UC Irvine Law Review

It is a commonplace in American politics that Democrats are far more likely than Republicans to favor access to courts to enforce individual rights with lawsuits. In this Article we show that conventional wisdom, long true, no longer reflects party agendas in Congress. We report the results of an empirical examination of bills containing private rights of action with proplaintiff fee-shifting provisions that were introduced in Congress from 1989 through 2018. The last eight years of our data document escalating Republican Party support for proposals to create individual rights enforceable by private lawsuits, mobilized with attorney’s fee awards. By 2015–18, there was rough parity in levels of support for such bills by Democratic and Republican members of Congress.

This transformation was driven substantially by growing Republican support for private enforcement in bills that were anti-abortion, immigrant, and taxes, and pro-gun and religion. We demonstrate that this surge in Republican support for private lawsuits to implement rights was led by the conservative wing of the Republican party, fueled in part by an apparent belief during the Obama years that the President could not be relied upon to implement their anti-abortion, immigrant, and taxes, and pro-gun and religion agenda. We conclude that the contemporary Republican party’s position on civil lawsuits has become bifurcated, reflecting the distinctive preferences of core elements of their coalition. They are the party far more likely to oppose private enforcement when deployed to enforce business regulation, while embracing it when deployed in the service of rights for their social conservative base.

As access to justice strategies evolve and expand, with user-centric, multifaceted, and more holistic approaches that seek to better match legal need and capability, and as the justice system sits on the cusp of digital transformation, empirical methods and measures that mirror evolving strategies are vital. Evolved empirical methods and measures are needed to not only assess access to justice, but also to learn “what works” to meet diverse legal need and capability across the community. Better, more effective, and cost-efficient access to justice appears to rest, at least in part, on improved ability to monitor diverse legal need and capability across the community: from differential legal need to differential justice system use and outcomes. In particular, how much “legal” do different people need to enjoy access to justice? If the justice system is intended to do justice, there is relatively thin user-centric evidence demonstrating how much “legal” is enough.

Improved measures of legal need and capability, and of justice system outcomes, will not only help assess access to justice, but design of user-centric legal assistance and justice system processes.

This Article draws on several access to justice challenges and considers three sources of empirical evidence of individual access to justice and legal need—access to justice and legal needs surveys, justice system administrative data and evaluative research efforts—to examine how empirical legal studies can throw new light on important access to justice questions. Without improved ability to monitor and measure legal need, capability and outcomes, ability to assess access to justice, user-centric policy reforms, and learn “what works” to effectively and efficiently meet that legal need is likely to remain stunted.

How much legal do people need to meet legal needs and enjoy access to justice? And how can we know?

Learning “what works” to build foundational legal capability and effective pathways to justice are critical to the design of effective and efficient justice systems that mirror community legal needs and problem-solving behavior. The shift to a user-centric, bottom-up, multifaceted, and holistic approach to access to justice, to better cater to diverse legal need and capability, requires a commensurate user-centric shift in assessing access to justice.

Many strongly believe the United States faces a crisis in access to civil justice but differ starkly in what they believe that means. Some observers believe the key issue is unrepresented litigants in trials and hearings, while others point to the tens of millions of people facing justice problems outside of the courts with no assistance. We offer definitions of three concepts central to assessing the crisis—justiciable events, legal needs, and cases—and examine the availability of consistently collected, nationally representative data measuring these three phenomena. Such data are sparse. Some information about justice experiences is collected for those justiciable events—a bare minority—that become court cases, but these data are not collected in uniform ways, nor are they always made available to researchers for analysis. The past few years have seen a growth in the number of civil justice surveys of the public, which give insight into the prevalence of specific kinds of justiciable events and their impacts on those who experience them. The concept at the core of the dominant understanding of the access to justice crisis, legal need, is ironically the phenomenon about which we have the least information.

We draw on ideas from the field of public health to develop two measures of access to justice that shift analytic focus away from granular experience with problems, court processes, or legal services to summarize Americans’ justice experiences: Civil Justice Problem-Free Life Expectancy and Civil Justice Hardship-Free Life Expectancy. The measures report how many years of life people can expect to spend dealing with civil justice problems and experiencing health, economic, or relationship hardships as a result of those problems. Americans spend large proportions of their lives experiencing civil justice problems and suffering consequent hardships. For example, a typical woman in midlife can expect to be experiencing civil justice problems for over half of her remaining years, while a typical eighteen-year-old can look forward to spending thirteen years of their life experiencing health, economic, or interpersonal hardships as a result of civil justice problems. The new measures permit comparisons across groups, geography and time, and constitute new tools for assessing the impact of policy changes.

