← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Lawyers, Who Needs 'Em?
00:39:17
What the lack of legal representation in the civil courts can teach us about justice.
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- [00:06]
A
Instead of having everyone have their problem adjudicated by a judge or settled by two attorneys sitting in a room arguing with each other. So instead of defining justice by the process by which the result is achieved, what we should care about is the substance of the result that's achieved.
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B
Hi, and welcome back to Amicus, Slate's podcast about the courts and the law and the rule of law in the Supreme Court. I'm Dahlia Lithwick. I cover some of many of those things for Slate. And this week we are continuing our summer series on fascinating legal thinkers you may not yet be that familiar with. And on today's show, we wanted to tackle an issue that affects just about everybody and yet somehow troubles almost nobody. The issue is access to civil justice. Now, everybody knows about what happens to Americans who face criminal proceedings and the ways that their access to an attorney, to legal resources will implicate outcomes in ways that are shaped, of course, by race, by income, by class, by education. But if you are poor and you find yourself caught up in the civil justice system, where the outcome of cases are potentially catastrophically life changing. So we're talking about eviction or loss of custody of your children, or wage theft or loss of government or insurance benefits. In any of those cases, you are more than likely to have to face any of those without legal representation. In fact, one or more parties lack legal representation in more than three quarters of the cases filed in any state civil court today. And a 2017 report by the Legal Services Corporation revealed that the problem is actually getting worse. 86% of the civil legal problems reported by low income Americans received zero legal assistance. Our guest today is Rebecca Sandifer. She's a sociologist and researcher at the University of Illinois at Urbana Champaign. She's been working on issues of access to civil justice for decades. Her research tends to focus on inequality, particularly as it relates to the law. And in October, she was awarded a MacArthur Genius Grant for her work on the topic. She's also one of three guest editors of a terrific new volume on this topic of access to Civil justice that was published this past winter in Daedalus. That's the journal of the American Academy of Arts and Sciences. And it tackled these issues through a whole bunch of lenses. And one of the essays, Rebecca Sandifer's essay, is actually counterintuitive, to say the least. So we really wanted to have her on the show to tackle this massive problem. Rebecca Sandifer, welcome to Amicus.
- [02:49]
A
Thank you very much. It's great to be here.
- [02:51]
B
And have I set that up accurately? I feel like, it was a little bit of a breathless intro, but I also feel like you are dealing with something that is so leviathan in scale, and yet almost no Americans that I know, even in the legal world, talk about access to civil justice. Have I said anything initially that's not correct?
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A
No, everything you said is true, as far as we know. And I would add to the. The evidence about the massive nature of the challenge by saying that what's making it to the court system is the tip of a gigantic iceberg of civil justice experiences that Americans are having, most of which never make it to lawyers or to courts. And so if we use our best estimates of how many new civil justice problems Americans have every year, it's somewhere between 100 million and 150 million. So there's a tremendous amount of activity out there in people's lives, often concerning basic needs like safe housing or taking care of your kids or of an older relative being able to work and have a livelihood, sort of really core issues in people's lives. And most of it's not getting any kind of legal assistance.
- [04:02]
B
And so I think it's really important to make this initial distinction because we think about access to justice in the criminal system, right? And we think of law and order and we think of Gideon versus Wainwright, and we think, oh, well, the problem is solve because folks have a right to representation in the criminal system. But you're talking about the massive world of everyday issues that just has to do with a person who has to go to court for some workaday problem like custody or benefits or as you said, housing. This is not an area where anybody gets counsel. Right. We don't have a right to it, and they don't have it.
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A
There is no right to it. There is a. There are a group of legal aid lawyers who work on the civil side. Part of them are funded by the Legal Services Corporation, which is a granting agency that's funded by Congress. And some of them are funded from other sources. But even those offices turn away as many people as they help. There just isn't enough. I think there's one. There's one legal aid lawyer for every 6,000 people eligible for their services. So there just isn't enough to close that gap. If you're thinking about providing lawyers to everybody who might need one.
- [05:16]
B
And I want to go back and ask you the question I should have asked as a table setting matter, which is tell us a little bit about your own background, because you come to this by way of sociology and data and not by way of kind of grand constitutional theory, right?
