How State Courts Can Expand Access to Justice

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THE ADMINISTRATIVE POWER: HOW STATE COURTS CAN EXPAND ACCESS TO JUSTICE

Nino C. Monea

ABSTRACT

This article examines the administrative power of courts and the ways it can be used to expand access to justice. Administrative power, or rulemaking power, is the power that state supreme courts have to regulate the lower courts, rules, practice and procedure, and the legal profession. Although they are often underutilized, these powers have great potential to address the access to justice crisis throughout the nation. For virtually every area of law is touched by the administrative power of courts. This article details the extent of the access to justice crisis, charts the history of administrative powers over time, and explores their benefits. It then proposes five solutions that state high courts should implement:

(1) making courts more accommodating to self-represented parties, (2) opening up the justice system so that non-lawyers can play more meaningful roles in court, (3) using summary jury trials to reduce the costs of litigation for civil plaintiffs, (4) reforming pro bono so that more lawyers contribute to it, and (5) establishing and expanding funding mechanisms to pay for access to justice initiatives.

In the end, this article seeks not only to convince courts to adopt reforms, but to convince legal reformers that the rulemaking powers of courts should be given as much attention as traditional litigation to advance reform.

 Law Clerk, Michigan Supreme Court; 2014 B.S., Eastern Michigan University; 2017 J.D., Harvard Law School. The views expressed in this article are my own. Thank you to James Tatum, Dani Young, Pete Davis, and Loren Voss for their helpful comments on the article.

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TABLE OF CONTENTS

INTRODUCTION ...... 209

I. THE ACCESS TO JUSTICE CRISIS ...... 212 A. The Poor Cannot Obtain Adequate Legal Representation or Assistance ...... 212 B. Lack of Funding Is a Key, but not Sole Driver of the Shortage of Civil Legal Aid ...... 214 C. Impact of the Shortage of Legal Assistance for the Poor ...... 216 D. Barriers Prevent Lawyers from Pursuing Careers as Legal Aid Attorneys...... 219

II. ADMINISTRATIVE POWERS...... 221 A. Historical Origins ...... 221 1. Founding of the Nation: Silence on Administrative Power ... 222 2. Early 19th Century: Constitutional Administrative Power Emerges in Fits and Starts ...... 224 3. Modern Trend: Unification and Standardization of the Judiciary...... 226 B. Advantages of Administrative Power ...... 227

III. PROPOSED REFORMS ...... 231 A. Making the Court System More Accessible to Self- Represented Individuals ...... 232 1. Improve Self-Help Materials ...... 232 2. Create Guidelines for Courts Handling Self- Represented Litigants ...... 236 B. Opening up the Justice System so that Non-Lawyers Can Play More Meaningful Roles...... 238 C. Summary Jury Trials: A Method that Reduces the Cost of Litigation While Maintaining Core Procedural Safeguards ...... 244 D. Pro Bono Reforms to Increase the Number of Hours Lawyers Devote to Helping the Poor ...... 250 E. Funding Mechanisms to Finance Access to Justice Initiatives .... 254 1. Pro Hac Vice Fees ...... 255 2. Interest on Lawyers’ Trust Accounts ...... 256 3. Cy Pres for Class Action Settlements ...... 258

IV. CONCLUSION ...... 260

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INTRODUCTION

Ask any lawyer, law student, or lay person what the role of a court is, and chances are they will reply, “to hear cases and interpret laws.” In one sense, this is accurate. Over 100 million cases were filed in state courts in 2010.1 On television we see what dramatic scenes can play out in courtrooms. In the news we read about appellate decisions announced and outcomes from contentious trials. Within the legal profession, the focus is almost entirely on under-standing, arguing, and complying with legal standards laid down by courts. Accurate as this picture may be, it is also incomplete. For courts possess another power, less well-known and yet no less important. This power touches every aspect of the legal system, from filing a complaint to maintaining an appeal. It is the administrative power. It is relatively easy to grasp the traditional meaning of judicial power. Courts have the power to hear cases between two parties in conflict over a dispute in the law. The judge will receive evidence, review precedent and statutes, and hear the arguments of the parties. After considering all of it, the judge will render a decision of what the law means and order some form of relief. This can be money damages or equitable relief in a civil case, or an acquittal or conviction in a criminal case. Administrative power, in contrast, is more nebulous. This is partially due to the fact that the topic is seldom studied. Law school curriculums’ heavy emphasis on the “case method”—having students read opinions by appellate judges— focuses almost exclusively on traditional notions of judicial power. Harvard Law School, one of the largest in the country, does not offer a course on the administrative power of courts.2 General primers on the functions of courts often do not mention it.3 The contours of administrative power vary from state-to-state. In Missouri, rules promulgated by the supreme court have the force and effect of law and supersede conflicting statutes.4 In contrast, the Ohio Supreme Court has controlling power for matters of “procedure” but cannot alter a “substantive

1. See ROBERT C. LAFOUNTAIN, ET AL., NAT’L CTR. ST. CTS., EXAMINING THE WORK OF STATE COURTS: AN ANALYSIS OF 2010 STATE COURT CASELOADS 1 (2012), http://www. courtstatistics.org/other-pages/~/media/microsites/files/csp/data%20pdf/csp_dec.ashx. 2. See generally Course Catalog, HARV. L. SCH., http://hls.harvard.edu/academics /curriculum/catalog/index.html (last accessed Oct. 8, 2017). 3. See, e.g., Comparing Federal & State Courts, U.S. CTS., http://www.uscourts.gov/ about-federal-courts/court-role-and-structure/comparing-federal-state-courts (last accessed Oct. 8, 2017). 4. State ex rel. Union Elec. Co. v. Barnes, 893 S.W.2d 804, 805 (Mo. 1995). MONEA 1/21/2019 4:20 PM

210 GONZAGA LAW REVIEW Vol. 53:2 right.”5 Conversely, Utah’s high court can adopt rules of procedure and evidence, although it can be overridden by a two-thirds vote of the legislature.6 These three states showcase the variance between the states, and even its name can be tricky to pin down. It may go by supervisory power, rulemaking authority, inherent power, general power, or superintending control. Although the power is broad, it usually falls within a few categories. First, state supreme courts typically have appointment powers. This includes the ability to assign the judges of lower courts,7 select the administrators to oversee operations of the court system,8 or designate a judge of lower courts as the chief judge of that court.9 In some instances, the supreme court can even appoint judges outright.10 Second, state supreme courts may prescribe rules for practice and procedure of the court system.11 This empowers high courts to create a wide range of rules too broad to fit neatly into any one category. Think of this power as authorizing supreme courts to create state counterparts to the Federal Rules of Civil and Criminal Procedure, along with special rules for family court, small claims courts, appellate practice, evidence, and so forth. Often, these rules must not affect the parties substantive rights and only focus on procedural rights.12 On a practical level though, the precise distinction between these two rights is difficult, if not impossible, to tease out. Third, these courts may regulate the practice of law. Powers include the ability to oversee admission to the bar, discipline lawyers, and disbar members.13 These descriptions may be vague, but the exercise of the power can be very specific. In Nebraska, for instance, the supreme court issued a lengthy opinion analyzing whether an attorney’s education from a Canadian law school was functionally equivalent to the education received at an ABA accredited law school.14 Whatever the extent of the power, a common method to exercise the power is through administrative orders.15 As the name implies, they are similar in form

5. Havel v. Villa St. Joseph, 963 N.E.2d 1270, 1272 (2012). 6. Injured Workers Ass’n of Utah v. State, 374 P.3d 14, 20 (2016). 7. See, e.g., ARIZ. CONST. art. VI, § 3. 8. See, e.g., ALASKA CONST. art. IV, § 16; COLO. CONST. art. VI, § 5. 9. See, e.g., FLA. CONST. art. V, § 2(c). 10. See, e.g., ILL. CONST. art. VI, § 5. 11. See, e.g., MO. CONST. art. V, § 5. 12. See, e.g., Keys v. Nigro, 913 S.W.2d 947, 949 (Mo. Ct. App. 1996). 13. See, e.g., IND. CONST. art. VII, § 4; N.D. CONST. art. VI, § 3. 14. In re Brown, 708 N.W.2d 251 (2006). 15. See, e.g., Administrative Orders, FLA. SUP. CT., http://www.floridasupremecourt .org/clerk/adminorders/index.shtml (last accessed Oct. 8, 2017); Administrative Orders, NEV. MONEA 1/21/2019 4:20 PM

2017/18 THE ADMINISTRATIVE POWER 211 and function to executive orders issued by the president or governors. The administrative orders might be used to create a specialty court, modify a state rule of evidence, or carry out any of the functions listed in the preceding paragraphs. The term “administrative power” is used throughout this paper, although nomenclature may vary. This article examines how that administrative power can be used for good. More specifically, how it can be used to open courtroom doors in a country where, for the poor, they are all too often closed. Some of these ideas are widely used already, others are in their infancy. All of them, I contend, are underappreciated. This article proceeds in four parts. Part I looks at the access to justice crisis. It describes the extent of the problem that the article hopes to address. Through- out our civil justice system, the poor lack legal assistance. This results in harm both to the unrepresented parties, and to everyone else. For when laws and rights go unenforced, harms follow. Part II examines the history and advantages of administrative powers. It charts their conspicuous absence from the national constitution, appearance in state constitutions around the country, and modern development into an established part of state judiciaries. It also juxtaposes administrative power against traditional judicial power to explain why the former is better suited to address access to justice. Part III canvasses the states to highlight five broad categories of reform. First, making legal documents and court structures more accessible to those without a legal education. Second, opening up the justice system so that non- lawyers can play more meaningful roles. Third, reforming pro bono to increase the number of hours that lawyers devote to helping the poor. Fourth, introducing summary jury trials so that civil plaintiffs can air their claims without being stopped by the ruinous costs of litigation. And fifth, finding ways that courts can increase funding for legal aid so these ideas, and others, can be sustained. Part IV briefly concludes. It ends not just with a call for courts to consider the reforms proposed, but for the legal community to take the administrative power of courts more seriously.

SUP. CT., https://nvcourts.gov/Supreme/Decisions/Administrative_Orders/ (last accessed Oct. 8, 2017); Judicial & Administrative Orders, Standards, Guidelines, IDAHO SUP. CT., https://isc.idaho.gov/admin_orders (last accessed Oct. 8, 2017). MONEA 1/21/2019 4:20 PM

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I. THE ACCESS TO JUSTICE CRISIS

If we are to keep our democracy, there must be one commandment: Thou shalt not ration justice. – Judge Learned Hand16

This section explores the lack of legal assistance for people who cannot afford lawyers. Through both statistics and stories, it is clear that many people do not get the help they need. Chronic underfunding helps explain much of this, but so does the increase in individuals who need help and the barriers that make it harder for lawyers to have public interest careers.

A. The Poor Cannot Obtain Adequate Legal Representation or Assistance

The United States is facing a crisis of access to justice.17 By any measure, we are failing to live up to the words carved into the U.S. Supreme Court building: Equal Justice Under Law. Our system is built around the idealized picture of an adversarial system. Each side should have a competent, diligent attorney who zealously advocates for their interests. The truth, it is presumed, will emerge through argument. But this picture is often an illusion. In acknowledgment of this fact, the American Bar Association’s Model Rules of Professional Conduct admits there are “deficiencies in the administration of justice and . . . the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance.”18 These words do not capture the scope or depth of the problem. An estimated 62.5 million Americans are eligible for free help from the Legal Service Corporation (LSC),19 which helps individuals who have an income threshold of 125 percent or below the federal poverty line.20 Although the LSC is a federal program, its impact is decidedly local. It operates by distributing

16. “Though Shalt Not Ration Justice,” THE LEGAL AID SOCIETY, http://www.legal- aid.org/en/las/thoughshallnotrationjustice.aspx (last visited Mar. 25, 2018). 17. Rebecca Buckwalter-Poza, New Sheriff, Old Problems: Advancing Access to Justice under the Trump Administration, 127 Yale L.J. F. 254 (2017) http://www.yalelaw journal.org/forum/new-sheriff-old-problems. 18. MODEL RULES OF PROF’L CONDUCT, Preamble § 6 (2002). 19. Why Should We Care?, SAVE THE LEGAL SERVS. CORP., https://savethelsc.org/ (last accessed Sept. 18, 2017). 20. LEGAL SERVS. CORP., THE JUSTICE GAP: MEASURING THE UNMET CIVIL LEGAL NEEDS OF LOW-INCOME AMERICANS 15 (2017), https://www.lsc.gov/sites/default/files/images /TheJusticeGap-FullReport.pdf [hereinafter LEGAL SERVS. CORP]. MONEA 1/21/2019 4:20 PM

2017/18 THE ADMINISTRATIVE POWER 213 money to 136 state and local legal aid providers around the country.21 Despite the best efforts of the LSC and other legal service providers, those in and barely outside of poverty are largely shut out of the justice system. Four out of every five civil legal needs of the nation’s poor go unmet,22 possibly even nine out of ten.23 For the middle class, it is two to three-fifths.24 The percentage of unmet legal needs is even higher for certain vulnerable populations. Ninety-seven percent of victims of domestic violence received little or no legal help.25 For tenants facing eviction, the percentage can be as high as ninety-nine percent.26 Today, there is only one legal aid attorney for every 10,000 poor persons.27 In Mississippi, there is one per 18,000 poor persons.28 As a result, an indigent person has a mere 1-in-6,000 chance of having legal representation29—about half as likely as being struck by lightning over a lifetime.30 These numbers fail to capture the indignity of the judicial process for the unrepresented. A description of a typical day at the Kings County Civil Court is more apt.31 Starting early in the morning, lines snake down the block as people crowd to pass through the public entrance. Police patrol the line outside of the court, and gruff guards bark orders and subject the public to searches on the inside. Lawyers can skip this part. The public is forced to wait to enter, wait to

21. Karen Sloan, Perfect Storm Hits Legal Aid, NAT’L L. J. (Jan. 3, 2011), https:// www.law.com/nationallawjournal/almID/1202476843961. 22. Deborah L. Rhode, Access to Justice, 69 FORDHAM L. REV. 1785, 1785 (2001). 23. See Donald G. Rockwell, Access to Fairness 96 MICH. BAR J. 14, 14 (2017), http: //www.michbar.org/file/barjournal/article/documents/pdf4article3249.pdf; Paul A. Smith, The Rise of Limited Licensed Legal Technicians in the Legal Profession 2, FLA. REGISTERED PARALEGAL INSIDER (2016), https://www.floridabar.org/wp-content/uploads/2017/04/frpsum mer2016.pdf. 24. Rhode, supra note 22, at 1785. 25. LEGAL SERVS. CORP., supra note 20, at 6. 26. Smith, supra note 23, at 2. 27. ST. BAR MICH. DOCUMENTING THE JUSTICE GAP IN MICHIGAN UPDATE 2 (2017), http://www.michbar.org/file/programs/ATJ/pdfs/JusticeGap.pdf [hereinafter DOCUMENTING THE JUSTICE GAP IN MICHIGAN]. 28. Judge Denise S. Owens, The Reality of Pro Se Representation, 82 MISS. L.J. 147, 149 (2013). 29. Justice Stephen Breyer, Speech to National Legal Aid and Defender Association Annual Conference (Dec. 9, 2011), http://www.nlada100years.org/audiopage?q=node/13002. 30. Flash Facts About Lightning, NAT’L GEOGRAPHIC NEWS (June 24, 2005), http://news.nationalgeographic.com/news/2004/06/0623_040623_lightningfacts.html. 31. REBECCA L. SANDEFUR & THOMAS M. CLARKE, AM. BAR FOUND., ROLES BEYOND LAWYERS: SUMMARY, RECOMMENDATIONS AND RESEARCH REPORT OF AN EVALUATION OF THE NEW YORK CITY COURT NAVIGATORS PROGRAM AND ITS THREE PILOT PROJECTS 14–16 (2016) (describing a day at Kings County Civil Court). MONEA 1/21/2019 4:20 PM

214 GONZAGA LAW REVIEW Vol. 53:2 take the elevator, wait to have their number called to get forms, and wait yet again to see the judge. The whole ordeal can take hours. At the end of it, they will face demands of thousands of dollars of back rent or threats of eviction. Although it is not the main focus of this article, the criminal justice system is scarcely better. Defendants are entitled to legal representation, but there are serious questions about the quality of that representation. Public defenders are often given absurdly high caseloads, often juggling as many as 900 felonies or 3,500 misdemeanors per year.32 One public defender estimated that he could only spend about twelve minutes per person in court each day.33 These attorneys are forced to comprehend the complexities of a person’s life and legal situation for about as long as it takes to boil an egg. Given these numbers, it should come as no surprise that over ninety percent of criminal cases end with a plea bargain.34 Between half and four-fifths of defense counsel enter guilty pleas without interviewing and prosecution witnesses or filing any defense motions.35 As a result, these defendants waive their rights to a presumption of innocence, a trial by jury, and most issues for appeal.

