The First Amendment has not traditionally been a powerful tool in the access-to-justice toolbox, but that may be about to change. Recent shifts in First Amendment doctrine have destabilized the law of professional regulation and called into question the constitutionality of even decades-old professional licensing laws. Access-to-justice advocates have taken advantage of this sea change in First Amendment law to challenge the constitutionality of the state bans on the unauthorized practice of law (UPL) that pose what many advocates believe to be an insuperable barrier to access to justice in many states. These challenges appear in at least one case to be succeeding.

In Upsolve, Inc. v. James, a federal district court held that New York state laws that prohibit nonlawyers from engaging in the UPL likely could not be constitutionally enforced against the nonlawyer Justice Advocates whom an access-to-justice nonprofit, Upsolve Inc., wanted to train to help poor New Yorkers defend themselves against debt collection lawsuits.Footnote ¹ More specifically, the district court found that enforcement of the state’s UPL laws likely violated both Upsolve’s and the Justice Advocates’ First Amendment rights because it imposed a content-based restriction on their speech.Footnote ²

In reaching this conclusion, the district court relied on two recent Supreme Court cases that suggest, in marked contrast to the cases that came before them, that the same First Amendment principles that govern the regulation of speech in the public sphere also apply to regulations of the professional marketplace – at least, some of the time. The Upsolve decision is thus significant not only because it represents the first time in U.S. history that a federal court has interpreted the First Amendment to prohibit the enforcement of a ban on the UPL against nonlawyers who wish to give personalized legal advice to individual clients. It is also significant because it suggests how what some scholars have critically described as the “Lochnerian” turn in First Amendment law – namely, the increasing scrutiny that courts apply to laws that regulate the expressive practices of market actors – might be used to limit the reach of UPL laws, thereby enabling organizations like Upsolve to experiment with nonlawyer-based solutions to the access-to-justice crisis in the United States.Footnote ³ Upsolve is currently on appeal, but even if it is ultimately overturned, the decision provides a proof of concept for similar challenges elsewhere.

For access-to-justice advocates, this development is obviously a welcome one. Although recent years have seen some notable successes in the fight against the trade monopoly that lawyers have traditionally claimed over the provision of legal services, resistance by the judiciary and the established bar has frustrated otherwise promising avenues of reform.Footnote ⁴ In this context, the First Amendment may offer a useful alternative to ordinary politics, and one that may be less prone to the pathologies of self-dealing than other mechanisms of legal change.

The intrusion of the First Amendment into what was previously a largely de-constitutionalized area of law also has potential downsides, however. Scholars have criticized the Lochnerian turn in First Amendment jurisprudence for its imperial tendencies – that is to say, for its tendency to constitutionalize ever greater swathes of commercial regulation, thereby making it difficult for the government to protect consumers against fraud and exploitation, or advance other important regulatory goals.Footnote ⁵ This tendency is also evident in the professional speech cases. As I discuss below, in order to craft what it insisted was a narrow ruling in Upsolve, the district court relied upon a distinction between speech and conduct that is wholly unconvincing and susceptible to challenge. In practice, then, the logic of the opinion is sweeping; it could very easily be interpreted to mean that UPL laws violate the First Amendment, not only when they prohibit nonlawyers from giving personalized advice to clients but also when they prohibit nonlawyers from filing briefs in court or arguing cases. The opinion also could be extended to protect for-profit entities from state regulation, not just nonprofit advocacy organizations like Upsolve.

It is possible, then, that the Lochnerized First Amendment could help deregulate the entire arena of legal licensing just in time for the arrival of ChatGPT 5 and subsequent advances in generative artificial intelligence. It is not at all obvious that the ends that access to justice advocates seek would be advanced by this degree of deregulation. Improving access to justice does not mean leaving legal consumers at the mercy of hucksters, the incompetent, or the hallucinations of generative AI. And yet, in principle at least, this is the deregulatory outcome that the constitutionalization of legal licensing could achieve.

In practice, however, this outcome seems quite unlikely. Courts that have applied the new precedents to strike down regulations of professional speech in other contexts have tended to do so narrowly. Older understandings of where and how the First Amendment applies are not so easily altered, and courts continue to insist that much of the existing regulatory framework survives the recent precedents. This is likely to be especially true of cases that call into question the privileges of the professional bar.Footnote ⁶

The Upsolve decision certainly suggests as much. As I explain below, in reaching the conclusion that enforcement of New York’s UPL laws against the Justice Advocates program would likely violate the First Amendment, the district court could have relied upon a different, much older but arguably more on-point set of Supreme Court precedents that hold that professional licensing laws and other regulations of professional speech violate the First Amendment when their enforcement threatens important democratic interests, including the democratic interest in ensuring meaningful access to the courts. So far, these precedents have not been interpreted to apply to efforts by nonlawyers to facilitate access to justice, but they absolutely could be. After all, as Rebecca Sandefur and Matthew Burnett point out in their contribution to this volume, the inability of poor Americans to access the courts is “not just a problem of social welfare policy or justice service delivery; it is a failure of democracy” – and one that makes it impossible to ensure the fundamental legal equality that self-government requires.Footnote ⁷

Despite the obvious relevance of these older cases, the district court decided to rely instead upon the newer precedents because, the opinion suggests, it believed them to have less sweeping implications for the regulation of the legal profession. This is because, rather than relying upon a thick concept like democracy, the new cases rely instead upon the much thinner – and more judicially manipulable – distinction between speech and conduct. What the Upsolve decision thus suggests, somewhat surprisingly perhaps, is that the new doctrinal framework, with its overriding emphasis on content neutrality as the core commitment of First Amendment law, may be attractive to courts deciding UPL cases precisely because it can be wielded to permit only a very limited alteration to the regulatory status quo. If so, this means that access-to-justice advocates should not think of constitutional litigation as an alternative to regulatory reform but instead as one of the means of spurring it. It also means, however, that it will be up to access-to-justice advocates to explain to courts why certain kinds of legal representation should be treated as speech for First Amendment purposes and why other kinds of legal representation should not be. It will be up to advocates, in other words, to infuse the arid framework of the Lochnerian First Amendment with the democratic values and concerns that have traditionally informed the First Amendment cases – albeit imperfectly – and that continue to inspire the access-to-justice movement.

The chapter proceeds in three sections. Section 14.1 describes the doctrinal shift that underpins recent efforts to challenge UPL laws on First Amendment grounds. Section 14.2 explores the reasoning and the complexities of the district court’s decision in the Upsolve case. Section 14.3 examines its implications for access to justice and charts a more sensible path forward.

14.1 First Amendment Boundaries and the Regulation of Professional Speech

The First Amendment guarantees that the government shall make “no law abridging the freedom of speech.”Footnote ⁸ Despite the seeming absolutism of its language, however, this guarantee has never been understood to mean that the government may never enforce laws that restrict what private persons say, or even that it must always satisfy strict judicial scrutiny when it does so. Instead, the First Amendment’s Speech Clause has been interpreted to provide very little constraint – and in some cases no constraint whatsoever – on the government when it regulates certain kinds of speech or regulates speech in certain kinds of ways. There is, as Fred Schauer notes, a “vast expanse of human communication that lies beyond the boundaries of the First Amendment.”Footnote ⁹

What kinds of speech or speech regulations lie beyond the First Amendment’s boundaries has shifted over time, however. Where courts locate those boundaries reflects a contestable, and often contested, view of what kinds of speech need to be rendered mostly off-limits to regulation in order to protect the interests that the First Amendment protects. As judicial conceptions of those interests change, so too do the First Amendment’s boundaries.

This fact – the mutability of the First Amendment’s boundaries – has become starkly evident in recent years. As many commentators have noted, the court’s changing understanding of the values that the First Amendment protects, and the means by which it protects them, has produced a noticeable expansion in the kinds of speech, and speech regulations, that are granted some degree of constitutional protection by the courts.Footnote ¹⁰

One of the areas in which this change has been evident, if also highly contested, has been the law of professional regulation. Notwithstanding the fact that much of what lawyers, therapists, accountants, and doctors do when they provide service to clients is to listen and to speak, courts have traditionally interpreted the First Amendment to impose very few constraints on the government when it restricts who can practice these “speaking professions,” and what they can say when they do.Footnote ¹¹ Some courts have held that – as the Fourth Circuit put it recently – when the government “regulate[s] professionals providing personalized advice in a private setting to a paying client … [t]he First Amendment does not come into play.”Footnote ¹² Other courts have reviewed licensing laws and other regulations of professional expression under a rather generous intermediate scrutiny standard.Footnote ¹³ The result has been, in both of these lines of cases, to vest states with “broad power to regulate the practice of [the professions].”Footnote ¹⁴

In recent years, however, the scope of this broad power to regulate professional speech has come into question, as a result of the Supreme Court’s turn away from what we might call “the democratic theory” of the Speech Clause that motivated the earlier, deferential approach, and its embrace instead of a broader, what some have described as Lochnerian, view of the Speech Clause’s means and ends.

In this section, I explore the still somewhat tentative shift that has taken place in the past few years in judicial understandings of the constraints the First Amendment imposes on the government when it regulates professional speech, before examining in the next section how that shift impacted the district court’s analysis of the constitutionality of New York’s UPL laws in Upsolve.

14.2 The Upsolve Litigation

Upsolve involved an as-applied challenge to the UPL laws that have been on the books, in one form or another, in New York since the early twentieth century.Footnote ⁶⁰ The challenge was brought by the nonprofit access-to-justice organization, Upsolve, Inc.

Founded in 2016, Upsolve represents a new breed of legal aid. Started by a Harvard undergraduate, a lawyer, and an engineer, Upsolve received funding not only from traditional supporters of legal aid, like the Legal Services Corporation, but also from tech funders, like Y Combinator and Google CEO Eric Schmidt.Footnote ⁶¹ And rather than providing individual clients the services of pro bono lawyers, the organization instead employed tech tools to help expand access to justice to poor Americans. Indeed, the organization’s signature product was an app that helped individuals file for Chapter 7 bankruptcy.Footnote ⁶²

Upsolve did not rely on technology alone to help its users, however. The organization recognized, as it should, that human advice and assistance represented an important part of any effort to expand access to the courts. It consequently integrated human review and assistance into the operation of its bankruptcy app.Footnote ⁶³ And soon after launching the app, Upsolve began to develop plans for a non-technology-based access-to-justice program in New York.

The program, which Upsolve called the “Access to Justice Movement” (AJM), would train nonlawyer “Justice Advocates” to help defendants in debt collection lawsuits fill out the one-page form that the state provided those served with debt collection complaints.Footnote ⁶⁴ Although the form was intended to help unrepresented defendants figure out how to respond to a complaint served against them, it failed to communicate in a manner that was always easy to understand. Its language was too technical, and it assumed a basic knowledge of the institutions and processes of the legal system that many defendants did not possess.Footnote ⁶⁵ The job Upsolve envisaged for the Justice Advocates was to help make the form easier to use for more of the roughly 85 percent of defendants in debt collection lawsuits who either chose not to, or did not have the resources to, procure a lawyer.Footnote ⁶⁶ The Advocates would do so by explaining to individual clients what the various questions on the form meant in ordinary language, and by advising clients how they should answer them.

In its complaint, Upsolve claimed that the only thing stopping it from starting the new program was the threat of prosecution under New York’s UPL laws.Footnote ⁶⁷ This threat is not insignificant. Like many other states, New York’s UPL laws allow the imposition of criminal as well as civil penalties on anyone who engages in the UPL.Footnote ⁶⁸ And although these laws, like similar statutes in other states, do not define what it means to engage in the UPL, New York courts had for many years interpreted them to prohibit, among other things, “the giving of legal advice and counsel” by all but duly licensed attorneys.Footnote ⁶⁹ This meant that the laws forbade the one thing that the Justice Advocates would be trained to do: provide their “legal advice and opinions … to particular clients.”Footnote ⁷⁰

In an effort to establish the legality of the new program notwithstanding the hostile statutory terrain, Upsolve turned to a higher power: the First Amendment. It filed suit in federal court, seeking a declaratory judgment that enforcement of the UPL laws against the Justice Advocates program would violate its First Amendment rights, and those of the Justice Advocates.

