Demand Side Justice

Georgetown Journal on Poverty Law and Policy

Volume XXVIII, Number 3, Spring 2021

411

Demand Side Justice

Alissa Rubin Gomez*

The civil justice gap is well-known, well-documented, and widening.

Although judges, practitioners, and scholars have attempted for more than fifty

years to increase the supply of civil legal services available to those in need,

demand continues to dramatically outstrip supply. This article argues that given

the static (or worsening) state of the civil justice gap, and the millions of

Americans who do not even seek legal help for problems that otherwise might fall

within that gap, legal literacy is paramount. The public health profession uses

health literacy to help prevent health problems and temper demand for health

services, and in fact, high levels of health literacy lead to fewer emergency room

visits and better health outcomes. Health literacy is regularly included in public

K-12 education. This article contends that the legal profession should try a

similar approach for legal literacy. Legal literacy has the potential to prevent

justice problems from needing formal legal intervention. It also can empower

individuals to take advantage of existing legal protections on their own or make

informed decisions regardless of the ultimate outcome. Increased legal literacy

might also mean that Americans come to legal aid organizations before problems

are too far gone and with more realistic expectations about results and remedies.

After decades of chasing after supply-side solutions, it is time to look at demand.

I. INTRODUCTION ............................................................................................... 412

II. THE JUSTICE GAP: SUPPLY AND DEMAND ..................................................... 415

A. Expressed Demand .................................................................................... 415

B. Unexpressed Demand ............................................................................... 418

III. HEALTH LITERACY: A POTENTIAL BLUEPRINT............................................ 420

A. The Effects of Low Health Literacy ........................................................... 421

B. Teaching Health Literacy .......................................................................... 423

1. Standards and Recommendations .......................................................... 424

* Alissa Rubin Gomez is a Clinical Assistant Professor at University of Houston Law Center. Before

joining the legal academy, Professor Gomez served for six years as Executive Director of Houston

Volunteer Lawyers, the pro bono legal aid arm of the Houston Bar Association. Prior to that, she was a

commercial litigation associate and then partner at King & Spalding LLP. Professor Gomez offers special

thanks to colleagues Dave Fagundes, Sapna Kumar, Sarah Morath, James Nelson, Irene Ten Cate, Kellen

Zale, and law student Stuart Cobb, as well as the participants of the AALS New Voices in Poverty Law

workshop and members of the AALS Pro Bono and Public Service Opportunities Section – especially

Russell Engler, Kelli Neptune, Sue Schechter, and Eliza Vorenberg, for helpful comments. Professor

Gomez also deeply thanks her husband, parents and mother-in-law, who helped make writing this article

possible in the middle of a global pandemic with two small children afoot. © 2021, Alissa Rubin Gomez.

412 The Georgetown Journal on Poverty Law & Policy [Vol. XXVIII

2. Effective Implementation ...................................................................... 425

IV. LEGAL LITERACY ......................................................................................... 427

A. What is Legal Literacy? ............................................................................ 427

B. Teaching Legal Literacy ........................................................................... 429

1. Civics ..................................................................................................... 429

2. Law-Related Education ......................................................................... 432

V. LEGAL LITERACY AS PREVENTION ................................................................ 434

VI. CONCLUSION ................................................................................................ 437

I. INTRODUCTION

“The advancement and diffusion of knowledge is the only guardian of true

liberty.”

–James Madison

The civil justice gap is “the difference between the civil legal needs of low-

income Americans and the resources available to meet those needs.”1 The Legal

Services Corporation (LSC) started tracking the justice gap nearly twenty years

ago, and unfortunately, the finding then – that for every qualified legal aid

applicant, another is turned away – has not changed.2 There simply are neither

sufficient resources to serve those in need nor particularly efficient legal service

delivery systems thanks to heavy restrictions placed on legal aid funding and the

sheer complexity and diversity of the fifty-one legal systems in which low-income

persons may find themselves.3

Since the 1960s, many articles, and countless more national, state, and local

judicial and bar association task forces, non-profits, and private philanthropy have

devoted themselves to increasing the supply of legal services to try to narrow the

justice gap.4 Supply-side solutions have included increased legal aid, pro bono,

1. LEGAL SERVS. CORP., THE JUSTICE GAP: MEASURING THE UNMET CIVIL LEGAL NEEDS OF LOW-

INCOME AMERICANS 6 (2017), https://www.lsc.gov/media-center/publications/2017-justice-gap-report

[hereinafter 2017 JUSTICE GAP REPORT].

2. See infra Part II.

3. See, e.g., Liza Q. Wirtz, The Ethical Bar and the LSC: Wrestling with Restrictions on Federally

Funded Legal Services, 59 VAND. L. REV. 971, 972–74 (2006) (describing the increasingly draconian

restrictions and regulations governing LSC grantees as compounding the access to justice problem “… by

limiting the ways in which legal services can be offered to income-eligible persons and by eliminating from

eligibility entire groups of people who need help and would be entitled to it on income grounds.”).

4. “The past quarter century has spawned a cottage industry of recommendations by commissions,

conferences, committees, and task forces. But what has not emerged is any consensus around manageable

reforms or a substantial constituency demanding them.” Deborah L. Rhode, Access to Justice, 69

FORDHAM L. REV. 1785, 1815 (2001). See also Elizabeth Chambliss et. al., Introduction: What We Know

and Need to Know About the State of “Access to Justice” Research, 67 S.C. L. REV. 193, 199 (2016)

(“Incumbent providers–many of whom have spent their careers leveraging scarce legal resources in the