Episode Transcript
[00:00:00] Speaker A: Imagine a justice system built on rigorous evidence, not gut instincts or educated guesses about what works and what doesn't.
More people could access the civil justice they deserve.
The criminal justice system could be smaller, more effective and more humane.
The Access to Justice Lab here at Harvard Law School is producing that needed evidence. And this podcast is about the challenge of transforming law into an evidence based field.
I'm your host, Jim Greiner, and this is Proof Over Precedent.
This week we're bringing you a student voice.
[00:00:38] Speaker B: Hi, Laura.
[00:00:40] Speaker C: Hi, Michael. How are you doing?
[00:00:41] Speaker B: I'm good, I'm good. I guess we should introduce ourselves, right?
[00:00:45] Speaker C: Sure. So I'm Laura Aquino. I'm an El student at the Harvard Law School and I'm interested in gender economics.
[00:00:52] Speaker B: That's amazing.
I'm Michael Pusick. I'm a second year JD student at Harvard Law School and I'm interested in immigration and law.
Laura, you. You wrote an amazing blog post recently specifically talking about the significant gender gap in right to legal representation. Can you break that down for us a little bit? Just tell us what it's about?
[00:01:18] Speaker C: Yeah, sure.
So the U.S. constitution guarantees legal counsel for people in serious criminal cases.
And historically, well, we know those cases involve men most of the time.
But when it comes to most of the civil cases, like custody disputes, evictions or restraining orders in domestic violence cases, there is no constitutional right to state provided legal counsel, even though these are often the cases that affect women the most. And these aren't just paperwork cases. They are about keeping a home, staying with your kids, or making sure you are safe.
So we are talking about life changing cases.
So when we have a system where criminal cases get a guaranteed lawyer but civil cases don't, that creates a real gender imbalance in who gets legal help. And women, especially those who are disadvantaged, face the consequences of these disparities.
At the end, they are going to be more likely to be involved in those types of legal disputes and less likely to afford a lawyer compared to men.
[00:02:22] Speaker B: That's so interesting. You know, I'd always known that, you know, we have a right to counsel for criminal charges, but not for civil charges. But I think of civil charges as like, you know, like frivolous suits. I hadn't thought about it. In terms of evictions and domestic abuse cases and you know, family court and child separation, what do you think is driving at this? Is it just an oversight or do you think there's something deeper going on?
[00:02:48] Speaker C: I think it's something deeper than that. I think in my blog post, which summarizes the gender of Gideon article by legal scholars. Saved and Steinberg. I mentioned there in the article that the legal system has historically prioritized certain rights over women's rights.
These authors argue specifically that the system has prioritized rights with a male dominated view of what constitutes a serious legal issue.
So, in this case, for example, criminal cases, which, as I said, the right to counsel is guaranteed, these cases have been viewed as more critical. While civil cases, many of which have a huge impact on economic and personal security of women, all of those cases have been systematically undervalued.
So I guess we have to ask, why are some civic cases considered less important?
Well, in criminal cases, I guess we recognize that a person's freedom is on the line and we provide counsel. But in civil cases, when it's about people's home or people's homes, families and safety, why is not that treated with the same seriousness?
I'm sure that if we were to do a survey and ask people what they value more, having the freedom to live their life or having custody of their children, I think the answers will really surprise us.
I'm sure that some people would say freedom anyway, but I'm sure that a fair number would choose their children over the freedom. Actually, maybe that would be a very interesting research question.
But anyway, in civil cases, when it's about people's homes, families and safety, it doesn't seem to carry the same weight as criminal cases that focus on individual freedom. And I'm not sure that this is what people and citizens would actually prioritize.
So maybe the legal system is reflecting the priorities of only a segment of the population.
[00:04:45] Speaker B: Yeah, that sounds right to me. I mean, Professor Grinder talks about when he teaches this case, he asks, like, parents, you know, how many years would you spend in prison to retain custody of your children?
And they say, 10. That makes sense to me. Like, you know, it's not clear to me that the worst thing that can happen to you is end up in prison. I think losing custody of your kids might be.
But this distortion is not just within the legal system. Right. There's other factors contributing to the gap.
[00:05:16] Speaker C: Yeah, of course.
I guess when we're talking about women, there are several factors at play.
For instance, as we know, women bear caregiving responsibilities in a disproportionate way. And these responsibilities often limit their financial resources, time, and ability to navigate legal proceedings effectively.
Also, the gender gap puts women at a financial disadvantage, and this makes it harder for them to afford legal representation. Even if they understand their legal rights. Maybe they lack the resources, the economic resources to defend them properly.
Then there are also biases within the judicial system and very well documented biases. For example, some judges still hold stereotypical views about women's roles, especially in cases in involving custody, eviction, or financial matters.
All of these combined barriers reinforce existing inequalities and make it even more difficult for women to assert their legal rights.
[00:06:19] Speaker B: Can you say more within the legal system? Like, for cases like custody, eviction, and financial matters, how are those civil cases different for men and women?
[00:06:30] Speaker C: Well, I guess family law is a good example of where women bear the burden in a disproportionate way.
For instance, in cases involving custody or termination of parental rights, mothers are often at a disadvantage.
For instance, research shows that mothers represent around 78 to 87% of the defendants in termination of parental rights cases.
Also, Dorothy Roberts 2001 book highlights that black women are overrepresented in child welfare proceedings, which shows how gender and race also intersects in these legal areas, too.
Eviction cases are also another area when women are more likely to be the ones at risk.
Students in cities like Baltimore or Milwaukee have found that women represent the majority of tenants brought to court for eviction. In fact, black women face eviction at rates 2.5 times higher than black men.
I guess the consequences of eviction are severe. Mothers who experience eviction, for instance, face greater financial hardship, higher rates of depression, and worse health outcome for both themselves and their children.
