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An End Without Argument: The New Judicial Politics of Legal History

Dec 1, 2023 Steve VladeckAdd a Comment

When Congress chartered the federal judicial system in the Judiciary Act of 1789, the creation of a chief legal officer for the government—an attorney general—was almost an afterthought. Congress addressed the issue only in the last sentence of the last of the statute’s 35 sections, and the language it used is surprisingly vague about how such an important federal officer was to be selected—providing only that “there shall also be appointed a meet person, learned in the law, to act as attorney-general for the United States . . . .” That passive voice was deliberate; the original draft bill adopted by the Senate would have had the Supreme Court appoint the Attorney General (a model that Tennessee still follows today). Muddying the waters left it open for the President to fill the position, as George Washington shortly would with Edmund Randolph.

This historical episode has been oft- and well-recounted, including by Susan Low Bloch in her canonical 1989 Duke Law Journal article on the early role of the attorney general. But it also seems like an obvious data point for contemporary debates over the “unitary executive” theory of presidential power: If the First Congress was so profoundly ambivalent about the President’s power to even select (let alone control) an officer as central to the enforcement of the laws as the Attorney General of the United States, that calls into some question the certitude with which some contemporary judges, justices, and scholars have defended the unitary executive on originalist—as opposed to normative—terms. Andrea Katz and Noah Rosenblum’s Removal Rehashed targets that certitude.

They provide a powerful and persuasive rejoinder to a recent example of such self-assured originalist-infused executive power scholarship—The Executive Power of Removal, by Aditya Bamzai and Saikrishna Bangalore Prakash. As Katz and Rosenblum describe, Bamzai and Prakash’s article “aims to persuade readers that the President’s power to remove executive officers is exclusive and nondefeasible; textually mandated; and a matter of common assent at the time of the Founding.” But in Katz and Rosenblum’s words, the article “fails to persuade on its own terms. It fails to seriously respond to critics of unitary theory. And it presents some of its sources in a way that could mislead less historically informed readers.”

Maybe it is a good idea for the President to have the unfettered ability to appoint and remove all executive officers; maybe not. But as the Supreme Court has moved ever closer to holding that the Constitution requires such an “indefeasible” executive removal power, scholarly focus has shifted to whether Founding-era practice supports such an understanding of executive power in the first place.

That’s where Katz and Rosenblum come in, highlighting  a series of disagreements among key Founding-era players as to whether an indefeasible removal power was part of the executive power, including Alexander Hamilton changing his own mind on the question. The point is not that these historical data points prove a consensus against an indefeasible removal power. It is that “[a] profusion of divergent views is a major stumbling block for an interpretive theory that depends on an imagined consensus.” Katz and Rosenblum also highlight the substantial evidence from Founding-era government institutions other than the three “great departments,” which appears inconsistent with an indefeasible removal power. In these respects, Katz and Rosenblum (concisely and effectively) rehash some of the critiques of unitary executive scholarship that have been around for decades—as they themselves acknowledge.

But Katz and Rosenblum’s piece rises above that fray in two respects. The first is in its methodological critique of Bamzai and Prakash. For instance, in a battle over the meaning of a provision of Pennsylvania’s 1776 Constitution, Katz and Rosenblum persuasively show how Bamzai and Prakash not only misread a critical interpretation by the “Council of Censors” (a key interpretive body) in a way that ignores powerful countervailing evidence, but how their “selective quotation retrojects what is an interpretive argument into a complex text.”

To similar effect, Katz and Rosenblum show how Bamzai and Prakash overread examples from both the Adams and Jefferson administrations—examples that not only do not all include “removals” of officers, but that do not obviously establish that the removal powers exercised by the second and third presidents were understood to be (or, in fact, were) indefeasible. Katz and Rosenblum are careful not to overclaim themselves; their point, over and over, is that careful consideration of the relevant historical sources is messy and does not lend itself to a single, overarching narrative of one, unitary Founding-era understanding. Echoing Dutch historian Pieter Geyl’s famous definition of history (as “an argument without end”), Katz and Rosenblum show that efforts to claim a uniform Founding-era understanding of executive power are not just unpersuasive as a matter of contemporaneous evidence; they raise serious methodological questions about the practice of legal history.

