Introduction
“Access to justice” has become a part of the script of modern good governance. The OECD, in a report titled “Towards Inclusive Growth – Access to Justice,” maintains that the “inability to resolve legal problems diminishes access to economic opportunity, reinforces the poverty trap, and undermines human potential and inclusive growth.” The World Justice Project (2019) holds that “an estimated 5 billion people have unmet justice needs globally, including people who cannot obtain justice for everyday problems, people who are excluded from the opportunity the law provides, and people who live in extreme conditions of injustice.” The United Nations Sustainable Development Goals of 2015 even include a provision on access to justice (Target 16.3). Countless reform efforts have sought to increase access to justice and strengthen judicial institutions. The World Bank alone has funded hundreds of projects focused on judicial reform and access to justice since the early 1990s.
Access to justice is a fast-growing academic field, one that is currently tackling tough questions about concepts, measurement, and outcomes (Albiston and Sandefur Reference Albiston and Sandefur2013; Lillo Lobos Reference Lillo Lobos2022; Sandefur and Denne Reference Sandefur and Denne2022). Some understand access to justice broadly as “access to just solutions” (Burnett and Sandefur Reference Burnett and Sandefur2022), a somewhat slippery concept that is highly individualized and context-dependent. Others view it more narrowly as “access to courts,” examining the availability of lawyers and court processes (Rhode Reference Rhode2008). Scholars have sought to focus on what access to justice means for potential litigants (Farrow Reference Farrow2014) as well as judicial systems as a whole (Grossman and Sarat Reference Sarat, Cappelletti and Garth1981). While the academic field has concentrated on Anglo-American jurisdictions, state- and civil society-led programs to expand access to justice are prevalent around the world.
The costs of inaccessible justice seem to be obvious. Problems are not resolved, at least not through formal channels. These problems, or “legal needs,” may compound, making life ever more expensive and difficult (Genn Reference Genn1999; Pleasence et al. Reference Pleasence, Balmer, Buck, O’Grady and Genn2004; c.f. OECD 2019). Citizens may turn to unsavory, suboptimal, or antisocial solutions (Hoffman Reference Hoffman2012; Robinson and Robinson Reference Robinson and Robinson2018). The legitimacy of the courts may suffer, especially if citizens believe that the courts only serve the interests of the wealthy or powerful (Tyler Reference Tyler1990). Social hierarchies and inequality may be reinforced, and feelings of alienation and despondency (Hertogh Reference Hertogh2018) may set in.
The conventional wisdom derived from the “access to courts” camp suggests that barriers to access to justice ought to be low and that there is a legal needs crisis just about everywhere in the world: The World Justice Project’s investigation of 101 countries found that nearly half of those surveyed experienced a legal problem in the previous two years (2019). As Sandefur (Reference Sandefur2019: 49–50) explains, “the chasm between the vast number of people facing civil justice problems and the small number of people receiving lawyers’ help is presented as a crisis of ‘unmet legal needs.’” The underlying assumption is that “any problem with legal implications requires the involvement of a legally trained professional for a just, fair, or successful resolution.” In other words, this understanding is premised on the notion that the law can – and should – be leveraged in the pursuit of social change, that law is not a “hollow hope” (Rosenberg Reference Rosenberg1991) or unduly biased toward “the haves” (Galanter Reference Galanter1974).
Yet, Sandefur notes, it is not obvious that every justice problem ought to be understood exclusively or even primarily as a legal need. Access to justice in this original framework seems to be about access to courts and legal services, rather than the provision of just solutions to people’s everyday needs. In light of the judicialization of politics and the increasingly acknowledged interconnection of law, politics, and policy (Hirschl Reference Hirschl and Robert Goodin2011), what courts are asked to do at times diverges dramatically from what they are actually equipped to do or provide (Shanahan et al. Reference Shanahan, Steinberg, Mark and Carpenter2022). The funneling of problems into the legal sphere may not result in “just solutions” or resolved disputes, as these solutions may require interventions beyond the purview of the courts.
Furthermore, reforms – perhaps especially legal reforms – often result in unintended consequences (Grabosky Reference Grabosky1995; Merton Reference Merton1936; Seron Reference Seron2016). These unintended consequences may render the initial reform efforts completely counterproductive or go against the wider aims of reformers. For example, Rodolfo Lopez Moreno (Reference Lopez Moreno2025: 106) shows that, in the 2021-2022 Chilean Constitution Convention, “including environmental measures in a constitutional replacement process tie[d] them to less popular provisions” and had the unintended impact of “jeopardizing the entire process, delaying state action on climate change, and weakening activists’ standing.” Likewise, John Gillespie (Reference Gillespie2011), in his examination of land grievances in Vietnam between 1997 and 2010, finds that reforms designed to promote “rule formalism” and rights-based land laws actually resulted in fewer resolutions to land disputes. The consequences of legal reforms may not be fully predictable ex ante, and they may not be fully in line with the preferences of those implementing the reforms. This may also be true of attempts to reduce barriers to access to justice.
This article engages in a theory-building exercise, asking an intentionally provocative set of questions: Is there such a thing as too much access to justice? What happens when access to state judicial institutions is expanded? Who takes advantage of that access? Who is left behind? In order to probe these questions, I first explore debates about the “right” amount of access to justice and the “right” amount of litigiousness, before introducing a discussion of intended and unintended consequences in the context of legal reform and describing the relationship between access to justice and legal claim-making. I then identify four concerns related to the possibility of too much access to justice, in the process offering brief empirical illustrations of each concern drawn from access to justice experiments in Canada, China, Colombia, India, Russia, South Africa, and the United States. These four concerns include: (1) increasing strain on the legal system, (2) raising but failing to live up to expectations about the possibilities claim-making, (3) reinforcing existing inequalities, and (4) offering limited and perhaps inadequate solutions. I frame these concerns as an unintended consequence of increased access to justice, a choice that I justify below. The article closes with implications for policymakers and questions for future research.
The “right” amounts of access to justice and litigiousness
What is the “right” amount of access to justice or legal claim-making? Few would argue that access to justice – whether conceptualized as access to courts or access to just solutions – should be restricted. As noted at the outset of this article, states and non-state actors have poured money and other resources into projects meant to expand access to justice. Even for those who hold that not every problem requires a legal solution (e.g., Sandefur Reference Sandefur2019), the conclusion is not that access to courts should be limited but that alternative solutions should be bolstered. Put it somewhat glibly, the answer to the question about the right amount of access to justice always seems to be “More!”