To support this claim, Upsolve made two arguments. Its first argument relied heavily on the Button line of cases. Upsolve argued that, just like the lawyers in those cases, the Justice Advocates possessed a fundamental right to engage in “collective activity to obtain meaningful access to the courts” that would be infringed were they prevented by the UPL laws from providing help and assistance to defendants faced with debt collection actions against them.Footnote ⁷¹

This argument was a strong one. The parallels between the cases were striking. Like the NAACP and the ACLU, Upsolve was a nonprofit organization that provided legal services to clients, not because it wanted to make a profit but because doing so furthered its vision of a just democratic society. The organization described itself as a “movement to fight for a legal & financial system we can all access.”Footnote ⁷² In its legal filings, it described the Justice Advocates program as a project of political advocacy that worked to ensure that all New Yorkers can access their legal rights with the goal of “fight[ing] the cycle of poverty and drawing attention to the shortcomings of the justice system for low-income New Yorkers.”Footnote ⁷³

Furthermore, as in Button and Primus, the risk that commercial considerations would undermine how Upsolve promoted these grand democratic purposes appeared very low. This was because, like the NAACP and ACLU programs, there were no monetary stakes for the AJM program. Neither the Advocates nor Upsolve profited from the unrepresented defendants who participated in the program. Thus, for Upsolve, as in Button and Primus, there was little reason to worry that application of state law was necessary to prevent “the oppressive, malicious, or avaricious use of the legal process for purely private gain.”Footnote ⁷⁴

Nevertheless, despite the strength of the analogy that Upsolve was able to draw between its aims and activities and those of the organizations that had famously prevailed in earlier access-to-justice cases, the district court rejected the idea that Justice Advocates possessed the same fundamental right to engage in “collective activity … to obtain meaningful access to the courts” as the lawyers in Button and Primus did.Footnote ⁷⁵ Instead, the district court interpreted the principles articulated in Button and Primus to apply only to the associational and expressive activities of licensed attorneys. The court suggested, further, that the fundamental right those cases recognized might apply only to certain kinds of litigation campaigns – those in which licensed attorneys “sought to vindicate constitutional rights, such as equal protection against discriminatory laws,” not more basic rights, like the right to access justice.Footnote ⁷⁶

The district court’s opinion strongly suggested that the reason why the court adopted this exceedingly narrow interpretation of the relevant precedents – one that is, it is worth pointing out, very difficult to reconcile with the facts of the union litigation cases – was because the court feared that any other interpretation would have too destabilizing an effect on the regulatory landscape.Footnote ⁷⁷ Were the First Amendment interpreted to grant nonlawyers a fundamental right to “[p]romote access to the courts,” the court warned, the result would be to “allow any non-lawyer, so long as they do not charge a fee, to bootstrap a right to practice law.”Footnote ⁷⁸ It would mean that “[c]lients in any type of civil lawsuit would … enjoy the right to full non-lawyer representation.”Footnote ⁷⁹ Clearly alarmed by the specter of this deregulated world, the court adamantly rejected the idea that the democratic interests protected by the First Amendment access-to-justice cases were implicated here.

In marked contrast to the earlier cases, however, the district court’s rejection of the relevance of the Button line of cases did not doom Upsolve’s challenge. Instead, the court picked up the second argument that Upsolve made to challenge the enforcement of the UPL laws against the Justice Advocates program, and concluded that, even if the Justice Advocates lacked a fundamental First Amendment right to promote access to the courts, they nonetheless possessed a different fundamental First Amendment right not to be regulated by a content- or speaker-based law – and a right that was likely to be violated in this case. The court rejected Upsolve’s democracy argument, in other words, but it accepted its content neutrality one.

The court’s acceptance of this second argument required it to reject and/or distinguish what it acknowledged to be the significant body of prior case law that assumed that lawyers (or, as in this case, nonlawyers) had no right to be regulated by content-neutral laws when they engaged in the practice of law.Footnote ⁸⁰ In order to justify putting aside this very significant body of law, the court turned, as it had to, to more recent and more binding authority – namely, the decisions in Holder and Becerra.

The district court interpreted Becerra to stand for the proposition that, at least when they regulate “pure speech,” professional licensing laws are subject to the same neutrality obligations as any other laws. “Becerra undermined the notion,” the court wrote, that “licensing requirements are somehow sui generis under the First Amendment merely because they target professionals.”Footnote ⁸¹ More specifically, the court argued, Becerra undermined the idea that the government could use the tool of professional licensing to “transform pure speech” into conduct and “evade First Amendment scrutiny altogether.”Footnote ⁸²

This meant, the court concluded, that the crucial question in the case – or at least, the question that determined what level of scrutiny applied to Upsolve’s First Amendment challenge – was not, as courts had previously assumed, whether the UPL laws regulated speech directed at a public audience about matters of public concern, or regulated speech that emerged out of the agency relationship between a professional expert and a client. Instead, the crucial question was whether the kind of activities the Justice Advocates wished to engage in constituted speech or something else called “conduct.”Footnote ⁸³

The district court invoked Holder, in turn, for the proposition that the provision of personalized advice to another was an act of speech, not conduct.Footnote ⁸⁴ This meant, the court asserted, that even if the use of UPL laws to prevent nonlawyers from filing briefs or from arguing cases could continue to be treated as an incidental regulation of speech, the same was not true when it came to the use of UPL laws to prohibit nonlawyers from providing individual clients with out-of-court legal advice.Footnote ⁸⁵ The use of the law in this context had to be considered a direct regulation of speech – and more than that, under the logic of Holder, it had to be considered a content-based regulation of speech.Footnote ⁸⁶ This was because, the district court explained, like the material support statute in Holder, application of New York’s UPL ban depended on what the Justice Advocates said. The fact that the ban prohibited the Justice Advocates from providing only advice about matters related to their legal rights and responsibilities, but did not prevent them from advising clients about any other topic, made the law “by definition [a] content-based [regulation of] speech” under Holder.Footnote ⁸⁷ The logic of that opinion, it wrote, fit “seamlessly” with this one.Footnote ⁸⁸

The court accordingly held that enforcement of the UPL law against the Justice Advocates program would be consistent with the First Amendment only if the government could demonstrate that enforcement of the ban, in the specific circumstances in which it applied, furthered a compelling governmental interest by the least speech-restrictive means.Footnote ⁸⁹ And the court ultimately concluded that, in all likelihood, New York could not meet this heavy burden.

Although the district court acknowledged that the interests New York invoked to defend its UPL laws – namely, protecting the welfare of legal consumers and safeguarding the integrity of the courts – are generally compelling interests for a government to pursue, it rejected the claim that these interests were compelling as applied to the Justice Advocates program.Footnote ⁹⁰ According to the court, the fact that Upsolve permitted the Justice Advocates to only advise clients about a limited number of matters, did not allow them to appear in court or file legal documents on behalf of their clients, and required them to alert clients to the need for attorney representation when the problems posed by their cases proved too complex meant that the program posed little threat to the interests of legal consumers.Footnote ⁹¹ To the contrary: By giving clients who otherwise could not afford a lawyer some amount of legal advice, it promoted the welfare of legal consumers, as well as the integrity of the New York courts.Footnote ⁹²

The court also found that New York’s ban on the provision of legal advice by nonlawyers was not narrowly tailored because there were many other ways that the state could protect the interests of legal consumers against incompetent advice-givers. It could – as it in fact did – sanction after the fact those who provided erroneous advice.Footnote ⁹³ It could also require Justice Advocates to disclose to clients their (lack of) legal training and the limited scope of their services.Footnote ⁹⁴ It could even require Justice Advocates and other nonlawyers to pass through a certification process similar to, but less rigorous than, the one licensed attorneys had to satisfy.Footnote ⁹⁵ The court held, in other words, that New York could regulate the provision of legal advice by nonlawyers. What it could not do was simply ban it.

The district court consequently reached a conclusion that no prior court had reached: Nonlawyers possess a First Amendment right to provide out-of-court legal advice to individual clients, at least when they do so as part of an adequately structured and safeguarded legal aid program. The decision, in this respect, demonstrates quite vividly the expansiveness of the Lochnerian First Amendment. It suggests how the decisions in Becerra and Holder could be interpreted by lower courts to call into question the constitutionality of licensing regimes – in this case, the UPL laws – that had for decades escaped serious constitutional challenge.

The decision also demonstrates, however, the complexity of this project of First Amendment expansion. Scholars have warned that the Lochnerized First Amendment could be used to effectively “constitutionaliz[e] the unregulated operation of the laissez-faire commercial marketplace,” thereby imposing “a straitjacket [on] our institutions of democratic governance.”Footnote ⁹⁶ But this is not the best reading of what the decision in Upsolve accomplishes. Rather than simply reading a laissez-faire vision of constitutional liberty into the First Amendment, the decision instead protects what not only access-to-justice advocates but the court itself had in prior decades recognized to be a fundamentally important democratic right. It protects the right of “[l]aymen … to associate together … to preserve and enforce rights granted them under federal [and state] laws.”Footnote ⁹⁷ This is true even if it does so on the basis of a formalist claim about the distinction between speech and conduct, rather than by reasoning more pragmatically about the kinds of rights that individuals need to possess to fully participate in democratic society, as the Button line of cases do.

Indeed, it may very well have been because of the formality of the content neutrality argument Upsolve made – because it did not require the court to reach potentially contested conclusions about the democratic deficits of the existing licensing regime – that the district court was willing to accept it. Whatever the case, the result was an opinion that protects democratic interests, not just commercial ones.

Nor does the opinion impose anything like a “straight jacket” on market regulation. To the contrary: The opinion makes clear that legislatures and state courts retain significant power under the court’s interpretation of the First Amendment to regulate nonlawyer legal advocacy and advice-giving in all sorts of ways. Indeed, the district court went out of its way to emphasize the “narrowness” of its holding in this respect.Footnote ⁹⁸

The trouble the court took to emphasize this aspect of its ruling suggests another reason why the court may have embraced the plaintiffs’ content neutrality argument: It may have believed it imposed less of a straightjacket on the regulation of the professions than an argument based on the Button line of cases because it would apply only to the provision of out-of-court legal advice, rather than to other kinds of legal practice. It is not at all clear that this perception – if indeed it was what motivated the court to rule as it did – is an accurate one, however. Judicial recognition that Justice Advocates possessed a fundamental right to engage in collective action to facilitate access to the courts would not necessarily mean that future courts would have to grant “clients in any type of civil lawsuit … the right to full non-lawyer representation,” as the district court warned. It would only mean that courts would have to apply strict scrutiny in all cases in which UPL laws prevent nonprofit groups from providing clients with non-licensed legal assistance. And, although strict scrutiny is a rigorous standard, its application is obviously not always fatal in fact. It is perfectly plausible that, even under such a standard, courts could and would find that a ban on the nonlawyer provision of complex legal tasks such as drafting briefs or arguing in court furthered the state’s compelling interests in the welfare of legal consumers and the integrity of the justice system, even if a wholesale ban on the nonlawyer provision of other legal advice wouldn’t pass muster.

At the same time, the fact that the decision in Upsolve was grounded in the Justice Advocates’ right to content neutrality, not their right to engage in collective political expression, meant that the right the court articulated could potentially be invoked by for-profit actors quite unlike Upsolve. After all, most of the alternative mechanisms that the district court cited as support for its conclusion that New York possessed alternative, less speech-restrictive means to achieve its regulatory objectives – legal malpractice liability, disclosure requirements, and the like – could easily be adopted by commercial actors also.

Viewed objectively, it is safe to say as a result that the Upsolve decision is in some respects broader than a ruling based on the Button line of cases would have been, even if in other respects it may be somewhat narrower. What it reflects, overall, is a doctrinal logic that results in a different distribution of First Amendment rights than an approach grounded in an access-to-justice logic would have produced.

Nevertheless, this was no doubt a ruling that was intended to fit within, rather than undermine, New York’s existing regulatory framework. Indeed, one way to read the opinion was as a spur to the New York courts and legislatures not to deregulate but to regulate more expansively by creating a two-tier system of regulation and licensing for law, similar to that which exists in medicine. How should access-to-justice advocates feel then about this far-from-radical but also quite significant decision? And what are its implications going forward? These are the questions I take up in the final section.

