Washington Law Review


Civil procedure is one of the biggest hurdles to access to justice. An array of rules and interpretations of those rules have turned lawsuits into meandering mazes with a procedural minotaur waiting to gobble up meritorious claims. The problem is especially acute for the many Americans without abundant resources or access to a lawyer. Fortunately, there is a ready remedy, albeit one access to justice advocates have ignored: state constitutions. Forty state constitutions, which protect hundreds of millions of Americans, generally guarantee “[t]hat all courts shall be open, and every person, for an injury done him in his person, property or reputation, shall have remedy by the due course of the law.” All litigants, no matter how much money or education they have, are entitled both to meaningful court access and to meaningful remedies when they suffer legally cognizable injuries. These provisions hold such special promise both because the vast majority of lawsuits take place in state court, and because the U.S. Constitution lacks a similar guarantee.

For too long, the conversations about how to achieve access to justice and how to interpret these state constitutional provisions have happened in isolation. This Article contributes to both of these conversations and then brings them together to generate a novel solution to America’s access to justice problem. Countless scholars and judges have lamented that convoluted procedures lead to litigants losing on meritorious claims. They have also shown that those procedures increase the cost, length, and complexity of litigation, which makes hiring an attorney too expensive and deters some litigants from bringing deserving claims in the first place. This Article creates a new constitutional framework that legislatures should consider when writing civil procedure codes and that courts should use when deciding how to apply those codes. It then demonstrates how that framework will allow litigants to finally leap over the biggest procedural impediments facing them––pre-suit screening panels, strict time limits on claims, rigorous pleading standards, and stringent class action certification rules––by arguing that these impediments are frequently unconstitutional as applied in particular cases. This Article contends that there will be two principal benefits. The first will be that more litigants can win their claims on the merits instead of losing them on procedural technicalities. The second is that litigation will become cheaper and less time-consuming such that more litigants can vindicate their legal rights in court, regardless of whether they can afford counsel.

Finally, this Article situates its proposal in the context of current efforts to achieve access to justice such as advocacy for appointing counsel in all civil cases—civil Gideon— and letting litigants get an attorney’s help on discrete tasks. This Article’s proposal is much more feasible politically and financially for legislatures and courts to implement than civil Gideon, even as it decreases the need for an attorney’s assistance, and more wide-reaching than attempts to unbundle legal services. Ultimately, though, access to justice advocates need not adopt this Article’s proposal to the exclusion of all others. They will hopefully see, however, how the proposal can enable major progress in ending the access to justice crisis.

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