Transforming the Civil Justice System Would Advance Equity for All
Civil justice is a way for people to achieve fair solutions when they’ve been harmed by another person or entity’s actions. It differs from criminal justice in that the civil justice system is designed to help people protect their safety, health, and housing through laws endowing rights and protections. Eviction, domestic violence, consumer fraud (PDF), job discrimination and wage theft, and child custody (PDF) and support all fall within the civil system.
But there are huge civil justice barriers: 86 percent of the civil legal problems reported by Americans with low incomes receive little or no legal help. Well before the COVID-19 crisis, our civil legal system was inaccessible and unfair to millions of people and, as inequalities grew more severe during this crisis, the civil legal system became more essential for addressing them.
As Michigan Supreme Court Chief justice Bridget Mary McCormick remarked, “This crisis might not have been the disruption we wanted, but it’s the disruption we needed.” Civil justice champions—change agents working on all levels—are embracing the disruption, breaking free of traditional mindsets, and creating a generative justice system. A generative civil justice system would reform policies and rules to ensure fairness, eliminate inequalities, and shape the ecosystem to achieve well-being (PDF) and just resolutions (PDF).
Generative civil justice eliminates inequalities by creating accessible supports that give people what they need, when they need it, in a format they can use to resolve their issues. It would advance policies and rules that level the playing field, such as courts requiring debt collectors to produce documentation proving their claims (most courts accept the word of collectors that a debt is owed).
Rather than reacting to change, a generative justice system would also initiate change by driving innovations to continuously shape the ecosystem. Think Amazon embracing Kindle, even though it could have replaced its dominate market position for selling hard copy books.
Our research suggests justice champions and organizations interested in creating the conditions for a generative justice system exhibit 10 critical characteristics, including the following:
1. Divergent thinking
Divergent thinking involves reframing issues and their solutions to challenge dominant institutional logic, going beyond the traditional set of choices. For example, Rhode Island Legal Services, led by Robert Barge, reframed its definition of success from the traditional measure of “case closed” to a bold measure of economic stability. Their Holistic Legal Assistance Network addresses interconnected social, economic, and legal issues to help their clients achieve economic stability. If someone comes to them for eviction assistance, the network may also discover child support issues, workplace wage theft, or illegal denial of a person’s public benefits. Because the network also includes social-sector partners, this complete legal check-up (similar to a complete medical check-up) connects people immediately to other supports.
2. A pioneering attitude
When staff adopt a pioneering attitude, they become leaders outside of their institutions and can set the pace of evolution in the sector. With a pioneering attitude, Sacha Steinberger founded Legal Link and developed the Legal First Aid training program to span the artificial boundaries of human service and civil legal organizations, resulting in streamlined and integrated assistance. Legal Link trains and supports frontline human service partners to identify legal issues, like restoring a driver’s license, as part of workforce training so a person can explore more job opportunities or secure child support.
3. A systemic perspective
Understanding that staff operate in a larger system and have broad market intelligence enables them to better anticipate the emergence of new dynamics that catalyze change. As information technology director for the Maryland Volunteer Lawyers Service, Matthew Stubenberg demonstrated a systemic perspective when he analyzed data and discovered that a late utility bill payment is a predictor of a person’s risk of losing their home. This early warning detection allows solutions that avoid the instability and disruption of foreclosure for a family and community. Adopting a systemic perspective can help ensure the civil justice system prevents economic, health, education, and social issues from becoming legal issues.
The National Center for Medical Legal Partnership also demonstrates a systemic perspective, evidenced by the New York Times headline, “When You Are Sick, the Cure May Be to Call an Attorney.” The center fosters partnerships between attorneys and health professionals to address root causes of issues. So instead of emergency room staff having to repeatedly treat a person who experiences asthma attacks triggered by mold from leaking pipes in their apartment, the partnership goes directly to the landlord to ensure they take responsibility for providing safe and livable housing.
4. Adaptable structures and processes
Adaptable structures that aren’t hierarchical help a system and all its actors adopt changes to remain relevant, instead of inhibiting them. The Self-Represented Litigation Network, composed of nearly 3,000 people from multiple sectors and disciplines working on policy, approaches, and rules to help people achieve fair resolutions, serves as an infrastructure backbone that facilitates timely exchanges among participants to leverage their wisdom and knowledge on a wide range of issues and solutions.
Creating a generative civil justice system to advance equity for all
The COVID-19 pandemic has emphasized and exacerbated gaps, barriers, and inequities in the civil justice system. By embracing the characteristics described in our research, justice champions are reinventing the civil justice system to make it more accessible, accountable, and fair for all members of society.
The Urban Institute has the evidence to show what it will take to create a society where everyone has a fair shot at achieving their vision of success.
SDI Productions / Getty Images