Law Commons^™

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 …

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 …

Creating A System For All Parents: Rethinking Procedural And Evidentiary Rules In Proceedings With Self-Represented Litigants, Cassandra Richards

Dalhousie Law Journal

Through qualitative interviews undertaken with ten judges at the Superior Court of Québec, this study considers the procedural and evidentiary challenges faced by self-represented litigants in family law matters. Subsequently, this paper offers solutions to the problems identified. The goal of this paper is to provide legal participants with concrete techniques to facilitate proceedings with SRLs that uphold their duty of impartiality and duty of assistance. While this article will likely be useful for judges who engage with SRLs daily, it will also be of interest to those working on issues relating to access to justice, SRLs, as well as …

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 …

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 – …

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 …

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 …

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 …

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.

Why Do The Poor Not Have A Constitutional Right To File Civil Claims In Court Under Their First Amendment Right To Petition The Government For A Redress Of Grievances?, Henry Rose

Seattle University Law Review

Since 1963, the United States Supreme Court has recognized a constitutional right for American groups, organizations, and persons to pursue civil litigation under the First Amendment right to petition the government for redress of grievances. However, in three cases involving poor plaintiffs decided by the Supreme Court in the early 1970s—Boddie v. Connecticut,2 United States v. Kras,3 and Ortwein v. Schwab4—the Supreme Court rejected arguments that all persons have a constitutional right to access courts to pursue their civil legal claims.5 In the latter two cases, Kras and Ortwein, the Supreme Court concluded that poor persons were properly barred from …

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 …

Licensing Paralegals To Practice Law: A Path Toward Bridging The Justice Gap In Minnesota, Conner Suddick

Departmental Honors Projects

There are few legal avenues for low-income and other marginalized groups in the United States to seek civil justice. A lack of legal assistance in civil issues can be detrimental to a person’s health and wellbeing. Given this reality, the legal profession must broaden its capacity to serve these needs, and one path is to embrace the aid of paralegals. In 2016, the legal community of Minnesota had conversations about whether the state should provide limited licenses to paralegals. To study models from across the country, the Minnesota State Bar Association (MSBA) formed the Alternative Legal Models Task Force. In …

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 …

A Comparative Discussion Of Who Pays For Document Discovery In Australia, Canada, Guernsey (Channel Islands), And Singapore And Its Effect On Access To Justice, Gordon Mckee, Anne Glover, Francis Rouleau

Vanderbilt Law Review

symposium organized by the Vanderbilt Law Review to discuss the future of discovery in the United States.' More specifically, the topic for discussion was an ongoing debate in the United States about proposals by the U.S. Chamber Institute for Legal Reform and Lawyers for Civil Justice to adopt a "requestor-pays" discovery rule. In a requestor-pays system, each party pays for the discovery it seeks, which includes the costs of discovery belonging to the other parties to the litigation. It is based on the theory that a requestor-pays rule will encourage each party to manage its own discovery expenses and tailor …

Access To Justice And Small Claims Courts: Supporting Latin American Civil Reforms Through Empirical Research In Los Angeles County, California, Ricardo Lillo

Ricardo Lillo

The Civil Legal Aid Movement: 15 Initiatives That Are Increasing Access To Justice In The United States, David Udell

Wilf Impact Center for Public Interest Law

No abstract provided.

The Downside Of Disruption: The Risks Associated With Transformational Change In The Delivery Of Legal Services, Raymond H. Brescia

Wilf Impact Center for Public Interest Law

No abstract provided.

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

Wilf Impact Center for Public Interest Law

No abstract provided.

Why A Right: The Right To Counsel And The Ecology Of Housing Justice, Andrew Scherer

Wilf Impact Center for Public Interest Law

No abstract provided.

Access To Justice Is More Than The Right To Counsel: The Role Of The Judge In Assisting Unrepresented Litigants, Paris R. Baldacci

Wilf Impact Center for Public Interest Law

No abstract provided.

Denying Access To Justice During A Carceral Crisis, Brett Dignam

Wilf Impact Center for Public Interest Law

No abstract provided.

The Fight For Justice In Housing Court: From The Bronx To A Right To Counsel For All New York City Tenants, Susanna Blankley

Wilf Impact Center for Public Interest Law

No abstract provided.

Having A Say: Democracy, Access To Justice And Self-Represented Litigants, Jennifer Ann Leitch

PhD Dissertations

Access to Justice is one of the most contested issues on the law-and-society agenda. There is a long-standing exchange over its meaning, objectives, and success. Beneath that engagement, there is a deeper and more basic debate about the overall ambitions for access to justice: is the goal to improve peoples access to the legal process and generate more positive outcomes (the practical thesis), or to enhance peoples participation and ultimately their ability to affect justice as an end in itself (the democratic thesis)? This thesis adopts the latter approach.

The plight of self-represented litigants (SRLs) offers a revealing glimpse into …

Who Is Responsible For The Stealth Assault On Civil Rights?, Samuel R. Bagenstos

Michigan Law Review

Staszak’s book does a great service in demonstrating the extent of the stealth assault on civil-rights litigation. As Staszak shows, procedural and remedial decisions fly under the public’s radar, but they have exceptionally important consequences. Indeed, one can draw a clear line between judicial decisions on such obscure topics as standing and qualified immunity and the persistent acts of police misconduct that have aroused great public concern in recent months. Any effort to ensure that civil-rights protections make a concrete difference in people’s lives must attend to the procedural and remedial issues Staszak discusses.

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.

The Donau Chemie Case: Access To File As A Guarantee Of Access To Justice In Cross-Border Litigation, Emanuela Matei

Emanuela A. Matei

No abstract provided.