Law Commons^™

Lawyerless Law Development, Colleen F. Shanahan, Jessica K. Steinberg, Alyx Mark, Anna E. Carpenter

Utah Law Faculty Scholarship

The typical American civil trial court is lawyerless. In response, access to justice reformers have embraced a key intervention: changing the judge’s traditional role. The prevailing vision for judicial role reform calls on trial judges to offer accommodation, information, and process simplification to people without legal representation.

Until now, scholars have known little about judicial behavior in lawyerless courts, including whether and how judges are implementing role reform recommendations. Our lack of knowledge stands in stark contrast to the responsibility civil trial judges bear—and the discretionary power they wield—in dispensing justice for millions of unrepresented people each year. While today’s …

Bottom-Rung Appeals, Merritt E. Mcalister

UF Law Faculty Publications

There are haves and have-nots in the federal appellate courts, and the haves get more attention. For decades the courts have used a triage regime where they distribute judicial attention selectively: some appeals receive a lot of judicial attention, some appeals receive barely any. What this work unearths is that this triage system produces demonstrably unequal results depending on the circuit handling the appeal and whether the appellant has counsel or not. Together, these two factors produce dramatic disparities: in one circuit, for example, an unrepresented appellant receives, on average, a decision less than a tenth the length of a …

Macro-Judging And Article Iii Exceptionalism, Merritt E. Mcalister

UF Law Faculty Publications

Over the last half-century, the federal courts have faced down two competing crises: an increase in small, low-value litigation thought unworthy of Article III attention and an increase in the numbers and complexity of “big” cases thought worthy of those resources. The choice was what to prioritize and how, and the answer the courts gave was consistent across all levels of the federal judiciary. Using what this Article calls “macro-judging,” Article III judges entrenched their own power and autonomy to focus on the work they deemed most “worthy” of their attention, while outsourcing less “important” work to an array of …

The Institutional Mismatch Of State Civil Courts, Colleen F. Shanahan, Jessica K. Steinberg, Alyx Mark, Anna E. Carpenter

Faculty Scholarship

State civil courts are central institutions in American democracy. Though designed for dispute resolution, these courts function as emergency rooms for social needs in the face of the failure of the legislative and executive branches to disrupt or mitigate inequality. We reconsider national case data to analyze the presence of social needs in state civil cases. We then use original data from courtroom observation and interviews to theorize how state civil courts grapple with the mismatch between the social needs people bring to these courts and their institutional design. This institutional mismatch leads to two roles of state civil courts …

Judges In Lawyerless Courts, Anna E. Carpenter, Colleen F. Shanahan, Jessica K. Steinberg, Alyx Mark

Faculty Scholarship

The typical American civil trial court is lawyerless. In response, access to justice reformers have embraced a key intervention: changing the judge’s traditional role. The prevailing vision for judicial role reform calls on trial judges to offer a range of accommodation, assistance, and process simplification to people without legal representation.

Until now, we have known little about whether and how judges are implementing role reform recommendations or how judges behave in lawyerless courts as a general matter. Our lack of knowledge stands in stark contrast to the responsibility civil trial judges bear – and the discretionary power they wield – …

The Democratic (Il)Legitimacy Of Assembly-Line Litigation, Jessica K. Steinberg, Colleen F. Shanahan, Anna E. Carpenter, Alyx Mark

Faculty Scholarship

Millions of debt cases are filed in the civil courts every year. In debt actions, asymmetrical representation is the norm, with the plaintiff almost always represented by counsel and the defendant very rarely so. A number of jurisdictions report that up to ninety-nine percent of defendants in debt cases appear pro se — a figure that calls into question the basic legitimacy of these proceedings.

Professor Daniel Wilf-Townsend’s central contribution to the literature on debt collection, and state civil justice more broadly, is to demonstrate through sophisticated empirics what has long been anecdotally reported: that a cluster of corporate plaintiffs …

Preliminary Damages, Gideon Parchomovsky, Alex Stein

All Faculty Scholarship

Historically, the law helped impecunious plaintiffs overcome their inherent disadvantage in civil litigation. Unfortunately, this is no longer the case: modern law has largely abandoned the mission of assisting the least well off. In this Essay, we propose a new remedy that can dramatically improve the fortunes of poor plaintiffs and thereby change the errant path of the law: preliminary damages. The unavailability of preliminary damages has dire implications for poor plaintiffs, especially those wronged by affluent individuals and corporations. Resource constrained plaintiffs cannot afford prolonged litigation on account of their limited financial means. Consequently, they are forced to either …

Mapping The Civil Justice Gap In Federal Court, Roger Michalski, Andrew Hammond

UF Law Faculty Publications

Unrepresented litigants make up a sizable and normatively important chunk of civil litigation in the federal courts. Despite their importance, we still know little about who these pro se litigants are. Debates about pro se litigation take place without sufficient empirical information. To help fill some of the gaps in our understanding of pro se litigants, this Article takes a new approach by mapping where pro se litigants live.

Using a massive data set of 2.5 million federal dockets from a ten-year period, we obtained addresses of non-prisoner pro se litigants. We then geolocated these addresses and cross-referenced that information …

Modernizing Capacity Doctrine, Lisa V. Martin

Faculty Publications

Federal capacity doctrine—or the rules establishing whether and how children’s civil litigation proceeds—has largely remained the same for more than a century. It continues to presume that all children are incapable of directing their own cases, and that adults must litigate on children’s behalf. But since that time, our understanding of children, and of adolescents in particular, has significantly evolved. This Article contends that it is well beyond time to modernize the capacity doctrine to better account for the capabilities of adolescents and support their transition to adulthood.

