New England Law Review
V. 47 | 571
are in good company with today’s hand-wringing and navel-gazing.However, today’s crisis is unique and, in a sense, more disturbing thanpast crises.
The barriers faced by prior generations were largely self-imposed, or at least within the capacity of the law and profession toattempt to remedy. Today, however, in addition to the traditional debateover the need for greater access to the legal system, we are faced with amore fundamental concern: access to courts.This is a disturbing diversion because access to courts is a necessary—although admittedly not sufficient—condition that must be satisfied inorder for individuals to have access to justice. Severe reductions in courtfunding may risk these two priorities becoming disassociated. The questionthen becomes how to acquire more funding for courts so they remain open ,rather than how to ensure adequate funding for courts
in order to
provideaccess to justice. Consider this quote from a recent article in the CaliforniaBar Journal about the crisis in funding:
[T]hat the current budget crisis threatens our democracy, [is] anundeniably true statement. Without adequate funding, our courtswill bolt their doors and shutter their windows. Without access tothe courts, our citizens will lose their fundamental right to gettheir disputes resolved. Without such resolutions, one party oranother will suffer. The party that will usually suffer is theimpoverished one: the party that needs access to the courts themost because he or she is least able to afford the delay caused bycourt closures.
Conceptually, it is helpful to think about the of crisis of access asarising on two levels: first-order and second-order concerns. A first-orderconcern is physical access to courts. This is the concern raised by the quoteabove. Closed courthouses can result in both the inability to pursue claims
Defining the Office: John Marshall as Chief Justice
, 154 U.
1421, 1426-27 (2006)(discussing the judicial crisis faced by the Marshall Court during the JeffersonAdministration); Gerald Bard Tjoflat,
More Judges, Less Justice: The Case Against Expansion of theFederal Judiciary
, 79 A.B.A.J.
70, 70-73 (1993) (explaining the adverse effects a growing judiciaryhas on the equality of justice); Peter Alan Bell, Note,
Extrajudicial Activity of Supreme Court Justices
, 22 S
587, 587-90 (1970) (discussing the effects of a judge’s out-of-courtactivity on the perception of the judiciary).
However, to make a statement that one crisis is more severe than another is itself anindication that the writer is destined to view events through a particular contextual lens. In1990, long before the current crisis, Professor Geoffrey C. Hazard perceived that theprofession was in a crisis unlike any other: “Dissatisfaction with lawyers is a chronicgrievance, and inspires periodic calls for reform. Nevertheless, the contemporary problems ofthe American legal profession seem to run deeper than in the past.” Geoffrey C. Hazard, Jr.,
The Future of Legal Ethics
, 100 Y
L.J. 1239, 1239 (1991).
The Budget and the Crisis in the Judiciary