Hugh McDonald, Victoria Law Foundation
The Public Understanding of Law Survey (PULS) conducted in Victoria by the Victoria Law Foundation is a representative, state-wide survey of 6,008 Victorians. It is a legal needs survey, and to go further, employed new legal capability measures.
Legal capability commonly refers to the knowledge, skills and attributes required for an individual to have effective opportunity to decide about whether and how to engage and use the justice system.
Legal capability matters to justiciable problem experience and resolution. PULS findings demonstrate that higher legal capability can be a virtuous cycle, where people are better able to deal with problems themselves, obtain the help they need, have needs met, and achieve satisfactory outcomes. However, the negative is also true, where lower legal capability results in people less able to deal with problems themselves, and less likely to get the help they need. They were consequently less likely to have their legal needs met or achieve outcomes they were happy with.
Applying measures of legal capability provides important new findings about justiciable problem experience and resolution, and nature of legal need. Those with higher levels of legal capability related skills, greater confidence and more positive attitudes to law and lawyers fare better with justiciable problems.
Understanding how legal need is patterned and affects legal problem-solving behaviour, unlocks opportunity to better match legal assistance to what people need and democratise justice. The PULS findings demonstrate the need to humanise the justice system by putting people at the centre by appropriately considering diversity of legal need and capability in design and provision of legal assistance and dispute resolution.
Weston Ley, Duke Law School
Emily Ryo, Duke Law School
Ian Peacock, University of Chicago Law School
Scholarship on U.S. immigration courts shows that legal representation is associated with favorable legal outcomes at various stages of the removal process. Yet, many immigrants in removal proceedings cannot afford to retain their own counsel or they face other barriers to obtaining legal representation. Even when immigrants in removal proceedings do succeed in retaining counsel, some of them may not be able to benefit as much as others from legal representation. For example, if there is a high degree of racial/ethnic homophily between immigrants and their lawyers (i.e., immigrants and their lawyers share the same racial/ethnic identity), and lawyers of color face systematic bias or discrimination in the immigration adjudication process, then immigrants of color with counsel may experience less favorable outcomes than their White counterparts with counsel, all else being equal.
In this study, we seek to address three key questions about the extent and nature of inequalities in legal representation for immigrants in removal proceedings in U.S. immigration courts. First, are there racial/ethnic disparities in rates of legal representation for immigrants in removal proceedings? Second, does the effect of legal representation on proceeding outcomes vary by immigrants’ race/ethnicity? Third, does the effect of legal representation on proceeding outcomes vary by lawyers’ race/ethnicity? To address these questions, we analyze U.S. immigration court records on removal proceedings that were completed between 1998 and 2023. The outcome of interest in our analysis is whether an immigrant respondent was detained or released from immigration detention during the pendency of their removal proceedings. By controlling for final decisions on the merits that immigration judges rendered in these proceedings, we account for unobservable differences across proceedings that are related to case merits. Some immigrant respondents have criminal history while others have only immigration-related charges, and we consider whether and to what extent legal representation might matter—and matter differently—across these two groups.
Our descriptive analyses show that across all racial/ethnic groups of immigrant respondents, those with criminal history are significantly less likely to be represented than those with only immigration-related charges. In addition, regardless of whether an immigrant respondent has a criminal history or not, certain immigrant groups of color are less likely to be represented compared to White immigrants. Finally, the extent to which legal representation is associated with more favorable outcomes varies by race/ethnicity of immigrant respondents, as well as race/ethnicity of their lawyers. These and related findings will contribute to our understanding of whether and to what extent legal representation matters for immigrants facing removal, and the role of lawyers in mitigating or exacerbating inequalities in immigration adjudication.
