Roni Amit

Volume 27.1 (download PDF)

Abstract

Marginalized individuals are largely excluded from making rights claims in the courts because their stories of rights violations fall outside of prescribed legal categories. Framing this exclusion as a lack of knowledge and access, proponents of the access to justice movement have sought to improve outcomes for unrepresented and marginalized litigants through measures that help them understand and navigate the system. The access to justice movement seeks to make the justice system more accessible to these litigants by focusing on procedural fairness. This Article draws on empirical data and observations from Tulsa’s eviction court to consider the limits of access to justice measures focused on process, including representation. It calls for an expanded understanding of access to justice that incorporates the rights claims of marginalized individuals. Asking how lawyers representing marginalized clients can best advocate for their clients’ rights and achieve social change, it draws on the law and social change literature around legal mobilization.

The elevation of access to justice measures focused on process masks the underlying inequities embedded in the law. By failing to engage with societal patterns of marginalization, process-based access to justice reforms not only replicate social power imbalances and marginalization, but they also legitimize them through the aggrandizement of procedural fairness. Access to justice reforms continue to operate within the dominant normative universe that privileges particular legal categories and bounds the narrative scope. This approach both inhibits social change and perpetuates the continued exclusion of the narratives of marginalized individuals. An expanded conception of access to justice can challenge the dominant narrative and elevate the voices of marginalized individuals by deploying subversive stories. The use of these stories in mobilizing efforts both inside and outside the courtroom can help reshape the institutional and sociopolitical context to advance their rights.