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ABF Access to Justice Research Network Members

August 25, 2020 Access to Justice

Anna E. Carpenter, Alyx Mark

Legal profession and legal services reform in Utah: A multi-year, mixed-method investigation of state access to justice innovations

This multi-year study will evaluate the creation, development, and evolution of Utah’s groundbreaking legal profession and legal services reform projects, which were designed to solve the crushing crisis in access to civil justice. This study builds on a growing body of access to justice research. It aims to develop our empirical understanding of how the public interacts with civil law and civil legal systems, including understanding which concrete proposals for increasing access are likely to be efficacious, scalable, and sustainable. This study will contribute original knowledge to the scholarly conversation about access to justice and related reform projects. It will also inform the work of policymakers and other stakeholders engaged in access to justice reform across the country.

 Katie Young

Understanding Access to Justice: Social Sources of Variation in Everyday Relationships to Law

While we know quite a bit about which Americans experience which civil justice problems, we know less about why this is so. My research investigates the social processes that underlie various groups’ approaches to these problems. The project will shed new light on the U.S. access to justice crisis by uniting theoretical questions at the core of socio-legal studies and applied questions at the core of access to justice research. Two data sources will be used to understand how people approach common justice problems. The first will use a survey design to understand the connections between demographic characteristics such as race, class, and gender and the problem-solving routes people consider. The second will use a series of in-depth interviews with a broad cross-section of people in a medium-sized U.S. city who are experiencing, or have recently experienced, one of seven key justice problems. This multi-method approach will provide a rigorous understanding of the social sources of variation in how people think about law, the ways people approach and experience civil justice problems, and how different justice problems are related to one another in everyday people’s experience. Examining civil justice problems from the perspective of people who are experiencing them will allow us to design more effective solutions to common justice problems—solutions tailored to how different groups actually think about law.

 Emily Taylor Poppe

Legal Actuation

Building on decades of empirical research establishing how rarely individuals seek the assistance of courts and lawyers to resolve the civil legal problems they experience in everyday life, access to justice is no longer equated only with individuals’ capacity to engage in civil litigation. Rather, it strives for equality in individuals’ ability to resolve problems that involve civil legal issues—'justiciable events'—in ways that satisfy procedural and substantive legal norms. Yet, justiciable problems are not the only situations that generate unequal outcomes under the law. Rather, inequalities in individuals’ ability to act proactively to attain the benefits and entitlements established by law—a process I term legal actuation—represents an understudied element of access to justice. Examples include strategic tax filings, engaging in estate planning, and informed contract formation in countless consumer contexts. Without access to ex ante assistance, these situations can escalate, ultimately giving rise to justiciable problems; or, they can persist as lost opportunities with material consequences that are unexamined by most access to justice scholarship. This project will develop the theoretical concept of legal actuation and investigate the phenomenon empirically.

Study Results

Surprised by the Inevitable: A National Survey of Estate Planning Utilization

 Brandon D. Stewart

Evaluating the Newcomer Conversations Workshop Project

I am the Lead Evaluator for the Newcomer Conversations Workshop Project funded by Immigration, Refugees and Citizenship Canada. I am responsible for evaluating public legal education workshops provided by a community legal clinic in Ontario, Canada to Newcomers on property law-related topics to identify best practices. A secondary goal is to understand the potential legal needs of Newcomers and determine their pathways to justice.

 Tess M.S. Neal

Understanding and Addressing Systemic Bias in Discretionary Legal Judgments

This project will lay the groundwork for a sustained program of innovative work to advance our understanding of how bias affects human judgment and the effectiveness of mitigation strategies. The project includes a creative education plan to build a pathway for underserved and underrepresented students toward careers in STEM, as well as infrastructure for quickly disseminating new knowledge about bias in human judgment at scale to a large audience and broad community of stakeholders. The work pushes boundaries in the fields of psychology, as well as law and science, by discovering and synthesizing new information about how humans reason (i.e., basic research with intellectual merit) while simultaneously improving access to justice and fairness in the real-world context of the legal system by better understanding bias and mitigation strategies (i.e., use-inspired research with broad impacts). We will conduct two major research projects, each with an integrated education project. The research-related tasks for each project are: (1) a longitudinal real-world experiment with attorney-participants to better understand attorney behaviors as they impact access to justice while testing various mechanisms to reduce biased access; and (2) a tightly-controlled laboratory experiment with attorney-participants using programmed simulation tasks and sophisticated computational methodology to examine cognitive processing in real-time, observing and measuring dynamic decision processes as they unfold. The education-related tasks of each project include (1) establishing an enduring pathway for underrepresented and underserved students into STEM careers through a new intensive summer science training model in our existing online degree program, and (2) create new infrastructure for delivering professional development training with legal experts for a career-long endeavor to reciprocally learn from, study, and disseminate scientific advances with meaningful real-world implications across legally-relevant decision domains. The research and education plans are seamlessly integrated to generate synergy in the reciprocal processes of discovery and learning, and have been designed within the context of the mission, goals, and resources of Arizona State University. This work will form a solid foundation for the PI’s lifetime of contributions to research, education, and their integration.

This research will advance our understanding of how human judgment processes result in systemically biased outcomes, as well as how these processes might be modified to reduce bias. It will probe these questions with real experts making judgments in their domains of expertise, relying on both an inventive longitudinal real-world experiment as well as a simulated laboratory experiment in which we examine cognitive processing in real-time with sophisticated computational models. Although the particular focus of this proposal is on attorney judgments resulting in systemic biased access to civil legal justice for low-income people, the fundamental questions posed are broad and encompass other discretionary judgment contexts. Various creative ideas have been proposed to address the problem of unequal access to justice (e.g., Sandefur, 2019), yet debiasing solutions for attorney discretion in deciding whether to take these cases when clients seek services have been little studied. Understanding psychological and structural features that shape attorneys’ evaluation of case viability holds promise for improving civil rights and access to justice (see e.g., Kaiser & Quintanilla, 2014).