Emily Taylor Poppe, University of California, Irvine School of Law
Megan Doherty Bea, University of Wisconsin-Madison
The dramatic expansion of civil law in the twentieth century brought an increasing array of topics within the reach of rationalized state control. As a result, today we live in a “law-thick” world in which civil law routinely encroaches into everyday life (Hadfield 2010: 133). Access to justice scholarship has established that individuals’ ability to navigate this increasingly legalized world influences their capacity for effective self-determination and the vindication of fundamental rights; it also contributes to the reproduction of social inequality. Yet research on the unequal use of civil law is dominated by work focused on the reactive use of law in response to problems encountered in everyday life, leaving other facets of legal behavior relatively unexplored.
This project addresses this gap by exploring variation in proactive instrumental legal behavior—which we term legal actuation—as an underappreciated but significant dimension of unequal access to justice. Individuals routinely engage in this kind of behavior, from applying for public benefits to generating tax returns, signing leases to negotiating employment terms. However, not all people approach these situations in the same way. At one extreme are individuals who engage in extensive strategic legal behavior that enables them to optimize outcomes under law, often with the benefit of access to legal and other professional expertise. At the other extreme are individuals who are unaware of legal opportunities or unable to take advantage of the potential benefits available to
them under the law, resulting in less favorable outcomes.
Drawing on data from a national survey (N=1,955), we explore how this inequality manifests in the context of estate planning utilization. Moving beyond well-established patterns of socioeconomic variation in estate planning uptake, we explore three mechanisms through which economic advantage may operate to structure legal actuation: legal socialization, legal knowledge, and legal capability. We find that each of these mechanisms varies with wealth and is positively associated with the probability of having a will, a trust, a power of attorney for health or finance, or a comprehensive estate plan with all of these instruments, even after controlling for other socio-demographic characteristics. The results enrich our understanding of the social transmission of legal advantage, which has important implications for access to justice and the relationship between law and inequality.
Issy Quek, Junior solicitor, Adelaide, South Australia
Elaine Marinas, Junior solicitor, Adelaide, South Australia
Current approaches to achieving access to justice are failing the most vulnerable. In Australia, there is a particularly wide justice gap for vulnerable people facing issues in civil law. The patchwork approach to addressing the urgent legal needs of vulnerable people can further entrench and exacerbate existing injustice and vulnerability.
This presentation considers two proposals to address vulnerability cycles in legal assistance which integrate current approaches and knowledge. The first proposal draws together multiple theories of justice to better respond to legal needs arising in climate-driven disasters. The second addresses the need to address clients’ needs and legal problems holistically.
It is proposed that integrative approaches to vulnerability cycles will expose the overlapping capabilities of existing services, capitalise on established programs and approaches, implement holistic service delivery, and ultimately reveal opportunities to achieve better outcomes for vulnerable groups.
These proposals are drawn from the presenters’ dissertations, recently completed as part of the University of Adelaide’s Master of Laws (Access to Justice) program. They each demonstrate that integrating knowledge and capabilities can lead to better outcomes and disrupt cycles of vulnerability perpetuated by current approaches.
A theoretical approach: access to justice in disasters
The first proposal integrates overlapping theories related to justice in climate change driven disasters. This approach, combining climate justice, disaster justice and access to justice theories, bolsters the understanding that disaster impacts are unevenly distributed to people with pre-existing vulnerability, and challenges current conceptualisations of what justice is and how justice may be achieved in disaster contexts. For example, while disaster-specific legal services become more relevant across Australia in response to the continuing needs of disaster-prone communities, the increasing scale and complexity of disaster challenges require solutions which recognise and aim to achieve multiple forms of justice.
A practical approach: joined-up services
Joined-up services refer to coordinated efforts by multiple actors across relevant services to achieve a shared goal by providing holistic support. Joined-up services address barriers to justice which are commonly faced by vulnerable people by providing multiple entry points to service provision, improve time- and cost-effectiveness, and result in better, more enduring outcomes. For example, this research demonstrates that there is a strong empirical basis for joined-up services in the domestic and family violence (DFV) sector. Their use is commonly based on the understanding that DFV issues exist at intersections of a victim-survivor’s life involving relationships, family, community and self, requiring holistic responses to meet their legal, social, emotional and economic needs.