This last point, to which Katz and Rosenblum devote their conclusion, is what makes this piece especially important—and compelling. As Bamzai and Prakash acknowledge, the debate over Founding-era understandings of executive power “is not merely a faculty-lounge quarrel.” The Supreme Court is in the midst of a series of paradigm shifts in its separation-of-powers jurisprudence, one in which an indefeasible executive removal power may soon be in the offing. And although Justice Gorsuch’s concurring opinion in West Virginia v. EPA may suggest that a string citation to articles on one side of a debate provides an adequate rejoinder to the substantive claims of articles on the other side (in Katz and Rosenblum’s words, “[c]itation took the place of argument”), scholars bear a higher obligation. That the Supreme Court will not take legal history seriously provides all the more reason why the academy must do so. And the fact that two pre-tenure scholars are willing to lead the way in criticizing “the judicial politics of legal history” is a hopeful sign in that regard. We should all aspire to follow their—and not the justices’—lead.

How is the Discovery Water Here?

Nov 20, 2023 Sergio J. CamposAdd a Comment

Recently I have looked internationally to address the civil procedure problems that keep me up at night. There are other legal systems, after all, and the U.S. way of doing things is not the only (or even best) way. Comparing procedural systems may reveal things about our own system that are easy to miss. One is reminded of the David Foster Wallace story about fish in water:

There are these two young fish swimming along and they happen to meet an older fish swimming the other way, who nods at them and says “Morning, boys. How’s the water?” And the two young fish swim on for a bit, and then eventually one of them looks over at the other and goes “What the hell is water?”

Rick Marcus, a true master of the field, helps us notice the water of discovery with an article written for a festshrift honoring Italian procedural scholar Nicolo Trucker. Marcus speaks from a position of significant authority. Along with being a co-author of the leading civil procedure treatise and a leading procedure casebook, Marcus serves as the reporter for the Advisory Committee on Civil Rules, the ad hoc committee responsible for review and amendments of the Federal Rules of Civil Procedure.

The article discusses the “exceptional” nature of American discovery. This may surprise those familiar only with U.S. litigation. It certainly surprised me when I began practicing and worked on my first transnational case. In civil law jurisdictions there tends to be 1) greater oversight by the judge, 2) fewer tools for the parties to compel disclosure of potential evidence from each other and third parties, and 3)  principles such as nemo tenetur edere contra se that further limit what can be compelled in litigation. Many view the U.S., by contrast, as a place where expansive, party-controlled discovery offers a powerful tool to enforce the law that parties can abuse to induce the settlement of frivolous claims.

Nevertheless, Marcus challenges this view of American discovery exceptionalism. He first provides a historical background of how the U.S. adopted expansive discovery, traced to an overzealous law professor including every discovery tool in the book during the drafting of the first set of Federal Rules of Civil Procedure in 1938. Further reforms lead to a high-water mark in the late ‘60s and early ‘70s – a mark that remains for many the classic picture of U.S. discovery.

But reform efforts starting in the late 70s and extending until today have changed that picture. Recent reforms have led to more judicial oversight and a renewed focus on proportionality to limit what parties can ask for. Those reform efforts are hard to see due to the rise in electronic communications and other electronically-stored information (ESI), which magnifies the volume of discoverable information. Discovery still looks expansive and free-wheeling in the U.S. despite the considerable reforms to curtail it.

Marcus argues that American discovery today is closer to a civil law model that places more judicial control over discovery and more restrictions on what can be discovered. At the same time, the ELI/UNIDROIT Model European Rules of Civil Procedure, introduced in 2020, has moved somewhat closer to “American-style discovery” by eschewing the nemo tenetur edere contra se rule and urging courts in their discovery orders to ensure that “each party . . . have access to all forms of relevant and non-privileged evidence.” Admittedly, the comments to the Model Rules state that they are “very different from US-style discovery.” But, as Marcus shows, US-style discovery is not what it used to be.