The answer to the same question about litigiousness, however, is often “Less!,” as observers lament “hyperlexis” (Manning Reference Manning1976; c.f. Galanter Reference Galanter1983), a “litigation explosion” (Olson Reference Olson1992; c.f. Haltom and McCann Reference Haltom and McCann2004), and “lawsuit terrorism” (Prager Reference Prager2001; cf. Wolff Reference Wolff2014). William Haltom and Michael McCann (Reference Haltom and McCann2004, Reference Haltom and McCann2021) show that these conclusions about litigiousness, particularly in the United States context, are often drawn from imprecise metaphors, cherry-picked statistics, as well as misinformation or even disinformation put forward by media outlets and political pundits. Even so, claims about too much litigation persist.
Popular debates and media myths about litigiousness imply that there is a correct amount of legal claim-making. Essentially, the suggestion is that there is an identifiable appropriate amount and kind of legal claim-making – the right kinds of claims by the right kinds of people who experienced the right kinds of harms should be made in the right quantity, and claims that do not fill that bill are inappropriate. The wrong kind of people who suffer the wrong kind of harms congest the legal system and result in either delays or unjust payouts.
Cultural assumptions further color these debates. Typically, the United States and Japan are positioned falling on opposite ends of the litigiousness spectrum. Citizens of the United States tend to be described as indulgent and self-interested in their litigiousness (cf., Abel Reference Abel1987), whereas Japanese citizens are described as conflict adverse and “exceptionally nonlitigious” (cf., Haley Reference Haley1978). Yet, empirically, neither of these descriptions holds – would-be claimants in the United States routinely “lump” their grievances and fail to make what would be well-founded claims (Galanter Reference Galanter1974; Sandefur Reference Sandefur, Pascoe, Buck and Balmer2007) and Japanese citizens and movements have leveraged the law to pursue both individualistic and collective goals (Arrington Reference Arrington2014, Reference Arrington2016; Feldman Reference Feldman2000).
Furthermore, in his study of “the myth of the litigious society,” David Engel (Reference Engel2016) demonstrates that observers regularly make assumptions about how people ought to make decisions – that is, rationally, in a stepwise process – that do not necessary reflect how people experience injuries or other litigable offenses. The decision not to file a legal claim, then, may be due to a variety of factors largely unrelated to access to justice, understood as access to the courts, and potentially only tenuously related to beliefs about access to justice solutions. Despite this academic corrective, popular discussions of litigiousness continue to rely on these kinds of assumptions (Haltom and McCann Reference Haltom and McCann2021).
This discussion about whether or not scholars, political pundits, media outlets, or the general public accurately assess the level of litigiousness partially sidesteps the question about the “right” amount of litigiousness. Leon Wolff (Reference Wolff2014: 277) offers one answer: the right amount is one that achieves “a state of balance,” because “too much [litigation] undermines social cohesion and economic activity; too little threatens social justice and economic stability.” Balance is easier to identify in theory than in practice, however, especially because experiences with the formal legal system can reproduce equality and have differential effects based on race, class, gender, and other categories of difference (Sandefur Reference Sandefur2008). Perhaps the most useful way to think about litigiousness is Marc Galanter’s suggestion that we think about legal disputing “as an adaptive (but not necessarily optimal) response to a set of changing conditions” (1983: 69). From the perspective of states and potential claimants alike, litigation then must be assessed in terms of the extent to which is it a suitable strategy to achieve particular goals or not (Silverstein Reference Silverstein2009). The same is true for administrative tasks overseen by courts (c.f. Pfander Reference Pfander2021).
Access to justice and legal claim-making
What do we know about access to justice and legal needs? First, relatively few problems are expressed as legal needs or legal claims. Despite the prevalence of laments of litigiousness in everyday discourse, these laments are myths. From formally democratic, individualistic Western countries to more autocratic, collective-oriented ones like China, potential legal disputes are rarely recognized as disputes, much less legal disputes. Austin Sarat, along with co-authors Richard Miller (Reference Miller and Sarat1981) and Richard Abel and William Felstiner (Reference Felstiner, Abel and Sarat1980) developed the idea of the dispute pyramid to represent this phenomenon. Subsequent scholars have suggested the value of shifting the diagram to a tree (Albiston et al. Reference Albiston, Edelman and Milligan2014) or a pagoda (Michelson Reference Michelson2007), but the point remains the same regardless of the form or orientation of the graphic: many potential legal claims are not recognized as such. Furthermore, even those problems recognized as potential grievances are most often “lumped” and set aside, rather than acted on – leading some socio-legal scholars to point to “a crisis of underclaiming, rather than overclaiming” (Abel Reference Abel1987: 447).
While beyond the scope of this article, another element of unmet legal needs merits at least some discussion: that of what Frances Zemans (Reference Zemans1983: 699) calls “mandatory” legal mobilization. Mandatory legal mobilization involves “issues which by their very nature require not only the invoking of legal norms, but entry into the formal legal system” and not at the choice of parties to the dispute. Falling within this category are civil law issues like divorce and adoption, as well as bankruptcy and probate. Though Zemans does not lay out the case that criminal law questions may also be considered “mandatory,” the same logic applies – defendants are forced to enter the formal legal system. Those subject to mandatory legal mobilization, whether criminal or civil in nature, also face unmet legal needs. In the United States, the consensus is that these unmet legal needs have reached the level of a crisis (e.g., Barton and Bibas Reference Barton and Bibas2017; Engstrom and Engstrom Reference Engstrom and Engstrom2024; Sandefur Reference Sandefur2019). According to Sandefur (Reference Sandefur2019: 51), this crisis involves two components: restriction (“only some people, and only some kinds of justice problems, receive lawful resolution”) and inequality (“some groups – wealthy people and white people, for example – are consistently more likely to get access than other groups, like poor people and racial minorities”). Perhaps particularly troubling in the civil realm is the prevalence of default judgments and self-represented litigants (Engstrom and Engstrom Reference Engstrom and Engstrom2024), while the criminal realm has been characterized by questions about the adequacy of court-appointed legal representation and the whether or not plea bargaining serves the interests of justice (Barton and Bibas Reference Barton and Bibas2017). Questions about how these challenges play out and how they might be mitigated merit further investigation. I return now to the question of proactive, rather than reactive, access to justice or, in other words, to the question of legal claim-making.
What stands in the way of legal claim-making? Broadly speaking, scholars of legal mobilization and access to justice have identified two sets of factors that stand in the way of legal claim-making: individual-level characteristics and institutional qualities. Individual-level characteristics include legal consciousness (Taylor Reference Taylor2018; J. Gallagher Reference Gallagher2022), legal knowledge whether gained through formal education or past experience (M. Gallagher Reference Gallagher2017; Gallagher and Yang Reference Gallagher and Yang2017) and personal resources, including both money and time (Galanter Reference Galanter1974; Miller and Sarat Reference Miller and Sarat1981). “Legal capability” has become something of a catch-all term that encompasses these individual-level factors. As Hugh McDonald and Zhigang Wei (Reference McDonald and Wei2016: 2) define it, “Legal capability refers to the personal characteristics or competencies (knowledge, skills, psychological resources) needed to effectively resolve legal problems.”
