Column

Scarcity and Justice

Close your eyes. Imagine living in a small apartment, with your partner and your two children. You bought it because four years ago a salesman told you it was cheaper to buy than to rent. You feel cheated because there’s so much to the deal that you feel he did not tell you. But you signed so you’re stuck, the bank says. You have a job as a foreman in construction – a flex-contract on which you’ve worked for more than five years. It asks long hours, regular work in the weekend, and provides limited long-term security. You think that’s not in line with the law but you can’t really find out more and you need the money so you swallow it. Your partner works as a teacher with similarly limited job security and flexible hours; they keep promising a fixed contract but that hasn’t happened. It’s a huge challenge to make ends meet. Every month you hope nobody in the family gets sick – health insurance is limited and you are running behind with some bills. In a ‘what the heck’ moment you bought a 600 dollar iPad for the family 6 months ago, using the credit card your bank gave you when you took out the mortgage. You wanted it for the kids. Now you’re running behind on the credit card bills. A letter from the bank came in three weeks ago. You can’t bring yourself to open it. Now there’s a letter from some lawyer. You don’t open it either. Both you and your partner are desperately looking for more hours to work in. For the past 4 months you’ve used each evening and the weekend to scurry the web, send out emails, drop by people, but no luck. You are loosing sleep and the relationship with both your partner and children is suffering. Your days and nights consist of coping, struggling, worrying, being tired; it’s a trial of survival. How long can you continue?

The book, Scarcity – Why having too little means so much, by Sendhil Mullainathan (Harvard) and Edar Shafir (Princeton), is ‘already’ more than two years old. But I just read it and see significant implications of this research for justice procedures that, to my knowledge have not been observed before. It’s time we did and took action.

In short strides, the authors show that scarcity has a significant impact on the way people make choices. A key concept is bandwidth: “our computation capacity our ability to pay attention, to make good decisions, to stick to plans, and to resist temptations” (at 42). The argument is as follows: situations of scarcity – whether of money, time or otherwise – draw us into a tunnel and tax our bandwidth. That, in turn, reduces our cognitive capacity (“the psychological mechanisms that underlie our ability to solve problems, retain information, engage in logical reasoning, and so on”) and our executive control (“our ability to manage our cognitive activities, including planning, attention, initiating, and inhibiting actions, and controlling impulses”. Simply expressed in IQ points, situations of scarcity can take you from ‘average’ IQ to ‘borderline deficient’ (at 52). This conclusion has huge consequences for the way look at failure of people and bad choices they make. Take the fictitious example above. One way of looking at the ‘you’ is to say that he is less capable, leading to failure (bad choices) and thus financial problems, legal problems, health problems, and so forth. What Mullainathan and Shafir suggest is that there is also a lot of causality the other way: the scarcity mindset (poverty) causes the failure (at 155). People in scarcity situations tunnel and only deal with what’s in that tunnel. They loose cognitive power and executive control. Sometimes a lot of it. And because of that, they make bad choices that only make their situation worse: focussing on short term fixes like taking out an extra loan to solve today’s problem rather than saving small amounts for a longer term fix, not opening letters, not responding to calls, choosing for another drink instead of sports, etc..

Why is this relevant for law? It is important for access to justice. In the justice needs and satisfaction surveys we do at HiiL we include ‘stress and emotions’ as one of the factors with which to assess the quality of a procedure. In all countries, all justice procedures scores low on this factor. They clearly cause a lot of stress. We have some idea where that comes from: people with a justice problem start with stress and emotion because of the problem they face, and on top of that the justice processes are broadly seen as complex, hard to understand, uncertain, with a lack of empowerment and control (a feeling that you are at the mercy of a ‘system’ and ‘another person’). Scarcity shows us how significant a barrier complexity and uncertainty is for a person who is already in a scarcity-situation. Very many people involved in legal processes are: they will almost by definition be juggling money, attention, time and other things. Their bandwidth will have been significantly reduced. They will tunnelling to focus only on the bare and most immediate things.

This research shows that strategies for improving access to justice must focus much more on scarcity. How can justice procedures connected with housing, separation, employment, consumer protection, land use, violence against persons be designed so that they are more useable and accessible for the people in low bandwidth situations? The average legal process of today would most certainly not cut it. Complex procedures, difficult language, always having to work through others, expensive, uncertain in terms of what they will produce, and I could go on. We will never be able to make justice procedures a happy holiday experience. But we can certainly do a lot better now that we have this knowledge on the scarcity mind-set. This requires a radical shift away from complexity, towards empowerment, and towards bridge building rather than counter-claiming. Our Rechtwijzer online justice journey is such a design and it seems to be working. This book is yet another reason why we need a radical innovation revolution around justice processes.

Comments

  1. Thanks for this thought-provoking article.
    I agreed (if I understand your point) that
    the complexity of the legal system is outstripping the average
    persons’ ability to grasp.
    I suggest the answer is simple : mandatory no-fault liability insurance for lawyers.
    Once governments recognize the real cost of an incomprehensible
    legal system, they will be motivated to draft legislation that actually makes
    sense and can be acted upon in a proportionately cost-effectiver manner.
    BC did it for auto insurance – ICBC has been working for us for decades, and
    driving is not even a constitutional right.

    Where a genuinely complex legal problem arises, the legal profession then
    provides the added value to clients of certainty of reasonable expectations (from the retainer)

    That is not the case now, and everybody suffers because of it. It’s a vicious cycle of disengagement from the legal system and unchecked growth in it’s complexity.