Race, Class, and Access to Civil Justice

• Author: Sara Sternberg Greene
• Position: Associate Professor, Duke University School of Law
• Pages: 1263-1321

Race, Class, and Access to Civil Justice Sara Sternberg Greene * ABSTRACT: Existing research indicates that members of poor and minority groups are less likely than their higher income counterparts to seek help when they experience a civil legal problem. Indeed, roughly three-quarters of the poor do not seek legal help when they experience such problems. Inaction is even more pronounced among poor blacks. This Article uses original empirical data to provide novel explanations for these puzzling and troubling statistics. This study shows, for the first time, a connection between negative past experiences with the criminal justice system and decisions to seek help for civil justice problems. For those familiar with the law, civil and criminal law are separate categories across which experiences do not generalize, any more than a negative experience of subways would lead one to avoid driving. For most respondents, though, the criminal and civil justice systems are one and the same. Injustices they perceive in the criminal system translate into the belief that the legal system as a whole is unjust and should be avoided. Second, this Article shows that past negative experiences with a broad array of public institutions perceived as legal in nature caused respondents to feel lost and ashamed, leading them to avoid interaction with all legal institutions. Third, my data and interviews suggest that respondents helped make sense of these troubling experiences by more generally portraying themselves as self-sufficient citizens who solve their own problems. Seeking help from the legal system might run counter to this self-portrayal. Finally, this Article provides a novel analysis of racial differences in how much citizens use the civil legal system and argues that disparities in trust levels help to explain these differences. This Article concludes by * Associate Professor, Duke University School of Law. For invaluable comments and suggestions, I thank Jason Beckfield, Jaime Boyle, Rachel Brewster, Guy Charles, Kathy Edin, Daniel Greene, Maggie Lemos, Ralf Michaels, Orlando Patterson, Barak Richman, Neil Siegel, Van Tran, Neil Vidmar, and Chris Winship, as well as all of the participants of the Duke Law School January 2015 Faculty Scholarship Retreat. I also thank Alex Galbraith, Vince Geis, and Allison Schmidt, members of the Iowa Law Review , for excellent editorial work. The American Bar Association generously funded data collection and analysis. Additionally, the National Science Foundation provided support to the author for data analysis and writing. Special thanks to the residents of Cambridge, Massachusetts who agreed to be interviewed for this project and without whom this Article could never have been written. All errors are of course my own. 1264 IOWA LAW REVIEW [Vol. 101:1263 discussing potential policy implications of the findings and identifies key areas for further research. I. INTRODUCTION ........................................................................... 1265 II. EXISTING APPROACHES TO ACCESS-TO-CIVIL-JUSTICE SCHOLARSHIP .............................................................................. 1270 A. E XISTING R ESEARCH ON A CCESS TO J USTICE ........................... 1271 B. E XISTING R ESEARCH ON R ACE AND T RUST .............................. 1275 III. DATA AND METHODOLOGY ......................................................... 1281 A. Q UALITATIVE M ETHODS ........................................................ 1281 B. S AMPLE S ELECTION ............................................................... 1283 C. D ATA C OLLECTION ................................................................ 1285 D. D ATA A NALYSIS ..................................................................... 1287 E. D ATA P RESENTATION ............................................................ 1287 IV. RESULTS ...................................................................................... 1288 A. S HARED E XPLANATIONS FOR I NACTION ................................... 1288 1. “To Me It’s All Law and Courts and Bad”: Criminal and Civil Justice Confusion ................................................ 1289 2. “More Money, More Justice” ...................................... 1290 3. Past Experiences with Courts and Other Institutions ................................................................... 1294 4. “I’ve Made It on My Own. I Don’t Need No Lawyers or Courts”: Self-Sufficiency Narratives ............................ 1298 B. R ACIAL D IFFERENCES IN C IVIL J USTICE P ERCEPTIONS AND U TILIZATION ......................................................................... 1301 1. Race, Trust, and Use of Civil Courts .......................... 1301 2. Racism .......................................................................... 1304 3. Race, Corruption, and Use of Courts ........................ 