Judges And The Deregulation Of The Lawyer's Monopoly, Jessica Steinberg, Anna E. Carpenter, Colleen F. Shanahan, Alyx Mark

Utah Law Faculty Scholarship

In a revolutionary moment for the legal profession, the deregulation of legal services is taking hold in many parts of the country. Utah and Arizona, for instance, are experimenting with new regulations that permit nonlawyer advocates to play an active role in assisting citizens who may not otherwise have access to legal services. In addition, amendments to the Rules of Professional Conduct in both states, as well as those being contemplated in California, now allow nonlawyers to have a partnership stake in law firms, which may dramatically change the way capital for the delivery of legal services is raised as …

Using Random Assignment To Measure Court Accessibility For Low-Income Divorce Seekers, James D. Greiner, Ellen L. Degnan, Thomas Ferriss, Roseanna Sommers

Articles

We conducted a field experiment in which 311 low-income individuals seeking a divorce were randomly assigned to receive access to a pro bono lawyer (versus minimal help) to assist with filing for divorce. Examining court records, we found that assignment to an attorney made a large difference in whether participants filed for and obtained a divorce. Three years after randomization, 46% of the treated group had terminated their marriages in the proper legal venue, compared to 9% of the control group. Among “compliers”—participants who obtained representation only if assigned to receive it—those with lawyers were far more likely to file …

Getting Real About Procedure: Changing How We Think, Write And Teach About American Civil Procedure, Suzette M. Malveaux

Publications

No abstract provided.

Covid, Crisis And Courts, Anna E. Carpenter, Colleen F. Shanahan, Alyx Mark, Jessica Steinberg

Utah Law Faculty Scholarship

Our country is in crisis. The inequality and oppression that lies deep in the roots and is woven in the branches of our lives has been laid bare by a virus. Relentless state violence against Black people has pushed protestors to the streets. We hope that the legislative and executive branches will respond with policy change for those who struggle the most among us: rental assistance, affordable housing, quality public education, comprehensive health and mental health care. We fear that the crisis will fade, and we will return to more of the same. Whatever lies on the other side of …

The Convergence Of Adr And Odr Within The Courts: The Impact On Access To Justice, Dorcas Quek Anderson

Research Collection Yong Pung How School Of Law

The complexion of justicewithin many judiciaries has changed dramatically through the influence of twoglobal movements – the modern alternative dispute resolution (ADR) movement andthe more recent development of online dispute resolution (ODR). The former waveled to the creation of multi-door courthouses, court-annexed mediationprogrammes and innovations such as judicial settlement conferences. In the last decade, the rapid growth of ODRhas precipitated more changes in the administration of justice. Online courts have been designed in Englandand Wales (the Online Solutions Court suggested by Lord Briggs) and BritishColumbia (the Civil Resolution Tribunal). This paper discusses theimpact of the ADR and ODR waves on …

Tort Reform: Blocking The Courthouse Door And Denying Access To Justice, Joanne Doroshow

Articles & Chapters

No abstract provided.

Newsroom: Margulies On 'Ghostwriting', Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Class Actions, Heightened Commonality, And Declining Access To Justice, A. Benjamin Spencer

Scholarly Articles

A prerequisite to being certified as a class under Rule 23 of the Federal Rules of Civil Procedure is that there are "questions of law or fact common to the class." Although this “commonality” requirement had heretofore been regarded as something that was easily satisfied, in Wal-Mart Stores, Inc. v. Dukes the Supreme Court gave it new vitality by reading into it an obligation to identify among the class a common injury and common questions that are "central" to the dispute. Not only is such a reading of Rule 23’s commonality requirement unsupported by the text of the rule, but …

Electronic Discovery And The Constitution: Inaccessible Justice, Jennifer M. Smith

Journal Publications

Computers are the cynosure of American society. As a result, most information is stored electronically and only a small amount of information ever becomes a paper document. This explosion of electronically stored information has affected every aspect of society, including the court system. Litigation is drastically different than a few years ago due to this onset of electronically stored information. The discovery of electronically stored information in litigation has become known as electronic discovery. For many, electronic discovery is expensive and complicated, and thus, litigants are settling frivolous cases to avoid the costs and complexities of engaging in discovery to …

Access-To-Justice Analysis On A Due Process Platform, Ronald A. Brand

Articles

In their article, Forum Non Conveniens and The Enforcement of Foreign Judgments, Christopher Whytock and Cassandra Burke Robertson provide a wonderful ride through the landscape of the law of both forum non convenience and judgments recognition and enforcement. They explain doctrinal development and current case law clearly and efficiently, in a manner that educates, but does not overburden, the reader. Based upon that explanation, they then provide an analysis of both areas of the law and offer suggestions for change. Those suggestions, they tell us, are necessary to close the “transnational access-to-justice gap” that results from apparent differences between rules …

Clearing Civil Procedure Hurdles In The Quest For Justice, Suzette M. Malveaux

Publications

No abstract provided.

The Restrictive Ethos In Civil Procedure, A. Benjamin Spencer

Scholarly Articles

Those of us who study civil procedure are familiar with the notion that federal procedure under the 1938 civil rules was generally characterized by a "liberal ethos," meaning that it was originally designed to promote open access to the courts and to facilitate a resolution of disputes on the merits. Most of us are also aware of the fact that the reality of procedure is not always access-promoting or fixated on merits-based resolutions as a priority. Indeed, I would say that a "restrictive ethos" characterizes procedure today, with many rules being developed, interpreted, and applied in a manner that frustrates …