B. Lack of Funding Is a Key, but not Sole Driver of the Shortage of Civil Legal Aid

Joe Biden likes to say “Don’t tell me what you value. Show me your budget, and I’ll tell you what you value.”36 By this measure, the nation values its poor very little. Less than one one-hundredth of one percent of the federal budget goes to civil legal aid.37 In turn, less than one percent of the nation’s total expenditure on lawyers goes to low-income legal aid.38 And less than one percent of lawyers work in civil legal aid.39 The result can only be described as comical: America

32. Rhode, Access to Justice, supra note 22, at 1789. 33. PETE DAVIS, HARVARD LAW SCHOOL’S PUBLIC INTEREST MISSION 5 (HARVARD L. RECORD 2017). 34. Erica Goode, Stronger Hand for Judges in the “Bazaar’ of Plea Deals, N.Y. TIMES (Mar. 22, 2012), http://www.nytimes.com/2012/03/23/us/stronger-hand-for-judges-after- rulings-on-plea-deals.html. 35. Rhode, Access to Justice, supra note 22, at 1790. 36. Remarks of Senator Joseph R. Biden, Jr., in St. Clair Shores, Michigan (Sept. 15, 2008). 37. LEGAL SEVS. CORP. LEGAL SERVICES CORPORATION CONFIDENT OF BIPARTISAN SUPPORT IN CONGRESS DESPITE PRESIDENT TRUMP’S CALL TO DEFUND (Mar. 16, 2017), https://www.lsc.gov/media-center/press-releases/2017/legal-services-corporation-confident- bipartisan-support-congress. 38. Rhode, Access to Justice, supra note 22, at 1788. 39. See DOCUMENTING THE JUSTICE GAP IN MICHIGAN, supra note 27, at 6 (In 2007, there were 7,931 legal aid attorneys. In 2009, there were 1,130,136 attorneys in the US). MONEA 1/21/2019 4:20 PM

2017/18 THE ADMINISTRATIVE POWER 215 spends more on Halloween costumes for pets than it does on civil legal services for the poor.40 The LSC is left with a meager $5.85 per low-income person to spend.41 Delaware is in the top quintile nationwide, and it only spends $51.39 per capita on legal aid.42 Austerity measures such as this force legal aid providers to do less with less. Amid the recession, legal aid organizations had to lay off staff, leave positions unfilled, close offices, reduce services, and implement furloughs.43 This directly hurts their abilities to serve clients. The trend is not positive either. The budget for the LSC has declined forty percent over the last three decades.44 The proposed 2018 federal budget proposal infamously called for the elimination of the LSC altogether.45 Total funding for legal aid has fallen twenty-three percent since 1999.46 This comes in spite of the fact that legal service funding would have needed to be increased exponentially to meet the needs of low-income Americans each year.47 Over the years, the United States has fallen to 36th out of 36 in terms of high-income countries on the question of whether people can access and afford civil justice.48 At the same time, the number of low-income Americans has swelled. In 2006, there were 49.7 million Americans who qualified for LSC assistance.49 When the recession hit in

40. Letter from Deans of Catholic Law Schools to Mick Mulvaney, Director of the Office of Management and Budget (Mar. 10, 2017), http://www.stthomas.edu/media/schoolof law/pdf/catholiclawschooldeanslettertoLSC.pdf [hereinafter Letter from Deans of Catholic Schools]. 41. Id. (“From 2007 to 2016, funding per eligible person decreased from $7.54 to $5.85.”). 42. DEL. ACCESS JUST. COMM’N, REPORT OF THE SUBCOMMITTEE ON THE EFFICIENT DELIVERY AND ADEQUATE FUNDING OF LEGAL SERVICES TO THE POOR 8–9 (2017) http:// courts.delaware.gov/forms/download.aspx?id=98738 [hereinafter DEL. COMM’N]. 43. BRENNAN CTR. FOR JUST., CIVIL LEGAL SERVICES: LOW-INCOME CLIENTS HAVE NOWHERE TO TURN AMID THE ECONOMIC CRISIS, (June 25, 2010), http://www.brennan center.org/sites/default/files/legacy/Justice/CLS/LSC-%20New%20Need.pdf [hereinafter BRENNAN CTR. FOR JUST.]. 44. Deborah L. Rhode, Legal Services Corporation: One of the Worst Cuts in Trump’s Budget, STAN. L. SCH. BLOG (May 31, 2017), https://law.stanford.edu/2017/05/31/six-of-the- worst-cuts-in-trumps-budget/. 45. Debra C. Weiss, Trump budget eliminates Legal Services Corp. funding, ABA J. (Mar. 16, 2017), http://www.abajournal.com/news/article/trump_budget_eliminates_funding _for_legal_services_corp/. 46. Remarks of Lisa Foster, Director, Access to Justice Initiative of the Department of Justice (May 7, 2015). 47. Rhode, Access to Justice, supra note 22, at 1788. 48. See Letter from Deans of Catholic Law Schools, supra note 43 (referencing data found in the World Justice Project Rule of Law Index Report 2017–2018). 49. BRENNAN CTR. FOR JUST., supra note 43. MONEA 1/21/2019 4:20 PM

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2008, that number grew to 53.8 million.50 Years later, that number has continued to grow to 62.5 million.51 Additional funding would help immensely. For many years, the legal community has decried the drastic reduction in legal services funding. In 2000, the Conference of State Court Administrators concluded that “the recent surge in self-represented litigation is unprecedented and shows no signs of abating,” and linked it in large part to the legal service funding cuts.52 In state, local, and national legislatures, these pleas have largely fallen on deaf ears. From city councils to Congress, legal aid funding has been cut during harsh economic times, even though that is when its clients need it the most.53 In light of this fact, complementary strategies are needed. Some even argue there will never be sufficient funding to provide legal representation to all litigants due to the costs of lawyers.54 Besides the cost, the vast majority of potential clients do not attempt to seek legal aid outside of immediate social circles, in part because they do not interpret their situation to be a legal problem for which they can get assistance.55 This problem is hardly a new one. A quarter- century ago, a study from the ABA found that seven-in-ten low-income households (and six-in-ten moderate-income households) that faced legal problems did not utilize the legal system to resolve it.56

C. Impact of the Shortage of Legal Assistance for the Poor

The consequences of the dearth of legal assistance for the poor are grave. Nearly three million renters faced eviction last year.57 Given that most of these renters most likely would not have attorneys, it is almost certain that many of these evictions were legally dubious. In employment, although some studies estimate up to $50 billion in wages are stolen from workers by their employers

50. Id. 51. Why Should We Care?, SAVE THE LEGAL SERVS. CORP., https://savethelsc.org/ (last accessed Sept. 18, 2017). 52. AM. BAR ASSOC., HANDBOOK ON LIMITED SCOPE LEGAL ASSISTANCE: A REPORT OF THE MODEST MEANS TASK FORCE 8 (2003) [hereinafter AM. BAR ASSOC., HANDBOOK]. 53. Sloan, supra note 21. 54. See, e.g., D. James Greiner, Dalie Jimenez & Lois Lupica, Self-Help, Reimagined, 92 IND. L.J. 1119, 1122 (2017). 55. LEGAL SERVS. CORP., DOCUMENTING THE JUSTICE GAP IN AMERICA: THE CURRENT UNMET CIVIL LEGAL NEEDS OF LOW-INCOME AMERICANS 10 (2009), https://www.americanbar. org/content/dam/aba/migrated/marketresearch/PublicDocuments/JusticeGaInAmerica2009. authcheckdam.pdf. 56. AM. BAR ASSOC., HANDBOOK, supra note 52, at 10. 57. Jen Kinney, The U.S. Metros Hit Hardest by Rising Eviction Rates, NEXT CITY (Dec. 13, 2016), https://nextcity.org/daily/entry/report-eviction-rates-housing-affordability. MONEA 1/21/2019 4:20 PM

2017/18 THE ADMINISTRATIVE POWER 217 every year, only $1 billion are recovered through the legal system.58 Even in death, the unrepresented may suffer, as their wills can be invalidated if they do not comply with complex probate requirements.59 There is a human story behind every legal problem. It might be a victim of domestic violence who is seeking a restraining order against her abuser, but does not know how. A family who experiences an eviction and has their life shattered. Or a veteran who seeks health care benefits but gives up in the face of the bureau- cratic morass. The legal system has failed these people. Although legal problems vary dramatically, a great many inflict harm. People report that almost half of civil legal problems they encounter resulted in significant feelings of fear, loss of confidence, and damage to health.60 Seven- in-ten low-income Americans have faced at least one civil legal problem, and nearly half have experienced six or more legal problems in a single year.61 The vast majority report that the legal problem has “significantly affected” their lives.62 The recent wave of hurricanes and tropical storms is a perfect illustration of the problem. Televised images of the physical destruction wrought by storms inspired many to donate food, clothing, blood, and other necessities.63 Often missed by the cameras, however, are the legal needs of storm victims. Disaster victims can be coerced into paying a landlord when a house is no longer habitable, unlawfully evicted, or may be unable to collect a final paycheck from their employer. “Without legal help, people may even be denied insurance and federal disaster benefits to which they are entitled, simply because they cannot find a deed or other document, or because they do not understand the process.”64 This state of affairs hurts everyone, not just those unable to afford legal services. If a person cannot vindicate their legal rights, laws may go effectively unenforced. There are an estimated 3,000 deaths caused by contaminated food annually, along with 54,000 preventable deaths from air pollution, 60,000 from workplace related diseases and traumas, and 400,000 from preventable medical

58. Davis, supra note 33, at 14. 59. Emily Robey-Phillips, Reducing Litigation Costs for Holographic Wills, 30 QUINNIPIAC PROB. L.J. 314, 315 n.6 (2017). 60. DEL. COMM’N, supra note 42, at 5. 61. LEGAL SERVS. CORP, supra note 20, at 7. 62. Id. 63. See, e.g., One American Appeal for Hurricane Relief, ONE AMERICAN APPEAL (2018), https://www.oneamericaappeal.org. 64. Martha Bergmark, Harvey and Irma Survivors Need Food, Water, Shelter – and a Lawyer, FOX NEWS (Sept. 12, 2017), http://www.foxnews.com/opinion/2017/09/12/harvey- and-irma-survivors-need-food-water-shelter-and-lawyer.html. MONEA 1/21/2019 4:20 PM

218 GONZAGA LAW REVIEW Vol. 53:2 errors.65 How many of these lives could have been saved if consumer and environmental protection laws had been effectively enforced through private citizens? Government agencies are simply unable to police every wrongdoer. For example, Food and Drug Administration inspectors can only visit plants about once a decade.66 Private citizens may be the only ones who can enforce laws on the books. Asbestos litigation illustrates this point clearly. The dangers of asbestos have been known and documented since the 1930s (and suspected as far back as the first century, A.D.).67 But it was not until the 1970s that the first lawsuit was brought by an injured worker in a small town in Texas against asbestos manufacturers.68 Since that time, hundreds of thousands of victims exposed to asbestos have been able to seek compensation, and the toxin is banned almost entirely throughout the country.69 There are plenty of other examples. Tobacco litigation revealed damning information about how the industry manipulated the addictive properties of cigarettes.70 The mere threat of a lawsuit may be enough to provoke change. Artificial breast implants posed potential health problems, and manufacturers knew this. It was not until lawsuits were filed that the industry started spending more on research to improve safety.71 Research shows that investments in civil aid reduce homelessness, poverty, and crime.72 Although many poor Americans face legal problems, that does not mean they have done anything wrong. Oftentimes, the claims against them are spurious, but without an understanding of the legal system, these marginalized

65. Ralph Nader, Suing for Justice, HARPER’S MAGAZINE (Apr. 2016), https:// harpers.org/archive/2016/04/suing-for-justice/1/. 66. Dina ElBoghdady, Safety concerns, industry changes push U.S. to rethink approach to food inspection, WASH. POST (Mar. 4, 2012), https://www.washingtonpost.com /business/economy/safety-concerns-industry-changes-push-us-to-rethink-approach-to-food- inspection/2012/03/01/gIQAvvgarR_story.html?utm_term=.ffe2bd513131. 67. Louis DiGiovanni, New York City’s School Asbestos Debacle: An Administrative Approach to the Problem of Faulty School Inspections and a Possible New Round of Asbestos Litigation, 6 FORDHAM ENV. L. REV. 79, 84 (2011). 68. Phil Hirschkorn, Q&A: Ralph Nader on Civil Litigation, Tort Reform and his New Museum, PBS (Dec. 19, 2015), https://www.pbs.org/newshour/nation/qa-ralph-nader-on-civil -litigation-tort-reform-and-his-new-museum. 69. Id. 70. WENDY WAGNER, STUBBORN INFORMATION PROBLEMS & THE REGULATORY BENEFITS OF GUN LITIGATION, in SUING THE GUN INDUSTRY 271, 285 (Timothy D. Lytton, ed. 2005). 71. Rebecca Dresser, Wendy Wagner & Paul Giannelli, Breast Implants Revisited: Beyond Science on Trial, 1997 WIS. L. REV. 705, 743–44 (1997). 72. Testimony of Steven Croley before the New York Court of Appeals, Permanent Commission on Access to Justice (Sept. 18, 2017). MONEA 1/21/2019 4:20 PM

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Americans cannot mount a defense. In consumer debt cases, lawyers for the collection agency can file a potentially baseless claim, but still prevail through a default judgment if the unrepresented defendant does not show up.73 The same applies for housing court.74 On a level playing field, the dynamic changes completely. A randomized experiment in Quincy, Massachusetts, found that two-thirds of tenants with full representation avoided eviction, compared with one-third who were offered limited assistance.75 Helping people avoid eviction by offering help will pay for itself. A program in the South Bronx to provide families legal help for eviction defense cost $450,000, but saved $700,000 in reduced shelter costs.76 Benefits also accrue that cannot be so easily measured with dollars and cents. We know that changing schools frequently is detrimental to a child’s education, as it is harder to learn from people the students do not know as well.77 Unfortunately, low-income students, already at a disadvantage, are often forced to relocate due to evictions or uninhabitable housing conditions.78 To combat this, the Thomasville Heights Elementary School in southeast Atlanta started providing attorneys to students’ families. Where tenants struggled to get landlords to fix problems, a demand letter signed by a lawyer spurred prompt action.79 It has been so successful at helping students and their families, the organizers are looking to expand the program.80

D. Barriers Prevent Lawyers from Pursuing Careers as Legal Aid Attorneys

Debt is one of the key roadblocks to a public interest career. Parallel to higher education in general, the costs of an American legal education have soared. Despite the moribund legal job market, the average private law school costs $34,300 per year, and the average public law school is $16,800.81 Factor in

73. See D. James Greiner, Dalie Jimenez & Lois Lupica, supra note 54, at 1126 n. 25. 74. See MATTHEW DESMOND, EVICTED: POVERTY AND PROFIT IN THE AMERICAN CITY 102 (2016) [hereinafter EVICTED]. 75. Matthew Desmond, Tipping the Scales in Housing Court, N.Y. TIMES (Nov. 29, 2012), http://www.nytimes.com/2012/11/30/opinion/tipping-the-scales-in-housing- court.html [hereinafter Tipping the Scales]. 76. Id. 77. Stephannie Stokes, How Atlanta attorneys are helping kids stay in school, MARKETPLACE (Aug. 21, 2017), https://www.marketplace.org/2017/08/18/world/there-s-new- position-one-atlanta-school-s-directory-lawyer. 78. See, e.g., id. 79. Id. 80. Id. 81. Lynn O’Shaughnessy, 5 Reasons Not to Get a Law Degree, CBS NEWS (Jan. 10, 2011), https://www.cbsnews.com/news/5-reasons-not-to-get-a-law-degree/. MONEA 1/21/2019 4:20 PM

220 GONZAGA LAW REVIEW Vol. 53:2 cost-of-living expenses, triple the tuition to account for a typical three-year program, and the total price tag can easily exceed $100,000. Indeed, the average private and public law school student borrows $91,000 and $71,400, respectively, to finance their law degree.82 In addition, students may already enter law school with debt from their undergraduate institution. With six figures of debt in tow, it is not surprising that many law students and recent graduates are drawn to private law firms. Starting in 2016, the starting salary for elite law firms shot up from $160,000 to $180,000—a 12.5 percent increase.83 Wage growth for the American workforce overall hovered around 2.5 percent in 2016,84 roughly one-fifth of the size of increase that Big Law associates enjoyed (and of course, the average American worker did not have a $160,000 salary to begin with). By the eighth year at a top firm, a lawyer can expect to earn somewhere around $315,000.85 Even for relatively small firms, the median starting salary is a respectable $80,000.86 Public interest salaries are miniscule by comparison. The median entry-level salary for a legal services attorney is $43,000, and about $50,000 for local public defenders and prosecutors.87 Civil rights lawyer Bryan Stevenson recounts that his first salary doing indigent defense work (in the 1980s) was $14,000.88 After more than a decade working, the median legal services salary reaches only $65,000.89 This means that public interest salaries have only barely outpaced the consumer price index.90 And public interest salaries pale against those in the private sector not only in absolute terms, but also in rate of growth. The ratio of private sector legal salaries to public interest went from 1.5 to 1 in the 1970s to 3.6 to 1 by 2004.91 These trends may cause students to second guess a public interest career.

82. Id. 83. David Lat, NY To $180K!!! Cravath Raises Associate Base Salaries!!!, ABOVE THE LAW (June 6, 2016), https://abovethelaw.com/2016/06/breaking-ny-to-180k-cravath-raises- associate-base-salaries/. 84. Nominal Wage Tracker, ECON. POL’Y INST. (Feb. 2, 2018), http://www.epi.org /nominal-wage-tracker/. 85. Lat, supra note 83. 86. Debra C. Weiss, Are Public Interest, Public Sector Careers Worth Law School Cost? NALP Sees ‘Economic Disincentives,’ ABA J. (Oct. 18, 2012), http://www.aba journal.com/news/article/are_public_interest_and_public_sector_careers_worth_the_cost_of _law_school_/. 87. Id. 88. BRYAN STEVENSON, JUST MERCY: A STORY OF JUSTICE AND REDEMPTION 35 (2014). 89. Weiss, supra note 86. 90. Id. 91. Davis, supra note 33, at 116. MONEA 1/21/2019 4:20 PM

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Although many legal service attorneys are emphatic that they love the work they do,92 the work is not easy. Caseloads are high and the stakes are higher. The work is also undervalued. Perusing the biographies of federal judges, one will find relatively few civil legal aid attorneys.93 There are plenty of lists purporting to rank which law firms are the most prestigious,94 yet no such ranking exists for legal service providers. This is not necessarily a bad thing; legal aid providers may simply be more concerned with helping clients than fanning their own egos or careers. But it is circumstantial evidence that these jobs get less than their fair share of recognition. In light of the breadth and depth of the access to justice crisis, innovation is necessary to tackle the problem. Fortunately, there are fifty states and their high courts that have the potential to reshape the grim picture this section laid out. They need not wait for impact litigators to tee up the perfect case, nor for Congress to get its act together; they have all of the tools they need within state constitutions and statutory frameworks.

