Seeking Evidence: A Professor Looks for Empirical Proof to Improve Access to Justice

In this New Thinking podcast, Harvard Law School Professor James Greiner talks with Aubrey Fox about why he launched the Access to Justice Lab, which has researched topics as varied as how to provide self-help materials to defendants involved in civil debt collection cases to the effectiveness of commonly used pretrial assessment interview tools in criminal court. Greiner also discusses what he sees as a strategy for improving the legal profession’s openness to evidence-based thinking. AUBREY FOX: So this is Aubrey Fox. I’m today’s guest host for The New Thinking Podcast, which is the Center for Innovation’s podcast where we interview legal experts and researchers. And I’m very fortunate to be joined today by Professor James Greiner, who is the William Henry Bloomberg Professor of Law at Harvard University. Does this mean that you’re connected to our former Mayor Bloomberg? PROFESSOR JAMES GREINER: Actually, I think that, if I have it right, the Chair was named after his father and he established it on his father’s behalf. It’s a rotating chair, so I have it for another few months before it rotates to someone else. But that is the connection. FOX: So you’re not dining with Mayor Bloomberg on a regular basis? GREINER: I haven’t had the pleasure yet. I’m sure it’ll be terrific. I’m guessing he probably sets a good table, but I haven’t had the pleasure yet. FOX: Among many things, Jim, is the faculty director of something called the Access to Justice Lab, which is a really exciting new initiative that he started where he’s trying to bring evidence-based research to the study of criminal justice and civil justice. And so we want to talk to Jim today about his work with the Access to Justice Lab and also some of his thinking about why it’s important to introduce this evidence-based approach, and want to talk to him a little bit about some of the particular issues he’s investigated. Jim, maybe where we’ll start is just to let you talk about how you got interested in this area of criminal justice and civil justice, and tell us a little bit about your background. GREINER: Sure. So when I graduated from law school, I hadn’t taken any statistics courses or any sort of quantitative courses in college or anything like that. I just wanted to be a regular practicing lawyer. So I did that for 3 years for the Justice Department and then 3 years for a private law firm, a law firm called Jenner & Block in DC and, at the time, I was litigating cases that involved some numbers. So, employment discrimination class actions, litigation about the 2000 decennial census, whether you could use statistical techniques to try to correct for over-counts and under-counts according to racial groups. I’d always been interested in social justice issues and criminal law issues. When I moved over to the private law firm, I did a couple of pro-bono cases that we picked up. And basically, through the practice, redistricting was in the area I did, got interested in numbers and what numbers and evidence-based thinking could bring to the table in terms of social justice issues. And so after 6 years as a practicing attorney, I left the practice of law for 5 years to get a PhD in statistics. And then when I got my PhD in Statistics I started researching in a bunch of areas, but the one I was having the most fun with, really enjoying and the one that I thought I could potentially do some good with was access to justice issues, more on the civil side than on the criminal side, but some on the criminal side also. So issues like, how do you make law work and be accessible for folks who can’t afford to hire lawyers to interface with the legal system. And on the criminal side, how can we make existing institutions perform what we want them to perform better. How can we release more people who are not dangerous, how can we reduce the criminal footprint on communities and still maintain a system of law and order, etc. So those are the big-picture issues that I found most interesting.    FOX: So, having a statistician as a professor of law. Is that an unusual development, or is that something that’s been going on for decades and decades? GREINER: No, I think there are only 2 of us still in the legal academy that have stats degrees– stats PhDs. I know the other person, unsurprisingly. But having someone as a law professor who knows, as we say, “how to count”, that’s not all that unusual. It’s just folks typically have economics degrees or political science degrees or something like that. But the hardcore statistics is what I really wanted to get invested in. And the reason for that was I pretty much knew when I was going into the statistics program that I was a litigator through and through. I was always going to be a litigator. I was going to care about courts and administrative agencies and the practice of law at a person by person level. And so I didn’t feel like I wanted to learn a lot about the big-picture political science theory and big-picture economic theory that those folks do. And so I just said let’s go straight into the heavy numbers. FOX: And so tell us a little bit about the Access to Justice Lab. What does it do, when did you get it started? GREINER: We’re talking in December of 2016. It’s only been in existence since July of 2016, and it is funded by a generous grant from the Laura and John Arnold Foundation. The foundation itself cares about evidence-based thinking across a lot of different spheres, and it funded the lab. And basically the lab has 2 overall missions. One is to produce useful, rigorous evidence that would assist policy makers and judges and lawyers in what they do. Especially with respect, again, to access to justice related to folks who can’t afford to hire lawyers to interface with the legal system for them. And then the second overall purpose is to try to tear down the resistance to rigorous empirical evidence, especially via the randomized control trials, or randomized field experiment, that resistance that exists within the legal profession and within the judiciary. I think that in law, especially with the practice of law, we are in roughly where the medical profession was in about 1938 or 1940. Basically, we are beginning to engage in the debate about whether our profession should be evidence-based in the way that medicine was engaging in a debate about whether drugs and medical devices should have evidence behind them before they are allowed to be sold to the public. And there are many folks in law, on both the bench and the bar, who think that randomization in law is unethical or is unnecessary. Unethical because randomization takes away the professional judgment about who should get what, and unnecessary because we know that, as lawyers and judges, all of our professional judgements are perfect, or very, very good and, therefore, we don’t really need to investigate them all that much. And so the Access to Justice Lab’s second purpose is to try to suggest to folks that scientific-based thinking and evidence really can bring a lot to the table and it may end up overturning accepted truths within the bench and the bar. FOX: I’m glad, in your comparison to the medical world, you didn’t bring up leaches. So at least we’re… We’re 100 years ahead of where we could be. GREINER: Right. FOX: And, just to follow up for a moment, I kind of want to get your sense of the state of play on this because I understand that there may be resistance to RCTs, which are the most rigorous form of evidence-based analysis and require dividing a control group from an experimental group and giving some people something that you don’t give the control group. But there is a history of doing research into criminological issues. So it’s not like you’re starting from square one. So I guess in this mix of some history and some resistance, where would you say we are at the moment? GREINER: I’d say more resistance than history with respect to courts and judges and lawyers. So you’re absolutely right that there is a reasonably well developed literature in the criminology field. And a good portion of it, not as much as many criminologists would like, but still a good portion of it backed up by randomized studies to try to figure out whether, say, afterschool programs prevent people from getting arrested, or whether certain types of treatment as a condition for probation are effective in preventing recidivism. But if you notice in the 2 examples that I gave you, one of them is sort of prior to the involvement, the intervention is prior to the involvement of the criminal justice system, and one of them is post sentencing, sort of after the involvement of what we call the lawyer-based or court-based criminal justice system. And so there has been substantially less in that portion of the criminal justice system where the lawyers and the judges get involved to the point where, when a co-author and I try to catalog all of the randomized studies that have been done in United States law, criminal or civil, that involved randomization of a decision that would otherwise have been made by a judge or a lawyer, so it’s how we defined randomized studies...