Access To Courts

In common law jurisdictions litigants are free to represent themselves in person. A right to self-representation in civil proceedings has been taken for granted as an obvious expression of the right of access to court. Consequently, no attempt has been made to investigate the theoretical justification of self-representation, and mandatory legal representation has never been contemplated. This article identifies three possible reasons for the conflation of the right to litigate in person with the right of access to court: (1) the long history of self-representation, (2) the conceptual perception of procedural rights as necessarily personal, and (3) the empirical belief that litigants in person are typically poor. The article challenges the capacity of these reasons to justify vesting litigants with an unfettered power to decide whether to represent themselves in person or to instruct counsel. It argues that as a matter of principle the right of access to court does not entail a right to self-representation in all circumstances. When a litigant in person lacks the skills and expertise to conduct his or her case competently and imposes a disproportionate strain on court resources, the court should be entitled to require the litigant to obtain legal representation as a prerequisite for proceeding with the case.

In this paper I respond to comments by Professors Ori Aronson, Tali Fisher, Jona Goldschmidt and David Luban, made in a symposium hosted by the Hebrew University, on my book Injustice in Person: The Right to Self-Representation (Oxford University Press 2015).

It is a satisfying moment in a scholar’s life when his work is noticed, let alone discussed by first-rate scholars whose distinguished work has been highly influential on his own. I am deeply grateful to Ori Aronson, Talia Fisher, Jona Goldschmidt, and David Luban for participating in the symposium on my book Injustice in Person: The Right to Self-representation (Oxford University Press 2015), hosted by the Jerusalem Review of Legal Studies at the Hebrew University. I also thank Ori Herstein and Alon Harel, who organized the event and are editing this volume. I very much enjoyed the insightful engagement with the book, both during the symposium and in the written commentaries. The thoroughness, carefulness, originality, depth, and above all generosity of each of them humble and inspire me. They helped me better understand my own position on the scope and justifiability of a right to self-representation. I am delighted to now have the opportunity to respond, and to clarify and refine some of my thoughts in the light of these comments, and so contribute to the debate that has emerged since the publication of the book.

This paper argues that the proposed Online Court is likely to suffer from various limitations if assessed within the current paradigm—that courts should never willfully compromise the quality of their judgments. The proposed Stage 3 could be understood as an invitation for a paradigm shift. At least in times of crisis, a degree of compromise over the court’s ability to arrive at correct judgments, in exchange for faster and less costly proceedings, is a legitimate trade-off—not the retreat into ‘second-class justice’ that critics of Briggs’s Interim Report alleged. Thus, if the application of Stage 3, with its radical departure from convention, would be limited to simple and straightforward cases, the Briggs reform would be just another instalment in judicial adaptation, which would ease some pain without bringing about a root treatment that is long overdue.

The legal profession has been ignoring its duty to the public.  This is true for those who cannot afford to pay for legal assistance. 
  Florida has been chasing dreams for more than 25 years - lawyers and judges have monopolized the legal profession and that raises prices to the detriment of everyone.

This paper is the inaugural speech for the opening the Luiss academic year 2019-2020. It
aims to discuss some critical issues in the globalisation of law in the wider context of
cosmopolitanism. The paper aims to understand who the global citizen is today, emphasising that
individuals hold rights and obligations in the framework of multiple legal orders that exist beyond
States. These rights and obligations confer on single individuals a kind of administrative citizenship
of the world; a sort of passport that leaves aside the indispensable contents of national citizenship
(i.e., the right to vote and the duty to pay taxes), while fostering the cosmopolitan ideal of the
universalism of rights.
Yet, in the globalised world, the expansion of rights is not the outcome of a progressive
process of dissemination and recognition of tolerance -as cosmopolitanism would require- but it is
often the result of the settlement of conflicts among global players. The paper thus identifies three
main interpreters of these conflicts and their possible mediation: courts; administrations; and
politics. Hence, it critically analyses their (in-)ability to respond to global challenges embedded in
the process of expansion of rights. Access to courts, the use of soft law as a means of administrative
cooperation and the gaps in the EU citizenship regime are investigated as key examples of such
problematic process.