Relevant institutional qualities can be summed up as legal opportunity, or “rules on stock, standing, and costs” (Vanhala Reference Vanhala2018: 112). Rules on costs are particularly important. Whether following the “American rule” or a winner-takes-all system, attorneys’ fees and court costs can be prohibitive (Garth and Cappelletti Reference Garth and Cappelletti1978; Behrens et al. Reference Behrens, Fowler and Kim2008-2009; Hodges et al. Reference Hodges, Vogenauer and Tulibacka2010). In the case of small claims, the cost of litigation can easily exceed the amount under dispute, or render the resolution negligible. The amount of time it takes for legal claims to be resolved (and whether there are direct access or other time-reducing mechanisms on the table) can also undermine the utility of legal claim-making. The assumption is that as legal opportunity expands or as there is an increase in the supply of legal resources, demand will also increase (cf., Garth Reference Garth2013).
Individual-level characteristics, of course, come to pass in particular contexts or social systems. Physical geography, including proximity to lawyers and courthouses, as well as political geography, namely the reach of the state, impact the feasibility of legal claim-making. Socioeconomic class status will also shape both how individuals think about the possibility of claim-making and their ability to take the necessary steps to formally file legal claims. There are stark class differences in the use of lawyers, and there are differences in awareness of problem as potentially legal matters and willingness to take (legal) action (Carlin et al. Reference Carlin, Messinger and Howard1966). Other scholars have shown that this point of difference endures across contexts, including, for example, the United States (e.g., Abrego Reference Abrego2011) and South Africa (e.g., Tait and Taylor Reference Kira and Taylor2022). Further, as Leon Mayhew (Reference Mayhew1975) highlights, legal systems are not always designed with the intention of resolving the problems of poor folks, and some legal systems instead effectively extract from the relatively less-well-off (Pager et al. Reference Pager, Goldstein, Ho and Western2022; Shaer Reference Shaer2019).
Society-wide understandings of “deservingness” also influence both individuals’ perceptions of themselves and the law, as well as institutional design, effectively cutting some folks off from the legal system (Brinks Reference Brinks2019; Merry Reference Merry2003; Michener Reference Michener2018; Taylor Reference Taylor2023; Yngvesson Reference Yngvesson1988). Shame and embarrassment are powerful emotions that can lead individuals away from claim-making (Sandefur Reference Sandefur, Pascoe, Buck and Balmer2007). Thus, formal and informal barriers may compound rendering justice less accessible to already marginalized individuals.
And how might institutional changes address these barriers to legal claim-making, thus facilitating “access to justice”? Bryan Garth and Mauro Cappelletti (1978) outline the early history of access to justice programs and three different reform programs. Initially legal aid resulted from voluntary action on the part of private members of the bar. The major issues with this model are straightforward: the incentives to provide uncompensated labor are minimal, especially in a competitive profession driven by billable hours, and access to legal services is determined by availability rather than being guaranteed. What Garth and Cappelletti call the “first wave of access to justice reform” focused on legal aid and expanding access to the poor through the state compensation of private lawyers (in Austria, Britain, France, the Netherlands, and West Germany), the creation of “neighborhood law offices” tasked with serving poor communities (in the United States) or a combination of these models (in Sweden and Canada). The second major reform effort took on the representation of collective and diffuse interests. Traditionally, legal disputes have been thought of – whether implicitly or explicitly – as pertaining only to the parties present in the dispute, not to wider swaths of people. Changes to rules on standing allowed individuals to more easily make legal claims on behalf of groups, whether as class action suits, public interest actions, or other kinds of collective claims. The creation of new government regulatory agencies and private attorneys general also fit in this second reform category. Progress made through these reforms has not been enough to fully ensure access to justice for all, however.
The subsequent 40 years have seen various experiments in access to justice reforms in countries around the world.Footnote 1 For example, in Austria, Germany, Spain, Switzerland, and Belgium, as well as a range of Central and Eastern European countries to differing degrees, reformers have promoted “direct access” provisions that allow claimants to approach apex courts without pursuing the typical (and typically time-consuming) path of having lower court hearings and appeals first (cf., Gentili Reference Gentili2011). Relatedly, countries throughout Latin America have introduced legal procedures such as the amparo, recurso de protección, mandado de segurança, and the acción de tutela that allow for relatively easy, quick, and cheap claim-making related to some subset of constitutional rights (Brewer-Carías Reference Brewer-Carías2009; Gentili Reference Gentili2011). There has also been a proliferation of quasi-judicial claim-making forums globally, including human rights commissions, public protectors, and ombudspersons’ offices that are meant to promote rights and offset inequities in resources and knowledge, such that rights claiming is not limited to the well-off (Galanter Reference Galanter1974). The growth of these commissions may be particularly prevalent in African (Peter Reference Peter, Anton and Diescho2009) and Southeast Asian countries (Setiawan Reference Setiawan2013). Still elsewhere, “lawyerless” legal services have taken off (Carpenter et al. Reference Carpenter, Shanahan, Steinberg and Mark2022; Kritzer Reference Kritzer1998; Sandefur and Denne Reference Sandefur and Denne2022; Shanahan et al. Reference Shanahan, Steinberg, Mark and Carpenter2023), as have various forms of alternative dispute resolution (Barrett and Barrett Reference Barrett and Barrett2004) and restorative justice practices (Braithwaite Reference Braithwaite2002). These reforms complement and build off of those outlined by Garth and Cappelletti (Reference Garth and Cappelletti1978).
Yet, as the World Justice Project’s (2019: 7) 101-country study found, significant barriers – especially (1) recognizing problems as legal in nature or legally claimable and (2) covering the cost of turning to the formal legal system – remain. Even in the context of the United States, most people with legal needs do not pursue legal solutions (Engel Reference Engel2016), and those who do often do so without the support of lawyers (Carpenter et al. Reference Carpenter, Shanahan, Steinberg and Mark2022; Rohde Reference Rhode2004). In light of these findings, we might wonder, why not fully ease barriers to access? This brings us to the questions for this article: Could there be a such thing as too much access to justice? Or, stated more precisely, what are the negative consequences that stem from the pursuit of access to justice expansions? I first turn to a broad discussion of intended and unintended consequences in the legal sphere before focusing in on these questions specific to access to justice.