14.3 Implications

The district court’s decision in Upsolve is clearly good news for access to justice. As advocates have long argued, the serious crisis of legal representation that besets so much of the American legal system is unlikely to be solved without significant reform to the existing regulatory system and to the monopoly that the licensed bar enjoys over the practice of law in the vast majority of states.Footnote ⁹⁹

The trial court’s opinion in Upsolve provides an avenue for reform of this kind in states where ordinary regulatory pathways are blocked. It not only gives the green light to Upsolve’s experimental project in New York; it lays out the doctrinal argument that advocates in other states can make to demand reform, and it also provides persuasive authority they can rely on when they do so. Indeed, advocates have already taken advantage of the opportunity it offers. In South Carolina, the NAACP recently filed a First Amendment lawsuit, challenging the constitutionality of enforcing the state’s UPL laws against the organization’s proposed Housing Advocates program, which would train nonlawyers to provide assistance to individuals faced with eviction.Footnote ¹⁰⁰ In its brief, the organization heavily cited Upsolve as support for its claim that the application of the law to the Housing Advocates program triggered strict scrutiny, because it represented a “content-based regulation of … speech.”Footnote ¹⁰¹ And while there are signs that the South Carolina district court is attempting to avoid having to deal with the difficult First Amendment question it raises, similar constitutional challenges are very likely to emerge in other states before too long.Footnote ¹⁰²

If these lawsuits succeed, the result will be, as the previous section makes clear, only a limited alteration to the existing licensing regime, but nevertheless a significant one. This is because even relatively simple legal advice – such as, for example, the advice the Justice Advocates are instructed to provide their clients, to whenever possible “deny the allegations” in complaints filed against them – can help avoid some of the most serious harms produced by the crisis of legal representation, such as the harm of default judgments. And it is the kind of advice that can be imparted to nonlawyers relatively easily, as the twenty-eight-page Justice Advocates training guide makes clear. A limitation on the monopoly of legal work by lawyers therefore provides an opportunity for access-to-justice organizations like Upsolve to address some of the most egregious and easily addressed problems caused by the crisis of representation in the United States, while still providing the professional bar the power to dictate who can engage in more complex, and less easily trainable, lawyerly tasks.

This is not to say that granting nonlawyers the power to provide this kind of advice poses no risks to the consumer welfare and judicial integrity interests that New York and other states insist are served by UPL laws. Indeed, many of the most established legal aid organizations in the state filed an amicus brief in support of New York state because they believed that granting a First Amendment right to the Justice Advocates to provide individualized legal advice would do more harm than good.Footnote ¹⁰³ More specifically, these organizations argued that extending a First Amendment right to Justice Advocates to provide individualized legal services would create a kind of two-tier system of justice, in which those with sufficient economic resources to pay for a lawyer would receive the kind of nuanced and tailored advice that legal education enables, whereas those without the money to pay for a lawyer would have to rely upon the inevitably simplified – and for that reason, sometimes wrong – advice of those trained by an eighteen-page manual.Footnote ¹⁰⁴ The aid organizations warned that this two-tier system of justice would not only be stratified along class lines but also racially – the result being to force the “Black and Latinx communities that are … disproportionately impacted by debt collection abuses” to rely upon “lower-quality legal services” than other communities receive, thereby only “further entrench[ing] the harms of a discriminatory, two-tiered financial system.”Footnote ¹⁰⁵

These organizations are likely correct that what the decision in Upsolve enables is not, by any means, a fully egalitarian market in legal services. They are also almost certainly correct that the inequalities will continue to be manifested along racial as well as class lines. And they are also likely correct that, in some cases, the advice a Justice Advocate provides a client may not only be unhelpful but may be wrong in a legally meaningful respect – that it will result in precisely the non-easily remediable kind of harm the licensing system is meant to prevent.

Nevertheless, given the seriousness of the crisis of legal representation in New York, the number of cases in which their advice will result in worse outcomes for defendants is apt to be low. After all, most of the clients that the Justice Advocates serve do not now have a choice to go to a licensed attorney. There are too few legal aid organizations in New York to provide services to the vast majority of unrepresented debtors. Therefore, most clients of the Justice Advocates face a choice not between advice from a licensed attorney or a minimally trained layperson, but between advice from a trained layperson or no advice whatsoever. It is hard to see how providing the option of advice from a Justice Advocate will result in a more inequitable system of justice than the system that currently exists in New York. The Justice Advocates may in a few cases give imperfect advice. But it is likely that in many more, they will help litigants navigate a confusing and complex legal terrain – and, at the bare minimum, lower the incredibly high number of default judgments that plague the system.Footnote ¹⁰⁶

Nevertheless, the fact that the decision in Upsolve blesses what is not only a significant but a controversial, and indeed bitterly contested, revision to the existing licensing system means that its holding will no doubt be challenged. The constitutional argument it relies upon is likely to come under pressure from two directions – both from those seeking to narrow its reach and those seeking to expand it.

First, and most obviously, the decision’s rather expansive interpretation of Holder and Becerra can and likely will be contested, both on appeal and in other cases. Those who want to challenge the decision on these grounds will have plenty of fodder. As I noted in Section 14.1, many other courts have interpreted those decisions much more narrowly than the Upsolve court did.

For example, in Capital Associated Industries, Inc. v. Stein, the Fourth Circuit held that a ban on the practice of law by corporations “fit[] within NIFLA’s exception for professional regulations that incidentally affect speech” because the ban didn’t “target the communicative aspects of practicing law, such as the advice lawyers may give to clients” – that is to say, it didn’t limit what specific advice lawyers could give clients – but merely “focus[ed] more broadly on the question of who may conduct themselves as a lawyer.”Footnote ¹⁰⁷ Because the ban did not discriminate on the basis of viewpoint, in other words, but merely imposed speaker-based restrictions on who could speak about certain topics, the Fourth Circuit found it to be an incidental regulation of speech, regardless of the holding in Becerra.

Similarly, in Tingley v. Ferguson, the Ninth Circuit interpreted Becerra to hold only that professional speech was not a historically established low-value category of expression, but to otherwise permit professional regulations to be characterized as incidental regulations of speech so long as they allow the professional to communicate their personal opinions to clients in other contexts than the regulated one.Footnote ¹⁰⁸

These decisions illustrate how some courts can, have, and are domesticating Becerra by reading it to do little more than get rid of the newly invented low-value category of professional speech. In their rather unabashed effort to interpret Becerra as a decision that did not do much to alter the doctrinal status quo, these decisions are hard to square with the expansive and impassioned language of Justice Thomas’s opinion. But they are not obviously inconsistent with its holding; and as the earlier discussion suggests, Becerra is by no means the clearest decision or a decision that reflects a court entirely certain about how far the First Amendment does or should extend into the broad terrain of professional regulation. On appeal, the Second Circuit could easily rely upon these decisions to reject the conclusion reached by the district court in Upsolve and reaffirm the constitutionality of UPL laws.

The decision could also be challenged from the opposite direction: Litigants could argue that the specific speech/conduct distinction Upsolve relies upon makes no sense as a doctrinal matter, and, on that basis, push for a broader constitutional ruling than the self-consciously “narrow” one that the Upsolve district court fashioned. Such a challenge would not be hard to mount. The district court did very little to explain, let alone justify, the distinction it drew between laws that regulate who can provide out-of-court-verbal advice (which it determined to be speech) and laws that regulate who can draft pleadings on behalf of clients, or argue cases in court (conduct). And it is not terribly easy to come up with a doctrinal justification for that distinction. As a matter of black letter law, all that is required for conduct to qualify as speech for First Amendment purposes is that it reflects “an intent to convey a particularized message … and … the likelihood was great that the message would be understood by those who viewed it.”Footnote ¹⁰⁹ These conditions are almost certainly going to be met virtually any time someone writes a brief for a client, or argues a case in court. The logic of Holder applies here too, “seamlessly.”

Later courts, therefore, could quite easily interpret the content discrimination principle that the district court relied upon in Upsolve to reach a much more sweeping ruling. This does not mean that later courts will have to apply the content discrimination logic more broadly than the Upsolve court did. As Section 14.1 makes clear, the boundaries of the First Amendment have always been shaped by courts’ conception of the ends the First Amendment is supposed to further. And the acts of filing a brief or making arguments in court are obviously much more complicated expressive acts than the act of giving a client verbal advice; to be successfully performed, they require much more nonverbal conduct. Their status as speech may therefore not be as intuitively obvious to courts as the simpler act of providing out-of-court legal advice may be.

Nevertheless, there is no obvious doctrinal reason why a later court could not make the same argument that the Upsolve court did to conclude that the enforcement of UPL laws against nonlawyers who wish to draft pleadings or argue cases in court also triggers strict scrutiny. The result, obviously, would be a reading of the First Amendment that imposes far greater constraints on the power of state legislatures and judiciaries to license the practice of law than the Upsolve decision does.

The fact that the decision could be challenged from two different directions highlights the uncertain inflection point at which we stand. It reflects the deep uncertainty evident in the case law about precisely what the Supreme Court’s recent cases mean for the regulation of the professions, including the regulation of the legal profession. Given this uncertainty, and the perhaps insoluble indeterminacy built into the speech/conduct distinction itself, it is hard to say what the consequences of the Upsolve decision will be. An opinion that was crafted self-consciously to impose a narrow constraint on New York’s power to regulate the practice of law could be interpreted to stand for a much broader proposition than it intended to convey, or it could end up reversed by the Second Circuit.

This does not make the decision unimportant. To the contrary, the district court’s opinion is a powerful illustration of how the Supreme Court’s changing conception of the First Amendment’s means and ends can and is being used to disrupt the regulatory status quo when it comes to the regulation of the professions. But the fact that the constitutional reasoning in the case has not yet gained a broader foothold in First Amendment cases, and that it remains vulnerable from multiple directions, means that access-to-justice advocates cannot take the decision, or its holding, for granted.

Instead, the lack of clarity that plagues the professional speech cases means that advocates have now both the opportunity and perhaps also the obligation to explain to courts why one interpretation of the decision is preferable to others – to help courts, in other words, theorize the (currently quite unclear) relationship that does and should exist between the First Amendment and the licensing of legal services. As the discussion in Section 14.2 suggests, this explanation may have to be made in the rather formalist language employed in the Holder and Becerra decisions, and in Upsolve itself. It may have to rely on arguments about what properly counts as speech or conduct for First Amendment purposes, and what counts as a direct or incidental regulation of speech. But it need not be insensitive to the democratic interests and concerns that have long motivated both the access-to-justice movement and many of the First Amendment cases.

To put it another way: Given the lack of consensus about precisely what Holder and Becerra mean, there is an opportunity for advocates and litigants to push the courts to craft a First Amendment jurisprudence that, even if not self-consciously grounded in the democratic interests and values that played such an obvious role in the Button line of cases, advance them nonetheless. Yet, engaging with courts about the proper meaning and wider implications of the Upsolve decision will require advocates to come up with answers to some difficult questions.

First, it will require advocates to decide whether they want to pursue a constitutional path of legal reform. The generally forbidding nature of the First Amendment terrain, up until very recently, has meant that the access-to-justice movement has not expended a great deal of effort on constitutional argument. Most of the reform efforts have focused on convincing state courts – the institutions that have traditionally been tasked with the responsibility of defining and enforcing UPL rules – to change their rules and regulations. Turning to the First Amendment as a mechanism of regulatory change will require the movement to shift both its language and strategy and to devote far more energy to arguing how ensuring better access to the courts advances other, democratic aims.

Yet, if advocates decide to pick up the arguments relied upon by the district court in the Upsolve case, they will have to decide how broadly they want those arguments to apply. Most importantly, perhaps, they will have to decide whether these arguments should be extended to for-profit actors like LegalZoom, which like Upsolve helps legal consumers complete important legal filings.Footnote ¹¹⁰ As Section 14.2 suggests, for-profit actors could easily argue that they have the same First Amendment right to content-neutral regulation as nonprofits like Upsolve do. Were they to succeed in convincing courts of this argument, the result would be very likely a significant expansion in the reach of nonlawyer service providers, given the scale of businesses like LegalZoom and the upside potential of the market in general.

