It is widely acknowledged that we have a legal services crisis in the United States, particularly for vulnerable populations. And most often the response is more and free lawyers. But Rebecca L. Sandefur makes the provocative distinction between unmet legal needs and access to justice, arguing that they are not the same thing:
The distinction between a justice problem and a legal need turns out to be crucial, for these two ideas reflect fundamentally different understandings of the problem to be solved. If the problem is people’s unmet legal needs, the solution is more legal services. If the problem is unresolved justice problems, a wider range of options opens up. Rather than taking the position that unmet legal need is the crux of the issue, we have the option of formulating the access-to-justice crisis as being about, well, access to justice.Access to What?
What is access to justice? It occurs when “the relevant substantive and procedural norms govern resolution, [and] that resolution is lawful . . . whether or not lawyers are involved in the resolution and whether or not the problem comes into contact with any kind of dispute-resolving forum.”
Sandefur makes the point that legal rules and norms can be observed without the presence of lawyers and judges, and that most civil justice problems are indeed handled by people on their own:
The most common reason people give for not turning to lawyers is not the cost of lawyers’ help. There is a much more important reason: people do not consider law as a solution for their justice problems; they do not think of their problems as being “legal,” even when the legal system could help solve them. They think of them simply as problems: problems in relationships, problems at work, or problems with neighbors. One of the most important reasons that people handle their problems on their own rather than seeking any kind of formal help is that they believe that they already understand their situation and their options for handling it.
She cites research suggesting that the presence of lawyers may be helpful simply to ensure that the rules are followed:
One of the most striking findings was that lawyers’ impact sometimes came by simply being present in the courtroom.
Many of the lower courts and administrative tribunals where Americans find themselves, such as when they face eviction or debt collection or contest a denial of unemployment benefits, can be lawless. Judicial staff in these forums sometimes do not follow the law about which side has the burden of proof. They sometimes fail to apply the rules about what counts as evidence and what is hearsay. They sometimes ignore the right of both sides to present their cases.
When lawyers are present on both sides of cases, courts act more like courts, following the rules they have made to guide their own activities.
The most effective legal services intervention may be empowering participants with knowledge of the rules and the confidence to insist that they are followed.
And it is easier to envision technology filling the gaps when the problem is so broadly reframed.