Intended and unintended consequences
In a seminal article, Robert Merton (Reference Merton1936) theorized “the unanticipated consequences of purposive social action.” Purposive social action “involves motives and consequently a choice between various alternatives” and includes, among other things, policy reform efforts of all stripes (Merton Reference Merton1936: 895). Limitations of available knowledge and resources, human errors, what Merton (Reference Merton1936: 901) calls the “imperious immediacy of interest” (willful ignorance or the development of tunnel vision and failure to identify alternatives), values that inhibit the consideration of certain possibilities, and self-fulfilling or self-defeating prophecies can intervene between purposive action and expected consequences. In the context of law specifically, we must also consider the audience or target of legal reform. Ashley Rubin (Reference Rubin2012: 815–16) reminds us that individuals or organizations may preemptively apply the law more broadly than drafters envisions, comply with the law only symbolically, or disregard the law entirely. In any of these cases, consequences not intended by the drafters of the law may follow. Still, as Merton acknowledges, just because something is unintended or unexpected does mean it is always undesirable – though analysts seem to be more likely to point to negative or paradoxical unintended consequences.Footnote 2
Classic economic examples of unintended consequences include the introduction of rent control and minimum wage laws. While rent control laws are intended to keep the cost of apartments relatively affordable, in response some landlords have converted apartments into condos or refrained from following through on costly repairs. While minimum wage laws are meant to increase income for low-income workers, some employers have responded by moving to jurisdictions with fewer wage protections (cf. McCluskey Reference McCluskey2012). Socio-legal scholarship across contexts demonstrates the commonality of unintended consequences of law reform. These works span constitutional law (Lopez Moreno Reference Lopez Moreno2025); consumer protection law (Talesh Reference Talesh2009); criminal justice reform (Guetzkow and Schoon Reference Guetzkow and Schoon2015; Reiter Reference Reiter2016; Rubin Reference Rubin2012; Small Reference Small2015), employment law (Edelman, Uggen, and Erlanger Reference Edelman, Uggen and Erlanger1999), jury selection procedures (Clair and Winter Reference Clair and Winter2022), and property disputing and land law (Gillespie Reference Gillespie2011; Kuran Reference Kuran2001; Odenyo Reference Odenyo1973).
In many cases, it can be challenging to separate out truly unintended consequences from intended but unstated consequences and truly intended consequences from unintended but later rationalized consequences (Merton Reference Merton1936). In what follows, I refrain from assuming any purposes behind access to justice reforms beyond those explicitly stated (i.e., explicitly intended). Thus, I define unintended consequences of access to justice reforms as any other impact of access to justice reform beyond increased access to the courts. While this approach may read as naïve (surely some of the time policymakers claim one motivation but act on anotherFootnote 3), it allows for me to openly assess the full range of consequences that flow from access to justice reforms in theory rather than detailing case-specific motivations. To be clear, my goal is not to discount the importance of studying underlying power dynamics or the incentive structures behind particular expansions in access to justice, but to focus on a different question.
Too much access?
The rise of access to justice in its various forms has not occurred without questions or words of caution, though the systematic study of these concerns has been lacking, especially in comparative perspective. Many concerns, while plausible, have been raised without explicit evidence, and many have taken the form of predicted outcomes, rather than observed ones. The emergence of new experiments in access to justice offer opportunities to empirically explore these possibilities. My focus in this article is on access to justice reforms that facilitate legal claim-making, whether through litigation or the use of quasi-judicial or administrative procedures (Lehoucq and Taylor Reference Lehoucq and Taylor2020) and the consequences of such reforms.Footnote 4 And I examine (possible) direct and indirect harms to claimants, potential claimants, those working in the legal system, and the legal system itself.
In this section, I lay out four broad categories of unintended consequences of expanded access to justice, offering both a theoretical discussion of each category as well as brief empirical examples. These potential negative consequences of the over-reliance on courts or the overly expanded access to justice include: (1) increased strain on the legal system, (2) the raising of expectations about the possibilities of claim-making (3) the unequal ability to take advantage of access to justice provisions, and (4) the limits of legal solutions. The empirical examples, which are drawn from Canada, China, Colombia, India, Russia, South Africa, and the United States, are meant not to be comprehensive investigations, but instead to illustrate how each concern can play out in different contexts.
Increased strain on the legal system
The first challenge comes in the form of the work of distributing justice. The potential for increased access to justice causing strain on the legal system seems intuitive: more access allows for more claims.Footnote 5 If the reduction of barriers to access is not accompanied by additional resources (whether judges, clerks, and administrators or paper, printers, computers, and microphones), that increased access could easily overload the legal system (Sarat et al. Reference Sarat, Cappelletti and Garth1981). Theoretically, this concern might be mediated by hiring additional personnel to process and hear claims or the purchase and implementation of new pieces of technology, though that is much easier said than done. Increased access to courts can result in decreased capacity of courts (Horowitz Reference Horowitz1977; cf. Grossman and Sarat Reference Sarat, Cappelletti and Garth1981). This strain on legal institutions may be negative in itself (burdening those working in the legal system), but it may also have radiating effects. If overly strained legal systems deliver outcomes that are perceived to be of poor quality, especially if those outcomes are perceived to be procedurally unfair (Tyler Reference Tyler1990; Walters and Bolger Reference Walters and Colin Bolger2019), that institutional strain may result in lower levels of system legitimacy and may drive would-be claimants out of the formal legal system, leaving them with fewer avenues for redress.Footnote 6
Consider the example of the growth of the acción de tutela in Colombia. The acción de tutela is a legal mechanism that is free to file that allows Colombians to file claims alleging that their fundamental constitutional rights have been violated. All judges in the country must hear tutela claims, and they must investigate and respond to those claims within 10 days in the first instance. Colombians have filed more and more tutelas each year, moving from a few thousand per year in the early 1990s to well over 600,000 per year in the late 2010s. This influx of claim-making has also meant additional pressure on judges to quickly decide cases, working late hours to tackle both their “normal” work and the work of tutela cases (Taylor Reference Taylor2023). In an interview, one judge explained their typical day:
Once the [criminal] hearings are over, around 5 o’clock and many times after 5—sometimes until 8 at night we are in hearings—I have to go up to the office to look at tutela claims… Many of them involve matters related to fundamental rights… and these matters cannot wait (Taylor Reference Taylor2023: 115).
If not for the reduced barriers in access to justice through the introduction of the tutela procedure, this judge would have perhaps still worked extra hours, through the 8 o’clock hearings, but the burden of extra work would be lessened.
The impact of long days may be worrisome for judges themselves and these long days may also impact who is likely to become a judge (for better or worse). But what about the radiating effects mentioned above? Taylor (Reference Taylor2023: 173–4) cites law clerks working at the Colombian Constitutional Court who noticed that “many incoming tutelas seemed to include passages that had been copied and pasted from previous claims (with the wrong names and facts).” This gives reason to question the quality of at least some tutela decisions, but as of yet, there has been no public systematic study to examine how frequently these kinds of things happen. Furthermore, Colombians continue to evaluate the tutela positively (if not the broader legal system), and judges do not appear to be falling dramatically behind in resolving cases (Taylor Reference Taylor2023: chapter 8), so the harms of this increased use of the courts seem to be relatively minimal.Footnote 7 How long this will hold is an open empirical question.
