The Thomas E. Fairchild Lecture University of Wisconsin Law School April 27, 2012
I am honored to have the opportunity to introduce this colloquium issue of the Wisconsin Law Review. The colloquium Essays address the role of empirical research in identifying, measuring, and clarifying crucial issues of service delivery, resource allocation, and access to justice in American law and society. I recently retired after teaching for twenty-two years at the Frank J. Remington Center, a clinical program of the University of Wisconsin Law School, so the questions raised in this Colloquium are dear to my heart.
The research imperative of refining ways to measure justice is important and necessary. Our work as lawyers improves the more we know about our effectiveness and the more our choices are evidence based. Nevertheless, quantifying the work of a lawyer is not easy. How do we ensure that any measure of justice captures outcomes for both trial-based advocacy and non-trial-based advocacy on behalf of clients, including negotiated outcomes?
How do we quantify the role lawyers play in listening to our clients, explaining the systems in which they operate, and supporting them through often very difficult times in their lives? How do we ensure that any measure of justice includes a client’s sense of the process as well as the outcome? How do we make sure that what we measure does not suggest the limits of what is possible or desired?
Access to Justice (A2J) research is in the midst of a renaissance. A new crop of evaluation studies have joined a broader body of contemporary research investigating the delivery of legal services andpublic experience with civil justice. A growing number of stakeholders regard this new research with serious interest. For example, in 2010, the Obama administration established for the first time an Access to Justice Initiative within the Department of Justice.
The Access to Justice Initiative is charged in part with “[e]xpand[ing] research on innovative strategies to close the gap between the need for, and the availability of, quality legal assistance.” Similarly, in its 2012 strategic plan, the Legal Services Corporation committed to using “robust assessment tools” in identifying and promoting best practices in legal services delivery. Three years ago, the American Bar Foundation, a leading national center for sociolegal research, established an A2J research initiative. In December 2012, that initiative, with the sponsorship of the National Science Foundation, convened researchers and field professionals to identify and develop an A2J research agenda. This is an exciting time for people who care about access to justice.
Miami, like other inner cities stricken by deep, concentrated poverty, is also afflicted by limited indigent access to legal services in its civil and criminal justice systems. In Miami, as elsewhere, such limited access signals a crisis in legal services delivery exacerbated by cutbacks in federal and state funding of local legal aid providers, declines in foundation support for nonprofit advocacy organizations, and reductions in for-profit law firm underwriting of in-house and bar-sponsored pro bono programs.
This Essay and its accompanying Colloquium spring from a collaborative scholarly commitment to study the access to justice crisis in the United States as a joint enterprise, particularly the clinical, institutional, and programmatic implications of recent empirical research and experimental pilot projects in the field. Both the Essay and the Colloquium canvass research and scholarship on access to justice, including empirical research and evidence-based data assessment, and survey the curricular and institutional effort to redesign legal services delivery and self-help assistance systems, including analysis of the cost-benefit metrics of individual and group representation.
In this essay, we describe the potential for law school clinics to serve as sites of empirical research to answer pressing questions about delivery of legal services in low-income communities. With others, we have noted the research imperative in legal services, made the case for infrastructure to support such research, and advocated renewed ties between law school clinics and legal services programs. For the reasons set out more fully below, we believe that now is the time for law school clinics to heed Michelman’s commitment “to evaluate remorselessly our fondest pet notions” and to answer Schön’s call to become “a setting not only for the application of knowledge but for its generation.” We call this opportunity the “Clinic Lab Office.”
The rise of empiricism within legal scholarship has had a profound influence on studies of lawyers, the legal profession, legal education, and legal mobilization. The overarching emphasis on the empirical study of behavior reflects and reproduces a broader trend across disparate legal fields: turning away from theories of law that rest upon implicit assumptions about rule compliance or stylized models of rational action and toward descriptive and normative accounts based on the real decision-making processes of real people. Hence, a defining feature of the contemporary scholarly landscape is that the fundamental question of jurisprudence—how law relates to society—is now being asked by a generation of scholars equipped with empiricism and steeped in interdisciplinarity.
This trend—what some have termed the new legal realism—is not so much a disjuncture as a revival and repositioning of prior strands of sociolegal work, some of which—deemed outside the legal mainstream at the time of their production—have now achieved a place of honor in the canon of empirical legal studies. Nonetheless, despite the ascendance of empiricism, its current iteration may represent less the culmination of the law and society movement than its mainstream assimilation. While the current version of law and social science embraces the craft of empirical study, it is often divorced from the normative commitments that drove first-wave law and society scholars to examine the law “in action” as a way to make law’s application align with a vision of a just society animated by left-progressive political goals.
The Foreign Account Tax Compliance Act (FATCA) became law in 2010 and is an important development in combatting income tax evasion. Under FATCA, American individual and corporate taxpayers must provide comprehensive information to the Internal Revenue Service (IRS) regarding foreign bank accounts. In addition, a more controversial part of FATCA requires foreign banks to report directly to the IRS certain information about financial accounts held by American taxpayers.
These drastic changes in American tax policy are alarming to the international financial community. International banks are forced to implement expensive compliance programs to satisfy the information reporting requirements. An increasing number of foreign financial institutions will no longer want any involvement with American citizens or investments. Furthermore, Americans living abroad might be forced to denounce their American citizenship in order to gain access to insurance and basic banking options. In response to the unilateral imposition of FATCA, foreign governments and banks may lobby for its repeal. This Comment examines factors in the global movement to repeal FATCA and suggests several workable solutions that would be agreeable to the United States and foreign nations. Specifically, this Comment suggests how investment income withholding and increased IRS enforcement actions are a better solution to prevent income tax evasion.
Wisconsin has the highest rate of drunk driving in the country. Reducing the opportunity to drink and drive is a preventative measure that addresses the problem before harm or other consequences occur. Serving alcohol to intoxicated patrons is a crime in Wisconsin, but a national study shows that these laws are rarely enforced. Meanwhile, Wisconsin’s dram shop act grants civil immunity to those who would otherwise be liable for alcohol-related injuries.
The Supreme Court of Wisconsin has expanded the already broad scope of immunity that Wisconsin’s dram shop act grants, causing countless innocent third party victims to go uncompensated. Broadening liability instead of immunity would encourage licensed drinking establishments to help prevent drunk driving. The Wisconsin State Legislature should amend the dram shop act to eliminate broad, ambiguous terms like procurement, and expand civil liability to licensed drinking establishments that serve visibly intoxicated patrons.