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 Griner, and this is Proof Over Precedent.
[00:00:34] Speaker B: So welcome to another episode of Proof Over Precedent. I am your host for today, Jim Griner.
And this, this segment of Proof Over Precedent will be a little bit unusual.
We're going to be talking about a paper that documents a study that we completed in the late 20 teens.
So in sort of the 2017, 2018.
So this one's been completed for a little while and the paper, the corresponding papers have been posted and published for some time, but we thought it was worth it to discuss it because it has some fairly revealing findings on it and it represents what can be done with randomized studies in the law, what can be revealed, what can be studied, what we can learn from such studies. And so in addition, the format of this podcast is going to be a little different from our previous ones.
So the folks who were originally involved in this study, since it is one of our older ones, and in fact the original effort began in 2009, many of the folks who were involved in the study originally have since moved on and are no longer easily contactable.
However, two of the folks that were involved at the time, one of them was a graduate student, joint JD, PhD student in Sociology named Rosanna Summers. And Rosanna is currently a professor at the University of Michigan Law School. And another one was a JD, PhD student in Statistics named Tom Ferris. And Tom is now working for Google.
They will join me as part of this podcast as it goes along. And I had a conversation with them about parts of the study, particularly the data coding and the analysis and some of the interpretation of the results. But because they were not involved in the beginnings of the study, I'm going to talk about that part. And so let me talk about that part. Let's launch right in. What was this study about?
Well, in the narrow sense, this study was an evaluation of a pro bono matching program, meaning a program that matched folks, low income and very low income folks who were seeking divorces with lawyers. And the program was run by the Philadelphia vip, the Volunteers for the Indigent Program. And we'll put its website up on the blog.
And as a note to the podcast and the Philadelphia VIP was a legal services provider, civil legal services provider, whose primary model was not staff based lawyering.
Rather it was to match folks who were seeking lawyers with pro bono attorneys. So it was a volunteer pro bono attorney matching service.
And it did have some staff attorneys on hand to train the volunteer lawyers and to step in in emergencies or in cases in which the volunteer lawyer was, say, unable to complete the representation. But for the most part, most of its work was done via volunteer attorneys who were doing pro bono work.
And the setting for this kit for this study was again divorce. And the background here was that in Philadelphia, a particular judge and the Philadelphia Family Court, so a state court in Philadelphia county that handled divorces, made the very brave decision to, to create a partnership with Philly VIP and with the Access to Justice Lab at the time to study the effect of having a lawyer.
And the Philadelphia court was both brave and extraordinarily helpful because the records of the divorce proceedings were not public. In many instances they are, but in this case in this county they were not. And so the Philly, the Philadelphia Family Court helped enormously by providing access to the records that were necessary for the study.
And the study setup was actually very simple and similar to those that the Access to Justice Lab has completed before. Basically, people called the Philadelphia vip, excuse me, Philly dvip, asking for help in order to initiate divorce proceedings because they wanted to obtain divorces.
And there were more calling and contacting Philly VIP than Philly VIP had the capacity to represent.
And in addition, it was not clear whether attorneys that were recruited via this pro bono matching service, in other words, not folks who specialized in representing low income individuals in divorce proceedings, but rather mostly either generalist family law practitioners or generalist lawyers, just generalist litigators without family law experience, whether they would be effective in helping people get divorces. And so there was over subscription and there was equipoise as far as the knowledge of whether this was an effective program.
And so with the over subscription meaning too many people are calling Philly vip, it was ethical to randomize which of those would receive an effort by Philly VIP to find an attorney and which would not do so. In other words, which Philly VIP would effectively say, I'm sorry, we just don't have the capacity to help you.
For those who were randomized to no such effort by Philly VIP to try to help them match, there were self help materials that were available at a local library called the Jenkins Library in downtown Philadelphia.
And those self help materials consisted of about somewhere between a 60 and 100 page printout which was also available online through initially a non public website. So if you had the website address you could go to it and for a printout or to obtain a PDF and you could go to the, to the library and you could look at the manual to try to help you through the divorce process.
