Recommendation 7: National Coordination

Recommendation 7. Create a national team, or even a new national organization, to coordinate the efforts listed above, collect much-needed data on the state of civil justice, and help identify and publicize effective innovations that improve access.

In the United States, almost all cases involving civil justice issues are heard in one of the 52 independent court systems (including those of the District of Columbia and Puerto Rico). Each system has its own distinct culture and set of challenges, so no single organization can issue edicts to improve and increase civil justice throughout the nation. In addition, the needs and resources in one state or region are different from the needs and resources of another. For good reason, courts in Boston operate differently from courts in Charlotte or Omaha. Yet state and local efforts to close the justice gap, in the absence of national coordination, have set their sights too low and often fail to take advantage of lessons learned and best practices elsewhere in the country.

A central missing ingredient is focused, dedicated, and independent leadership—to help document and understand the fundamentals of the problem, to provide guidance and coordinate the allocation of resources, and to encourage productive partnerships and other forms of collaboration. This report’s final recommendation is for the creation of a national team, or even a new national organization, to pursue funding and coordinate essential efforts to improve and increase access to civil justice—to advance the first six recommendations of this report and support even more ambitious solutions in the future.

The effort might be called the Civil Justice 250 Initiative, in anticipation of America’s 250th anniversary on July 4, 2026. The goal should be to provide civil justice for all poor, low-income, and middle-income Americans who need it, which is likely over 100 million people each year.75 The American constitutional system owes that much to everyone.

No single group of people wakes up each day with this as their mission. National organizations that are playing important roles in delivering or supporting valuable legal services are stretched to capacity.76 And due to the limits of their missions and other restrictions, they are not able to provide the kinds of leadership needed to address the long-standing, entrenched obstacles to civil justice in the United States. It is time for businesspeople, computer scientists, designers, judges, lawyers, legal services providers, and others to join in a deliberate way to address this long-standing American crisis. The team could be a collaborative yet independently driven effort among organizations that already work on civil justice issues, a completely new effort or organization, or some combination of the two.

This recommendation is conceptual rather than concrete because, as of now, rich data and extensive studies about the policies and practices that work best in solving civil justice problems are notably lacking. Also lacking, according to Carlos Manjarrez, chief data officer of the LSC, are data and studies about civil justice case types (such as housing and family) showing the racial and ethnic backgrounds of affected people.77 The interdisciplinary field of study examining the access problem is relatively new and has yet to answer basic questions whose answers will shape effective solutions. No one knows, for example, how many people in the United States face a civil justice problem every year. However, there are a couple of standout candidates for early reform.

First is the need to reform the state court systems, which decide almost all of the hundred million or so legal disputes each year involving civil justice. It is time to rethink the design of those systems from the ground up, employing principles that make the interests of users—individuals and families, small businesses and others—the primary concern. The mosaic of efforts in each state and locality—courts; legal services organizations; volunteer, or pro bono, efforts by lawyers; and other facets—must be much more visible, accessible, and capable of serving many more people. Civil justice must be fairer, more open, and more accessible, whether in a rural, urban, or suburban area, no matter which state.

The second candidate for early reform is the financing of legal services and civil justice advocates. Again, the example of the medical-legal partnership is instructive.

In general, the trend in healthcare reform has been to shift away from fee-for-service models, which provide no incentive to improve efficiency and effectiveness, toward models that do provide such incentives. Some of the new payment models give providers and payers incentives to reduce costs and improve quality. These include so-called capitated payments, which set a monthly amount for a patient’s care and reward positive outcomes and improvements in service quality. Because social and legal inequities that harm health also impact cost, outcomes, and quality, the healthcare system has increasingly recognized the importance of incorporating legal specialists into healthcare teams to manage costs and improve outcomes for patients.

Legal interventions that address the social determinants of health are a form of value-oriented service. The legal portion of a medical-legal partnership will cost much less than many aspects of the medical part. Improved outcomes from legal interventions make support for the legal part a good investment for funders on the medical side.

Total spending for healthcare in the United States is more than two thousand times the total funding for civil legal services. In 2017, the former was around $3.5 trillion, and the latter was about $1.58 billion.78 Directing a relatively small portion of healthcare spending toward solving problems caused or aggravated by social determinants of health would help reduce overall healthcare costs significantly, according to studies of the benefits and savings realized by state legal services.

Redirecting some portion of healthcare budgets toward civil legal services would also help redress the current imbalance in funding for medical-legal partnerships: the money comes especially from the legal side of those partnerships. To make this happen, existing partnerships need to improve their data collection and evaluation so they can document the value of legal interventions in improving health outcomes and reducing costs.

One hundred million dollars would be a tiny percentage of total healthcare spending: less than 0.003 percent. Yet, if targeted for medical-legal partnerships, that amount would be a notable increase: about 6 percent of the 2017 total for civil legal services, not including existing funding for such partnerships. Even $1 billion would still be a small percentage of the total healthcare budget: less than 0.03 percent. Yet, if targeted for medical-legal partnerships, the increase would be huge: about 60 percent of the 2017 total for civil legal services (again, not including existing funding for such partnerships).

Other mechanisms for funding legal services could include social impact bonds, paying back investors through savings in costs from preventive services, or integration into other financing systems, like those of Medicaid, the U.S. Department of Housing and Urban Development, and the U.S. Department of Veterans Affairs (VA). With the prospect of cost savings already documented in many studies, the financial markets could also prove to be a mechanism for expanding the means of paying for expanded civil legal services. As of 2019, 26 social impact bonds had been issued in the United States. Social Finance, Inc., works with governments, nonprofit organizations, foundations, impact investors, and financial institutions to create innovative financing solutions that improve social outcomes. It has helped develop financial instruments in healthcare, criminal justice, education, the environment, and other areas. In partnership with the Kresge and Open Society Foundations, it found that this approach could have significant potential in the field of civil justice.

Thus there are many new and promising ways to secure funding to improve civil justice. The challenge now is to raise the money, distribute it, and put it to work as efficiently as possible, in ways that help the greatest number of people. This challenge should be a primary focus of Civil Justice 250.

If a new organization is needed, it must be independent. When an improvement in justice requires an increase in the number of lawyers, the organization’s endorsement should offer reassurance that it is not a self-serving proposal of the legal profession. When an improvement calls for an increase in civil justice problem solvers who are not lawyers, the organization should have independence from the legal profession to say so without hesitation.

The nation should meet the challenge of providing impartial justice with a process that is, itself, impartial and focused on the people in the greatest need: the low-income Americans who struggle too often to exercise even their most basic rights.

Endnotes

• 75Rebecca L. Sandefur, “Access to What?” Dædalus 148 (1) (Winter 2019): 49–55.
• 76The list of organizations working to improve access to justice includes the American Bar Association, the National Center for State Courts, the National Legal Aid and Defender Association, LSC, the Self Represented Litigants Network, the National Center for Access to Justice, and many more.
• 77Carlos Manjarrez, interview, June 26, 2020.
• 78Committee for a Responsible Federal Budget, “American Health Care: Health Spending and the Federal Budget,” CRFB.org, May 16, 2018; and Houseman, Civil Legal Aid in the United States.