An Assessment of Alternative Strategies for Increasing Access to Legal Services

Since the late 1930s, lawyers have argued that their services are not used to the fullest advantage by a large segment of the population. More recently, other concerned groups such as trade unions and consumer organizations also have become convinced that there is an underutilization of lawyers\u27 services, and that it is important to increase access to such services. As a result, attempts have been made to develop alternatives to the traditional methods of providing legal services that to date have proved inadequate in meeting the legal needs of the public. Legal clinics have proliferated, prepaid legal services plans have been inaugurated on a wide scale, and the organized bar has attempted to revitalize its lawyer referral services. All of this has been done, however, without a complete understanding of why people do or do not use lawyers. This Project examines factors said to affect utilization of legal services by analyzing the results of a national survey conducted between 1973 and 1974 by the Special Committee to Survey Legal Needs of the American Bar Association and the American Bar Foundation (ABA-ABF Survey). This analysis reveals that lawyer use depends principally upon three factors—the number of times a person has experienced a legal problem, whether a person owns real property, and whether a person has personal contacts with a lawyer. These findings are then used to evaluate the potential of several alternative legal delivery systems for increasing lawyer use. The Project concludes that closed-panel prepaid plans and legal clinics have the greatest potential for increasing lawyer use, though both may have only a limited impact

Reflections on Judicial ADR and the Multi-Door Courthouse at Twenty: Fait Accompli, Failed Overture, or Fledgling Adulthood?

Published in cooperation with the American Bar Association Section of Dispute Resolutio

What is the Meaning of Plain Meaning

The American approach to construing texts (statutes, regulations, contracts and documents generally) stresses decision through determining the “plain meaning” of the document based on the court’s reading of the text. Where the court finds plain meaning on the face of text, it generally refuses to consider additional contextual information or extrinsic evidence of meaning. Notwithstanding its status as the dominant approach to interpretation, the plain meaning concept has not been well defined or operationalized. Despite judicial confidence in the plain meaning approach, courts have wisely been willing to sidestep it and eschew the rather clear facial meaning of text when doing so would produce bad decisions that undermine the purpose underlying the written instrument or result in disproportionate forfeiture of rights. Unfortunately, these instances tend to be regarded as mere exceptions to an otherwise unquestionable rule rather than a serious indictment of the approach and a brief for reducing undue deference to text, excessive confidence in human ability to read text correctly, and resolution of disputes on the basis of document text alone

Asymmetry and Adequacy in Discovery Incentives: The Discouraging Implications in Haeger v. Goodyear

In this article, Professor Jeffrey Stempel explores the implications the decision in Haeger v. Goodyear Tire & Rubber Co. has for discovery and civil procedure. Professor Stempel argues the troublesome narrative that discovery problems and abuse are largely problems of claimants seeking excessive discovery that is unduly burdensome and costly relative to the case at hand is a significant part of the problem. Since the mid-1970s, the prevailing narrative has blamed discovery seekers more than discovery resisters.In that narrative, discovery problems are largely the problems of plaintiffs that are too unrealistic, sloppy, lazy, or greedy in frequently seeking excessive discovery. Overlooked or dismissed out of hand is the possibility that as much or more discovery abuse is committed by defendants failing to properly respond to valid information requests. This asymmetry unduly favors defendants, as reflected by the travails of the Haeger plaintiffs and counsel. The entire episode should be disturbing to the profession. While wasteful discovery is of course regrettable, it is largely a transparent problem that can be effectively regulated at its source or fixed by money in cases where excessive discovery is permitted. By contrast,the secretion or destruction of relevant information (restrictive discovery abuse) can easily lead to unfair results and a failure of the litigation system to achieve its goals of holding wrongdoers accountable, compensating victims, and creating incentives for better behavior

Hard Battles Over Soft Law: The Troubling Implications of Insurance Industry Attacks on the American Law Institute Restatement of the Law of Liability Insurance

ALI Restatements of the Law have traditionally exerted significant influence over court decisions and the development of the common law. During the past two decades, however, the ALI has seen an upsurge in interest group activity designed to shape or even thwart aspects of the Institute\u27s work. Most recently, the Restatement of the Law of Liability Insurance (RLLI) has been the focus of not only criticism of particular provisions but a concerted effort by members of the insurance industry to demonize the project as a whole and bar use of the document by courts. The vehemence of insurer opposition seems odd in that the RLLI is a mainstream document that leans in favor of insurers on several important issues. Why have insurers been so vehemently opposed to the RLLI? Have previously non-partisan law reform efforts now become afflicted with the same interest group muscle flexing that pervades modern electoral politics? And if so, what are the implications for the future of this aspect of American law? This Article examines not only the background of and debate over the RLLI but also addresses the evolution of special interest group interaction with law reform organizations in order to offer an explanation for the increasing politicization of what historically has been largely non-partisan creation of soft law