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Excerpted From: Benjamin P. Cooper, Preliminary Thoughts on Access to Justice in the Age of Covid-19, 56 Gonzaga Law Review 227 (2020/2021) (91 Footnotes) (Full Document)
Most Americans believe that “daily life--the way people interact with each other and the way they work--will be permanently changed” by the pandemic. Commentators do too. Thomas Friedman recently described it as “our new historical divide: B.C. and A.C. - the World Before Corona and the World After.” As we teach remotely, our children attend school from home, and conferences, like Gonzaga's Legal Ethics Conference, are forced to proceed virtually via Zoom, it is clear that this pandemic is forcing us to live differently, and we are left to ponder what changes to our lives and our society may become permanent.
Of course, law professors working from home are privileged; millions of other people are suffering physically, emotionally, and economically. Many of them will face civil justice issues, but unfortunately, they will find a system that is ill-equipped to help them.
This essay addresses what the pandemic may mean for our country's alarming and longstanding access-to-justice crisis. This article starts by briefly describing the civil justice gap before turning to some thoughts on what impact the pandemic might have on it. First, the bad news: there is little doubt that the pandemic is going to exacerbate the access-to-justice problem by disproportionately impacting low and moderate-income Americans both physically and economically. Next, this article turns to some silver linings: lawyers and the courts are innovating on the fly in ways that could have a lasting impact on the justice system and its ability to better serve the public. These innovations offer some hope that the pandemic will permanently change the justice system. Finally, this article identifies some of the substantial obstacles and challenges that remain in remedying the civil justice gap.
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The coronavirus pandemic is causing devastating health and economic issues for millions of low and middle-income Americans, and it is undoubtedly exacerbating the civil justice crisis in our country. But in these desperate times we are also seeing courts and lawyers innovate in ways that could lead to real change after the pandemic. To make a meaningful dent in closing the civil justice gap, however, we still must overcome numerous obstacles. We need radical regulatory change in two areas: expanded provision of legal services by nonlawyers and repealing the prohibition on nonlawyer ownership of law firms, and several states are implementing dramatic changes. The Utah Supreme Court has approved a pilot “regulatory sandbox,” where nontraditional legal services and providers can operate with limited relaxation of Rule 5.4 under careful oversight. California is also moving toward a regulatory sandbox. And Arizona has rescinded the ban on nonlawyer ownership of law firms.
Even the traditionally protectionist ABA has sanctioned significant regulatory innovations that will improve access to justice. By shining a spotlight on the civil justice crisis, the coronavirus pandemic might inspire leaders across the country to innovate in an effort to improve access to justice.
Senior Associate Dean and Frank Montague, Jr. Professor of Legal Studies and Professionalism, University of Mississippi School of Law. J.D. University of Chicago Law School, B.A. Amherst College.
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