- [05:34]
A
That's right. I'm a sociologist, I'm not a lawyer. And I study sort of access to justice from two sides. So one is how ordinary people think about, understand, handle, and are affected by their civil justice problems. And then I study different kinds of solutions. Traditional solutions, like lawyers pro bono, but also emerging solutions like people who are not lawyers, or different kinds of technologies for assisting people with this gigantic number of problems that currently receive no assistance.
- [06:03]
B
So I'm remembering that we had maybe a year ago, we had Becca Heller on the show, and she's one of the. Yeah, and she's one of the founders of irap and they give legal representation to refugees. And one of the things she said that struck me between the eyes is that if you put a lawyer in a room with a refugee, the odds of them prevailing in whatever system they're in skyrocket. Is that true? In the civil legal system in this country, if you put a lawyer next to somebody in, say, an eviction proceeding or some kind of child support proceeding, do the odds of them doing better in court just go through the roof?
- [06:45]
A
So the answer to that is actually, it depends. A few years ago, I did what's called a meta analysis, which is a study of studies. So you take all the studies about the thing that you care about and you try to put them together and figure out why lawyers make a big difference sometimes and a small difference other times. And so if you look across those studies, one thing you see is that sometimes lawyers do better than people on their own, but sometimes lawyers get too lawyerly. And if the forum is not so interested in that kind of stuff, if it's a more problem solving space, then having a lawyer can actually be a disadvantage advantage. It's also the case that if you compare lawyers to things that are not lawyers but are assisting people. So there are immigration advocates who are permitted to practice in immigration courts. There are a range of benefit settings where somebody who's not a lawyer can't help you. Sometimes that kind of person can be just as beneficial to a Lydian as a lawyer can. But yes, overall, on average, you're better off if you have help than if you have no help.
- [07:39]
B
And you describe in your article even divorce kits, you know, the sort of online get your own divorce, fill out this paperwork, can sometimes be a lot more successful than having an attorney by your side. Right. It suggests to me that this is. It's a problem that can be solved by information and technology almost as much as it can be solved by more Attorneys.
- [08:03]
A
I think lots of the justice problems that ordinary people experience could benefit a lot from things that are not full court press of a lawyer representing them. But there are certainly cases where there are complex legal issues involved in the matter, and then you want someone who has really complex legal expertise. But that' sy we can't say with authority what proportion of justice problems that is, but it's certainly not all of them by any means.
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B
So you mentioned that there's just a massive lack in legal aid lawyers and other attorneys that could offer pro bono services. What are the other barriers? I know that, for instance, and I think I've heard you speak about this, but just language, access to the English language is a barrier for people trying to get justice in the civil system. And obviously money is another. But what are the big barriers that you found in your research that raise the possibility that someone's going to get less than justice in the civil courts?
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A
So when I started down this road of trying to understand how ordinary people handle their justice problems, I thought what I think everybody thought, which was, well, it's really about money. And so it's the ability to pay for the court fee or to pay for the attorney or to the opportunity costs of not being able to go to work. And that people are making these kind of rational calculations, mostly about money, about what to do. And it turns out money certainly plays a role, but it plays a role way down the road. So if you ask people who didn't get any help with a civil justice problem, why didn't you get any help? Cost is maybe the fifth or sixth most important reason. But the common answers that people will give you is either it wouldn't make any difference or I already know what to do anyways. Thanks. So people, for the most part, are pretty confident that they understand the situations that they confront and that they know what to do about them. And sometimes they're right, and sometimes they're disastrously wrong. But the other thing you see when you ask people, okay, what kind of situation do you have? So, for example, you've told me you work in a wage, an hour job, and your employer's not paying you overtime. So the legal situation is wage theft. But do you think it's a legal situation or some other kind of situation? The most common way that people describe their civil justice problems is as either bad luck or God's will for me. So these are things that just happen. They're just part of my life, or they're supposed to be part of my life. It's only for about 9 or 12% of justice problems that people will note the legal aspect of it. So part of, part of money is certainly a barrier at some point, but a big barrier is people's understanding of these problems as things that they could act on and that things that might benefit from some sort of legal action or legal intervention or legal advice.