Affirmatively making this argument would require, however, dispensing with the assumption that has underpinned the access-to-justice cases for seventy years: namely, that the First Amendment only really protects the associational rights of political, that is, nonprofit, legal advocacy organizations. Advocates, and courts also, will need to decide whether they are willing to move so far away from the traditional understanding of what kinds of collective associations possess significant democratic importance and pose sufficiently little threat to the welfare of legal consumers to be entitled to the assiduous constitutional protections against professional regulations that nonprofits like the NAACP and the ACLU traditionally received. This will require evaluating whether the benefits to access to justice in terms of scale and efficiency outweigh the obvious risk to consumer welfare that the introduction of a profit motive introduces. This chapter is obviously not the place to answer this question. But it is a question that Upsolve clearly poses – and that, it strongly suggests, both courts and access-to-justice advocates will have to confront sooner or later.

Similarly, advocates and courts will have to decide whether the logic relied upon by the Upsolve court should be extended to other acts of legal representation. Should nonlawyers like the Justice Advocates be able to not only advise clients about how to fill out legal forms but make arguments on their behalf, either in pleadings, or in court? In reality this question is twofold: Is activity of this sort the kind of expressive conduct that the First Amendment protects? And if so, do state governments possess a compelling reason to nevertheless limit who can engage in these expressive tasks? The broad but uncertain language employed by the court in both Holder and Becerra leaves both of these questions open.

As this discussion suggests, rather than revealing anything definitive about the meaning of the Lochnerized First Amendment, what the decision in Upsolve instead does is put on the table a number of important questions that it was impossible, or at least unimportant, to ask before. Perhaps the most important takeaway of this chapter, then, is that the meaning of how the First Amendment applies to the regulation of the legal profession is not fixed. Perhaps more than at any time in recent history, it is up for grabs. This is an opportunity for access-to-justice advocates, even if it is one that comes with some amount of peril.

14.4 Conclusion

A common criticism of the Lochnerian turn in First Amendment jurisprudence is that it produces a free speech jurisprudence that protects interests – economic efficiency, consumer choice – far removed from the democratic interests that the Speech Clause was enacted to protect. As this chapter suggests, the story is somewhat more complicated. The constitutionalized deregulation that the Supreme Court’s recent First Amendment cases authorize and enable has obviously economically liberalizing effects. But it also can and has been wielded to advance democratic interests that were poorly served by a body of law that distinguished categorically between the commercial and the political spheres. How useful the new Lochnerian First Amendment will in the end be to the access-to-justice movement and its democratic aspirations remains to be seen. But the decision in Upsolve suggests its potential as a spur to reform.

For academics, as well as access-to-justice advocates, the possibilities opened up by the more “imperial” First Amendment are important to keep in mind when assessing its costs and benefits. Instead of surrendering the Lochnerized First Amendment to those who wish to wield it for purely economically deregulatory ends, they may be able to seize it, in this context at least, to further some of the most fundamental of democratic interests the First Amendment cases recognize. But doing so will require coming up with a theory of what the First Amendment should mean in this context, and to whom it should apply. These are arguments that access-to-justice advocates have little experience or history making. There is good reason to think that that should now change.

It’s hard to look at the current structure of American legal services regulation and not conclude that “Our Bar Federalism,” as Justice Black might have put it, has outlived its usefulness.Footnote ¹ Fifty states maintain their own rules and their own regulatory apparatus in overseeing a legal profession and a legal services industry that are now demonstrably national and even multinational in scope. Worse, the American civil justice system is in the grips of an access-to-justice crisis, and the state-by-state regime of restrictive rules that props up the lawyers’ monopoly is plainly a core cause. Worse still, bar federalism’s duplicative and inequality-fueling outputs will only grow more outmoded in the years to come as new legal services delivery models proliferate in the age of AI.Footnote ² Indeed, the current balkanized, fifty-state scheme will increasingly look downright provincial and retrograde as new technologies remake the legal services industry and offer robust and scalable ways to serve the millions of Americans who, facing debt collections, evictions, divorce, child custody battles, small business struggles, and end-of-life decisions, navigate a complex legal system alone. Rosy invocation of “laboratories of democracy,” among other federalism values that perennially feature in American politics, rings increasingly hollow in an embattled civil justice system that sits on the cusp of some of its most significant change in a century.

In this chapter, we argue that the time has come to rethink “Our Bar Federalism.” We do so in three steps. First, we ask how we got here by stepping through the mix of path dependencies, political economy, and competing constitutional doctrines that created bar federalism in the first place and then made it stick. Second, we examine bar federalism in a changing world and argue that bar federalism should and, just as important, could change. Third, we ask how the system might change. Weighing tradeoffs across four possible futures for bar federalism, we settle on a “hybrid” state and federal approach, with state bars continuing to regulate lawyers but federal regulators overseeing the rest, as the best way to move to a system that better aligns with the present and future realities of the American civil justice system.

15.1 How Did We Get Here? Bar Federalism’s Origins

The regulation of legal services has always been, from colonial times to postindustrial America, a state and even local endeavor. Why so? Three factors have bequeathed us the current system of bar federalism: (1) simple colonial-to-state path dependencies, (2) a lawyer political economy with a markedly small-firm and solo-practitioner skew, and (3) the constitutional limbo resulting from competing federalism doctrines and norms. The first of these helped set into place the basic state-centered model that exists today. The second and third ensured that it stuck.

15.2 Why Could and Should We Change Now? Bar Federalism in the Twenty-First Century

If powerful forces created and then sustained bar federalism, any call for reform must answer some obvious questions: Why change now? And supposing we wanted to, is change even possible? This section argues that change is indeed possible because of two tectonic shifts in the American legal landscape: (1) a rapidly evolving legal services industry and (2) a deepening access-to-justice crisis. Together, these shifts have eroded the conditions that have long held bar federalism in place while simultaneously exposing the flaws of a balkanized, fifty-state approach to legal services regulation. Our analysis thus builds upon and supports the larger case for reforming American legal services regulation in order to bring it into line with the twenty-first-century realities of an embattled civil justice system.

15.3 A Way Forward for Regulating Legal Services

The story told thus far is persistent bar federalism, the result of stakeholders following patterns set long ago by state bar authorities and judges, and a regulatory scheme that is increasingly ill-adapted to the twenty-first-century realities of a changing legal services industry and civil justice system. In short, we see the conditions as ripe for rethinking. In this section, we thus bracket arguments about whether bar federalism could or should change. Instead, we ask: Accepting that some degree of change is needed, what is the best way to achieve it?

Consider, as a start, three possible futures for American legal services regulation. The first continues the current trajectory: A state-by-state muddling through in the hope that reform experiments in Utah, Arizona, and elsewhere might push us to a new and better equilibrium as we learn what works and what doesn’t. While we should not be naive in supposing that evidence and analysis will move those who have interests in opposing reform, the past year or two gives at least some reason to believe in the capacity of reform-minded stakeholders to take what we are learning through clear-headed, data-driven scrutiny and build mechanisms of change. A second option is that states might instead forge regional compacts using the process prescribed by Article 1, section 10, of the Constitution.Footnote ⁹⁶ The subject matter of these compacts might include reciprocity in the admission of lawyers and nonlawyers to practice, common standards of training and discipline, and shared mechanisms of enforcement as a way to share benefits and burdens and enable a more frictionless scheme of lawyering and legal services. A third, and very different, possibility is to excavate bar federalism root and branch and move to full-scale federalization.Footnote ⁹⁷ This would likely mean a federal agency, whether already established or a new and purpose-built one, to oversee lawyers and new nonlawyer service providers and enforce new federal standards for admission, discipline, and “unauthorized practice of law,” whether articulated by Congress or the agency itself.

We favor a fourth option: a federal-state hybrid. There are several ways to hybridize legal services regulation by allocating some authority at the federal level and some at the state level.Footnote ⁹⁸ Our proposal divides labor by maintaining current state authority over traditional “role” regulation, while vesting federal regulators, whether in an existing or new agency, with responsibility for “entity” regulation. Put another way, a hybrid approach would retain the current state-level system of ex-post disciplinary and liability controls for conventional, one-to-one delivery of legal services by lawyers and paraprofessionals. But one-to-many service models, delivered by entities at scale using a mix of lawyers, nonlawyers, and software, would come within the jurisdiction of a new federal regulatory authority.

Hybridizing legal services regulation would, in our view, combine many of the virtues of the other reform possibilities while avoiding some of their vices. By preserving state control over “role” regulation, a hybrid approach would retain some of subsidiarity’s virtues, capturing local knowledge while facilitating continued experimentation among states. Leaving regulation of conventional lawyering in the hands of state authorities also acknowledges that one-to-one interactions, however complex as a matter of adjudication as law and legal process become more complex themselves, still involve at their core professional relationships between lawyers and clients. Where, however, legal services are delivered on a one-to-many basis, the professional relationship is less about the lawyer behind the desk and the client opposite and more about service delivery on a wider and commoditized scale. Borders become impediments and the fifty disparate regulatory regimes impose tremendous and unnecessary transaction costs. When software risks eating the world, as the saying goes, it behooves us to think of structural solutions that meet technology and globalization where they are, rather than where parochial visions of a legal profession long past might want them to be.

Many questions, and many details, remain to be worked out. As already noted, a puzzle that hangs over the legal tech world is why, even as AI has galloped ahead, direct-to-consumer legal technologies that might assist millions of self-represented litigants have remained a relatively small part of the legal tech ecosystem. If the answer to that question is restrictive rules, then federalization could pay potentially large dividends: A single set of rules, and rules designed with one-to-many legal service models in mind, could unlock new and innovative ways to provide legal help that are chilled in the current fifty-state system. If the answer instead is that the checkerboard of technology and data infrastructures across 14,000 court jurisdictions defeats the scale tech providers need to invest in robust, user-friendly platforms, then centralizing and standardizing the rules may not accomplish much.

There are other risks, too. Critics might object that, by reducing regulatory uncertainty, a hybrid model might indeed spur at least some innovation among legal tech providers, but only at the cost of valuable state-level experimentation as to the optimal mix of regulation needed to spur innovation while also placing guardrails around it. This concern is worrying, but it is hardly fatal. For starters, the “laboratories of democracy” idea, while a venerated one, has taken a beating of late, raising questions about the ability of any decentralized system to generate useable information about policy interventions.Footnote ⁹⁹ Innovation in Utah and Arizona, while promising, is surely different from what one might expect in very different legal markets in California or Texas. The larger blind spot in this critique, as hinted at above, is that state courts currently lack much technical capacity – and, perhaps more importantly, they lack the power of the purse to change that fact. These shortcomings raise significant questions about the current fifty-state system’s ability to perform the job in the first place, let alone drive a flowering of ideas about how to do it well. Put alternatively, even if states were, in theory, promising sources of innovation, capacity constraints make it highly improbable they could carry out this promise. Finally, recall that legal tech providers need scale to justify investment in services designed to reach consumers who, almost by definition, have limited ability to pay. Unless the regulatory uncertainty that defines the current system can be reduced at scale, across states, there may not be much new legal tech innovation for the current fifty-state system to use as an experimental testbed.

A second concern is that a new federal role could provide defenders of the current lawyer-dominated status quo with a one-stop-shop for exerting influence, yielding federal rules that are as stringent as, or even more stringent than, the current fifty-state approach. A version of this concern comes from Ben Barton, who worries that new regulatory schemes might end up imposing more restrictive rules than at present, particularly in the lower precincts of the system, where lawyers’ bottom lines are less threatened, leaving a salutary zone of independence.Footnote ¹⁰⁰ On this view, a new federal regulatory role might end up spurring less, not more, innovation in legal services relative to the present.

Here, too, the concern is worth considering but hardly fatal. To begin, lawyers may not prove nearly so efficacious in defending their monopoly. As already noted, lawyers are fast losing the moral high ground in a civil justice system in the throes of an access crisis that they have presided over. Moreover, once the regulatory debate is pushed into a data-driven consumer protection framing, lawyers’ claims to expertise lose some of their force. Even the argument, just noted, that legal tech enjoys significant latitude in the part of the civil justice system where so few have lawyers may not be quite right. Legal tech entrepreneurs say otherwise, claiming a substantial chilling effect because of the mere possibility of UPL enforcement. And all of this ignores the fact that many innovations, particularly technology-based ones, start in mainstream consumer markets and then work their way down. Like the smartphone, new one-to-many legal services models may start in areas such as divorce, with many middle-class clients in need of low-cost services, and only then work their way to eviction or debt collection, once the myriad components of a winning business model have been refined.