And the idea was that we checked the records again with the the Philadelphia Family Court's enormous assistance to. Oh, excuse me, I'm just checking this out. It was 166 page document that had to be purchased as a whole.
And to give you an idea, the self help packets cost about $20. Around 16. Between 16 and $20. But that was 166 page document. It had the forms that were necessary to file for divorce.
In 2014 the Jenkins Law Library sold 86 of those packets and in 2015 it sold 125. So it gives you an idea of about 100 per year that it's selling.
And, and so that was what the the folks who were randomized to no Philly VIP assistance received.
And after 18 months we checked the files of the Philadelphia Family Court 18 months after randomization to see who had filed in our match group versus our non match group. Again, match means an effort to try to obtain a lawyer versus our non match group means no such effort to try to obtain a matching lawyer. The study population for this study in terms of the number of callers who were eligible and who provided their consent to participate in the study and provided their consent to allow us to obtain their Philadelphia Family Court records consisted of 311 residents of Philadelphia County.
They each completed an interview to see whether they were eligible and to provide consent in addition to provide background information about them.
Because of how badly oversubscribed Philly VIP was, a total of 74 participants were randomized to the match group and the remainder were so around a little over 200 were randomized to the non match group. In other words, Philadelphia VIPs capacity was such that it could provide a match or an effort to try to find a match more accurately to only about 15% of those who called. And in terms of what the participant looked like, participants looked like, excuse me. The extensive interview that was available at the beginning of the study showed that the I guess what we call the modal study participant meaning the most common type of study participant was a middle aged English speaking African American woman who had been married about 10 years and no longer lived with her spouse. Around 80% had were female in this study and they were poor the majority had zero reported zero income at all. 95% earned less than $23,000 annually.
2/3 received some kind of public support, public income support, so some kind of benefits.
Almost all were under retirement age, but only 35% of them were employed, so 2/3 of them unemployed. And median income for the third that were employed, the most financially secure of those who were in the study was around $12,000 per year.
To provide an imperfect comparison for median household income at the in the poorest Philadelphia neighborhoods at the time was higher than that was $15,000, $15,700.
About a third of the of the participants were unbanked.
And 3/4 of the sample, including that third, 3/4 of that sample either did not have a bank account or had less than $500. In the bank account, in the bank account at the time. So either had no bank account or less than $500.
That's three quarters of the sample. So this was a very poor study population that was calling in and that wanted to get divorces.
I mention all this not just to provide an idea of what the participants looked like, but also to emphasize the substantive simplicity of this legal proceeding. And that's going to become a theme later on.
What do I mean by that? I mean that for this study, the only legal issue for the overwhelming majority of our participants was simply getting the divorce.
In the United States, there is only one contract that it is impossible to dissolve with the consent of all parties to that contract. In other words, in every other contractual situation, the parties can decide they're just not going to have a contract anymore as long as they all agree and they memorialize it properly if they have to.
They don't need to do anything else. They can just decide they're not going to have a contract anymore.
However, in marriage, we require participants in the contract to sue each other in order to get out of it.
And so the question became, well, what are the legal issues in such a lawsuit?
And in some states, these lawsuits can be substantively complicated. There can be issues of child custody, there can be issues of spousal support, there can be issues of alimony, there can be issues of child support, there can be issues of domestic violence. And all of those things can be litigated in the context of a divorce in Pennsylvania at this time, at least with respect to these participants, almost none. I mean, by almost, I mean really almost none of those were at issue. And we saw none of them at issue in our case files.
The reason was because Pennsylvania law at the time allowed an individual to file for a div and then file for separate in a separate legal proceeding for any of the other things that I mentioned. In other words, one could separate out a case filing for spousal support and a case filing for child support and a case filing for domestic violence, relief of, you know, restraining order or something like that, and have separate legal proceedings for each of those things and have a separate legal proceeding for a divorce. So the idea was that that empowered people who are seeking those kinds of remedies from the court system to pick and choose what they wanted.
