It is perfectly understandable why so many lawyers believe civil procedure is a slog. For litigators, their first experiences as attorneys involve plodding through thousands of near-identical documents to respond to a discovery request or consulting Rule 6 to determine when a response to a motion was due (remember not to include the last day of the period if it is Saturday, Sunday, or legal holiday!). But civil procedure raises big normative issues too. A wave of articles and symposia have taken aim at the civil justice gap, examining everything from the split between lawyerless and lawyered courts to the demographic composition of unrepresented litigants to using technology to reform service of process. Building on Rebecca Sandefur’s foundational work, Kathryne Young and Katie Billings apply insights from sociology to both enhance and implicitly challenge the existing access-to-justice literature.
Young and Billings’ initial framing highlights their cross-discipline expertise as they note that the cost of the civil justice gap goes beyond economics. They recognize that the stakes include a tax on time, stress, and other emotional tolls that lead to mental and physical health problems. And these harms are not uncommon—about half of U.S. households include a member with a problem actionable under civil law.
One common response to these concerns focuses on the ability of folks to receive formal legal help from lawyers. But Young and Billings’ sociolegal emphasis reveals two flaws: (1) there are not enough lawyers to cure the access-to-justice gap and (2) some people might prefer non-legal solutions. Moreover, lawyers only enter the picture if the individuals with legally actionable problems identify those concerns as requiring a legal solution.
Following this critique, Young and Billings conceive of the civil justice gap broadly, “center[ing] everyday people experiencing problems, as opposed to centering law and legal structures.” They discuss five recent studies showing that justiciable problems are widely prevalent—especially among low-income Americans and Americans of color—but that laypeople tend not to view their problems through a legal lens. But a significant hole remains in our collective knowledge of how access-to-justice problems distributed beyond race, class, and gender; Young and Billings’s original research helps fill this gap.
Young and Billings surveyed more than 3,000 U.S. adults, detailing their demographic characteristics and civil justice problems. The survey dove deep into respondents’ lives, asking about their race, income, education, gender, age, queer identity, rurality, disability, parental status, and history of arrest, domestic violence, or sexual assault. They identify how these variables correlate—both independently and in 192(!) combinations—with encountering a justiciable employment, family structure, or debt problem.
This detailed inventory of demographic characteristics and the effects of intersectionality allows for a more complete understanding of the civil justice gap. For example, a white, high-income individual who identifies as LGBTQ+, has a physical disability, lives in a rural area, is the parent of a child under 18, and was either previously arrested or a survivor of domestic violence or sexual assault has about a 35% chance of experiencing an employment problem but that figure jumps to just under 50 % for a Black, low-income person with similar characteristics. And, while race and class remain central, these blocs are not monolithic. The predicted probability of a family structure problem is just 3% for some high-income Black Americans and as high as 37% for other Black Americans. This multi-faceted approach also shows how some individual characteristics—such as race, queerness, rurality, and others—significantly correlate with experiencing at least one category of justice problem, even if the problem has nothing to do with the underlying characteristic.
The practical benefit of such data is clear: legal aid organizations and policymakers may design interventions that more efficiently and precisely target folks in need. Young and Billings provide the following illustration:
If research established, for example, that middle-class Latinx mothers were three times more likely to face justice problems related to elder care, relevant justice interventions could be used in media, shared with communities, and made available in physical and virtual spaces frequented by middle-class Latinx mothers.
This research can inform policy responses to the access-to-justice crisis But Young and Billings’ findings carry additional implications. They demonstrate the potential power of non-legal tools in addressing justiciable problems. They also show the likely limits of transsubstantive approaches or technological approaches rooted in providing litigation help. While An Intersectional Examination of U.S. Civil Justice Problems does not obviously tell an optimistic story about the civil justice gap, the results provide a necessary prerequisite towards figuring out how different institutions—not the courts alone—can address both the chasm of unmet legal needs and the underlying inequality that creates them.
