The Hidden Costs of Contracting: Barriers to Justice in the Law of Contracts
![handle is hein.journals/jls7 and id is 120 raw text is: JOURNAL OF LA WIN SOCIETY
THE HIDDEN COSTS OF CONTRACTING:
BARRIERS TO JUSTICE IN THE LAW OF CONTRACTS
Teri J. Dobbins*
Justice is rarely free. In theory, everyone has equal access to the courts; in reality,
access to the courts is dependent upon the financial resources of the litigant. Filing fees,
discovery costs, and the economic cost of the time taken away from other income-
producing activities to prosecute or defend a lawsuit make litigation all but impossible for
many people. Even if many of these costs can be eliminated (for example, by filing in
small claims court, in]brma pauperis filings, or pro se litigation), this simply facilitates
access to the system; it does not guarantee justice. The complexity of the court system
and the laws make access to legal counsel necessary in many cases. Without access to
counsel, access to the courts may be meaningless. Unfortunately, many people cannot
afford to hire a lawyer to assist with their legal problems, particularly in disputes that
have a low dollar value, or those in which the remedy sought is not monetary. The result
is that many of the legal needs of the poor are not being met.2
The lack of access to courts and counsel has particular significance in the law of
contracts. Obtaining housing, health care, employment, and consumer purchases are all
contractual transactions. An inability to negotiate, understand, or enforce contract rights
in these areas can affect a person's life in fundamental ways. Access to counsel may
ensure that a party is not taken advantage of, it may ensure that a party's obligations are
understood, and it may ensure that a party's rights are adequately protected so that
performance can be fully tendered without undue hardship.
Indeed, access to counsel before a contract is entered into may help prevent
disputes from occurring. Unlike in criminal and tort cases, people become parties to
contracts voluntarily.3 Consequently, there is a rare opportunity to obtain legal advice
before the legal relationship is formed and to apply that advice to avoid
Assistant Professor, Saint Louis University School of Law. Duke University, B.A. 1993, J.D. 1997.
For instance, if a party is seeking an injunction or specific performance of a contract, or is defending
against a claim with no counterclaim for damages, there is no possibility of a damages award that can be
used to pay attorney fees.
2 See, e.g., AMERICAN BAR ASS'N, AN AGENDA FOR JUSTICE: ABA PERSPECTIVES ON CRIMINAL AND CIVIL
JUSTICE ISSUES 78 (1996) [hereinafter ABA AGENDA FOR JUSTICE] (Today, the simple truth is that large
segments of our population are denied meaningful access to justice and most people rarely consult lawyers
or utilize the civil justice system.); Hedieh Nashcri & David L. Rudolph, Equal Protection Under the
Law: Improving Access to Civil Justice, 20 AM. J. TRIAL ADVOC. 331, 331-332 (1997) (Because of the
excessive attorneys' fees and delays involved in litigating a case, low income citizens are unable to afford
litigation, and are often forced to forgo valid claims.); Deborah Rhode, Access to Justice: Connecting
Principles to Practice, 17 GEo. J. LEGAL ETHICS 369, 371 (2004) (According to most estimates, about
four-fifths of the civil legal needs of low income individuals, and two- to three-fifths of the needs of
middle-income individuals, remain unmet.).
3 Usually, there is no way for people to avoid becoming victims of a crime or tort. On the other hand, all
parties to the contract must agree to be bound.
2005
Vol. 7:1](ViewImageLocal?handle=hein.journals/jls7&div=8&collection=&method=preview&ext=.png&size=3)
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The Hidden Costs of Contracting: Barriers to Justice in the Law of Contracts
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