Volume 2018, No.2

Table of Contents

Articles

Democracy, Civil Society, and Public Interest Law
Catherine Albiston

Public interest law organizations (PILOs) play a significant role in democracy and American society. Historically, they have enabled underrepresented voices to be heard in the political process and have vindicated public values by enforcing civil rights laws. They also have shaped and expanded the public sphere through litigation, media coverage, and their association with social movements seeking social change. As public interest law expanded dramatically in the 1960s and 1970s, it came to mean much more than pro bono representation of the poor. Courts and lawyers recognized public interest litigation as a legitimate form of political expression and civic participation. 

 Public interest law organizations historically have been classified as part of civil society, or “the aggregate of non-governmental organizations and institutions that manifest interests and will of citizens.” A strong civil society independent of the government is thought by some to be essential for a healthy democracy. The argument is that social movement organizations that try to shape public opinion or influence legislation also expand grassroots participation and empower citizens in democratic debate. Participation by empowered citizens helps maintain the autonomy of civil society from government and market and strengthens citizens’ ability to shape their world. Public interest law organizations are thus part of a tripartite social structure in which civil society is in critical dialog with the state and the market. The role public interest law organizations do and should play in democratic debate and policy formation is not without controversy, however. Some argue that public interest law organizations further democratic values because litigation is a form of political participation for marginalized groups. Public interest organizations provide a check on government excess, capture, and overreaching. In addition, public interest law organizations use legal strategies to put important but neglected issues on the public agenda. They also help prevent majoritarian oppression of disfavored and disadvantaged groups, such as welfare recipients, LGBT individuals, and religious and ethnic minorities. Others argue, however, that public interest organizations undermine democratic values because public interest litigation allows minority interests that lack electoral accountability to obtain their desired policy outcomes through democratically unaccountable courts. Critics also contend that public interest law organizations have no objective definition of the public interest apart from their specific group’s goals. Some also claim that public interest litigation stirs up unnecessary strife and contention to serve political ends that should be pursued through the normal political process. These disagreements about the legitimacy of public interest law reflect unspoken assumptions about how political differences should be expressed in a democracy, and the appropriate roles of civil society given those assumptions. To speak to this debate, in this article, I bring theories of civil society and democracy into dialog with empirical evidence about what public interest law organizations actually do. In Section I, I situate debates about public interest law organizations within broader theories of democracy and civil society to show how critiques of public interest law organizations rely on a very limited conception of democratic participation. Section I then discusses how public interest law organizations can be understood through participatory theories of democracy. Section II reviews research and empirical data on how public interest law organizations act as civil society organizations. I conclude by discussing the broader implications of these findings for democracy and civil society.

The Keys to the Kingdom: Judges, Pre-hearing Procedure, and Access to Justice
Colleen F. Shanahan

Judges see themselves as—and many reforming voices urge them to be—facilitators of access to justice for pro se parties in our state civil and administrative courts. Judges’ roles in pro se access to justice are inextricably linked with procedures and substantive law, yet our understanding of this relationship is limited. Do we change the rules, judicial behavior, or both to help self-represented parties? We have begun to examine this nuanced question in the courtroom, but we have not examined it in a potentially more promising context: pre-hearing motions made outside the courtroom. Outside the courtroom, judges rule on requests such as motions to continue or for telephone appearances that allow parties to participate in and access the hearing room. These requests have significant consequences for the party, do not implicate the merits of the underlying case, and are a pared-down environment in which to examine the interaction of judicial behavior and procedures.

 This article analyzes pre-hearing procedures using more than 5,000 individual unemployment insurance cases, largely involving self-represented litigants, to investigate how judges and procedure interact to expand or contract access to the hearing room and thus to justice. The data show significant variation in how judges apply these procedures and in parties’ case outcomes. These findings underscore the importance of pre-hearing procedures and judicial decisions that grant or deny access to the courtroom, and the barriers that judicial application of these procedures can present for self-represented litigants. The findings also suggest that changes to judicial behavior—through suggestion, training, or ethical codes—may be insufficient to address this aspect of access to civil justice.

