Michalski & Hammond: Mapping the Civil Justice Gap
In Mapping the Civil Justice Gap in Federal Court, forthcoming in Wake Forest Law Review, Roger Michalski (Oklahoma Law) and Andrew Hammond (Florida Law) used a novel data set to explore who litigates in federal court without legal representation—or, more precisely, where these federal pro se litigants live.
Michalski and Hammond reviewed federal dockets from 2.5 million federal civial cases over a ten-year period (January 2005 to December 2014). From this enormous data set, the authors found 350,000 cases with non-prisoner pro se litigants and then cross-referenced those litigants’ addresses with demographic and economic data about their home neighborhoods. Although this neighborhood data cannot reveal specifics about individual litigants directly, the authors rely on the fact that most people tend to associate in neighborhoods with others who are similar to themselves in significant ways. By describing and evaluating the neighborhoods where pro se litigants live, the authors stress a few key findings that should inform future access-to-justice work for self-represented litigants.
First, the authors note that—based on observable neighborhood data—the pro se litigants are “profoundly ordinary.” They tend to live in communities whose education levels, age, veteran status, and gender ratios largely mirror the rest of the general population. Michalski and Hammond frame this as evidence of “pro se litigants as a radically democratic element in federal courts.”
On the other hand, Mapping the Civil Justice Gap, does find two exceptions to this general representativeness. One notable outlier was race. Accounting for other factors, Mapping the Civil Justice Gap found pro se litigants were more likely to reside in communities that were less homogenously white.
The final outlier is geographic. Rural communities also have fewer pro se litigants than expected. For this assessment, the authors consider a community’s proximity to a federal courthouse. The authors found proximity to a federal district court was correlated with the number of pro se litigants from that community, with pro se litigants less likely if they reside in rural communities far from the nearest federal courthouse. The authors note that there could be multiple explanations for this result, including that incidents giving rise to litigation may occur less frequently in rural communities, rural residents resolve conflicts without the use of courts, or that rural lawyers are more willing and able to represent rural constituents.
Yet, the authors also conclude that these alternative explanations are unlikely. The authors suggest the more likely answer is that the potential pro se litigants in rural communities are more deterred from accessing courts than their urban counterparts because of the distance to federal courthouses. The authors also suggest a possible unexplored relationship between the presence of lawyers in a community and rights-claiming by laypersons. Ultimately, the authors identify multiple areas for further inquiry concerning rural communities and pro se litigation.
Mapping the Civil Justice Gap provides an important look at pro se litigants demographics and challenges conceptions that pro se litigants are a distinctive socioeconomic group. The authors assert these findings demand that judges and lawyers consider pro se litigants not as strange outliers, but rather members of representative neighborhoods in the places courts are housed and lawyers practice. The authors also suggest these findings could be useful for informing access-to-justice initiatives, including how courts should structure resources for pro se litigants.