II. ADMINISTRATIVE POWERS

A. Historical Origins

I contend that administrative powers of courts are underutilized tools to address current problems with the legal system. Some of the underutilization can be explained by the fact that historically, these powers have been overlooked. As this section demonstrates, at the founding of the nation, there was no explicit constitutional basis for the powers. It was not until later that most states adopted constitutional provisions that invested state supreme courts with rulemaking authority.95 In theory, all powers exercised by governments flow from their constitutions. Administrative powers muddy this basic idea. Although many courts would go on to assert inherent powers, this concept was conspicuously absent from early discussions of the federal and state constitutions.96 This is not to say there was no legal basis. Before Michigan was even a state, for instance,

92. KIM SCHROER & ALEXA SHABECOFF., HARV. L. SCH., LEGAL SERVICES GUIDE: A GUIDE TO PURSUING WORK IN LEGAL SERVICES/LEGAL AID 6 (2013), http://hls.harvard.edu /content/uploads/2008/06/2013-legal-services-guide.pdf. 93. See generally Biographical Directory of Federal Judges, FED. JUD. CTR., https://www.fjc.gov/history/judges/search/glossary-search/a (last accessed Nov. 19, 2017). 94. See, e.g., Vault Law 100, VAULT, http://www.vault.com/company-rankings/law /vault-law-100/?pg (last accessed Nov. 19, 2017). 95. Based on the author’s examination of state constitutions. 96. See Andrew W. Yates, Using Inherent Judicial Power in a State–Level Budget Dispute, 62 DUKE L. J. 1463, 1473 (2013). MONEA 1/21/2019 4:20 PM

222 GONZAGA LAW REVIEW Vol. 53:2 its territorial government passed a law that authorized the territorial court to “make, record, and establish all such rules and regulations, with respect to the admission of counsel and attornies [sic], and all other rules respecting modes of trial and the conduct of business, as the discretion of the court shall dictate.”97

1. Founding of the Nation: Silence on Administrative Power

Few early constitutional drafters found it necessary to explicitly lay out the administrative powers. It is not always clear whether this is because they hoped to constrain judicial power, or because they felt it was so obvious that there was no need to mention it. For their part, courts seem to think it is the latter. Going all the way back to the U.S. Constitutional Convention, the framers did not expressly grant the judicial branch administrative powers.98 Despite extensive debate and numerous references to judicial power, they are virtually exclusively about the selection process for judging and the courts’ potential power to strike down laws. The closest thing to an acknowledgement that courts might have a rulemaking function comes from James Wilson of Pennsylvania, a future Supreme Court Justice.99 He was against the proposal to state that each house of the legislature should be the judge of its own privileges.100 Wilson thought that such a power was so self-evident that there was no need to express it. Indeed, he believed that explicitly citing the power would lead to the suggestion that public institutions did not possess inherent authority to regulate themselves.101 He worried that explicitly listing the power “might beget doubts as to the power of other public bodies, as . . . [e]very Court is the judge of its own privileges.”102 Convention delegates apparently disagreed, as language giving Congress power over its own members found its way into the final document.103 No such power, curiously enough, was laid out for courts. They were invested with “judicial Power,” but the very next section defines this power as extending only

97. Michigan Territorial Act of July 24, 1805. 98. See Frank H. Easterbrook, Legal Interpretation and the Power of the Judiciary, 7 HARV. J. L. & PUB. POL’Y 87, 95–97 (1984). 99. See James Wilson and the American Constitution, ONLINE LIBR. OF LIBERTY, http://oll.libertyfund.org/pages/james-wilson-and-the-american-constitution (last visited Mar. 13, 2018). 100. Madison Debates (Sept. 4, 1787), http://avalon.law.yale.edu/18th_century/debates _904.asp. 101. Id. 102. Id. 103. U.S. CONST. art. I, § 5, cl. 1–2. (“Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members . . . . Each House may determine the Rules of its Proceedings.”). MONEA 1/21/2019 4:20 PM

2017/18 THE ADMINISTRATIVE POWER 223 to “all Cases, in Law and Equity.”104 Nothing is said about administrative power, or even about control over their own privileges. Paucity of detail on this point should not come as a surprise. The judiciary was framed with broad strokes. Article III of the Constitution is far shorter than Articles I or II. This is in keeping with the common thought among the time that the judiciary was the least powerful branch. Alexander Hamilton famously wrote that the court “has no influence over either the sword or the purse” in Federalist 78. Montesquieu, who inspired many of the founders, wrote that of the three branches of government, “the judiciary is in some measure next to nothing.”105 It would therefore fall to the states to develop the administrative power of courts through constitutions. But just as the preexisting state constitutions influenced the Philadelphia Convention, the federal constitution influenced the states. Many early state constitutions used similarly threadbare language to establish their judiciaries. Kentucky, Tennessee, and Ohio—some of the first states to draft constitutions after 1787—did not make any reference to administrative power by the courts in their first constitutions.106 In a particularly striking example of verbal parsimony, Vermont’s original constitution spared a mere twelve words on its third branch of government. It simply declared, “Courts of justice shall be established in every county in this State” and left it at that.107 Early in the 19th century, administrative authority for state supreme courts had yet to emerge. Louisiana, Indiana, and Mississippi each adopted constitutions in 1812,108 1816,109 and 1817,110 respectively. None had clear grants of anything beyond “judicial power” to courts. In 1818, Illinois111 and Connecticut112 passed their first constitutions, making no mention of administrative powers. It should be noted that courts did not necessarily wait around for constitutional authorization to begin exercising administrative powers. Take, for example, the administrative power to regulate the legal profession. In some states, the high court was given statutory, rather than explicit constitutional,

104. U.S. CONST. art. III, § 1, cl. 1.; U.S. CONST. art. III, § 2, cl. 1. 105. MONTESQUIEU, THE SPIRIT OF LAWS, BOOK XI (1752). 106. KY. CONST. art. V (1792); TENN. CONST. art. V (1796); OHIO CONST. art. III (1803). 107. VT. CONST. ch. II, § IV (1777). 108. LA. CONST. (1812). 109. IND. CONST. (1816). 110. MISS. CONST. (1817). 111. ILL. CONST. (1818). 112. CONN. CONS. (1818). MONEA 1/21/2019 4:20 PM

224 GONZAGA LAW REVIEW Vol. 53:2 power to regulate the legal profession.113 It is clear that legislators were thinking about the proper role of courts even before constitutional drafters did. Other state courts took a broader view. The Indiana Supreme Court noted “[b]y the common law, and in the common-law courts, the power rested exclusively with the courts to determine who should practise [sic] therein as attorneys and counsellors at law.”114 Florida’s high court wrote that the “power of the court to admit an attorney implies the power to strike off his name from the roll” and that the “circuit court has inherent power to disbar an attorney.”115 New Hampshire’s supreme court agreed, stating it had “no doubt that, in the absence of all statutory regulation of the matter, the court would be authorized to suspend this attorney from practice, or remove him from office.”116 And the Michigan Supreme Court, while looking to a disbarment statute, held that it is “not to be construed as restrictive of the general powers of the court over its officers.”117 James Wilson was clearly on to something when he remarked it was so obvious that courts would be judges of their own privileges, there was no need to say so. Administrative power, as the above cases demonstrate, tends to inflate to fill the empty spaces left by the laws. Although many courts asserted they had inherent power to act, none of them backed this up with any citations to a constitutional provision. Rather, many of the early cases simply referred to other states as evidence that the power they were exercising was lawful. Fortunately for those concerned with judicial accountability, clear legal authority would soon arrive.

2. Early 19th Century: Constitutional Administrative Power Emerges in Fits and Starts

In 1819, Alabama passed the first original state constitution to clearly establish administrative power for its courts. Article V, section 2 of its first constitution gave the supreme court power “as may be necessary to give it a general superintendence and control of inferior jurisdictions.”118 The Alabama

113. See Moutray v. People, 44 N.E. 496, 497 (III. 1896); Randall v. Brigham, 74 U.S. 523, 526 (1868) (noting a Massachusetts statute giving the state high court power to regulate the legal profession); In re Wall, 13 F. 814, 820–23 (C.C.S.D. Fla. 1882) (discussing statutes empowering courts to disbar attorneys in various states). 114. Walls v. Palmer, 64 Ind. 493, 495 (1878). 115. In re Wall, 13 F. at 820–21. 116. Delano’s Case, 58 N.H. 5 (1876); see Sanborn v. Kimball, 64 Me. 140, 147 (1875) (“The power of removal [from the bar] is a judicial power, to be exercised by a sound judicial discretion”). 117. In re Mills, 1 Mich. 392, 392 (1850). 118. ALA. CONST. art V, § 2 (1819). MONEA 1/21/2019 4:20 PM

2017/18 THE ADMINISTRATIVE POWER 225 constitution had a few other progressive innovations. “There were no property, tax-paying, or militia [requirements] for voting or for office holding”(racial and gender restrictions still applied), and the governor was popularly elected, rather than selected by the legislature, as had been common.119 But if they thought explicitly granting courts superintending control was significant, they did not let on. An overview of the 1819 Constitution and its major features by the legislature does not mention it.120 Important or not, it did not take long for other states to follow suit. For state constitutional drafters were influenced by each other as much as by the federal government. Many could even be described as “unabashed plagiarists.”121 Missouri adopted a constitution the following year with a similar grant of “general superintending control” to its high courts, as did Arkansas and Florida about fifteen years later.122 It would only spread from there. This is not to say that the concept was immediately and universally adopted.123 But the trend was clearly in favor of greater specificity for judicial power. It was around this time when the states entered the most frenzied period of constitutional revision in the history of the country. During the 19th century, twenty-nine states joined the union, necessitating new constitutions, and many other states revised their own supreme documents too.124 During one exuberant period between 1844 and 1853, more than half of the states held constitutional conventions.125 All told, during the 1800s, ninety-four new or revised state constitutions were adopted, leaving one commentator to call it an “orgy of nineteenth-century state constitution-making.”126 Amid these great revisions, judicial authority expanded. As the century drew to a close, many states adopted language giving their courts supervisory power.127 Even decades later, however, there was still uncertainty about the legal

119. Constitution of 1819 Overview, ALA. LEGISLATURE, http://www.legislature.state. al.us/aliswww/history/constitutions/1819/1819overview.html (last visited Oct. 7, 2017). 120. See id. 121. G. Alan Tarr, Understanding State Constitutions, 65 TEMPLE L. REV. 1169, 1190 (1992). 122. MO. CONST. art. V, § 3 (1820); ARK. CONST. art. VI, § 2 (1836); FLA. CONST. art. V, § 2 (1838). 123. For example, Maine passed its constitution only a year after Alabama, yet it contained no mention of supervisory power for courts. See generally ME. CONST., art. VI (1820). 124. G. Alan Tarr, The Montana Constitution: A National Perspective, 64 MONT. L. REV. 1, 7 (2003). 125. Id. at 8. 126. Id. at 8–9. 127. See, e.g., N.D. CONST. art. IV (1889); S.D. CONST. art. V, § 12 (1889); MONT. CONST. art. VIII, § 2 (1889). MONEA 1/21/2019 4:20 PM

226 GONZAGA LAW REVIEW Vol. 53:2 effect of giving courts the power of “supervisory control” or “administrative control.”128

3. Modern Trend: Unification and Standardization of the Judiciary

By the early 20th century, the idea that courts should have administrative power was taken up by good-government reformers. Many of these sorts of reformers also believed that public action could be a positive force in society and sought to simplify and shorten state constitutions to reinvigorate government.129 Some of its earliest activities included advocating for uniform state judiciaries with a clear statement of administrative authority. The National Municipal League published its first Model State Constitution in 1921.130 This template was meant to embody “the combined wisdom of leading political scientists, lawyers and practitioners of government at the state and local levels,” but no state ultimately adopted the idea of a judicial council with such sweeping powers.131 By the sixth and final edition of the Model State Constitution, it stated that the “supreme court shall make and promulgate rules governing the administration of all courts.”132 Around the same time, the American Bar Association also strongly supported a provision of this kind as a means to promote operational efficiency in state court systems.133 These actions had at least some influence upon the states. Alaska’s constitutional convention, for instance, approved language that clearly gave the supreme court administrative power, basing the language off the Model State Constitution.134 Today, nearly every state in the Union has an explicit constitutional provision granting courts supervisory or administrative power.135 Even for the

128. Jean M. Bowman, The Judicial Article: What Went Wrong?, 51 MONT. L. REV. 492, 495 (1990). 129. GORDON HARRISON, ALASKA’S CONSTITUTION: A CITIZEN’S GUIDE 6 (5th ed. 2018). 130. NAT’L MUN. LEAGUE, PROGRESS REPORT ON A MODEL STATE CONSTITUTION 11 (1921), https://babel.hathitrust.org/cgi/pt?id=mdp.39015042012628;view=1up;seq=3. 131. Harrison, supra note 129, at 6. 132. NAT’L MUN. LEAGUE, MODEL STATE CONSTITUTION 14 (6th ed. 1968), https://babel.hathitrust.org/cgi/pt?id=mdp.39015033711493;view=1up;seq=3. 133. Harrison, supra note 129, at 104. 134. Id. at 105. 135. ALA. CONST. art. VI, § 140; ALASKA CONST. art. IV, §§ 15–16; ARIZ. CONST. art. VI, § 3; ARK. CONST. AMEND. 80, §4; CAL. CONST. art. VI, § 6; COLO. CONST. art. VI, § 5; DEL. CONST. art. IV, § 13; FLA. CONST. art. V; § 2; GA. CONST. art. VI, § IX; HAW. CONST. art. VI, §§ 6–7; IDAHO CONST. art. V, § 2; ILL. CONST. art. VI, § 4; IND. CONST. art. VII, § 4; IOWA CONST. art. V, § 4; KAN. CONST. art. III, § 1; KY. CONST. § 110(b); LA. CONST. art. V, § 5(a); MONEA 1/21/2019 4:20 PM

2017/18 THE ADMINISTRATIVE POWER 227 states that do not have explicit provisions in their constitutions, the state high courts still exercise the same sort of administrative powers. Maine, for instance, only grants its courts “judicial power” but its supreme court still issues administrative orders.136 This is but one of many examples of where state constitutions have evolved quite differently from our national charter. Some states provide rights for which there is no federal counterpart, such as the right to privacy or an Equal Rights Amendment.137 Other states offer more specific protections for rights, or extend protection against non-governmental violations of rights.138 Just as there is much to be learned from the states in the matter of individual rights and liberties, the administrative power of state courts offers a host of benefits.

B. Advantages of Administrative Power

Using administrative power to address access to justice problems offers a number of advantages. These include: (1) greater impartiality, (2) greater stability, (3) greater transparency, and (4) broader focus. I will address each one in turn. First, by impartiality, I refer to the fact that judges are often fearful of being seen as favoring one side over the other. In a typical dispute between an unrepresented person and well-funded attorney, judges are reluctant to help the former because of desire to remain impartial.139 If the judge is seen as helping one party, the argument goes, the other party would see it as biased. In some

MD. CONST. art. IV, § 18; MICH. CONST. art. VI, §§ 4–5; MO. CONST. art. V, §§ 4.1, 5; MONT. CONST. art. VII, § 2; NEB. CONST. art. V, §§ 1, 25; NEV. CONST. art. VI, § 19; N.J. CONST. art. VI, § 2, cl. 3; N.M. CONST. art. VI, § 3; N.Y. CONST. art. VI, § 28; N.C. CONST. art. IV, § 13(2); N.D. CONST. art. VI, § 3; OHIO CONST. art. IV, § 5; OKLA. CONST. art. VII, § 6; PA. CONST. art. V, § 10; S.C. CONST. art. V, § 4; S.D. CONST. art. V, § 12; TEX. CONST. art. V, § 31; UTAH CONST. art. VIII, § 12; VT. CONST. CH. II, §§ 30, 37; VA. CONST. art. VI, § 4; W. VA. CONST. art. VIII, § 3; WIS. CONST. art. VII, § 3; WYO. CONST. art. V, § 2. The one noteworthy exception is Massachusetts. The Bay State’s constitution does not even contain boilerplate language granting the courts “judicial power.” Its legislature eventually solved the conundrum by passing a law giving the supreme judicial court superintending power. MASS. GEN. LAWS ch. 211, § 3 (2012). The supreme judicial court, in turn, has said that it need not decide whether any sort of inherent judicial power exists beyond the law. In re DeSaulnier, 274 N.E. 2d 454, 456 (1971). 136. ME. SUP. JUD. CT., NOTICE OF OPPORTUNITY TO COMMENT, PROPOSED AMENDMENTS TO ADMINISTRATIVE ORDER JB–05–5 (A. 9–11) (June 14, 2016), http://courts. maine.gov/maine_courts/supreme/comment/ao_jb-05-5_gal_fees_notice_2016-6-14.pdf. 137. Tarr, supra note 121, at 1172. 138. Id. 139. Russell Engler, And Justice For All-Including the Unrepresented Poor: Revisiting the Roles of the Judges, Mediators, and Clerks, 67 FORDHAM L. REV. 1987, 1989 (1999). MONEA 1/21/2019 4:20 PM

228 GONZAGA LAW REVIEW Vol. 53:2 courts, there is precedent forbidding judges from giving help to self-represented litigants.140 A judge in a typical housing court, for instance, may feel safer allowing an unrepresented tenant face eviction than to aggressively question the landlord’s allegations after the tenant fails to mount any sort of cross- examination. Whether or not one agrees with these sentiments, the sentiments remain. No such problem exists for administrative orders. Judges are free to expand access to the courts without being accused or perceived as biased towards a particular party. Orders can be written without tipping the scales in any pending case before the court, because they are more closely related to legislation than judicial opinions. For the same reason, administrative orders offer greater stability - the second advantage named above. Stability in this case means the administrative orders are less likely to be undone by a technicality, which is one of the most common stumbling blocks to reforms by the judiciary. Some examples may help illustrate the point. Perhaps the most famous access to justice case ever decided is Gideon v. Wainwright.141 Written in 1789, the Sixth Amendment reads “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence [sic].”142 Mr. Gideon had a criminal prosecution brought against him, and he requested an attorney. Before the Court could give Mr. Gideon an attorney, it first had to determine whether the Sixth Amendment applied to the states through the Fourteenth Amendment.143 Next, the Court had to consider whether the right to counsel was a fundamental principle of liberty.144 Then, it had to contend with precedent on the books ruling against the right to counsel.145 This explains why it took thirty years after the Court recognized that “the right to the aid of counsel is of . . . fundamental character” in Powell v. Alabama146 before it actually gave the right practical import across the nation in Gideon. That outcome was nothing short of a miracle. For the Court would not have had the opportunity to write the opinion if it did not have the ideal litigant:

