Closing the Gap

Fordham Law School launches Access to Justice Initiative.

For evicted New Yorkers, indigent defendants in New Orleans, immigrant mothers detained in south-central Texas, and rural Nepalese farmers living in the Himalayas, access to justice is often the deciding factor in retaining their property, keeping their families together, and preserving their basic physical safety and security. As wealth inequality grows in the United States and across the globe, so too does the number of people with unmet legal needs.

Fordham Law School’s centers, institutes, clinics, and student groups have long worked to narrow the justice gap—by providing legal assistance and working to improve policies that are responsive to the concerns of the poor and working poor, including racial, ethnic, and religious minorities and women. This fall, the School will strengthen its commitment to access to justice, with the arrival of the National Center for Access to Justice and the launch of a schoolwide Access to Justice Initiative that will serve as a national model for legal education.

A priority of Dean Matthew Diller, who is drawing on his own experience as a civil legal aid attorney and his scholarship in the field of poverty law, and an integral corollary to the service-oriented mission of Fordham Law School, the initiative features the addition of two access-to-justice heavyweights. Jonathan Lippman, former chief judge of the New York Court of Appeals, will be the initiative’s distinguished fellow. David Udell, executive director of the National Center for Access to Justice, whose Justice Index provides reformers an invaluable online resource to promote access best practices across the United States, will bring his expertise. Together, Diller, Lippman, and Udell will co-chair the new initiative.

“When you add together Jonathan Lippman and David Udell to our existing programs and resources—the Feerick Center for Social Justice, the Stein Center for Law and Ethics, the Leitner Center for International Law and Justice, and the Center on Race, Law and Justice, among many others—this initiative brings strength, ingenuity, and passion to the School’s access-to-justice agenda,” Diller says. “It’s a way we can take our motto, ‘In the service of others,’ to another level.”

The initiative focuses on three levels of engagement—teaching, direct service, and scholarship/research/advocacy—and in so doing provides an opportunity for the Law School to examine what its work is achieving and what it can further accomplish, Diller says. This heightened attention to innovation and accomplishment will be used to create conferences, symposia, and panel discussions designed to educate lawyers, policymakers, and the public about the scope of the justice gap, the facets of the problem in both the civil and criminal justice systems, and the opportunities and necessity for reform.

Gaping Implications

Diller was exposed to access-to-justice issues early on in his legal career as an attorney with The Legal Aid Society. During his seven years there, he and Udell litigated against the Reagan administration’s “non-acquiescence” policy of disregarding decisions of the U.S. courts of appeals that governed federal agency decision-making on the benefits claims of Social Security recipients. Diller also fought the state of New York to revolutionize the provision of adequate housing grants to families on welfare. These experiences awakened Diller to a stark reality: Many people lose homes, benefits, and basic services every day and often for no good reason other than the dysfunction of the justice system.

“The social safety net has many holes, and this can lead to instances of great injustice that fuel the growing inequality in our nation,” explains Diller, who started practicing law in 1986 and serves on the board of The Legal Aid Society of New York. “When inequality becomes so pronounced that it results in violence, access to justice doesn’t simply make a difference; it protects lives.”

With many of the problems in the U.S. justice system more painfully visible today, Diller says the legal community, and society as a whole, has grown to more fully appreciate the importance of access to justice, and he is committing the School to making a difference in suturing the justice gap. According to Diller, it is critical that we understand as completely as possible the vicious characteristics of that gap: the threat it poses to civil society, the indelible harms it causes to people and communities, and the disenfranchisement it breeds among vulnerable populations.

One person who has long recognized the severity of the problem, who has guided the state judiciary in New York and nationally to an active role in responding to the problem, and who has contributed greatly to the public’s fundamental shift in understanding of the issues is Jonathan Lippman.

From 2009 to 2015, Lippman served as chief judge of the New York Court of Appeals, where he notably increased funding to civil legal services, established a mandatory 50-hour pro bono requirement for law students, and created the Task Force to Expand Access to Civil Legal Services in New York (converted during the final year of his tenure to the Permanent Access to Justice Commission). Lippman also started the Pro Bono Scholars program, which invites qualified 3Ls to take the bar exam early in exchange for pro bono work, and he advocated for judges to preside over grand jury hearings involving police-civilian shootings.

