“President Biden knows that timely and affordable access to the legal system can make all the difference in a person’s life — including by keeping an individual out of poverty, keeping an individual in his or her home, helping an unaccompanied child seek asylum, helping someone fight a consumer scam, or ensuring that an individual charged with a crime can mount a strong defense.”
This is according to the White House Briefing Room statement released on October 29, 2021, that the Biden Administration would be continuing its work to expand Access to Justice.
One of the recommendations of the Justice for All report is for investment in justice systems and institutions that work for people and that are equipped to respond to their need for justice. This includes the provision of open access to justice data, a supportive regulatory environment for innovation, the development of a national roadmap for financing justice for all, and the implementation of new governance models.
This guest blog lends insight into the many, diverse legal needs in the US that require innovative solutions. HiiL partnered with the Institute for the Advancement of the American Legal System (IAALS) in the ‘Justice Needs and Satisfaction in the United States of America 2021’ survey. Amongst other questions, respondents were asked: What problems do American people face in accessing justice on a national scale? How do they seek to solve them and what works in securing fair resolutions?
The survey is a first of its kind, comprehensive study that maps out the legal problems people across the US encounter in their everyday lives. The findings can go a long way in supporting the Biden Administration to provide access to (people-centered) justice.
By Dr. Martin Gramatikov (HiiL)
Two out of three Americans have to deal with one or more serious legal problems every four years. The recently launched access to justice study by HiiL and IAALS shows that the most frequently occurring issues for which people in the US need protection from the law are consumer problems, personal injuries and damage to property, work and employment issues, crimes, and housing problems. On average, Americans have to deal with 4.6 legal problems, every four years. The most burdensome categories of these legal problems (problems that are both prevalent and impactful) are:
- Domestic violence and abuse
- Family problems
- Land problems
- Work and employment problems
- Problems with the police
Compared to other countries, the proportion of people who encountered legal issues is somewhat on the higher side, as can be seen on HiiL’s Justice Dashboard. But access to justice is not about how many problems occur — it is about how the justice system(s) transform needs into resolution of problems and fair outcomes. Almost half (49%) of the legal problems in the US are considered resolved. The other half (22%) are either in a process of resolution or are considered abandoned (29%).
What does this mean? The access to justice crisis in the US is really not about getting access to the formal legal system, it is about access to fair resolution and the ability for people to resolve and prevent their justice problems. Generalized towards all adult Americans, the study results show that there are around 120 million unresolved legal problems. Every year. That is the gap between the justice people want and need and the justice they are able to get.
What is concerning is that the more aggravated problems are more likely to remain unsolved. Moreover, resolutions are not equally distributed. Poorer Americans resolve fewer problems compared to richer Americans. This illustrates the disconnect between people and the institutions that are supposed to serve them and will undoubtedly contribute to a sense of unfairness, exclusion, and decreasing trust. Unresolved legal problems are a burden on people but also on communities and society. Negative emotions, and loss of money and time are often consequences of legal problems. What we see in the results is also a significant impact on mental health. It is not difficult to see how legal problems torment people and lead to anxiety, and even more serious forms of mental health issues. According to the Justice for All report, around a third of people with a justice problem are likely to experience a physical or mental health problem. The link between legal problems and mental health urgently needs to be better understood and addressed.
The legal problems in the US are very diverse. Many of these problems perhaps did not exist 100 years ago. Many are the result of the ever more complex networks of relationships between individuals, companies, and various forms of governments. Professor Gillian Hadfield calls this “law-thick world”. As new legal problems emerge from new products, relationships, and regulations we see that the landscape of justice journeys changes. Perhaps the next waves of similar studies will detect issues caused by discriminating AI mechanisms or identity issues arising in smart contracts stored and run on blockchain applications.
The formal justice journey, such as “problem-lawyer-court”, are not very common practice, according to the survey. What the data reveals are many fuzzy and non-linear paths that people may take for a variety of reasons. As Prof. Marc Galanther put it, “justice [takes place] in many rooms,” not only in courtrooms. Americans use courts and lawyers to resolve problems. They go to lawyers for legal advice. But there are many other paths to justice. To resolve their justice problems, Americans go to a diverse and dynamic group of helpers — lawyers, friends, insurance companies, police, courts, local authorities, health care and mental health professionals, and many others. The landscape of justice is changing and one size does not fit all. Interestingly, the services of unusual helpers such as health care and mental health professionals are appreciated as procedurally fairer and delivering better results, compared to conventional justice actors such as courts, police, and lawyers.
Advice is another area of “expected surprise”. When confronted with a legal issue many Americans would Google it. Internet is used as a starting point to resolve both more and less serious legal problems. Advice from a lawyer is the second option. Americans are online seeking responses to their legal needs. But the answers are often not online.
This diversity means that the formal and informal justice systems in the US face a colossal amount of changing legal problems. For the sake of social cohesion, accessible, efficient, and fair justice journeys are needed. If people do not have the ability to prevent and resolve their justice problems, they effectively do not have access to justice.
Where to look for such solutions? More courts, lawyers, and law enforcement agents? The traditional approach of norms and institutions will not work. The report calls for a radical shift in the paradigm of justice. From a centralized state-based system with defined and rigid justice journeys, the US needs a matrix-like eco-system of rules, providers, and services. The solutions of this eco-system should be based on evidence about people’s needs. Evidence has to be transformed into designs for people-centered justice services, and effective and fair solutions. This is the basic premise of the report recommendations: the US access to justice crisis requires bold moves towards people-centered justice.
We hope the study will add to the existing momentum, and lead to concrete action and results