140. See, e.g., Lamoureux v. Superintendent, Mass. Correctional Inst., Walpole, 390 Mass. 409, 410 n.4 (1983) (“While pro se complaints may be excused for demonstrating a lack of expertise and knowledge, the court will not advance legal theories neglected to be presented”). 141. Gideon v. Wainwright, 372 U.S. 335 (1963). 142. U.S. Const. amend. VI. 143. Id. at 340. 144. Id. 145. Id. at 345. 146. Powell v. Alabama, 287 U.S. 45, 68 (1932). MONEA 1/21/2019 4:20 PM

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Clearance Earl Gideon. He preserved the error at trial, appealed it all the way through state courts, and filed in the U.S. Supreme Court within ninety days of the Florida Supreme Court ruling against him.147 He was not illiterate, mentally ill, young, or facing a complex set of facts, any one of which would have entitled him to an attorney and mooted the issue.148 He was convicted of a crime at trial rather than through a plea bargain that would have vitiated most of his rights. And in a supreme irony, if he had been given a lawyer to appeal, that attorney likely never would have raised the Sixth Amendment issue, as the controlling precedent had already decided against it.149 Any one of these procedural hurdles could have easily destroyed the case. If litigation is precarious, administrative orders provide greater stability. Challenges inherent in the creation of any public policy still exist: there are ideological differences in crafting the solution, a need to gather and weigh competing evidence, and difficulties that arise in implementation. But all of these apply to writing a judicial opinion that can attract a majority, and an administrative order is not as likely to be derailed by a vagary outside the court’s control. The third advantage of administrative orders is that they are more transparent. When a court writes an opinion, it is done in private and with limited opportunity for public input. Courts are often more open when it comes to administrative rule making. Committees are routinely established by supreme courts, comprised of diverse backgrounds, including non-lawyers, to gather information on a problem and propose solutions.150 The process is open and in public. In Michigan, for example, the state supreme court holds public hearings on proposed administrative rules.151 After the session is over, the hearing it posted on You- Tube for anyone to review.152 Members of the public, lawyer and non-lawyer alike, may attend and speak directly to the justices who will ultimately vote on the rule, much like a congressional committee hearing.

147. ANTHONY LEWIS, GIDEON’S TRUMPET 5–8, 5 (1964). 148. Id. at 8–9. 149. See Betts v. Brady, 316 U.S. 455, 473 (1942). 150. For example, in Louisiana, the supreme court created an Access to Justice Commission that would involve judges, clerks, businesspersons, and others representing “diverse ethnicities, genders and communities.” Anna Aguillard, Louisiana Supreme Court establishes Access to Justice Commission, LA. RECORD (Nov. 11, 2015), http://louisiana record.com/stories/510647058-louisiana-supreme-court-establishes-access-to-justice- commission. 151. See, e.g., Michigan Supreme Court, Public Administrative Hearing: Sept. 20, 2017, YOUTUBE (Oct. 4, 2017), https://www.youtube.com/watch?v=Aa7-1NxZdks. 152. See, e.g., id. MONEA 1/21/2019 4:20 PM

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In some ways, it is even more meaningful, as all of the ultimate decision makers are in the room, and the justices can engage in a back and forth with the speaker. Political scientist G. Alan Tarr also noted that “state supreme court rulemaking is less likely [than legislative rulemaking] to be influenced by partisan considerations or other irrelevant factors.”153 A majority of states, after all, do not have partisan judicial elections154 and the stricter ethics codes for judges.155 In a similar fashion, the Maine Supreme Judicial Court makes its process open to the general public. The court invites members of the public to submit comments on proposed administrative orders through mail or email.156 A commenter need not be an attorney to submit comments. Other states have similar public comment policies.157 Contrast this to a typical court case. The only means the public has to influence the process is to submit an amicus curiae brief. Federal Rules of Appellate Procedure 29158 illustrates the cumbersome nature of the process. To even have the opportunity to file one, a person must be given the consent of either the parties or the court. The filer must explain their interest in the case and justify the need for the brief. They must then follow a number of technical requirements concerning the contents of the brief, its timing, and length.159 For most intents and purposes, only lawyers with appellate experience and organizations with sufficient funds will be able to contribute. Finally, the fourth advantage to administrative orders is that they have the power to address a much broader range of topics. A judicial opinion cannot be written unless there is a controversy between two or more parties.160 However,

153. G. Alan Tarr, Court Unification and Court Performance: A Preliminary Assessment, 64 JUDICATURE 356, 363 (1981). 154. AM. BAR ASSOC. FACT SHEET ON JUDICIAL SELECTION METHODS IN THE STATES (Feb. 16, 2002), https://www.americanbar.org/content/dam/aba/migrated/leadership/fact_ sheet.authcheckdam.pdf. 155. See generally A.B.A. MODEL CODE JUD. CONDUCT CANON 4 (AM. BAR ASS’N 2011). 156. See, e.g., ME. SUP. JUD. CT., NOTICE OF OPPORTUNITY FOR COMMENT: PROPOSED AMENDMENTS TO ADMINISTRATIVE ORDER JB–05–5 (A. 9–11) (June 14, 2016), http:// courts.maine.gov/maine_courts/supreme/comment/ao_jb-05-5_gal_fees_notice_2016-6- 14.pdf. 157. See, e.g., ILL. SUP. CT. R. COMM., NOTICE OF PUBLIC HEARING (July 8, 2016), http://www.illinoiscourts.gov/SupremeCourt/Public_Hearings/Rules/2016/070816_ Notice.pdf. 158. FED. R. APP. P. 29 159. See id. 160. See Robert A. Leflar, Some Observations Concerning Judicial Opinions, 61 COLUM. L. REV. 810, 811 (1961). MONEA 1/21/2019 4:20 PM

2017/18 THE ADMINISTRATIVE POWER 231 many issues within access to justice do not lend themselves to this dynamic. An unrepresented person cannot sue the legal profession for failing to provide pro bono services. That does not stop New York’s high court from mandating pro bono services though.161 Although this article focuses on access to justice, administrative power has implications for virtually every area of the law. Around the country, it touches everything from payment schedules for court-appointed guardians to eyewitness identification procedures.162 I highlight several potential reforms in the following section.

III. PROPOSED REFORMS

The number of reforms proposed and implemented by state courts is great. Many state supreme courts around the country have created Access to Justice Commissions to research the problem and propose solutions.163 The total number of these commissions have grown from three in 1999 to at thirty-eight by 2015.164 Professor Steven Croley has noted that efforts to expand access to justice can be sorted into “demand side” and “supply side.”165 The former refers to things like pro bono commitments, greater legal aid funding, and relaxation of bar requirements. The latter means reforms that make the courts more accessible. In the interest of completeness, reforms focusing on the supply side and demand side are considered. I examine five areas in depth. First, making the court system more accessible for the self-represented. This could be accomplished through improving self-help materials for litigants and pro se policies for judges. Second, opening up more opportunities for non-lawyers to help. One does not need a law degree to perform many important courthouse tasks, yet overly strict rules in many states demand a law degree nonetheless. Third, summary jury trials should be implemented in more jurisdictions. These are shortened versions of trials that could help bring

161. Anne Barnard, Top Judge Makes Free Legal Work Mandatory for Joining State Bar, N.Y. TIMES (May 1, 2012), http://www.nytimes.com/2012/05/02/nyregion/new-lawyers- in-new-york-to-be-required-to-do-some-work-free.html. 162. ME. SUP. JUD. CT., PROPOSED ADMINISTRATIVE ORDER JB–05–5 (A. –16) (2016) http://courts.maine.gov/maine_courts/supreme/comment/ao_jb-05-5_gal_fees_proposed_ amends_2016-6-14.pdf; IDAHO SUP. CT., IN RE FORMATION OF AN EYEWITNESS IDENTIFICATION PROCEDURES TASK FORCE (Sept. 30, 2016), https://isc.idaho.gov/adm_orders/Eyewitness _Ident._Procedures_Task_Force_Order_09.16.pdf. 163. See Access to Justice Commissions, CTR. ON CT. ACCESS JUST. ALL, http:/ /www.ncsc.org/microsites/access-to-justice/home/Topics/Access-to-Justice-Commissions .aspx (last accessed Nov. 17, 2017). 164. Remarks of Lisa Foster, Director, Access to Justice Initiative of the Department of Justice (May 7, 2015). 165. Croley, Testimony, supra note 72. MONEA 1/21/2019 4:20 PM

232 GONZAGA LAW REVIEW Vol. 53:2 down litigation costs. Fourth, pro bono policies need to be expanded. Currently most pro bono policies are entirely voluntary and go unfulfilled. A few hours per year of required pro bono would result in millions of hours of legal service to the poor. And fifth, funding mechanisms that courts control should be fully utilized across the states.

A. Making the Court System More Accessible to Self-Represented Individuals

1. Improve Self-Help Materials

Going to court is a daunting process for anyone. It is an impersonal experience with high stakes, and the adversarial system virtually guarantees that your version of events will be scrutinized or attacked. To make matters worse, courts often impose seemingly arbitrary requirements on filings.166 Ideally, everyone would have access to high quality legal aid attorneys to help navigate this system. Given the costs of and availability of lawyers, however, it is unlikely that all litigants will have access to them. It would therefore behoove the justice system to make itself as easy as possible for a self- represented person to navigate. One of the key elements of this task is through self-help documents. Creating easy-to-use self-help materials is no easy task. Complicated issues must be boiled down to relatively short summaries. Present efforts leave much to be desired, and current materials are often verbose and difficult for the lay person to comprehend. A self-help guide from a bankruptcy court in Massa- chusetts exemplifies the problem.167 It begins by explaining to the reader that they would be better suited to hire an attorney, but it understands some people will “choose” to go at it alone. Right from the beginning, it suggests people chose to forego an attorney, and suggests that the choice is a bad one.168 Additionally, readability software indicates that the language used in that guide is too complex. The Flesch Reading Ease score and Flesch-Kincaid Grade

166. For a particularly absurd example, see Mike Masnick, The Insanely Complex Rules The Supreme Court Requires You To Meet To Ask It To Hear Your Case, TECH DIRT (Feb. 19, 2013), https://www.techdirt.com/articles/20130219/02285522024/insanely-complex-rules- supreme-court-requires-you-to-meet-to-ask-it-to-hear-your-case.shtml (describing the U.S. Supreme Court filing requirements). 167. A GUIDE FOR THE SELF–REPRESENTED DEBTOR IN A BANKRUPTCY CASE, U.S. BANKR. CT. DIST. MASS (Apr. 2016), http://www.mab.uscourts.gov/pdfdocuments/massps guide.pdf [hereinafter A GUIDE FOR THE SELF–REPRESENTED DEBTOR]. 168. Id. MONEA 1/21/2019 4:20 PM

2017/18 THE ADMINISTRATIVE POWER 233 level are two measures to approximate the difficulty of a document.169 Both tests consider the numbers of syllables per word and words per sentence and, essentially, recommends small words, and short sentences.170 For even one or two uncommon words can slow down readers, and excessive slowness can interfere with comprehension.171 An author’s analysis reveals that the introduction of this self-help guide has a Flesch Reading Ease score of 49 (classified as “difficult” to read). It has an 11th grade Flesch-Kincaid reading level. And that’s only the introduction. The document as a whole is nearly one hundred pages long. It is larded up with footnotes, needless abbreviations (“Fed. R. Bankr. P.”), and lawyerly symbols (“§”) foreign to normal conversation. There is good reason to think that these sorts of documents are incomprehensible to the populations they are meant to serve. The average American reads at about an eighth grade level.172 To put that in context, it is the same level as Harry Potter and the Order of the Phoenix.173 Eleventh grade material is likely to be somewhat unhelpful to a large swath of the population.174 Typically, those with low literacy skills may struggle to read “pamphlets or booklets, directions on a bottle of aspirin, or the explanations for a food exchange list.”175 They are unlikely to reveal this lack of understanding due to the social stigma of illiteracy.176 These people are not stupid. They can understand if materials are designed and presented properly,177 yet much of the self-help literature is not designed and presented properly. The presence of complex language is only part of the problem. What is absent is often more concerning. Going back to the Massachusetts guide, there

169. Victoria Burke & Daphne Greenburg, Determining Readability: How to Select and Apply Easy-to-Use Readability Formulas to Assess the Difficulty of Adult Literacy Materials, 4 ADULT BASIC EDUC. & LITERACY J. 34, 35 (2010). 170. Id. 171. CECILIA C. DOAK ET AL., TEACHING PATIENTS WITH LOW LITERACY SKILLS 5 (2d ed. 1996). 172. Readability, CLEAR LANGUAGE GROUP, http://www.clearlanguagegroup.com/ readability/ (last accessed Nov. 21, 2017). 173. Herb Weisbaum, Credit Card Contracts Literally Too Hard To Read For Most, NBC NEWS (Sept. 12, 2016), https://www.nbcnews.com/business/consumer/credit-card-con tracts-literally-too-hard-read-most-n646696. 174. Lewis D. Eigen, A Solution to the Problem of Consumer Contracts That Cannot be Understood by Consumers Who Sign Them, SCRIPTAMUS (Nov. 12, 2009), https://script amus.wordpress.com/2009/11/12/a-solution-to-the-problem-of-consumer-contracts-that-can not-be-understood-by-consumers/ (noting that tenth grade is about as high as one can go to communicate with American adults). 175. DOAK ET AL., supra note 171, at 1. 176. Id. at 6. 177. Id. at 2. MONEA 1/21/2019 4:20 PM

234 GONZAGA LAW REVIEW Vol. 53:2 are no explanations for how to argue before a judge, no contact information for the various offices that debtors are told to interact with, and no direct hyperlinks that take people where they need to go.178 There are many other examples of these shortcomings from other courts.179 Courts can take important steps to address these challenges. A first step could be to create more effective self-help materials. Simpler is better. Techniques such as plain language, consistent use of vocabulary, avoidance of ambiguity, and simple sentence structure all improve clarity, recall, and retrieval of information within a document.180 Not only do these things make materials easier to read, they may improve trust with the general public. Literature on “processing fluency” shows that information that is more easily processed is evaluated more positively and perceived as less risky.181 A study of over 1,500 people found that when given simpler insurance contacts, they were more likely to seek information, file complaints, seek advice, and pursue legal claims.182 Simpler court documents could make self-represented litigants more likely to assert their rights. If courts are looking for guidance, the Pennsylvania Plain Language Con- sumer Contract Act is a good place to start.183 The law requires many businesses to write contracts using plain language and offers an appendix that helpfully lists the components of clear writing.184 I also recommend that court documents are run through a readability analysis before being published, which is freely available through Microsoft Word.185 Having a diverse set of people help draft-

178. For example, the document frequently directs people to the bankruptcy court website at www.mab.uscourts.gov to find the forms they need, but the link merely takes people to front page of the website rather than the page on which the forms are located. See, e.g., A GUIDE FOR THE SELF-REPRESENTED DEBTOR, supra, note 167, at 1. 179. See, e.g., U.S. DIST. CT. S. DIST. ILL., PRO SE LITIGANT GUIDE, (May 2013), http://www.ilsd.uscourts.gov/Forms/ProSeGuide.pdf; U.S. DIST. CT. S. DIST. OHIO, A GUIDE FOR PRO SE CIVIL LITIGANTS (Feb. 13, 2017), http://bit.ly/2yZX3JL. 180. Willem H. Van Boom, Pieter Desmet & Mark Van Dam, “If It’s Easy to Read, It’s Easy to Claim”—The Effect of the Readability of Insurance Contracts on Consumer Expectations and Conflict Behaviour, 31 J. CONSUMER POL’Y 187, 188 (2016). 181. Id. at 190. 182. Id. at 191–95. 183. See generally 37 PA. CODE Part V, Ch. 307 (2018). 184. Id. at Appendix B. 185. In fairness, many courts are aware of the need to use simple language, and some help has been made. A 1993 study of Michigan court forms found that the vast majority of them used archaic words and phrases like “now comes,” “wherefore,” and “hereby.” George Hathaway, Plain English in Lawsuit Papers, MICH. BAR J. 340 (1993), http://www. michbar.org/file/generalinfo/plainenglish/pdfs/93_mar.pdf. These sorts of words are anathema to comprehension. Today, a typical summons and complaint form approved by the Michigan State Court Administrative Office uses simpler MONEA 1/21/2019 4:20 PM

2017/18 THE ADMINISTRATIVE POWER 235 ing materials, including ordinary people and legal aid attorneys who work with them daily, would not go amiss either. Simplicity of language is only the first step to effective self-help materials, however. The overwhelming consensus among education scholars is that visuals improve learning, yet they are rarely used in legal self-help materials.186 Images can ease stress, entertain and motivate, improve understanding, and serve as mnemonic devices.187 Educational, psychology, and public health literature also indicate that images improve learning.188 If a court is dedicated to making self- help materials accessible, there are a number of other best practices.189 Interactive materials are an example. Interaction serves as a catalyst for protein change in the brain that stimulates information retention for long-term memory.190 Making interactive forms is difficult, but not impossible. A legal aid group built an interactive self-help guide for the immigration court process.191 This interactive self-help guide was largely created by students,192 but lawyers could learn a thing or two from them. The interactive guide prompts readers to write out in advance responses to questions like “I was hurt in my home country by. . .” or “Some of the worst things they did to me include. . .” that they might be asked by the judge.193 It also asks them to write down names of people who can write letters of support, list the documents they will need to bring, and create a timeline to keep track of the important court dates.194 It also incorporates illustrations, lists, and physical descriptions of the steps throughout the process. Guides such as this should be the model, not the monochromatic walls of text.

