One core tenet of the court-simplification movement is the idea that pro se litigants should be able to navigate the legal system themselves in order to have access to the justice they seek. But what if that approach turns out in some instances to be counter-productive, especially in civil court?
What if, by simplifying the courts — and expecting low-income people without representation to make productive use of the do-it-yourself tools available to them — the courts are inadvertently hindering access to justice? What if the systemic imbalances are so great, and the socioeconomic issues involved so oppressive, that no amount of simplification will help? And what if, by trying to empower pro se litigants, we are paradoxically disempowering them, by providing them just enough legal rope to hang themselves, but not enough to pull them out of the cycle of poverty, despair, and dysfunction that landed them in court in the first place?
In a nutshell, that’s the argument offered by lawyers Colleen Shanahan and Anna Carpenter in the most recent issue of the independent academic journal Daedulus, which dedicated its entire Winter 2019 issue to essays on access to justice.
In their article, “Simplified Courts Can’t Solve Inequality,” Shanahan and Carpenter make the counterintuitive argument that more simplification isn’t necessarily better, especially if it means ignoring the consequences of growing inequality. Reform is definitely necessary, they agree, but it should be done with the understanding that civil courts are overwhelmed and are being asked to take on a social role for which they were not designed: namely, adjudicating matters arising from socioeconomic need, but without the resources to actually help people solve the underlying issues that initially brought them to court.
What if, by trying to empower pro se litigants, we are paradoxically disempowering them, by providing them just enough legal rope to hang themselves…
Both Shanahan and Carpenter are advocacy-center directors and academics, as well as practicing attorneys. Shanahan is Associate Clinical Professor of Law and director of the Community Advocacy Lab at Columbia Law School; and Carpenter is Associate Clinical Professor of Law and director of the Lobeck Taylor Community Advocacy Clinic at the University of Tulsa School of Law.
According to Carpenter, the article grew out of a combination of research and personal experience that suggested that the erosion of the social safety net has burdened civil courts with matters for which the executive and legislative branches of government are ultimately responsible. “We all know that the judiciary, executive, and legislature are co-equal branches of government,” says Carpenter, via phone from her office in Tulsa. “But in our article, one of the things we wanted to highlight is that the courts are getting the short end of the stick. And the reason is that the courts are the only branch of government that can’t say no. Courts have to take, handle, process, and seek just outcomes for the cases that come before them. They have no choice.”
Government of last resort?
But in practice, that all too often means evicting people who can’t pay their rent without doing anything to help them find a new means of income. Or placing children of a single mother into foster care because the mother needs help with a mental-health issue exacerbated by her inability to pay for necessary medications. Or piling on fees that people can’t pay, then putting them in jail or taking away their driver’s license, making it impossible for them to earn money to pay for said fee. In other words, it means punishing them in ways that are decidedly unjust.
The larger problem, Shanahan and Carpenter write, is that civil courts are being used as the “government branch of last resort,” unfairly shifting the responsibility for rising poverty on the institution least capable of dealing with it. “Courts cannot create and fund social safety net programs, expand availability of affordable housing, or fulfill other functions of the legislative and executive branches,” the authors write. “The socioeconomic needs that flow from inequality and push parties into civil courts cannot be simplified away within the judicial branch.”
Civil courts are being used as the “government branch of last resort,” unfairly shifting the responsibility for rising poverty on the institution least capable of dealing with it.
Aside from a general call for more responsive and responsible government, one possible interim solution the authors propose is the development of civil “problem-solving courts” based on criminal-court models that have proven quite successful. Such a court would help shift the focus of adjudication from “punishment and incarceration” to “treatment of a social problem,” thereby empowering the court to connect litigants with people, organizations, and resources that can truly help them. This solution still puts the onus of social rehabilitation on the courts, but it would give civil judges the means to provide more socially productive outcomes.
“Many of the issues that land people in civil court — consumer debt, foreclosure, eviction, domestic violence, custody issues, etc. — are deeply tied to poverty,” Carpenter explains. “At the same time, companies and people with wealth aren’t using state courts to solve their problems, and the social safety net continues to shrink. Poor people have no choice but to use state courts, and most of them cannot afford representation. So, it’s a vicious cycle.”
Court simplification, self-help, unbundled legal services, design thinking, and similar court-reform ideas may help some people navigate their way through the courts, but they do little to solve the underlying problems that so many civil litigants face, Shanahan and Carpenter argue.
The problem is bigger than the courts, they note, and it should be treated as such.