And what that meant was that with respect to our study population, all they were really after was the piece of paper. What it is, what is it that they wanted? They wanted not to be married anymore.
And when we asked them what were the potential grounds for the divorce, why is it that they wanted to do it?
80% of them out of the 311. So around 250 or more out of the 311 identified either that they had been separated from their spouses for over two years or mutual consent. In other words, that the spouse, the other spouse agreed that there should no longer be a marriage.
So in 80% of these there was nothing really at issue. It wasn't as though there was one spouse else who really wanted to stay married.
These were no longer functional marriages in any way.
For the others, by the way, 42 of the of the 311.
So these are the others that didn't cite either two year separation or mutual consent.
42 cited indignities, meaning that there had been indignities committed within the marriage of some kind. Eight cited desertion, meaning that the other spouse had simply disappeared, although perhaps not for a full two years.
And 15 cited other upon textual analysis of textual comments by the Philadelphia VIP intake staff. That usually meant domestic violence and we usually meant there was some kind of domestic violence. So domestic violence was only about 5, less than 5% of these cases.
Again, that's not to suggest that domestic violence is uncommon. It's rather that they just. Domestic violence was not as much of an issue for this study population. Instead, the overwhelming majority of this study population sought divorce because the marriage was simply no longer existent. Again, there had been two year separation or there had been mutual consent to dissolving. So back to the basic question. What was our basic study outcome? We looked about 18 months after the intake, after enrollment and consent for each participant to see whether they had been able to file, get to the courthouse, have they been able to file for a divorce?
And of the people who had filed within 18 months. We then look 36 months after intake to see whether they had succeeded. So immediately you see the timeline for this study.
The study we randomized for about two years from about January of 2011 to about January of 2013.
And then we had to wait three years after that before we could. From. From January of 2013 before we could obtain records. And this is typical in an RCT where you randomize for a couple of years, but then you have to wait a long time for outcomes to develop again. The outcome variables in these files were really simple. It was just two outcomes. Were you able to get to the courthouse? And if you were able to get to the courthouse, were you able to get to the end of the process to succeed in getting a divorce?
And so we analyzed those outcome variables in the interview with Tom and Rosanna Will talk about the results. Let me just provide a little bit more background on two additional aspects of the study.
One of them was with respect to the procedures that had to be. That a litigant had to complete in order to obtain a divorce.
And this will be, this will be important because this is what we think was the primary culprit. In other words, the primary explanation for the study.
For the study results. As we will discuss, as, as Tom and Rosanna will discuss with me this, there was an enormous difference. There was an absolutely huge difference in the success rates, as, between the match group and the non match group, the Philly VIP match group and the Philly VIP no match group. And, and the conversation will.
Will talk about that, about how the magnitude of that difference.
And we think that the primary culprit for this humongous difference was the procedures that one had to go through in order to obtain a divorce in Philadelphia county at this time. Some of those procedures came from the standard Philadelphia rules of civil procedure.
Some of them came from statewide specialized rules of civil procedure for family cases and divorce cases. Some of those came from the Philadelphia court formally. In other words, it said, these are how we're going to do things and announce it up front. And then some of them were sort of unwritten rules or understandings of how things operated.
But here are some of the features that, that characterize the process. I'm not going to walk through it, you know, entirely step by step, because it would take a very long time. It would take, you know, probably 25 to 30 minutes to get through it. That was the problem.
But here are some of the features of that process. There were multiple waiting periods, even for a divorce, premised on either or both of a two year separation and both parties affirmative desire to end the marriage. In other words, even if both were present, there were still multiple waiting periods where basically nothing would happen and they were just waiting for time to pass.
And some of those waiting periods were either formally or informally justified on the grounds that this was to give potential divorce participants, or in other words people in marriages who are going to dissolve their marriages a chance to think again.