This only scratches the surface of the many challenges and critiques of a new hybrid federal-state role. While we leave such detail for another day, we note, in summary, that a hybrid approach presents a potentially more balanced and also more achievable approach. Reducing the balkanization of legal services provides concrete benefits, and we suggest the hard work of thinking about reforms that move in this direction while preserving what is best, or at least tenable, in intrastate regulation.

15.4 Conclusion

We would do well to rethink “Our Bar Federalism.” The way in which it is configured has the worst elements of federalism’s theory and architecture without the best elements. As a consequence, we cannot confront in a systematic, constructive way the many flaws in our scheme of lawyering and legal services regulation. And we cannot ensure that the settling of certain contentious matters by smart regulation will be implemented across the nation, thereby ensuring a more efficient, efficacious interstate flow of human capital of lawyers and legal service providers.

Most Americans simply cannot afford legal representation in the traditional model, and family law is repeatedly invoked as an illustrative context in which this lack of access is stark: By some estimates, 80 to 90 percent of family cases involve at least one unrepresented party.Footnote ¹ Family court systems around the country have responded to this reality by establishing robust self-help centers and working to simplify court forms and procedures to better meet the needs of self-represented litigants in divorce and child custody matters. As just one example in a rising tide of innovation, self-represented litigants in Colorado can obtain information and assistance – but not representation or legal advice – from Self-Represented Litigant Coordinators, who are judicial employees located in the self-help center of each judicial district.Footnote ² The website for the state court system offers court-approved forms and plain language instructions, including flowcharts and short explanatory videos on electronic filing for non-attorneys.Footnote ³ The judges who handle domestic relations matters are assisted by Family Court Facilitators, who work with the parties to move the case to resolution, and family court matters are governed by a special rule of civil procedure that requires courts to actively manage cases in a way that is tailored to the particular needs of each family.Footnote ⁴

As important as these initiatives are, it is hard to avoid the impression that they are crisis measures – more band-aid than cure. They address the inability of litigants to obtain counsel rather than reflecting an affirmative sense of what civil justice should look like.Footnote ⁵ Litigants moving through family court systems that have been adjusted to be navigable without an attorney will find it much easier to successfully file for and complete a divorce as compared to systems that continue to operate on the fiction of attorney involvement.Footnote ⁶ But even in the jurisdictions that have done the most retrofitting, self-represented litigants must pursue their cases without the benefit of legal strategy, analysis, or advice.Footnote ⁷ A couple that intends to resolve their divorce swiftly and amicably with minimum transaction costs might need to complete the entire process without ever understanding whether the house they have been living in is separate or marital property. As Russell Engler explained so incisively more than twenty years ago, “most assistance needed by unrepresented litigants is likely to involve what would fall within an intellectually honest definition of legal advice.”Footnote ⁸

Against this backdrop, advocates for family law reform have wisely noted that traditional full-fledged representation in the adversarial model, even where available, is not well-suited to many domestic relations litigants in any event.Footnote ⁹ Litigants who come to court because they are divorcing, need an allocation of parental responsibilities, or are otherwise undergoing some kind of family transition have a highly distinctive set of needs and interests that don’t appear in other contexts.Footnote ¹⁰ Family law’s particular qualities – the need to protect children and the uniquely intertwined financial relationship between the parties – have led reformers to invest in systems that offer multiple pathways to resolution, depending on the degree of conflict and complexity presented by each family’s circumstances.Footnote ¹¹ Some divorcing couples who meet eligibility criteria regarding minor children and marital assets may be able to convert the terms of their agreement into a decree without even appearing in court.Footnote ¹² Others will be able to arrive at an agreement after mediation or assistance from a court-assigned parenting coordinator. Adversarial procedures resulting in a judicial determination of rights and responsibilities are limited to those cases that truly cannot be resolved with a more streamlined, problem-solving approach. These structural reform efforts de-emphasize the role of counsel in resolving family law cases – reflecting both a pragmatic acknowledgement that the army of lawyers that would be needed to serve domestic relations litigants is not about to materialize, and a genuine sense that many families are better served by a system that does not run on the kind of individualized partisan advocacy that is taken to be the lawyer’s stock-in-trade.

As much as we should celebrate these efforts, we must also be candid about the role that legal expertise continues to play in achieving justice in family law. As long as we remain committed to the substantive principles that family law regimes seek to advance, and aspire to bring family law matters to resolutions that are aligned with these substantive principles, litigants should have some access to core legal competencies – especially the provision of advice. In this sense family law, for all its exceptionalist qualities, is not so different from other areas of law: Legal advice still matters. To make it accessible in the face of persistent resource constraints, the legal profession must be willing to expand the range of postures in which it is possible for litigants to get legal advice and the categories of professionals who are allowed to provide it.

The challenge, present in other legal areas where access concerns are acute but hitting family law with particular force, is how to leverage family law’s mix of exceptionalist and universalist attributes to create an array of avenues for obtaining meaningful and affordable legal advice. The options we might offer in family law will not translate seamlessly to all other contexts, as we will see. Indeed, what will work for some family law litigants would be inappropriate for others. But the exercise reveals a broader point: The most comprehensive access-to-justice strategies will include both Transubstantive interventions as well as subject-specific ones. The question is how to benefit from this pluralism while managing the added complexity that it brings. Section 16.1 shows how family law differs in key respects from the adversarial paradigm assumed by the American civil justice system. Section 16.2 explains that family law litigants are nonetheless navigating a system of legal rules, meant to effectuate profoundly consequential judgments about family obligations and various forms of dependency, and that in at least some subset of cases legal advice is critical to arriving at outcomes that are tolerably aligned with these substantive principles. Building from these observations, Section 16.3 considers various strategies for making legal advice more affordable and accessible to a wider range of family law litigants.

16.1 Family Law Exceptionalism

We might begin by observing that married couples who seek a divorce are required to use the judicial system to dissolve their marriage, no matter how deeply they agree that the marriage should end, and no matter how aligned they are regarding child custody, the distribution of debts and assets, and support obligations. Unlike parties to a contract dispute, or neighbors quarreling over a property line, or indeed any other type of civil matter, a divorcing couple may not negotiate and resolve their affairs without resort to the courts in any American jurisdiction.Footnote ¹³ Family law has undergone a profound transformation away from the fault-based, adversarial systems of yesteryear, in which spouses had to prove specific types of marital fault in order to obtain a divorce.Footnote ¹⁴ But for all that has changed, this feature of family law remains the same – though notably, in many jurisdictions divorcing spouses may now proceed as joint petitioners rather than opposing parties.Footnote ¹⁵ We will discuss in more detail the substantive legal principles that are said to justify this mandatory resort to the judicial system, but for now we sidestep such normative questions to instead make a simple but important observation: The presence of divorcing spouses in the judicial system says nothing about their adversity or alignment on the core issues of their dissolution. In other contexts, we might be able to assume that litigants are in court because they are adversarial. But that’s not necessarily true for divorcing spouses – in fact, a recent study conducted by the Family Justice Initiative found that 64 percent of domestic relations cases were filed as uncontested.Footnote ¹⁶ Divorcing spouses are in court, no matter how collegial or aligned their interests may be, simply because that is the only way they may dissolve the marriage.Footnote ¹⁷ This has important implications for designing access-to-justice solutions because it reminds us not to treat divorcing spouses as necessarily adverse to one another in a way that is analogous to other civil litigants. They might be able to benefit from legal service delivery models that would be categorically unethical and inappropriate for other litigants.

Another way in which family law is distinctive is the impact on children whose parents are undergoing dissolution. Family law rests on something of a paradox: The substantive principles that govern family law have as one of their chief objectives the protection of children’s interests, but the process by which these principles are adjudicated and applied in individual cases can undermine this core objective.Footnote ¹⁸ The statutes that govern child custody instruct courts to weigh numerous factors designed to identify the best interests of the child,Footnote ¹⁹ and child support regimes have been repeatedly reformed to ensure adequate support for children after family dissolution.Footnote ²⁰ The principles that govern the distribution of marital property and the award of spousal support also take into account children’s interests. In allocating marital property between divorcing spouses, courts are instructed to consider whether to award “the family home or the right to live therein for a reasonable period to the spouse with whom any children reside the majority of the time.”Footnote ²¹ Alimony statutes, which typically require a demonstration that the spouse seeking support is economically dependent, allow for the court to arrive at this conclusion either because the spouse is unable to support herself “through appropriate employment or is the custodian of a child whose condition or circumstances make it inappropriate for the spouse to be required to seek employment outside the home.”Footnote ²² A court applying this provision could conclude that someone is eligible for spousal support – even if she is capable of obtaining adequate employment – because she cares for a child who would be best served by having her continue to stay home.

And yet amidst all of these substantive principles that express concern for the interests of children, a nearly universal consensus has emerged among scholars and advocates that divorce litigation itself is so harmful for children that avoiding it should be one of the central features of family court reform.Footnote ²³ This consensus has been so well-established that only a brief refresher is necessary here: The essential point is that because litigation puts parents in the position of adversaries, it actively generates hostility rather than simply reflecting some preexisting, static level of conflict that the parents bring with them simply by virtue of the end of the relationship. As the process drags on parties become more entrenched in their positions, and the resulting delay and uncertainty create anxiety and confusion for the children involved.

In addition to this uniquely powerful concern for the interests of third parties, family law matters present a financial relationship between the litigants that is without a convincing analogue in other areas of civil justice. There are surely cases where a spouse might have access to separate funds, gifted by a wealthy parent perhaps, to pay for their own representation. But for the most part, the spouses are both drawing on a single, joint pool of assets to fund litigation costs, and this is precisely the pool of assets whose favorable distribution they would be seeking to achieve. Consider a divorce where one spouse feels that they should receive more than 50 percent of the value of the marital house, perhaps because they contributed substantially more to the property’s acquisition and improvement. This could well be a colorable legal claim: Most of the statutes that govern marital property don’t require strictly equal division, and instead allow judges to make a distribution that is equitable based on individual circumstances, guided by statutory factors such as contribution.Footnote ²⁴ But in a divorce where each spouse is represented by their own attorney in the conventional way, the spouse seeking the larger share will have to consider whether it is worth spending money on two lawyers to achieve this preferential result. This expense can quickly overtake the value of the increased share that the spouse was pursuing.

The need to engage in this calculus is particularly acute, given that dissolution produces various social and financial concerns that might reasonably appear more important to divorcing couples than obtaining the assistance of counsel. If a divorcing couple has limited resources to expend on professional assistance, it isn’t obvious that they are better off spending those funds on a lawyer rather than a financial advisor, a tax accountant, or a child psychologist. In a recent study of divorcing spouses who chose to proceed without counsel, researchers repeatedly heard that a key part of the decision was to free up the funds that would have gone to attorney fees for family needs such as education and housing.Footnote ²⁵ One study participant, “facing a rent and a mortgage, payments on two vehicles, and two insurance policies, concluded the money that would have been spent on an attorney would be better spent split between themselves.”Footnote ²⁶ Others emphasized the desire to redirect funds toward the children of the marriage:

• ▪ “As I was having conversations with the attorneys, it became clear to me that representation was not an efficient use of resources that were very, very limited that I could actually be using toward my children.”

• ▪ “I’d much rather put that money toward supporting children than trying to fight to get them.”

• ▪ “We have kids in college, and there just wasn’t any reason to spend money on something – we just didn’t need it.”Footnote ²⁷

Decisions about whether to obtain legal assistance for a marital dissolution are seen as family budgeting assessments:

For all these reasons, scholars and advocates have emphasized that models designed for other contexts are inapt for family law. Family law systems must prioritize problem-solving and private agreement over litigation and adjudication, and treat the parties as the best source of insight as to “what processes and services are best suited to a healthy reorganization for that family.”Footnote ²⁹ And yet, as much as we want to design systems that reduce antagonism and move away from the adversary nature of family dispute resolution, we must keep in mind that family law litigants are navigating a system that is fundamentally a legal one, in several important ways. Our growing appreciation for the value of self-determination in family court, and our need to grapple with the painful resource constraints that characterize the American civil justice system, more generally, ought not to obscure our recognition that even family court is a system in which legal expertise still has a meaningful role to play.