Of course, not every European country will adopt the Model Rules. Moreover, differences in the scope of relevance, as well as different attitudes regarding privacy interests, create some notable differences between U.S. and non-U.S. discovery systems. And it is unlikely that non-U.S. systems will allow parties to issue a subpoena without first going to a court, as in the U.S.

But, Marcus notes, “[t]hose divergences may not endure,” citing a 2021 RAND study concluding that “national approaches to mass claims will ultimately converge on something more like the U.S. aggregate and collective litigation model than conventional civil litigation in civil law regimes.” Indeed, comparative procedural scholars in non-U.S. settings have highlighted the benefits of expansive information-sharing for the administration of justice.

I like this piece lots. Like all of Marcus’s writings, it is beautifully written and easy to read. Marcus has a gift for conveying the complexity of his subject and his own mastery of it in an accessible, non-intimidating way. And the piece corrects some common stereotypes about U.S.-style discovery and information gathering in non-U.S. jurisdictions. Indeed, as other jurisdictions look to U.S.-style discovery as a source of inspiration (or a cautionary tale), we can also look to other systems to inform our own attempts to tame discovery.

Breaching the Contract Paradigm

Nov 3, 2023 Jasminka KalajdzicAdd a Comment

For the traditional civil proceduralist and legal ethicist, much of class action law is fitting a square peg in a round hole. Few of the principles or rules developed in the context of bilateral relationships apply neatly in representative litigation. For example, rules of conduct are ill-suited to the sui generis relationship class attorneys enjoy with the lead plaintiff and with the class. Cy près remedies common in class settlements provide for relief – payment to a non-party – that the underlying substantive law does not authorize. The presence of absent class members complicates the doctrine of standing, while the opt-out system disrupts expectations of basic due process rights. Add to this list the class action settlement. Its unique nature has to date been undertheorized and underexplored, although the features that distinguish class actions from their two-party counterparts are more pronounced at settlement: a deal binds absent class members who had no power to instruct counsel and no say in the deal’s terms. In these circumstances, is a settlement agreement a “contract” and should disputes arising from the settlement be resolved by resort to strict contract law principles?

Howard Erichson and Ethan Leib challenge the prevailing paradigm of the class action settlement as a contract between parties. Their thesis is that a class settlement agreement is a particular sort of contract and a unique kind of court judgment; it requires its own interpretive framework, one that borrows from the law of contracts and the law of judgments. Their distinctive approach respects the role of the certifying court as protector of class members’ interests in a way that blind adherence to settlement-as-contract ignores.

Erichson and Leib document the many ways in which courts have treated settlement agreements as simple contracts and thus have focused on giving effect to the parties’ intent when adjudicating disputes about the interpretation of such agreements. Class action procedural law encourages such an approach by, for example, prohibiting judges from altering the terms of the proposed settlement. The authors document numerous examples of courts invoking contract law to analyze disputes concerning the class settlement.

They then explain the many ways in which class settlement agreements differ from other contracts and why those differences matter. Class members are not parties to the litigation, let alone to the settlement agreement. What binds them to the deal is the certification order and the order approving the settlement, not that they negotiated or consented to it. A class member and class counsel do not enjoy a classic principal-agent relationship. Moreover, the parties are not free to settle the action on any terms they deem acceptable: by law, the court must approve the agreement after assessing its fairness to absent class members. The settlement agreement binds class members because a court entered a judgment giving effect to its terms. The rationale for court oversight is key: “Courts review class settlements because negotiated resolutions of class actions in fact present serious risks that class members’ interests will be disserved by those who purport to represent them in negotiations.” The inherent conflicts of interest alone should be sufficient to justify departure from the usual contract paradigm.

Part III makes the case for a distinct interpretive framework for disputes that arise concerning the interpretation or enforcement of settlement agreements. Erichson and Leib rightly point out that even within contract law, some contracts demand special rules. For example, contra proferentum is a first principle in interpreting insurance contracts, while consumer contracts invite a more flexible parol evidence rule. Like contracts of adhesion, class settlement agreements invite the court to adopt an approach that differs from that which applies to contracts based on mutual assent.

