More Lawyers or More Justice?

Proponents of legal reform sometimes resemble the proverbial blind men inspecting an elephant. Depending on which part of the unfamiliar animal they are touching, the sightless examiners may think they are holding a tree trunk (leg), snake (trunk), rope (tail), spear (tusk), or fan (ear). The moral is that perspectives vary, producing widely disparate results.

So it is with critiques of our legal system. The conventional analysis is that more lawyers, more laws, and more procedure will produce more justice. But in Rebooting Justice, University of Tennessee law professor Benjamin Barton and University of Pennsylvania law professor Stephanos Bibas approach the topic from a different point of view and reach surprisingly different conclusions.

The overall problem is a scarcity of justice for poor and middle-income Americans. Despite the decades-old promise of Gideon v. Wainwright (1963), which guaranteed a free lawyer to indigent defendants charged with a felony, court-appointed counsel, public defenders, and legal aid lawyers are often under-funded and overworked. Many defendants, even in capital cases, are ineffectively represented. As a result, innocent defendants are sometimes convicted, and many are pressured to plead guilty. Few criminal cases go to trial.

Matters are no better for middle-class criminal defendants, who are not eligible to receive taxpayer-funded legal aid. They must retain private defense counsel at their own expense. Criminal defense lawyers are very expensive, charging tens of thousands of dollars (or more) to shepherd a routine DUI case through trial, for example. Defendants unable to afford such assistance are forced to accept a plea bargain—a “negotiation” in which the prosecutor holds the upper hand.

To this depressing assessment, the authors add that the “situation in America’s civil courts may be worse.” Gideon doesn’t apply to civil cases, so an increasing percentage of child-custody, child-support, landlord-tenant, debt-collection, and bankruptcy disputes involve pro se parties—that is, individuals representing themselves. Complex procedures, confusing rules, and hostile court personnel make navigating the civil justice system a grueling ordeal for pro se litigants. The authors describe a legal system that is experienced by too many Americans as a capricious labyrinth.

Nor are basic legal services, such as wills, affordable for the average citizen. Even a small firm’s legal advice typically costs at least $150 to $200 per hour. Many of us are simply priced out of the legal system.

A paradox is at work. The authors quote former Harvard University President Derek Bok, who noted that there is “far too much law for those who can afford it and far too little for those who cannot.” As Barton and Bibas put it, the United States “has more lawyers than any country in the world, and law schools are graduating more new lawyers than there are jobs. Yet legal education and legal advice are horrifically expensive.” Their book is a far-ranging, thorough, and generally sober analysis of this conundrum, and it rejects the conventional wisdom that the solution lies in more lawyers and more government funding for courts.

The authors account for at least part of the problem in economic terms. The legal system, they write, is a cartel. Unlike other professions, which are regulated by the state legislature, the legal profession is governed by state supreme courts. Since judges are former lawyers, the legal profession is essentially self-regulated. Using the tenets of public choice theory, Barton and Bibas conclude that such a cozy relationship between bench and bar protects lawyers from competition. The protectionist features include law-school accreditation, limitations on inter-state mobility, attorney licensure, and especially “unauthorized practice of law” restrictions, all of which predictably increase the cost of legal services.

Rebooting Justice offers a number of solutions, including reducing the standard law-school curriculum to two years, allowing para-professionals to provide basic services (much as nurse practitioners do in the medical field), encouraging greater use of web-based technology (think LegalZoom) for legal forms and documents, and generally easing credentialing requirements to allow more qualified service-providers.

The bar’s guild-like resistance to such reforms must be overcome to make legal services affordable to the average consumer, say Barton and Bibas. And they have equally provocative suggestions for reforming the civil justice system.

Instead of extending Gideon to civil cases, as some advocate, they propose a different model altogether—a court system designed for pro se litigants, with simplified procedures, user-friendly forms, mediation alternatives, court personnel devoted to assistance, and even an “inquisitorial” (as opposed to an “adversarial”) role for judges, similar to what prevails in small claims court or administrative hearings. The authors believe that in many types of disputes, “more lawyers will not result in more justice.” Their chapter illustrating this—Chapter 9, on judicial reform—is a tour de force.