Lippman’s early career as deputy chief administrator for management of the New York state court system and a later 11-year run as New York’s chief administrative judge played a major role in the reforms he launched.

 “Seeing this army of people coming to courts looking for relief from their most pressing problems—it provided me a broader perspective,” Lippman says. “It made a great impact on me when I was elevated to the bench and rose through the system because I was acutely aware of the need to close the justice gap and for the judiciary to serve as a catalyst for reform.”  

In 2009, Lippman appointed Diller to the task force that is known today as the Permanent Commission on Access to Justice in New York.

“Judge Lippman said, ‘Don’t be daunted by the fact that there is a lot to be done and that the numbers are large,’” Diller recalls. “He believed this problem could be tackled and resources could be found for low-income clients. He has shown it’s possible.”

Lippman and Diller established a close and mutually supportive relationship, particularly on projects designed to assist society’s most vulnerable in obtaining necessary legal support and representation.

When age-limit restrictions forced Lippman’s retirement from the bench at the end of 2015, he and Diller discussed the potential to expand their work at Fordham Law School. It helped, Lippman says, that his new employer, Latham & Watkins, is dedicated to pro bono services and supported his collaboration with Fordham Law. (In 2015, Latham & Watkins provided 188,000 hours of free legal service valued at $118 million.)

“My view that the academy should be very much a part of this effort dovetailed with the dean’s view on this issue,” Lippman says. “Once I got into the private world and private practice, I thought, wouldn’t it be great if we could do something to foster that end?

“To me this is all about leadership, innovation, and partnerships,” Lippman continues. “Law schools should be involved in each of those areas.”

An Ocean of Cases

Six years ago during a keynote address on the importance of civil legal aid, Lippman declared boldly, “If the courts are not prepared to assure access to justice, what is the point of having courts in the first place?” He went on to explain that the fundamental rule of law is in jeopardy when legal protection is available only to those who can afford it. Lippman’s call to reshape the courts to always insist on access to justice has been deeply influential within the courts themselves and has galvanized many lawyers and legal scholars, including Udell, whose work leading the Justice Program at NYU’s Brennan Center for Justice had naturally aligned with this vision.

Udell had led the national fight to overturn restrictions that encumber the work of lawyers on behalf of their clients in federally funded civil legal aid programs, culminating in the landmark decision Legal Services Corp. v. Velazquez, in which the U.S. Supreme Court overturned a ban on challenges by legal aid lawyers to welfare-reform laws. He had also challenged court rules that barred advocacy by law school clinics in New Orleans on behalf of low-income communities that objected to the toxic siting of chemical plants in their midst. Additionally, he had guided research initiatives that produced the early, pathbreaking reports on the scope of the burden imposed by state court fees and fines on people in the criminal justice system, and by bench warrants and drivers’ license suspensions that were routinely issued when they were unable to afford payment. 

Following the legal impact of the 2008 economic crash on state courts—when millions of people flooded the state courts in evictions, foreclosures, debt collection cases, family law disputes, and many other categories of cases—Udell shifted the focus of his work to cover not only the critical need to strengthen legal aid representation, but also the emerging challenge of helping the state courts respond in more ways to the pressing needs of millions stuck in the justice gap without representation.

This work continued through 2010 when he founded the National Center for Access to Justice at Benjamin N. Cardozo School of Law and became the center’s executive director. “The increasing inequality in our society and the intensifying pressures on the middle class have raised the stakes for millions of families who find themselves in disputes with a legal dimension and in need of legal assistance,” he says. “Our state courts are submerged in an ocean of cases.”

Taking inspiration from Yale Law Professor Heather Gerkin’s The Democracy Index, Udell has led an innovative national endeavor to make access to civil justice a transparent and measurable statistic so that states can understand their progress—and absence of such—by comparing themselves to their neighbors.

Launched in 2014, the Justice Index uses data, indicators, and advocacy to rank, compare, and promote progress in state justice systems in four categories: attorney access, self-representation, language access, and disability access. Combining these four ranking systems, the Justice Index offers a composite view of progress in every state, Washington, D.C., and Puerto Rico. New York, for instance, ranks 22nd overall (2nd in attorney access, 16th in self-representation, 39th in language access, and 37th in disability access).

