Access to justice in a world of expanding social capability.

• Author: Galanter, Marc
• Position: 2008 ABA Section of Litigation Access to Justice Symposium

1. Access to Justice and its Companions II. The Expanding Frontiers of Access to Justice I. ACCESS TO JUSTICE AND ITS COMPANIONS

   The phrase "Access to Justice" acquired its current meaning in the late 1970s. Earlier it had referred to access to the government's judicial institutions. (1) In post-World War II legal discourse, it occasionally appears as a description of the goal and benefit of legal aid, or of the means to equality before the law. (2) In the late 1970s, however, the phrase acquired a new and broader meaning: the ability to avail oneself of the various institutions, governmental and non-governmental, judicial and non-judicial, in which a claimant might pursue justice. (3)

   This vision of justice in many modalities and diverse institutional settings crystallized with the flourishing of the Florence Access to Justice Project. This project was sponsored by the Ford Foundation, the Italian Research Council ("CNR"), and the Italian Ministry of Education, under the direction of Mauro Cappelletti, a scholar of vast imagination and entrepreneurial energy. The work of the Florence project is embodied in the massive multi-volume series Access to Justice, published in 1978 and 19794 and in a small library of satellite volumes and law review articles. (5)

   Building on programs and experiments in many locations, the Florence Project codified a broadened notion of access beyond representation by lawyers and beyond courts as the site of justice-seeking. Looking back at the end of the decade, Cappelletti himself saw the development of the Access to Justice notion as comprising three "waves" exemplified by a series of institutional developments particularly marked in the United States:

   The first wave, beginning in 1965 with the Office of Economic Opportunity's neighborhood law firms program, involved the reform of institutions for delivering legal services to the poor. The second wave sought to extend representation to "diffuse interests" such as those of consumers and environmentalists: it commenced in the United States with the development of foundation-supported "public interest law firms" in the 1970s. The third wave followed in the 1970s with a shift in focus to dispute-processing institutions in general, rather than simply on institutions of legal representation; less formal alternatives to courts and court procedures ... emerged in bold relief.... (6) Access to Justice did not arrive on the legal scene unaccompanied. It was one of a set of intellectual triplets that appeared in the 1970s. Its siblings were the dispute perspective in legal studies and the Alternative Dispute Resolution ("ADR") movement. At their start, the three infants were very close, almost inseparable, but as they grew they experienced a kind of big bang sending them in different directions. As they retreated from one another, they were adopted by different parents and matured in very different environments with different companions.

   These triplets were the progeny, born late in life, of a remarkable movement of expansion of accountability and remedy fostered by courts and legislatures in the years between the end of World War II and the mid-1970s. An enlargement of remedies, an expansion of standing, abolition of old immunities, and the promotion of civil rights provided ordinary people with new occasions for using the courts and a greater likelihood of success when they did. (7) Programs for affording legal representation to poor and unrepresented groups proliferated. (8) An increasing number of legal professionals viewed such expansion as the test of professional achievement. (9)

   The first of the triplets to gain prominence was the dispute perspective in legal studies. I refer to a body of work that holds that the study of law should focus on the construction of disputes as well as on rules and courts. (10) This perspective envisioned adjudication in courts as only one of the various ways that society dealt with disputes--and a relatively infrequent one at that. The central intellectual construct of the dispute perspective was the dispute pyramid--the notion that any sector of the legal world can be envisioned as a, pyramid in which a base of troubles or injuries underlies a layer of perceived injuries, which leads in turn to successively smaller layers of grievances (injuries for which some human actor is viewed as responsible), claims, and disputes. A portion of these disputes are brought to lawyers and courts; successively smaller portions are the subject of trials, appeals, and published judicial opinions. (11) In one of the classics of the dispute literature, William L.F. Felstiner, Richard L. Abel, and Austin Sarat show how the lower layers of the pyramid are constructed: by naming (the recognition and identification of an injury); blaming (the identification of a human agent responsible for that injury); and, finally, claiming (the pursuit of a claim against that party). (12)

   The dispute perspective provided a theoretical structure for depicting the range of access concerns and a powerful stimulus for the broadening of the access agenda. The pyramid model pointed to multiple possibilities of disconnection at every stage of the construction of adjudication. An injured party might fail to perceive injury, or might fail to attribute it to a human agency. Ignorance, intimidation, or cost barriers might inhibit a party from making a claim, pursuing a dispute, or obtaining legal help. Further, lack of resources and staying power might undermine effective use of the courts. Accordingly, Access to Justice was visualized as encompassing all of these linkages.

   The dispute perspective provides not only a taxonomy of access chokepoints but also the basis for critical assessment of legal arrangements. The dispute pyramid is useful for analyzing systems, like our own, in which much more is promised than delivered. Indeed, the legal systems of (most?) modern democracies are designed in a way that if everyone with a legitimate claim invoked them, the system would collapse. The viability of such systems depends on: (a) the efficacy of "general effects," i.e., exerting control though communication of information rather than actual enforcement; (13) (b) the availability of informal proxies for legal action; (14) and, finally, (c) the apathy, ignorance, cultural and cost barriers that inhibit the assertion of legal rights. Such systems are inherently tokenist and symbolic--rules are there to be celebrated and cherished, not to be applied in every instance that they presumptively cover. Real steak, or something approximating it, is served to those who can make the matching investments required for successful legal action; most others must content themselves with some combination of real hamburger and symbolic sizzle.

   Informed by the dispute perspective, Access to Justice implies a rich agenda of reform. The same dispute perspective, however, warns us that the most visible and dramatic reforms may do little or nothing to reduce the disparity between proficient repeat users of the system and one-shotters. Felstiner, Abel, and Sarat point out that because of the vast disparities at the earlier stages, where injurious experiences are transformed into claims and disputes, programs that focus on promoting Access to Justice in the upper reaches of the pyramid (typically by facilitating the transformation of disputes into lawsuits) "may accentuate the effects of inequality at the earlier, less visible stages, where it is harder to detect, diagnose, and correct." (15)

   Access to Justice gained respectability and institutional presence very rapidly. By 1978, while the Florence project was still at work, Access to Justice was the "official theme" of the American Bar Association. (16) Since then, Access to Justice has become an accepted corner of the legal world, inscribed in scholarly and practitioner publications and programs. For example, the Index to Legal Periodicals lists 443 books and periodical articles with "access to justice" in their titles, all but two since 1976. (17) Access to Justice has become a program of foundations of non-governmental organizations (NGOs), bar groups, governments--in both domestic policy as well as in their foreign aid operations (e.g., the United States Agency for International Development, the United Kingdom's Department for International Development)--and international organizations (e.g., the United Nations...