1307 4. Civil Justice Utilization Differences: Black and White Respondents ................................................................ 1309 V. AGENDA FOR FURTHER RESEARCH AND POLICY CONSIDERATIONS ........................................................................ 1313 A. A GENDA FOR F URTHER R ESEARCH .......................................... 1313 B. P OLICY C ONSIDERATIONS ....................................................... 1314 VI. CONCLUSION .............................................................................. 1316 APPENDIX: CIVIL JUSTICE SURVEY ............................................... 1320 2016] RACE, CLASS, AND ACCESS TO CIVIL JUSTICE 1265 I. INTRODUCTION Tonya, a mother of two young children and a respondent in this study, was evicted by her landlord because she asked him one too many times to fix unsafe conditions in her apartment, including exposed electrical wires. Tonya, worried about the safety of her children, was persistent. After her third phone call, Tonya’s landlord informed her that he no longer wanted to rent to her because she was a “pain” and that she had one-and-a-half weeks to move out (until the end of the month). Tonya’s lease was valid for five more months, but her landlord refused to change his mind. Tonya pleaded and then argued with her landlord, even threatening legal action, but she never sought the advice of a lawyer or seriously considered bringing her landlord to court. Tonya’s landlord refused to return her security deposit, and she could not afford to pay another one, so she moved into cramped quarters with her mother until she got off the waitlist for public housing several years later. This move was the catalyst for a series of negative events for Tonya—an over two-hour commute to work on public transportation, eventually being fired for one too many tardies (due to unreliable public transportation), and over a year of barely keeping afloat while looking for a new job. 1 Tonya’s decision not to seek legal help is common. A national study by the American Bar Association found that among low income individuals like Tonya, 47% were experiencing one or more civil legal needs 2 at the time of the survey. 3 Of those 47%, only about one-quarter sought legal advice. 4 Nearly three-quarters shunned the justice system entirely, not even taking the first step of picking up the phone to find out what kind of legal help might be available. 5 In a society that many consider too litigious, 6 these percentages are staggering. Existing research shows that low income individuals are 1. See infra Parts IV.A.3 & VI for further details about Tonya’s experience and a discussion of what may have happened had Tonya sought the help of a lawyer. 2. The American Bar Association administered a comprehensive survey asking about a wide range of civil legal needs. I used the same to set the scope of civil legal needs for this Article with the exception of a few areas that I thought were unlikely to be relevant to my sample, such as problems with farming, problems with condo boards, and problems related to being Native American. For a complete list of these civil problems, see infra Appendix. 3. CONSORTIUM ON LEGAL SERVS. & THE PUB., AM. BAR. ASS’N, LEGAL NEEDS AND CIVIL JUSTICE: A SURVEY OF AMERICANS: MAJOR FINDINGS FROM THE COMPREHENSIVE LEGAL NEEDS STUDY (1994), http://www.americanbar.org/content/dam/aba/migrated/legalservices/downloads/sclaid/ legalneedstudy.authcheckdam.pdf. 4. Id. The total percentages add up to more than 100% because the survey allowed individuals to select more than one action. 5. Id. 6. See Richard E. Miller & Austin Sarat, Grievances, Claims, and Disputes: Assessing the Adversary Culture , 15 LAW & SOC’Y REV. 525, 532 (1980–1981) (noting that many believe American society is overly litigious). Other examples include cases like the infamous “McDonald’s Coffee Case,” in which a woman spilled McDonald’s coffee on herself, suffered third-degree 1266 IOWA LAW REVIEW [Vol. 101:1263 significantly more likely to report experiencing civil legal problems than their higher income counterparts, 7 but that they are less likely to resolve these problems through the legal system than are people of higher socioeconomic levels. 8 Additionally, a recent survey found that non-whites are significantly more likely than whites to report experiencing civil legal problems. 9 What is unclear from existing research, however, is why people like Tonya are unlikely to seek legal help, even when they are aware free help is available. This Article seeks to explore both why such a large proportion of poor people do not seek civil legal help and how these reasons may differ based on race. This Article utilizes original, empirical data from a large-scale in-depth interview study of 97 respondents to explore the underlying cultural and cognitive mechanisms for this resistance. 10 The findings uncover a new perspective on access to justice that is vital to consider when designing access-to-justice policy. First, negative past experiences with—and perceptions of—the criminal...