Maybe its time to take a 22,000 mile overview of the access to justice problem. One way to do so it look at at the interacting parts of the system and how together they produce an inaccessible system.
1. A system of procedural and substantive legal rules governing access to justice, so complicated that often only an expert can navigate them.
2. A system of access institutions (courts, etc.), the practical operation of which is itself still so complicated that they can often only be accessed with the assistance of an expert.
3. A system of professional rules that limits the exercise of that expertise to those who have undergone an expensive system of education and certification with significant barriers to entry.
4. A system of professional rules and business practices that makes this expertise highly expensive to purchase.
5. A system of state-subsidized provision of this expertise that is limited to the very poor, includes no entitlement except in limited areas, is limited to a subset of substantive areas of actual need, is very inefficiency provided, exists at the whim of political currents, and the funding of which is highly subject to cyclic economic pressures.
There is a strong argument that this system, taken as a whole, is unconstitutional. In particular it violates the due process requirements of Boddie v Connecticut, 401 U.S. 271 (1971) since it requires people to use a legal system to obtain certain results, makes them pay for access to that system, and fails to provide alternative paths within the financial reach of those who need such access and do not have the resources to pay for it. (For reference to Prof. Tribe’s partial suggestion of this view, see here). It also arguably violates the due process requirements of Turner v. Rogers, 564 U. S. ___ (June 20, 2011), because it fails to provide fairness and accuracy in such cases.
Note however, that the system could be made constitutional in a number of ways, not necessarily only by a civil Gideon approach. Indeed as a practical matter all need to be done.
1. Substantive and procedural rules as well as day-to-day operation of access institutions (courts etc.) could be made simple enough to access without expertise (much is being done by courts in this area).
2. The system could be changed so that access expertise could be provided in part by regulated non-lawyers at much lower cost.
3. Professional rules and business practices could be changed to make lawyer-provided access services much more cost effective and therefore cheaper.
4. Subsidized legal aid access services could be broadened in scope, efficiency and availability.
A long long way to go, but important to remember the interrelatedness of the vision.
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