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Dan Froomkin

The Huffington Post • froomkin@huffingtonpost.com

 
Dan Froomkin

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Access To Justice In U.S. At Third-World Levels, Says Survey

October 14, 2010


Why haven't more Americans successfully sued the banks that lured them into fraudulent mortgages, then foreclosed on them without the required paperwork?

It could be because the civil justice system in this country is essentially inaccessible to many Americans -- and when it does get accessed, is tilted toward the wealthy and moneyed interests.

That's certainly consistent with the finding of a world-wide survey unveiled Thursday morning that ranks the United States lowest among 11 developed nations when it comes to providing access to justice to its citizens -- and lower than some third-world nations in some categories.

Particularly when it comes to access to and affordability of legal counsel in civil disputes, the U.S. ranks 20 out of the 35 nations surveyed, below not only developed nations but also such countries as Mexico, Croatia and the Dominican Republic.

The results are from the World Justice Project's new "Rule of Law Index", which assesses how laws are implemented and enforced in practice around the globe. Countries are rated on such factors as whether government officials are accountable, whether legal institutions protect fundamental rights, and how ordinary people fare in the system. The index will expand from 35 countries to 70 next year.

The lowest-ranking countries in this year's survey included Liberia, Kenya, Nigeria and Pakistan.

The U.S. didn't lead the world on any of the rule-of-law measures, ranking near the bottom of the developed world on most -- including even fundamental rights. But the most striking findings related to access to justice for ordinary people.

As part of its fact-finding, the organization polled 1,000 people in New York, Chicago and Los Angeles, and found a significant gap between the rich and the poor in terms of their use and satisfaction with the civil courts system. According to a news release:

For instance, only 40% of low-income respondents who used the court system in the past three years reported that the process was fair, compared to 71% of wealthy respondents. This 31% gap between poor and rich litigants in the USA is the widest among all developed countries sampled. In France this gap is only 5%, in South Korea it is 4% and in Spain it is nonexistent.

Juan Botero, the index's director, told the Huffington Post that the U.S.'s poor ranking on access to justice "is a little bit surprising" considering that our society is so prone to litigation, and so fascinated by TV shows about law and order. But he said the index simply quantifies what was already the consensus among legal experts: That when it comes to access to justice, "the U.S. could do a better job, especially with marginalized communities."

Indeed, the index's findings are consistent with previous studies of access to justice by lower-income people. The Legal Services Corporation reported last year that state-level studies had concluded that less than one in five of the legal problems experienced by low-income people are addressed with help from either a private or legal-aid lawyer.

Unequal access to the legal system is also a problem that the Obama administration has publicly acknowledged and is trying to address.

In March, Attorney General Eric Holder appointed prominent Harvard Law Professor Larry Tribe to serve as a senior counselor in charge of a new Access to Justice Initiative. His goal is to work with judges and lawyers across the country to find ways to help people who cannot afford a lawyer.

As Tribe himself put it in a June speech:

The truth is that as a nation, we face nothing short of a justice crisis. It is a crisis both acute and chronic, affecting not only the poor but the middle class. The situation we face is unconscionable. It's why the President and the Attorney General created the Access to Justice initiative that I am leading, and it's why we won't rest until we have made measurable and sustainable progress, but to make that progress and to do it across the board, we have got to first acknowledge that what we do know is far outweighed by what we don't know.

Botero said the index is not intended to be prescriptive. "The index doesn't give you a complete recipe for action; it doesn't even give you a full diagnosis. It's like a thermometer," he said.

Nevertheless, he noted that many other countries have more robust mechanisms to provide legal assistance to the poor.

For instance, in many Latin American countries, law students spend their final year of law school serving the poor. Or in Japan, many disputes are adjudicated by administrative bodies. In the U.S., he said, small claims court works very well. "However, the scope of coverage is limited." The result: "There seems to be a gap in the system."

The U.S. criminal justice system received a mixed grade in the new index, ranking well when it comes to guaranteeing due process of law, but ranking last among developed nations on delivering impartial justice.

How exactly does the index define access to justice? The report states:

In a nutshell, these factors measure whether regular citizens can peacefully and effectively resolve their personal grievances in accordance with generally accepted social norms, rather than resorting to violence or self-help.


For civil and informal justice, this implies a service that is affordable, effective, impartial, and culturally competent. For criminal justice, this implies a system capable of investigating and adjudicating criminal offences impartially and effectively, while ensuring that the rights of suspects and victims are protected.

Impartiality includes absence of arbitrary or irrational distinctions based on social or economic status, and other forms of bias, as well as decisions that are free of improper influence by public officials or private interests. Accessibility includes general awareness of available remedies, availability and affordability of legal advice and representation, and absence of excessive or unreasonable fees, procedural hurdles, and other barriers to access the formal dispute resolution systems. Access to justice also requires fair and effective enforcement of the decisions.

And why is all this important? The report explains:

Establishing the rule of law is fundamental to achieving communities of opportunity and equity--communities that offer sustainable economic development, accountable government, and respect for fundamental rights.


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Dan Froomkin is senior Washington correspondent for the Huffington Post. You can send him an e-mail, bookmark his page; subscribe to RSS feed, follow him on Twitter, friend him on Facebook, and/or become a fan and get e-mail alerts when he writes.

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