Decades of empirical research have confirmed the prevalence of troublesome situations involving civil legal issues in everyday life. Although these problems can be associated with serious financial and social harm, they rarely involve recourse to lawyers or formal legal institutions. Contemporary scholars and practitioners increasingly integrate this reality into the definition of access to justice. They understand access to justice to be concerned with equality in the ability of individuals to achieve just resolutions to the problems they experience, regardless of whether they pursue formal legal action. To achieve this goal, an emerging international set of best practices calls for access to justice interventions that are proactively targeted to those groups most in need of assistance, linked to other social service providers, aimed at addressing problems early to avoid escalation, and customized to the user’s capabilities. In stark opposition to such an outward-facing, multifaceted approach, the civil justice system is structured to respond only to formal legal claims. We have few auxiliary institutions that provide alternative avenues to resolution and several barriers inhibit individuals’ ability to address civil legal problems. As a result, access to justice, as contemporarily understood, is largely an orphan issue—a social problem for which no institution bears responsibility. In this Article, I propose an agenda of institutional reforms to better align key social institutions with a contemporary, evidence-based understanding of access to justice. These institutional reforms would enhance individuals’ ability to access justice, within or without the courthouse walls.

Despite enormous social, legal, and technological shifts in the last century, the structure of legal education has remained largely unchanged. Part of the reason so little change has occurred is that the current model mostly “works”; it produces a professional class of lawyers to populate the ranks of law firms and government entities. At the same time, for decades, legal education researchers have considered it practically axiomatic that law school has room for improvement.

In this Article, I argue that the access to justice crisis—a deficit of just resolutions to justiciable civil justice problems for everyday people—compels an overdue examination of legal education’s scope and purpose. If we assume that lawyers should have a major role in solving the access to justice crisis, as opposed to simply meeting individual legal needs, law schools must prepare lawyers to serve this role. I point to three categories of improvement that centering access to justice would necessitate: teaching a greater versatility of thinking and problem-solving, imparting a broader understanding of the ecosystem of justiciable problems and lawyers’ place in it, and structuring law school to impart the cognitive cornerstones needed for successful legal practice.

Placing access to justice at the center of legal education would strengthen, not supplant, the traditional model. In addition to equipping lawyers to address everyday Americans’ justice problems, this Article’s proposals would make the legal profession nimbler and more resilient to social, economic, and technological changes, and help overcome some of the profession’s most intractable problems.

Immigration enforcement has been especially brazen under the Trump administration. As part of a larger “mass deportation agenda,” and in retaliation against localities taking measures to protect immigrants, Immigration and Customs Enforcement (ICE) agents have significantly increased their presence at courthouses. As a result, ICE arrests at courthouses, or “courthouse arrests,” have instilled fear in immigrant communities and chilled participation in the legal system. While these arrests have had far-reaching impacts, preventing survivors and witnesses from accessing the court to seek relief, the focus of this Note is on the particular impact on noncitizen defendants involved in criminal proceedings. Increasingly, ICE will arrest noncitizens in the courthouse who are attempting to appear for arraignments, warrants, or important hearings in their cases. Following an ICE arrest, these noncitizens are often detained or deported, preventing them from continuing in their criminal cases and likely resulting in additional criminal sanctions for missing required court dates. This Note explores the Sixth Amendment right to a jury trial and presents a constitutional challenge to courthouse arrests based on the notion that these arrests prevent noncitizen defendants from accessing the courts, and therefore, meaningfully accessing their right to a jury trial.

The federal government has slowly chipped away at U.S. asylum protections over the past several decades. Moves to expand the detention and criminalization of asylum seekers in an effort to deter asylum seekers’ entry into the United States have been denounced as violations of U.S. obligations under domestic and international law.1 Yet, in 2018, the Trump administration announced the Migrant Protection Protocols (MPP), an unprecedented policy that sends asylum seekers back to Mexico to await their U.S. immigration court hearings. The MPP presents unique challenges to the due process and nonrefoulement tenets of our asylum system and has raised urgent concerns about the devolving role of the United States as a place of refuge for those in danger. As a result of the MPP, border immigration courts are even more overloaded than before, leading to abbreviated hearings and less process. Moreover, because the MPP forces asylum seekers to wait in Mexico for their court hearing, it is almost impossible for them to find an immigration attorney, let alone meaningfully collaborate with their advocate in developing the case. Since the onset of the COVID-19 pandemic in March 2020, the asylum seekers subject to the MPP face even more severe health and safety risks as they wait in dangerous camps along the border without plumbing or sanitation. The implementation of this policy has ensured that many immigrants pursuing asylum claims will not receive the process they are due under the law and must instead risk persecution. Overall, the MPP is another alarming step the U.S. government has taken towards the dehumanization and brutalization of those who have fled to the United States seeking protection.