Studying the “New” Civil Judges
Anna E. Carpenter et al.

We know very little about the people and institutions that make up the bulk of the United States civil justice system: state judges and state courts. Our understanding of civil justice is based primarily on federal litigation and the decisions of appellate judges. Staggeringly little legal scholarship focuses on state courts and judges. We simply do not know what most judges are doing in their day-to-day courtroom roles or in their roles as institutional actors and managers of civil justice infrastructure. We know little about the factors that shape and influence judicial practices, let alone the consequences of those practices for courts, litigants, and the public. From top to bottom, we can describe and theorize about our existing civil justice system in only piecemeal ways. Given legal scholarship’s nearcomplete focus on federal civil courts, the stories we tell about the civil justice system may be based on assumptions and models that only apply in the rarefied world of federal court. Meanwhile, state judges and courts— which handle ninety-nine percent of all civil cases—are ripe for theoretical and empirical exploration.

In response, we call for more research aimed at increasing our understanding of state civil courts and judges and offer a theoretical framework to support this work, one that reflects how state courts differ from federal courts. This framework is grounded in a core fact of American civil justice, one both easily observed and largely overlooked: the majority of parties in state civil courts are unrepresented. Given this new pro se reality, our theoretical framework identifies four novel assumptions to guide future research: (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. Building on the growth of empiricism and empirically grounded theory in traditional legal scholarship and access to justice research, we call on scholars to develop theory and gather data to map the new reality of civil justice and judging in America, and suggest questions to guide future research.

Simplicity as Justice
Kathryn A. Sabbeth

Simplification of the legal system has attracted attention as a means of improving access to justice. A major motivation driving reform is the perception that pro se litigants have flooded the courts and begun clogging up the wheels of justice. Ordinary people do not know rules of procedure, evidence, or substantive law; do not handle their cases effectively or efficiently; and have, the argument goes, generated a “pro se crisis.” A number of states and localities have responded by increasing the availability of legal services, funding programs that offer solutions ranging from limited assistance to full representation, and a few legislatures have even established a statutory right to counsel for particular categories of cases. Given the expense of advocates’ labor, however, most jurisdictions have sought instead to improve litigants’ ability to handle their legal matters on their own. As an alternative to providing litigants with representatives who could help them navigate the courts, a growing number of commentators propose simplifying proceedings to obviate the need for such representation. Methods of simplification include creating form pleadings, introducing technology, and relaxing formal rules that could confuse lay litigants. Proponents of simplification claim that it will decrease the time and cost of proceedings, help litigants meet the technical requirements of the fora in which they appear, and increase litigants’ satisfaction with the process.

This essay argues that the objectives of the simplification project are incomplete and carry potential downsides. It does not take the position that such efforts should be abandoned but recommends that their limits and unintended consequences receive careful scrutiny. Prior commentary has highlighted challenges of simplification from an individual litigant’s standpoint, such as the risk of substandard services and the reality that one-size-fits-all will not fit everyone. This essay turns instead to the efficiency goals themselves and how they affect the administration of justice broadly defined. Part I critiques the goal of cutting costs. Part II critiques the goal of increasing speed. Part III urges that public interest law values figure more prominently in access to justice reform.


Essay

Toward Universal Deportation Defense: An Optimistic View
Michael Kagan

One of the most positive responses to heightened federal enforcement of immigration laws has been increasing local and philanthropic interest in supporting immigrant legal defense. These measures are tentative and may be fleeting, and for the time being are not a substitute for federal support for an immigration public defender system. Nevertheless, it is now possible to envision many more immigrants in deportation having access to counsel, maybe even a situation in which the majority do. In this paper, I make no real predictions. Instead, I offer a deliberately—perhaps even blindly— optimistic assessment of how concrete steps that have already been taken could grow into a system of universal deportation defense. In the process, I try to identify what still needs to happen for this to be achieved, and offer some thoughts on how this might change the practice of immigration law in the United States.