Implications of Inconvenient Truths about A2J
On September 27, 2015, the United Nations adopted something called the 2030 Agenda for Sustainable Development, setting forth 17 Sustainable Development Goals intended to address world poverty. The Goals apply to all countries. Goal 16 focuses on, among other things, “providing access to justice for all.” The White House’s Legal Aid Interagency Roundtable (“LAIR”), an effort of the UDSOJ Office for Access to Justice, took a role in coordinating the federal government’s response on Goal 16. The National Center for Access to Justice, newly moved to Fordham Law School, recently convened a “Civil Society Consultation” to provide public comment to LAIR, and the A2J Lab accepted the National Center’s invitation to contribute a comment. Our comment focuses on making access to justice an evidence-based endeavor. What do you think of what we wrote? Here it is:
At least a century ago, John Wanamaker, considered by some to be the parent of modern advertising, said, “Half of the money spent on advertising is wasted. The trouble is, we don’t know which half.” Wanamaker’s statement might have been said of access to justice in the modern United States. But with all due respect to the nation’s marketers, in access to justice, the stakes are higher. For individuals and families involved in litigation, consequences include eviction, foreclosure, lack of legal protection from an abusive partner, incarceration, deportation, loss of custody of a child, inability to marry (due to inability to obtain a divorce), devastation of financial (and thus often mental) health, and denial of life-sustaining government benefits, among others. For non-litigants, at stake is the (comparative) tranquility and prosperity that comes from a social commitment to fairness in government and to the rule of law. For why should aggrieved individuals voluntarily turn to the formal justice system, as opposed to violence, to resolve disputes if that system is structurally stacked against them?
With these stakes, it is intolerable for us to lack basic knowledge of what works and what does not in access to justice. If knowledge is power, then we in the access-to-justice community are more powerless than those we purport to serve.
Here are four truths that we do know. All are inconvenient.
First, given its indifference to a parent facing loss of a child and to a litigant facing a year in prison for civil contempt, the United States Supreme Court is unlikely to solve, by the stroke of a pen, our access to justice problem by creating a civil analog to Gideon v. Wainwright’s right to counsel at state expense for defendants accused of serious crimes. More fundamentally, it is unlikely that there will be a societal consensus to commit enough resources to offer a traditional, attorney-client relationship to each low- or moderate-income individual facing an adversarial civil adjudication of an issue affecting a basic human need. Finally, the experience with Gideon suggests a real need for caution in relying exclusively on attorneys to solve U.S. problems in access to justice.
Second, there is no shortage of ideas and innovations in the area of access to justice. The last two to three decades have seen an explosion of creative proposals in this field. A few examples include unbundled representation, non-lawyer representation, court services centers, self-help legal instructional materials, standardized statewide court forms, online document assembly protocols, reform of adjudicator practices and ethical rules, simplification of adjudicatory procedures, and redesigning the spaces in which adjudication takes place. A well-known book written over a decade ago discusses a half-dozen or so other ideas. Creative proposals are in generous supply.
Third, in terms of reliable information about what works and what does not, United States law in 2016 is roughly where United States medicine was in the late 1930s, i.e., in the Dark Ages. In the 1920s, the field of statistics invented the randomized control trial (“RCT”) as an unparalleled way to discover what promising-sounding proposals actually work. In a process beginning between the two World Wars and continuing today, United States physicians embraced the RCT as part of a transformation of medicine from an art into a science. Physicians recognized that, like any knowledge-producing technique, RCTs have limits, but that they also have an incomparable power to tell us what works and what does not. Eighty years later, we have tens of thousands of RCTs to inform delivery of medical services. United States lawyers did not embrace the RCT, and law underwent no transformation. Decades after the first use of randomization to analyze a legal problem, we have available to us a grand total of 50 or so RCTs to help us understand what works over the entire field of United States law. Tens of thousands for medicine, half-a-hundred for law.
Fourth, when fields have made a commitment to evidence-based thinking, including investigation via RCTs, they have found that many standard practices were either no more effective than less expensive alternatives or, for some, actually dangerous. Examples are frighteningly numerous: in medicine, consider hormone replacement therapy; in crime prevention, consider scared straight; in public health and pregnancy prevention, consider robot babies. Do we think that we (lawyers) in access to justice are that much smarter than physicians, criminologists, public health specialists, and everyone else? Perhaps we should not answer that question, for fear of embarrassing ourselves.
Given the stakes in access to justice, we can no longer afford to remain in the Dark Ages. Recently, a grant from a private foundation spurred the creation of the Access to Justice Lab at Harvard Law School. The A2J Lab is dedicated to transforming access to justice into an evidence-based field, and is pursuing or has pursued RCTs in government benefits, housing, debt management, domestic violence, pretrial release, engagement with the legal process, divorce, mediation, and other areas. A short course on conducting RCTs in the law, as well as more studies, are in planning.
But one research center cannot rip the field of access to justice out of the Dark Ages. The United States government played a central role in the transformation of medicine from an art into a science. It funded one of the first and most consequential RCTs in medicine (showing that streptomycin was an effective treatment for tuberculosis), and later, it required by law that RCTs precede the marketing of new drugs and medical devices to the public. It must take the lead in the transformation of access to justice as well. And Goal 16 provides an opportunity to begin this fight. We propose that United States Government include as indicators for compliance with Goal 16:
whether governments and access to justice funders are insisting on RCTs to evaluate effectiveness as part of their grant-making-processes;
whether legal services providers, courts, and access-to-justice-promoting actors are engaging in and promoting RCTs as a basic part of their programs; and
whether governments, courts, funders, and others are promoting and funding knowledge-generating efforts about what works and what does not, especially RCTs, in access to justice.
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