We talk about the access-to-justice gap a lot, as if it’s a thing that definitely exists and that we can measure. But I’ve been trying to get my head around the actual size of the access-to-justice gap for years and I still don’t really know what to make of it.
Let’s take a look at the access-to-justice report that seems to be most frequently cited, from the Legal Services Corporation. LSC is the largest funder of legal aid for low-income Americans. LSC has done four reports on the access-to-justice gap. In 2005 and 2009 it found that about 80% of low-income Americans’ civil legal issues went unaddressed. In 2017 the number grew to 86%. And in its 2022 report LSC found that the access-to-justice gap had expanded to a jaw-dropping 92%.
Which sounds, well, alarming. What good is the legal system if only 8% of people can use it?
But before we burn down the legal system (n.b.: I’m not necessarily saying we shouldn’t burn down the legal system), let’s take a closer look at that number.
Here is the LSC’s formula from the 2022 report:
Importantly, problems not receiving any legal help includes people who did not try to get any. Here is how the LSC defines it: “The subset of problems for which they did not seek any legal help.”
The LSC found 2,674 “substantial” legal problems. Of those, people sought legal help (i.e., a lawyer) for about 25%, or about 668 problems (the percentage varies from 13–41% depending on the type of legal problem). That leaves about 2006 problems for which people did not seek legal help. Of the problems for which people did seek legal help, they did not get all the help they needed 66% of the time, or for about 441 problems.
(The raw numbers were not included in the report that I could find, so I am working from LSC’s rounded percentages. That means my calculation of the number of problems represented by those percentages could be off by 1 or 2.)
Using LSC’s formula, that means adding the number of problems for which people did not seek legal help (2006) to the problems for which people did seek legal help but didn’t get the help they needed (441) and dividing by the total (2674).
(2006 + 441) / 2674 = 92%
But wait a sec.
Why include problems for which people did not seek help from a lawyer? Lawyers aren’t the only way to solve legal problems. And what if people just don’t want to hire a lawyer? Is that an access-to-justice problem? This just feels like a different kind of problem than trying to get help from a lawyer and not getting the help you needed.
I assume LSC is arguing that not getting help from a lawyer when you could get help from a lawyer is a kind of justice denied. I get it, but I don’t necessarily agree. Access to lawyers and access to justice are related problems, but they are not the same thing.
If we exclude problems for which people did not seek legal help, the result drops substantially.
441 / 2674 = 17%
And that’s not even going into whether those 441 problems should count as not getting justice. The question LSC asked was “As of today, have you been able to get as much legal help with this issue as you wanted?” It seems like someone who was just unhappy with their lawyer or the result might have answered no, and that’s not necessarily an access-to-justice problem. It could just be a client satisfaction problem.
In the end I’m just confused. 92% is a fundamentally broken legal system. 17% is a problem I can get my head around. But both numbers have a bunch of significant qualifiers, and I suspect the true magnitude of the access-to-justice gap is something else entirely.
Before we go, here is a much clearer number: LSC-funded organizations must turn away half the eligible requests they receive because they don’t have enough resources. In many cases legal aid is the only legal help available to low-income people, so this much is quite clear: LSC needs more funding.