Integrating the Access to Justice Movement

Last fall, advocates of social change came together at the A2J Summit at Fordham University School of Law and discussed how to galvanize a national access to justice movement—who would it include, and what would or should it attempt to achieve? One important preliminary question we tackled was how such a movement would define “justice,” and whether it would apply only to the civil justice system. Although the phrase “access to justice” is not exclusively civil in nature, more often than not it is taken to have that connotation. Lost in that interpretation is an opportunity to engage in a broader, more holistic conversation about what justice entails and what is required to gain access to it

Lawyering to the Lowest Common Denominator: Strickland\u27s Potential for Incorporating Underfunded Norms into Legal Doctrine

This symposium article explores how ineffective assistance of counsel doctrine, by its design, may incorporate and exacerbate the failings of an underfunded indigent defense system. Specifically, it highlights two aspects of the Strickland v. Washington standard for ineffective assistance of counsel: first, its inability to effectively address issues of underfunding through its two-prong test of deficient performance and prejudice; and, second, the way in which its eschewal of specific substantive guidelines for attorney performance in favor of reliance on prevailing professional norms may allow legal doctrine to be influenced by anemic, localized practice norms resulting from a lack of resources. As part of its analysis, this piece surveys Alabama court decisions invoking the prevailing professional norms terminology under Strickland to determine the sources on which Alabama courts rely to assess the reasonableness of attorney conduct. This research reveals that the Alabama courts are unlikely to afford weight to systemic funding deficiencies. Moreover, in defining professional norms, Alabama courts more likely to rely on previous instances of attorney conduct that have been deemed constitutionally sufficient or local practice norms than on external sources such as the ABA Guidelines. This trend is in line with the Supreme Court\u27s latest word on the issue, which emphasizes that the ABA Guidelines are not definitive and that courts should have more freedom in determining what constitutes reasonable attorney performance. Unfortunately, it also increases the likelihood that reasonableness, and thus the meaning of the Sixth Amendment\u27s guarantee to the effective assistance of counsel, will be defined by lowered practice standards resulting from systemic underfunding. In response to these findings, the article makes several recommendations as to how courts reviewing ineffective assistance of counsel claims might better respond to the potential impact of underfunding on the effectiveness of defense counsel. More generally, it suggests that courts should be mindful of how funding issues not only hinder the effective application of right to counsel doctrine, but also have the potential to degrade the law\u27s ability to protect against future ineffective assistance

Integrating the Access to Justice Movement

Last fall, advocates of social change came together at the A2J Summit at Fordham University School of Law and discussed how to galvanize a national access to justice movement—who would it include, and what would or should it attempt to achieve? One important preliminary question we tackled was how such a movement would define “justice,” and whether it would apply only to the civil justice system. Although the phrase “access to justice” is not exclusively civil in nature, more often than not it is taken to have that connotation. Lost in that interpretation is an opportunity to engage in a broader, more holistic conversation about what justice entails and what is required to gain access to it. Rather than remaining constrained by the typology of “criminal justice reform” or “access to (civil) justice” as two distinct bases for advocacy, we should focus on how individuals navigate a system (with both legal and non-legal components) that controls fundamental aspects of their lives—safety, shelter, family, and their liberty—whether at will or by force. In doing so, we can think more broadly about how individuals relate to the courts, how and when they receive information about the process, and how the way in which the government and the courts manage disputes impacts their lives

The Overreach of Limits on \u27Legal Advice\u27

Nonlawyers, including court personnel, are typically prohibited from providing legal advice. But definitions of “legal advice” are unnecessarily broad, creating confusion, disadvantaging self-represented litigants, and possibly raising due process concerns. This Essay argues for a narrower, more explicit definition of legal advice that advances, rather than undercuts, access to justice

Reflection: How Multiracial Lives Matter

Race plays an important organizing function in society, and one over which we have little control as individuals; this can be difficult to reconcile with the self-determination many multiracial individuals possess to control their own racial identity and how it is perceived by others. While some are dismissive of that premise, instead favoring a racial solidarity approach that minimizes the relevance of subcategories, I have contended that it is important to allow multiracial individuals to define their own identity. This is a sentiment that has been echoed by Justice Kennedy\u27s language in several recent opinions discussing racial identity (if not addressing multiracial identity directly). Yet this sentiment need not necessarily be at odds with broader identity-based movements. An individual can remain free to define her own identity under the terms that she desires while simultaneously recognizing that society often does not operate under those same terms and will more likely than not group her with individuals who assume a different racial identity