The authors’ framework consists of four questions that courts should ask when determining the principles to apply to a dispute:

1. In the pending dispute, who is to be bound by the terms of the class settlement? If the dispute involves an attempt to enforce the contract as against someone who participated in the drafting of the agreement – such as the defendant – then general “intent-of-the-parties” contract principles may reasonably apply. Conversely, binding a class member who neither negotiated the agreement nor appointed an agent to protect her interests calls for different principles. Here, contra proferentum has more relevance.
2. When was the opt-out right exercised? The timing of the opt-out is relevant to determining the nature of any assent to the terms of the settlement. If the opt-out process occurs when the terms of the settlement are known, for example, and when there was good notice and a substantial claim in issue, declining to opt out may amount to tacit assent on the part of a class member.
3. Does the dispute involve a matter on which the interests of the settlement drafters diverged from the interests of the class members? Where the dispute involves an interpretation of a term that presents a divergence of interests, contra proferentum and other principles protecting vulnerable parties should apply.
4. Is the judge who certified the class and approved the settlement also the judge who is evaluating the interpretive dispute? “Some deference should be given to the judge who is best positioned to speak to the meaning of that settlement and thus the meaning of the judgment that made the settlement binding.”

These questions will orient judges away from the private contract model toward the protective role mandated by the law of class actions. Courts are required to protect absent class members from unfair settlements, both at the time of settlement approval and at the time of implementation. Thus, faced with a dispute about the terms of an agreement, judges should think not only of what class counsel and defendants intended, but what a reasonable class member might have agreed to.

Like so much of class action law and procedure, class action settlement agreements belie the neat application of principles derived from a different paradigm. Class Actions Settlements as Contracts? convincingly explores why contract law principles designed to determine and give effect to the intent of the parties do not apply squarely to the class action context. More importantly, the authors provide an interpretive framework that respects the unique place of class members in the litigation and the court’s unique role in protecting their interests.

Questioning Selection, The Supreme Court, and Legitimacy

Oct 9, 2023 Howard M. Wasserman1 comment

Much has been written (and reviewed) about the modern Supreme Court’s legitimacy and about reforming or restructuring the Court to pull it from this crisis.

Benjamin Johnson identifies a century-old power-grab as an overlooked cause for this crisis: Congress made the Court’s appellate jurisdiction almost entirely by discretionary writ of certiorari in 1925 and the Court within less than a decade arrogated power to use certiorari to select and decide discrete legal questions rather than to hear and resolve entire cases. The resulting system is not inherent in the “judicial power” granted in Article III, not authorized by statutory text, and not intended by Congress; in fact, it contradicts the Justices’ representations in lobbying Congress to eliminate mandatory jurisdiction. By asking and answering specific constitutional questions of its unilateral choosing, the Court “no longer decides cases,” in turn undermining its role as an appellate court and the logical and policy bases for its role as (final?) constitutional arbiter.

The paper presents a comprehensive history of the Court’s appellate jurisdiction, identifying four key moments of evolution: the Judiciary Act of 1789, under which all jurisdiction was mandatory; the Evarts Act in 1891, creating the intermediate courts of appeals; the Judges’ Bill in 1925, pushed by Chief Justice Taft and making discretionary writ of certiorari the near-exclusive basis for appellate jurisdiction; and the Supreme Court Case Selections Act of 1988, which eliminated the last vestiges of mandatory jurisdiction over cases from courts of appeals and state courts. That history and the resulting jurisdictional statutes reveal several things. Congress granted the Court jurisdiction to review, by certiorari, “cases” from courts of appeals and “final judgments or decrees” from state and territorial courts. Certiorari originated as a limited alternative path from the courts of appeals to SCOTUS, but the Court used the tool to take and decide the entire case. In urging passage of the Judges’ Bill, Taft and other Justices represented to Congress that the move to all-certiorari jurisdiction would not change the Court’s practice of taking entire cases. And the Court abandoned that view by the end of 1920s, embracing a power to limit certiorari review to specific questions of the Court’s choosing. Congress did authorize the Court to address “any question of law” when a federal court of appeals certified a question. But this express textual grant to decide discrete issues demonstrates that Congress expected the Court to use certiorari to hear entire cases unless someone outside the Court (the court of appeals) presented a question in a distinct process.

