Document Type

Article

Publication Date

2015

Status

Accepted

Abstract

A crisis in civil justice has seized the lowest rungs of state court where the great majority of American justice is meted out. Nineteen million civil cases are filed each year in the so-called “poor people’s court,” and seventy to ninety-eight percent of those matters involve an unrepresented litigant who is typically low-income and often a member of a vulnerable population. This Article challenges the predominant scholarly view in favor of “supply side” remedies for improving access to justice—that is, remedies focused exclusively on supplying counsel to litigants, either through adoption of “civil Gideon,” a universal civil right to counsel, or through the provision of “unbundled,” or limited, legal services—arguing that such an approach is practically and conceptually unworkable. Courts and legislatures have rejected attempts to expand a civil right to counsel and initial data suggests that the delivery of limited legal services produces anemic, if any, improvements in substantive fairness for the unrepresented.
This Article sets forth a vision of “demand side” procedural and judicial reform as an alternative, or complementary, theory of civil justice. Demand side reform would charge courts, rather than parties, with the duty to advance cases and develop legally relevant narratives, thereby focusing on institutional change that would strengthen due process for the great majority of litigants in the American justice system. This proposal builds upon the Supreme Court’s recent holding in Turner v. Rogers that “alternative procedural safeguards” must be implemented to ensure due process for civil contemnors, and offers unrepresented litigants a viable mechanism for dispute resolution that—unlike the supply side approach—does not perpetuate court processes requiring party initiative and expertise.

GW Paper Series

GWU Law School Public Law Research Paper No. 2015-21; GWU Legal Studies Research Paper No. 2015-21

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