They extend their idea of simplifying unnecessarily complex legal procedures to the criminal justice system—not wholesale, but only in certain types of misdemeanor cases, at least where incarceration is not a possibility. Handling such cases without lawyers on either side sounds drastic. But as Barton and Bibas point out, it would save significant amounts of time and money. Specialized para-professionals, such as social workers, would help youths, mentally retarded, mentally ill, and non-English-speaking defendants.

The rub lies in what the authors call a “strategy of triage and a grand bargain”: The tradeoff for their cost-saving reforms would be allocating substantially more taxpayer money to the defense of felony cases. This is where, it seems to me, their mostly sensible suggestions become politically unrealistic.

In the interest of realizing the promise of Gideon and achieving the ideal of equal justice for all, Barton and Bibas suggest that funding for the prosecution and defense of felonies be equalized. We currently spend $3.5 billion on the legal defense of indigent Americans each year, but this is a small fraction of the overall cost of the criminal justice system. Prosecutors have historically been funded at a much higher level than public defenders and court-appointed defense counsel. The authors propose that public defender offices enjoy staffing levels, salaries, and caseloads commensurate with prosecutors, along with comparable access to para-professionals such as investigators, forensic experts, and the like.

Barton and Bibas acknowledge that this will dramatically increase the cost of the criminal justice system, but they view this as an asset. “As state funds grow tighter,” they write,

and the public becomes more aware of America’s extraordinarily high incarceration rate, particularly for young black men, there is increased public pressure to re-think American over-criminalization . . . . [T]he time is ripe to rethink our approach to law and order.

Previously in Law and Liberty, I have disputed the myth of mass incarceration, so I find this aspect of the authors’ analysis wanting. Voters are unlikely to support massive funding increases in order to put indigent felony defendants on a “level playing field” with prosecutors, even as part of a more comprehensive reform.

Quibbles aside, Rebooting Justice is to be commended for taking a fresh look at the “Gordian knot” of legal reform. One hopes that Barton and Bibas (the latter of whom has just been confirmed to the Third Circuit Court of Appeals) have begun a dialogue regarding how to deliver more justice with fewer lawyers.

Reader Discussion

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on November 13, 2017 at 08:25:12 am

Outside the USA, law is like any other career , undergraduate school

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Image of jkl
on November 13, 2017 at 10:50:26 am

There is so much to comment on here. First, I've always suspected that the chief motive behind Gideon v. Wainwright was to make trial court convictions less liable to be reversed on appeal - not necessarily to help innocent indigent defendants. Also, following Gideon, plea bargains became the rule and now prosecutors enjoy conviction rates similar to those in the old USSR.

By the end of the 16th C., legal reform was also a pressing issue in England. Laws, legal documents and court records were kept in Latin and law French, the number of prerogative and ecclesiastical courts had proliferated and both Francis Bacon and Edward Coke recognized the need for reform. Francis Bacon proposed a legal code based on Roman Law and Edward Coke ultimately produced his Institutes. His restatement of the laws of England featured parallel texts in law French, Latin and English, which addressed the problem that 90% of the population had no way of knowing what the law was except by word of mouth and custom. Allen D. Boyer's "Sir Edward Coke and the Elizabethan Age" is well worth reading.

In the Bay Colony, the settlers abolished base tenures and rejected the forms and the laws of England and simply wrote their own laws while also relying on the best understood elements of the common law. This worked out well as both Puritan divines and alumnae of the the several Inns of Court were rather over-reperesented in the early Bay Colony.

