An all-star panel of judges and legal scholars examined how American access-to-justice challenges mirror those found in settings around the globe—and what can be done to correct these problems—during a March 21 event at Fordham Law School.
David Udell, executive director of the National Center for Access to Justice at Fordham Law School, moderated the program, titled “Unifying Global and U.S. Access to Justice Movements.” The event featured insights from Jonathan Lippman, former chief judge of the New York Court of Appeals, now of counsel at Latham & Watkins, Willy Mutunga, who served as president and chief judge of the Supreme Court of Kenya from 2011 to 2016, and Rebecca L. Sandefur, founder of the American Bar Foundation’s Access to Justice Research Initiative and leading social scientist in the field. Fordham’s Access to Justice Initiative hosted the program.
Matthew Diller, dean of the Law School, along with Lippman and Udell, co-founded Fordham’s Access to Justice Initiative in 2016 to focus the collective energy of the Law School community on helping close the justice gap at local, state, and national levels. Six Fordham Law groups and centers co-sponsored the March 21 event, with experts on access to justice sharply examining the problems, solutions, opportunities for reform, and larger implications that define the global and U.S. access to justice movements.
“Without access to justice and a meaningful way to enforce rights and receive remedies, laws too often remain beautiful statements on the books that don’t have the impact on society and individuals that they’re intended to have,” Diller said in opening remarks. He also explained that the global access-to-justice movement received a major boost in 2015 when the United Nations adopted its Sustainable Development Goals. Goal 16, titled “Peace, Justice, and Institutions,” set as one of its targets to “promote the rule of law at the national and international levels and ensure equal access to justice for all.”
Udell began the panel discussion by inviting panelists and audience members to consider the similarities and differences of access-to-justice problems experienced by people throughout the world. He noted that a U.S. official involved in setting up legal aid programs in other countries had observed recently that the experience of being in a family court in the Middle East is in fact indistinguishable in most ways from being in a family court in Washington, D.C., including because so few of the litigants are represented by counsel in a broad range of matters.
The panel considered additional examples. Justice Mutunga discussed the fact that in Kenya “witchcraft” is still a potent accusation, often advanced against elderly and frail women as justification for stealing their homes and taking their property. Access to justice in Kenya means assuring that people who are vulnerable to this form of theft will be able to advance their rights and protect their interests. On the one hand, such a problem may seem different than the cases that bring people into state justice systems in the United States. But, as Judge Lippman pointed out, outsider status leads in similar ways to the exploitation of those who are vulnerable in American society, and generates equivalent needs for access to justice in the United States.
In Kenya and in the United States, however, many people are afraid to rely on formal courts. “In my view they don’t see our formal courts as forums for justice, so they would rather go to a pastor or bishop,” explained Mutunga, distinguished scholar-in-residence of Fordham’s Leitner Center for International Law and Justice. “You can’t talk about access to justice [in the formal courts]when it’s access to just five percent.” Udell noted the U.S. analogue: a recent focus-group study done with African Americans found that many avoid state courts in the United States because they perceive the courts as frightening places, a consequence of having had bad past experiences with state criminal court prosecutions.
Pointing to her own and other social scientists’ research findings, Rebecca Sanderfur, a sociology and law professor at the University of Illinois, described the relative infrequency of individuals going to court for redress. “In our supposedly litigious United States and other places we think of as harmonious, the vast majority of everyone’s justice problems never, ever, ever make it to a court or a tribunal or a formal legal professional of any kind for advice,” she noted.
Panelists also considered the role of “informal justice systems” in Kenya and in the United States. Mutunga explained that in Kenya councils of tribal elders perform the task of resolving local disputes that arise among members of local communities. These councils, which until recently were almost exclusively filled with older men, now draw on individuals regardless of whether they are young or old, male or female; the only official requirement is that people be selected based on their reputation for integrity. In the United States, informal approaches to dispute resolution include mediation and arbitration, though, paradoxically, the United States also has independent tribal courts that sometimes operate as formal justice systems. Panelists identified strengths of the approaches of both the Kenyan and U.S. informal systems but also enumerated common problems, including that decisions are not public, not accorded precedential effect, and not easy to enforce.
In turning to discussion of the reform agenda, Lippman highlighted New York City Mayor Bill de Blasio’s recently announced plan to provide attorneys to all tenants facing eviction who make below 200 percent of the federal poverty line. Lippman added that it is incumbent on lawyers and judges, whether in academia, the judiciary, or bar associations, to find ways to provide greater access to justice in the civil and criminal realms. Justice Mutunga observed that an important reform being pursued in Kenya would authorize the decisions and settlements issued by councils of elders to be officially recorded in the courts, hopefully making those judgments more public, more effective as precedents, and more enforceable.
“Justice, that’s what it’s about whether it’s here in the U.S., Europe, or Kenya,” Lippman said, noting this will take innovation, partnerships between different sectors of the public domain, and leadership such as that shown by Fordham Law School, in making access to justice a focus for legal education.