16.2 Family Law as a System of Legal Rules

The process that governs family dissolution is obviously a legal system in the sense that parties file motions, appear in court, and litigate toward a judgment. But more importantly, these judgments are meant to bear some relationship to substantive legal principles that express and operationalize critically important norms about family decision-making and the rights and duties that family members owe each other. The space for private ordering has grown substantially over the past decades,Footnote ³⁰ but family law is a long way from being a system that seeks only to facilitate private agreements and resolve disputes according to the terms of any such agreements, although those are certainly important functions.Footnote ³¹

Family law seeks to protect vulnerable individuals and manage the inescapable social phenomenon of intersecting forms of dependency. Children are obviously dependent on the adults who care for them; family law also recognizes that adults may arrive at the end of a marriage with significant economic dependency caused by their caregiving role in the family. The paradigm case is a couple who decides jointly during the marriage, as many still do, that the overall welfare of the family would be maximized if one spouse were to put her own educational and professional pursuits on hold to manage the household and care for the couple’s children. Such an arrangement allows the other spouse to devote time and energy to professional advancement, resulting in an enhanced income stream that benefits the entire family during the marriage. But if the marriage dissolves, the economic dependency fostered by this arrangement is solely born by the caregiving spouse, while the other spouse walks away from the marriage with professional and financial prospects that reflect the family’s investment in his career.Footnote ³² The pattern is so familiar that it is captured with a shorthand reference to the “displaced homemaker.”Footnote ³³

The substantive legal principles that govern family law reflect a judgment about how the economic risks of such an arrangement should be allocated. As Anne Alstott observes, “family law rules that establish financial relationships and liability between individuals constitute a form of social insurance.”Footnote ³⁴ To protect against unfairness and to encourage adults to make decisions that are in the best interest of the whole family unit while the marriage is intact, the law treats marriage as an economic partnership. The couple earns and spends as a unit, and both parties have claims to the acquired assets of the marital estate. The fruit of marital labor belongs to the couple, not the individual laboring spouse.Footnote ³⁵ Upon dissolution, each spouse is entitled to a share of that fruit because each contributed to its creation.

The enforcement of these principles is a big part of why the state still plays quite a robust role at the end of a marriage – not by adjudicating fault as it used to do, but by monitoring and supervising the terms of dissolution, a role that is effectuated through the requirement that those seeking divorce obtain a judicial decree.Footnote ³⁶ States require divorces to happen in the courthouse, rather than in an administrative office resembling the county clerk’s office where real estate titles are recorded, to effectuate the economic partnership and child welfare norms to which family law is committed.

These norms are considered so important that divorcing spouses are given less autonomy than any other civil litigants to deviate from these principles.Footnote ³⁷ Courts no longer categorically reject prenuptial agreements as per se unenforceable or presumptively invalid, but such agreements are subject to heightened scrutiny, including robust disclosure requirements.Footnote ³⁸ Divorce settlement agreements likewise are subject to both procedural and substantive fairness review.Footnote ³⁹ Family law’s economic partnership norms are more than simply default rules around which parties may contract to their own satisfaction.Footnote ⁴⁰

None of this, of course, is set in stone. Lawmakers must consider whether there are groups of couples whose circumstances are so unlikely to implicate these concerns that they should be allowed to opt out entirely of meaningful dissolution review. That’s precisely the idea underlying simplified dissolution procedures, an important innovation offered in a growing number of jurisdictions.Footnote ⁴¹ Although the details vary, the unifying theme is that couples who meet certain eligibility requirements and agree on the terms of their dissolution can convert their agreement into a formal divorce decree with minimal time and process, sometimes without even appearing in court.Footnote ⁴² In Illinois, for example, couples without children are eligible for simplified dissolution if the marriage lasted less than eight years; neither spouse owns real estate; the entire marital estate is valued at $50,000 or less; neither spouse is dependent on the other for support; neither makes more than $30,000 per year nor does their combined annual income exceed $60,000; there are no jointly held retirement benefits; and the combined value of any benefits either spouse holds is less than $10,000.Footnote ⁴³

There is ample room for productive debate about whether a larger range of couples should be eligible for this kind of streamlined process, or even administrative rather than judicial divorce. And the debate should take into account a realistic assessment of how many couples will have access to the kind of legal advice that would conceivably allow them to benefit from family law’s substantive principles and attendant judicial review. But as it currently stands, family law reflects an ambition, however imperfectly realized, that goes beyond simply effectuating private agreements, and few advocate for a systematic overhaul that would move substantive family law principles in that direction. Simplification is a crucial part of family law reform, but at a certain point it collides with our commitment to the substantive principles that form the foundation of family law.

To see these dynamics in action, consider a couple in their early thirties, without children, who are divorcing after six years of marriage. Each spouse has a college degree and has been working for the duration of the marriage. The wife works at a nonprofit organization that focuses on the resettlement of refugees, earning about $50,000 a year, while the husband works as an investment banker for a national firm, earning anywhere from $250,000 to $350,000 a year, depending on bonuses. Upon marriage the couple decided that they would not merge their finances, a practice that has grown more common in recent decades.Footnote ⁴⁴ Each has their own account into which they deposit their respective paychecks, and they have a joint checking account from which to pay shared expenses. Each moves funds from their own account to the shared account as needed to pay for their half of the couple’s bills. Upon deciding to end the marriage, the couple might begin from the premise that they will each walk away with the funds in their own account and half of whatever might be residually remaining in the joint account. After all, the very practice of keeping separate accounts suggests some underlying notion of what belongs to whom – the couple might feel that by keeping their finances separate they have already resolved the question of how the assets will be distributed at the end of the relationship.

A lawyer, on the other hand, would readily identify and apply the fruit-of-marital-labor principle to this couple’s situation, and would see that the husband’s account was in fact marital property.Footnote ⁴⁵ In some jurisdictions it would be subject to an equal distribution, while in others it would be subject to equitable distribution, based on factors such as the parties’ respective contributions to the marital estate and the economic circumstances they will face after the marriage ends. To appreciate the importance of having access to this legal advice, we do not need to take a position on what the parties will or should do with this knowledge. The parties might choose to proceed as they would have previously, arriving at an agreement that leaves the husband with more of the proceeds from his salary than a court might award in a judicial determination, subject to the kind of review discussed above.Footnote ⁴⁶ But it is fair to assume that the parties will bargain differently with one another with this knowledge, and that if we believe in the substantive principles that underlie marital property distribution, that this is a good thing. Without it, left only to their intuitions about what is “theirs,” their agreement will be at odds with the core principle that the fruit of marital labor belongs to the couple – not because the parties knowingly contracted around it but because the insight wasn’t available. And this is a fact pattern that intentionally sidesteps some of the more pressing issues that arise in family law matters: custody of minor children, a displaced homemaker, domestic violence, or a jointly owned business that would require professional expertise to partition fairly.Footnote ⁴⁷

What reformers must continue to grapple with is the extent to which family courts should be willing to sign off on agreements that smoothly and quickly proceed to a resolution that no court would order when applying the substantive legal principles in an adjudicative posture. On the surface, the agreement does tolerably well on some of the metrics that are commonly used to evaluate civil justice reforms – speed, reduction of transaction costs, and self-determination, at least in some superficial sense. But it does poorly when judged against the substantive principles that family law seeks to advance – marriage as an economic partnership – and without the wife’s understanding of this core legal principle, it is hard to say that there has been a knowing and voluntary waiver.Footnote ⁴⁸ Even as we move steadily and laudably toward more autonomy in the dissolution of marriage, offering litigants a bypass around slow and costly judicial procedures that they would prefer to avoid, we should be candid about what it means for systems to ratify agreements in the absence of legal advice. Agreements may not only deviate significantly from substantive legal principles, which is one thing, but will rest on a lack of knowledge about substantive legal entitlements.

This is the conundrum: We want to facilitate private agreement, both out of an authentic commitment to promoting self-determination and reducing adversarialism in family matters, and as a realistic response to the overwhelming caseloads and resource constraints that characterize family court. And yet, for all that has changed in the law of marriage and divorce over the past sixty years, we continue to think that there is a social benefit to having a law of families that is more than just a set of mechanisms for effectuating private agreements. As long as we think it a worthy social endeavor to regulate families in this way, rather than just facilitating purely private decision-making about the distribution of assets upon dissolution, we’ll have difficult decisions to make about when we allow litigants to opt out of the judicial procedures that operationalize family law’s social insurance and risk-allocation objectives. Simplified dissolution pathways in their current form are largely designed to allow opt-out only for those couples whose circumstances are less likely to implicate economic partnership and child welfare concerns – shorter marriages with few assets and no children. (The couple depicted above would not even be eligible for simplified dissolution in Illinois, for example, because their incomes are too high.)

If we could imagine more affordable access to legal advice, so that more litigants were choosing dissolution pathways with some basic knowledge about how the law applies to their circumstances, we might feel more comfortable allowing a much wider range of couples to forego judicial review. Enhancing access to advice can thus soften – although surely not eliminate – the tension between speed, simplification, and self-determination, on the one hand, and family law’s substantive commitments on the other. Legal expertise was once necessary to navigate the compulsory adversarial nature of adjudicative divorce proceedings; now it might be the key to allowing more and more couples to opt out while maintaining some residual commitment to family law’s substantive principles.

We now can see clearly that, for all its exceptional qualities, family law shares something in common with other areas plagued by pervasive unmet legal needs. For at least some subset of participants, meaningful access to justice requires some access to legal advice: the identification of governing legal principles and the application of those principles to an individual’s particular circumstances. This is not to diminish the work that has been done to provide various other forms of valuable assistance to self-represented litigants; some of the notable efforts in this vein, in addition to the simplification initiatives mentioned above, include converting court documents and forms into plain language, document preparation software and other technological assistance, and “concierge” or “navigator” models of assistance in which court staff provide “personalized assistance, but not legal advice, for self-represented parties.”Footnote ⁴⁹ But it is clear that none of this is intended to function as legal advice. Indeed, discussions of the optimal role for court staff to play in domestic relations matters routinely emphasize the need to steer clear of providing legal advice.Footnote ⁵⁰

An honest appraisal of access to justice for family law litigants would acknowledge the importance of legal advice, at least for some subset of unrepresented litigants, and would note what a large range of couples there are whose assets are substantial enough to benefit from legal assistance, but whose resources are sufficiently limited that the couple will reasonably hesitate before diverting those funds to lawyer’s fees – the family law version of the “missing middle.” No matter how well-trained, hard-working, and sensitive to the specialized needs of domestic relations litigants, a bevy of court staff sidling up to the line between legal information and legal advice, or automated, AI-based advice keyed to modal rather than edge situations, falls short of what our aspirations should be. Reforms that work around the margins of the provision of legal advice are important, and we should continue to explore ways to shrink the set of litigants for whom access to advice will make a meaningful difference in the substantive justice of their resolutions – but a comprehensive strategy will attend to the fundamental importance of advice.

16.3 Access to Advice as a Linchpin of Family Justice

We’ve seen that in order to develop an appropriate access-to-justice strategy for family law, we must both carefully attend to family law’s exceptionalist attributes, and yet also recognize that, for all the transformation family law has already undergone, it continues to be a legal system governed by substantive principles, such that just resolutions will in some instances require legal advice of the sort that is still very hard to come by for most Americans. We have the foundation to understand that among the many innovative solutions being proposed and implemented, family court reform must also offer expanded access to legal advice – meaning, of course, opportunities to obtain advice, and potentially related legal services such as negotiation and document drafting, at a lower price point than what traditional representation at market rates would entail. We can now squarely consider various ways this might be achieved. Some of these possibilities, like the acceptance of joint representation as a legitimate form of unbundled legal services, will draw on family law’s distinctive attributes to propose a model that would not transfer well to other areas of unmet legal needs. Others, like early neutral evaluation, involve family law borrowing a mechanism from other areas of law and refashioning it to meet access-to-justice objectives for family law litigants. The goal is to convert family law’s particular mix of distinctive and generalizable attributes into a wider range of opportunities for obtaining meaningful and affordable legal advice.

