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Why the Cost of Not Resolving Legal Problems May be Greater Than We Think

Ab Currie, PhD

Friday, December 6, 2013

There is plenty of research evidence of the significant intangible costs of the lack of access to justice. Every legal problems study examining the issue has shown that physical health problems and stress-related illness are common consequences of experiencing legal problems. The Canadian research shows that about 23% of respondents with at least one justiciable problem experienced a physical health problem as a result of the legal problem or problems and 37% experienced a stress-related health problem.[1] Further, 62% of respondents said that the problem was somewhat to extremely disruptive to their daily lives.[2]  The stress these problems cause may have consequences that are magnified far beyond the difficulties in dealing with a particular legal issue.

A recent book on the dynamics sustaining poverty by Sendhil Mullainathan and Eldar Shaffir argues that the stress involved in coping with money problems has a significant and debilitating effect that reduces people’s ability to cope with other ordinary tasks and requirements in all areas of life.[3]  Using their metaphor, stress reduces the “bandwidth” available to deal with other issues. Following this argument, it is possible that the high levels of stress experienced by people dealing with legal problems may have a similar debilitating effect, reducing the bandwidth available to deal with a range other normal issues in life.  Reduced bandwidth may be a partial explanation for the trigger and cascade effects reported in the legal problems literature. Legal problems trigger other legal problems and legal problems trigger, and are triggered by, a number of non-legal problems producing inter-related problem clusters.[4]   The research by Mullainathan and Shaffir may partly explain the mechanisms underlying the trigger and cascade effects linking the experience of legal problems to broader patterns of poverty and social exclusion.

As troubling as high levels of stress and stress-related illness may be as consequences of legal problems in their own right, the intangible costs of experiencing legal problems may also lead to significant monetary costs. We can easily think of some of these. Costs to individuals can occur in areas such as lost employment or lost time from work.  Individual disadvantages can become costs to the state occurring, for example, as increased health care costs because people reporting high levels of stress say they visit doctor’s offices and other health care facilities more frequently than normal. They can also occur as increased payments for employment insurance, housing subsidies or other special services.  As well, the money spent resolving complex legal problems is money not available to be spent elsewhere in the economy. However, these costs may be only the tip of the iceberg. The reduced bandwidth argument by Mullainathan and Shaffir suggests that the consequences and costs of experiencing legal problems may bleed out in ways we have not yet fully considered. It may seep in to other areas in the lives of the individuals experiencing the legal problems and from those individuals into the lives of others who are socially connected to her or him through relationships of dependency.  It may turn out that as we research these costs more fully, that the cost of expanding access to justice to all Canadians is far exceeded by the costs of not doing so.

Ab Currie is a Senior Research Fellow at the Canadian Forum on Civil Justice