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, multi-faceted 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 that inhibit their 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.
Author(s): Berger, Kayley | Abstract: “Respect for the rule of law in all its dimensions is critical to the fair administration of justice, public order, and protection of fundamental freedoms.” The rule of law surrounding the Fifth Amendment right against self-incrimination will not be respected by the police or public at large until major loopholes that allow the police “to take advantage of indigence in the administration of justice” are closed. The major loophole this Note tackles is the “in custody” requirement for Miranda warnings, which allows officers to question suspects without providing them with a Miranda warning. Specifically, this Note focuses on the damage such a loophole causes in the context of emergency medical care. It considers scenarios in which the power dynamics are so severe the suspect involuntarily confesses to a crime. To close this specific loophole, courts must expand what is considered “custodial” to represent the actual judicial intent behind Miranda: protecting the disadvantaged from state coercion and abuse. This conclusion is rooted in the judicial ideology that is used in the other Criminal Constitutional Revolution cases, which all sought to protect against police tendency to take advantage of indigence. This Note is not seeking to expand the rights of the accused. Rather, it is focused on closing a loophole in an existing right.
Author(s): Nam, Jeesoo | Abstract: As economic inequality reaches new heights every decade, academics stress the importance of the tax system in matters of equity. In contemporary winner-take-all markets, much of the massive income and wealth accumulated by the rich are the result of deliberate and calculated economic gambles that turned out in their favor. Yet theories of distributive justice such as Ronald Dworkin’s brute luck egalitarianism have committed themselves to the position that even if these market outcomes are the results of luck, the unequal outcomes are justified insofar as investors chose to take such risks. This Article argues, in contrast to the aforementioned theories, that inequalities resulting from option luck, the luck involved in deliberate and calculated gambles, remain unjust. This theory entails novel arguments in favor of imposing additional tax burdens on the most well-off members of our society and taxing capital income by demonstrating the extent to which unequal market outcomes are undeserved. Technological developments have led to winner-take-all markets in which even small amounts of option luck can lead to a wide divergence in results. A further tax imposed on the winners of such markets helps neutralize the economic inequalities resulting from luck. Differences in capital income are partly unjust because differential returns to investments are attributable, in large part, to chance. A tax on capital income compresses the distribution of these returns by lowering the returns to winning bets (by taxing such returns) and the losses of losing bets (by allowing deductions for such losses).
The 2017 iteration of the #MeToo movement has brought tremendous attention to the problem of sexual harassment in the workplace, as well as in a variety of other contexts. We learned that sexual harassment is rampant, varied in form, and harmful, or, more accurately, that it is still all of these things. Sexual harassment at work has existed as long as women have worked, whether paid, valued, or enslaved. The law of sexual harassment has a much more recent provenance. Courts began to recognize harassment as a form of sex discrimination in the early 1980s, and the entire current structure of sexual harassment doctrine was in place by the end of the 1990s. The law, in broad brush, prohibits sexual harassment in the workplace and gives its survivors access to a variety of remedies when the employer permits it to happen. Yet today, almost four decades after the law first categorized sexual misconduct as a form of unlawful discrimination, an average American workplace can feel remarkably like a saloon in the Wild West. This Article will explore the ways in which the #MeToo movement has affected (or might affect) institutional response to sexual harassment. This entails first understanding some early lessons from the #MeToo movement. Then, it explores the legal regime that both unequivocally treats harassment as prohibited and sometimes permits it to flourish. The Article will first consider the nature and degree of the problem, before exploring the development of sexual harassment law and the key components of the current legal doctrine designed to address misconduct. It will turn then to the ways in which existing law is inadequate and has largely failed to address sexual misconduct at work. It concludes with a consideration of whether #MeToo will push institutions harder, or at least differently, to respond to sexual harassment—and at what cost. In the end, it concludes that the #MeToo movement has brought powerful forces to bear on a problem that the law has failed to eradicate, but that larger problems of gender inequity will likely forestall further progress.
