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Rebecca Kunkel
Rutgers Law Library

Rationing Justice in the 21st Century: Technology and Technocracy in the Access to Justice Movement



More than 50 years since the creation of a federal Legal Services Program with the mission to “marshal the forces of law to combat the causes and effects of poverty,” an ever-expanding proportion of the legal needs of the nation’s poor and working classes continue to go unmet.  Awareness of the “justice gap” is widespread among American lawyers, particularly those who see the promotion of access to justice for all as an important priority for the legal profession.  This awareness ought to give rise to inherently political concerns about the state of our national commitments to ideals of justice and equality.   However, such questions have been overshadowed in recent years by a tendency to conflate access to justice with the promotion of self-help technology and other incremental, voluntarist methods of reform.  This paper is my attempt to bring recent approaches to access to justice back into dialog with broader egalitarian concerns.  Part I will describe the origins of the access to justice movement, placing the emergence of the justice gap within the wider context of the history of federally funded legal aid.  While major events in this history have been documented elsewhere, recent proposals to remedy the justice gap frequently gloss over historical circumstances that lead to a marked decline in Legal Services funding beginning in the 1980s.  This inattention continues to obscure the relationship between the justice gap, conservative opposition to federal legal aid, and the larger bipartisan project of welfare retrenchment that took place over the same period.  Part II will analyze the contemporary access to justice movement in light of this history.  I argue that the current of thought focused on narrow, technical adjustments to the courts and legal services providers—which takes both poverty and inadequate levels of public investment in the alleviation of poverty to be immutable facts—reflects acceptance of neoliberalism’s ideological assumptions about the appropriate role of government versus private, voluntary associations in providing for the needs of the poor.  Part III develops this thesis in further detail by analyzing a particular but frequently repeated theme in the literature: that there are efficient technological fixes to the justice gap problem.