Today I'm at a great conference on Access to Justice, hosted by Milan Markovic at Texas A&M Law School. I'll attempt a bit of live-blogging of the first panel.
Richard Greenstein kicks things off, applying W.B. Gallie's work on "essentially contested concepts" to examine judicial impartiality. He notes the widespread argument that judges should resist assisting pro se litigants because such assistance appears to sacrifice the appearance of impartiality. Richard believes that impartiality is itself a contested concept. Different dimensions of impartiality will push regulation of judicial impartiality in different directions. He cautioned against confusing judicial impartiality with judicial passivity.
Bruce Green used the Freddie Gray case as an entry point into a discussion about justice. What is the "justice" for which people have been marching in Baltimore? It was not just about body cameras for police. They seek a broader justice -- criminal, economic, racial. Sometimes lawyers have an unhelpfully narrow conception of access to justice, even in the criminal law context, focusing on the availability of defense lawyers. He discussed the case of Anthony Ray Hinton, noting how many different actors in the case bear some responsibility for the miscarriage of justice. Bruce asked, what is the role for prosecutors in promoting access to justice? He described areas of prudent responsibility beyond charging decisions, including ensuring the reliability of evidence, not utilizing evidence of questionable reliability, reexamining cases in a timely manner when the outcome later is called into doubt, and apologizing -- or at least taking the opportunity for public reflection -- when miscarriages of justice do occur.
Milan Markovic gave an overview of the justice gap and pointed out some conceptual questions that are often left unaddressed within the broader call for greater access. A focus on a civil Gideon may help with procedural justice, but is no guarantee of substantive justice. More lawyers for the unrepresented tends to occupy our attention, but that is not always the most effective response. We take it as an article of faith that there is huge demand for our services, but those in need will often say that they don't need a lawyer. Money going to legal representation takes money away from the underlying economic need. Milan also noted that virtually all research purporting to measure the effectiveness of legal representation is flawed. He urged us not to equate access to justice with access to legal representation. It is neither possible nor desirable to meet all unmet legal needs. Access to justice requires access to education about the law and availability/importance of legal services.