These issues really disrupt their ability to maintain a stable home and care for their families. Then at the last, the authors talk about debt collection lawsuits which are on the rise for those cases. Women, particular women of color, are more likely to be involved in this type of cases, and they often show up to court without legal representation. And here defects are also significant. Some of the consequences are wage garnishment, a long term financial instability.
And this only exacerbates the financial vulnerabilities that many women face.
[00:08:23] Speaker B: This is so clearly such a huge problem. I never thought about the fact that, you know, 87% of defendants in parental termination rights are women. And you know, at the moment where they're potentially losing custody of their child permanently, they don't have a lawyer. Like, they don't have someone to kind of help them navigate the situation.
Tell me what's going on. There must be something. Are there any initiatives or programs in place to address these disparities and give more support to women in civil cases?
[00:08:53] Speaker C: Yeah, there have been a few positive steps. Some states, for example, have started pilot programs to provide legal counsel in Certain civil cases, but those for child custody disputes and some orders for domestic violence victims. So it's very limited.
But overall, we still don't have a nationwide right to legal representation in civil cases.
And I think a big issue is that courts don't systematically collect demographic data on who's involved in these cases. So we don't even have a clear picture of how gender affects the outcomes of civil cases.
[00:09:31] Speaker B: Have there been any studies on this, like, on how legal representation impacts civil cases?
Do we know what those studies have shown?
[00:09:41] Speaker C: There have been some studies on the impact of having a lawyer in cases like eviction, but some studies show that having legal representation leads to better outcomes, but others point out that it really depends on factors like the quality of legal aid or the complexity of the case.
So there is ambiguity in the results.
But I think also here's a bigger issue. None of these studies really dive into the gender defects of legal representations.
So since women are more likely to face civil legal issues, we need to understand how legal representation specifically impacts them.
And none of these studies talk about gender. And without that, it's harder to push for changes that will help address women's unique vulnerabilities in the legal system.
[00:10:33] Speaker B: That's interesting. So. So what you're saying is a lot of the studies in this area don't account for gender as unique factor, even though, you know, they're dealing with mostly women defendants. Is that right? Like. So for, like, housing court?
[00:10:48] Speaker C: Yeah, yeah, exactly.
[00:10:49] Speaker B: That's interesting. That's surprising that the authors wouldn't remark upon the fact that the vast majority of defendants have, you know, this common trait, that they're women.
And I wonder what explanatory factor that has, like, you know, do women or men fare better without a lawyer within.
Within legal systems, and. And how much effect that has. What would it look like to incorporate gender as, like, an explanatory factor in.
In these studies?
[00:11:18] Speaker C: Oh, that. That's a good question.
I guess it will be interesting to compare first to have just demographic data on cases, because I guess all of the cases that I explained to you, like, the family law cases and everything, it's like the authors of the gender of Gideon, they are kind of inferring this, and, like, the inferences are very good, but still, we don't have, like, hard data on that. So I guess just with the demographics, like, just collecting that, and I guess, like, it could be good just to compare, like, having that, then being able to compare how women and men are being represented in different ways. I guess that's how gender would look.
[00:12:12] Speaker B: If we incorporate something that's really interesting.
I mean, obviously the first thing is really gaining a robust image of what we're dealing with and getting just even basic data on gender in some of these cases.
I wonder if authors of past studies have already studied this or collected demographics data and the data is already there for someone to do analysis on.
But turning from understanding to kind of solving the problem.
If you were a dictator and you could design any solution, what would it look like? What would you do?
[00:12:45] Speaker C: Well, I guess for starters, the authors suggest that expanding the right to legal counsel in civil cases, especially those where women face life altering consequences, could be a key step.
But beyond that, I guess we also need to fund more research to better understand how legal representation impacts outcomes. Just as we were talking about, just because the benefits aren't always immediately clear like the benefits of legal representation.
And there may also be other solutions like simplifying the judicial process to make it more accessible for non lawyers.
I guess we cannot assume that all women are going to be able to afford or to have access to legal representation.
So another solution could be to provide support for individuals or women representing themselves so they can defend their cases more effectively.
And it's also crucial to consider training for judges to raise awareness and sensitize them to the specific challenges that women face in these cases. I guess all of these combined efforts could really help level the playing field.
[00:13:48] Speaker B: Yeah, it makes a lot of sense. So broadly improving rates of representation for women in legal system and making sure they have a lawyer, but then also making legal system a little bit more friendly for folks who don't have a lawyer by training judges and by just reducing procedure.
[00:14:06] Speaker C: Yeah, exactly.
[00:14:07] Speaker B: That's great.
If you had to distill all this into one message to send to lawmakers and the public, what would it be?
[00:14:15] Speaker C: I guess my message is the same as the authors of the Gender of Gideon and it's that the right to legal representation shouldn't depend on whether a case is criminal or civil. It should depend on what's at stake. And when someone's home, family or safety is on the line, they deserve a lawyer.
So expanding access to legal representation isn't just about fairness. Fairness is about justice.
[00:14:38] Speaker B: That's amazing.
Laura. Thank you so much for taking the time. And thanks for writing this post.
[00:14:43] Speaker C: And thank you so much for having me.
[00:14:45] Speaker A: Michael, Proof Over Precedent is a production of the Access to Justice Lab at Harvard Law School.
Views expressed in student podcasts are not necessarily those of the A J Lab.
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[00:15:11] Speaker D: Every IRB has a scope of authority, and that's why the regulations were written in such a way so that you know who is the subject, what is the research, what is not the research, what is not the subject. So that you have a boundary to provide your review.
And what you're describing is where that boundary is getting a little bit blurred. Because without that clear boundary, the entirety of the world might be subject to oversight.