Author(s): Holmes, Kennedy | Abstract: This Note builds on the growing scholarly discourse involving the #MeToo movement and places an importance on discussing the issue of spousal rape in the #MeToo era. It fills a crucial gap in legal scholarship by articulating how sexual violence during marriage persists despite greater attention to sexual violence in the public discourse. There may be a blind spot in the popular discourse surrounding the #MeToo movement. This Note argues that the current conversation around sexual violence in the workplace fails to address the importance of fixing sexual violence in other areas (such as the home). The Centers for Disease Control and Prevention (CDC) reports that 18.3% of women experience some type of sexual violence in their intimate relationships. A majority of states essentially permit these forms of intimate partner violence within state statutes. In response, this Note provides a robust empirical analysis of states’ handling of spousal sexual violence. This Note exposes how loopholes in the law remain and how the #MeToo movement can influence the abolishment of these loopholes. This Note proceeds in four parts. Part I covers the history of the spousal rape privilege and explains both the historical and modern justifications for spousal sexual violence. Part II explores previous feminist movements’ impact on the eradication of sexual violence. Next, Part III presents the current spousal exemptions in state statutes. Additionally, Part III tracks any #MeToo era repeals of spousal sexual violence statutes. Finally, Part IV recommends eliminating spousal exemptions to provide a legal remedy for spouses who seek one. Part IV also acknowledges that noncarceral approaches are necessary.
Artificial intelligence can infer health data from people’s behavior even when their behavior has no apparent connection to their health. AI can monitor one’s location to track the spread of infectious disease, scrutinize retail purchases to identify pregnant customers, and analyze social media to predict who might attempt suicide. These feats are possible because in modern societies, people continuously interact with internet-enabled software and devices. Smartphones, wearables, and online platforms monitor people’s actions and produce digital traces, the electronic remnants of their behavior. In their raw form, digital traces might not be very interesting or useful; one’s location, retail purchases, and internet browsing habits are relatively mundane data points. However, AI can enhance their value by transforming them into something more useful—emergent medical data. EMD is health information inferred by artificial intelligence from otherwise trivial digital traces. This Article describes how EMD-based profiling is increasingly promoted as a solution to public health crises such as the COVID-19 pandemic, gun violence, and the opioid crisis. However, there is little evidence to show that EMD-based profiling works. Even worse, it can cause significant harm, and current privacy and data protection laws contain loopholes that allow public and private entities to mine EMD without people’s knowledge or consent. After describing the risks and benefits of EMD mining and profiling. The Article proposes six different ways of conceptualizing these practices. It concludes with preliminary recommendations for effective regulation. Potential options include banning or restricting the collection of digital traces, regulating EMD mining algorithms, and restricting how EMD can be used once it is produced.
Author(s): Basu, Sumouni | Abstract: 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.
Author(s): McDonald, Hugh | Abstract: 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.
Author(s): Young, Kathryne M | Abstract: 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.
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 pro-plaintiff 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 antiabortion, 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.
Author(s): Johanson, Emily J | Abstract: 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.
Author(s): Sandefur, Rebecca L; Teufel, James | Abstract: 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.
Consider these two seemingly unrelated recent scandals: The publicized fall from grace of cyclist Lance Armstrong, and the truly ruinous Madoff pyramid scheme. These cases (as well as a plethora of more mundane scenarios discussed throughout this article) share a common feature, hitherto scantly discussed by courts and legal scholars: causal ambiguity in restitution claims involving multiple claimants. In such cases, a wrongdoer was enriched at the expense of others – sometimes a great many others – and it is therefore difficult to determine exactly which possible victim is indeed the source of the wrongdoer’s enrichment. In such cases, it can be near impossible to preponderantly prove the identity of the claimant at whose expense the wrongdoer was enriched. This article is the first to identify this problem as a reoccurring pattern in restitutionary claims. By making this novel contribution, the article fills an important gap in the literature and identifies a new paradigm within the law of restitution, that of causal ambiguity in multiple-claimant cases. This vacuum in the literature on restitutionary claims is especially striking, considering the vast scholarship on a closely related topic, namely causal ambiguity in multiple-defendant tort cases. The article argues and demonstrates that the existing rules of the law of restitution do not provide appropriate solutions in multiple-claimant cases. Under existing law, many deserving claimants – sometimes all of them – can be left with no remedy, thereby denied of their rights and not compensated for harms they suffered at the hands of a wrongdoer. Drawing on the more developed literature on causal ambiguity in tort law, we propose a solution for this injustice by presenting, for the first time, a new concept of probabilistic restitution. The article shows that the proposed regime can lead to just and efficient outcomes, serving the goals of both interpersonal justice and deterrence.
