Access to Justice: Volume 12

Table of contents

(16 chapters)
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List of Contributors

Pages vii-viii
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Around the world today, access to justice enjoys an energetic and passionate resurgence. It is an object both of scholarly inquiry and political contest, and both a social movement and a value commitment that motivates study and action. Though the recent resurgence makes much seem new, in fact access to justice has been a topic of policy advocacy and empirical research since the early 20th century (e.g., Smith, 1919). One legacy of early work is scholars’ and practitioners’ tendency to conceptualize access as a social problem that is faced by lower status groups, such as poor people. Another legacy is a penchant for reducing, in a whole variety of ways, questions of justice to matters of law. Given this orienting framework, classical access to justice research focuses heavily on empirically documenting how law falls short of its supposed promise. At the same time, classical research often relied on an expansion of law – more or more affordable lawyers, more or more welcoming courts and hearing tribunals, wider participation on juries, new and better rights – as the policy solution to injustice or inequality.

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This chapter examines the prevalence of justiciable civil justice problems experienced by Canadians, the ways in which people respond to them and the consequences of experiencing these kinds of problems. The results show that experiencing justiciable problems is a nearly normal feature of the everyday lives of a large proportion of the population in a modern society. Particularly, important features of justiciable problems are the prevalence of multiple problems, the clustering of justiciable problems and the linkages between justiciable, health and social problems. The results suggest that justiciable problems may be a part of broader patterns of social exclusion. One implication of this research is that access to justice services may not only address legal problems but, by doing so, may have the effect of forestalling processes of social exclusion of which civil law problems are a part.

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Purpose – Concerns about expenditure on legal aid in England and Wales have led to greater focus on ‘value for money’ and increased strategic targeting of resources. To inform targeting, the English and Welsh Civil and Social Justice Survey has been used to investigate the relative severity of different civil justice problem types. Thus, the survey has included a range of severity indices and related questions. However, this study takes a different approach in exploring how a seeming ‘defect’ of the survey, failure of autobiographical memory, may shed some of the clearest light on not just the issue of problem severity but also problem incidence.Methodology/approach – We examine failures of autobiographical memory of civil justice problems and ask what they can tell us about problem severity.Findings – We find that failures of autobiographical memory provide a useful guide to relative severity of civil justice problems of different types. They also provide a means to more accurately estimate the prevalence of problems.Originality/value of paper – This paper is the first to examine the relative severity and incidence of civil justice problems through an analysis of recall patterns.

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This article's overarching purpose is to serve as an initial theoretical and empirical step in applying rights consciousness inquiry to the criminal procedure context. First, building on previous work within the legal consciousness and rights consciousness traditions, I discuss the ways in which attention to criminal procedure can inform our understanding of rights consciousness and enumerate differences between the way rights consciousness approaches civil law and the ways it might approach criminal law. Additionally, I suggest that understanding the relationship between people's subjective impressions of procedures and procedures’ legal and moral validity offers a novel means of studying procedure that I term “procedural rights consciousness.” In the second part of the article, I report results of two studies designed as first empirical steps in applying rights consciousness as the first part suggests. My findings indicate that not only do people lack knowledge about their rights in criminal investigations but they also think about these rights in patterned ways that reflect a method of understanding law characterized by “lay jurisprudence” reasoning, in which culturally prevalent “tenets” are applied to specific situations. This mechanism often leads people to erroneous conclusions about the rights they possess. The final part of the article sets out an agenda for further rights consciousness research.

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Language use is a highly controversial issue in the United States (Schmidt, 2000). Among all the linguistic access issues (e.g., bilingual education, multilingual ballots), however, the issue of access to justice is probably the least contentious. Most people in the United States seem to agree and appreciate the fact that access to justice premises on the ability of court users to understand the process in which they participate. The integrity of the legal process, particularly for the common law system (like the American legal system), which features an adversarial trial process, would be compromised if litigants were unable to communicate with or understand the judge, witnesses, or opposing parties or counsel. The guiding theory behind the common law is that adversarial trials set up two or more parties to be in conflict with one another in a zero-sum game; it is therefore important for all participating parties to be on equal footing (Thibaut & Walker, 1975).

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Purpose – This chapter discusses two puzzles emerging from the literature on race and the jury. First, although changes in laws and institutional practices have dramatically expanded jury participation, it is far from clear what additional changes would create more racially representative juries. Second, the push for racial diversity on juries stems, in part, from a belief that composition is related to decision making; nonetheless, empirical research typically fails to link jury composition and case outcomes.Methodology/approach – Through a review of recent research, I identify the bases for these puzzles, and I consider ways to advance the body of work on race and the jury.Findings – Studies on jury representativeness should simultaneously consider both institution-level and individual-level predictors of participation, examining in particular whether and how attitudes toward jury service differ across racial and ethnic groups. The literature would benefit most from longitudinal and multi-jurisdictional studies. Researchers on race and jury decision making should examine the reason why racial differences in attitudes and individual verdicts may not have an impact on case outcomes. By studying deliberating groups, scholars should consider whether any racial differences in viewpoints are substantively small, whether differences observed are ultimately irrelevant to group discussions, or whether group dynamics limit the participation and influence of racial minorities on mixed-race juries.Originality/value – This chapter advances the literature on race and the jury by considering both questions of representativeness and decision making and by critically examining a number of assumptions and accepted wisdom.

