J-Law 29 — Codify the Rights of the Self-Represented

A dedicated body of pro se rights shall be written into statute and common law. Nearly every existing rule was written for attorneys, with little or no consideration of how it applies to a self-represented party.

Self-represented litigants now constitute a majority of parties in many state-court case types, particularly family, housing, and debt matters. The rulebook governing them was written as though they did not exist. Service rules assume a registered agent, scheduling customs assume a support staff, e-filing systems assume professional credentials, and courtroom procedure assumes a person who has done this a hundred times. Where the rules fall silent — which is nearly everywhere a pro se question arises — outcomes turn on the improvised discretion of whichever judge is sitting that day.

Rights that exist only as discretion are privileges, revocable by mood. Codification changes their character. A written body of pro se rights gives the self-represented firm ground to stand on, gives fair judges a framework to apply, and strips unfair judges of the fog in which selective treatment currently hides. Every other major participant in the system has its governing law. The millions representing themselves deserve theirs.

The expected counterargument: the rules are neutral and apply to everyone, so a special pro se code creates two-tier justice. Neutrality is a property of effects rather than of wording, and rules drafted around the assumed presence of professional counsel operate on the unrepresented like stairs operate on a wheelchair — formally identical, functionally exclusionary. The two-tier objection also arrives late: two tiers exist now, maintained through silence, with the represented tier enjoying rules built for it and the unrepresented tier navigating rules built for someone else. Codification merges the tiers by making the system's obligations to its majority population explicit. Accessibility law faced the identical argument and answered it a generation ago — accommodating people the original design ignored is the repair of inequality rather than the creation of it.