An Anti-Justice League?

-- By MadelineCameronWardleworth - 7 March 2018

The lay of the land

In a 1973 New Yorker cartoon, a suited attorney sits behind a desk scattered with papers and envelopes. You have a pretty good case, Mr Pitkin, remarks our learned friend. How much justice can you afford? That this bleak joke resonates strongly and internationally, nearly half a century later, is testament to the insidiousness of a problem colloquially referred to as access to justice. Since that now-famed cartoon’s December 24 publication, access to justice has, amongst other things, metamorphosed into a political football, a cause célèbre for civil society advocates, and a professional focus for public interest inclined attorneys and academics in domestic and international jurisdictions. The careers, entities, and projects centered on remedies are demonstrative of a giant leap forward for humankind’s justice systems. Technology and innovation are the most recent strategies to gain traction in the access to justice problem-solving party. This is unsurprising. The tech+A2J equation is an attractive one. Convenient, commonsensical, and often on-brand, access to justice featuring technology has amassed a star-studded, multidisciplinary fan base, and its advocates to date include the Clooney powerhouse and the public intellectuals of the Susskind family.

A happy development indeed. But, upon zooming the camera lens out from this flurry of A2J? activity, so as to gain visibility of the panoramic landscape of legal systems, a Pandora’s box is cracked wide open. How is it that, notwithstanding considerable public pressure over a protracted period of time, access to justice remains a work-in-progress policy priority? Who has a stake in preventing access to justice? Where do the arms of government stand? Does technology, the darling protagonist of the A2J? -enthusiast elite, against a backdrop of rising inequality and power concentration, simultaneously play a villainous role in excluding laypersons from justice?

My first foray into the A2J? fold was in 2016 as a BigLaw? associate, bewitched by the possibilities of optimizing the pro bono clinic and diversity program I coordinated. I began to enthusiastically and independently research, hoping to identify tools that I could enlist to improve my clients’ access to justice, and that would advance women in the law. Fast-forward two years, and today I am increasingly alarmed at the broader Internet society context that solutions predicated on technology operate in, and the structures that tech tools function to reinforce. Moreover, I am concerned by the invisible hands at work which puppeteer players, myself included, on the access to justice stage. Identifying who is who in the anti-A2J zoo is, to my mind, a critical task.

Resistance renaissance required

It’s the economy, stupid, is a sensible point of departure. The privatized nature of access to legal information often goes unanalyzed in mainstream A2J? discourse, a curious phenomenon, because the ties that bind appear clear. Those who monopolize and monetize access to legal literature would likely lose profits should open access to legal information become the order of the day. Let us assume that LexisNexis? , Westlaw and Bloomberg are among the members of a motley crew who have a stake writ large in segregating people from sophisticated, navigable public databases that provide for justice knowhow. After all, their bottom line is predicated on their ability to charge a sum for access to these materials. This requires government action or omission: open government data must remain unfashionable for their registration fees to be worth forking out for. Notwithstanding that ‘Making Open and Machine Readable the New Default for Government,’ and its reverberations, including the Harvard Library Innovation Lab’s Free the Law Project, constitute part of the Obama legacy, law remains trapped behind a pay wall. This is attributable at least in part to politicians’ historic responsiveness to corporates.

Here, the relationship between access to justice and access to legal knowledge need be noted. The interaction of these twin accesses, in the context of the law-politics-technology public arena, creates a perfect storm. One suite of corporate entities dictates user-friendly access to case law, commentary, statute, dictionaries, etc. This diminishes the general populous’ ability to access and understand the law. This influences a person's ability to access justice. All the while these entities communicate, disingenuously, that they constitute part of the A2J? + tech alliance. Just last year, for example, Westlaw sponsored a Tech for Justice hackathon on A2J for veterans.

Others are, in effect, in anti-A2J cahoots. With assistance from the current USSC, a conservative-led campaign has struck at Americans’ ability to have their day in court. The Roberts ‘Corporate Court’ has aligned with the Chamber of Commerce and other pro-corporate parties in rewriting federal pleading standards that render trial less accessible, limiting class actions, favoring forced arbitrations, and rubber-stamping discrimination. Their pièce de résistance is arguably Citizens United. With that decision a Frankenstein was born. Corporate interests were handed an unprecedented ability to prescribe political agendas. The conservatives’ Citizens United verdict is one of the conditions of possibility for the perfect storm described.

Where do I go from here?

The politics of accessibility of justice are charged. There is an access to justice axe to grind contra multiple government branches, and big business. Major technological tools that enable access to legal information are presently held hostage. Instead of technological tools emancipating, as they are so regularly described as doing in mainstream A2J? +tech discourse, these tools reify David and Goliath dynamics and keep justice understanding beyond the reach of the masses. The NYT’s sinister cat cartoon alludes to a broken system of access to justice and access to law, which requires macro level reform, in lieu of yet another iOS app.

I think this revision did what we hoped it would. A very interesting essay, bursting a little at the seams, but all to the good.