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We can’t solve the justice crisis with lawyers alone

In a recent op-ed, the editorial board of The Washington Post rightly wrote that justice requires expanding the right to counsel beyond its current, limited bounds. Inadequate legal counsel is part of a larger access to justice crisis that plagues the U.S. and many other countries. The communities facing this crisis are often the same ones facing other compounding crises, including environmental injustice, institutional racism, disproportionately worse COVID-19 outcomes, and economic, food, water, housing, and other insecurities.

Expanding access to lawyers is one part of the solution. But there is another part of the solution that the editorial team overlooked: democratizing law.

In the U.S., law has become such a rarefied, specialized realm that it’s all but inaccessible to the average person. This has permeated into the public’s notion of law. Many people facing, for example, polluters violating permits and poisoning the air, water, or soil feel like their primary legal recourse is to find a lawyer to take their case. Often, lawyers tell them that the best solution is a slow walk through byzantine court procedures where — hopefully — their rights are vindicated months, years, or decades later. That glacial vindication is weak comfort for people facing life- and livelihood-threatening crises at the scale of weeks, days, or even hours.

It doesn’t have to be this way.

The idea that highly specialized legal counsel is needed for all matters touching law is deeply problematic. It disenfranchises non-lawyers and concentrates the power of law in the hands of an elite few. And the system tends to reinforce itself, with generation after generation of legal specialists creating ever more-complex legal and regulatory schemes requiring extensive training to master.

Decades (or centuries, depending on how you count) into this unmitigated march towards legal hyper-technocracy, inequity continues. Law in the hands of elite specialists has not propagated a tidal wave of justice.

Democratizing law, or legal empowerment, pushes back against that trend and expands the range of advocacy that can be done without a lawyer. It works to ensure that the communities affected by law can know, use, and shape law. In various ways, legal empowerment efforts all redistribute the tools of law, equipping people most in need with information about not just their rights but also the channels for vindicating those rights. For example:

In New York City’s Court Navigator program, non-lawyer “court navigators” assist tenants in housing court to fill out forms, find their way around the building, and understand court processes. Researchers for the American Bar Foundation and National Center for State Courts wrote that at the time of their study, about one in nine tenants who appeared in housing court would be evicted. Yet in 150 cases in which tenants had help from navigators, they found no evictions at all. Not one.

The Jailhouse Lawyer Initiative, led by returned citizen Jhody Polk, provides non-lawyer incarcerated advocates with training and resources to represent and educate fellow incarcerated people on their cases and their rights. They also create opportunities for former jailhouse lawyers to become leaders in the fight against mass incarceration by using their skills and stories upon release.

At Namati, we are infusing law into community organizing for environmental justice, working with communities facing the brunt of pollution to address threats to health, livelihoods, and environment. The grassroots advocates we work with here in the U.S. research environmental permit conditions, request and review facility compliance reports, submit detailed pollution complaints, and draft community comments to land use plans that represent residents’ collective vision for where they live.

Despite these and other legal empowerment efforts’ proven successes, they face structural limits like the restrictions that serve to maintain attorneys’ monopoly on law. Anyone other than licensed attorneys providing advice on how law applies to someone’s circumstances can be said to be committing “unauthorized practice of law.

The answer to the injustices resulting from lack of counsel isn’t simply “more counsel.” The real issue lies in the inequitable concentration of power, and the rules that maintain that concentration.


April 29, 2021 | Jay Monteverde and Vivek Maru

Region: > Global   |  United States