- [11:01]
B
Well, that's intriguing. So, for instance, Link Kaplan has an essay in here about a woman who is evicted time and time again and in and out of shelters. And is the problem in, say, an eviction case that somebody just thinks I'm unlucky or the system is rigged? There's no. I'm hearing you say they don't even put this in the bucket of things for which they could get legal redress. And so the best thing is to just round up the kids and go to a shelter. That's a huge problem.
- [11:39]
A
Once something becomes a court case, people understand it's legal. So if I'm being sued for eviction and I know about it, or I'm being sued for debt and I know about it, and of course there are issues with notice and service and all that kind of stuff, then I tend to recognize that as a legal problem. People also recognize that getting divorced is a legal problem because we've set up a system where if you want to do it, you have to go through a court system to do it. So people will recognize the legal aspects there. But to go back to the housing example, people may not recognize that they've just experienced an informal, formal eviction and that that is, in fact, against the law. Right. Your landlord can't just come by and take all your stuff, put it in the. In the front yard and change the locks, but they do sometimes. Or people may not understand that if the landlord doesn't, you know, fix the hot water or make the roof stop leaking in almost every state in this country, that's actually a violation of the. Of what. What the landlord is required to do under the law. But people may not recognize that. They may just think, well, this guy is a jerk, or he's cheap, or it's because I did this other thing three weeks ago. I had that loud party and now he's punishing me. Right. So people have very. A wide range of understandings of the problems that they have. But that wide range tends not to think about law unless the thing has already become a court case.
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B
And how you connect those people to a court case is through. Through what? Through lawyers, through public education, through, I don't know, things on bulletin Boards that say your landlord can't put your stuff on the lawn. Like, how do you solve. That's an information gap.
- [13:15]
A
It's a massive information gap. And I think it has to be solved. It has to be solved by thinking about where people are and meeting them there. One of the things that I would love to see in the next few years are some changes. Targeted campaigns around specific issues that affect lots of people that we've made laws about because we care about them. And so I think wage theft is a great example of that. Like, we want people who work to get paid for the work that they do. And I think there are many people who don't recognize that that's a violation of the law and that there are remedies. And so you could imagine, you know, maybe there would be ads on buses, maybe there would be outreach to community organizations, maybe there would be TV ads if you. If you really wanted to go full bore on it. And it would educate people for some period of time, for a year or 18 months about a specific legal issue, and then you move on to the campaign for the next one, whatever that's going to be. And so the people who saw the advertising when they were having the problem would hopefully be better at making that connection. The most common place people go for assistance with justice problems is their family and friends. Friends. So if you can get that information into somebody's immediate social network, you can also sort of help them connect that problem to the idea that it's a problem that can be solved potentially using legal services.
- [14:31]
B
And is there any kind of stigma or fear that you encounter in your research where people just don't want to go to a lawyer, even if they know wage theft is illegal, Even if they know that the kinds of evictions you're describing are illegal, but they just don't want to have anything to do with the legal system. Another barrier that people have some sense that if they pick up the phone and call a lawyer, they're going to get swept into some kind of drama over a parking ticket that was unpaid 25 years ago. Or am I creating a problem that doesn't exist there?
- [15:06]
A
I think that's certainly true for some people, but it would require them to have had some kind of previous contact with a lawyer or have someone in their world to have had that kind of previous contact. And that's not most people. And it's not most situations. There's certainly situations about which people feel shame. There are also situations where people are kind of making this rational calculation. If I take a legal action, I will destroy the relationship that this problem is occurring in. Right. And they want to preserve that relationship more than they want to solve the problem using law. And I think sometimes that's absolutely the right decision for them to make. And sometimes we as a society, we would prefer that they take a formal legal action. Right now, the situation is that both the things that we prefer they take actions about and the things that we don't are all outside the justice system. And very few of them are receiving any kind of advice or assistance that would allow people to make that choice from a place of being informed.