It is a little bit odd that one would give them that chance when there's already been a two year separation or when both parties have affirmatively indicated their desire to end the marriage. But nevertheless, there it was. There were multiple waiting periods.
There were no at this time statewide court approved pro se divorce forms available on the court's website. So there were some divorce forms that were available but there were no statewide court approved ones and they weren't available on the court's website.
There were some forms in again the Jenkins Law Library manual, but they weren't on the website. They were difficult and what was available were difficult to find. We actually have a podcast on, on court websites that Spencer Team is going to provide or as or perhaps has already provided that we will link to. And in fact this court's website was showed many of those problems. At the time there was no self help center in the courthouse or anywhere else providing assistance in divorce and divorce matters. There was a self help center but it didn't provide assistance in simple divorces.
And we never really found out why that was true, but we suspect it was because there were simply too many litigants who wanted those divorces and so would have flooded the self help center. I'm not sure that's great justification, but we think that was probably what was going on.
There were, there was an, there was a lot of bizarrely lawyerly and inaccessible even to lawyers doc of termic jargon in these procedures. And I think my favorite of these was that at some point a litigant had to file in order to get a divorce. Something called a precipice to trans the record to the prothonatory. I actually thought that was prothonotary but apparently in Pennsylvania it's pronounced prothonotory.
And that by the way was a filing that occurred late in the divorce proceeding that just basically said hey, your court, we're ready to go. Can you please proceed and go ahead and move forward.
And then in what, in the, in the, the paper we, we called the coup de grace of these procedural features.
At one point in the proceeding a pro Se divorced litigant had to find a typewriter, an actual old fashioned typewriter, to fill out flawlessly a required form that was obtainable only in paper form from the court system itself.
If you were a lawyer, everybody knew that there was a link that you could go to that was not searchable, where if you had a color printer, you could print out the form, but there was a color seal that had to be available in again color, in a color format on paper.
There was no e filing at this time and you had to obtain that form from the court and then you had to fill it, type, type in certain information flawlessly. You could not use whiteout and you could not handwrite the information.
And several lawyers at around this time reported that they had pro se people who they were helping out informally, who had attempts to file the form either handwritten or via a photocopy, black and white photocopy. The court rejected those filings.
The court subsequently told us that they were not aware of any such requirement and that the in fact, there wasn't a requirement to use a typewriter and a handwritten form was fine. But that came as news to many of the lawyers practicing at the time. They thought that the court required a perfect printout and a color format with the seal.
And again reported that many of their many pro se litigants that they were helping out at the time informally, sort of informally advising, had forms rejected.
And so there was a typewriter requirement. And so that was a lot of procedure that is a bit just difficult to justify by reference to some substantive legal goal. As you know, you're trying to achieve justice in the divorce or something. And therefore you need a typewriter or you need multiple waiting periods.
We had trouble linking those procedural requirements to the requirements of things like a precipice to transmit the record to the prothonatory, or at least calling the document that you might need to need the legal filing, but in terms of calling it that. Meanwhile, what did this procedure look like generally?
Well, generally it was just pushing paper.
Of the dozens upon dozens of court filings that we found, and again, the precise numbers will be coming, we found in our case files evidence of only four motions that would have been contested. So motions other than something like an extent, you know, motion for extension of time or something like that, four motions in the case filings, none of which the court ever ruled on.
And so these motions were basically filed and then resolved informally without the need for a court ruling.
There was only one live hearing in these dozens upon dozens of cases. And so there was never any need for. For every other case, there was no need for a court appearance.
It was just pushing paper at the right time, and that was the entire proceeding.
And a lot of these details, by the way, are available on the two papers that we posted, one of which we submitted for publication, and it was published, and another one was posted on. A longer version, was posted on ssrm. And so both of those links will be available, but there was just nothing there.
