Race, Class, and Access to Civil Justice

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

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... (see full summary)

 
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1263
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 Si egel,
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. EXISTING RESEARCH ON ACCESS TO JUSTICE ........................... 1271
B. EXISTING RESEARCH ON RACE AND TRUST .............................. 1275
III. DATA AND METHODOLOGY ......................................................... 1281
A. QUALITATIVE METHODS ........................................................ 1281
B. SAMPLE SELECTION ............................................................... 1283
C. DATA COLLECTION ................................................................ 1285
D. DATA ANALYSIS ..................................................................... 1287
E. DATA PRESENTATION ............................................................ 1287
IV. RESULTS ...................................................................................... 1288
A. SHARED EXPLANATIONS FOR INACTION ................................... 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. RACIAL DIFFERENCES IN CIVIL JUSTICE PERCEPTIONS AND
UTILIZATION ......................................................................... 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. AGENDA FOR FURTHER RESEARCH .......................................... 1313
B. POLICY CONSIDERATIONS ....................................................... 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 needs2 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 t his 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. ASSN, 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 & SOCY 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

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