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Purpose – Decreasing governmental support means access to legal services for the poor depends upon the interests of private actors controlling the needed resources. Law firms are a major source of resources for non-profit entities providing those services. This chapter examines the nature of that support.Design/methodology/approach – Law firms are guided by self-interest. How this influences their pro bono activities supporting legal services to the poor is explored through a case study of the legal services market in Cook County, IL and Chicago. It draws from: documentary research on over 50 private legal service providers in Cook County; interviews with 31 lawyers participating in the market for legal services in Cook County; and a focus group with 10 lawyers participating in that market.Findings – The interests driving law firm support for legal services do not match the demonstrated areas of greatest legal need or the stated purposes of the non-profit entities receiving that support. Instead, they reflect reasonable firm self-interest in such goals as lawyer training and marketing. Consequently, non-profit entities receiving support must accommodate those goals.Research limitations/implications – This study points to the need for more empirical research into the consequences of the privatization of legal services.Originality/value – Privatization means that some crucial legal needs will never be met, and this study provides an empirical context for the debate over “civil Gideon” – whether there should be a constitutional right to legal representation in civil matters akin to the constitutional right in criminal matters.

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Purpose – To find major determinants of access to legal services and consider an effective way of expanding access to lawyers.Methodology – (1) A survey of Japanese individuals between 20 and 70 years of age, conducted in 2005; (2) A survey of visitors at legal advice centers of Bar Associations, conducted in 2007 and (3) A survey of visitors at law offices, also conducted in 2007.Finding – The use of a lawyer for legal services is not affected by income or a general knowledge of the law, but by the past experience of using a lawyer and personal connections with a legal professional. Both lawyers and people have anxieties about each other. Thus, a lawyer wants to accept a client who is introduced by someone that the lawyer knows personally. People who seek legal advice also worry about the cost and the unapproachabilility of lawyers. Direct or indirect personal connections help to reduce such anxieties. This traditional pattern of legal access is found among visitors at law offices. However, visitors at legal advice centers do not have such experience or connections. Legal advice centers, rather than to law offices, could expand access to lawyers more effectively, because the former is easier for people without personal connections to get access to legal advice.Research limitations – The response rate of the office survey is very small.Value of chapter – It contributes to a current debate on what affects the use of a lawyer and suggests a policy for expanding access to lawyers in Japan.

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Who is ultimately responsible for the harms that befall us? Corporations who make dangerous products, or the consumers who use them? The answer to this question has a profound impact on how personal injury lawyers screen products liability cases. In this chapter, I analyze results from an experimental vignette study in which 83 lawyers were asked to evaluate a hypothetical products liability case. Half of the lawyers practice in states considered to be difficult jurisdictions for the practice of personal injury law due to tort reform and conservative political climates (Texas and Colorado), while the other half work in states that have been relatively unaffected by tort reform and are considered to be more “plaintiff friendly” (Pennsylvania and Massachusetts). While lawyers in reform states and non-reform states were equally likely to accept the hypothetical case with which they were presented, they approached the case in different ways, used different theories, and made different arguments in order to justify their acceptance of the case. Lawyers in states with tort reform were most likely to accept the case when they focused on the issue of corporate social responsibility – that is, what the defendant did wrong, how they violated the rules, and how they could have prevented the injury in question. Lawyers in non-reform states, however, were most likely to accept the case when they believed that jurors would feel sorry for the injured child and not find their client at fault for the injury.

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This article argues that troubles – including how they are identified, how responsibilities for their creation and remedy are assigned, and the actions people pursue to resolve them – are a central sociological concern that runs across a wide array of sub-fields. This article illustrates this point by examining how troubles are discussed in literatures including the sociology of law (or, more broadly, law and society), social movement studies, social problems, and organizational quality and conflict. Furthermore, this article argues that more is being lost by parceling these questions into disconnected sub-fields chosen based on the resolution process (i.e., use a court to resolve the problem, use a social movement, use policy-making) than is being intellectually gained. To make this point, common findings, questions, and quandaries that emerge from a broader examination of a sociology of troubles are discussed. The article recommends that a broader sociology of troubles be developed, bringing the welter of sub-fields studying troubles into smoother conversation, and recommends analyses that consider multiple resolution alternatives (e.g., filing a lawsuit, versus protesting, versus “lumping it”).

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Access to justice is both a topic of engaged social-legal research and a key component of legal professional ideology. There is a relationship between the two. The more committed the organized legal profession to the issue of access to justice, the higher the profile of scholarly research on topics that relate in one form or another to access to justice. The organized bar's commitment peaked in the 1960s and 1970s, waned in the 1980s, and has not regained the position it once had on the domestic U.S. agenda. In contrast, however, access to justice has recently emerged strongly on the reform agenda that U.S. and multilateral foreign aid organizations – along with the U.S. legal profession – are promoting abroad as part of the renewed post Cold War effort to build the rule of law.

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Subject Index

Pages 261-269
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DOI
10.1108/S1521-6136(2009)12
Publication date
Book series
Sociology of Crime, Law and Deviance
Editor
Series copyright holder
Emerald Publishing Limited
ISBN
978-1-84855-243-2
Book series ISSN
1521-6136