The resulting scheme—unilateral discretion to set its agenda by choosing and deciding singular questions rather than cases—means “the Court takes questions, not cases.” It tgys acts in a way that Congress did not expect or authorize and ceases to function as an appellate body. This produces two main adverse effects.

First, discretionary question selection may be inconsistent with a judicial power that extends to all cases or controversies. Of course courts must decide subsidiary questions to resolve cases. But two things make current practice unique. Justices decide questions independent of the case; the lower court resolves the case after SCOTUS decides the chosen question. And Justices have seized unilateral power to select the questions they decide, rather than answering questions presented to them or authorized by Congress or lower courts. Worse, the Court has denied administrative agencies and lower courts similar discretion to select and decide discrete questions; it reads other jurisdictional statutes narrowly to require these bodies to hear all issues within a case.

Second, this practice undermines the logic of judicial review. Under the classic justification, the Court must decide cases, it does decide cases, and deciding cases requires constitutional judicial review. If the Court does not decide cases, however, the second prong of that justification vanishes. And if the Court selects which constitutional questions to decide and when, it does not act out of any formal or legal obligation.

Although Johnson situates this paper within the Court-reform literature, he does not offer reforms or solutions. This is a work of deep history. But it sheds light on a different facet and cause of the legitimacy crisis—one of the Court’s own making.

The Future of Intersectionality in Employment Law

Sep 11, 2023 Suzette M. MalveauxAdd a Comment

Recent social justice movements—such as #MeToo and Black Lives Matter—have pushed mainstream American society to reckon with the ubiquity and persistence of systemic sex-based and racial inequities. At the heart of the firestorm are Black women, whose identity at the intersection of sex and race often exposes them to pervasive, but also unique employment discrimination and sexual harassment. Jamillah Bowman Williams’s Beyond Sex-Plus: Acknowledging Black Women in Employment Law and Policy stands out as an exceptional examination of the how courts deal with such “intersectional” claims.

“Intersectionality,” famously coined by Professor Kimberlé Crenshaw over three decades ago, recognizes that Black women may experience discrimination distinct from how white women or Black men experience discrimination. This concept is not new—the Fifth Circuit recognized it as early as 1980. The Equal Employment Opportunity Commission (EEOC)—the agency tasked with enforcement of the Title VII of the Civil Rights Act of 1964—explicitly recognizes Title VII’s coverage of intersectional claims. Black women are overrepresented among low-income, vulnerable workers, and subjected to pernicious stereotypes rooted in chattel slavery.

This “double jeopardy” requires courts to move beyond forcing Black women to parse out their identities and pigeonhole their discriminatory experiences into conduct based solely on “race” or “sex.” Williams urges judges and lawmakers to go deeper, to entertain a more complex and nuanced understanding of the law, and to align Black women’s lived experiences with Title VII’s broad remedial purpose by recognizing intersectional claims. Not only would Black women fare better at summary judgment and in case outcome (whose failure rate is significantly higher), but the law would be inclusive of their reality. For example, in the context of work harassment, a plaintiff may experience a hostile work environment based on the combination of their sex and their race but fail to prove either one independently. Title VII requires that workplace incidents be sufficiently severe or pervasive to constitute harassment, but if courts artificially disaggregate such incidents into “race” or “sex,” they dilute, potentially fatally, the force of the discriminatory conduct. Appreciating the totality of the misconduct and the overlapping nature of the harassment would more faithfully protect everyone in the workplace.

Williams’s article breaks new ground by identifying and critiquing the primary approaches used by the federal appellate courts when analyzing intersectional claims.

Some circuits (Fourth and Eighth) insist that Black women dissect their experiences and identities, ascribing either “sex” or “race” as the basis for discrimination. These appellate courts read the text and purpose of Title VII in a cramped way that disallows claims combining “sex” and “race.” They worry that intersectional claims will afford Black women a “super-remedy” and “special” treatment unavailable to fellow workers. This narrow interpretation ironically deprives those multiply-marginalized of Title VII’s protection, contrary to the statute’s broad remedial purpose and spirit.