- [16:04]
B
Rebecca, one of the essays in the Daedalus collection talks about all the ways in which you know you have a constitutional right to counsel in the criminal cases. After Gideon v. Wainwright In 1963, there's no analog, despite efforts to get the Supreme Court to recognize an analog in civil cases. But that there are some states that have come to recognize certain rights to counsel in the civil sphere. Can you talk about that a little bit?
- [16:32]
A
Sure. So a right is a very specific kind of thing. And the only place that I know that has said there is a right to counsel in a particular kind of situation situation would be New York City, which has access to counsel as a matter of right when a person beneath a certain income level is facing an eviction. There are lots of jurisdictions around the country that have decided as a matter of policy that you, for example, should not lose custody of your children permanently without having somebody to represent you who's legally qualified in those kinds of proceedings. There is movement around the country to create New York like models for giving people rights to counsel in situations like eviction or the loss of your child. I think if the essay you're thinking of is the one by Tanya Brito, she makes a really excellent point in there, which is that, okay, so you can create this right, but what matters is how's your you implement it. And so in New York City, that right kicks in after you filed your answer and when you show up in court for some kind of hearing. Now wouldn't it be awesome if that right kicked in when the problem started? Right. So when you received service of the eviction and then went to file your answer. So the answer in New York State is your response to the landlord's claim that you haven't paid the rent. And on that answer form, you have to raise any defenses that you will later use. Wouldn't it be great if you had somebody to help you think through those defenses when you were filling out that really important form. And in New York City, prior to the right to counsel, there were a number of programs that targeted that key moment in people's eviction claims. And they used people who weren't lawyers to take people through the form in a kind of systematic way to help them think about what the defenses that they had were. And people who were assisted by those people who were not lawyers raised twice as many defenses as people who received no assistance. So there's a lot of scope to put lawyers and people who are not lawyers together to create a kind of integrated service model that would expand the impact of that right that many people want folks to have. What I don't see, while I see some movement on the rights front, what I don't see is that kind of thinking about the implementation of the right.
- [18:59]
B
We had a sort of a boomlet in the 1970s, you know, with the Legal Services Corporation, in 1974 with Legal Aid, and this notion for a while that we should give the poor lawyers and someday we would have equal justice under the law. You're not a huge fan, I think, of that model in general, that we build up those sort of formal legal services and give everyone a lawyer. Your essay pushes back on that a little bit. Am I right?
- [19:38]
A
That's absolutely right. I mean, I think there are some situations where what you really need is somebody who has a fully qualified, fully licensed attorney assisting them. But there are many situations where somebody who is not a lawyer can provide really great assistance that can be very consequential. And I'll give you another example from New York City. So at the same time that there was that program, they called them navigators who were helping you fill out your answer form to your eviction. There was another program that was taking some of those cases and working them from that moment through their resolution and beyond. And they were also called navigators, these helpers. And they were trained social workers, and they had a little bit of instruction in, you know, what is the process of an eviction? What's the order of the steps? But they certainly weren't lawyers, and they hadn't received legal training. And so they would take your case, and then they would make sure that you showed up. They would go to everything in the courthouse that happened with you. So talking to your landlord attorney, talking to the judge, talking to the court attorney, talking to the clerk. And then they were empowered to answer factual questions addressed to them by judicial staff on your behalf. So they couldn't give you legal advice, they couldn't practice law. But if you're there and you're all stressed out and the judge needs to know if you have a receipt for the rent and you're too stressed out to answer that question. The navigator could say, yes. Mrs. So and so has the receipt for the rent. So they would do that stuff in court and then outside of court they would, because they're social workers, use their social work skills to connect people to benefits and services that they were eligible for but not receiving. That allowed those folks to then say to the court, listen, this is not going to happen again. I now have a reliable income stream because I'm getting my veterans benefits or whatever the situation might be, or I received financial counseling and now I understand how to budget better whatever that person might need. And so in the first year of that, that program, which was operating at a pilot scale, they had a zero percent eviction rate. That is nobody they assisted got booted out of their apartment. Now, would they have been able to work every case? Probably not. And when they found cases that had complex legal issues, they would refer them out to legal aid lawyers. But it's very good. That kind of pilot study and evaluation is very good proof of concept that you don't always need lawyers. Even once something becomes a court case. There are lots of other ways to provide assistance that is proportionate to the problem. And often that assistance is also actually cheaper, which allows you to help more people in an effective way.
