Tyler Hubbard, Justice Deno Himonas, Rebecca L. Sandefur, and Jim Sandman
Mark Woodbury recently published an article in the Utah Bar Journal entitled “Response to Narrowing the Access-to-Justice Gap by Reimagining Regulation,” which we’ll refer to here as the Response. Mark Woodbury, Response to Narrowing the Access-to-Justice Gap by Reimagining Regulation, 33 UTAH B.J. 30 (Sep./Oct. 2020). In this article, we address some of the concerns raised in the Response, and then we take the opportunity to share further research about the access-to-justice gap, which the Response does not address.
The Legal Services Corporation Report
According to the Response, “the data sets cited by [Narrowing the Access-to-Justice Gap by Reimagining Regulation] do not support the conclusion that we have an access-to-justice problem.” Id. at 30 (citing Utah Work Grp. on Regulatory Reform, Narrowing the Access-to-Justice Gap by Reimagining Regulation (2019)). Narrowing the Access-to-Justice Gap by Reimagining Regulation (the Work Group’s Report) relied on a 2017 report by the Legal Services Corporation (LSC) for the following proposition: “An astonishing ‘86% of the civil legal problems reported by low-income Americans in [2016–17] received inadequate or no legal help.’” Utah Work Grp. on Regulatory Reform, Narrowing the Access-to-Justice Gap by Reimagining Regulation 1 (2019) (citing Legal Servs. Corp., The Justice Gap: Measuring the Unmet Civil Legal Needs of Low-Income Americans (2017)). Here, we explain the Legal Services Corp (LSC) report; it convincingly shows that the United States has an access-to-justice problem.1
The LSC’s 2017 report, The Justice Gap: Measuring the Unmet Civil Legal Needs of Low-Income Americans, was based on two rigorous studies and relied on data analyses conducted at the University of Chicago by the National Opinion Research Center (NORC), an independent, objective, and highly respected research organization.
First, NORC conducted a national survey of the civil legal needs of 2,028 adults living in low-income households in the United States. “Low income” was defined as households at or below 125% of the Federal Poverty Level (FPL), which is the cut-off for eligibility at an LSC-funded legal aid program. In 2017, when the survey was conducted, 125% of the FPL was an income of $15,175 for an individual and $31,375 for a family of four. The survey inquired about a variety of experiences that give rise to civil legal needs and asked respondents whether and how they sought help in dealing with those situations.
Second, the 133 legal aid programs that LSC funds across the United States conducted an “intake census” of people who sought assistance over a six-week period in March and April of 2017. The census tracked whether the applicants were eligible for service and, if so, what level of service, if any, they received.
Both components of the study showed that the market for legal services is dysfunctional. It is simply not serving the needs of low-income people adequately. For example, the intake census, which the Response does not address, showed that 41% of the civil legal problems for which people sought assistance at LSC-funded legal aid programs received no help of any kind. And these people were just a subset of those who have civil legal needs: they were people who were financially eligible for service, who self-identified their problem as a legal problem, who knew where to go for help, and who were able to visit or otherwise contact a legal aid office and complete the application process. Many additional people with legal needs exceed the very low-income eligibility cap for legal aid (but cannot afford to pay for legal services), do not self-identify their problem as legal, do not know where to go for help, or are unable to access or complete the application process – and none of them were captured in the intake census.
The NORC survey certainly did not show, as the Response claims, that people do not get help with civil legal problems “because they don’t really want it.” Instead, the survey showed that the process of getting legal assistance is confusing, complicated, and opaque. The NORC survey and other studies show that a major reason people do not seek legal assistance is because they do not self-identify their problem as a legal problem. The survey also showed that people who do recognize their problem as legal often do not know where to turn for help. By a small margin, the most common reason cited for not seeking legal assistance, cited 24% of the time, is that the person with the problem decides to deal with it on their own. But the percentages of people not seeking help who report not knowing where to look (22%) or not being sure whether their problem is legal (20%) suggest that decisions to deal with...