language and provides clearer information to litigants. See MICH. ST. CT. ADMIN. OFF., SUMMONS AND COMPLAINT (2018), http://courts.mi.gov/administration/scao/forms/court forms/mc01.pdf. 186. See D. James Greiner, Dalie Jimenez & Lois Lupica, supra note 54, at 1133–34. 187. Id. at 1134. 188. Id. at 1136. 189. Cartoonish figures are better than photos or highly detailed images, if an image cannot share the page with text, it should precede it, purely decorative graphics should not be used, and so forth. As for typeface, spacing should be ample at consistent, text should be left– aligned and sans serif and comprise no more than half of the page. Id. at 1136–37, 1158–59. 190. DOAK ET AL., supra note 171, at 24. 191. See, e.g., IMMIGRANTS’ RTS. CLINIC STAN. L. SCH., GETTING ASYLUM: PROTECTION IN THE UNITED STATES (2017), https://www-cdn.law.stanford.edu/wp-content/uploads/2017/ 05/KnowYourRights_v13.pdf [hereinafter GETTING ASYLUM]. 192. Arturo Schultz, Immigrants’ Rights Clinic Students Create Unique Guide for Pro Se Asylum Seekers, STAN. L. SCH. (May 24, 2017), https://law.stanford.edu/2017/05/24/ immigrants-rights-clinic-students-create-unique-guide-for-pro-se-asylum-Seekers/. 193. GETTING ASYLUM, supra note 191, at 11. 194. Id. at 12–13, 22. MONEA 1/21/2019 4:20 PM

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2. Create Guidelines for Courts Handling Self-Represented Litigants

No matter how well-designed self-help materials are, self-represented litigants are going to be at a structural disadvantage. Given trends, there is no reason to think the number of self-represented litigants will decrease anytime soon.195 Yet, many courts lack an internal guide for how to properly deal with the the self-represented litigants. The Code of Conduct for federal judges does not even mention self-represented litigants.196 In one survey, 91 percent of judges reported that their courts did not have a policy addressing how self-represented litigants should be treated in the courtroom or the litigation process generally.197 It does not have to be this way. Rule 2.2 of the ABA’s Model Code of Judicial Conduct states “[a] judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially.”198 Comment 4 of this rule states “[i]t is not a violation of this Rule for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard.”199 Rule 2.6 states “[a] judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law.”200 These model rules/comments indicate that judges may help pro se litigants or others that do not know the rule of law very well. Several state supreme courts have adopted these rules and given clear direction to trial level judges. The Colorado Supreme Court has sanctioned an advisory code of ethics for judges. Comment 2 of Colorado’s Rule 2.6 lays out a suite of options for courts to ensure a self-represented litigant’s right to be heard, which includes providing information to them about evidentiary and procedural requirements, referring them to resources, and modifying certain procedures.201 Washington D.C.’s Code of Judicial Conduct Rule 2.2, comment 1A states that judges have an “affirmative role” to ensure that litigants are fairly heard, and provides similar options to Colorado.202

195. AM. BAR ASSOC., HANDBOOK, supra note 52, at 8. 196. Code of Conduct for United States Judges, JUD. CONF. U.S. (Mar. 20, 2014), http://www.uscourts.gov/judges-judgeships/code-conduct-united-states-judges. 197. Engler, supra note 140, at 2013. 198. A.B.A. MODEL CODE JUD. CONDUCT, r. 2.2 (2010). 199. A.B.A. MODEL CODE JUD. CONDUCT, r. 2.2 cmt. 4 ( 2010). 200. A.B.A. MODEL CODE JUD. CONDUCT, r. 2.6 (2010). 201. COLO. CODE OF JUDICIAL CONDUCT, r. 2.6 (2018). 202. For other examples, see OHIO CODE JUD. CONDUCT, r. 2.6, cmt. 1A (2018); IOWA CODE JUD. CONDUCT, r. 2.4, cmt. 4 (2018); LA. CODE JUD. CONDUCT CANON 3, cmt 4 (2018); MAINE CODE OF JUDICIAL CONDUCT CANON 3B, cmt. 12 (2018); N.H. CODE JUD. CONDUCT, r. 2.6, cmt. 4 (2018); MONT. CODE JUD. CONDUCT, r. 2.5, cmt. 4 (2018). MONEA 1/21/2019 4:20 PM

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The Massachusetts Supreme Judicial Court went a step farther. It created an entire set of judicial guidelines for self-represented litigants.203 These guidelines cover general practices, and interaction pre-, during, and post-courtroom proceedings. It contains important admonishments, such as “the judge should recognize when opposing counsel is ‘engaging in improper tactics and taking advantage of the [self-represented litigant’s] unrepresented status’ and ‘promptly intervene.’”204 These policies matter because for many self-represented litigants, complex- ity of the underlying legal issue is only part of the problem. Not only do self- represented litigants lack legal training, they are also often “confused, frightened, and lacking the confidence to negotiate what is a complicated system.”205 Experiences with the legal system can be humiliating and oppressive for the poor. Casual rudeness of court staff,206 misunderstanding of the central tenets of how courts operate,207 and feelings that the system is stacked against them,208 all conspire to make the process even more onerous. Suppose a self-represented tenant goes to housing court to defend themselves against an eviction. They may well have a strong argument and still lose. Many self-represented litigants complain that going to court felt futile. They do not feel that anyone is listening to them or that they were able to tell their story.209 In my own experience working with tenants in housing court, they often do not realize when it is appropriate for them to explain what happened, feel too intimidated to speak, or are sped along by impatient judges. Acts as simple as giving the litigant the floor for a few minutes can help change the dynamic in the courtroom.210

203. Judicial Guidelines for Civil Hearings Involving Self-Represented Litigants, MASS. SUP. JUD. CT. http://www.mass.gov/courts/court-info/trial-court/exec-office/ocm/jud- institute/jg-self-rep.html (last accessed Nov. 22, 2017). 204. Guidelines for conducting hearings with commentary for civil cases, MASS. SUP. JUD. CT., https://www.mass.gov/service-details/guidelines-for-conducting-hearings-with- commentary (last accessed Nov. 22, 2017) (internal citations omitted). 205. JEFRI WOOD, FED. JUD. CTR., PRO SE CASE MANAGEMENT FOR NONPRISONER CIVIL LITIGATION 2 (2016), https://www.fjc.gov/sites/default/files/2017/Pro_Se_Case_Management _for_Nonprisoner_Civil_Litigation.pdf. 206. See, e.g., EVICTED, supra note 74, at 100. 207. See, e.g., Owens, supra note 28, at 148–49. 208. See, e.g., Randall W. Scott, Housing Courts and Housing Justice: An Overview, 17 J. URBAN & CONTEMP. L. 3, 7 (1979). 209. See WOOD, supra note 205, at 6. 210. Id. at 7. MONEA 1/21/2019 4:20 PM

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There are plenty of other ways to simplify the process. Many courts still enforce byzantine citation systems based on or inspired by the Bluebook,211 which is one more barrier to non-lawyers. Courts could emulate Judge Richard Posner and declare that citations need only (1) give the reader an idea of what the source is, and (2) enable the reader to look up the source easily.212 Hawaii Rule of Appellate Procedure 28(b)(1) does something like this, at least for electronic sources.213 Providing guidance to the trial courts could help judges navigate the tricky balance between remaining impartial and ensuring that the process is fair. Small changes in this area could have large impacts.

B. Opening up the Justice System so that Non-Lawyers Can Play More Meaningful Roles

In recent years, a growing chorus on the right and left have begun to criticize onerous professional licensing requirements.214 The criticisms encompass increasing prices for consumers, stifling innovation, and encumbering workers.215 Those fortunate enough to hold licenses, however, see an increase in wages due to the reduced competition.216 Over the years, the number of industries subjected to these requirements has steadily grown, increasing five-fold since the 1950s.217 Today, more than one thousand occupations are regulated in this manner such as travel guides, auctioneers, and cosmetologists, among many others.218 These industries are amateurs compared to the lawyering profession. Going all the way back to 1178 A.D., England has recognized “professional” legal practitioners.219 By 1292, Edward I imposed limitations on the number of

211. See ASSOC. LEGAL WRITING DIRECTORS, APPENDIX 2: LOCAL COURT CITATION RULES (2002), http://www.alwd.org/wp-content/uploads/2013/02/CM1_Appendix2.pdf. 212. Richard A. Posner, The Bluebook Blues, 120 YALE L.J. 850, 852 (2011). 213. HAW. R. OF APP. P. 28 (b)(1) (1984). 214. Jared Meyer, Occupational-Licensing Reform Can Improve Upward Mobility for Low-Income and Military Families, NAT’L REV. (Aug. 31, 2017), http://www.nationalreview .com/article/450987/occupational-licensing-reform-big-help-low-income-military-families. 215. WHITE HOUSE, OCCUPATIONAL LICENSING: A FRAMEWORK FOR POLICYMAKERS 12–13 (2015), https://obamawhitehouse.archives.gov/sites/default/files/docs/licensing_report _final_nonembargo.pdf. 216. Id. at 12. 217. Id. at 3. 218. Jared Meyer, New Congress Can Limit Occupational Licensing, FORBES (Jan. 23, 2017), https://www.forbes.com/sites/jaredmeyer/2017/01/23/new-congress-can-limit-occupa tional-licensing/#45200e325d7e. 219. Zachary C. Zurek, The Limited Power of the Bar to Protect Its Monopoly, 3 ST MARY’S J. LEGAL MALPRACTICE & ETHICS 242, 280 n.14 (2013). MONEA 1/21/2019 4:20 PM

2017/18 THE ADMINISTRATIVE POWER 239 laypersons practicing around the king’s courts.220 Across the pond, the legal profession has had the power to self-regulate for about a century,221 and it began to vigorously crack down on the unauthorized practice of law during the Great Depression, when employment for lawyers was scarce.222 Of course, the risk of harm for malpractice of a lawyer is graver than, say, a travel guide. Legal problems can also prove more complex than they first appear. But many jurisdictions have gone too far. Restrictions are often questionable at best. In various jurisdictions, there are prohibitions on “conducting legal research,” “utilizing software” to help clients through the bankruptcy process, and “providing a layman customer with a pamphlet summarizing the bankruptcy statute.”223 One court held “a nonlawyer who orally takes information from an individual to complete a form when the form has not been approved by this Court is engaged in the unlicensed practice of law.”224 Targets of unauthorized practice of law complaints are often given little due process.225 By casting such a wide net, bedeviling situations arise. For the law permeates all aspects of life. Every day, we all encounter and interpret laws big and small. Lines can get blurry. Tax services, real estate transactions, and Social Security claims, for instance, each require the interpretation of a vast compendium of laws.226 Defining what constitutes the “practice of law” is next to impossible on its own,227 and these sorts of situations make it more difficult. Evidence for such onerous regulations is scant. Consider, for example, the bar exam. The test is supposedly the preeminent check on incompetence, yet there is little empirical evidence that it reduces malpractice.228 In Wisconsin, there is no bar exam, but the state has not had an “explosion of incompetence.”229

220. Robert R. Ries, The Unauthorized Practice of Law in Texas, 60 TEX. B.J. 37, 37 (1997). 221. Lauren Moxley, Zooming Past the Monopoly: A Consumer Rights Approach to Reforming the Lawyer’s Monopoly and Improving Access to Justice, 9 HARV. L. & POL’Y REV. 553, 558 (2015). 222. Zurek, supra note 219, at 246 n.16. 223. Jerome Wahlert, Annotation, Matters Constituting Unauthorized Practice of Law in Bankruptcy Proceedings, 32 A.L.R. 6th 531 (2008). 224. The Florida Bar v. Miravalle, 761 So. 2d 1049, 1051 (Fla. 2000). 225. See, e.g., Moxley, supra note 221, at 559 (describing how certain state bar associa- tions dealt with LegalZoom and other online services). 226. See Zurek, supra note 219, at 256–265, 266 n.122. 227. See Moxley, supra note 222, at 563. 228. Samuel Chang, High Cutoffs: A Bar to the Bar?, ABA FOR LAW STUDENTS. (Sept. 1, 2017), https://abaforlawstudents.com/2017/09/01/high-bar-exam-cut-scores- california/. 229. Id. MONEA 1/21/2019 4:20 PM

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The bar exam has been effective, however, at excluding people of color from the profession.230 Almost all experts that have examined the issue have recommended increased opportunities for non-lawyer assistance.231 State supreme courts are uniquely poised to lead on this issue. In many states, the high court has plenary and exclusive powers to regulate the practice of law, which typically includes making determinations of unauthorized practice of law.232 Some of this authority is exercised through the adversarial process, but it is also carried out through the rulemaking process.233 So what could courts do to improve this picture? They could forge a better compromise between the need to police the practice of law and the needs of those who cannot afford full legal representation. In Washington, the state supreme court has recently adopted a rule to allow non-lawyers to give legal advice in family law, with significant cost savings.234 Known as Limited License Legal Technicians (LLLTs), these intermediaries can obtain facts from clients, inform clients about legal implications of cases, research and draft legal documents, and perform several other ancillary functions.235 The goal of the program was to increase access to justice for low- and moderate-income persons.236 However, there are limitations to the LLLT’s role—they cannot represent parties in court, negotiate on behalf of clients, or prepare legal documents that are not approved by an oversight board (those

230. Id. 231. Rhode, Access to Justice, supra note 22, at 1806. 232. See, e.g., Injured Workers Ass’n of Utah v. State, 374 P.3d 14, 20 (2016) (“[T]here is no limitation found within the constitution on our ability to govern the practice of law.”); OHIO REV. CODE ANN. §4705.07 (2006) (“Only the supreme court may make a determination that any person has committed the unauthorized practice of law.”). State ex rel. Comm’n on Unauthorized Practice of Law v. Tyler, 811 N.W.2d 678, 680–81 (2012) (“This court has the inherent power to define and regulate the practice of law and is vested with exclusive power to determine the qualifications of persons who may be permitted to practice law” which includes the unauthorized practice of law). 233. NEB. SUP. CT. R. § 3–1003 (2018) (Rules of Procedure Governing the Un- authorized Practice of Law). 234. Jessica Prokop, Legal Technicians Provide Family Law Assistance, COLUMBIAN (June 27, 2016), http://www.columbian.com/news/2016/jun/27/legal-technicians-provide- family-law-assistance/. 235. Legal Technician Program FAQs, WASH. ST. BAR ASS’N., http://www. wsba.org/Licensing-and-Lawyer-Conduct/Limited-Licenses/Legal-Technicians/Legal- Technician-FAQs (last accessed Dec. 9, 2017) [hereinafter WASH. ST. BAR ASS’N] 236. See SUP. CT. WASH., ORDER NO. 25700-A-1005, IN RE THE ADOPTION OF NEW APR 28—LIMITED PRACTICE RULE FOR LIMITED LICENSE LEGAL TECHNICIANS 4–6 (June 2012), http://www.wsba.org/~/media/Files/Licensing_Lawyer%20Conduct/LLLT/20120615%20SC t%20Order%20%20Legal%20Technician%20Rule.ashx. MONEA 1/21/2019 4:20 PM

2017/18 THE ADMINISTRATIVE POWER 241 actions are exclusively reserved for attorneys).237 An LLLT’s work is governed by rules of professional conduct that are fairly analogous to the ethics code for lawyers.238 There are still significant barriers to entry: technicians must perform 3,000 hours of paralegal experience, obtain a post-secondary degree, and complete coursework from the state law school and bar association.239 Even so, the bulk of the prerequisite work is as a paralegal, which earn, on average, $48,810 per year,240 and the total cost of becoming certified is $14,440.241 Law students, in comparison, typically earn next to nothing for three years and pay tens of thousands of dollars each year in tuition alone. Therefore, technicians are less likely to enter the workforce ensnared by debt. The program’s genesis goes back more than a decade. In 2002, Washington’s Practice of Law Board was established to propose a rule to authorize non-lawyers to perform certain law-related functions.242 Over the intervening years, lawyers opposed the idea in fear that it would take away their work, but eventually, the Washington Supreme Court adopted Admission to Practice Rule 28 in 2012, establishing the program.243 Even after the rule was adopted, implementation required defining the exact scope of what technicians could do, developing an education program to prepare technicians, and creating rules for the new profession.244 Early evaluations of the program offer cautious, yet optimistic, assessments. Fewer than expected numbers of prospective technicians matriculated at the University of Washington, which means neither the school nor the state bar

237. WASH. STATE BAR ASS’N., supra note 235. 238. See generally WASH. LIMITED LICENSE LEGAL TECHNICIAN RULES PROF’L CONDUCT (2018), https://www.wsba.org/docs/default-source/licensing/lllt/rule—-lllt-rpc- 2015-02-03.pdf?sfvrsn=f0a13cf1_2. 239. WASH. STATE BAR ASS’N., supra note 235. 240. What is a Paralegal?, U.S. NEWS & WORLD REPORT, https://money.usnews .com/careers/best-jobs/paralegal (last accessed Dec. 9, 2017). 241. THOMAS M. CLARKE & REBECCA L. SANDEFUR, AM. BAR FOUNDATION, PRELIMINARY EVALUATION OF THE WASHINGTON STATE LIMITED LICENSE LEGAL TECHNICIAN PROGRAM 10 (2017), http://www.americanbarfoundation.org/uploads/cms/documents/prelimi nary_evaluation_of_the_washington_state_limited_license_legal_technician_program_0321 17.pdf [hereinafter WASHINGTON STATE LIMITED LICENSE LEGAL TECH PROGRAM]. 242. Stephen R. Crossland, The Evolution of Washington’s Limited License Legal Technician Rule, THE BAR EXAMINER 20, 20 (June, 2004), http://www.ncbex.org/assets /Uploads/830214-Crossland.pdf. 243. Id. at 21. 244. Id. at 23–25. MONEA 1/21/2019 4:20 PM

