Scholarly Articles and Other Contributions
 

Document Type

Article

Publication Date

1982

Abstract

In this Article Professor Breger examines the competing justifications that have been advanced for the provision of free legal aid to those who cannot afford to engage a private attorney. Professor Breger argues that every citizen has the right to effective access to the courts to resolve disputes in that they aret he only state-sanctionedd ispute resolution mechanism. Because of the complexity of our legal system, effective access to the courts often requires the services of an attorney. Under this theory of "access rights" a person is entitled to free legal aid when necessary for the enforcement of a legal claim, regardless of the moral or social utility of vindicating that particular claim. This approach constitutes a radical departure from the more commonly accepted utilitarianf ramework. Under utilitariana nalysis legal aid is provided to a particularp oorp erson solely because of the benefit that will accrue to thepoverty communityfrom the enforcement of that particular claim.

Professor Breger observes that the adoption of the theory of access rights will entail a shift in the involvement of the client, the poverty community, and the attorney in the determination of how resources are to be distributed The theory of access rights also will set different limits on the nature and extent of the government obligation to subsidize legal aid activity. In the conclusion of the Article Professor Breger explores the inescapablefact that the demandforfree legal aid far outweighs the supply and suggests several methods of distribution that do not violate the princple of access nghts.

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