In honor of the Center’s 10th anniversary, Stanford hosted a convening on October 30 and November 1, 2020 – to focus attention on access to justice and the strategies that might address it.

The event began with a distinguished panel on a key question: “Can Changing Legal Services Regulation Increase Access to Justice?” The panelists—Utah Supreme Court Justice Deno Himonas, Legal Services Corporation President James Sandman, and Arizona State Law Professor Rebecca Sandefur— agreed that changing bar regulation structures was a critical strategy to making justice available, not just in principle but in practice.

Professor Deborah Rhode, the moderator of the panel, recalled President Carter’s observation four decades ago that we are “overlawyered and underrepresented.” It is even truer today. The United States has one of the world’s highest concentration of lawyers, but one of the least effective systems of making services available to those who need them most. Our nation ranks 99th out of 128 countries on access and affordability to civil justice, Rhode pointed out, and “the profession’s own regulatory rules are more part of the problem than the solution.”

Professor Sandefur, a recent MacArthur Foundation “genius” award winner, framed the issue as a set of fundamental paradoxes in American democracy. “Ordinary people,” she said, “elect representatives to write laws that are supposed to order fundamental things like family life, housing and employment. But then they can’t use those laws because they are too complex.” The key problem to be solved seemed to be “people’s access to their own law.” And solving this problem, Sandefur suggested, would not just reduce hardship and increase well-being, but also “shore up democracy.”

Sandefur pointed out that in many other countries, non-lawyers can deliver legal advice, and researchers find that the advice is as good or better than that provided by lawyers. In perhaps the most comprehensive such study, conducted in the U.K., nonlawyer experts were more likely than lawyers to offer excellent assistance.

As Professor Sandefur put it: “people who need help can’t get it because of the fear of the unauthorized practice of law,” An example was a community organization that was helping a victim of wage theft and then found itself the subject of a bar complaint of unauthorized practice of law (UPL). Not only could such bar enforcement activity prevent recovery of unpaid wages, it might also chill efforts to organize low-wage workers to prevent employer exploitation.

Justice Deno Himonas emphasized the “need to act thoughtfully and decisively” to promote regulatory reform. His experience spearheading court-led reform efforts in Utah suggested three lessons. First, he pointed to the “exponential increase in demand” for legal services from individuals, small and medium-sized businesses that put pressure on courts, law schools and others to rethink delivery channels for legal advice. Second, he emphasized the importance of the building momentum for change, and building on insights from those who are already experimenting with reform. Finally, he warned that regulatory reform and increased use of technology are not silver bullets. Rather, he emphasized the need to reassess “all channels for delivery of legal advice” and “fundamentally rethink” who could provide such advice. He compared the lawyers’ current monopoly on legal advice as the equivalent of allowing “only thoracic surgeons to deliver any kind of medical care.”

James Sandman, president of the Legal Services Corporation and former managing partner of Arnold and Porter, emphasized that our legal system was in crisis and failing millions of people every year. Multiple studies over the last decade find that over four-fifths of the legal needs of low income individuals remain unmet, and that about three quarters of the cases in state courts have at least one unrepresented litigant. “We need solutions that are commensurate with the magnitude and urgency of the problem, and we are not going to get there without significant change,” Sandman urged.

Dean Jenny Martinez welcomes judges, lawyers and non-profit leaders to the November 1 convening on regulatory reform, and talks about the work of the Center on its 10th Anniversary.

Sandman advocated a three-pronged approach consisting of “vastly more legal aid funding,” process simplification, and regulatory reform. Sandman pointed out that the amount of civil legal aid funding in the U.S. is less than what people spend on Halloween costumes for their pets. But he also acknowledged that there will never be enough money for a legal aid lawyer for everyone with a legal problem, and not enough pro bono hours to fill the gap. To meet the needs of unrepresented litigants, we need to “simplify and rethink court processes.,” Sandman also denounced the bar’s enforcement of unauthorized practice rules in the name of “consumer protection,” when the real objective is lawyer protection. People should have access to trained nonlawyers for routine needs.

Sandman also argued for “liberaliz[ing] the rules around ownership and capital investment in law.” Bans on fee sharing with non lawyer partners discourage innovation. To make change happen will require leadership from the judiciary, in part to “wrest control of the regulatory process from lawyers.” Sandman closed his remarks by asking: “Where is the outrage? Why do we continue to tolerate a status quo that is unacceptable?”