“The Justice Index offers a data-intensive platform for reformers and the public to draw on when working to improve our justice systems. In addition to serving as carrot-and-stick incentives, the Justice Index makes best policies easy to see and, therefore, easy for officials to replicate,” Udell explains. Because politicians of all stripes respond favorably to facts and figures, the Justice Index helps overcome bureaucratic resistance and other tortuous aspects of state government. Udell’s work has the government listening.

In 2016, the United Nations adopted the Sustainable Development Goals, one of which, Goal 16, asks all countries to rely on the “data revolution” to measure and accelerate access to justice as a means of helping end extreme poverty by 2030. Udell is co-leading an expert working group that is presenting to the U.S. federal agencies a set of recommendations for “indicators” that they can use to develop the first set of federal benchmarks to track and accelerate progress on access to justice in the United States.

Udell’s colleagues are not faint in their praise of how his work fosters change.

“His National Center for Access to Justice has really been a national leader in terms of evidence-based research and policy advocacy in enhancing access to justice,” says Dora Galacatos, executive director of the Feerick Center for Social Justice.

Udell’s national and international perspectives will enrich the Feerick Center’s understanding of its advocacy work in places like Dilley, Texas, and create opportunities for “deepening and broadening our activities,” Galacatos says.

“We are doing work with asylum-seeking families in Texas who have been released from federal family detention, and we are very interested in investigating what the lack of counsel means to that population,” Galacatos says. Some of the tools Udell has developed with his Justice Index could potentially translate to making the case for expanded services for families, she adds.

Elisabeth Wickeri, executive director for the Leitner Center for International Law and Justice, is similarly appreciative of Udell’s efforts.

“Too often, concepts like advocacy are characterized as imprecise,” Wickeri says. “The work David has done with indicators and measurement of impact is such a critical response to that argument.”

Udell’s data-driven work has illuminated the U.S. civil justice system and sparked serious talk of reform on a global scale. The Justice Index already examines access for people with disabilities and the use of interpreters in the criminal courts. Additionally, the NCAJ intends to expand its research and policy reach deeper into the criminal justice system as part of Fordham’s new widespread initiative.

Centering Access-to-Justice Work at Fordham 

The NCAJ is just one of Fordham Law’s many centers and institutes that have been engaged in access-to-justice work—some for decades—through their research and advocacy. These centers will help form the core of the initiative’s advocacy efforts and will involve Fordham Law students in activities that illuminate and move society forward on issues of access to justice.

Key among these issues is race and the law. In February, the Law School launched the Center on Race, Law and Justice, New York City’s first law center addressing broad issues of structural racial inequality and justice. Through interdisciplinary scholarship and analyses of race and inequality as well as academic activities inspired by substantive research, the center will directly confront many of the same problems that the Access to Justice Initiative seeks to address. “I’m very grateful to be at Fordham at a time when there’s so much support to engage with these issues,” says Robin Lenhardt, faculty director of the center. “Through the Access to Justice Initiative, the Center on Race, Law and Justice and other Fordham centers will be able to take advantage of many avenues to think about and act on this work.”  

Earlier this year, Stein Center for Law and Ethics Director and Professor Bruce Green published a paper titled “Access to Criminal Justice: Where Are the Prosecutors?” in the Texas A&M Law Review. Green argues in the piece that the bar should take a stronger role in elaborating prosecutorial norms, particularly in the context of miscarriages of justice both on the individual and systemic levels. When individuals are denied access to criminal justice, the bar should ask, “Where were the prosecutors?”

The Stein Center’s efforts reflect a broad view on access to justice that includes using the law effectively on one’s own and having access to social, economic, and racial justice, Green notes. This summer, the Stein Center hosted the three-day International Legal Ethics Conference, drawing 400 participants from 60 countries. The center also prepares and joins amicus briefs in cases involving legal ethics and access-to-justice issues, notably partnering in death penalty cases with Deborah Denno, founding director of Fordham’s Neuroscience and Law Center.

In addition to Green and Professor Russell Pearce who write about access to justice for low-income defendants, Diller highlights the scholarship of Professor John Pfaff, who has written extensively about how prosecutors have played a leading role in America’s mass incarceration crisis. His book Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform is scheduled for release in January 2017.

Upholding Gideon v. Wainwright’s imperative for representation for indigent defendants remains a challenge in the mass incarceration state Pfaff chronicles. The Orleans Public Defenders in New Orleans made headlines last fall when it announced the need to turn away defendants due to budget limitations.

