Access to Justice: Opening the Courthouse Door

April 16, 2007

Our nation’s promise of “equal justice for all” is among its proudest traditions. American courts promise a forum for individuals to settle disputes in a civil manner, under the rule of law. Courts are supposed to ensure predictability so that individuals and businesses can tailor their actions accordingly; contracts, for example, are binding because courts exist to enforce them. In our tripartite system of government, courts act as a check on the ability of the legislative and executive branches to accumulate excessive power. They protect the most vulnerable among us and curb the excesses of majoritarianism. Finally, courts reaffirm the citizenry’s faith in the equal application of the laws and thus in the legitimacy of government in general.

To be sure, resort to the courts is not always a desirable end. Anyone who has ever been involved in litigation is aware of its limitations—the expense, the complexity, the delay, and the ways in which human concerns can be filtered out of the process. Yet, the opportunity to resolve disputes within a court pursuant to the rule of law remains essential in a broad range of matters involving the concerns of low-income individuals. Just as a person with substantial means would never dream of buying a home or seeking a divorce without consulting a lawyer, persons of modest means likewise enter into life-altering transactions for which consultation with counsel is essential. For people of limited financial means, access to an attorney can be the difference between losing a home or keeping it, suffering from domestic violence or finding refuge, languishing in prison or reuniting with family and community. And as decisions related to the War on Terror have demonstrated yet again, the courts can and do function as an essential bulwark of liberty—affording those accused of the worst crimes their only opportunity to establish their innocence and acting as a check on overreaching by the executive branch.

In order for “equal justice for all” to be more than a hollow promise, people require access to the courts that is meaningful, with representation by qualified counsel, the opportunity to physically enter the court and to understand and to participate in the proceedings, and the assurance that their claims will be heard by a fair and capable decision-maker and decided pursuant to the rule of law. In this white paper, we describe how these features of meaningful access to the courts are increasingly absent. We conclude by offering a series of proposals to bridge the gap between the lofty promise of equal justice and the often disappointing reality of justice on the ground.

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About the Authors

As Director of the Justice Program at the Brennan Center for Justice, David Udell guides the Brennan Center's Access to Justice Project and Liberty & National Security Project, overseeing a broad array of litigation, research and public advocacy initiatives. Mr. Udell is a nationally recognized leader of the civil right to counsel movement, and is counsel in the Brennan Center's lawsuits challenging federal legal services funding restrictions. Prior to joining Brennan, Mr. Udell was a Senior Attorney at Legal Services for the Elderly, helping to coordinate advocacy in New York and nationally. As a legal services lawyer, he brought a series of class actions challenging the racial bias of a Social Security administrative law judge, the categorical denial of Social Security disability benefits to people suffering from heart disease, and, the systematic refusal of the U.S. Treasury to promptly replace stolen Social Security payments. He was also a managing attorney of MFY Legal Services' Disability Project, and a staff attorney on MFY's Mental Health Law Project and on its Disability Project. Mr. Udell has taught as an adjunct professor at New York University School of Law and at Fordham Law School, and has served on the Pro Bono and Legal Services Committee of the Association of the Bar of the City of New York. He is currently a member of the Advisory Board to the Justice Center of the New York County Lawyers' Association. He earned his J.D. from NYU Law School (1982) and his B.A. from Brandeis University (1979).

Ms. Diller coordinates the Brennan Center's legislative and public education campaign to eliminate the private money restriction on legal services programs and works on other initiatives in the Center's Access to Justice Project. Prior to joining the Brennan Center, Ms. Diller served as a staff attorney at and then director of the New York Civil Liberties Union's Reproductive Rights Project, where she oversaw litigation, legislative and public education initiatives. Previously, she represented low-income clients in housing and government benefits cases at Legal Services for the Elderly in Queens and at Housing Works, Inc. She received her J.D. from New York University School of Law, where was an Arthur Garfield Hays fellow, and her B.A. from Rutgers University.