Susannah Camic Tahk, Distributive Precedent and the Pro Se Crisis, 108 Iowa L. Rev. 745 (2023).
Abstract
A crisis in pro se litigation is currently facing the U.S. legal system. This crisis appears in areas of law ranging from family law to consumer protection law to employment law to the rights of people currently experiencing incarceration. In these and other areas, litigants without lawyers almost invariably lose due to enormous legal and sociolegal impediments. Most scholars and other legal observers view this situation as virtually hopeless, but this Article turns in a novel direction by conducting an empirical study of those rare cases where pro se litigants succeed. The study involved assembling two original hand-coded datasets of these cases in nine states during a period in 2020. The first dataset consists of all 568 cases where pro se litigants succeeded, and the second consists of the 619 precedents that pro se litigants cited favorably in these cases. Analysis of these datasets shows that the substantial majority of pro se successes relied on a body of “distributive precedents,” established by cases in which both original parties had lawyers. This Article identifies several of the key legal and social features of the distributive precedents, including their areas of law, geographical origins, and procedural and substantive characteristics. Based on these research findings, the Article outlines policy interventions into the pro se crisis, identifying several mechanisms for expanding the supply of distributive precedents and for increasing access to them.