Strain on the judiciary – whether real or perceived – is not limited to rights claiming in Colombia. Kathie Hendley’s (Reference Hendley2013b, Reference Hendley2017) investigation of “everyday law in Russia” demonstrates that arbitrazh Footnote 8 and general jurisdiction judges face significant workload challenges (even if those challenges are sometimes exaggerated) and that this workload serves to legitimate the courts. In contrast to the popular image of Russian law as inaccessible, Hendley (Reference Hendley2013b: 826) notes that “[t]he costs of using the courts have been kept low as part of a deliberate effort to maximize accessibility.” The results of that policy have been “a civil docket that is clogged and an overwhelmed judicial corps.”Footnote 9 Specifically, Hendley (Reference Hendley2013b: 805) finds that “[b]etween 1994 and 2002, the docket experienced a threefold expansion. From 2002 to 2011, it doubled again.” In contrast, the number of judges increased by 1.8% during that time. One judge told Hendley (Reference Hendley2013b: 811) that “[t]he post of judge does not allow for any free time or a personal life – the workload is insane.”
Some judicial officials, however, see this clogged docket as a positive, suggesting that it indicates that Russian citizens are eager and willing to turn to the courts, despite polls show report distrust in the courts (Hendley Reference Hendley2013b: 822). In other words, “court administrators” see the frequent use of the courts as “a way of proving the value of courts” and they “push judges to absorb ever-greater numbers of cases” (Hendley Reference Hendley2013b: 802). This increased workload, then, may have direct negative consequences for judges, but more indirectly positive ones for the legal system. Society writ large, at least as long as these judges can keep up with their workload, benefits from the ability to “resolve mundane cases according to the law” (Hendley Reference Hendley2013b: 827).Footnote 10 Just like in Colombia, Russian judges have found ways to deal with this workload and even to mitigate it at times, but also just in Colombia, concerns about how judicial backlogs impact the availability of timely justice for claimants remain.
These two cases demonstrate that continued legal claim-making may not be predicated on positive evaluations of the legal system as a whole – or even of the specific courts or legal mechanisms involved (see also Hendley Reference Hendley2013a). They also suggest that, at least over the short- or medium-term, judges may be able navigate high workloads and that, even if claimants receive decisions they don’t like or don’t agree with, they may not opt out. This may be especially true if claimants see few viable alternatives to continued engagement (Gallagher et al. Reference Gallagher, Kruks-Wisner and Taylor2024; Taylor Reference Taylor2018). None of this is to say that those evaluating access to justice reforms should view these two examples as unmitigated successes or that these outcomes are normatively something to celebrate. They do, however, give us some reason for skepticism about the worst-case scenario version of concerns that, ex ante, seem completely logical. Additional – ideally longitudinal and explicitly cross-national comparative – research is necessary to determine where exactly the tipping point is between a strained and an overloaded system or an imperfect and an illegitimate one.
Raised expectations about claim-making
Another challenge is the possibility that increased access to justice will raise expectations for how the justice system ought to function and who it ought to serve. That in itself may be a positive thing, generating trust or legitimacy for the courts (Gibson Reference Gibson1989), a sense of civic culture (Almond and Verba Reference Almond and Verba1963), and even compliance with judicial orders (Tyler Reference Tyler1990). If the courts fail to live up to what claimants and observers anticipate, an “expectations gap” may emerge (Kruks-Wisner Reference Kruks-Wisner2021).Footnote 11 By opening themselves to hear claims, the courts also open themselves up to criticism, especially as some see their problems being heard or even resolved through the courts, while others experience dismissal or outright rejection. As with the first challenge, perceptions of unfairness or inadequacy in specific claim-making processes might have downstream consequences for how citizens view the courts as a whole.
These perceptions of unfairness or inadequacy can prompt emotional responses, such as what Mary Gallagher (Reference Gallagher2006, Reference Gallagher2017; Gallagher and Yang Reference Gallagher2017) calls “informed disenchantment.” Gallagher demonstrates how citizens’ expectations of the Chinese legal system grew as they learned about newly legislated labor protections, like the 1995 Labor Law, and their ability to make labor rights claims through the courts. This knowledge – and the resulting expectations – expanded as direct result of government-led initiatives (M. Gallagher Reference Gallagher2017: chapter 3).
Yet, these raised expectations were not always realized. Gallagher highlights the experiences of many Chinese workers whose hopes in the law were dashed. Drawing on household surveys in 2005 and 2010, as well as in-depth interviews and case narratives, Gallagher found that “[f]or those that tackled their problem with the law, they [we]re almost uniformly disappointed and dejected” (2017: 150). For instance, an interviewee named Pei, who was injured while at work and ultimately fired as a result of that injury told her, “I no longer believe in labor law. The rule of law has nothing advantageous for the common person” (M. Gallagher Reference Gallagher2017: 143). Another interviewee, Qian, who had brought an unsuccessful legal challenge after not being paid and then being summarily let go, reported, “I’ve lost confidence in law, but this is not my personal tragedy, it’s the law’s tragedy. Law is our last choice, if that choice is also useless, then we really don’t have anywhere to go” (M. Gallagher Reference Gallagher2017: 143).Footnote 12
The long-term effects of these kinds of experiences are complex. Disputants become “more active, engaged, and discriminating” politically, but also “more critical in their evaluation of legal institutions” and “less enthusiastic” about engaging the law in the future (M. Gallagher Reference Gallagher2017: 148). These unmet expectations can leave individuals with the perception – rightly or wrongly – that they have fewer options when they face challenges in their lives.Footnote 13
High-profile cases can reveal disagreements about the power of the courts (or their appropriate role in society) and result in unmet expectations not just among parties to a particular dispute, but also society as whole. Take, for example, the South African case of Soobramoney v. Minister of Health (KwaZulu-Natal) (1997). In this case, Thiagraj Soobramoney – who faced renal failure, needed access to a dialysis machine, and could not afford private medical care – requested that the state provide him that access. Soobramoney could approach the courts with this claim because the constitutionally recognized right to health and the ability to make urgent applications in South Africa – in these ways, access to justice was expanded in scope and accelerated.
The underlying issue in this case was that public hospitals had a limited number of dialysis machines and they were being used according to official policy. Granting Soobramoney access would have meant bumping someone else. Soobramoney made a legal claim to his right to health in an attempt to override that policy, but the Constitutional Court rejected the claim. In concrete terms, this meant that the Court refused to direct a state-run medical facility to provide Soobramoney with dialysis treatments, considering the resource limitations faced by the state and the nature of Soobramoney’s illness. The Constitutional Court justices found this position reasonable in terms of balancing the rights of all South Africans as well as the appropriate role of the judiciary with respect to policymaking.