16.4 Conclusion

As we encourage and foster this proliferation of strategies designed to close the justice gap, we also need to study it: We lack reliable evidence about the effectiveness of these innovations, and experimentation must be accompanied by careful research.Footnote ⁷¹ Here too, the unique characteristics of family law will require special consideration. As Jim Greiner and Cassandra Wolos Pattanayak observe in their call for additional randomized studies in the provision of legal assistance, “perhaps the highest degree of difficulty in defining desirable outcomes is represented by the area of divorce and child custody.”Footnote ⁷² They proceed to note that legal representation may advance important nonpecuniary (and yet measurable) values such as the smooth and efficient operation of the adjudicatory system, “may educate the client as to her best interests or as to what is possible given legal and factual constraints, thereby adjusting the client’s goals,” and may promote the client’s perception of fairness and sense that she was afforded an opportunity to be heard.Footnote ⁷³

We will want to apply the best possible empirical testing to determine whether these essential goals can also be served by the variants on traditional representation considered here: joint representation, early neutral evaluation, representation by an allied legal professional, or an amalgamation of more than one type of innovation. (We could imagine a divorcing couple who, hungry for legal advice but needing to conserve household resources as much as possible, chooses to be jointly represented by an allied legal professional instead of a lawyer.) The first step, as urged herein, is to recognize the continued value of legal advice for family law litigants, and to endeavor to make that advice more affordable and accessible using all the levers at our disposal. We might even be able to anticipate that the entire realm of civil justice could benefit from this very practice: combing through individual areas of law, identifying the precise combination of attributes that might allow us to pry open some space for additional innovation without unmanageable complexity or undue sacrifice of the field’s core commitments.

Between us, we have spent many decades in the upper precincts of American law. One of us went from being a U.S. Attorney to a district court judge to a judge of the Court of Appeals, while the other writes and practices in the heavily resourced domains of complex litigation. We observed and participated in the efforts, not always successful, of federal courts to engage the most pressing demands of our society.

But outside our gaze, and largely without our even really taking notice, the most dramatic transformation of the American legal system was unfolding with astonishing speed and with deep institutional implications. The state court system, in which 95 percent of legal disputes are handled, was being transformed into a massive debt collection operation. No longer the domain of the great common law of torts and property and contract, state courts across the country had been overrun by “assembly line” claimants, executing collection judgments against unrepresented defendants who for the most part have neither the incentive nor the wherewithal to even enter an appearance.Footnote ¹ These defendants, quite simply, are being railroaded through a legal system characterized by an ever-diminishing pretense of adjudication.

In such courts, a shocking three-quarters of the cases involve an unrepresented party.Footnote ² By contrast, our more familiar domain of federal courts is overwhelmingly populated by represented parties with roughly 70 percent of cases involving representation of both sides of the dispute, and the remaining 30 percent being pro se plaintiffs challenging some form of institutional grievance.Footnote ³ Even this distinction misses the nature of the transformation of state courts. Many of the unlawyered disputes involve routine small claims and family law issues.Footnote ⁴ These disputes are generally between parties with comparable resources, familiarity with the legal system, and stakes in the outcome. The problem, then, is not merely that state court litigants lack access to representation. It is that they lack access to representation in domains where the other side commands greater legal resources and strong incentives to press for full judgments.

Asymmetric aggregation, as we shall term this development, is the process of developing mass efficiencies of scale on one side of the “v.” in small-stakes disputes. One customarily thinks of aggregate litigation as raising the stakes for all sides, pitting a class action against an institutional defendant or gathering all claims in a multidistrict litigation format. Such aggregate proceedings balance the stakes at play and the potential preclusive effect of litigation across all or large parts of common disputes. Here, by contrast, the asymmetry emerges from the creation of a new species of litigant in cases that, on the surface, still look like the typical A v. B dispute over small amounts of money. This new litigant is a firm, not in the sense of the partnerships that organize lawyers but in the Ronald Coase sense of the firm as an institutional arrangement that provides economic gains from lowering the transaction costs of pursuing an economic objective.Footnote ⁵ But unlike customary aggregate litigation, there are no efficiencies on the other side, as when a class of plaintiffs sues an institutional actor such as a corporation or a government agency.

Under conditions of asymmetric aggregation, there is not a market for the combination of legal interests on the defense side of the “v.” If we think of the bulk of nominal parties in the state court system, they are small debtors with no common bond, no centralizing prospect for their defenses, and no possibility of joint gain that can be harnessed by an entrepreneurial legal agent, as with a class action plaintiffs’ counsel. Ordinarily, one may think of such small-scale debtors as being unlikely to represent a large percentage of the state court caseload because the small-scale creditors on the other side would find the cost of trying to litigate a judgment foreboding. But the inability to recover legitimate debt is not a sustainable position in a mass consumer economy, nor is it a desirable state of affairs.

Enter debt collection firms that can buy up the claims of creditors and who can in turn rationalize the process of enforcing debt obligations. Obviously, this is an area rife with the potential for abuse, memorialized in the cult classic, Repo Man. Economies of scale incentivize aggregation of these consumer debt enforcers into a few agencies,Footnote ⁶ including – potentially – third-party collectors outside the scope of formal federal debt collection regulation.Footnote ⁷ Economies of scale also result in downstream efficiencies in the use of form contracts, firms that specialize in litigating claims for the repeat client, and routinized processes for collecting judgments.Footnote ⁸ What is new since the time of Repo Man is the ability to capture the state court system as the means of debt collection with mass-produced judgments, rather than the furtive Repo collection approach to depriving debtors of their possessions, oftentimes with little regard for the merits of the competing claims.

The rise of “assembly-line plaintiffs,” to use Professor Daniel Wilf-Townsend’s term, exploits four features: (1) a collection of a few sophisticated and repeat plaintiffs, (2) a large volume of small value claims, (3) a high rate of no-show defendants, and (4) a passive judiciary.Footnote ⁹ Debt collectors and other financial services companies typify the assembly-line plaintiff.Footnote ¹⁰ Out of 200 possible “top filers”Footnote ¹¹ across a sample of states, ten debt collectors or financial services corporations were responsible for 84 percent of debt collection filings.Footnote ¹² In other words, only a few plaintiffs dominate state court dockets.

Pre-litigation forces drive part of this trend. Starting in the late 1990s and early 2000s, this form of aggregation on the plaintiff’s side of the “v.” became a standard business model for debt collectors.Footnote ¹³ One New Jersey lawyer, for instance, filed more than 69,000 lawsuits in a single year, averaging between 300 and 400 per day.Footnote ¹⁴ Such economies are crucial to the recent trend in state court litigation. Without them, it would not be profitable to collect on individual debt, which the Federal Trade Commission (FTC) estimates is around $1,600 on average per consumer account.Footnote ¹⁵ Once the machinery of state courts begins to churn, individual defendants cannot sustain the costs of litigation. Not surprisingly, most of them never appear in court.Footnote ¹⁶ Figures 17.1 and 17.2 give a sense of the transformation of the state courts into collection agents as contract and other small claims come to dominate the state court docket. The shocking part is not simply the decline of traditional areas of state competence such as torts but the speed with which this transformation occurred.

Figure 17.1 State court caseload breakdown 1992 versus 2010.

Source: Data from Paula Hannaford-Agor et al., The Landscape of Civil Litigation in State Courts, Nat’l Ctr. for State Cts. (2015).

Figure 17.1Long description

The 1992 chart shows that Tort cases constituted the largest portion of state court cases at 49.4%, followed by contract cases at 47.8%. Real property cases made up 2.5% of the caseload, and other cases accounted for 0.3%. In contrast, the 2010 chart shows that contract cases formed the largest segment at 61.3%, followed by probate cases at 11.4% and small claims at 10.9%. Tort cases decreased to 5.6%, while real property cases declined to 1.9%. Other cases increased to 7%, and mental health cases accounted for 2% of the caseload in 2010.

Figure 17.2

(a) State court party representation status

Figure 17.2(a)Long description

The bar graph plots the following data. 1992 had 90% contract claims from both defendant and plaintiff groups and no values individually. Plaintiffs topped at 99% for overall claims followed by defendant and both together with 98% and 97%, respectively. In 2013, plaintiff topped, followed by defendant and both combined with 97%, 23%, and 22%, and 98%, 48%, and 47%, for contract and overall claims, respectively. Values are approximated.

(b) identity of top filers in state courts.

Sources: (a) Data from Paula Hannaford-Agor et al., The Landscape of Civil Litigation in State Courts, Nat’l Ctr. for State Cts. (2015); (b) Data from Daniel Wilf-Townsend, Assembly-Line Plaintiffs, 135 Harv. L. Rev. 1704, 1736 (2022).

The result is not just a transformation in the docket but in the nature of how law is practiced. Over the same period of time, the bulk of cases in state courts involve no lawyer on the defense side. Meanwhile, on the plaintiffs’ side of the “v.,” we see the rise of debt collectors as the single greatest group of litigators.

Not surprisingly, we also see dominant individual firms, the so-called top filers, command a greater and greater part of individual state civil dockets (Figure 17.3).

Figure 17.3 State-by-state comparison of top filer burden on state courts.

Source: Data from Daniel Wilf-Townsend, Assembly-Line Plaintiffs, 135 Harv. L. Rev. 1704, 1736 (2022).

Figure 17.3Long description

The top left graph depicts the average filer burden across the State, which generally increases from around 15% in 2005 to a peak of over 20% around 2015, before slightly declining and leveling off. California's trend starts below 10% in 2005, rises to nearly 20% around 2015, and then depicts a slight increase towards 2020. The District of Columbia exhibits a more volatile trend, starting near 20%, peaking above 30% around 2008, dropping sharply to below 10% around 2010, and then rising again to fluctuate around 25% by 2020. Illinois depicts a gradual upward trend from approximately 15% in 2005 to over 25% in 2020. North Dakota's burden increases from about 25% in 2005 to a high of nearly 35% around 2010, followed by a decrease to below 30% by 2020. Oklahoma's trend is relatively stable, fluctuating slightly around 25% throughout the period. Oregon's graph indicates an initial increase from around 15% in 2005 to a peak near 30% around 2012, followed by a decline and then a rise to approximately 30% by 2020. Tennessee's burden starts below 10% in 2005 and generally increases to around 20% by 2020. Finally, Washington depicts a relatively low burden, fluctuating from below 10% in 2005, to just above 10% around 2012, and then falling to below 5% in 2020.

We engage these legal developments primarily to address potential responses. Returning to the concept of asymmetric aggregation, the problem presented is one of the efficiencies of scale allowing aggregators of debt claims to amortize the costs of legal procedures across mass filings while the debtors themselves remain rationally incapable of hiring counsel, attending court proceedings, and contesting legal arguments. The early proposals for reform address these issues in three characteristic ways.

First, and most evidently, there is the problem that the bulk of defendants are unrepresented. The obvious response is to increase the availability of representation, as with more pro bono offerings or the expansion of law school clinics. There is, in our view, little likelihood of much redress here. The sheer numbers overwhelm any capacity to provide impecunious defendants with volunteer representation. Consequently, more attention is directed to expanding the concept of representation by allowing paralegals and paraprofessionals – the legal equivalents of nurse practitioners in medicine – to assume more of the role of qualified legal representatives. We address this as the most significant area for reform through expanding representation.

The second reform approach aims not to provide representation but to lower the cost of individuals representing themselves in order to create systems that can be used with ease by people representing themselves. Many debt collection disputes turn on facts rather than law, such as whether the product actually performed, whether payment was actually made, or whether warranty obligations were actually met – all facts likely known by the debtor. Still another set of claims may be those in which there is a simple defense because the statute of limitations has run, the money has been paid, legal service was not properly done, or the claim has been discharged in bankruptcy. These are not complicated legal issues but may still require some level of legal assistance.

For litigants seeking to defend themselves, a further problem may not be so much the capacity to muster a legal argument but the problem of getting to court. A day off of work, the scramble to find child care, or even getting to inaccessible courthouses may put the ability to articulate one’s side of the story beyond the reach of working people. One of the fortunate by-products of the COVID pandemic is increased experience and comfort with remote court engagement that, by lowering aggregate costs, may diminish the impact of resource advantages for the debt aggregators. This is also addressed below.