The settlers also demanded that routine matters, where the amount in issue was 20 s or less, be handled by the town meeting and before jurors with some familiarity with the facts of the case. The right to represented was preserved but the defendant's representative could receive no fee. In general, legal proceedings in the Bay Colony were modeled on the English manor courts not the common law, prerogative or ecclesiastical courts. Thomas Lechford's "Plain Dealing - News From New England" relates the experience of an English solicitor in the early days of the Bay Colony. The Massachusetts Body of Liberties of 1641 were the colonies fundamental laws until 1691 when New England again became subject to the laws of England. https://history.hanover.edu/texts/masslib.html#ms

Comparing the Liberties with the Leveller demands of the 1640s, it is clear that the Bay was as much a secular Leveller republic as it was a Puritan republic of church-towns.

Clearly, reform is again needed. Happily history does provide us with some hope that reform is possible.

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Image of EK
on November 13, 2017 at 13:26:44 pm

So what is the big deal?

sounds like another "Lawyer Full Employment Act" - if one would then throw in continued, or increased, tuition assistance for Law Students, these two professors would also be confident of full employment.

Then again, these two strike me as typical academics unable, or unwilling, to see the obvious.

Post "Perry Mason" TV series, America was inundated with a deluge of lawyers - yet, according to them, we still have a "justice" problem as evidenced by their claims of over-incarceration.

Seems as if the influx of these Mason wannabes has done nothing to stem the tide of crime, nor improve justice outcomes; it has, however, made safe many faculty positions for those 'learned in the law" while oblivious to much else.

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Image of gabe
on November 13, 2017 at 17:26:40 pm

This does not go to the merits vel-non of the scholarship cited or any views on "changes." But, bear with me.

During "training" in the early part of WW II one would be exposed to the following doctrine:

The purpose of military or naval law is discipline; not justice.

We now have in place a "Uniform Code of Military Justice" (1951).

Certain social, political, military and naval "needs" (or uses) brought the UCMJ into being and the Judge Advocates General School was established in the same year at the University of Virginia.

That legal system construct continues. It is cited as an example of how specific "forces" are at the base of a legal system - which functions for particular purpose.

The Legal System for the processes of criminal law has come into being and evolved over eons (particularly in Western Civilization) by reason of social (including economic) and political "needs" or uses; which needs and uses have changed very slowly and very
little in the objectives of societies in which the systems are established. The purpose, at least the principal purpose, for a criminal law process system is very similar to the old form of military law [word it how you will].

As to the remainder, the bulk, of *our* (U.S. multi-state) legal system, there do not yet seem to be any significant changes in the "forces," or in the trends they have taken, which shape the legal system we have - and thus the composition of that system's operational personnel.

Consider how much of the judicial operations are congested with matters of governmental administration - a result of expansion of government (all levels) functions; which functions are in response to public demand or political energies. They may not be "working well" They may even be slowing; but have they stopped? Can the system be meaningfully adjusted if they have not stopped?

The legal system came into being and developed as a "social instrumentality" or facility to meet certain needs and requirements of the societies. Portions of it have become "institutionalized" as a result of the nature of the internal personal relationships that are necessary to its functions; and, within those institutions, such as the judiciary and the Bar, oligarchies and hierarchies (many self-perpetuating) come into being from the nature of those relationships.
Those institutions, in turn, impact, where they do not determine, the "usefulness" of that legal system for such things as "Justice;" where Justice is determined as the identification and reconciliation (including enforcement) of obligations.

It is more likely that the system will be "reformed" only as society as well as its objectives for the system's functions are reformed.

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Image of R Richard Schweitzer
R Richard Schweitzer
on January 13, 2018 at 18:14:32 pm

I agree, it's a prototype of "Lawyer Full Employment Act". Increasing the funding for defense of felonies is language/code for "let's keep more bar crooks happy so we can justify our Law School scam". Under-funding of public defenders and court-appointed counsel is not the issue: One just needs to look at all those represented parties who disburse fortunes to their lawyer and later realize that the lawyer was overly negligent.

