Celebrating the "Null" Finding: Evidence-Based Strategies for Improving Access to Legal Services

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ESSAY CONTENTS

INTRODUCTION

I. LEGAL SERVICES IN THE UNITED STATES: FROM LAW REFORM TO
     RIGHT TO COUNSEL
     A. Legal Services, Law Reform, and Controversy: 1965 to 1980
     B. The Civil Gideon Movement
     C. The New Legal Services Landscape
II. THE LIMITS OF THE CIVIL GIDEON MOVEMENT
     A. Supreme Court Jurisprudence
     B. Findings from Access-to-Justice Research
        1. The Added Value of Lawyer Representation
        2. Understanding the Consumer Perspective
     C. Lessons from the English Experience
III. TOWARD CONSUMER-CENTERED, EVIDENCE-BASED LEGAL
     SERVICES
     A. Practical Problems with Civil Gideon
     B. Conceptual Problems with Civil Gideon
     C. An Alternative Approach: Evidence-Based, Self-Help-Centered
        Services

CONCLUSION: CELEBRATING THE NULL FINDING

INTRODUCTION

Half a century ago, the Supreme Court held in Gideon v. Wainwright (1) that an indigent defendant in a criminal proceeding is entitled to counsel at state expense. No similar categorical right exists for a civil litigant, no matter how consequential the stakes. Among the wealthy market democracies, the United States is the only nation that does not guarantee access to a lawyer in civil matters. What explains our nation's outlier status? Should achieving a civil Gideon be the main policy goal of the access-to-justice movement in the United States? What is the current policy agenda of peer nations that have had an entitlement to counsel for decades?

In Part I, I describe how the origins of civil legal aid in the racial-justice and antipoverty struggles of the 1960s shaped early law-reform and systemic-change goals. When a conservative backlash threatened the existence of federally funded legal services, defenders of the program shifted to an access-to-justice rationale that produced many changes in the legal services landscape and, eventually, a civil Gideon movement. In Part II, I critically examine the civil Gideon idea in light of Supreme Court jurisprudence, empirical research findings, and the experience of peer nations. In Part III, I argue that civil Gideon is not an adequate policy response to unequal access to the legal system and propose continued reforms to enable self-help and "lawyer-lite" services. I also suggest that greatly expanded access to law and its remedies is best understood not as a normative issue, but as a public policy problem that will yield to the tools of public policy analysis and research.

I. LEGAL SERVICES IN THE UNITED STATES: FROM LAW REFORM TO RIGHT TO COUNSEL

The founders of government-funded civil legal services in the United States were not interested in a right to counsel. They intentionally shaped the program to achieve substantive antipoverty goals rather than access goals. Over time, this policy choice produced fierce conservative opposition that led legal services advocates to reframe their movement in terms of access to justice. With federal funding stagnant and the civil Gideon movement producing few successes, courts and legal aid offices had to find ways to meet the needs of growing numbers of unrepresented claimants. They developed new service approaches that, of necessity, depended less on conventional, lawyer-centered representation. Over time these innovations produced a more complex legal services landscape in which self-help and other lawyer-lite services have become commonplace.

A. Legal Services, Law Reform, and Controversy: 1965 to 1980

In 1965, two years after the Supreme Court decided Gideon v. Wainwright, government-funded legal services were established in the United States as part of the Johnson Administration's War on Poverty. (2) The culture in the 1960s supported an overtly political agenda for "a new breed of lawyers ... dedicated to using the law as an instrument of orderly and constructive social change." (3) Washington leadership made law reform and test cases the strategic priority for the Office of Economic Opportunity (OEO) legal services lawyers, and it evaluated grantees based on the law-reform cases they pursued. …