Simplicity As Justice
18 Pages Posted: 16 Aug 2018
Date Written: April 9, 2018
Simplification of the legal system has attracted attention as a means of improving access to justice. A motivation for reform is the perception that laypeople have flooded the courts and generated a “pro se crisis.” Given the expense of advocates’ labor, instead of providing litigants with representatives, a growing number of commentators propose simplifying proceedings. Proponents claim that simplification will decrease the time and expense of adjudication, help litigants overcome technical requirements, and increase litigants’ satisfaction. This essay argues that the objectives of the simplification project are incomplete and carry potential downsides. Prior commentary has highlighted challenges from an individual litigant’s standpoint, such as the risk of substandard services and standardized solutions that will not fit everyone equally. This essay turns instead to the underlying efficiency goals and how they affect the administration of justice broadly defined. Part I critiques the goal of cutting costs. It argues that costs are not always normatively negative and provides examples of how costs can be socially useful. Part II critiques the goal of increasing speed. Slowness may be a necessary byproduct of maintaining individual rights. Moreover, delay is sometimes the only means of imposing vital restraints on the force of powerful actors. Part III situates the drive to simplify poor people’s courts in the context of a broader anti-regulation trend, which favors privatizing adjudication and eschewing formal law for informal arrangements. It urges reformers of the civil justice system to focus their priorities on public law values, namely democratic participation and limiting excesses of power.
Keywords: Access to Justice, Legal Profession, Courts, Poverty, Right to Counsel, Civil Justice System
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