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Daedalus Publishes New Essay By ABF Faculty Fellow Rebecca Sandefur on Access To Justice

January 25, 2019, ABF news, Daedalus

The winter 2019 edition of Daedalus, the publication of the American Academy of Arts & Sciences, featured various essays on the topic of access to justice, including one written by ABF Faculty Fellow and 2018 MacArthur "Genius" Grant winner, Rebecca Sandefur

Sandefur's essay, titled, "Access to What?" discusses how the access to justice crisis, or the failure of the legal system to ensure all individuals receive help with their civil legal problems, can't always be solved through legal assistance, but is, in fact, a crisis of "exclusion and inequality" that requires a wider range of solutions and systemic reform.

The access to justice problem in the U.S. relates to the over one hundred million civil justice problems faced by Americans who can not afford legal representation, do not see their problems as legal in nature, or whose problems would not benefit from legal interventions. Civil justice problems can range from issues with housing, employment, health and finances, from those facing evictions and debt to foreclosure, how to get access to medical treatment, and disputes regarding the care and custody of children.

According to Sandefur in her essay, most Americans confront at least one civil justice problem each year, with most of those problems receiving no legal attention or assistance from a legal professional, such as an attorney.

"When these problems do not get resolved effectively, the consequences can be homelessness, poverty, illness, injury or the separation of families who want to stay together," Sandefur writes. 

Defining the access to justice crisis, or the disconnect between the number of people facing civil justice problems and the number who receive legal help, as one of "unmet legal need," Sandefur explains, is short sighted because only some of Americans' justice problems are legal needs and that lawyers are only part of the solution. 

"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," Sandefur writes.

While tens of millions of civil justice problems can be resolved through the law, research has shown that there are many that can not be solved in that way. According to Sandefur, nonlawyer advocates or unrepresented lay people have performed as well or better than attorneys when it came to solving common justice problems.

Sandefur said the other problem with access to justice is that some groups of people, mainly those who are wealthy and white, are more likely to receive assistance than other groups, such as those who are poorer or racial minorities. Sandefur says the solution to the problem is to "equalize accesss to justice." Another issue is that many of the lower courts who hear these cases do not follow the law or apply courtroom procedures correctly unless a lawyer is present, placing the responsibility of justice with the "wrong party."

"When a system is broken, the solution is systemic reform," Sandefur writes. "Focusing on existing programs that deliver legal services and on court cases will never provide a picture of all of the other civil justice activity that never makes it to the justice system — and that is the majority of civil justice activity."

Posted by Danielle Gensburg

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