The professors' other suggestions such as "mediation alternatives" and "inquisitorial judges" are already provided in the legislature and/or procedural law. Purist debates aside, where's the line between an inquisitorial system and the judge's OBLIGATION (even in an adversarial system) to ascertain the truth? The sad reality is that many judges disavow that obligation and other duties they acquired since the moment they are sworn.

Except for vexatious litigants, filing a complaint in court is not done out of boredom. By the time a complaint is filed in court, the plaintiff is persuaded that other mediation-like venues were futile or he justifiably believes that they will be so. Both mediation and negotiation are premised on mutual willingness to reach a solution, and in most situations the adversaries are free to negotiate on their own. Therefore, adding "mediation alternatives" means additional overhead to the disputes between parties.

Best case scenario is that a "mediation alternative" will do no harm other than delaying the course of justice. In reality, mediation "alternatives" sometimes end up becoming compulsory just because some judge arbitrarily came up with that "interpretation". By doing so, the arbitrary judge crafts an additional tool to deny justice under the pretext that the plaintiff "failed to exhaust administrative remedies". One example of this type of fraud by judges is discussed on pages 47-49 of my "Application for Leave to Appeal"
pending in the Michigan Supreme Court (available at http://www.OneClubOfJusticides.com/p/viggers-v-pacha_74.html ) and in the 6th segment of my series "Corrupted from Ed to Judge" ( https://www.youtube.com/watch?v=oxM6NVTNUIs , minute 36:55).

Creating "a court system designed for pro se litigants, with simplified procedures" is redundant and impractical. For example, what if one party is pro se but the opponent insists to be represented? In such instances, how will a judge balance between the long-standing procedural law and the suggested "simple procedures"? In other words, what will "due process" mean in those scenarios? Current procedural law in one or more jurisdictions contains gaps and discrepancies that the jurisdiction's top court leaves unaddressed. One real-life example is developed on pages 38-41 of my Application brief ( http://www.oneclubofjusticides.com/p/viggers-v-maria-de-la-merced-viggers.html ), regarding my other case pending in the Michigan Supreme Court. This type of unsolved discrepancies enables obstruction of justice by members of Michigan's judicial Hall of Shame: Carol Kuhnke, Timothy Connors, Mark Cavanagh, Patrick Metter, Michael Kelly, and others. Imagine the multitude of new loopholes that would result if a parallel court "for pro se litigants" is implemented.

Furthermore, how will case law be applied or adapted to the "simplified procedures"? Courts will inevitably end up reinventing the wheel in many situations, thereby making the already slow judicial system even slower ... or maybe more inconsistent.

People should know that, whatever room there is for simplification of procedures, their best way to achieve them is by putting pressure on the legislators. That is because, as appellate and supreme courts repeatedly acknowledge, the judiciary must yield to the legislature. This is what judicial opinions mean when comparing "jus dire" and "jus dare".

The only realistic solution to the judicial mess requires that people educate themselves on legal matters. It certainly is too boring and it feels wasteful for us who have other intellectual interests. But knowledge is power, and there is simply no other long-term antidote to the undeniable corruption of the judiciary. The authors are right in that the "legal" system is a cartel, and I assure you that it will remain that way for as long as people delegate legal/judicial matters to "a lawyer".

By learning about legal matters, the victim will be in a better position to demand justice and realize/denounce when a judge or attorney is defrauding him. In many instances it would also discourage wrongful conduct by making potential offenders think twice before they engage in unlawful or inequitable acts. Lastly, enrollment in one of those overpriced Law School programs might be compulsory only for those who want to become lawyers, but not for the rest of us. Nowadays, printed resources and Internet greatly facilitate that much needed education for our self-defense.

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Image of Iñaki Viggers
Iñaki Viggers
on January 14, 2018 at 09:45:06 am

In lieu of my reply submitted yesterday, please see my expanded comment at http://www.oneclubofjusticides.com/2018/01/comments-on-rebooting-justice-book.html

Also, Mark, thanks for sharing your review of Rebooting Justice.

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Image of Iñaki Viggers
Iñaki Viggers

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.