Recent debates over reforming civil litigation frequently involve questions about the use of empirical data, the value of critical approaches, and the access-to-justice gap (especially as it relates to pro se litigants). Roger Michalski and Andrew Hammond’s Mapping the Civil Justice Gap in Federal Court marries these themes, using judicial data to uncover the collective identity of pro se litigants through an exercise of critical cartography (i.e., creating maps that detect and challenge social relations of power which “create and perpetuate inequality and inequity”).
Understanding the demographics of pro se litigants is both practically and conceptually important. In 2021, more than 100,000 cases involved pro se parties, comprising more than 25% of the non-prisoner civil docket in federal courts. These litigants must navigate a system built for lawyers, raising meaningful policy and legal questions that are largely being addressed in the dark.
At its core, Michalski and Hammond’s project reminds scholars, courts, and policymakers that pro se litigants are not some category of other but real people who live in every type of community. They emphasize the role that courts play in determining the “relationship between civil litigation and inequality.” Accordingly, Michalski and Hammond encourage scholars to “focus on the people using the courts—all the people, not just those who have the benefit of counsel.”
In a forthcoming article, Zachary Clopton and Aziz Huq argue that judicial statistical data are underused by scholars and the general public. A new wave of scholarship already addresses this: for example, Merritt McAlister used data from the federal circuit courts to identify how “the distribution of appellate resources has been uneven across the country in ways that have a disparate impact on communities of color and poor communities.”
Michalski and Hammond’s study offers another excellent example of how new technological tools can lead to scholarly insights. They mine more than 2.5 million federal docket sheets for the addresses of non-prisoner pro se litigants. They combine the litigants’ locations with Census data about their communities to extrapolate race, economic status, educational attainment, urbanity, and other characteristics of the parties. While appropriately cautious and modest in their empirical conclusions given the methodological issues they identify, they offer three headline discoveries that challenge longstanding assumptions about pro se litigants.
First, pro se litigants share—or, at least, come from communities that broadly reflect—the demographics of the general population. In this way, the pro se litigants presumably are not different from represented litigants. As such, “the federal judiciary should not see these litigants as a problem of strange outliers to manage, but as a public worth serving.” Michalski and Hammond argue that this finding should encourage judges and lawyers to reflect on the “economic reality of most Americans” in which more than 90 million people are poor or near poor. Elite legal institutions must de-other pro se litigants, rekindling a sense of shared community and connection.
Second, communities of color produce more-than-expected pro se litigants compared with predominantly White neighborhoods. Michalski and Hammond suggest that efforts to address the needs of pro se litigants should target these non-White neighborhoods. Although more research is needed to determine the cause of the finding, they suggest this finding might reflect another symptom of the general racial bias endemic in our civil legal system and society.
Third, rural communities produce fewer-than-expected pro se litigants, especially given the lack of lawyers in such areas. Again, more research is needed to figure out exactly why there are lower rates of self-representation.
Mapping the Civil Justice Gap in Federal Court is one of my favorite sorts of articles. It makes significant conceptual and descriptive contributions. My biggest critique, as with any enjoyable piece of writing, is that it left to explore. Michalski has another article exploring the gender gap in pro se litigation, so this is just a small quibble. But additional questions remain. This is a rich area. I hope that other scholars, Congress, and the Administrative Office of the U.S. Courts will answer Michalski and Hammond’s call to action.
