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.