As I mentioned, there was a single live court hearing. In those case filings, there were only four, what were called masters reports, meaning effort, you know, reports by a master to a judge that says, this is what should happen in this case. This is what I recommend. In other words, in all of the other cases, it was simple enough to go forward without these three. Here is three contested motions that were filed, none of which the court ever ruled upon.
In only 7 of the cases was there any kind of property or income stream that had to be divided.
So, again, divorce, one of the things that can happen in divorce is not just getting the piece of paper, but you can divide assets or you can divide income streams.
And so of the dozens or dozens of case files that we reviewed, you know, question became, well, was, you know, was that ever an issue? How often was that an issue? And it was only an issue in seven of them.
And for those seven, it was either an order or a settlement. It was about half and half, so about four and four in one category and three or the other.
But there was never. There was only one live hearing. And again, so this was never.
And there was never. In other words, there was never any particular.
These were not litigious or contested or acrimonious cases. It was just pushing paper.
And in the overwhelming majority of the case filings that we found, the opposing spouse did not have a lawyer.
So again, this was sort of pro se on both. Both sides just trying to get the paperwork in order to get the divorce. And so reason why I'm emphasizing all of that is because, is to say that with the simplicity of this litigation, this should have been an area in which, meaning the simplicity of the substantive issues.
There were no substantive issues. That's the point.
It was simply, let's can we get a divorce or can we not get a divorce? And both parties typically wanted the divorce, or both parties had separated for two years.
And so if anything should have been simple to do on your own, this was it.
And if any. And. And by simple here, that translates into hypothesis that there should not have been an enormous difference between pro se's ability to get through this system and a lawyer's ability to get through this system, or at least this system should be such that there was little difference.
And in fact, it wasn't that way. And that's why I went through the various aspects of the Philly Philadelphia Delphia Family Court's procedures that it, in some part it had to use, and some part it imposed these procedures on its own.
And the result was a minefield. And I was about to say unusual minefield, but of course, it's probably not an unusual minefield. This probably does characterize many of the types of procedures that are used in family courts around the country.
We emphasize one other aspect of the study, which was that, to our surprise, not all of the case filings that we found occurred in Philadelphia.
So there was a legal requirement, a doctrine called venue, that under Philadelphia statute, if you lived in Philadelphia county and you wanted to file for divorce, you had to file in Philadelphia County.
If you filed somewhere else and the opposing spouse, meaning the person on the other side, disputed venue and said you filed in the wrong place, you filed in the wrong county, the case would be dismissed and you'd have to go back and refile. And that could be costly. There was a $328.98 filing fee, so around $330 filing fee that was applicable in Philadelphia county and other counties also had filing fees. So that if you filed in the wrong county and, and the opposing, the opposing spouse said, file a motion with the court saying, hey, you filed in the wrong county, the case should be dismissed, then the case would be dismissed and you'd lose your filing fee.
So we thought that the, that most people would, if they were going to file for divorce, they would file in Philadelphia County.
In fact, not all of them did.
It turned out that it was well known at the time that there were two counties up in the northwestern portion of Pennsylvania, one called Potter and one called Cameron, that were extraordinarily rural counties. So Potter at the time and still is about the fifth least populous county of Pennsylvania, 67 counties currently, as of the 2020 census, population is less than 20,000.
At the time, I think it was a little bit less than that.
And a Cameron county was the least populous county of Pennsylvania, 67 counties. And the 2020 census, it had a population of less than 5,000 people.
Both of these two counties, their seats are about 4 hour and 45 minute drive from Philadelphia downtown.
And so the question was, why in the world would people file for divorces? Philadelphia residents file for divorces in Potter and in Cameron County, Pennsyl.
And it turned out that the reason was because it was well known that these two counties basically ran county official divorce mills.
What that means was that they had low filing fees at the time they were 84 and $86.
They would process a divorce entirely by mail.
And so you could pay your filing fee.
It was again, you know, much cheaper to file there in either Cameron or Potter than in Philadelphia. Again, the Philadelphia filing fee was around $330.