242 GONZAGA LAW REVIEW Vol. 53:2 foundation were able to break even.245 But seeing as only 30-60 technician students a year should make the program economically viable for the school, and many of the startup costs of the program for the bar foundation are fixed, the goal of financial sustainability is realistic,246 if not yet realized. In terms of program efficacy, technicians felt largely well-prepared by the training requirements, clients reported their legal outcomes improved thanks to the technicians, and stress, fear, and confusion declined.247 The only real opposition has come from lawyers.248 The program looks poised to expand. The Colorado Supreme Court has a subcommittee on legal technicians to determine whether it should start its own pilot, and may adopt an even more aggressive approach.249 Additionally, a number of other states throughout the country are considering the program.250 The American Bar Foundation has compiled resources on the program to explain the program to other states.251 Practice areas are likely to expand as well. The Washington pilot focused on family law, but other proposed practice areas included immigration, housing, and elder law.252 A Utah study on the adoption of a legal technician program noted that a majority of parties were self-represented in not only family and housing law, but also in contract, protective order, civil stalking, and debt collection cases.253 There are other models for states to pursue. If legal technicians are a fairly robust analog for lawyers (in terms of functions and certification), the alterna- tives are simpler. The Arizona Supreme Court has established a legal document

245. WASHINGTON STATE LIMITED LICENSE LEGAL TECH PROGRAM supra note 241, at 7, 10. 246. Id. at 10. 247. Id. at 9. 248. See Angela D. Masciulli, Limited License Legal Technicians: Justice Gap Pioneers, NAT’L PARALEGAL REP. 36, 39 (2016), https://deparalegals.org/resources/Docu ments/National%20Affairs%20-%20LLLT.pdf; Smith, supra note 23, at 2. 249. Ali Manor, Colorado Shifts Focus From LLLT, L. WEEK COLO. (July 20, 2016), http://lawweekcolorado.com/2016/07/colorado-shifts-focus-from-lllt/. 250. Smith, supra note 23, at 2 (“California, Connecticut, Massachusetts, New York, Georgia, Maryland, and Vermont are all considering adopting some form of the Washington model the Florida Bar has also begun to explore this new form of business model for the consumers of legal services.”). 251. See, e.g., WASHINGTON STATE LIMITED LICENSE LEGAL TECH PROGRAM, supra note 241. 252. Crossland, supra note 242, at 21. 253. UTAH SUP. CT., TASK FORCE TO EXAMINE LIMITED LEGAL LICENSING 15 (2015), http://www.utcourts.gov/committees/limited_legal/Supreme%20Court%20Task%20Force% 20to%20Examine%20Limited%20Legal%20Licensing.pdf. MONEA 1/21/2019 4:20 PM

2017/18 THE ADMINISTRATIVE POWER 243 preparer program to help those who do not have the full representation of an attorney.254 Preparers may also provide general “legal information” to clients but may not give “legal advice” (the distinction is not clear).255 Preparers must pass a competency exam and have two years of law-related experience, but need only a high school diploma or GED.256 The total cost of certification is only a few hundred dollars.257 New York has created a Court Navigator pilot program for its housing courts. A major difference is that while legal technician is a remunerative, full- time career with certification requirements, navigators are volunteers who receive only minimal training.258 They offer something akin to a “lawyer for a day” program offered by many legal service organizations. Despite the voluntary nature, navigators can actually do a bit more inside the courtroom than technicians. In addition to helping unrepresented parties prepare documents, they can also accompany litigants into court and answer factual questions posed by the court and assist in scheduling court proceedings and in obtaining court services.259 Like the technician program, initial responses are positive. Compared to unrepresented litigants, litigants with navigators were fifty-six percent more likely to say they were able to tell their side of the story, asserted twice as many defenses, and were eighty-seven percent more likely to have their defenses recognized.260 This translated into palpably better outcomes for tenants, such as landlords being ordered to make needed repairs fifty percent more often.261 California has taken a similar model. Known as the JusticeCorps, it trains around 250 college students and recent graduates to help unrepresented litigants complete forms, provide legal information, and offer language assistance.262

254. Legal Document Preparers, ARIZ. JUD. BRANCH, https://www.azcourts.gov/cld /Legal-Document-Preparers (last accessed Dec. 9, 2017). 255. Id. 256. ARIZ. CODE JUD. ADMIN. § 7–208(E)(3) (2018). 257. ARIZ. CODE JUD. ADMIN. § 7–208(K) (2018). 258. Court Navigator Program, N.Y. STATE UNIFIED CT. SYSTEM, https://www. nycourts.gov/courts/nyc/housing/rap_prospective.shtml (last accessed Dec. 9, 2017). 259. N.Y. CTS., AO/42/14, ADMINISTRATIVE ORDER OF THE CHIEF ADMINISTRATIVE JUDGE OF THE COURTS (2014), https://www.nycourts.gov/courts/nyc/SSI/pdfs/AO-42-14.pdf. 260. REBECCA L. SANDEFUR & THOMAS M. CLARKE, AM. BAR FOUNDATION, ROLES BEYOND LAWYERS: SUMMARY, RECOMMENDATIONS AND RESEARCH REPORT OF AN EVALUATION OF THE NEW YORK CITY COURT NAVIGATORS PROGRAM AND ITS THREE PILOT PROJECTS 4 (2016), http://www.americanbarfoundation.org/uploads/cms/documents/new_ york_city_court_navigators_report_final_with_final_links_december_2016.pdf. 261. Id. 262. About JusticeCorps, CAL. CTS., http://www.courts.ca.gov/justicecorps-about.htm (last accessed Dec. 9, 2017) [hereinafter About JusticeCorps]. MONEA 1/21/2019 4:20 PM

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Corps members receive basic living stipends,263 but the motivation is clearly based on passion, not lucre. The JusticeCorps were established through California Court Rule 10.960, and as the name implies, it is funded and supported by AmeriCorps.264 In the years since it was piloted in 2004, it has built up an impressive track record. Nearly half-a-million instances of assistance have been achieved in twenty-four different languages, and 330,000 legal documents have been filed.265 Each of these state programs vary in terms of pay, scope of duties, and certification requirements. But the common thread running throughout is that one does not need to be a lawyer to offer meaningful help with legal problems. There may be some tasks that only a lawyer can handle, but for everything else, we should make opportunities to help available.

C. Summary Jury Trials: A Method that Reduces the Cost of Litigation While Maintaining Core Procedural Safeguards

Jury trials have a long and illustrious history in the United States. Although the right to a civil jury trial was not guaranteed until the passage of the Seventh Amendment,266 the right to criminal jury trial was already ensconced in Article III—one of the few individual rights in the original Constitution.267 The absence of civil jury rights in the Constitution was one of the greatest causes of its opposition by the Anti-Federalists, and two delegates to the Convention refused to sign the document for this very reason.268 Many states made ratification of the Constitution conditional upon the adoption of a Bill of Rights that included civil jury trials,269 and the Seventh Amendment ended up passing without debate.270 It is not hard to see why passions were so fiercely bestirred by jury rights. They were regarded by many at the founding of the country as the “very palladium of free government”271 and as the “only anchor, ever yet imagined by

263. JusticeCorps FAQs, CAL. CTS., http://www.courts.ca.gov/justicecorps-faq.htm (last accessed Dec. 9, 2017). 264. JusticeCorps Partners, Cal. Cts., http://www.courts.ca.gov/justicecorps-partners .htm (last accessed Dec. 9, 2017). 265. About JusticeCorps, supra note 262. 266. U.S. CONST. amend. VII. 267. U.S. CONST. art III, §2, cl. 3. 268. Eric Grant, Right to Jury in Civil Cases, HERITAGE FOUND., http://www. heritage.org/constitution/#!/amendments/7/essays/159/right-to-jury-in-civil-cases. 269. Stephen Susman, Remarks before the American Constitution Society National Convention (June 9, 2017). 270. Grant, supra note 268. 271. THE FEDERALIST NO. 83 (Alexander Hamilton). MONEA 1/21/2019 4:20 PM

2017/18 THE ADMINISTRATIVE POWER 245 man, by which a government can be held to the principles of [its] constitution.”272 Alexis de Tocqueville marveled that the institution of the jury “invests the people . . . with the direction of society.”273 Historian Robert Caro wrote that the right to a jury trial “was as sacred to Americans as the right to vote.”274 Before the executive or legislative branches had fully developed (meaning well into the 19th century), juries not only adjudicated legal disputes, but through court orders, oversaw public infrastructure projects, enforced taxes, and determined welfare rolls.275 They still stand as the ultimate democratic check on our justice system, and one of the few ways that the average citizens can be meaningfully involved in government. Yet jury trials are becoming vanishingly scarce, especially in the civil realm.276 Though it is true that never once in American history has there been an election where a jury right has been curbed,277 the right has been displaced in other ways. Over the past several decades, there has been a concerted effort to move cases out of the courtroom and into alternative dispute resolution (ADR) programs.278 Undoubtedly, many of these ADR programs resulted in mutually advantageous, low-stress resolutions. Given that only about 1 percent of trials end up before a jury today,279 however, one cannot help but wonder when some parties might feel compelled to settle due to costs or other pressures. In spite of this, jury trials remain a quintessentially American institution: ninety percent of all jury trials on the planet take place in the United States.280 Summary jury trials offer an opportunity to emulate the efficiency that ADR programs strive for while maintaining the most important aspect of the justice

272. Letter from Thomas Jefferson to Thomas Paine (July 11, 1789). 273. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA, CH. XVI, PART II (Henry Reeve, trans., 2013). 274. ROBERT CARO, THE YEARS OF LYNDON JOHNSON: MASTER OF THE SENATE 945 (2002). 275. Stephan Landsman, Juries as Regulators of Last Resort, 55 WM & MARY L. REV. 1061, 1061 (2014). 276. See Judge William G. Young, Vanishing Trials, Vanishing Juries, Vanishing Constitution, 40 SUFFOLK U. L. REV. 67, 74 (2006). 277. JUDGE WILLIAM G. YOUNG, IN CELEBRATION OF THE AMERICAN JURY TRIAL 7 (2014), https://massbar.org/docs/default-source/publications-document-library/ejournal/2015 -16/in-celebration-of-the-american-jury-trial.pdf?sfvrsn=2 [hereinafter AMERICAN JURY TRIAL]. 278. Kelly Rizzetta, Judge Says There Should Be More Jury Trials, LAW360 (Feb. 29, 2012), https://www.law360.com/articles/314736/judge-says-there-should-be-more- jury-trials. 279. Patricia Lee Refo, The Vanishing Trial, 2 J. SEC. LITIG. 2, 2–3 (2004), https:// www.americanbar.org/content/dam/aba/publishing/litigation_journal/04winter_openingstate ment.authcheckdam.pdf. 280. AMERICAN JURY TRIAL, supra note 277, at 1. MONEA 1/21/2019 4:20 PM

246 GONZAGA LAW REVIEW Vol. 53:2 system: placing ultimate authority in the hands of ordinary citizens. The goal is to expedite the process without sacrificing key procedural safeguards. The savings in time and resources due to these administrative procedures help make the court system more accessible. Because they are cheaper and simpler, they have the potential to open up courthouse doors to a new class of plaintiffs. Those with minor injuries can probably use small claims courts. Those with large injuries can probably find a lawyer who will likely agree to take their case on a contingency fee basis. But what’s a mid-sized plaintiff to do? Many have viable, moderately-sized claims that are too small to justify the costs of a full trial. There is evidence that certain types of plaintiffs are undercompensated, and do not file suits that they are legally entitled to.281 Considering that nearly nine-tenths of all low- and moderate-income Americans with civil legal problems receive no legal help, summary jury trials could be an important piece of solving the access to justice crisis. Details of summary jury trials vary by jurisdiction, but there are a few general principles.282 Parties tend to have wide latitude to agree to the exact parameters of each of these.283 First, they are shorter. Full trials can last the better part of a week or more; summary jury trials are typically limited to a single day, or even a single hour. Second, rather than having every witness attend and testify, attorneys may read depositions into the record for any reason or provide summaries of what the witnesses would say. Third, the number of jurors is typically six, although it may be a low as four. It is common for ten or twelve prospective jurors, taken from the regular jury duty pool, to be subjected to voir dire, with each side given enough peremptory challenges to whittle them down to six. Fourth, the rules of evidence and procedure are relaxed. More evidence will be stipulated to, as will medical reports. Challenges to authenticity and foundation may also be waived. Other objections are permitted, but not encouraged. And fifth, appellate rights are severely curtailed.284 The history of summary jury trials is short compared to many other forms of ADR, which have roots that go back for centuries.285 The first summary jury trial

281. Steven Croley, Summary Jury Trials in Charleston County, South Carolina, 41 LOY. L.A. L. REV. 1585, 1605–06 (2008); Testimony of Steven Croley before the New York Court of Appeals, Permanent Commission on Access to Justice (Sept. 18, 2017). 282. See generally JUDGE THOMAS H. BATEMAN III, THE SUMMARY JURY TRIAL: AN INTRODUCTION (2010), http://www.nadn.org/articles/BatemanThomas-TheSummaryJuryTrial -AnIntroduction(June2010).pdf; see also Steven Croley, Summary Jury Trials in Charleston County, South Carolina, 41 LOY. L.A. L. REV. 1585, 1588 (2008). 283. See, e.g., MICH. SUP. CT., ST. CT. ADMIN. OFF., MICHIGAN JUDGES GUIDE TO ADR PRACTICE AND PROCEDURE 40 (2015). 284. See, e.g., MICH. SUP. CT., ADMIN. ORDER NO. 2015–1 (Mar. 25, 2015). 285. Thomas B. Metzloff, Reconfiguring the Summary Jury Trial, 41 DUKE L. REV. 806, 809 (1991). MONEA 1/21/2019 4:20 PM

2017/18 THE ADMINISTRATIVE POWER 247 was held on March 5, 1980 before Judge Thomas D. Lambros,286 the progenitor of the concept and one of its greatest boosters.287 When they were first conceived, summary jury trials were meant to spur settlements, rather than to replace full trials. Uncertainty as to how a jury would perceive a case was seen as a major impediment to settlement. Verdicts were advisory, and no witnesses were presented.288 In that sense, it also served as a dry run of how arguments would land, and if there were any, how witnesses would perform.289 Today, a more common summary jury system is voluntary and binding.290 The goal is to replace a full trial by agreement of the parties, rather than to prompt a settlement. The method is generally seen as best for relatively straightforward cases where the main question is liability or damages.291 Juries can answer intractable questions like what makes a “reasonable person.” For example, simple negligence actions are good candidates for these summary jury trials.292 Automobile crash cases are another common type of case.293 The damage range in the cases tends to range from the low thousands to the several tens of thousands—possibly even up to the low hundreds of thousands.294 A summary jury trial can also result in considerable savings. It can be as cheap as $2,000, compared to $12,000 to $18,000 for a regular trial.295 Interviews with attorneys corroborate these findings.296 Savings are achieved through

286. DANIEL JACOUBOVITCH & CARL M. MOORE, FED. JUD. CTR., SUMMARY JURY TRIALS IN THE NORTHERN DISTRICT OF OHIO vii (1982), https://www.fjc.gov/sites/default /files/2012/SumJury.pdf 287. Richard A. Posner, The Summary Jury Trial and Other Methods of Alternative Dispute Resolution: Some Cautionary Observations, 53 UNIV. CHI. L. REV. 366, 368 (1986). 288. See, e.g., Judge Thomas D. Lambros & Thomas H. Shunk, The Summary Jury Trial, 29 CLEV. ST. L. REV. 43, 43 (1980). 289. KEITH R. MCMURDY & KEITH J. ROSENBLATT, METROPOLITAN CORP. COUNS., SUMMARY JURY TRIAL: AN ALTERNATIVE TO THE TRADITIONAL ALTERNATIVE DISPUTE RESOLUTION PROCESS 16 (2005). 290. See, e.g., MICH. SUP. CT., ADMIN ORDER NO. 2015–1 (Mar. 25, 2015). 291. See Judge Thomas D. Lambros, The Summary Jury Trial and Other Alternative Methods of Dispute Resolution, 103 F.R.D. 461, 469 (1984). 292. Interview with Steven Galbreath, Attorney, (Nov. 15, 2017). 293. NAT’L CTR. ST. CTS., SHORT, SUMMARY & EXPEDITED THE EVOLUTION OF CIVIL JURY TRIALS 9 (2012), http://www.ncsc.org/~/media/files/pdf/information%20and%20re sources/civil%20cover%20sheets/shortsummaryexpedited-online%20rev.ashx [hereinafter NAT’L CTR. ST. CTS]. 294. Croley, supra note 281, at 1610. 295. DONNA J. CRAIG, ST. BAR MICH., ALTERNATIVE DISPUTE RESOLUTION COMPENDIUM, DEMONSTRATING COST-EFFECTIVE AND EFFICIENT RESOLUTION OF CONFLICTS 9 (2011) (based on the N.Y. Supreme Court’s Eight Judicial District). 296. Metzloff, supra note 285, at 835. MONEA 1/21/2019 4:20 PM

248 GONZAGA LAW REVIEW Vol. 53:2 reductions in case preparation time and trial length, reduction in witness testimony,297 reduction in demand for expert witnesses,298 and in some cases, lack of need to pay for stenographers (if appellate rights have been waived).299 There may be savings to the larger system additionally. Assuming that the average juror is paid about $50 a day for their service,300 a single day shaved off a trial could therefore save hundreds of dollars for the judiciary on juror fees alone. Even if twice as many jury trials were held each year as a result of summary jury trials, there would likely be enough standby jurors to fill all of them without needing to pay additional jurors. This is because five times as many jurors show up to court as actually serve,301 and they get paid whether they end up serving for the day or not.302If a summary jury trial is able to resolve a case in a day, it saves the system thousands of dollars from what a fully trial would cost.303 Savings are not only welcome by the parties; they also make the cost of litigation lower, enabling more people to utilize the court system. Apart from the savings, there are plenty of other benefits of summary jury trials.304 What research we have about perceptions of summary jury trials is positive. An early, albeit limited, survey of participating attorneys in the 1980s found widespread satisfaction. They reported more rapid resolution of cases, and that the summary jury trials helped prompt settlements and saved time for themselves and clients.305 Strong majorities for both plaintiff and defense attorneys stated