- [22:16]
B
I want to take a moment to talk to you about our membership program, Slate Plus. If you are hearing me say this, then you're listening to the regular version of our show, which is awesome. Thank you. But if you were to sign up for Slate plus, you could enjoy this show commercial free, and you'll get access to bonus segments and extended versions of all your favorite Slate shows. It's only $35 for your first year and you can sign up for free for two weeks just to check it out first. And that's not all. It goes almost without saying that by signing up for Slate plus, you would be supporting this show and all the journalism that we do here at Slate. We know you value our work and our coverage. We know you value it now more than ever. And you know how urgent the work is right here, right now, today. We need your help to keep doing it. Sign up for Slate Plus Help secure Slate's future. To learn more and to begin your free two week trial, go to slate.com amicusplus we're back now with Rebecca Sandifer. She is a sociologist and researcher on questions of access to civil justice. So here's where I confess to you that before my foray into legal journalism, I worked at a divorce law firm for a couple years after law school. And my experience is exactly what you're describing, which is that it was about 87% social work, that there's some amount of it that was looking at forensic accounting reports and making judgments about income, but a huge amount of amount of it was just walking people through traumatic times in their lives. And I guess I should note parenthetically, that lawyers are extremely ill trained to do social work. So what you're describing is just a kind of a response to an American tendency to make everything a legal process. Right? Like we didn't have to put everything into the courts to get resolved. But that's what we think of as justice is having adjudicated in this fashion. And it almost seems like you're saying we need to remove whole chunks of civil processes that in an ideal platonic world, should be resolved by a neutral fact finder in a court of law with a judicial system, but that don't get resolved. Well, that way that justice can be better done by removing them from the court system altogether.
- [24:55]
A
I think sometimes that's true. The broader point I would make is that from my perspective, justice isn't about a process, it's about an outcome. And so the question is, is the way this. We've made rules about various things that happen in people's lives because we think they're important enough that we should all have a collective stake in how they turn out and what's possible to happen for them. So to go back to that eviction example, you know, we don't think your landlord should be able to throw all your stuff in the street and change the law, right? We think if your landlord wants you out, he or she should follow a particular process, and that process is defined in law. Similarly, if you think your child has a substance abuse problem or a mental illness and therefore can't take care of their children, you can't just go pick that kid up and take them home. Right? There are processes that you have to go through that allow you then to have the ability and the powers to. To take care of that child and make decisions for it. And whenever those kinds of issues are resolved in a way that's consistent with the rules that we've made, whether or not you go to a lawyer or through a formal court process, that's when you have legal justice, that's when you have lawful resolution. And so what we should be thinking about is not do we want another hundred million cases running through the courts? Because that would be unsustainable and really, really undesirable. Court processes are not appropriate for all of the things that we ask them to do. But are there ways that we can help to ensure that all of those problems that don't get to the court are somehow resolved within the bounds that we've set in our laws?
- [26:32]
B
So this brings us to lawyers who really do not come out shining in this deadless anthology. They kind of come across as just not great servants of the ideas of justice that you've put forth. And I wonder if you can talk. You've thought so much about the role of lawyers in our justice system. And I wonder if you. There's essays about. Maybe we have corporate funding for legal aid. Maybe we do a better job training lawyers in law school to be middlemen in the civil justice system. Maybe we have to throw more money at lawyers. Is the model of how most lawyers practice law in America, which is kind of the opposite of the Atticus Finch model of rushing out and doing justice in a country courthouse. Is the model just so fundamentally broken economically that lawyers are now part of the problem? And can they become part of the solution, in your view?
