Given that Karl Rove has effectively conceded the election, its surely time to start thinking about opportunities for access to justice in the transition.
Obviously, this is going to be very different from the last transition eight years ago. It will not be a change of party. We will not be in a huge financial crisis. There will not be a huge stimulus plan in the process of being put together.
There will already be in place an access to justice office within DOJ, and an access to justice caucus in the House of Representatives. There will also be a President who was once the President of the LSC Board, and a Vice-President whose wife has been both a legal aid attorney and a judge with administrative responsibilities. We’ll have lots of research in place, lots of pilot projects that show promise, significant funding from the foundation sector, including for the Justice For All Program implementing the Chief’s Resolution, and a truly pro-access LSC Board. We’ll have the White House Legal Aid Inter-agency Roundtable driving engagement of a multitude of Federal agencies in access to justice. We will have a very different balance in Congress.
So, what do we need from the transition, other than the obvious (money)? Here are some thoughts.
Continued expansion of Multi-Agency engagement with ATJ. This means making sure that all Federal agencies assess the ATJ impact of the changes they make (ATJ impact statement requirement), pay focused attention to the accessibility of adjudicatory processes within and paid for by their agencies, and continue to make sure that funding streams contain elements that fund accessibility help for those impacted.
Access to Justice Leadership Coordination. Again and again we have seen that the ATJ community has missed ATJ agenda opportunities because of a failure of leadership coordination. We still have no fast response mechanism when a disaster hits, when a new issue suddenly gets public attention, or when an especially sympathetic person has something bad happen to them. This is just a symptom of the broader failure to have an integrated agenda (although at least different agendas now have elements in common), or even a leadership mechanism to create such an agenda. While the DOJ ATJ Initiative has long served as a leader in convening, and has been particularly successful in encourage research and in getting Federal agencies to think about moving forward in common, this should be ramped up in terms of status and priority. Maybe a job for the “Second Spouse?”
Civil and Criminal Distinction. Any intellectual justification for the distinction is long gone, and the Feds should be making the regulatory and statutory changes that remove the possibilities for integration of services, research, funding, etc.
Integrated View of ATJ. Finally, every initiative with ATJ potential should be scrutinized to insure that all approaches are considered and integrated — including roles beyond lawyers, bar change incentives, and simplification and system redesign. Triage (and that covers many different approaches) should be recognized to be the core of the system that it already is.
Supreme Court Nominee. It is critical that the new nominee (assuming that the highly satisfactory Garland has not in fact been confirmed by the inauguration) have an ATJ perspective, not just in terms of the Federal Rules, and issues like class actions and mandatory arbitration, but also with an understanding of the critical administrative and leadership role that the Supreme Court potentially could have for access to justicecritical administrative and leadership role that the Supreme Court potentially could have for access to justice. Follow Canada.
It should be the time of an exciting step forward. Lets hope that the process gets the right people involved, with the broadest perspective possible.