Group 1: Procedural Fairness & IdentityPower & Equity in Pro Se ProcedureAndrew Budzinski, University of the District of Columbia, David A. Clarke School of Law
Legal rules presume that everyone is similarly situated and, therefore, should be held to the same standards. In pro se courts -- those that hear landlord-tenant, family law, domestic violence, and consumer debt collection cases -- power, privilege, and context cause the same procedural rules to impact different parties differently. This article proposes a radical paradigm shift: away from the assumption that litigants’ rights are protected through rules usually applied by lawyers, and toward a frame that sees, names, and accounts for the difference in litigants’ social and legal power -- an ability to control or influence, advantage of resources, or social status conferring authority and credibility.
Procedural rules in pro se courts should be crafted in consideration of the power differentials between parties that appear there. Current rulesets do not live up to their animating principles – neither traditional justifications for ex-ante procedure (accuracy, balance of risk, and inherent rights), nor procedural justice (litigants’ experience of a system as fair). Rules in pro se courts assumes that parties have the legal, social, and strategic expertise that lawyers do; fail to account for stereotypes of the “pro se litigant” label; perpetuate informal or “ad hoc” rules of procedure; and perpetuate repeat-player biases that benefit more powerful parties. As a result, procedure can work to decrease institutional legitimacy and procedural justice.
I argue procedural rulemaking should explicitly consider the relative power of parties appearing in pro se courtrooms, actually enhancing procedure’s neutrality, increasing participation, and ultimately striving toward equity.
A Feminist Critique of the VA Rating ScheduleYelena Duterte, University of Illinois Chicago School of Law
A Feminist Critique of the VA Rating Schedule is the first law review article that analyzes VA benefits through a critical lens. This piece is born out of my work as a law school veterans clinic clinician and how female clients have a profoundly different experience from their male counterparts.
The Department of Veterans Affairs (VA) is tasked with taking care of veterans with disabilities once they are discharged from military service. The VA provides compensation for service-connected conditions based on how the disability limits their employment through a complicated rating schedule. However, the VA has not done a significant overhaul of its rating schedule since the 1940s, when nearly the entire military and veteran population were white men.
This Article dissects the inherent racial and gender biases in the VA rating schedule within the Code of Federal Regulations through a critical lens. This article analyzed three medical conditions and rating schedules through this lens to provide context to the problem: endometriosis (a condition that almost exclusively affects people assigned female at birth (AFAB)), fibromyalgia (a disability that disproportionately impacts AFAB), and mental health (diagnoses that typically impact people differently based on gender). Through this lens, this Article looks at the history of integration of the military service, the late 20th-century requirement of inclusion of women and people of color in medical studies, and the lived experience of how pain is ignored by not only doctors but also by the Code of Federal Regulations.
This Article makes several recommendations to provide equity for veterans seeking benefits, including Congressional oversight, judicial review of the rating schedule, a change from individual disability impacts disability to provide a more holistic view of disabilities, and revamping the VA benefits system to a basic income for veterans.
The Epistemic Harms of Discretionary ResentencingKate Skolnick, New York University School of Law
Mainstream discourse has begun to converge around the idea of shrinking the bloated carceral apparatus that exploded in the latter part of the 20th century. One mechanism for doing so is resentencing, with various "second look" acts emerging as a tool. Experts have recommended that these resentencing statutes contain certain features, such as the ability to apply for resentencing upon serving 10 years’ incarceration, or accounting for youth at the time of the crime's commission or advanced age at the time of resentencing.
While these are important considerations, this paper suggests that another feature ought to be prioritized: the epistemic injustices, according to the theory introduced by philosopher Miranda Fricker, that occur for those petitioning for release from incarceration. The more discretionary a resentencing law, the more individuals are asked to throw themselves on the mercy of decisionmakers such as courts and prosecutors, who often because of various structural and psychological reasons are not inclined to credit the life experiences of defendants that might have led to their entry to the criminal legal system in the first place.
Comparing New York's Domestic Violence Survivors Justice Act (very discretionary) and its Drug Law Reform Acts (which contain a strong presumption in favor of resentencing) illustrates why the former has not only been less effective than the latter but also has inflicted more dignitary and epistemic harm on applicants in the process.