297. Id. at 835. 298. See NAT’L CTR. ST. CTS., supra note 293, at 3. 299. Croley, supra note 281, at 1598. 300. Kerri Anne Renzulli, How Being a Juror Is Worse Than Working at McDonald’s, TIME (Feb. 19, 2015), http://time.com/money/3714834/juror-pay-boston-bombing-aurora/. I use the numbers in this article as an approximation. Naturally, in some jurisdictions, it will be higher or lower. 301. Mona Chalabi, What Are The Chances Of Serving On A Jury?, FIVETHIRTY EIGHT (June 5, 2015), https://fivethirtyeight.com/features/what-are-the-chances-of-serving- on-a-jury/. 302. Lambros, supra note 291, at 473. 303. STATE BAR OF MICHIGAN ALTERNATIVE DISPUTE RESOLUTION SECTION, ALTERNATIVE DISPUTE RESOLUTION COMPENDIUM: DEMONSTRATING COST-EFFECTIVE AND EFFICIENT RESOLUTION OF CONFLICTS 9 (May 2011), https://courts.michigan.gov/Admin istration/SCAO/OfficesPrograms/ODR/odr-cdrp-admin-site/ReportsStatsOtherDocs/7-ADR_ Cost_Study_2011.pdf . 304. For the lawyers involved, the simplicity of summary jury trials may give younger attorneys more opportunities to actually try cases. Interview with Andrew Miller, Attorney (Nov. 14, 2017). Judges attest that they can help lighten dockets. McKay v. Ashland Oil, Inc., 120 F.R.D. 43, 50 (E.D. Ky. 1988). And the mere act of going to trial may be therapeutic for parties. Lambros, supra note 291, at 468. 305. See JACOUBOVITCH & MOORE, supra note 286, at 7–13. MONEA 1/21/2019 4:20 PM

2017/18 THE ADMINISTRATIVE POWER 249 that they would use it again.306 When Charleston, South Carolina implemented summary jury trials, it was universally praised. Everyone from the court staff to the defense bar approved.307 Parties tend to like it more when it is voluntary rather than mandatory.308 Other research suggests jurors are happy with it, too.309 This positivity is due to the above-stated benefits, as well as a few other benefits such as greater certainty for trial dates, which helps lawyers in scheduling.310 Summary jury trials are also relatively unbiased. A statewide survey in California found summary jury trials favored plaintiffs around fifty percent of the time.311 For comparison, data from arbitration skews heavily towards defendants, roughly 80-20 percent.312 Although the idea had its inception in federal court, state courts are leading the way today. Supreme courts in Nevada,313 South Carolina,314 North Carolina,315 and Michigan316 have all passed rules in furtherance of summary jury trials. Given that many jurisdictions mandate some form of ADR use,317 it is common sense for courts to give parties the option to use this one. Judicial leadership, after all, has been identified as one of the key components of success for the idea.318

306. Id. at 12. 307. Croley, supra note 281, at 1598. 308. Metzloff, supra note 285, at 823. 309. NAT’L CTR. ST. CTS., supra note 293, at 14. 310. Id. at 13. 311. JUD. COUNS. CAL., TRIAL COURTS: REPORT ON EXPEDITED JURY TRIALS 4 (2015), http://www.courts.ca.gov/documents/jc-20150219-info4.pdf. 312. Alexander JS Colvin, An Empirical Study of Employment Arbitration: Case Outcomes and Processes, 8(1) J. EMPIRICAL STUDIES 5, 7 (2011). 313. NAT’L CTR. ST. CTS., supra note 293, at 42. 314. Id. at 15. 315. Metzloff, supra note 285, at 825. 316. MICH. SUP. CT., ADMIN ORDER NO. 2015–1 (Mar. 25, 2015). 317. See e..g., Alternative Dispute Resolution Now an Established Practice in Federal Courts, ADMIN. OFF. U.S. CTS. (June 25, 2012), http://www.uscourts.gov/news/2012/06 /25/alternative-dispute-resolution-now-established-practice-federal-courts. 318. NAT’L CTR. ST. CTS., A RETURN TO TRIALS: IMPLEMENTING EFFECTIVE, SHORT, SUMMARY, AND EXPEDITED CIVIL ACTION PROGRAMS 12 (2012), http://iaals.du.edu/sites/ default/files/documents/publications/a_return_to_trials_implementing_effective_short_sum mary_and_expedited_civil_action_programs.pdf. MONEA 1/21/2019 4:20 PM

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D. Pro Bono Reforms to Increase the Number of Hours Lawyers Devote to Helping the Poor

The American Bar Association acknowledges the value of donated legal services. It therefore urges, but does not require, lawyers to devote at least fifty hours to pro bono legal representation per year in Rule 6.1 of its Model Rules of Professional Responsibility.319 It reads: “A lawyer should aspire to render at least fifty (50) hours of pro bono publico legal services per year.”320 In almost all jurisdictions, it remains nothing more than an aspirational goal. Those aspirational goals normally go unmet. In certain areas of Texas, voluntary pro bono programs put on by local bar chapters saw a meager participation among lawyers.321 What’s more, a great deal of resources were consumed in these types of programs simply trying to recruit lawyers to participate.322 Most lawyers have failed to meet even the aspirational goals set by local jurisdictions323 and past numbers suggest that hundreds of thousands of attorneys across the country do not participate in pro bono cases.324 More broadly, less than one percent of lawyers are professionally representing the public interest in the political system independent of business or government.325 Recently, New York state made the goal concrete. Under the leadership of then-Chief Judge Jonathan Lippman, the state high court adopted rules that requires 50 hours of pro bono service before a person can join the bar.326 Since 10,000 lawyers apply to take the New York State Bar each year, this one reform could generate half-a-million hours of legal assistance.327 Because New York is a magnet for out-of-state schools, the reform also has ripple effects. Harvard Law

319. Even this voluntary language was a struggle. The original draft of the rule mandated a set number of hours. Lisa Schwartz Tudzin, Pro Bono Work: Should It Be Mandatory or Voluntary, 12 J. LEGAL PROF. 103, 106 (1987). Due to loud protest from lawyers, it was repeatedly watered down, from specific mandatory hours, to a general call for mandatory service, to mere mandatory reporting of pro bono, all the way down to the current purely aspirational rule. Id. 320. Id. 321. See Ballard C. Shapleigh, From Odometers to Divorces: Access to Justice in the Sage Brush and Chaparral Days of the 20th Century Part I, EL PASO BAR J. 9 (Dec. 2009. / Jan. 2010) https://elpasobar.com/system/bar_journal/document/28/Dec2009.pdf. 322. See id. at 9. 323. See Rhode, Access to Justice, supra note 22, at 1809–10. 324. John R. deSteiguer, Mandatory Pro Bono: The Path to Equal Justice, 16 PEPP. L. REV. 355, 372 (1989). 325. Davis, supra note 33, at 19. 326. Anne Barnard, Top Judge Makes Free Legal Work Mandatory for Joining State Bar, N.Y. TIMES (May 1, 2012), http://www.nytimes.com/2012/05/02/nyregion/new-lawyers- in-new-york-to-be-required-to-do-some-work-free.html. 327. Id. MONEA 1/21/2019 4:20 PM

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School, for instance, raised its pro bono requirement in order to ensure its graduates could meet the New York rule.328 The reform is not without its critics. Some have noted that the rule only applies to law students and those seeking to take the bar.329 As a result, the only ones required to serve are those with the least experience and financial stability. But this critique can best be addressed by expanding, rather than contracting, the New York program. State courts could impose modest pro bono requirements upon all lawyers, not just entrants to the profession. Failure to meet these requirements could be punished by an increase in bar renewal dues that would be earmarked to support legal aid. In this way, lawyers would effectively be able to choose between devoting their time or treasure to legal aid. Lawyers who were truly unable or unwilling to provide representation to the poor would not be forced into it. No client would be burdened with an attorney who resented the appointment. It would also avoid protracted and ugly disciplinary proceedings. Expanding this program could have monumental ramifications for access to justice. There are currently over 1.3 million licensed attorneys in the U.S.330 If each of those attorneys had performed even twenty hours of pro bono service each year, that would equate to 26 million hours of legal services. Assuming a 40-hour workweek, that would be the equivalent of hiring 12,500 full-time attorneys to serve the needs of the poor. To put that in perspective, there are roughly 8,000 civil legal aid attorneys currently working in the U.S.331 Although the New York proposal is new, the idea of obligatory pro bono service is not. Since the time of Henry VII, the poor have been able to seek and obtain free legal representation.332 For well over a century, state courts have relied on their administrative power to regulate the practice of law to appoint attorneys for indigent litigants.333

328. See Pro Bono Graduation Requirement, HARV. L. SCH., http://hls.harvard.edu/ dept/clinical/pro-bono-graduation-requirement-2/ (last accessed Nov. 19, 2017). 329. Ben Trachtenberg, Rethinking Pro Bono, N.Y. TIMES (May 13, 2012), http://www. nytimes.com/2012/05/14/opinion/a-better-pro-bono-plan.html?_r=0. 330. How Many Attorneys Are in the USA?: Lawyers & Entire Populations of Every State in America (2016 Interactive Map), DENNIS POTTS L., http://www.denniswpottslaw.com /united-states-attorneys-map/. 331. DOCUMENTING THE JUSTICE GAP IN MICHIGAN, supra note 27, at 6. (7,931 based on a 2007 report). 332. Heckman v. Mackey, 32 F. 574 (Cir. Ct. S.D.N.Y. 1887). 333. Bruce Andrew Green, Court Appointment of Attorneys in Civil Cases: The Constitutionality of Uncompensated Legal Assistance, 81 COLUM. L. REV. 366, 367 (1981). MONEA 1/21/2019 4:20 PM

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In 1982, El Paso became one of the first areas in the nation to implement a court-ordered mandatory pro bono program.334 Although the program was not implemented statewide, the program required all active attorneys in the county to participate,335 which was ordered and mandated by ten El Paso district court judges.336 It operated by requiring every attorney to take two domestic relations cases. The program was wildly successful: by its first year of operation, thirty percent of the all pro bono cases in the state of Texas were from El Paso attorneys.337 This comes in spite of the fact that El Paso is roughly 3.5 percent of the population of Texas. El Paso may have been one of the first, but it was not the last. By 1989, at least eight federal district courts adopted local rules for the mandatory provision of free legal services to the poor.338 Many lawyers have resisted. Predictably, they sued. In El Paso, dissident bar members convinced the attorney general to issue an opinion declaring the program void.339 One Iowa lawyer preferred to fight a case all the way to the U.S. Supreme Court—representing himself, ironically—rather than handle a civil rights case for two indigent prisoners.340 In both instances, the pro bono programs were vulnerable to legal challenges due to how they were structured. But a program established by a state supreme court would likely withstand legal scrutiny. For state high courts have the power to regulate the bar and set its terms of admission and disbarment.341 The U.S. Supreme Court acknowledged the legitimacy of mandatory appointments to represent indigent criminal defendants.342 In a case concerning the power of the New Hampshire Supreme Court, it also recognized that a member of the bar “could be required to represent indigents and perhaps to participate in formal legal-aid work.”343

334. See Lisa Schwartz Tudzin, Pro Bono Work: Should it be Mandatory or Voluntary?, 12 J. LEGAL. PROF. 103, 107 (1987). 335. Shapleigh, supra note 321, at 10 (“El Paso’s project remains the only such pro bono program in the state”); deSteiguer, supra note 324, at 362. 336. Id. 337. Id. 338. See, e.g., U.S. Dist. Ct. N. Dist. Ill. Local R. 83.35; U.S. Dist. Ct. E. & W. Dist. Ark. Local R. 83.7. 339. See Shapleigh, supra note 321, at 10. 340. Linda Greenhouse, The Law: Can Lawyers Be Forced to Represent the Poor?, N.Y. TIMES (Mar. 3, 1989), http://www.nytimes.com/1989/03/03/us/the-law-can-lawyers-be- forced-to-represent-the-poor.html. 341. See, e.g., IND. CONST. art. VII, § 4; N.D. CONST. art VI, § 3.; KY. CONST. § 116; MONT. CONST. art. VII, § 2(3). 342. Barnard v. Thorstenn, 489 U.S. 546, 557 (1989). 343. Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 287 (1985). MONEA 1/21/2019 4:20 PM

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A common critique of mandatory pro bono service is that it is unpopular. One observer put it bluntly: “Lawyers do not like to be told what to do.”344 Others complain that they lack the time to invest in pro bono, or fear that it will impact career development.345 These challenges are surmountable. Examples throughout the legal system demonstrate how. We have compulsory jury service for lawyers and non-lawyers alike. Juries are of indubitable importance and many people begrudge the civic obligation, yet they are still trusted to perform it. And upon reflection, it is not uncommon for jurors to enjoy the experience.346 Legal service providers are confident attorneys performing pro bono work will have the same revelation.347 Some criticisms of mandatory pro bono have been legitimate. The lawyer who fought the case all the way to the U.S. Supreme Court noted he would have been happy to help clients within his area of expertise; he just did not want to take the particular case he was assigned. There is nothing stopping courts from creating rules with flexible requirements for attorneys who do not feel comfortable going into court or working in a particular practice area, so long as it actually helping those in need. This could mean allowing attorneys to assist a person with taxes or help a small business through a regulatory problem as opposed to representing someone through a divorce or eviction suit. Even helping people fill out legal forms in a courthouse, providing lectures on how to navigate the court process, or actively participating in bar committees or civic groups dedicated to legal reform would be a tremendous help. Roughly five mornings per year would satisfy a 20-hour annual requirement. Perhaps a lawyer could even contribute financially in lieu of committing hours of service. Mandatory continuing legal education is perhaps the closest analogy that is already widely adopted. Nearly every state requires lawyers to attend seminars on ethics or legal practice areas.348 Minimum requirements tend to range from

344. Anne Barnard, Top Judge Makes Free Legal Work Mandatory for Joining State Bar, N.Y. TIMES (May 1, 2012), http://www.nytimes.com/2012/05/02/nyregion/new-lawyers- in-new-york-to-be-required-to-do-some-work-free.html. 345. DEL. ACCESS JUST. COMM’N, REPORT OF THE SUBCOMMITTEE ON PROMOTING GREATER PRIVATE SECTOR REPRESENTATION OF UNDERSERVED LITIGANTS 18 (2017) https://courts.delaware.gov/forms/download.aspx?id=98738 346. See, e.g., Juror Experiences, ADMIN. OFF. U.S. CTS., http://www.uscourts.gov/ services-forms/jury-service/learn-about-jury-service/juror-experiences (last accessed Oct. 23, 2017). 347. See deSteiguer, supra note 324, at 371 n.124 (citation omitted) (using the example of representing someone who lives in substandard housing). 348. Mandatory CLE, AM. BAR ASS’N., https://www.americanbar.org/cle/mandatory _cle.html (last accessed Oct. 23, 2017). Michigan, Maryland, Massachusetts, South Dakota, and the District of Columbia do not have requirements. Id. MONEA 1/21/2019 4:20 PM

254 GONZAGA LAW REVIEW Vol. 53:2 ten to fifteen hours per year.349 This comes in spite the fact that many lawyers resent these requirements,350 and there is no evidence showing that continuing legal education does any good.351 Some courses are even primarily about self- promotion rather than helping clients. In contrast, there is evidence in various contexts that lawyers can make a difference helping low-income clients.352 It is strange to require lawyers to attend classes but not serve the public. Given the dearth of evidence supporting continuing legal education, courts could even replace it with a pro bono requirement or make pro bono an alternative method to fulfill annual continuing legal education requirements. In many states, after all, supreme courts mandate the continuing legal education.353 In all likelihood, time spent helping real people would be more educational than a CLE lecture. For these reasons, courts should follow Judge Lippman’s example in devising rules that have the potential to vastly expand access to legal services.

E. Funding Mechanisms to Finance Access to Justice Initiatives

While much could be done from many lawyers giving a small amount of time, a smaller number of lawyers giving a large amount of time is an essential piece of the solution. A full time public interest lawyer can stick with a client over the course of a time-consuming case. They can develop an expertise that only comes through experience in representing the legal interests of the poor. And they can help make public interest lawyering a way of life, not just a line of work. This could be done by increasing funding for legal service organizations, which would enable the organizations to hire more public interest attorneys. Courts could also incentivize more lawyers to go into legal services. The Pennsylvania Supreme Court recently piloted a program to try to counteract this

349. See id. 350. See, e.g., Scott Greenfield, The “Legal” In Continuing Legal Education, SIMPLE JUST.: A CRIM. DEF. BLOG (Sept. 24, 2015), https://blog.simplejustice.us/2015/09/24/the-legal- in-continuing-legal-education/. 351. Rocio T. Aliaga, Framing the Debate on Mandatory Continuing Legal Education (MCLE): The District of Columbia Bar’s Consideration of MCLE, 8 GEO. J. LEGAL ETHICS 1145, 1156 (1995); Lisa A. Grigg, The Mandatory Continuing Legal Education (MCLE) Debate: Is it Improving Lawyer Competence or Just Busy Work?, 12 B.Y.U. J. PUB. L. 417, 425 (1998). 352. Desmond, Tipping the Scales, supra note 75; Stokes, supra note 77. Cf. Oralander Brand-Williams, Legal Help for needy in demand in Metro Detroit, DETROIT NEWS (Oct. 9, 2017), http://www.detroitnews.com/story/news/local/detroit-city/2017/10/09/legal-aid-needy /106457036/. 353. Grigg, supra note 351, at 425. MONEA 1/21/2019 4:20 PM

2017/18 THE ADMINISTRATIVE POWER 255 phenomenon. Its Loan Repayment Assistance Program (LRAP) offers loan forgiveness for attorneys employed by a legal aid organization that offers civil assistance to indigent clients.354 Each year a lawyer meets the income and employment eligibility criteria, they may seek up to $3,500 in loan forgiveness each year. If the average legal aid starting salary is $43,000 a year, this is roughly a 7.5 percent raise. The program had a quick impact. As one official remarked, “Loan recipients are telling us this loan assistance is giving them the ability to stay in the career they love, doing the work they find so rewarding for the Pennsylvanians who need it so much.”355 The program is not funded by taxpayers. So where does the money come from? This section examines the multitude of options that courts have for raising revenue. Courts around the country have devised a number of creative methods to obtain funding. These funding sources could be used to either fund legal aid providers directly, finance a public interest debt forgiveness program, or promote access to justice in some other way.

