innovative in reaching and pro- viding access services to both poor and middle income households.
Availability and cost-effectiveness of subsidized counsel. For those matters and individuals where subsidized experienced legal counsel is needed to obtain access, we must make sure that those services are actually available through pro bono, non-profit, and other subsidized methods, and that they are provided in the most flexible and cost effective way.
(There is one additional area as to which there are significant hints of agreement, and real steps forward, from all the major constituencies.)
Triage and referral. To take full advantage of these changes, there must be some system that ensures that litigants obtain the services they need to obtain access most efficiently and effectively. In other words there must be some system of triage, including referral and follow up.
The article also suggests some of the implications of this consensus, and discusses some open questions. Among the key open questions:
- How is triage to be done?
- How are middle-income people’s needs to be met?
- Should the private bar be subsidized for participation in the pro- vision of access services?
- Where is the funding to come from?
- What is the federal role in building the system?
The article concludes:
“It is critical to recognize the breadth of the consensus that we now enjoy. We must realize and leverage the fact that the consensus represents the foundation of a 100 percent access to justice system. The differ- ent constituencies have everything to gain, and nothing to lose from embracing a consensus, advocating for its implementation, creating the national institutions that will promote it, and working together at every level to put it into place. The excluded demand no less, the future of our democracy depends no less, and the future will not forgive us if we achieve any less.”
Whether you agree or disagree, please do read, comment, and discuss. And share your thoughts on the open questions posed. Lets take full advantage of this moment of consensus and opportunity — even, perhaps particularly in tough times.