Empirical studies go neg.

This law-centric orientation is strikingly different from that of most Americans, despite popular claims about their litigiousness. 8 Most individuals never even identify the civil legal problems they experience as "legal." Only a tiny minority will ever seek legal advice in response to a problem, and most are more likely to do nothing than to file a lawsuit. Decades of empirical scholarship have confirmed that despite the prevalence of civil legal problems in everyday life, there is remarkably little recourse to formal law.

Footnote 8:

DAVID M. ENGEL, THE MYTH OF THE LITIGIOUS SOCIETY: WHY WE DON'T SUE 3 (2016) (noting that "specious claims of a litigation explosion have been made so often that they have rooted themselves in the national psyche").

End of Footnote 8.

A burgeoning movement among scholars and practitioners seeks to incorporate this empirical reality into our understanding of access to justice. While earlier conceptualizations of access to justice focused on access—to lawyers, legal expertise, and legal institutions 12—the emerging approach is centered instead on justice. With the goal of equalizing individuals’ ability to achieve just resolutions to civil legal problems regardless of whether lawyers or courts are involved, it pragmatically seeks to acknowledge individuals’ disinclination to turn to law while nevertheless promoting their ability to achieve justice.13

Realizing this objective requires expanding the access to justice toolkit. An international set of evidence-based best practices suggests that access to justice interventions be proactively targeted to those groups most in need of assistance, linked to other social service providers, aimed at addressing problems early to avoid escalation, and customized to the user’s capabilities.14 By enhancing individuals’ ability to resolve civil legal problems, such interventions could promote equality in their ability to thrive in society; without successful interventions, inequalities in access to justice are likely to continue to reproduce existing social and economic inequalities and perpetuate cycles of poverty.

Unfortunately, our institutional infrastructure is poorly suited to deliver these types of interventions. Responsibility for access to justice is primarily assigned to the civil justice system, which is a reactive institution limited to engaging with the “cases and controversies” before it.15 Thus, while it may work to increase access to legal representation, offer alternative means of resolving disputes, or provide resources for self-representation, it does so only in the context of the tiny minority of legal problems that enter its domain. Meanwhile, the vast majority of justiciable problems that people experience remain outside the boundaries of the legal system in an institutionally barren no-man’s land. To an extent not often recognized, access to justice is an orphan issue, a social problem for which no institution bears responsibility.16

This has negative implications not only for individuals’ ability to resolve justiciable issues, but also for the emergence of access to justice as a political issue.17 Yet, we are living in a moment of upheaval—wrought by a global pandemic,18 a divisive populist president,19 rising economic inequality,20 and a reckoning with systemic racism21 and sexism22—that may produce an opening to reconsider our commitment to equity in access to justice. In this Article, I offer a blueprint for several institutional design reforms that might be implemented to capitalize on such an opportunity.

The Article proceeds as follows. In Part I, I describe the state of access to justice today. Drawing on empirical research, I document the prevalence and unequal distribution of justiciable problems and identify patterns of behaviors taken in response. I then explain how this empirical understanding has transformed our conceptualization of access to justice. In Part II, I describe the mismatch between the types of evidence-based interventions that could operationalize the contemporary conceptualization of access to justice and our near-exclusive reliance on the judicial system, whose mandate largely excludes such efforts. Part III contains my proposals for institutional design for access to justice.

I. Access to Justice Today

We are in an era of renewed dedication to the goal of expanding access to justice domestically23 and around the world.24 Yet doing so requires that we define the scope of the issue.25 In this Part, I describe how a growing international body of evidence regarding the prevalence, distribution, and consequences of civil legal problems, as well as the most significant barriers to their resolution, has influenced the evolving definition of access to justice.

A. Justiciable Problems: Prevalence, Distribution, and Consequences

We live in a “law-thick” world 26 in which civil legal problems are both prevalent and consequential.27 While this includes situations involving formal civil legal action, these represent only a tiny fraction—the tip of the iceberg—of the civil legal problems that individuals experience.28

Footnote 28:

28. Rebecca L. Sandefur, Paying Down the Civil Justice Data Deficit: Leveraging Existing National Data Collection, 68 S.C. L. REV. 295, 299 (2016); Richard E. Miller & Austin Sarat, Grievances, Claims, and Disputes: Assessing the Adversary Culture, 15 LAW & SOC’Y REV. 525, 546 (1980) (noting the low rate of litigation relative to the number of grievances); Felstiner et al., supra note 7, at 636.

End of Footnote 28.