Access to justice: some historical comments.

• Author: Friedman, Lawrence M.
• Position: 2008 ABA Section of Litigation Access to Justice Symposium

This is a symposium on access to justice, a symposium with contributions from quite a few distinguished experts. Here, at the outset of the conference, I want to set out some modest preliminary thoughts on what "access to justice" might mean, and comment on how access to justice has fared historically.

We have to begin with some attempt to explain what we are talking about. What do we mean by "access to justice"? In order to answer that question, we have to ask some other, more basic, questions: who is supposed to have access; to what; and for what purpose?

Today, when people talk about "access to justice," it seems to me that they have a particular image in mind. They are thinking of a person, or an organization, with some sort of legitimate claim or complaint. The question is whether there is a realistic and practical way of turning this claim into reality, and of pursuing this complaint. For criminal defendants, the claim is to a fair and honest trial or some similar proceeding. Another aspect-and an important one--is access to information. In England, there are advice bureaus that inform people about their legal rights. In this country, more and more, the web serves up information that is often quite rich and accurate.

We can ask, also, what is the "justice" we are referring to in the phrase "access to justice?" Does it mean the formal judicial system, so that siphoning off cases or shunting them into other arenas is arguably a denial of access to justice? Most people would not accept this position. There is no need to equate justice solely within the formal judicial system. There are many other methods of resolving disputes--arbitration, mediation, and so on--which may work better, and even more justly, than resorting to the formal court system. These alternatives are not necessarily a good thing. Mandatory arbitration, as we all know, can be, and has been, criticized on a number of grounds. Access to this kind of alternative way of settling a dispute would not be access to justice, at least in certain circumstances.

So far, we have talked about access to justice in basically procedural terms. But the phrase can also mean something quite different. "Justice" might refer not to an institution or a process, but to a concrete result--that is, "justice" in the sense of a fair outcome, or getting one's due. The Supreme Court of the United States has suggested that it is valid (constitutionally speaking) to execute an innocent man, as long as he has had a fair trial. (1) I suspect most ordinary people, as long as legal training has not mangled their minds, would find this both bizarre and revolting. Justice to most of us is, above all, an outcome.

The people who work to improve access to justice are usually concerned about the problems of specific people or groups. They are thinking about the poor, or the middle class, or both. They are thinking about a miscellaneous collection of downtrodden, unpopular, or marginal people--whether they are Gypsies, convicted criminals, aliens, high school students, or members of unpopular religious sects. Thus, the ideal program of activists who want to increase access to justice would be to empower those individuals and groups who are somehow prevented from getting their just deserts.

Improving access to justice can be, in short, a procedural or an institutional issue; and, at the same time, a substantive issue. It is also very much a matter of economics. Justice can be expensive. If justice is too expensive, it has to be subsidized. This is the essence of the famous Gideon case, which is discussed below. The ideal system of justice would be cheap and convenient, open to the claims of the underdogs, and would give participants, within reason, what they want--provided that what they want is what society agrees they ought to have. Cheapness and convenience, while obviously important, are hollow and meaningless without a working system of relevant rights. We can give people, for example, the right to a hearing, a free lawyer, and all the rest, but if the legal rules and practices are dead set against our man, due process is not much help.

This is not idle conjecture. In the history of legal systems, cheap and convenient courts have not been rare. In fact, it is the modern, formal, slow, and expensive systems that are exceptional. Tribal justice is quick and cheap. Anthropologists have studied quite a few native systems of dispute resolution and have never reported on instances where it takes two years to hear a case. Justice among these people is usually what Max Weber called khadi justice--the informal folk-justice of the wise man sitting under a tree. (2) Historically, justice has usually been speedy and inexpensive.

We do not have to visit tribes in the South Seas, or in the Amazon jungle, to find this kind of justice or something like it. The rich, full records of American colonial courts also document a system that was cheap, quick, and within everyone's reach. In the tiny towns of New England in the seventeenth century, local courts were extremely accessible--and not only accessible, but accessed in fact. One could almost compile an accurate census of a given town just by listing the people who appeared in court records during a particular year. Practically all adults came to court, or were dragged into court, at one point in time for some purpose. For the nineteenth century, one might also mention the courts of frontier communities, or Alan Steinberg's study of the courts of Philadelphia, (3) or, for that matter, municipal courts, police courts, and justice courts almost everywhere--all of these tended to be examples of cheap and accessible legal systems.

One could also mention small claims courts. The idea behind the creation of these courts was to open the courthouse doors to the little guy. Small claims courts were supposed to dispense simple, modest justice, without lawyers and the hassle of formal procedures. The little guy was indeed present in these courts, but more often as defendant rather than as plaintiff. Small claims courts often acted as glorified collection agencies: companies valued them as a cheap way to collect debts; collection agencies often appeared and filed suit. (4) This situation, while a key function of the courts, was not at all the goal of crusaders for access to justice. These courts, however, were frequently useful to consumers in disputed cases. (5)

Access to justice is not just a matter of courts in the basement of the house of justice. Many legal developments in the late twentieth century had a real impact on access to justice. Laws were passed that opened the way into the legal system for the underdogs, or the lawyers who represented them. Civil rights laws are a striking example. These laws came about because of massive social change, aided and abetted by strong social movements, including the civil rights movement, the feminist movement, and many other movements demanding rights for aliens, illegitimate children, students, prisoners, sexual minorities, Native Americans, elderly people, and handicapped people. The main outlines of this development are familiar to everyone. Also worth noting here is the so-called liability explosion in the law of torts...