Undoing Race? Reconciling Multiracial Identity with Equal Protection

The number of multiracial individuals in America, many of whom define their racial identity in different ways, has grown dramatically in recent years and continues to increase. From this demographic shift a movement seeking unique racial status for multiracial individuals has emerged. The multiracial movement is distinguishable from other race-based movements in that it is primarily driven by identity rather than the quest for political, social, or economic equality. It is not clear how equal protection doctrine, which is concerned primarily with state-created racial classifications, will or should accommodate multiracialism. Nor is it clear how to best reconcile the recognition of individual identity with the continuing need to address group-based racial discrimination and subordination. In this Essay, I explore the potential impact of multiracialism — and multiracial identity in particular — on the future of racial classifications under equal protection doctrine.As a framework for its analysis, the Essay invokes two theories used to interpret the meaning of equal protection: antisubordination and anticlassification. Viewed solely through the lens of multiracial identity, the common normative understanding of these two approaches contorts. While antisubordination is often perceived as more beneficial for groups battling entrenched racial hierarchy, it may facilitate unique harms for multiracial individuals seeking to carve out a racial identity distinct from traditionally defined racial categories. And although anticlassification is often viewed by progressives as detrimental to the pursuit of true racial equality, it may lend more support to policies of racial self-identification and the recognition of a unique multiracial identity. A looming danger, therefore, is that anticlassification advocates wishing to dismantle frameworks rooted in traditional notions of race may exploit multiracialism to “undo” race and to undermine the use of racial classifications altogether.In response to that possibility, this Essay argues that although law and identity inevitably inform and impact one another, they also serve distinct purposes that should not be improperly conflated in the context of multiracialism. The construction of identity is ultimately a very personal endeavor, and although legal recognition may be one aspect of identity, in the area of race, the law has a more powerful function to play in preventing racial subordination. Where possible, the law should accommodate multiracial individuals who wish to define their own racial identity, but as long as it remains more aspirational than realistic, the individual’s perception of race should not be used or manipulated to undermine the use of racial classifications to counter societal race discrimination

Functionally Suspect: Reconceptualizing \u27Race\u27 as a Suspect Classification

In the context of equal protection doctrine, race has become untethered from the criteria underlying its demarcation as a classification warranting heightened scrutiny. As a result, it is no longer an effective vehicle for challenging the existing social and political order; instead, its primary purpose under current doctrine is to signal the presence of an impermissible basis for differential treatment. This Symposium Article suggests that, to more effectively serve its underlying normative goals, equal protection should prohibit not discrimination based on race per se, but government actions that implicate the concerns leading to race’s designation as a suspect classification. For example, a possible equal protection violation would no longer be triggered by the mere act of racial categorization, but by classifications targeting groups characterized by a history of past discrimination, political powerlessness, or a trait that has no bearing on its members’ ability to participate in or contribute to society. By directly integrating the values underlying suspect classification into equal protection analysis, this Article attempts to replace the categorical use of race with a substantive approach that is less vulnerable to arguments grounded in colorblindness or postracialism and more focused on deconstructing existing racial hierarchies

Unfamiliar Justice: Indigent Criminal Defendants\u27 Experiences With Civil Legal Needs

Our legal system - and much of the research conducted on that system - often separates people and issues into civil and criminal silos. However, those two worlds intersect and influence one another in important ways. The qualitative empirical study that forms the basis of this Article bridges the civil-criminal divide by exploring the life circumstances and events of public defender clients to determine how they experience and respond to civil legal problems. To date, studies addressing civil legal needs more generally have not focused on those individuals enmeshed with the criminal justice system, even though that group offers a rich source of valuable information. Researchers interested in civil aspects of criminal defense have focused primarily on the collateral consequences of conviction and the effectiveness of holistic defense programs. This exploratory study is the first of its kind - focused on civil legal problems unrelated to clients\u27 criminal cases, but instead those that arise int he course of their everyday lives. The study reveals that for public defender clients, civil justice is unfamiliar territory. While not strangers to the legal system or to lawyers, the clients we interviewed had very little experience with - or awareness of - available civil legal resources. In addition, they face a number of cognitive, procedural, and structural obstacles that make it difficult to navigate the legal system, including a lack of access to information and tools that enable them to use the civil legal system to address relevant needs. Yet, their life circumstances and the situations they encounter suggest many opportunities for possible civil legal intervention, whether through an attorney or other self-help mechanism. By providing a better understanding of how indigent criminal defendants understand, experience, and respond to civil legal problems, the barriers that prevent them from addressing those needs, and opportunities for intervention, this Article forces the access-to-justice conversation out of its siloed confines. In doing so, it aims to engage civil and criminal scholars, practitioners, and policymakers in a discussion of how to make the civil justice system more accessible to all