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< | A Justice League | >
> | An Anti-Justice League? | | | | |
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< | -- By MadelineCameronWardleworth - 10 Nov 2017 | >
> | -- 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. | |
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< | Directing public interest programs while a baby BigLaw? associate led me to the access to justice and technology dialogue. It is a rewarding albeit tall order to coordinate pro bono work within a patently for-profit entity: budgets are often exceeded, value-add is implicitly questioned, and efficiency is a constant conversation point. The appeal of computer-predicated streamlining strategies became obvious to me when a client, the subject of repeated, gendered, police brutality and intimidation, gained access to an iPhone via her couch-surfing sister. My ability to provide my client with legal services skyrocketed when she ceased having to trek to her local library, four small children in tow, to access emails and scan documents. One pearl of rapid, accessible technological change, it appeared, was better justice system experiences. I began to enthusiastically and independently research the area, hoping to identify tools that I could deploy to improve my female clients’ access to justice. Conference papers followed. | >
> | 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? | | | | |
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< | Resistance renaissance required
Evidently in vogue, access to justice and technology has become a collective exercise and enterprise. Hackathons on the subject are a regular affair, prestigious law schools now house labs and churn out commentary, and aficionados congregate at symposia to progress solutions. The infatuation with access to justice innovation is understandably infectious, and Roger Smith OBE described its allure in January of this year: [I]n the tsunami of austerity cuts, technology provides one of the few possible islands from which we can rebuild acceptable levels of assistance and, indeed, resistance. This invoking of ‘resistance’ is curious. Largely unexamined in the access to justice plus technology discourse goes the broader Internet society context in which solutions grounded in technology operate, and the power structures that solutions function to reinforce. Present-day A2J? strategies view power in its traditional conceptualization. Access to justice technology tools center on providing Davids – female domestic violence victims, small business owners, refugees – with solutions against old world order Goliaths – abusive male perpetrators, flush multinational conglomerates, xenophobic state governments. The elephant in the room is what the promulgation of these tools does in the new era of power, where those who control data are growing into an unprecedented Goliath. Instead of pursuing that dark discussion path, in this an overtly sinister time, the alternatively framed question reads: how can we improve access to justice through technological tools, in a manner that does not deleteriously impact freedom? Or, can we improve access to justice using technology that does not deleteriously impact freedom and that also challenges the intensifying new power hierarchy? That latter sweet spot might be achieved through free software. | >
> | 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. | | | | |
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< | Software that is free | >
> | Resistance renaissance required | | | | |
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< | Free software is on occasion considered in access to justice discourse. An example is Stanford Legal Design Lab Director Margaret Hagan’s blog: | >
> | 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. | | | | |
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< | 'One item on my ever-growing Access to Justice agenda is an online hub full of worthy software solutions for legal organizations to use. Ideally, with software that is affordable if not free — and designed to be easily updated & changed. As opposed to software that is proprietary to one company, who, after they sell it to a court or a legal aid group, continues to extract money from them for updating and adapting the software.'
(Emphasis added). | >
> | 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. | | | | |
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< | The appeal of the described software to A2J? tech thought leaders like Hagan is its cost-effectiveness and user-friendliness. Indeed an example of A2J? ‘free software’ is cloud-based software, used to build and implement user-friendly web based interfaces for document assembly. There are other perks associated with free software, as in software that has a positive relationship with freedom and is generated under anarchist production. This other kind of software that is free provides benefits for freedom and for the quality of tech-based tools, and could help in securing broad, technical expertise engagement to respond to the pervasive access to justice problem.
Squad goals
In addition her Stanford duties, Hagan is a reliable creator of cartoons about the access to justice dilemma. An example is her depiction of a tutu and crown-sporting feline, accompanied by damning prose: Americans spend more money on their pets’ Halloween costumes than on legal aid. I first saw this graphic when I plunged into A2J? and tech research. At that time, I did not locate literature about the new human nervous system, or about free software. Now that the drapes have been drawn it is apparent to me that a more nuanced public discourse is required, and new coalitions to boot. Hagan, and those within the mainstream access to justice and technology community, combined with those within the free software movement, would likely form a powerful, productive alliance. Half a century from today, her cat cartoon could be a historic relic about the then poor, now reformed, accessibility of justice.
This draft feels to me in a way like a preface. You have
written out the reasons why you are about to do some new
thinking. That thinking is valuable precisely because it is
built on the foundation of experience and understanding
you've described.
There are two aspects here about which you are thinking. One
is how to empower lawyers and other justice practitioners to
increase their reach and productivity using free technologies
which are also inexpensive, because the software costs
nothing and the people who help others customize and use it
aren't part of a proprietary product monopoly. The second is
how to make safe and sensible use of the proprietary,
behavior-collecting technologies which have integrated
themselves into the lives of the clients whose lives are now
networked for much better as well as much worse. These are
in many ways independent projects, because the Net is made of
peers that don't have to be the same in order to work
together.
Our "Lawyering in the Digital Age" clinic has for years
focused on the first set of issues for non-profit and other
public service practices, with some inevitable forays into
the second. Hagan, like Conrad Johnson and Mary Zulack here,
is unquestionably in touch with the root of the matter.
I think your next draft should leave very little introductory
material in place, and should pick up essentially where this
draft leaves off: by considering, suggesting, analyzing or
dreaming up places to go from there. What are the crucial
components of Hagan's hub? What already exists and what
needs to be created? What does a client who has an
inexpensive Android or too-expensive iOS device need in order
to communicate better and more securely with her lawyers, and
how should she get it? | >
> | 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. | | | | |
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> | Where do I go from here? | | |
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> | 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. |
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