The decision was both highly public and highly contentious. In fact, one former clerk who worked at the Court at the time of the decision recalled, “You know, it was emotionally charged. Clerks got phone calls to say ‘you killed Soobramoney’… One of my good friends got repeated phone calls from somebody” (Taylor Reference Taylor2020). In that year, 3,429 people died of renal failure in South Africa (Statistics South Africa 2005: 52). The South African Constitutional Court was only blamed for one of those deaths. If the Court hadn’t heard this claim, people’s expectations would not have been raised and the Court wouldn’t have been blamed for this death. Blame may or may not be justified (and the attribution of blame depends in part on an underlying theory of the appropriate exercise of judicial power), but this example clearly illustrates the short-term dangers of raised and unmet expectations.
Unmet expectations present a harm to the legal system as a whole to the extent that theories about there being a positive relationship between perceptions of legitimacy and compliance are correct (Caldeira Reference Caldeira1986; Tyler Reference Tyler1990). The danger of unmet expectations may be particularly acute if those involved in the legal claim do not feel that they have been treated fairly or, in other words, if they feel that the principles of procedural justice were not respected (Tyler Reference Tyler1990; Walters and Bolger Reference Walters and Colin Bolger2019). On the other hand, belief that the proper procedures were followed can dampen the sting of an unfavorable outcome (e.g., Hendley Reference Hendley2016).
Raised but unmet expectations that follow access to justice experiments may also create harms for individuals. In the example of labor law in China, Qian and Pei were harmed in that they did not gain an adequate resolution to their problem, despite expending time, material resources, and their hope on the legal system. If these unmet expectations are demobilizing – if they dissuade people from making future legal claims – then they also present a harm to individuals in the future, not only in the present. That said, the experience of seeing someone else benefit from initiating a claim while you do not can generate outrage or discontent and ultimately claim-making, a process that Gabrielle Kruks-Wisner (Reference Kruks-Wisner2018a, Reference Kruks-Wisner2018b, Reference Kruks-Wisner2021) labels “comparative grievance” formation.Footnote 14 The factors that condition the impact of emotions on claim-making should be subject to additional empirical study.
Reinforced inequalities
The third challenge has to do with the idea that “a rising tide lifts all boats.” Unless access to justice interventions are specifically targeted, they will in theory make it easier for all to make legal claims. Yet, some are in greater need than others. How we ought to think about this challenge is up for debate. Some might argue that if everyone benefits equally, despite differential needs, the intervention is a failure – it did not meaningfully address the underlying inequality. Still others would argue that if the intervention benefits some of those in need, it should be lauded, even not everyone who is in need benefits. Here, the argument is that something is better than nothing.15
The problem might go further than this, however. As Omri Ben-Shahar (Reference Ben-Shahar2016: 1759) notes, “[i]t is so commonly assumed that access to justice benefits the weak that the premise has escaped any significant scrutiny.” However, it is possible that, “[r]ather than helping the weak, access to justice policies could be regressive, benefitting stronger consumers disproportionately, at times at the direct expense of the weak” (Ben-Shahar Reference Ben-Shahar2016: 1760). This may result in part from structural conditions. If, as J.M. FitzGerald (Reference FitzGerald1984: 639) writes, “law and the legal profession inevitably reflect existing social inequalities and can thus not be expected to remedy them.” Dan Brinks suggests this may be particularly true for marginalized groups, like indigenous or afro-descendent peoples in Latin America. He clarifies that “[f]or individuals who bear the burden of social discrimination and prejudice the problem is not simply a lack of access but inequality within the system itself” (Brinks Reference Brinks2019: 348). In short, state legal systems may mark these groups “at best as requiring special tutelage, and at worst as foreign and inferior,” essentially recognizing them as “second-class citizens” (Brinks Reference Brinks2019: 355).
Beyond these structural constraints and inequities, there are practical limits to the courts, especially in terms of how many claims or cases can be processed. When there are not formal limits on the number of claims accepted, long lines and wait times can dissuade would-be claimants. Furthermore, if the “haves” are systematically advantaged over the “have nots” in the legal process, as is usually thought to be the case (Galanter Reference Galanter1974), then the turn to courts may push resources from the poor to the wealthy, in a regressive process. Technological innovations meant to automate systems, increase efficiency, and reduce wait times have been shown to have adverse effects especially on the poor and marginalized (e.g., Eubanks Reference Eubanks2018), which suggests that there may be no easy solution to these structural and institutional limitations.
An instructive example of the potential for differential effects of access to justice expansions comes from Anthony Niblett and Albert Yoon investigation of a change in the rules regarding the jurisdiction of the Ontario Small Claims Court in January 2010. In that month, the claim size limit changed from $10,000 to $25,000, while the direct costs of filing a claim remained the same. Unlike in the case of the tutela described earlier, the expansion in the kinds of claims that could be brought before the courts did not result in an influx of claims. Surprisingly, Niblett and Yoon (Reference Niblett and Yoon2017: 6) found that in the years following this shift, the number of claims per year stayed roughly consistent. In the three years before the rule change, there were 306,787 claims compared to 317,670 in the three years after.
But these claims differed in one key aspect: the composition of claimants changed, with the percentage of claimants from poor neighborhoods decreasing. This is especially in the poorest decile of neighborhoods. As Niblett and Yoon (Reference Niblett and Yoon2017: 14) describe, “[t]he number of plaintiffs who come from the richest 10 percent of neighborhoods increased significantly (an increase of 10.6 percent), while plaintiffs from the poorest 10 percent of neighborhoods experienced a dramatic drop (a drop of 39.2 percent.).” Thus, claimants from wealthier neighborhoods effectively replaced poorer claimants, reflecting the concern raised by Ben-Shahar above.
Niblett and Yoon attribute these observed changes in the composition of claimants in part to changes in the indirect costs of claim-making, and in part to what are called “contrasting effects.” First, in terms of the cost of claim-making: the average length of time it took to resolve cases increased by 59 days. Those who are relatively better off may be more able to endure a longer legal process, and those with very small claims (who may be less well off in general) may be dissuaded from initiating a claim in the first place.Footnote 16 Second, in addition to increasing the indirect costs of claim-making, the change to the claim cap could have impacted potential claimants psychologically: “When the jurisdictional limit increased from $10,000 to $25,000, poorer litigants were more inclined to feel like small claims court was not for them” (Niblett and Yoon Reference Niblett and Yoon2017: 27). A claim of $3,000 might seem reasonable and worthwhile in contrast to a limit of $10,000, but not compared to a limit of $25,000 – in the latter case, that $3,000 claim might be understood as trivial.
To take another example, the introduction of alternative dispute resolutions programs that have low barriers to entry may have the effect of diverting certain kinds of cases out of the courts. Diversion is the intended consequence of these programs, but if the composition of claimants that engage in ADR is different from those who choose to pursue litigation, a two-tiered system emerges. Consider the Lok Adalat (or “people’s court”) system in India. The Lok Adalat system was envisioned a legal aid expansion that would bring legal recourse to everyone, not just the well-off (Whitson Reference Whitson1992). Tameem Zainulbhai (Reference Zainulbhai2016: 248) describes Lok Adalats as “informal courts of first impression interspersed throughout India, which provide alternative dispute resolution.” There are differences within the system, but typically three people, including a judge or retired judge staff the Lok Adalats. Proponents of the Lok Adalat system describe it as faster and more accessible than the formal court system.