- [27:48]
A
They definitely can become part of the solution. I think that law is a. So it's an occupation that has the status of a profession and it controls the right to do certain kinds of work. And the story that the bar tells about itself is, well, okay, in exchange for controlling, driving a monopoly over this particular, particular work, we're going to do pro social things like pro bono, which is providing your services for free at a greatly reduced price. And that's good. And lawyers should certainly continue to do that. But I think one of the things you see in US Jurisdictions is the definition of the practice of law is the thing that lawyers do is way too restrictive. So, for example, in US Jurisdictions, pretty much in most situations, only lawyers can give legal advice. That is, only lawyers can say, it sounds to me like you just experienced an informal eviction. And what you should do is first send this kind of letter to your landlord and then file this kind of lawsuit at the courthouse. Right? So that said, so they can't. Nobody but an attorney in most situations can diagnose the legal nature of your problem and then give you advice about what to do about it. Okay, There are other countries where anybody can give legal advice, and one of those countries is the United Kingdom. So because anybody can give legal advice and has been able to for decades, there's actually this gigantic advice sector. So there are citizens advice bureaus which are publicly funded, but then there are sort of interest or population focused groups. So youth concern, age concern, immigrant focused groups. And they also can give legal advice to the populations that interact with them. Now I did a little comparison of how people solve their justice problems in the United States and in the uk. And in the UK at the time when I was looking at the evidence, they also had a very generous, in global terms, legal aid system for civil stuff. And it follows a model that sometimes people call judicare. So you can take your. Just like with Medicare, you take your voucher from the government and you give it to a private provider. In this case it's not a doctor, it's a lawyer. And so at the time I was looking at these data, 60% of the population was eligible for some subsidy of that type. So law was free for a lot of people. Even in that situation, people preferred to go to the advice service. They were much more likely to turn to advice than to free law. And I think that gives us some important insights into what it is. If lawyers were going to think about how to keep themselves right relevant, they would need to think about what it is that people want and the way that they understand their own situations. And American lawyers have been amazingly resilient to not thinking about that. There are some edgy, you know, there are some edgy and innovative lawyers who are working in small practices who are thinking about ways to deliver their services differently. There are things like LegalZim and Rocket League Lawyer that are trying to, that are platforms for lawyers to deliver their services in ways that make more sense to consumers. But overall, the profession is actually, it's very, very conservative. Even in the face of the economic downturn of 2008 of the. There are all these conversations about how one point, I think we have 1.3 million lawyers in this country. That's too many, right? Many of them are underemployed. Even in the face of that, the bar is just incredibly conservative for whatever reason.
- [31:08]
B
This is just a historical problem, right? It's not necessarily myopic self interest, greed. It's just historically in the United States, we've just had a vision that as you say, law is what lawyers do and this hegemonic control of both what the profession can do and also how many things happen under the ambit of the courts. That's all just a historic story about how the United States came up through this kind of hyper legal culture. Why is the UK more Expansive in its view of what could happen. It's not just greed.
- [31:56]
A
No, no, no, it's not. I think it has to do with exactly what you're describing, the ways in which those legal professions developed historically in the place of where they grew up. So there are countries like the United States where you have these really restrictive monopolies, and there are countries like the UK where you still have, you know, barristers and solicitors, control appearances in courts, but they don't control everything that we would think of as the practice of law here in the United States. But to your point about how this is sort of a historical legacy, people made choices and took actions that created that historical legacy, which means that people can make new choices and take different actions that change that landscape and make it easier for people to get assistance, make it easier for new kinds of providers to come in and new kinds of business models. And I think there's a little bit of movement in that. In the US Context, there are states that are sort of starting to think about how could we relax some of these rules a little bit? But it is, it's turning out to be a very slow process. Not, I think, because we have a hyper legal culture, but because lawyers think that everyone else in the world thinks like lawyers, when in fact they think like people, right? They see themselves as confronting problems that they want to solve, not experiencing due process and exercising their fundamental constitutional rights. And so until lawyers start to think differently, either because they're pressed to by market pressures or because they just start to think differently because they're innovative, creative thinkers or because they're trained differently in law schools, until that changes, then that change is not going to be led by the bar. If I were lawyers, I would be concerned that that change is going to be led by somebody else, right? So some legislature is going to get annoyed and say, okay, we're redefining the practice of law. And I think it would be in the interests of attorneys to try to get out ahead of that change and to think about it proactively, because I do think it's coming, even though it's much slower than I would have hoped.