To extend the impact of this panel, the Center worked with the Stanford Journal on Civil Rights and Civil Liberties to publish a symposium on access to justice, based in part on two of the presentations at this panel. Professor Sandefur’s essay documents the substantial unmet consumer demand for legal advice, and the research showing that trained nonlawyer providers can provide assistance on routine needs that is as good or better than what lawyers provide, and at lower cost. Justice Himonas, together with his clerk Tyler Hubbard, describe the work of Utah’s forward-thinking state supreme court seeking to “democratize the rule of law” by offering online dispute resolution, allowing licensed nonlawyers to provide limited legal advice, and experimenting with nontraditional legal service providers through a regulatory “sandbox.”

The symposium also included two other essays. One focused on the challenges and opportunities for improving pro bono work among in-house counsel, coauthored by Deborah Rhode, the Center’s former Executive Director Lucy Ricca, and the Director of Stanford’s Pro Bono and Externship Programs and Lecturer in Law Michael Winn. A second essay by Margaret Hagan, the director of the Legal Design Lab, and Lab Fellow Daniel Bernal proposed a new design framework for innovation on access to justice. They suggest synthesizing “expert-oriented” and “humancentered” approaches, and draw on the lessons from a case study on providing legal information to unrepresented litigants in Arizona eviction cases. Taken together, these four essays demonstrate the range of strategies necessary to make justice more available to those who need it most.

In February 2020, the Center hosted two events on gender issues: one focused specifically on women leaders in law, and the other reflecting on the #MeToo, and its implications for the profession and the public. Although women constitute nearly 40% of lawyers, they account for only 19% of equity partners at large law firms, and are grossly underrepresented in other leadership positions. To help understand why, the Center joined with the student group Women of Stanford Law to ask a panel of lawyers “Why Aren’t There More Women Leaders in Law?” and to discuss what to do about it.

Advisory Forum member David Sanford, Chairman at Sanford Heisler Sharp, spoke about his work bringing gender discrimination claims against law firms He talked specifically about the way that “origination credit” formulas often unfairly disadvantage women, and the problematic “black box” nature of compensation decisions at most firms. Sanford also discussed strategies to help level the playing field, such as providing part-time attorneys with a path to partnership.

Two female leaders on the panel talked about their own career paths and what can help other women replicate their success. As a team leader, Lora Blum, General Counsel for SurveyMonkey, emphasizes open communication and appreciation for everyone’s work. For example, she encourages her team to take advantage of parental leave, and not worry about being perceived as insufficiently “committed.” Blum took full advantage of parental leave when she had her own children. In talking openly about this, she found that the women and men on her team were more comfortable doing the same.

Emily Lam, a partner at Skadden and the head of the firm’s Silicon Valley office, acts as a resource for others who are less well-positioned to voice their concerns. Although she could not recall personally experiencing gender discrimination, she has made a priority of assisting others who have. Lam has also welcomed the recent push by general counsels to insist on more diversity in their outside counsel, as it helped strengthen like-minded voices within firms.

On February 17, the Center partnered with the nonprofit Legal Momentum to consider the question “#MeToo: Why Now? What’s Next?”. President and CEO of Legal Momentum, Carol Baldwin Moody, noted that “protecting women’s and girls’ rights begins with the law,” but also requires placing more women in leadership positions.

Speaking in the middle of the Democratic presidential primary, Celinda Lake, a leading pollster and expert on women’s issues, noted the barriers for women running for high political offices, especially the presidency. “Women are dropping out at a much faster rate than men, and are having a harder time raising money and getting endorsements,” Lake pointed out. Women in public life are treated with particular hostility on social media, she observed, citing the negative campaign launched against Elizabeth Warren and the attacks on two women of color leaders in the Culinary Workers Union in Nevada.

Top to bottom: Lora Blum, Chief Legal Officer & Secretary .SurveyMonkey; Emily Lam, Partner, Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates; David Sanford, Chairman and Co-founder, Sanford Heisler Sharp, LLP.

Leading pollster Celinda Lake discusses the treatment of women in public life as Deborah Rhode listens as part of the panel “#Metoo: Why Now? What’s Next? “.

Professor Deborah Rhode highlighted the shift in language around sexual harassment, thanks to the #MeToo movement. While she was in college, there wasn’t even a term, let alone a remedy for “sexual harassment. Students had a “problem” with their professor, and the problem was always theirs, not his. In today’s culture, social media have been part of the problem and solution. Women are disproportionately vilified and threatened on line, but they are also able to challenge abuse directly and sometimes effectively.