Colleen Shanahan, Jessica Steinberg, Anna E. Carpenter, Alyx Mark

Studying the “new” civil judges

We are currently engaged in a research project aimed at understanding the role of judges in state civil courts. Our theoretical framework identifies four novel assumptions which guide our project: (1) the adversary process is disappearing; (2) most state court business is still conducted through in-person interactions between judges and parties; (3) the judicial role is ethically ambiguous in pro se cases; and (4) a largely static body of written law has not kept pace with the evolving and dynamic issues facing state courts. These expectations inform our empirical examinations of a series of research questions about judicial behavior and norms, the development of law, and the role of all actors in the state civil court ecosystem. This project broadens and deepens our understanding of state civil courts where parties are largely unrepresented, and implicates the design, implementation, and consequences of civil access to justice in America’s lawyerless courts.

Study Results

Carpenter, Anna E., Jessica K. Steinberg, Colleen F. Shanahan, and Alyx Mark. "Studying the New Civil Judges." Wis. L. Rev. (2018): 249-286.

Brian Libgober

Racialized Service Rationing in Tight Legal Markets

This research project focuses on identifying where and when race, gender, and class are used by lawyers as tool for rationing legal services. The first paper in this project (which appears in Lewis and Clark Law Review) finds substantial evidence of discrimination against black and female prospective clients using an email-audit design in California, but not in Florida. The findings of this paper are counter-intuitive from the perspective of conventional taste-based or statistical narratives about discrimination, however I argue they are consistent with a theory of racialized service rationing: when lawyers are scarce relative to client demand, then lawyers are able to use race, gender, and other features to engage in discrimination. My future papers will try to unpack the mechanisms of racialized service rationing in tight legal markets.

Study Results

Brian Libgober, Getting a Lawyer While Black: A Field Experiment, 24 Lewis & Clark Law Review 53 (2020)

 Helene Love

Shared Goals, Divided Jurisdiction: The Uneasy Relationship between Class Actions and Administrative Law

Access to justice is a critical problem facing Canadian courts. To address access to justice issues in the civil context, legislatures created both the class action procedure within the courts and administrative schemes as alternatives to the courts. Despite their shared access to justice goals, administrative law

scheme. This paper explores the practical effect of this jurisdictional conflict by comparing the relative benefits of class actions to statutory dispute resolution processes. In cases where jurisdictional conflicts arise, the prospective class members who suffer the most when a claim is diverted to an administrative scheme are those who require provisions such as contingency fee arrangements, the representative plaintiff, and the protections afforded by the judicial oversight of litigation. I suggest that the legislature could further the access to justice and judicial economy objectives of both class proceedings and these administrative schemes by incorporating these provisions into administrative schemes, or in the alternative, by allowing the superior court to assume jurisdiction of mass claims in appropriate circumstances.

Shauhin Talesh

 Health Insurance and Transgender Patient Access to Health Care: Barriers, Work-Arounds, and the Social Construction of Medical Necessity

This study explores how insurance companies and health care intermediaries shape the delivery of care to trans patients under existing laws and how trans patients mobilize their health care rights in response to barriers created by insurance companies. To explore the gap between insurance on the books and insurance in action, we draw upon studies of transgender people’s experiences in the healthcare settings, socio-legal studies of legal mobilization, and insurance. Relying on analysis of the coverage and exclusion features of 1496 health insurance contracts and interviews of transgender people who sought care and health care intermediaries, this study reveals how insurance companies, through insurance policy contract language, weaken health care rights for transgender and non-binary people and how transgender patients mobilize their health care rights through a series of work-arounds. We find that health insurance policy language, interpretation, and implementation often create disadvantages and barriers for transgender patients who attempt to access care. We reveal direct and indirect innovations and coping strategies that transgender patients deploy to fight for their rights against health insurance companies. Our study highlights not just the power of insurance policy language but the mechanisms through which regulation is a socially contested and negotiated process.

Stacy Butler

Innovation for Justice Program

i4J is a social justice innovation lab that designs, builds, and tests disruptive solutions to the justice gap. Barriers to entry, power imbalances, and flawed processes exclude under-represented populations from effective use of the civil legal system and inhibit the system from delivering on the promise of justice for all. i4J applies design- and systems- thinking methodologies to launch and evaluate new and replicable strategies for legal empowerment. It produces action-based research and real-world deliverables that support legal service providers and their efforts to bridge the gap.

Study Results

 Paulo Eduardo Alves da Silva

Technologies in courts and how it affects access to justice

The project aims to track effects of digital technology introduced in Courts in terms of access to justice. In one sense, it aims at finding out if and how those tools are changing the types of disputes (and people) that arise in courts. In another, if the perception of ordinary people about courts has changed due to the introduction of techniques capable of radically change the way State provides justice to society. One strong hypothesis is that the shift to digital courts, despite it may accelerate the loops of bureaucratic routines, it doesn’t necessarily expand the way litigants and ordinary people perceive justice at all. Analysis of data gathered from the courts' database will be combined with interviews and surveys applied to representatives of parties, lawyers, judges, and court staff. Workflows of administrative routines will track the locations of current bottlenecks in dispute processing inside courts. Qualitative interviews and surveys with the legal actor will collect perceptions about the uses of technology in litigation. These explanations will be used to elucidate data gathered on the record files. Research has been running for the last year and both its design and partial outcomes have been crucially affected by the changes courts are implementing due to the pandemic.




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