Third, there is the underexamined possibility of direct regulatory oversight. If the problem here is a fundamental asymmetry in stakes that cannot be overcome by aggregation of the debtor (e.g., it is hard to imagine a class action of all consumer debtors), then the problem presents as a species of market failure inviting regulatory response. Two regulatory paths suggest themselves. The first is to rate the repeat filers in terms of the care they have taken to avoid exploiting the vulnerabilities of the debtors. An independent agency – the Consumer Finance Protection Board (CFPB) suggests itself – could require repeat litigants to register the time taken between acquiring debt and filing suit, the number of suits filed against parties who had previously obtained bankruptcy protection, the internal procedures of the firm for verifying whether there are existing complaints or other considerations that should be resolved before executing on the debt, and other such mechanisms of compliance with best practices. Our approach here derives from the literature on responsive regulation and would impose increased prices or limitation on filings for firms that are repeatedly noncompliant.

Alternatively (or perhaps additionally), the regulatory response could come from within the courts themselves. There is no evident reason that the filing of thousands of cases by a single firm, almost invariably yielding default judgments against unrepresented parties, should not attract some institutional scrutiny. Although it is not the custom in American courts, an ombudsman could be appointed to audit some number of claims filed, to investigate complaints about misconduct (such as harassing calls to parties already discharged in bankruptcy or improper service of process), or to secure representation for a sample set of claims. The approach here draws from auditing rather than advocacy and is intended as a regulatory mechanism for quality control.

We discuss these various approaches in turn.

17.1 Expanding the Pool of Representation

If the obstacle to defendants’ securing representation is cost, then states could respond by decreasing costs for people to defend their cases. This is the most conventional response, in that it disrupts neither the role of the court nor the way in which any particular litigation is processed through the legal system.

If the problem is identified as the expense of securing adequate representation, then the most obvious solution is to provide free counsel for all defendants. Creating an obligation to provide counsel to all litigants is unlikely to emerge as a litigated rights claim since the Supreme Court has declined requests to extend the 6th Amendment’s right to counsel to civil cases,Footnote ¹⁷ and states have only begun to guarantee access to attorneys in civil cases in limited contexts.Footnote ¹⁸ But beyond the doctrinal obstacles, the real problem (as in most mass litigation) is simply the sheer size of the challenge. Quite bluntly, it is hard to see the political will for a benefits program of the size required to provide representation in all debt collection cases in state courts.

Where public funds are unlikely to fill the void, private resources may enter the mix. Most often, pro bono representation is part of the expected social return from the highest rungs of the bar, and from the generations of law school entrants to the practice of law. But the scale of the problem outstrips any possible resolution by voluntary representation. One-by-one provision of free or discounted legal services cannot address the scope of the national problem, nor even the yearly filing of one entrepreneurial New Jersey lawyer.

An alternative route is to liberalize access to representation. States can permit paralegals and other certified specialists to represent people who would otherwise lack representation. Some states have already piloted such programs. For instance, Washington developed a program to license nonlawyers in specific areas of the law (Limited Licensed Legal Technicians or “LLLTs”).Footnote ¹⁹ The State of Washington chose to sunset the program but permitted the sixteen active LLLTs to continue practicing. Utah, Oregon, Arizona, and Minnesota have created similar programs.Footnote ²⁰

A big question hanging over these experiments is whether nonlawyer representation works. The most exhaustive research addressing that question comes from several reviews of Social Security benefits cases, where federal law authorizes representation by nonlawyers,Footnote ²¹ creating a rich source of background material. The results indicate that paralegals have proven capable of representing claimants in front of administrative law judgesFootnote ²² and that “accredited representatives” have been effective before immigration judges.Footnote ²³

More supply of legal representation provides a viable means of challenging claims, increasing their likelihood of success and increasing the costs of these debt collection plaintiffs’ business model. But it does not address all the issues discussed above. Individuals must receive notice of a claim against them before they can obtain representation, and repeat plaintiffs with resourced attorneys may be able to overwhelm paralegals who will likely be underfunded and overworked.

One should take care to not allow the perfect to be the enemy of the good. Many of the specific abuses that have been identified with mass filers can be picked up by those who are specially trained, even without full legal certification. Known abuses ranging from harassing phone calls to sewer serviceFootnote ²⁴ can be fitted onto a checklist of initial inquiries. There may still be a large number of legal issues missed, or the legal implications of conduct underexamined. But for many caught in the debt litigation cycle, this is undoubtedly better than going it alone.

Mostly, our reservations come from the initial framing of the current difficulties as being largely a product of asymmetric aggregation. Expanding representation, even for those capable of securing counsel or its substitute, would still not alter the vast disparity in resources and expertise across the litigation divide. Part of the problem may be addressed by lowering the cost of routine legal advice and expanding the pool of those who may provide less than full legal counsel. The medical profession encountered this with the creation of nurse practitioners and other professionals capable of delivering valuable medical services even without the full training of an MD.Footnote ²⁵ While salutary, this approach still puts the burden on the disadvantaged defendant to figure out how to obtain legal services, even at a discount. That advances the ball but is unlikely to be the central answer to the current structural challenges to the courts.

17.2 Reconfiguring Going to Court

A second approach is to reconfigure what “court” looks like. One path is toward a more inquisitorial model of a supervening court, as opposed to the anything-goes autonomy of an unchecked adversarial model. Professor Jessica Steinberg draws on specialized drug and housing courts to outline a “naming” strategy for altering judicial conduct.Footnote ²⁶ States can designate special courts for consumer debt cases that either largely draw upon traditional judicial models or depart significantly – for instance, judges in drug courts generally act as case managers for a rehabilitating party.Footnote ²⁷

Even if state courts were to keep the adjudicatory structure of civil courts intact but develop a specialized bench or procedures for consumer cases, that classification may influence the outcome of many consumer debt cases. Heightened pleading requirements, for instance, might deter fraudulent claims that lack any reliable evidentiary support. Placing the burden on plaintiffs can increase the cost of pursuing claims, especially for claims that only succeed because of the abusive tactics available to plaintiffs in normal state court proceedings. Additionally, in creating special courts, the state redefines the judiciary’s nature from a “neutral justice” establishment to a “problem-solving” institution meant to confront the social ill assembly-line plaintiffs perpetuate.Footnote ²⁸

Perhaps the area of most fertile recent development has been the technological innovations implemented in response to the COVID pandemic. The sudden need to permit remote access to legal proceedings occasioned by the need to avoid interpersonal contact quickly generated readily deployable practices, the simplest being Zoom proceedings that relieve working people and parents of the oftentimes impossible burden of missing work or finding alternative childcare. While remote proceedings would maintain the adversary form of apparent one-to-one litigation, it would transform the process of going to court into something more in keeping with the online exchanges that form the core of the consumer experience. Such experimental court settings will not address the asymmetry in access to information and the knowledge of legal processes between individuals and debt collectors, but they may significantly reduce the transactional barriers that at present serve to deter even meritorious defenses from being aired.

Alternatively, non-technological approaches could provide protection to vulnerable debtors. One government-centric approach would create an ombudsman-like process that would permit plaintiffs to file claims with a state agency, which would then conduct fact-finding from a neutral position. The ombudsman agency would review claims, perhaps collectively adjudicate claims, better understanding a plaintiff’s pattern of behavior and adjusting to evidence of fraud, abuse, or meritless claims accordingly.Footnote ²⁹ Ombudsmen programs can improve the efficiency of state courts through careful review of systemic problems throughout state courts and by adjusting procedures to ensure access to justice.Footnote ³⁰ Though these offices normally do not have final decision-making authority,Footnote ³¹ they can enable rapid response to challenges in alternative adjudicatory systems that states test, or they can begin to alter current practices in state courts of general jurisdiction.Footnote ³² Unlike providing legal counsel to indigent individual defendants, or facilitating judges to assume fiduciary-like roles in dealing with unrepresented defendants, an ombudsman introduces a nonjudicial actor with oversight review of the entirety of the court process.

No doubt there are other technocratic possibilities looming on the horizon. Firms like eBay and Amazon have used AI tools to create electronic dispute resolution centers. It may be that broad swaths of consumer debt disputes lend themselves to low-cost pattern adjudication that removes human decisionmakers, and their associated costs, with the advent of “online dispute resolution” (ODR) technology. At their most ambitious, ODR proponents aim to “reimagine ‘going to court,’”Footnote ³³ supplanting in-person interactions with judges, prosecutors, and other litigants with “asynchronous” communication, document submission, and dispute resolution, all done from an online user interface.Footnote ³⁴ Online dispute resolution enthusiasts intend to “scale” the adjudication of small-dollar disputes,Footnote ³⁵ thereby expanding the information garnered from the increasingly routinized nature of collection lawsuits into the adjudicative template for future cases. In some sense, this is a technological advance in the routinization of tort claims at the hands of insurance adjustors and the nascent plaintiffs’ tort bar many generations ago.Footnote ³⁶

Online dispute resolution technology originated in online platforms and marketplaces, such as Amazon, eBay, and Alibaba.Footnote ³⁷ On those platforms, ODR is the primary venue for adjudicating disputes over, for instance, whether content will remain online, whether a user account will be suspended, whether an online vendor will be delisted,Footnote ³⁸ or whether a product delivered to a consumer is as described. These processes have started to make their way to the judiciary with initial uses in Singapore,Footnote ³⁹ the Netherlands, Canada, the United Kingdom, and the Hague.Footnote ⁴⁰ Pilot projects in the United States now exist in at least 113 adjudicative tribunals.Footnote ⁴¹ These experiments with ODR are generally at the local and state levels and use the technology for disputes over taxes, parking fines, and small claims.Footnote ⁴²

The aim of ODR is to “triage the case into an appropriate resolution pathway,”Footnote ⁴³ in the inevitable technojargon that one would expect. Most often, the parties can submit confidential “reserve settlements” they would be comfortable paying or accepting. If there is overlap in the reservation prices of the parties, a settlement agreement can be generated through an algorithm. Mediators can also be involved if there is no mutually amenable agreement between parties. If ODR is court-annexed, non-resolution then allows for more conventional court processes to follow. In private settings, as with airlines dealing with claims for lost luggage, the offer is final and, if refused, forces the claimant to initiate legal processes.

One prominent ODR firm describes its product as a “communications platform [that] … implements [a court’s] eligibility rules, workflows, and decisions.”Footnote ⁴⁴ The firm stresses that its product “offers a neutral place for parties and stakeholders to share information and communicate,” and that the product “gives the public their ‘day in court’ from their own device and from anywhere.”Footnote ⁴⁵ But the world is unfortunately not win-win. The benefits of speed and cost may compress legal rights. Streamlined algorithms may discount specific defenses such as the tolling of state statutes of limitations, allegations of identity theft, and invocations of the Truth in Lending Act.Footnote ⁴⁶ Moreover, dispute resolution behavior does not stand still. Facilitating access to rapid resolution of claims may lead to more filings and may allow for process “capture” by deep-pocketed and sophisticated actors.Footnote ⁴⁷

Early and quite preliminary empirical evidence suggests that ODR does in fact advantage defendants in cases filed by repeat filing plaintiffs. A study of ODR in six states found that ODR reduces the time required to resolve disputes, lowers default rates, and increases disputants’ compliance with court-ordered payments.Footnote ⁴⁸ An additional study presents evidence that ODR decreases default rates and allows defendants to respond to and engage with disputes outside of business hours.Footnote ⁴⁹ Competing and nuanced evidence on case duration using ODR suggests that ODR reduces case duration when disputants reach an agreement, but in turn increases duration when disputes are addressed on the merits, perhaps because the technology’s flexibility better allows defendants to vindicate themselves.Footnote ⁵⁰ The jury is still out on how the technology will ultimately play out. Relieving human congestion is no small gain for citizen welfare.

17.3 The Regulatory Response

17.4 Conclusion

For consumers to be able to take advantage of markets, they must be able to contract for themselves and to assume the responsibility of debt. They will no doubt make errors, find themselves more deeply in debt than is reasonable, and face the wrath of bills coming due. Any system that offers credit to consumers has to have some mechanism of collecting on debts; otherwise, the system will collapse. We take all this as a given.

The current debt collection system is not a reasonable mechanism to balance the needs of creditors and debtors in consumer markets. In particular, the discovery of an effective means of asymmetric aggregation leaves the state court system complicit in a process that only resembles legal adjudication. We join the ranks of the concerned and offer some observations as to how to conceptualize possible responses. At the end of the day, it is hard to imagine how the evident current deformities in debt collection “litigation” can be addressed short of a regulatory response, whether generated by administrative action or whether developed from within the courts themselves.