Online technology has “enabled women to bypass unresponsive legal processes and human relations offices and go straight to the public.” An example is Susan Fowler, the former Uber engineer whose supervisor propositioned her the first day on the job. Despite her evidence of screen shots of the harassment, HR officers told her that he was a “high performer” with no other history of complaints. When Fowler found out that was not true, she quit and told her story online. Her post went viral, promoted an outside investigation led by former Attorney General Eric Holder, and toppled the careers of twenty executives.

Rhode cited other examples of constructive self-help in the legal profession. One included a prominent law firm that had failed to do due diligence before making a lateral hiring offer to a partner with a substantial book of business, along with a history of gender complaints confidentially resolved. On his first day at the new firm, a large bouquet of flowers arrived with a card signed “Thank you for taking him. The women.” The firm did an investigation and he was gone within a week.

Finally, Lynn Hecht Schafran, Director of the National Judicial Education Program to Promote Equality for Women and Men in the Courts, outlined the challenges still present in how judges deal with sexual violence cases. Victimizing the victim is still common. Schafran also criticized the American Law Institute’s (ALI) adoption of a definition of consent for the Model Penal Code that allows for the consideration of the absence of physical or verbal resistance. Advocates had previously succeeded in removing this factor from legal doctrine. Despite the successes of the #MeToo movement, Schafran highlighted the low number of people reporting rape cases, the uncooperative and abusive manner in which officers often respond to those allegations, the ways in which prosecutors treat the cases, and jurors’ frequent skepticism of rape victims.

The Legal Design Lab continued its valuable work in building a better legal Internet, and using technology and design frameworks to increase access to justice.

In January, the Lab hosted a convening at Stanford to explore how technology companies can work with nonprofits and courts to make sure that individuals get better legal information on the Internet. Representatives from Google, Reddit and Apple/Siri shared ideas about what they would need in order to identify the most trustworthy sources of information, and increase its accessibility to consumers. Ohio Supreme Court Chief Justice Maureen O’Connor and National Center for State Courts President Mary McQueen shared thoughts as well, and this discussion helped accelerate collaboration around these issues

Evictions have been a primary focus of the Lab’s access-to-justice work, and that focus has deepened this year. Margaret Hagan and Jason Solomon co-taught a 2-quarter course on “Justice By Design: Evictions” which attracted a committed group of undergraduate, graduate, and law students. Students went through the design process, understanding eviction from the tenant-user perspective and working in small teams to build prototypes. After getting feedback from experts and users the teams worked with external partners such as the San Jose Mayor’s office, California Judicial Council, and the nonprofit Tenants Together to design products or services that would make the eviction process better for tenants. For example, the Tenants Together team designed a text message-based method of doing intake to their hotline in order to better triage and target help. The Lab has also launched a national partnership with the National League of Cities to work with mayors on eviction, based in Left: Students in the D-School/Law School course “Justice By Design: Evictions” listen to feedback from a housing expert on their project presentations. Right: Margaret Hagan outlines the Lab’s “design approach to legal services innovation” to eviction experts. part on the Lab’s work in Ohio and Arizona.

These two lines of work — building a better legal Internet, and access to justice — came together during the Covid-19 crisis. With millions unable to pay their rent, but many states and localities passing moratoriums on evictions, the Lab partnered with Pew Charitable Trusts to get people the highest-quality, most accurate information on eviction laws and regulations . The Lab built out a Legal Help FAQs platform from scratch, with the initial version focused on key questions for tenants about eviction, rent, utilities, court hearings, and repairs during the pandemic. The approach was to direct renters to key information in their jurisdiction and then refer them to local public interest groups for greater assistance. The site was specifically designed to direct search engines to the site for questions on housing issues for COVID-19.

Left: Students in the D-School/Law School course “Justice By Design: Evictions” listen to feedback from a housing expert on their project presentations.Right: Margaret Hagan outlines the Lab’s “design approach to legal services innovation” to eviction experts.

The Lab has also signifcantly influenced developments in the regulation of the legal services market (see page 2). The idea of using design principles in the policy realm – explored at a Stanford conference the Lab hosted last year – has taken hold in legal services regulation. Last year, Margaret Hagan and Lab fellow Jorge Gabriel Jimenez published an essay advocating regulatory “sandboxes” to allow experimentation with nontraditional legal services providers. The Utah Supreme Court was convinced and launched its sandbox in May 2020. Margaret continues to be involved in the Utah effort. California may follow suit.

