Rebecca Sandefur, a sociologist and researcher at the University of Illinois at Urbana-Champaign, has spent years considering a question that’s central to the American legal system: Does everyone facing legal issues need a lawyer?
She has found that, especially for everyday matters, many people would benefit more from what she likes to call the “just resolution” of legal problems. “Across a number of common justice problems,” she wrote in a recent article, “nonlawyer advocates and unrepresented lay people have been observed to perform as well or better than lawyers.”
In October, she was awarded a MacArthur “genius” fellowship for her work on this topic. She also coedited the latest edition of Daedalus, the journal of the American Academy of Arts and Sciences. Its 24 essays, among other questions, address reframing the politics around justice for the poor, the need for evidence-based solutions and a renewed call for greater resources for the Legal Services Corp., a nonprofit that funds legal aid for low-income people.
This interview has been edited and condensed for clarity.
Q: If you were to define to a layperson, who perhaps has never had any legal troubles in her life, what “access to justice” means, what would you tell her?
A: I would say they may not think that they’ve had legal problems in their lives, but it’s almost impossible that they haven’t. An enormous amount of the activity of our daily lives — being married, being divorced, having kids, taking care of other people’s kids, taking care of elderly relatives who need help with their affairs, all kinds of relationships at work, anything you buy or sell — all of that is governed by the civil law. When you run into a problem with one of those issues, it’s actually almost always a civil justice issue. We make rules about how that stuff is supposed to work because we think those rules would order that activity in a way that we care about, in a way that’s just. Access to justice happens when that just resolution happens, when things are resolved the way they’re supposed to be.
Q: How did you become interested in this issue?
A: I ended up writing my dissertation on lawyers and then writing some other stuff about lawyers. And I wondered why we cared about lawyers. To me, it’s because they exercise this very interesting role. We have a public legal system, but it’s so complex and inward-looking that, if you want to use it, you have to get a third party.
But we don’t do that with the education system — if you want to send your kids to public school, you don’t have to hire an attendant to go with them to every meeting with the teachers. But that’s sort of the way we set up law. I became curious about how that affected people’s relationship to their own legal system.
Q: Why have things reached a crisis point?
A: If you start to think about how maybe 10 or 12 percent of justice problems become court cases, that means there’s another 90, 88 percent out there that isn’t making it to the formal justice system. That’s a lot of activity. And there’s no way all of it is turning out OK. We have spectacular stories about civil injustices that people experience — informal evictions, harassment by landlords, wage theft.
As we start to recognize that most legal activity isn’t in the legal system, you start to see that really there’s an enormous amount of stuff out there that really isn’t going as it should. And that’s a big crisis because it undermines the rule of law, and it also creates hardship for millions of people.
Q: How does it undermine the rule of law?
A: The idea of the rule of law — at least to me, because I’m coming to it from a ground-up perspective — is that we have these rules. Maybe they’ve been imposed on us, or we’ve agreed to them. And we all think that this should govern what we do. If a landlord wants to throw you out of an apartment, he should do it through a particular process that we’ve all agreed should be the process.
But if lots of people in some area or activity are not obeying whatever rules we’ve set up, then over time people realize those rules don’t matter. They become meaningless.
Q: Are any jurisdictions getting it right?
A: One of the real leaders is New York. Before universal access [the right to a lawyer in New York’s housing courts] came to be in eviction [proceedings], there were some really interesting experiments with people who are not lawyers who could appear with you in court and help you go through your eviction process. I did a study of them about three years ago, and it looks like there’s a body of cases for which that kind of program works really well. In the first year of that program, the most intensive kind of navigator, who is a social worker, who goes with you through the whole case, who works with you outside the case to attach you to benefits that you may not know you’re eligible for so that you can reliably pay your rent — they had a 100 percent success rate. Nobody they worked with got evicted. A number of states are exploring navigatorlike programs.
Q: What about tech-based solutions?
A:There’s a New York-based tool called Just Fix that helps you put together a habitability claim against your landlord. But it doesn’t say, “Hey, we’re going to help you put together a habitability claim.” It says, “Hey, you have mold in your bathroom.” You don’t have to realize that these specific laws are being violated. You just have to realize that you have a problem, and that you can ask your landlord to fix it.
This article originally appeared in The New York Times.