Of course, Philadelphia had what's called an informa pauperis procedure, meaning you could ask the court to waive the filing fee, but that required additional paperwork that, that was, that could be difficult to accumulate and to complete.
And so for under $100, you could mail your divorce papers out to either Cameron or Potter county and they had much simpler procedures and then you could try to get your divorce that way. And it turned out that a fair number of our non match group litigants in fact filed for divorce out in Potter and Cameron counties. And so we had to go review Potter and Cameron county court records. And blessedly, both Potter and Cameron county court systems were willing to cooperate with us and provide the data.
So now I'm going to discuss a few things that would make perhaps the most sense to put in after we've discussed the results of done the interview or portions the interview with Tom and Rosanna.
So what do we make of all this now that we have the study results and we've shown that there are these enormous differences between the match group and the non match group, that both the effort to find a lawyer made an enormous difference. In the presence of a lawyer made an enormous difference. Should we celebrate these results or should we be depressed by them?
Well, certainly if you're a civil legal services provider, this is a great result. It's demonstrating that, you know, free civil legal services providers, this is a dream result in terms of a justification for applications for funding. You know, you're showing that you're making an enormous difference.
And look, and that your services are ineffective, excuse me, are effective, that your services are effective. And so that's kind of a dream result for civil legal services provider to say, hey funders, you should give me more money, I can produce the goods.
I think for everyone else this is an extraordinarily depressing finding and not one that we should celebrate, one that we should lament.
The reason for that is that it is demonstrating just how inaccessible the court system is for to. To pro se litigants general generally, even in the simplest possible legal proceeding, to reiterate, this was a. These were folks who were trying to get divorces. They were dirt poor. They had virtually no assets to to distribute. Only 7 of the divorce cases involved any kind of asset distribution at all.
There were no income streams to speak of because of the way that Philadelphia allowed the splitting of legal proceedings into different categories. Divorce was different, could be different and was different from custody, could be different and was different from spousal support, child support, domestic violence, restraint, etc.
This was the simplest possible sort of legal proceeding. It had only one goal, dissolution of a marriage. That was it.
There were three contested motions, none of which were ever ruled upon. In all of our dozens of cases, there was only one live hearing that was ever necessary. This was the simplest possible legal proceeding with only one goal. And yet pro se litigants could not get through it.
They couldn't even initiate. That was the bizarre thing. If they were able to get to the courthouse, they were typically able to complete the process. But they were so deterred from completing the pro from initiating the process that there was just an enormous effect.
And that in one of the most liberal thinking and progressive counties in the country, it was the procedures in the family court at that time were still so off putting that many residents went to counties in northwestern portions of the state where honestly I suspect that if I took a Cal census, there would be more cows than people. I mean, these were extraordinarily rural places.
In order to obtain lower filing fees and some more simplified procedures.
At the time, the conference of state supreme court justices had voted to establish an aspirational goal of 100% access to justice.
And the question became how you measured access to justice. And we suggest in the Access justice lab one way to do it is to randomize whether there is legal assistance, especially a lawyer, traditional attorney client relationship versus no legal assistance. And if there is full access to justice of a system, then the lawyer shouldn't make that much of a difference.
And even in this simplest of proceedings with the simplest most possible goals, there was an enormous difference. And this suggests that we are hell and far gone from anything close to 100% access.
It also these results also suggest something about elite of what lawyers are for, what purpose they serve, at least in some proceedings.
Here one view of what lawyers are for is kind to lawyers and kind to court systems. It says that the law, because it is attempting to law, is attempting to produce justice, is substantively complex and that's just the way it has to be.
Justice is complex, and therefore the law has to be complex.
And so that's just. There's just nothing we can do about that because we live in a complicated world. And so lawyers are necessary to mediate that substantive complexity. That's what lawyers are for. There's another view of the world that says that actually lawyers aren't really that necessary because justice isn't all that complex in terms of substantive goals.
