Recent Guidance issued by the White House to all Federal agencies on the process for estimating environmental impact, as required by law, may well point the way for how to we think about access to justice indicators, as envisioned in the UN goals process, and as called for in the Chiefs 100% access Resolution.
Specifically, the Guidance, instructs all agencies, as reported in the Washington post, to:
. . . [N]ot only include climate change in these considerations but actually quantify the climate impacts of their decisions, when possible, in the context of the environmental reviews that are already required by NEPA. (bold added).
. . . “From the public standpoint, we are now going to know what all of our decisions add up to in terms of impacting climate change,” said Christy Goldfuss, managing director of the Council on Environmental Quality. “You can think of all the different federal decisions, and how they all add up. We have numbers where we can actually say, ‘this is a huge decision, given the amount of greenhouse gases coming out of it.’
“And that gives the public a chance to really weigh in on decision-making,” continued Goldfuss, whose office was actually established by the original NEPA.
The Guidance itself is at https://www.whitehouse.gov/sites/whitehouse.gov/files/documents/nepa_final_ghg_guidance.pdf.
The moral for the access to justice world. We should be building a system in which changes to the legal system are analyzed, prior to adoption, for their impact on access to justice, and that assessment, whenever possible should be quantitative. This is just as important in the administrative law context.
What quantitative measures might we use? There are some obvious measures. Federal forms are already required to include access to information on how long they take to fill out. But that information does not include whether a person can fill it out without a lawyer.
Generalizing, I would suggest that any change in the legal system would need to be analyzed in terms of what percentage of people could reasonably be expected to participate meaningfully and sufficiently in the process, as changed in comparison to before the change, and only with assistance from free and actually available resources. For there to be “sufficient meaningful participation” it would be necessary that the case has been sufficiently presented that the decision-maker was able to accurately make a decision on the facts and the law.
For example, if 95% of people would require a lawyer, and the system only provided them for 10%, while the others required nothing, then the score would be 15%.
In a different hypothetical, if 25% percent needed a lawyer, 5% were available, and for the remaining number self-help would be needed but not available, then the score would be 5%. In the same hypothetical, if 40% would be able to get self-help and that would be sufficient, then the score would be 45%, and so on.
For some changes, such as new forms, I think there might be objective testing, asking people to fill in the form, then interviewing them to find out if information was missing. The same could be done after hearing — in both court and administrative agency contexts.
Other changes might require subjective assessment, and the question of who would do such things would be critical.
The impact would need to be on the process as a whole, not just the measured step. For example, if a redesigned form alone went from 60 to 50, but the score for the number whose information got in the record of the hearing went from 70 to 80, then that would be progress. Such a result could occur because a longer form was successfully used by fewer people but the additional information provided by those who did complete it led to better results.
At a minimum, such a requirement would force consideration of mitigation – the ways to reduce any bad impacts on the score, such as providing additional self-help services, providing more training to judges, and the like. (Interestingly, mitigation is considered in the environmental Guidance.)
Such an approach, used to establish baselines, might be very helpful in the UN process and for establishing the measures called for in the Chiefs’ Resolution.