“There’s a deep realization today that inequities in both the civil and criminal justice systems are causing hardships that ripple through life in our communities,” Diller says. The growth of income inequality and the housing market’s strain “create a confluence of issues that put access to justice at the center of these hardships,” he notes.

Access to justice appears at the center of other distinct areas of the law. Professor Clare Huntington has written about access-to-justice issues as they relate to family law in her book Failure to Flourish, and Professor Nestor Davidson has examined them in his work on urban law and property.

On an international level, the Leitner Center helps communities surmount basic, justice-related challenges that may seem unimaginable to some in the United States. For instance, in Nepal many people don’t live anywhere near a court, so how does one reach them? In Myanmar an armed conflict calls into question the very meaning of access to justice. Regardless of the severity of the situation, the Leitner Center trains the next generation of human rights lawyers with a large number of faculty who are attached to the Law School’s clinics and experiential learning programs. Clinical Professor Chi Mgbako has established mobile legal clinics in Africa and chronicled in depth the sex workers’ rights movement on the continent in her book To Live Freely in This World. As part of his work in Ghana, fellow Clinical Professor Paolo Galizzi has partnered with the country’s judicial and legal professionals to ensure trials are held in a timely fashion. Galizzi’s efforts have resulted in expedited trials of many who were languishing in prison.

In addition to internationally focused clinics, the Law School offers a host of clinics that offer students a major source of engagement with access-to-justice issues. During any given semester, the Law School offers approximately 15 different clinics—in areas as diverse as consumer litigation, criminal defense, and federal tax—that serve individuals who are facing difficult legal situations and who may not otherwise have the resources for legal representation. The clinics are supervised and taught by the School’s clinical faculty. Many of the clinics operate through the School’s nonprofit law firm, Lincoln Square Legal Services, which gives students a firsthand look at how representation can make a difference in people’s lives.

In the Service of Others

In April 2014, Fordham Law’s Public Interest Resource Center bestowed its prestigious Louis J. Lefkowitz Public Service Award on then Chief Judge Lippman for his many access-to-justice projects: the innovative Pro Bono Scholars program (in which Fordham Law students participate), the 50-hour pro bono requirement for New York state law students, and the registry for in-house counsel to engage in pro bono work. Lippman knows that it is imperative to get students involved in these types of projects.

“We need the next generation of lawyers to embrace these core values of our profession, above all else serving others and helping people,” Lippman says. “That’s the kind of leadership law schools have to provide.”

Lippman’s emphasis on pro bono work aligns with not only the mission of Fordham Law but also the actions of its students. The 2016 Fordham Law graduating class logged 123,000 pro bono hours, says Assistant Dean of PIRC Tom Schoenherr. PIRC supports student-initiated, pro bono, and community service projects for Fordham Law students beginning in their first year.

Student-led projects started in the late 1980s with Fordham Law students volunteering in the soup kitchen of the Church of St. Paul the Apostle on West 59th Street, helping overnight at homeless shelters, and assisting clients with housing issues at legal aid offices, Schoenherr says. He praises former Dean John Feerick for finding ways to support students in their service endeavors.

Today, Fordham Law has more than two dozen student-led service groups, ranging from consumer debt to immigration. PIRC often partners with clinics and centers to connect students and faculty with like-minded service goals. Students engage in projects that teach them not only what being a lawyer means but also the importance of service and advocacy.

One such example is the Immigration Advocacy Project’s recent trips to aid women and children detained at a family detention center in Dilley, Texas. During a trip over spring break in March, students with the Feerick Center and Stein Scholars helped numerous women prepare for their Credible Fear Interviews, a requirement of U.S. immigration services for those who want to apply for asylum and are subject to expedited removal. Galacatos and Bree Bernwanger, director of the Feerick Center’s New York Unaccompanied Immigrant Children and Immigrant Families Project,
prepared the six students and joined them on the trip.

Spending a week in Dilley advocating for immigrant families helped 2L Emerson Argueta find the courage to share his own immigration story. It also crystallized for him how the law differs in the real world from the way that it is discussed in class.

The work of students and faculty in places like Dilley prove that “In the service of others” is more than a simple school saying, Argueta says.

