NCJ Number
61171
Date Published
1979
Length
22 pages
Annotation
SUBSTANTIVE LAW REFORMS WHICH WOULD SIMPLIFY LAWS AND THEREBY IMPROVE ACCESS TO JUSTICE FOR THE POOR AND MIDDLE CLASSES ARE DISCUSSED.
Abstract
COMPLEX LAWS AND RULES BENEFIT PRIMARILY THE ARTICULATE AND THE AFFLUENT WHO CAN AFFORD COUNSEL. IN CONTRAST, SIMPLE RULES ACHIEVE MORE JUSTICE BECAUSE THEY BENEFIT BOTH RICH AND POOR. EXAMPLES FROM VARIOUS AREAS OF LAW ILLUSTRATE HOW DIFFERENT FACTORS AFFECT THE OPTIMAL MIX OF LEGAL AID, SIMPLICITY, AND FLEXIBILITY. ARGUMENTS FOR ABORTION ON DEMAND, FOR EXAMPLE, ARE BASED PARTLY ON AN ACCESS TO JUSTICE CONSIDERATION, BECAUSE MORE COMPLEX CRITERIA FOR PERMITTING ABORTIONS ARE LIKELY TO BE USED ONLY BY MORE ARTICULATE AND AFFLUENT PEOPLE. THE TORT REFORM MOVEMENT, AS EXEMPLIFIED BY NO-FAULT LAWS, IS ALSO PARTLY BASED ON ACCESS TO JUSTICE ARGUMENTS IN THAT TRADITIONAL LITIGATION INVOLVES COMPLEX PROCEDURES, WHILE CONTINGENT FEES, WHICH HAVE IMPROVED EQUALITY OF ACCESS, ENTAIL LARGE ADMINISTRATIVE COSTS. HOLMES'S ARGUMENT FOR HAVING JUDGES DEFINE NEGLIGENCE WAS OPPOSED EVEN BY PROPONENTS OF EQUAL ACCESS, PROBABLY BECAUSE HIS PROPOSALS WOULD NOT HAVE PRODUCED SUFFICIENT EQUALITY OF ACCESS. ARGUMENTS FOR PROVISION OF FREE GOODS OR SERVICES, A MORE RECENTLY ADVOCATED APPROACH TO EQUAL ACCESS, HAVE HAD MUCH APPEAL BUT ENTAIL SOCIETAL COSTS OR INJURY TO SOMEONE ELSE BESIDES THE RECIPIENT. MOREOVER, SUCH GOODS ARE FREQUENTLY UNAVAILABLE TO ALL, ESPECIALLY THE POOREST. EVEN WITH SIMPLE RULES, AN INDIVIDUAL'S ARTICULATENESS WILL PARTLY DETERMINE ACCESS TO THE SERVICES OR GOODS. OPTIMAL REFORMS IN ACCESS TO JUSTICE SHOULD THEREFORE CONSIST OF A MIX OF METHODS SUCH AS SIMPLE, SELF-EXECUTING RULES, FREE SERVICES, AND ACTIVE LEGAL AID DEVICES SUCH AS NEIGHBORHOOD LAW OFFICES AND BUILDING OR BLOCK TRIBUNALS. FOOTNOTES INCLUDING REFERNECES ARE INCLUDED. (CFW)