Two-day event brought together SLS faculty and other experts to discuss how to bridge the widening justice gap
Sixty years ago, the United States Supreme Court decided Gideon v. Wainwright, holding that the Sixth and Fourteenth Amendments to the U.S. Constitution guarantee a right of legal counsel to indigent criminal defendants.
Using the anniversary of the landmark case as a springboard for a far-reaching discussion about access to justice, primarily in civil matters, the Stanford Law Review hosted its Volume 75 symposium on February 11-12, 2023. Titled Access to Justice, the event brought together Stanford Law School (SLS) faculty, students and other experts from government, the judiciary, and academia for two days of panel discussions and presentations of Law Review articles and essays. Topics ranged from “Should Nonlawyers be Allowed to Practice Law?” to “Monetary Sanctions Thwart Access to Justice.”
With the 60th anniversary of Gideon, “it makes sense that we take stock of the access to justice crisis across the American legal system,” said Stanford Law Review president Anais Carell at the start of the event. According to data from a recent U.S. survey conducted by the Hague Institute for Innovation of Law, only 14 percent of civil claims make their way to the courts, meaning that 86 percent of Americans’ legal needs go entirely unmet. ”Many tenants, debtors, workers, accident victims and others are entirely excluded from the civil justice system and the justice gap inflicts particular damage on people of color,” said Amir Wright, Stanford Law Review Symposium Editor, who was responsible for the selection of the topic, authors, and panelists. “If you commit a crime, you are guaranteed legal counsel. That same right doesn’t exist if you want to sue your landlord or your discriminatory employer. In planning this weekend, we wanted to ask ourselves ‘why not?'”
During her opening remarks, Jenny Martinez, Dean and Richard E. Lang Professor of Law, focused on the “groundbreaking and innovative” scholarship the Stanford Law Review is known for publishing.
Nora Freeman Engstrom, Ernest W. McFarland Professor of Law and co-director of the Deborah L. Rhode Center on the Legal Profession, provided the opening keynote. The Rhode Center works on a variety of fronts to shape the future of legal services and promote access to the legal system.
Startling Statistics and a Special Responsibility
Quoting the late SLS Professor Deborah L. Rhode, Engstrom said, “It is a shameful irony that the nation with the highest concentration of lawyers fails so miserably to make their services available to those who need them most.”
Citing the New York City Family Court system as an example, Engstrom said the Covid-19 pandemic complicated an access-to-justice landscape that was already bleak. “In 2019, things were tough, and then, in March 2020, the pandemic hit and things went completely downhill. Family court employees did not have the capacity to work remotely and litigants did not have the capacity to file electronically. And in the face of these challenges, the New York City’s Family Court system simply stopped hearing all but ‘emergency’ cases. It mostly just closed its doors.”
Engstrom added that these problems are in no way confined to New York. “In approximately three quarters of all civil cases in state court, at least one party is self-represented.” She cited other startling statistics: only 28 percent of low-income individuals surveyed in the United States believe that the civil justice system treats them fairly. Furthermore, the United States is ranked 126 out of 139 countries by the World Justice Project in terms of accessibility and affordability of civil justice.
She further stressed that current and future lawyers have a special responsibility to address this crisis: “Unlike climate change where responsibility is shared and solutions will come collaboratively—we lawyers are the architects of this injustice. The legal profession is self-regulating. Courts are run by lawyers; we literally write the rules. So, it’s a calamity of our own making, and if there’s going to be progress toward solving it, the solutions need to come from us.”
Punished for Being Poor
Rachel Rossi, director of the U.S. Department of Justice’s Access to Justice program, said, “At its core, ‘access to justice’ is the pursuit of a foundational and critical promise – that the protections and benefits of our laws are within reach for everyone. Regardless of wealth, status, race or identity – justice should belong to everyone.” Lawyers need to be on the front lines in terms of finding a solution, she stressed, including by doing more pro bono work. “One of the many ways we’re working to close this gap is by empowering federal government attorneys to engage in pro bono work. Last year, we moved the Federal Government Pro Bono Program into our office and expanded its resources and staff for the first time in over 20 years.”
Rossi added, “It seems like a basic concept that justice should not look different for the wealthy than it does for low-income communities. The Supreme Court ruled in Bearden v. Georgia that our Constitution prohibits ‘punishing a person for his [or her] poverty.’ But often, fines or fees can be disguised as routine processing or administrative steps. Sometimes, these fees can make filing a case or filing for a protective order out of reach for those who cannot afford it. Other times, when these economic hurdles lead to incarceration they can create an unjust cycle of poverty and the deprivation of liberty.”
The full text of Rossi’s speech is here.
Access to Justice at a Crossroads
In his closing keynote, David Freeman Engstrom, LSVF Professor in Law and co-director of the Deborah L. Rhode Center on the Legal Profession, spoke about the civil justice system in the United States being at a crossroads. David Engstrom currently serves as the Reporter for the American Law Institute’s Principles of the Law, High-Volume Civil Adjudication, which addresses how state courts can navigate the challenges associated with the adjudication of millions of low-dollar, but highly consequential cases, such as debt collection, eviction, and child support actions, all of which shape the lives of Americans each year. David Engstrom focuses part of his scholarship on how legal technology can help bridge the justice gap.
Engstrom identified a trio of “hinge moments” for access to justice. The first is whether access to justice will remain a silo-ed issue, or whether advocates can instead build a unified theory and movement that spans tenants facing eviction, divorcing couples, small businesses, individuals seeking a simple name change, debtors facing wage garnishment, and MDL plaintiffs. The second is the optimal role for technology in a fast-digitizing system that faces hard choices around how to build out online courts as we emerge from the pandemic and also how courts can make themselves more accessible to self-represented litigants and technology providers who seek to serve them. Third is the role of lawyers in a civil justice system that cries out for reform – and, in particular, how to rethink the restrictive rules that only lawyers can practice law or own law firms while also keeping lawyers central to needed innovation and change.
Other SLS participants in the symposium were Associate Professor Diego Zambrano, who spoke on the “Lawyerless Courts” panel, and Executive Director of the Legal Design Lab, Dr. Margaret Hagan who participated in the access to housing discussion. The full agenda and list of symposium participants can be found here.
The symposium is held annually and is organized by Stanford Law Review editors. Previous symposia focused on the right to vote, policing, race and power, lawyering in the age of climate change, and the independence of the American judicial system.
About Stanford Law Review
SLR currently stands as one of the most prominent law journals in the world. Through publishing cutting-edge legal scholarship, it has two principal functions: to foster intellectual discourse among the student membership and to contribute to legal scholarship by addressing important legal and social issues. The Stanford Law Review is operated entirely by Stanford Law School students and is fully independent of faculty and administration review or supervision. Student editors select, edit and publish articles and notes and are trained to critically and comprehensively evaluate submissions. Through a team-editing process, the editors assess each piece’s analysis, writing style, research, organization and accuracy, and work closely with submission authors to improve their work.
About Stanford Law School
Stanford Law School is one of the nation’s leading institutions for legal scholarship and education. Its alumni are among the most influential decision makers in law, politics, business and high technology. Faculty members argue before the Supreme Court, testify before Congress, produce outstanding legal scholarship and empirical analysis, and contribute regularly to the nation’s press as legal and policy experts. Stanford Law School has established a new model for legal education that provides rigorous interdisciplinary training, hands-on experience, global perspective and focus on public service, spearheading a movement for change.