Thinking About the Ability to Pay

Judith ResnikAnna VanCleaveAlexandra HarringtonLisa FosterJeffrey SelbinFaith BarksdaleAlexandra EynonStephanie Garlock and Daniel Phillips (Yale University – Law School, Yale University – Law School, Yale University – Law School, Fines & Fees Justice Center, University of California, Berkeley – School of Law, Yale University, Law School, Students, Yale University, Law School, Students, Yale University, Law School, Students and Yale University, Law School, Students) have posted Ability to Pay on SSRN. Here is the abstract:

Ability to Pay is the second Liman Center publication focused on the burdens that individuals with limited income and wealth face in courts. An impressive body of emerging literature maps the needs of low-income individuals in courts as civil litigants and as criminal defendants and identifies the harms of court-imposed debt. As these materials reflect, legal and political will has begun to put reforms into place that limit the ways in which courts impose financial obligations.

Part I, Challenging, Restructuring, and Abolishing Fee Structures, provides examples of the many lawsuits, as of the spring of 2019, that have challenged fees, fines, forfeiture, bail charges, and driver’s license suspensions. The litigation interacts with legislative revisions, also excerpted, and, in some jurisdictions, abolition of certain court fees and money bail.

Part II, Data Collection and Creation, offers an innovative overview of the kinds of data that state and federal court systems collect to understand how courts gain or lack information about the needs of participants in the legal system.

This segment explores the current metrics used and the ways to “measure” what counts as justice. Given the growth of online technologies and the outsourcing of court filing systems to private providers, new questions have emerged about the need to have accessible and sufficient data, the concerns about individual privacy, and the problem of accountability.

Part III, Innovations and Interventions: A Sampling of New Research Projects, provides a window into the breadth of activities across the country, as law schools have become research hubs taking on a host of issues related to court users. Again, we are not comprehensive but illustrative when we explore the ways in which research agendas are formulated, their impacts measured, and their effectiveness appraised.

Part IV, Law Schools, Funders, and Institutionalizing Reform, reflects on the many times in which law schools have reinvented what counts as the “standard” curriculum. In the 1960s, foundation support brought clinical education to many law schools, and, since then, clinical education has become a fixture. In the 1980s, funding went to law and economics, which has likewise become a familiar marker in legal education.

Ability to Pay makes plain that another reordering is underway. Law schools are committing to teaching and generating new data on courts and their users and to engaging students through coursework and research in how courts operate and impact communities. In short, just as clinical education and law and economics are now ensconced in the curriculum, the economics of court services is likewise becoming a routine part of legal education.

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