The system is not without its flaws, however. Perhaps most notably for this exercise is that parties to the dispute face significant pressure to settle (Krishnan and Galanter Reference Krishnan and Galanter2004; Zainulbhai Reference Zainulbhai2016), coming to what is called a “compromise petition” (Kassebaum Reference Kassebaum1990). One study of Lok Adalat cases found that Lok Adalat settlements amounted to “a small fraction of the arguably inadequate average damages awarded to claimants who persevere to fight their cases through the courts” (Krishnan and Galanter Reference Krishnan and Galanter2004: 803). Specifically, these settlement awards amounted to about 30.5% of the size of those issued in similar types of cases that went to the courts.Footnote 17 And there is evidence that those who turn to the Lok Adalats rather than the formal legal system are more likely to be poor and/or living rural areas (Zainulbhai Reference Zainulbhai2016). Jayanth Krishnan and Marc Galanter (Reference Krishnan and Galanter2004: 809) argue that “[t]hose who are risk averse and unable to finance protracted litigation are the ones who have to give the discounts [by turning to Lok Adalats] in order to escape these costs..” That said, the experiment in expanding access to justice very well might give “the aggrieved claimant, whose case would otherwise sit in the regular courts for decades, at least some compensation now” (Krishnan and Galanter Reference Krishnan and Galanter2004: 829), and this tradeoff might be acceptable to some claimants. Still, the available resolutions are unequal (and potentially inadequate).
These examples show that equal access does not necessarily translate into equal benefits and that, at least some of the time, these unequal benefits may take on a regressive quality – amounting to a direct harm to claimants, even if the legal system as a whole is not negatively affected. In the example of Lok Adalat in India, poor claimants have access to a dispute resolution mechanism that is quick but results in lower compensation than wealthier claimants are afforded. This is not a necessary feature of the system, nor does it appear to be an intended one. The same goes for the example of the increased cap for small claims cases in Ontario, Canada. An unintended consequence of allowing more claims was that poorer claimants were crowded out by wealthier claimants and their ability to withstand longer legal proceedings and their ability to view their claims as appropriate for the forum.
The offer of inadequate solutions
A fourth challenge derives from the form and content of legal solutions. Legal solutions may not always lead to just outcomes, for the individuals involved in the dispute or for society writ large. Furthermore, depending on how problems are understood, legal solutions of any kind may not be readily available (Albiston et al. Reference Albiston, Edelman and Milligan2014). Those working from a critical perspective, in particular, have argued that the legal realm and the solutions it offers might not just fail to deliver just outcomes, but actually do more harm than good, propping up unjust power structures and normative orders (Silbey Reference Silbey2005). As J.M. FitzGerald (Reference FitzGerald1984: 639) summarizes, critical legal theorists raised the concern that “lawyers and legal personnel essentially take matters out of the hands of lay people, distance people from their real concerns and disputes, and so obviate any chance of people handling their own problems individually or en masse.” In this view, the process of turning to the formal legal system serves to “individualize and defuse grievances with collective roots, delegitimize conflict, advantage more powerful disputants, and fail to provide full redress” (Albiston et al. Reference Albiston, Edelman and Milligan2014: 113). Rights may be granted by judges (or they might not be), but needs are almost certainly not met and the substantial redistribution that would be required to “vindicate rights” (rather than simply grant them) will never be on the table (Sarat et al. Reference Sarat, Cappelletti and Garth1981: 1924). Others have challenged the notion that calling on the language of rights necessarily “narrow[s] collective aspirations to the limits of the law” or heads off broader organizing or mobilizing possibilities (Polletta Reference Polletta2000: 367; see also McCann Reference McCann1994), but the concern merits further empirical investigation.
To examine this concern, we might look to an issue area in the United States that historically has been defined as a “private matter” rather than one subject to state intervention, though there has been a shift in both law and perceptions more recently (Farris and Holman Reference Farris and Holman2015). This shift can be understood as an increase in access to justice – a new group of people can bring legal claims in the hope of resolving problems in their lives. Experiences filing domestic violence claims, however, have varied effects, empowering some and driving others out of legal process, in part based on social narratives of deservingness and victimhood perpetuated by judges, lawyers, and other courthouse professionals (Merry Reference Merry2003). Furthermore, the language and specific features of law may inhibit both the realization of certain identities and solutions desired by would-be claimants.
Sally Engle Merry (Reference Merry2003) documents how women who experienced domestic violence in Hilo, Hawaii had to choose between the identity of “rights bearer” and “victim of violence” on the one hand and “good wife” on the other. As Merry (Reference Merry2003: 345) notes, “[a] battered woman may be pressured by kin to feel she is a bad wife, while her partner may claim she is taking away his masculinity.” At the same time, those who approach the legal system with domestic violence cases find that police do not always investigate or arrest, prosecutors do not always move forward with cases, and judges are not always sympathetic. Merry (Reference Merry2003: 352–3) further describes how “women [must] confront the demand to testify against an offender in open court, unsure of the penalty that will follow, but certain of the anger he feels as a result of her testimony” and that means that the solution “offered to her by the law appears ambiguous and unclear.” To the extent that women define and redefine what they wanted out of a claim, initiating a case before dropping it, and then returning for a restraining order, they were labelled “difficult and ‘bad’ victim[s]” (Merry Reference Merry2003: 357).Footnote 18 Here, pursuing a legal claim following domestic violence – something that only became possible after years of local and international mobilization – requires taking on a particular (and often unwanted) identity and results in tensions in a variety of relationships as well as risk for further violence. That requirement in itself makes the legal solution inadequate. Legal solutions may, of course, be inadequate materially as well. This particular example clarifies how individual grants might be granted without the underlying needs being met.
Just because courts are accessible does not mean that judges will be receptive to claims. Some issues have not undergone this transformation such that they are understood as legal in nature, and in other instances, judges may seek to limit expansive social understandings of grievances and stymie legal claim-making. Consider, for example, the case of open government information (OGI) requests in China described by Jieun Kim, Rachel Stern, Benjamin Liebman, and Xiaohan Wu (Reference Kim, Stern, Liebman and Wu2022). Following a 2008 change in government transparency regulations, there was influx of claims, to the tune about 10 times as many claims in the five years after the change as there were in the five years before (Kim et al. Reference Kim, Stern, Liebman and Wu2022). For some, these open government information requests proved useful in gaining information to serve as evidence in other ongoing litigation or the ability to express frustration or even to try to embarrass government officials.