“People know about the motto going in, but once you’re at the School you see that Fordham actually implements it,” explains Argueta, who co-chairs the Immigration Advocacy Project with fellow 2L Alex Mintz.

Fordham Law students also make a profound impact in New York City.

Since 2008, the Feerick Center’s Civil Legal Advice and Research Office (CLARO) has assisted 8,600 unrepresented individuals across the five boroughs with their free consumer debt cases, according to Galacatos.

On Thursday nights in Manhattan, CLARO co-chair Joan Abelardo meets with debtors, often times angry and worried, to learn whether debt collectors properly served them.

“While we are not yet full-fledged lawyers, we can have a hand in helping people access justice,” Abelardo says, adding that it is heartwarming to see people leave the clinic with a sense of relief.

Both Lippman and Udell have voiced the need for creative thinking when it comes to the role of non-lawyers in civil matters where the number of people impacted, whether in housing or civil court, far outnumbers the attorneys available. Using technology to narrow the gap is also important, Green adds.

With this in mind, the Coalition for Debtor Education offers its participants financial quizzes via an app for iOS and Android phones.

An independent nonprofit housed at Fordham Law, the coalition has collaborated with CLARO in educating people of varying ages and backgrounds on financial matters such as budgeting, managing credit, and dealing with debt. The coalition also helps senior citizens make sense of summonses related to their debt.

“With Fordham’s resource support, the Coalition for Debtor Education is able to reach 3,500 people a year,” says Executive Director Carol O’Rourke. “I couldn’t do that otherwise.”

To the Front of the Class

Before Argueta, Mintz, and others traveled to South Texas for the CARA Family Detention Project, the Feerick Center’s Bernwanger trained them in the basics of asylum law and the inner workings of family detention. Access to legal assistance during Credible Fear Interviews is often the make-or-break difference for immigrant mothers proving they have a credible fear of returning home; once proven, they are not subject to deportation prior to their asylum hearing.

“For first-year students in law school, it’s easy to get lost in theory, rules, and case law, and lose sight of the bigger picture about why we become lawyers: to become fierce and powerful advocates for people who need it,” Mintz says.

The Access to Justice Initiative will provide expanded teaching opportunities, both through courses and clinics. This firsthand introduction shows students “how devastating it can be to navigate the legal process without counsel and the incredible difference legal assistance can make,”
Galacatos explains.

The emphasis on teaching access to justice is seen across the Law School, where courses such as Poverty Law, Consumer Protection Law, Disability Law, Environmental Justice, Race and Law, Immigration Law, Juvenile Justice, and International Human Rights are offered.

Second-year Stein Scholar students take the Advanced Seminar in Public Interest Lawyering, their capstone educational experience in which they work in teams in collaboration with public interest firms.

“A major part of the program’s goal is to equip them to achieve their ambitions to be lawyers in the service of others and become sophisticated about what that means,” Green says.

Injustice Withers

On December 31, 2015, the National Center for Access to Justice published a paper naming 2015 “[T]he Year the Pieces Came Together to Increase Access to Justice in the United States.” Udell wrote that the movement was strengthened both by the UN’s adoption of Global Goal 16 and the chief justices and chief court administrators of the American state courts’ resolution calling for “100 percent access to effective assistance for essential civil legal needs.”

The media has also recognized the failings of the criminal justice system. Thus, society has reordered its priorities so that legal representation for the poor is now as important as housing, schools, and hospitals, Lippman says.

“I think 1,000 flowers are blooming, causing this revolution in access to justice,” Lippman says. “The public mood and understanding are changing because of all the efforts in New York and elsewhere. There is still so much work to be done. The new initiative is very much a part of that work to focus attention, generate new ideas, and create new partnerships.”

The initiative has created a buzz both at Fordham Law and other law schools, Schoenherr says.

“My colleagues at schools around the country are both excited and jealous about Dean Diller’s Access to Justice Initiative,” he explains, noting how tremendous it is that the dean of a nationally known law school understands that a dedicated commitment to access to justice can serve the organizing framework for legal education and, more broadly, for the profession itself.

It is now time to turn that excitement into results.

“The name of the game is to ensure we promote equal justice for all, regardless of anyone’s station in life, that we fulfill the biblical admonition to pursue justice, and we resolve this crisis so that we have access to justice in this city, state, and country,” Lippman says.