Excerpted From: Roger Michalski and Andrew Hammond, Mapping the Civil Justice Gap in Federal Court, 57 Wake Forest Law Review 463 (2022) (219 Footnotes) (Full Document)


MichalskiHammondUnrepresented litigants make up a sizable and normatively important chunk of civil litigation in the federal courts that merit further study. In recent years, more than a quarter of nonprisoner civil cases filed in federal district courts were filed pro se. Yet we know precious little about who these pro se litigants are. Meanwhile, judges, lawyers, and academics debate what should be done about unrepresented litigants, despite this dearth of data. This Article sheds some light on these litigants by documenting where they live.

All too often, legal scholarship about courts proceeds in nonphysical abstraction, as if courts, litigants, and lawsuits do not have a corporeal manifestation in space that is relevant and revealing. Instead, legal scholarship typically treats the words of court opinions and the motions of litigants as disembodied voices on an abstract, ethereal plane. The first contribution of this Article is to provide a theoretical counterpoint to this dominant approach. We take the theoretical insights of critical cartography and apply them to the study of courts. This approach makes explicit the political and economic dimensions of space, representations of space, or the lack of such representations. The “critical” aspect of critical cartography, as in critical race theory, is a reminder to interrogate the submerged social and structural features of law and society that create and perpetuate inequality and inequity. We use critical cartography to critique the absence of representations of power in space when scholars, the bench, and the bar contemplate pro se litigation. We explain and demonstrate how critical cartography can be used as a tool to examine power in real space and illuminate the work of courts, procedure, and litigation. We do so in the context of pro se litigation but hope that future researchers will incorporate critical cartography insights into their methodological repertoire in a broad range of contexts. We want to investigate who federal pro se litigants are and how their particular residence shapes their access to federal courts.

Our theoretical contribution is made possible by our access to a massive dataset of 2.5 million federal docket sheets spanning a decade that far surpasses previous scholarship on this topic. With this dataset, we are able to make a second contribution by introducing novel spatial methods to the study of pro se litigation. We began by extracting addresses of nonprisoner pro se litigants from these federal dockets. We then geolocated these addresses and intersected that information with demographic, economic, and social data drawn from the U.S. Census Bureau. This approach allows us to describe where pro se litigants live and what kind of communities they inhabit. We can see whether they and their neighbors are more likely to be poor or rich, whether the area is urban or rural, the level of educational attainment of residents, the racial composition of the area, and a host of other revealing factors. To be sure, our indirect approach has limitations, but it also has advantages over survey methods where people might misremember, misrepresent, or simply not respond.

Theoretical insights based on critical cartography paired with this new dataset and new methodology allow us to develop new insights about unrepresented litigants in the federal courts. As such, this Article makes another contribution by drawing a fresh portrait of federal pro se litigants that dispels many dominant assumptions and reveals new and unexpected complexities. Our empirical analysis yields three headline findings.

First, our analysis suggests that most pro se litigants are profoundly ordinary. Typically, they do not hail from either the wealthiest or the poorest neighborhoods. Instead, their neighborhoods represent the middle class, with a few outliers that match the distribution of the population. Similarly, pro se litigants are located in communities whose education levels, age, and gender earnings ratios largely mirror the rest of the general population. Overall, our findings present pro se litigants as a radically democratic element in federal courts. They, perhaps more than any other type of litigant, put federal judges, court staff, and lawyers in contact with a surprisingly representative sample of the general public. The communities where pro se litigants live mirror the United States as a whole.

Second, even after accounting for population and income, pro se litigants are more likely to reside in communities that are not homogeneously white. Though often located close to federal courthouses and in metropolitan areas with lawyers nearby, these pro se litigants seem unable to find representation, perhaps because of a discounting of their narratives. This finding, then, provides additional reasons for alarm at the failure of the legal profession and our civil legal system to respond to the legal needs of minority communities.

Third, numerous rural communities feature fewer pro se litigants than expected. 0 Also, while pro se plaintiffs are the norm elsewhere, numerous rural communities have far more pro se defendants than plaintiffs. Our data highlight often-overlooked rural communities and their difficulties in accessing distant federal courthouses, not to mention that legal representation is increasingly difficult to obtain in rural America.

These three primary findings deepen and complicate the conventional narrative on pro se litigants and provide new impetus for doctrinal and policy debates about how courts and Congress can respond to self-represented litigants. To ensure that federal courts are meaningfully open to those who cannot afford or otherwise acquire counsel, the legal profession needs to know more about who is litigating in these courts pro se. We need to move past the debunked commentary that there is a tidal wave of federal pro se litigants 1 and focus on learning more about who these pro se litigants are and what neighborhoods they come from.

To do so, this Article proceeds in four parts. Part I contextualizes our inquiry by painting the necessary backdrop: namely, the conventional wisdom among lawyers and academics that there has been a dramatic and problematic increase in the number and proportion of pro se litigants in federal court over the last few decades. With that context in mind, Part II describes our empirical strategy and emphasizes its limitations. Part III lays out our findings with the aid of maps of federal pro se litigants. Finally, Part IV returns to the debates laid out at the start of the Article, this time equipped with our findings. There, we explain how geographic insights can help orient judges, lawyers, and academics in the ongoing debate about how the federal courts should respond to unrepresented litigants.

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We hope that this Article opens up new lines of inquiry for our field and the rest of legal academia. For proceduralists, our findings suggest we should further explore and interrogate the ways lawyers and paralegals act as gatekeepers for would-be plaintiffs in the federal system and the particular circumstances of litigants in rural areas. This Article also should spur more research on the geographic distribution of unrepresented litigants in other systems in American civil litigation, like state, tribal, and territorial courts.

We also believe our findings can inform how these same scholars--and perhaps more importantly, how judges and lawyers--conceptualize various access-to-justice initiatives, including how courts should structure resources for these litigants, like forms, handbooks, and help desks.

Beyond the particular context of federal civil litigation, critical cartographies can help map legal landscapes in other fields and provide generative insights and foundations to challenge the received wisdom in legal academia.

Professor of Law, The University of Oklahoma College of Law.

Assistant Professor of Law, The University of Florida Levin College of Law.