1. Pro Hac Vice Fees

The Pennsylvania Supreme Court, for example, uses pro hac vice (“this time only”) fees to fund its debt forgiveness program. Pro hac vice fees are fees that out-of-state lawyers must pay to practice in local courts. Such fees are a progressive funding source: those who obtain out-of-state counsel are typically well funded.356 Before the program started, the fees were $100, but the Court increased them to $200 and then $375 to ensure adequate funding for the program.357 Even with the increases, it is still below what many jurisdictions charge.358 In the first round of payments, nearly $250,000 was awarded to seventy-five legal aid attorneys, which amounts to a majority of the debt

354. Press Release, Pa. Bar Found., Statewide Student Loan Repayment Assistance Program Provides Nearly $250,000 of Debt Relief to Public Interest Attorneys (Jan. 7, 2011), http://www.pabarfoundation.org/wp-content/uploads/2015/05/PBFAwardsNearly 250000.pdf [hereinafter PA BAR FOUNDATION]. 355. Id. 356. See, e.g., DEL. COMM’N, supra note 42, at 22 (describing the fees in Delaware). 357. Pennsylvania Bar Foundation–Pa IOLTA Loan Repayment Assistance Program, PA. BAR FOUNDATION, http://www.pabarfoundation.org/what-we-do/pa-iolta-loan-repayment- assistance-program/ (last accessed Dec. 10, 2017). 358. See generally AM. BAR ASSOC., COMPARISON OF ABA MODEL RULE FOR PRO HAC VICE ADMISSION WITH STATE VERSIONS AND AMENDMENTS SINCE AUGUST 2002 (2017), https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/pro hac_admin_comp.authcheckdam.pdf. MONEA 1/21/2019 4:20 PM

256 GONZAGA LAW REVIEW Vol. 53:2 payments these lawyers owed that year.359 As of 2015, it was anticipated that over $500,000 would be available for the program to distribute.360 Pennsylvania is not alone. Other state supreme courts have similar programs.361 In Delaware, an estimated $1.66 million was collected from these fees.362 Most states have pro hac vice fees, and state high courts govern these fees in most states.363 Yet only fourteen states use these fees to support legal aid.364 As an additional or alternative use for pro hac vice fees to aid the poor, the fee could be waived for pro bono cases and the admission cap could be lifted for pro bono cases. Many states currently do not waive the fees for pro bono cases and impose a ceiling on how many pro hac vice admissions a lawyer may seek each year.365

2. Interest on Lawyers’ Trust Accounts

IOLTA (Interest on Lawyers’ Trust Account) is a funding mechanism designed to take advantage of many small transactions made by lawyers to create a large impact. Lawyers are required to have a trust account where client funds are deposited for safekeeping.366 These funds could be a settlement or judgment payment that does not process until the checks clear, or funds for a retainer agreement paid by the client and drawn out by the lawyer over time. Because these sorts of funds are typically small and short-term, they do not generate significant interest payments above banking fees on the account.367 The IOLTA program works by pooling these funds from many lawyers into one account. Each lawyer only owns the amount they put in, but the collective sum can

359. PA. BAR FOUNDATION, supra note 354. 360. Press Release, Admin. Off. Pa. Cts. Supreme Court increases loan assistance to expand number of attorneys who serve the poor (May 21, 2015), http://www.pacourts.us/ assets/files/newsrelease-1/file-4488.pdf?cb=652a82. 361. AM. BAR ASSOC. PRO HAC VICE FEE, (May 19, 2016), https://www.americanbar. org/content/dam/aba/administrative/legal_aid_indigent_defendants/ATJReports/ls_atj_pro hacvice.authcheckdam.pdf [hereinafter PRO HAC VICE FEE]. 362. DEL. COMM’N, supra note 42, at 22 (fiscal year 2016). 363. PRO HAC VICE FEE, supra note 361. 364. Id. 365. Id. 366. See MODEL RULES OF PROF’L CONDUCT r. 1.15 (2002); Phillips v. Wash. Legal Found., 524 U.S. 156, 160 (1998). 367. David A. Lash, The Ingenious New Plan To Fund Public Interest Efforts, ABOVE THE LAW (Jan. 6, 2017), https://abovethelaw.com/2017/01/the-ingenious-new-plan-to-fund- public-interest-efforts/. MONEA 1/21/2019 4:20 PM

2017/18 THE ADMINISTRATIVE POWER 257 generate substantial interest payments. This money in turn could be used by every state to fund legal service providers.368 The first state to create an IOLTA program was Florida in 1981; Indiana was the last to do so.369 Today, all fifty states, Washington D.C., and the Virgin Islands have an IOLTA program.370 In the vast majority of states, the IOLTA program was established by the state supreme court.371 IOLTA programs come in three species. They can be voluntary (attorneys have a choice on whether to participate), opt-out (default participation, but attorneys may actively choose to remove themselves), and mandatory participation, also called universal.372 Forty-four jurisdictions have mandatory programs, six have opt-out programs, and two have voluntary programs.373 The U.S. Supreme Court has upheld the legality of mandatory IOLTA programs.374 Considerable sums can be raised through this method. In Delaware, only four years after the Supreme Court made participation in IOLTA mandatory, $650,000 was generated in 2014.375 California, for example, generated $20 million through the program when interest rates were high.376 Naturally, the amount of revenue fluctuates based on nationwide interest rates. IOLTA funding generated $380 million across the country in 2008 but fell to $124 million by 2010.377 This is in large measure due to the fact that prior to the recession, interest rates were 5.25 percent compared to 0.25 percent during the economy’s nadir.378 This is an example of a solution where most states are already doing the right thing. Still, there is modest room for improvement. As noted above, several states have yet to move to universal IOLTA programs. Considering there is no harm to lawyers or clients from using an IOLTA account, there is little reason for the hold-out states not to move to the majority approach.

368. Brown v. Legal Found. Wash., 538 U.S. 216, 220 (2003). 369. Id. at 221; IND. BAR FOUND., IOLTA FREQUENTLY ASKED QUESTIONS, available at https://inbf.org/IOLTA. 370. State IOLTA Programs, NAT’L ASSOC. IOLTA PROGRAMS, http://www.iolta.org/ info-for-attorneys/state-iolta-programs (last accessed Aug. 21, 2018). 371. Brown, 538 U.S. at 220. 372. IOLTA Frequently Asked Questions, supra note 371. 373. State IOLTA Programs, NAT’L ASSOC. IOLTA PROGRAMS, http://www.iolta.org/ info-for-attorneys/state-iolta-programs (last accessed Aug. 21, 2018). 374. Brown, 538 U.S. at 216. 375. DEL. COMM’N, supra note 43, at 9. 376. Lash, supra note 367. 377. Sloan, supra note 21. 378. Id. MONEA 1/21/2019 4:20 PM

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3. Cy Pres for Class Action Settlements

Cy pres is a doctrine that permits courts to use its equitable powers to achieve the “next best use” of funds where the originally intended purpose is impossible or impractical to fulfill. It comes from the French term cy pres comme possible meaning “as near as possible.” It was first developed in the context of charitable gifts. For example, if a civic organization was left money in a will but closed down after the will went into effect, the court would have the discretion to distribute the funds to a different organization with a similar mission, assuming the court determines that this decision is in line with the donor’s intent. The doctrine has since expanded to new applications, such as class actions. Resolution of a class action often involves the creation of a fund to satisfy claims. But modern class actions suits may be so large that plaintiff attorneys are not able to identity every individual victim with absolute certitude. Even if they can, there is no guarantee that every plaintiff will be engaged in the litigation and seek part of the settlement.379 This is particularly true if the individual damages owed to each plaintiff is minuscule. In some cases, the court may even order that disbursements not be made to class members because the amount of recovery is so small that it would be offset by the cost of notice and administration.380 Funds set aside for settlement may therefore go left unclaimed. Leftover monies of this sort are known as “residual funds.” Consider the Colorado Supreme Court’s program as an example. Under Rule 23(g) of the Colorado Rules of Civil Procedure, “residual funds” are defined as “funds that remain after the payment of all approved class member claims, expenses, litigation costs, attorneys’ fees, and other court-approved disbursements to implement the relief granted.”381 Any final order in a class action suit that results in compensation for plaintiffs must establish a process for the disbursement of residual funds.382 At least fifty percent of the residual funds must be directed to legal aid.383 The rule does not require that residual funds be produced, as the rule only applies if there happen to be leftover funds.

379. See Pa. INTEREST ON LAWS. TRUST ACCT. BD., EXPANDING ACCESS TO JUSTICE THROUGH CLASS ACTION RESIDUAL FUNDS: PENNSYLVANIA RULES OF CIVIL PROCEDURE 1701, 1714 AND 1716, at 3, https://www.paiolta.org/wp-content/uploads/2014/04/Class-Action- Residuals-Toolkit.pdf. 380. LISA WOOD & JAYN TYRRELL, NAT’L CONF. BAR FOUNDS., RESIDUAL CLASS ACTION FUNDS: SUPREME JUDICIAL COURT IDENTIFIES IOLTA AS APPROPRIATE BENEFICIARY, https://www.ncbf.org/docs/Residual%20Class%20Action%20Funds%20-%20Jayne%20 Tyrrell.pdf (last accessed Aug. 21, 2018). 381. COLO. R. CIV. P. 23(g)(2). 382. Id. 383. Id. MONEA 1/21/2019 4:20 PM

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Colorado is not alone. The state supreme courts of Connecticut, Hawaii, Indiana, Kentucky, Louisiana, Maine, Massachusetts, Montana, New Mexico, Pennsylvania, South Carolina, Washington, West Virginia, and Wisconsin have adopted rules to this effect.384 A few more states have also passed legislation to accomplish the same thing.385 Although the rule only applies to state court actions, it has also influenced federal courts within the jurisdiction.386 The funds derived from this method can be considerable. In 2005, a class action was filed on behalf of purchasers of Kia Sephia vehicles.387 After a verdict and payments to all class members who could be located, $4.1 million remained in residual funds.388 Thanks to the Pennsylvania Supreme Court, which adopted a cy pres rule for residual funds, these monies went to legal aid providers.389

* * * * *

This is not an exhaustive list of funding sources, but it focuses on the most equitable funding sources. Nineteen states raise these funds through bar dues.390 But this is a blunt policy instrument since all lawyers, regardless of income or career, would have the same obligation. It therefore falls equally upon a public defender and a Big Law partner, even though their salaries are drastically different. Other states have increased civil court filing fees.391 Once again, this falls equally on all litigants, regardless of the nature of their case or ability to pay. It could even potentially hurt the very litigants the funding was intended to help. If the goal is to make courts accessible, these sorts of revenue measures are imperfect. The above mention reforms would provide fairer solutions.

384. A.B.A. RESOURCE CTR. ACCESS JUST. INITIATIVES. LEGISLATION AND COURT RULES PROVIDING FOR LEGAL AID TO RECEIVE CLASS ACTION RESIDUALS, (August 2016), https://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants /ATJReports/ls_sclaid_atj_cypres.authcheckdam.pdf. 385. Id. 386. Pa. INTEREST ON LAWS. TRUST ACCT. BD., EXPANDING ACCESS TO JUSTICE THROUGH CLASS ACTION RESIDUAL FUNDS: PENNSYLVANIA RULES OF CIVIL PROCEDURE 1701, 1714 AND 1716, https://www.paiolta.org/wp-content/uploads/2014/04/Class-Action-Residu als-Toolkit.pdf. 387. Press Release, Admin. Off. Pa. Cts. Chief Justice: $4 million distribution will help fund civil legal services to low income Pennsylvanians (Sept. 6, 2013), http://www.pacourts.us /assets/files/newsrelease-1/file-3014.pdf?cb=d6afa1. 388. Id. 389. Id. 390. DEL. COMM’N, supra note 42, at 25. 391. See, e.g., General Assembly passes filing-fee surcharge increase, MD. LEGAL AID NEWSROOM (Apr. 13, 2010), https://newsroom1.wordpress.com/2010/04/13/general-assembly -passes-filing-fee-surcharge-increase/. MONEA 1/21/2019 4:20 PM

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IV. CONCLUSION

I have proposed that simplifying and improving pro se materials, increasing the opportunities for non-lawyers to assist, implementing summary jury trials, expanding pro bono programs, and fully utilizing funding mechanisms. The solutions offered here should be a beginning, not an end. States all around the country have put forth innovative ideas for addressing the access to justice crisis.392 As noted above, administrative power offers a number of advantages over traditional judicial powers from the prospective of reforming the legal system. Yet it is severely underappreciated at present. Law schools generally do not teach, or even mention, the administrative powers of courts. Journalists do not cover developments in the administrative rules of courts to the same extent they do rules articulated in opinions, and lawyers underutilize them. Legal reform groups invest resources in finding ideal plaintiffs to bring suits, draft amicus briefs in an attempt to influence courts, and launch public relations campaigns in support of their desired outcomes in the courts. No parallel, large scale effort exists to improve court rules. At least eight organizations have submitted amicus briefs in a recent case on the right to counsel,393 and countless other examples of amicus briefs can easily be found. The same skillset that goes into writing an amicus brief, or a submission for an agency’s notice and comment period, could easily be employed to submit thoughtful comments for administrative orders. Courts all across the country accept written comments when they deliberate on new rules. Even better, proposals could be submitted for new ideas. The lack of focus on improving court rules misses out on untapped potential. In Colorado, the state supreme court recently held a public hearing on reforming

392. For example, the Tennessee Supreme Court has recently come out with a report on its own efforts to expand indigent representation. TENN. SUP. CT., LIBERTY & JUSTICE FOR ALL: PROVIDING RIGHT TO COUNSEL SERVICES IN TENNESSEE, INDIGENT REPRESENTATION TASK FORCE (2017), http://www.tncourts.gov/sites/default/files/docs/irtfreportfinal.pdf. 393. United States v. Bryant, SCOTUSBLOG, http://www.scotusblog.com/case-files/ cases/united-states-v-bryant/ (last accessed Dec. 9, 2017) (showing at least eight organizations that submitted amicus brief in a recent case that implicated the right to counsel); Search ACLU “amicus,” AM. CIV. LIBERTIES UNION, https://www.aclu.org/search/amicus (last accessed Dec. 9, 2017) (showing thousands results for “amicus” in an internal search of the ACLU’s website. Many of the links show that amicus briefs were filed by the organization.); Search Results “amicus,” PUB. CITIZEN, https://www.citizen.org/search/node/amicus (last accessed Dec. 9, 2017) (showing hundreds results for “amicus” in an internal search of Public Citizen’s website. Many of the links show that amicus briefs were filed by the organization.); Search Results “amicus,” BECKET FUND, https://www.becketlaw.org/?s=amicus (last accessed Dec. 9, 2017) (showing hundreds results for a search of “amicus” in an internal search of the Becket Fund’s website. Many of the links show that amicus briefs were filed by the organization.). MONEA 1/21/2019 4:20 PM

2017/18 THE ADMINISTRATIVE POWER 261 its foreclosure process. The current process rubberstamps evictions to the detriment of unrepresented litigants. Attorneys for the foreclosing banks can institute proceedings with spotty records of their ownership and without proof; homeowners have to formally request proof to rebut charges.394 Given that 97 percent of Colorado homeowners were self-represented in foreclosure proceedings,395 most are unlikely to properly respond. The matter only received a hearing in the Colorado Supreme Court at all because of a push by foreclosure reform advocates. Unfortunately, it did not get the attention we often see when Congress considers major legislation—or even a decently sized city council meeting. Only six people showed up to speak at the hearing.396 A few more people submitted written comments, mostly short letters from a single local law firm.397 But there was one written submission that stood out.398 While the other comments were short, this one was lengthy. While the others were largely unstructured, this one was assembled with the precision of a brief. And while the others were anecdotal in nature, this one was replete with legislative exhibits, data, and graphs. This one was from the banks. They were writing to oppose the reforms. At least one side of the fight for access to justice recognizes the importance of court rules. Some of the solutions outlined above would be relatively simple and uncontroversial to implement. Others would require the courts and lawyers to accept greater responsibility for the moral calamity of four-fifths of the poor being without access to legal assistance. No doubt this would be a burden. But for a nation that prides itself on equal justice under law, it is also an imperative. To borrow a phrase from Lyndon Johnson, we can afford to win this fight; we cannot afford to lose it.

394. David Migoya, State’s highest court holds public hearing over foreclosure rule changes, DENVER POST (Nov. 9, 2016), http://www.denverpost.com/2016/11/09/foreclosure- rule-120/ [hereinafter Public Hearing]. 395. David Migoya, Critics of Colorado’s foreclosure process say it is “fundamentally broken,” DENVER POST (Nov. 10, 2017), http://www.denverpost.com/2016/11/10/colorado- forclosure-process-broken/. 396. Public Hearing, supra note 394. 397. See generally Colorado Supreme Court Letter in Support of CRCP 120 Changes, https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Rule_Changes/ Proposed/2016%20Proposed%20Rule%20Changes/C_R_C_P_%20120%20-%20 Comments.pdf (last accessed Aug. 22, 2018). 398. See id. at 6.