Finally, the Lab was able to secure a 2-year, $1 million grant from the Hewlett Foundation and additional support from the law school. This funding is both an important supplement to that from our firm partners Faegre Drinker and Orrick, as well as our partnerships with legal-aid organizations, and also allows the Lab to expand its reach by hiring a head of Policy and Design. A few months ago, Nora al Haider joined us from Amsterdam, where she was working on legal design and open-government issues, to take on this role. As part of this additional funding, the Lab will now be an independent Center at the law school, a tribute to Margaret’s tremendous work. And of course CLP will continue to partner with the Lab on access-to-justice issues and other projects.

At two critical points in the impeachment process, the Center hosted events with leading experts to put the events in context for students and the public.

Benjamin Mercer-Golden, Co-President of the American Constitution Society, introduces Professors David Sklansky, Deborah Rhode, and Jack Rakove (not pictured) at the October 2019 panel on impeachment.

In the fall of 2019, as the House began impeachment proceedings, faculty panelists—Professors Jack Rakove, Deborah Rhode and David Sklansky—discussed the legal, institutional, and historical context that is the backdrop for impeachment. The October 14 event drew a full house, spilling into a nearby overflow room.

Professor Rakove, a historian who won the Pulitzer Prize for his book on the original meaning of the Constitution, explained the origins of the impeachment clause, which the founders debated the clause in the last week of the Convention, and originally defined the grounds for impeachment narrowly as “treason and bribery.” After George Mason proposed the much broader “maladministration” as the standard for impeachment, Madison proposed “high crimes and misdemeanors”—a term going back in English history to the 14th century—as a compromise.

In the final analysis, Congress has the power to determine what acts justify impeachment. In making that determination, Rakove argued that the historical context of presidential elections ought to matter – that is, the more confidence we have in the electoral process, the less we should rely on impeachment in removing a president. When the acts of corruption themselves involve the electoral process, however, then use of the impeachment mechanism is particularly appropriate.

Professor Rhode recalled her time working as counsel to the House Judiciary Committee during the impeachment proceedings against President Bill Clinton. She noted that politicians then and now are just concerned with what’s going to make them look good.” She noted that although she knew impeachment was a political process, she was not prepared for just how politicized it was in the “age of polarization.” No one in either party cared about the standard of “high crimes and misdemeanors,” Rhode observed, it was “all about spin, not about substance.” Although she had been asked to join the committee as an expert in ethics and gender discrimination, it was clear that the proceeding was less about supporting discrimination victims, and more about unearthing information of Clinton’s extramarital affairs. In both Clinton’s and Trump’s impeachment proceedings, Rhode pointed out, members of Congress took positions based less on the public’s interests than their own. Although this is a natural survival strategy for politicians, Rhode suggested that at a moment when the country’s future is at stake, one could hope that at least some might rise above self-interest.

Professor Sklansky pointed out the flaws in the analogy that the president and his supporters were drawing between Trump’s impeachment proceedings and the criminal process, saying the analogy was “all wrong.” For example, the Sixth Amendment right “to be confronted with the witnesses against” you only applies to criminal trials, not criminal investigations or civil proceedings. He acknowledged that during the Nixon and Clinton impeachment inquiries, the House did hold public hearings, and the president’s lawyers had some right to cross-examine witnesses. But he pointed out that given the threats the president made against the whistleblower and other such witnesses, it was quite reasonable that the House had conducted its investigation behind closed doors thus far.

Philip Bobbitt

In January 2020, Professor Philip Bobbitt of the University of Texas gave the Center’s annual Distinguished Lecture in Leadership, in an event co-sponsored by the Constitutional Law Center, the Federalist Society, and the American Constitution Society. Bobbitt is the co-author of the highly regarded Impeachment: A Handbook, newly revised, framed his lecture as about “the present impeachment, and its meaning for the future of the constitutional order.” He began by dispelling some myths and arguments currently being made in the public sphere.

