Yale Law Journal, Yale Law School, Yale University
July 1, 2012
This article is a response to the study "Randomized Evaluation in Legal Assistance: What Difference Does Representation (Offer and Actual Use) Make?" by Greiner and Pattanayak in Yale Law Journal on July 29, 2011. The authors seek to reaffirm the study’s importance in light of critiques from the legal community.
• Randomized study analyzed outcomes in unemployment insurance (UI) appeals.
• Compared the results people appealing unfavorable unemployment decisions to Administrative Law Judges had when they received an offer of representation from the Harvard Legal Aid Bureau (HLAB) with those that received no such offer.
• No evidence that an offer of HLAB representation increased the probability that a claimant would prevail.
• Claimants who received an offer of representation received their benefits decisions on average two weeks later than those who did not.
• Measuring the impact of offers of representation rather than the impact of actual representation is asking the wrong question.
• The study focuses on student novices, not experienced attorneys.
• Focus on randomized, controlled trial to the exclusion of other empirical methods and the absence of a literature review beforehand produces misleading results.
• The system could be better, but it is not broken. We should not forgo services to clients in exchange for the uncertain benefits of research.
• Why expose legal services to further political attack?
• Initial appeals by claimants in unemployment insurance cases may be particularly amenable to self-representation. (Straightforward substantive issues and claimant-friendly processes in the Boston UI office). Facilitating self-representation may be a positive goal.
• The study points toward new strategies to influence institutions, i.e., exacting evidentiary standards in making scarcity-driven decisions about when and how to reform institutions.
• Studies prior to this one suffer from severe methodological flaws. This study calls attention to the need for a robust research program that would produce more reliable and actionable knowledge relevant to the overlapping dimensions of individual representation (service delivery), program design (resource allocation), and systemic issues (broader access to justice).
• The timing is opportune for robust research: Law schools and the service professions have become more methodologically diverse and focused on the empirical; we have unprecedented infrastructure to support research via law school clinics; the policy marketplace is increasingly evidence driven.
• How can we begin this process? Acquire basic literacy in empirical methods; explicitly articulate our service goals to determine what may be measured; and commit to generating alternative methods and being open-minded.
PUBLICATION DETAILSFormat: Commentary
Publication Type: Journal Article
Geographic coverage, US: Massachusetts, NATIONAL
Topics: Measurement | Research Agenda | Randomized Research
Case type: Wage Claims
How Provided: Courts, Delivery Systems, Law School Clinics
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