However, even in these positive (from the perspective of the claimants) cases, these victories were limited. As Kim et al. (Reference Kim, Stern, Liebman and Wu2022: 336) note, “[r]ank and file judges saw OGI lawsuits as a nuisance, particularly because the judicial remedy at hand – releasing government information – so rarely resolved the underlying dispute.” This was not just the perception of judges. Claimants like Yu Jianfeng, also came to see the OGI lawsuits as limited and inadequate. Yu sought not just monetary compensation but also – in her words – “justice,” following her daughter’s rape at a middle school. Kim et al. (Reference Kim, Stern, Liebman and Wu2022: 311) explain how “the narrow scope of OGI litigation transformed into a far more limited demand for an explanation of why the school mandated the transfer.” In the end, “Yu’s litigation successfully pressed the city education bureau to investigate the issue, though the only result was to tell Yu that that transfer had been recommended for the girl’s health and development” (Kim et al. Reference Kim, Stern, Liebman and Wu2022: 331). Still other claimants found their OGI lawsuits labeled “abusive” by judges or defined as involving the wrong kind of claim and ultimately being dismissed. Losing a case or having one dismissed is not always a matter of justice being denied – the case might be rightly decided in a way that does not benefit the claimant. However, the overall picture here is one in which increased access to justice has not always meant that the courts offer adequate resolutions to the problems that claimants bring before them.
These two examples, drawn from very different contexts, demonstrate how access to justice interventions may allow for additional claim-making, but that claim-making may come at a cost and may not deliver adequate solutions. The example of domestic violence cases in Hawaii shows how claimants may experience both direct and indirect negative consequences upon filing a legal claim and how legal solutions can be contingent on far from costless changes to the claimant’s subjectivity. The example of open government information requests in China also demonstrates the challenges that individuals face when seeking “justice.”
Overall, this section has detailed four distinct challenges for experiments in increased access to justice. As barriers to access to justice are reduced, possibilities of legal claim-making grow. In the process, strain on the legal system and especially judges can intensify. Alongside this additional strain on judges, citizens’ expectations about the possibilities of claim-making can grow. Yet, citizens can make use of the formal legal system to differential degrees. Finally, the turn to law means an embracing of legal language and procedures, which can be exclusionary, limiting, and disempowering.Footnote 19 These challenges are more impactful in some cases than others, and – at least some of the time – they can be mitigated in various ways. Exactly how these challenges play out in practice merits additional empirical investigation across time, contexts, and issue areas.
Conclusion
In their reflection on litigiousness in the United States, William Halton and Michael McCann (Reference Haltom and McCann2021: 402): suggest that the question of “‘too many lawsuits’ may cease to make much sense and may become a ‘wrong question.’” In considering this shift, they reference Alexander Bickel’s (Reference Bickel1962: 103) claim that “no answer is what the wrong question begets” and Anupam Chander’s (Reference Chander2005: 1204) suggestion that “[t]he wrong answer is what the wrong question begets.” This may be true in part. However, the “wrong question” – in the case of this article, “too much access?” – may help us better understand both the contours of a theoretical debate and empirical realities that we otherwise might disregard as beside the point, despite their importance for people’s everyday lives.
Access to justice interventions have shown no sign of stopping. Experiments with new and creative ways to engage technology to reduce barriers to accessing courts are underway in different jurisdictions (e.g., Staudt Reference Staudt2008; Wolf Reference Wolf2012; Barton and Bibas Reference Barton and Bibas2017; Donoghue Reference Donoghue2017; Spohr and de Souza Reference Spohr and de Souza2021; but see Eubanks Reference Eubanks2018). Yet, expanded access to the courts may come with important limitations. Drawing on studies of access to justice, litigiousness, and legal mobilization, this article shows how efforts to reduce barriers to access to justice can have unintended effects. These effects include increased strain on the legal system, in particular by increased the burden on judges as they try to keep up with workload of resolving cases. In addition, changes in access to justice can artificially raise expectations about the possibilities claim-making, and when those expectations are not met, observers may lose trust in the legal system, becoming resigned (Sandefur Reference Sandefur, Pascoe, Buck and Balmer2007), disenchanted (Gallagher Reference Gallagher2017), or alienated (Hertogh Reference Hertogh2018). If access to justice interventions are not targeted toward less-well-off groups, they may actually reinforce inequalities, as the “haves” are better able to take advantage of the possibilities of the legal system than the “have nots” (Galanter Reference Galanter1974). Finally, the legal system may offer inadequate solutions to everyday problems, and features of the legal system may exclude, limit, or disempower claimants.
These unintended consequences are not, however, inevitable features of access to justice interventions, and this article is not meant to advance an argument against efforts to increase access to justice or access to the courts more specifically. Instead, my goal is to call for additional empirical research on novel experiments in access to justice across contexts – and to suggest that scholars be attentive to both the promise and possible limits of these experiments. In addition, future studies also ought to explore the interests and incentives motivating the actors involved in specific access to justice experiments (McCluskey Reference McCluskey2012), as well as how non-state, informal, or customary justice mechanisms might bolster, substitute for, or even undercut state-led access to justice experiments (Brinks Reference Brinks2019). Attention to these dynamics will contribute to our understanding of the conditions under which increased opportunities for legal mobilization actually result in improvements in the lives of those who turn to the law for support (McCann Reference McCann1994; Rosenberg Reference Rosenberg1991).
For policymakers, the clearest takeaways from this preliminary investigation are that access to justice interventions must – if the goal is to increase access to justice for all – be targeted, flexible, transparent, and routinely reassessed. Targeted and flexible interventions can help mitigate against the possibility that one-size-fits-all approaches actually end up reinforcing existing inequalities, with less-in-need groups benefitting disproportionately, as we saw in the case of small claims reforms in Canada. An emphasis on transparency and communication with impacted communities – while admittedly easier said than done – can work to counter unrealistic expectations and ground both critiques and positive evaluations of reforms. Interventions should be routinely reassessed, keeping in mind that neither all of the material nor all of the ideational consequences of any reform will never be knowable ex ante. Novel legal procedures may be used much more frequently than anticipated, as was the case with the Colombian tutela, or otherwise well-intentioned legal protections may fail to reshape social understandings of what kinds of problems are private in nature versus the kind that should be brought to the state, as was the case with domestic violence laws in the United States. Of course, the goal of providing just solutions to all problems is a daunting one, and, at least over the short term, policymakers will have to make tradeoffs as they seek to expand or refine access to justice programs. No program will be perfect in its first iteration, but comparative and longitudinal research can help policymakers better design and adapt access to justice interventions.
Acknowledgements
I would like to thank the Law & Society Review editorial team and anonymous reviewers, as well as Susan Achury, Rachel Cichowski, Julio Ríos-Figueroa, Rebecca Sandefur, and the participants of the 2023 International Access to Justice Forum for their helpful feedback.
Conflict(s) of interest
The author declares no competing interests.
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