Other circuits (Second, Third, and Tenth) analyze intersectional claims under a “sex-plus” framework. A plaintiff who suffers discrimination on the basis of sex plus another trait (not protected under Title VII) would be shielded by the statute. The classic example is Phillips v. Martin Marietta Corp., allowing women with preschool-aged children to bring a sex-discrimination hiring case against the employer even though the company hired other women; this constituted sex discrimination because, unlike women, men with preschool-aged children were hired. The statute covered the combination of two traits (sex plus having a preschool-aged child). Although only a subset of women bore the brunt of the employer’s exclusion, they could challenge discrimination at the intersection of sex and another factor. Courts have expanded the “sex-plus” rationale to protect older women from sex-plus-age discrimination, combining Title VII and a plus trait from another statute, the Age Discrimination in Employment Act (ADEA). Given this flexibility, Williams persuasively argues that a court should easily be able to recognize an intersectional sex-plus-race claim—the combination of two traits already protected under Title VII.

Williams’s endorsement of the sex-plus approach, however, is tempered by its limitations. She faults the approach for its overdependence on comparators; elevation over a race-plus framework; and preferencing sex over other traits as the basis for statutory protection. Most notably, the sex-plus framework requires Black women to dissect their identities and lead with sex as the primary trait, with race secondary in the analysis. Centralizing sex artificially fractures the plaintiff’s experience and unnecessarily subordinates the racial dimension.

A third and more preferable method from the circuit courts (Fifth and Eleventh) recognizes the unique experience of race and sex discrimination combined by identifying Black women as a protected class. Williams praises this as a step forward but worries that these courts still subordinate the plaintiff’s race claim.

Two circuits (Sixth and Ninth) adopt the best approach—a totality or aggregate one. The court does not force the plaintiff to sort her experiences into boxes labeled “race,” “sex,” “age,” “religion,” “disability,” or any other protected trait. Instead, the court analyzes her experience as a whole to discern illegal discrimination.

Finally, two circuits (First and D.C.) have been inconsistent and undecided when addressing intersectional claims. The U.S. District Court for the District of Columbia expressed concern over plaintiffs turning employment discrimination claims into a “many-headed hydra” comprised of countless permutations based on the various groups to which they belong.

After exploring the current state of the union on the interpretation of intersectional claims, Williams makes another ground-breakin contribution. Looking ahead, she examines a number of significant trends that foreshadow the future of intersectionality in employment law. Most notably, Williams contends that Bostock v. Clayton County supports intersectional claims. Authored by Justice Neil Gorsuch and joined by Chief Justice Roberts, Bostock joins conservative and liberal justices in a promising majority opinion. Williams argues that Bostock helps Black women in three ways: 1) inextricably linking discrimination on the basis of sexual orientation and transgender status to sex; 2) reinforcing that discrimination “because of sex” includes mixed motivations; and 3) noting that individuals may be subject to discrimination even if their whole group is not. Bostock gives space for intersectional claims, discrimination based on multiple factors, and discrimination against a subset of a protected class. Indeed, the Tenth Circuit relied on Bostock in recognizing intersectional claims by Black women through the sex-plus framework.

Williams also notes how state legislators, while leading the way in enacting protections against sexual harassment, must do the same for harassment based on race and other central identities. Indeed, the law should not stop there, but should take a more unified approach that does not silo experiences into claims of discrimination, harassment, or retaliation.

Finally, Williams promotes the development of a “reasonable Black woman” standard for sexual harassment claims brought by Black women. This standard more closely mirrors plaintiffs’ unique experiences and perspectives, providing important context, nuance, and understanding. Such an approach would more fully advance the EEOC’s victim-centric guidance.

Williams ends her article with prescriptions based on various federal and state legislative reforms, pushing Congress, the EEOC, and the courts to more fully embrace the experience of Black women’s lives through the recognition of intersectional claims. She challenges judges, lawyers, and law students to see Black women not as the sum of our fractured identities, but to see us as whole persons. And in doing so to see our humanity.

Deepening Our Understanding of the Who’s of the A2J Crisis

Jul 17, 2023 Seth EndoAdd a Comment

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.