ABSTRACT
Over the last several decades, a rising tide of high-stakes but small-scale cases has come to dominate American court dockets: debt collections, evictions, home foreclosures, and child support enforcement actions, among others. In this Essay, we ask: How did we get here? How can it be that the majority of civil cases in American courts pit represented parties against unrepresented ones? What can explain the stunning fact that the modal case in all of American law-dom is a debt collection action? Has it always been this way – and, if not, what has precipitated the current access to justice (A2J) crisis?
Parsing the best available evidence, we conclude that the current crisis is real – although not entirely new. For nearly a century, observers have lamented the public’s ‘unfilled need for legal services’. Yet today’s crisis does not merely continue that familiar refrain. To the contrary, and though data are fragmentary, the current season of the access-to-justice crisis is likely different in kind than its predecessors, and it is almost certainly different in scale.
Recognizing that we are, in fact, in a new era, we interrogate what caused this current crisis. We begin with explanations that, though oft-articulated, likely miss the mark. These include declining legal aid funding, the shrinking of ‘PeopleLaw’, growing rights consciousness, and the desire of plucky and lawyer-skeptical individuals to go it alone. In their stead, we offer two more plausible culprits. First, we note that, while poverty rates have held mostly steady, economic insecurity has not, creating a new mass of Americans who are not quite poor but are ‘poverty eligible’ – unable to weather any nontrivial shock to their finances. When they are hit by bills they can’t pay (often after a hospital visit they didn’t expect), debt collections and evictions frequently follow. Second, we lay significant blame on what we call technology’s ‘affordances and asymmetries’. New technologies have supercharged the capacities of large institutional actors but, for a variety of reasons, these same tools remain out of individuals’ reach.
After identifying the roots of the current A2J crisis, we address implications. Among them is the insight that the everyday realities of the American civil justice system have shifted out from under the foundational assumptions, procedural frameworks, and formal commitment to adversarialism upon which it was built. The challenge of today’s A2J crisis, then, is not just its magnitude. It is that the crisis has generated a profound institutional mismatch between what our courts were designed to do and what they are, in fact, doing. This fact, in turn, raises difficult questions that any mature reform movement must face about which among a growing menu of proposed solutions are likely to be both effective and achievable.
Engstrom, Nora Freeman and Engstrom, David Freeman, The Making of the A2J Crisis (May 4, 2024), Stanford Law Review Online, volume 75, no 146, 2024; Stanford Public Law Working Paper Forthcoming.
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