The issue that lawyers address is procedural complexity that is difficult to justify by reference to substantial goals.
In other words, the procedures are a mess. And lawyers and judges create the procedures, whether they do so intentionally in order to exclude people who don't have lawyers, maybe, maybe not. Maybe it's just inattention, maybe it's just misguidedness, who knows? But that the procedures are complex in a way that is difficult to link to substantive goals, and that that's what lawyers do, is that they address that procedural complexity.
This study is evidence for the second camp, for the procedural complexity that is difficult to justify by reference to study to substantive goals.
Because, again, the substantive goals were extraordinarily simple. Here of the litigants, they, you know, I mean, to put it in the terms that were. That was.
Were the Philly VIP reported to us that one litigant said, this is a direct quote.
The. The goal was, I didn't want. I don't want to be married to that bum anymore.
That's the quote. In other words, that was what most of the litigants were seeking is just an end to their marriages. And that was it and nothing else. And that should be a simple legal proceeding.
But it was not.
And as a result, the lawyers were extraordinarily effective, and that should depress us. That should be a call to action.
Final background here is that this speaks to a set of issues that go back to the very intellectual foundations of the access to justice movement.
In a trio of cases that were decided in the context of filing fees, body versus Connecticut, United States versus krass, and ortwine versus schwab. These were decided in the early 1970s, 1971, 1973, and 1973.
The Supreme Court adjudicated the legality of filing fees. And it basically said that mandatory filing fees without an IFP process. In other words, if you can't pay these filing fees, you don't get to file in court.
And there were many such situations in courts at the time, in the early 1970s, most of the time. Now, if a court imposes a filing fee, it has an informa pauperous process. But at the time it didn't.
Many courts did not. And the Supreme Court had to adjudicate the legality of a mandatory filing fees without an IFP process.
And what it said in the combination of those three cases was that it is okay under the federal constitution, it may not be a great idea, but it's constitutional to impose a mandatory filing fee without an IFP process as long as no constitutional right is at stake.
If a constitutional right is at stake, then you have to have an IFP process.
And the instance in which the Supreme Court litigated and adjudicated that a constitutional right was at stake and therefore you couldn't have a filing fee without an IFP process was divorce.
In other words, divorce was special.
It had to be pro se accessible in the sense of indigent accessible. I shouldn't say pro se accessible. It had to be indigent accessible.
And so one can easily analogize a court ruling that says that there has to be indigent accessibility for divorces to one that says there has to be pro se accessibility.
In which case we think that results like this should really depress us because the court system has known for some time the divorce is special and it still has been unable to respond. And to produce a system that pro se litigants can successfully negotiate.
It also demonstrates that it is no answer to say, well, wait a minute, there has to be pro se accessibility because we have so many pro se litigants.
Well, how many more would there be if you had created a pro se accessible system? In other words, you may have a lot of pro se litigants, but you may court system should have a whole lot more than you have if you had created an accessible system.
I want to reemphasize that none of this is to indict the Philadelphia Family Court directly because in some sense it was playing cards that it was dealt. It could not control some of the rules of civil procedure that it had to, that it had to enforce.
It probably could, didn't have to impose an informal requirement of a typewriter, but it didn't need to.
But it certainly had to enforce the rules of civil procedure that were imposed on it.
And it had to operate within other, other other constraints, including, you know, far, far too sparse budgets.
And so none of the, it's not, it's not possible to point the finger at one place.
Everybody has to take responsibility. Lots of different institutions have to take responsibility for this finding.
It is also something I want to emphasize that these, this study is, you know, concluded in the late 2000 teens, and so the situation today could be quite different.
We don't know.
We haven't been in touch with folks in Philadelphia because these findings caused a certain amount of consternation in Philadelphia at the time, and so we have been we have not tried to communicate with them further. We certainly hope that efforts are underway at reform, and we expect that they are underway.
[00:46:00] Speaker A: 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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Image by Felicia Quan, J.D. candidate, Harvard Law School