- [33:55]
B
If you could wave a magic wand and put one thing into place. I know we talked about your signs on buses and massive public education about what is and isn't a legal issue, but if you could change one massive systemic wrong to improve this enormous, immense problem of access to civil legal justice, what would be your first order change?
- [34:26]
A
My first order change would be to change the way the practice of law is regulated. To open up the advice space and to open it up not just to social workers, but to for profit providers. And that would create this enormous area in which you could have. Have really cool innovations that you and I probably can't imagine right now, but would be perhaps delighted to see five years from now. It would just allow so much energy that's currently constrained to be released, and some of those ideas would be dumb ideas and some of them would be really good ideas. But until there's that space, nothing here can change.
- [35:01]
B
I'm going to turn you over to my intern today, Nate Ortner, who's read your article and researched this topic. And I think he has one last question for you, Rebecca, if you have a minute.
- [35:12]
A
Absolutely. So you said that people could benefit from the just resolution of legal problems. What do you mean by that? So I mean that instead of having everyone have their problem adjudicated by a judge or settled by two attorneys sitting in a room arguing with each other, so instead of defining justice by the process by which the result is achieved, what we should care about is the substance of the result that's achieved. So is the result lawful? Right. So if I'm evicted for not not paying my rent, have I actually not paid my rent? If I wanted to care for a grandchild whose parent I think can't care for it, is it really true? And am I a good carer? Right. Is the parent not a good parent? And I'm a better parent. And there are lots of ways to achieve that without going to formal law. But we still want those things to be resolved in ways that are consistent with that formal law. So it's the substance of what happens rather than the process through which that result is achieved?
- [36:08]
B
Achieved. And Rebecca, do you ever worry that the same sort of economic market forces that create inequitable access to justice would just replicate themselves in whatever system we. So even if we did away with this process based fetish we have now, and we say we're just going to give you justice, doesn't it just in the end because of the way markets work and the economy works, simply replicate the the same imbalances that we've described throughout this podcast?
- [36:45]
A
So as a researcher, I would say it's an empirical question whether the new systems we design would be as unequal as the current systems. Right. I mean, I think it depends on how you design them and what you do. You can design systems to equalize things, which means you're not going to treat everyone exactly the same. You're going to have ways of trying to get them at a level playing field. And so I think that's completely doable. But to your broader point about the relationship between law and inequality in markets, if you have capitalism in markets, you're going to have two things, a lot of inequality and poverty. And no legal system can change those things. Right. The legal system is an effect, in a sense, of those more fundamental systems of how we divide stuff up and give people opportunities to make a living and so on. And so you're absolutely right. Even the best redesign legal system could be much better than the one we have, but it's still going to be responsive to the major forces in society that all institutions are responsive to. There's no way to insulate law or any other institution from that stuff.
- [37:45]
B
Our guest today was Rebecca Sandifer. She's a sociologist and researcher at University of Illinois at Urbana Champaign. She has been working on issues of access to civil justice for decades, and she recently won a MacArthur Genius Fellowship for her work on the topic. She's one of three guest editors of a really important new volume on the topic published just this past winter in Daedalus, the journal of the American Academy of Arts and Sciences. Rebecca, thank you so much. This was immensely clarifying and helpful, and I feel like I want to have you on 20 million more times to answer all these questions that I am embarrassed to say we've neglected on this show for a long time. Thank you for being with us.
- [38:26]
A
Thank you for the opportunity.
- [38:28]
B
And that is a wrap for this episode of Amicus. Thank you so much for listening. If you want to get in touch, we love your mail. And our email is amicuslate.com youm can always find us@facebook.com Amicus Podcast. Today's show was produced by Sarah Burningham. Gabriel Roth is Editorial Director of Slate Podcasts and June Thomas is Senior Managing Producer, Producer of Slate Podcast. Today's show was also helped out by two fantastic new interns, Noah Lakovetsky and Nate Ortner. I couldn't have done the show without them. We'll be back with another episode of Amicus in two short weeks.