Bobbitt noted that impeachment was not a political process but a legal proceeding, pointing to the constitutional requirements of a Senate trial and an oath by Senators to “do impartial justice according to the Constitution and laws.” Bobbitt resisted the idea that the President needs to have committed a crime to be impeached, and provided historical and textual context for the term “high crimes and misdemeanors.” Following “treason” and “bribery,” the term must have something in common with those offenses. Based on the constitutional history, Bobbitt argued that it was “an act against the proper functioning of the State itself.”

Seen in that light, the House’s charge of “abuse of power” was both appropriate and on strongest ground when it focused on the refusal of the president to disburse Congressionally authorized military assistance without a political favor from Ukraine, which provided the “corrupt motive for this constitutional violation.” Bobbitt considered these actions the “core” of an impeachable offense: “a blatantly unconstitutional act motivated by a corrupt agreement or attempted agreement with a foreign power to influence an American election.” Bobbitt added that interfering with Congressional appropriations “struck at the heart” of our constitutional order, which is predicated on the spending power residing in elected representatives who face the voters every two years.

On January 15, the Center hosted a panel for the entire 1L class where alumni discussed their work on transnational litigation. This panel was a part of the required “Federal Litigation in a Global Context” course, where students write briefs and do mock oral arguments as part of a simulated course. A few years ago, the law school changed this simulation to a transnational context as part of an effort to better prepare students for global legal practice. The Center organized this panel as part of its mission to connect students and the profession.

Most of the panelists began their practice without any particular interest or background in issues of transnational law. But they each explained how they found themselves dealing with transnational litigation, either representing U.S.-based companies with lawsuits against foreign individuals or companies, or representing foreign individuals or companies with matters in U.S. courts.

With the students getting ready to work on a forum non conveniens motion, the panelists discussed how to argue about whether a case should be in a U.S. court or overseas. Maya Perelman ’16, an associate at Keker and Van Nest, represented Genentech against a Taiwanese company that had allegedly stolen the formula for Genentech’s biologics, protein-based drugs. The threshold issue was “Could we haul this Taiwanese corporation into the Northern District of California?” Perelman framed the issue as one of justice and patriotism: “These employees stole thousands of documents and snuck away to another country and started a company based on imitation of drugs—after our client put in decades of R and D—and this is an important company to the Bay Area, which makes these groundbreaking cancer drugs. You should care about this.”

Another way to argue for U.S. jurisdiction is to point to the inadequacy of the overseas forum. Jordan Elias ’03, a partner at Girard Sharp who brings class actions and other mass torts, made such an argument while representing Chinese families in wrongful death lawsuits from an airplane crash, where the airline was Chinese and the engine manufactured by General Electric. When Elias brought the lawsuit in San Mateo Superior Court, the judge stayed it on forum non conveniens grounds. Elias and his colleagues moved to lift the stay, saying that China is an inadequate forum. When the San Mateo County judge denied the motion, Elias appealed on the ground that the totalitarian regime was not going to hear these claims, but the appellate court indicated that China was a country “in transition,” but not necessarily an inadequate forum.

Alex Reese ’11, partner at Farella Braun Martel, described the challenge of representing a British company in U.S. litigation. Although so much of the foundation of the U.S. legal system is from Britain, the way that litigation happens in the U.K. is very different. “So we had to step back from how we usually talk to our U.S. in-house counsel,” Reese explained. The CEO of this small company was a very “hands-on” client as well, and was outraged by standard U.S. litigation practices like the defendants filing a motion to dismiss for failure to state a claim. “They know what they did!” the CEO complained. The U.S. deposition process was also very unfamiliar to them, so Reese had to prepare witnesses for the unpleasant experience of sitting in a windowless room all day answering questions. In the UK, the “loser pays” default rule means that litigants do not have as much incentive to drive up the other side’s costs.

Finally, the panelists discussed the challenges of thinking through how a U.S. jury will perceive people or cases from other countries. Perelman, for example, had a case where the government of Australia sued her client on a patent case in the Eastern District of Texas, and she had to think through how Australians would appear to a Texas jury. Gilat Bachar JSD ’18, who worked as a Fellow at the Center for Justice and Accountability, described a Torture Victim Protection Act trial against a former Somali military commander in the Eastern District of Virginia where her side had to lay out in their opening statement why this case was in the U.S. “We said that here in America, we do not tolerate torture. Even if it happened in another country, this person [the Somali commander] lives in Virginia, and the laws of the U.S. do not tolerate that,” she explained.

Top to bottom: Gilat Bachar JSD ’18, Jordan Elias ’03, Maya Perelman ’16, Alex Reese ’11.