A Justice League

-- By MadelineCameronWardleworth - 10 Nov 2017

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.

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.

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.

Software that is free

Free software is on occasion considered in access to justice discourse. An example is Stanford Legal Design Lab Director Margaret Hagan’s blog:

'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).

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?