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What if Access to Justice Was Never Going to Lead to Poverty Alleviation?

I recently read that when legal aid was first developed in the United States in the 1960s, its primary goal was alleviation of poverty rather than access to counsel. However, over time, some stakeholders, mostly on the conservative side of the political spectrum, expressed concern that this was an inappropriate goal for public policy. This led people working in the legal aid sector to rebrand their initiatives as access to justice.[1] The primary difference between framing initiatives as “access to justice” as opposed to “alleviation of poverty” being that access to justice has a goal of improving the legal system in ways that help everyone regardless of income. Whereas poverty alleviation is concerned with the legal and other needs of people whose primary issues relate to lack of financial and other resources instead of having issues that are primarily legal in nature.

Approximately 60 years later, we are still discussing and working toward access to justice. However, we often don’t clarify the difference between these two concepts. This makes many conversations in this space less clear than they may otherwise be, as in my experience access to justice initiatives are often criticized for not being sufficient to address the needs of people with the fewest economic resources. This can lead to good ideas being discarded as they don’t fit these alternate priorities.

Simultaneously, insufficient attention is paid to the particular needs of those in poverty. These people often have overlapping issues which make resolving their issues complex, as they are frequently not principally legal in nature, and legal representation, as legal aid is traditionally delivered, will not resolve their problems.

The income cutoff eligibility criteria for legal aid in most jurisdictions is so low that it is difficult to imagine that eligible recipients’ problems are predominantly legal in nature. Instead, it seems probable that their issues are more closely related to survival, with access to food, medical care, housing, and other necessities being more immediate concerns. This is not to say that legal means cannot or should not be deployed to help ensure that these needs are met, or that they shouldn’t have accessible ways to resolve their legal issues. But this is not commonly encompassed in the category of access to justice. For example, someone may be being evicted, which is a legal problem, but it is closely linked with economic scarcity and housing stability. The best solution for someone in the situation may not be legal advice, but rather financial assistance or policy reform.

That said, there are many people who need better ways to address their legal problems, and access to justice is an excellent paradigm to facilitate a reduction in conflict in our communities and to help people navigate the ways that their lives intersect with the state better. There is room for considerable change in the way the legal system is run to allow for resolutions to many problems that existing systems do not handle well. From usable forms to online courts to different models of legal services regulation there are many opportunities to provide more accessible resolution to people with legal problems. Initiatives like British Columbia’s Civil Resolution Tribunal, open publishing on platforms like CanLII, and advocacy for self-represented litigants all have room in access to justice.

Many people, however, will still not be adequately served by systems that require access to computers and other technology, advanced reading ability, and other social capital. Instead, they need people who will help them get what they need.

This conflation of these two sets of priorities and confusion of how initiatives will be valued limits our ability to advocate for both. Access to justice initiatives are not a failure if they do not resolve the problems of the most needy in our society. That is often not their primary purpose. Instead, they can be directed at people who are not always well served in the current environment that emphasizes the hiring of lawyers as representatives to achieve problem resolution and full court processes to resolve disputes. There are many people who may not have the funds needed to hire full service legal representation or need that level of service, but who can read well, and have access to computers and other initiatives, that can help them resolve their issues.

Access to Justice is not a failure if it solves the problems for these people. That said, there are many who will continue to have need of poverty alleviation and legal means are excellent tools to make sure that happens. It is appropriate for systems and services to be in place to help them get what they need. More people with legal problems identify concerns about issues like worrying lawyers will make a problem worse than say that they can’t afford legal assistance.[2] Finding better ways for people to navigate their interactions with the state and each other is a big tent, and there is room for diverse approaches. Let’s make sure we understand what we are discussing and not try to make every initiative fit all goals to be seen as a success.

[1] Charn, Jeanne. “Celebrating the ‘Null’ Finding: Evidence-Based Strategies for Improving Access to Legal Services.” Yale L.J. 122 (2013): 2206. https://www.yalelawjournal.org/essay/celebrating-the-null-finding-evidence-based-strategies-for-improving-access-to-legal-services.
[2] Sutherland, Sarah A. “Uncovering Opportunities for Legal Services.” CBA/ABC The National, June 20, 2023. https://nationalmagazine.ca/en-ca/articles/law/access-to-justice/2023/uncovering-opportunities-for-legal-services.

Comments

  1. This is a very apt and important point. It reminds me one initiative consciously designed to both improve A2J and alleviate poverty — Ontario’s system of community legal clinics.

    They generally practice only in niches where the interests of all of a community’s low-income people are aligned. This includes residential tenancy law (for tenants only) and social benefits law (for benefits claimants). Ontario’s clinics avoid family law and criminal defence — despite the many low-income people who have such needs — because those cases are likely to pit one low-income person against another. (This is only possible to the extent that other forms of state-funded legal aid are made available for those needs).

    The idea is that the Clinic is to advance the collective interests of low-income people, through mobilization and law reform in addition to case work. This is explained in a classic article by Lenny Abramowicz “The Critical Characteristics of Community Legal Aid Clinics in Ontario” (https://aclco.org/wp-content/uploads/2019/01/Critical-Characteristics-of-CLCs-in-Ontario.pdf).

    That being said, the tension between these two sets of priorities, to which Sarah refers, definitely does play out in this context too. Clinics must choose, in allocating their small budgets, how much to spend on collective action versus just trying to keep up with the cases one at a time.

  2. Sarah A. Sutherland

    Thank you Noel. The clinics sound like a great example of programming targeting poverty alleviation.

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