These observations are from Claudia Johnson. Thanks, Claudia, as always.
Let’s create a Competition to solve the Access to Justice Problem!
At the recent SRLN, the keynote speaker, Judge Burke from Minneapolis, gave took us back to basics and went back to the core principles of due process and public perception of fairness and legitimacy and the need to focus again on reducing the intimidation factor of courts.
That same day, Richard shared his video on ideas on how to create incentives to achieve access to Justice. He has posted his video here: https://accesstojustice.net/2016/05/12/my-video-on-five-ways-to-incentivize-bar-courts-legal-tech-and-nonprofits-to-get-us-to-access-for-all/ I highly recommend those interested in ATJ policy to watch the video—because it is one of the rare instances where policy analysis tools from micro and macroeconomics are being applied to the provision of legal services to the poor. And it the ideas he proposes are thought provoking and hopefully will generate a dialog.
Some of the ideas Richard discusses include using techniques that come from well-known micro economics and taxation strategies, to create economic incentives that help aligning the behavior of attorneys, bar associations, legal aid groups, and courts in such a way that they improve access to Justice. The premise is that practicing law is a privilege and that the receipt of privilege requires something in return that promotes the public good. In a nutshell, these were the points he made:
- Return the responsibility to ensure access to Justice to the Bar.
- Internalize the costs of ATJ—have courts internalize the costs of ensuring access to justice., by making them pay the advocacy budget
- Align the tax incentives for access to justice, such as by allowing tentants to deduct legal fees, the same way landlords already can, and by making pro bono service tax deductible in some way
- In the context of licensing services, a quid pro quo approach—create a limited license technology exemption licensed by the FTC—where legal technology companies can provide services if they grant free licenses and free and marginal cost services to the poor and those who cannot afford lawyers.
- Same as above, but for legal nonprofits–create a regulatory exception for any nonprofit legal aid organization.
In my comments that day, I mentioned that as we think of economic/financial incentives, we should also think of real incentives—in particular awards and prizes, to recognize court systems that create and share ways in which they improve the outcomes for those without lawyers. I referenced as an example the Star Award’s that the NY Access to Justice Initiative gives clerks that use online forms. https://www.nycourts.gov/ip/nya2j/DIYawards/awardNewYorkCivil_photos.shtml This Award has led to significant use of the Court DIY forms that run on LawHelp Interactive—increasing efficiency across multiple case types across NY. https://www.nycourts.gov/CourtHelp/DIY/index.shtml
My suggestions are based on the concept of Inducement prizes, a well known approach mostly in engineering to create a solution for a very hard concrete problem. Inducement prizes are a well known area of study. For those who want to read about the effectiveness of prize awards and competition in agriculture, this might be of interest: http://www.hbs.edu/faculty/Publication%20Files/11-118_089bff4b-868a-41f1-8f3d-351d1a58d2c2.pdf Some of their comments are of note: “Mega prizes, such as those offered by the X-Prize Foundation presuppose that inventors are incentivized by large pecuniary inducements, but R&D costs typically exceed the value of the prize”. (http://www.hbs.edu/faculty/Publication%20Files/11-118_089bff4b-868a-41f1-8f3d-351d1a58d2c2.pdf at page 25).
Incentive prizes are not new. Two of the most famous inducement competitions include the Longitude competition of 1714 and the Orteig price. The Longitude competition led to a solution to how best to determine the longitude of a ship accurately. These were the days when the world’s travelers to and from other continents, and commerce and cargo moved exclusively through ships and thus exact location was a need. The Orteig competition was the competition that motivated Charles Lindbergh to fly the Spirit of St. Louis in 1927—the price was $25,000 in 1919. That would be equivalent to $358,000 today.
As referenced above, the most current example of inducement price competitions for a Mega prize is the X Prize Foundations. http://www.xprize.org/ This foundation runs competitions in chosen fields.
Another example of our times, might be hackathons. Many of the winner concepts developed never become products and stop at the demonstration phase. However, it is encouraging to see that some competition winners have been adopted after the competition is over, and have benefited from additional work and investments to make then real products, but that might be the exception, not the rule. http://www.connectingjusticecommunities.com/jasa-and-pbn-team-up-to-relax-in-the-den/2014/11/ This example is from the much watched Iron Tech Law Competition and class that happens each year at Georgetown law: https://www.law.georgetown.edu/academics/centers-institutes/legal-profession/legal-technologies/iron-tech/index.cfm
So how about creating a competition to reduce the intimidation level of those without lawyers in courts, make courts more transparent from the eyes of litigants, and create court systems that are responsive not just to the needs of litigants that can pay a lawyer to move their case, but also for those who are in court on their own—regardless of income or language spoken, or race and gender?
Could a major founder or a group of foundation(s) could sponsor such a prize competition, were the problem to be solved is so clearly outlined that it encourages a genuine number of approaches to arrive at the specified goal, where in addition to creativity and willingness to change, outcomes are measured, theories of litigant behavior are confirmed and tested, and the behaviors and procedures of courts are also evaluated using as the main criteria improving the access to justice and court experience satisfaction? The prize should include additional support and funds to move the project from idea to product, so that if group competes—it commits to finding a way to productize the project after they win the prize. So in effect, include some R&D capacity—and this way make sure the product does not die in what some call “the valley of death”. http://www.symmetrymagazine.org/article/february-2011/crossing-the-valley-of-death.
Such a competition will encourage collaboration between groups that serve overlapping populations—much as the SJI grants used to do in the late 2000s when SJI and LSC used to fund projects jointly.
A complex problem cannot be solved by one group or one perspective alone. Considering how law has become more complex and how much more endemic poverty is in our country, a competition like this should encourage participation across disciplines, including data scientists, behavioral change experts in the realm of public health, legal aid attorneys, legal hotline attorneys, substantive experts in those ears of law (plaintiff and defendant experience), courts, court self-help center staff and leaders, legal nonprofit technology groups, social science researchers in areas of interest (expungement, child support, juvenile dependency cases, housing/eviction, consumer law) UX designers, database experts, privacy and confidentiality experts, and maybe even some Federal experts on privacy like the FTC and the ACLU.
Crafting the call and defining the problem would not be a quick task—and would require a group of experts and thinkers to define the challenge and the concrete goals (like fly from NY to Paris). The group would need to be diverse and inclusive to arrive at a good challenge. Considering the high level of thought and expertize in our community—this could be a worthy project—and one where at the end we have one or two concrete approaches that maybe then can be deployed in other areas of the country and other areas of law.
Any thoughts and reactions on using competitions and awards to incentivize solutions to hard problems in access to justice? If you know of competitions and awards that have led to innovation, embracing change, and ongoing improvement in your state Vis a Vis access to justice, please share them.