Equal Justice: Fair Legal Systems in an Unfair World
BY FREDERICK WILMOT-SMITH HARVARD UNIVERSITY PRESS, 2019
BOOK REVIEW CONTENTS INTRODUCTION 2080 I. THE EQUALIZATION IMPERATIVE 2087 A. Taxonomic Fatalism 2091 B. The Adversarial Fallacy 2092 C. The Talent-Hoarding Fallacy 2094 D. The Systemic Inequality Affront 2098 II. SIPHONING OFF PUBLIC RESOURCES 2100 A. Losing Judges 2101 B. A Two-Tiered Legal System 2106 CONCLUSION 2109 INTRODUCTION
Socialism is all the rage nowadays. And small wonder: we live in an era marked both by the greatest wealth and the greatest wealth inequality the nation has ever known. (1) Income disparities are only projected to grow--as, no doubt, will collective frustration that our legal and political institutions have failed to protect us from the pernicious effects of economic polarization. It is unsurprising in this socioeconomic landscape to encounter activist policies consciously aimed at equalization. While relatively few may endorse the "democratic socialist" moniker--although there are more and more every day, including famous politicians like Bernie Sanders and Alexandria Ocasio-Cortez--there is widespread enthusiasm for robust social-welfare policies supported by increased taxation falling mostly on the wealthy. Indeed, as we began writing this Review in early 2020, ideas that just four years ago "were considered radical or fringe" had become part of the mainstream political discourse. (2) Medicare for All, universal child care, paid parental leave, tuition-free college, wealth taxes and other policy proposals (many of them championed by 2020 Democratic presidential candidates) "represent a sea change in American politics." (3) And, as this Review goes to print, the nation is gripped by a pandemic that exposes the life-or-death stakes of our searing inequalities. (4) We just may, it seems, be of a mind to experiment with real change.
Enter Frederick Wilmot-Smith's Equal Justice: Fair Legal Systems in an Unfair World, offering a self-described "radical proposal" to fully socialize our most foundational institution: the legal system. (5) Wilmot-Smith starts from the premise that a just legal system requires that legal resources be distributed equitably across all citizens. The guiding principle--whether arrived at as a product of Rawlsian reasoning or just a basic moral intuition--is that the rich have no greater claim to justice than the poor. (6) Wealth, Wilmot-Smith argues, ought not determine the ability of the individual to insulate himself from the risk of wrongful conviction (for example). (7) The "benefits and burdens of legality" should be shared equally (8)--or at least, the burdens should not be allocated based on the "arbitrary" factor of antecedent wealth. (9)
The reforms Wilmot-Smith proposes--familiar in the health-care field-present as shockingly provocative in the context of the legal system. Rights equality, of course, is hardly a radical concept. But "it is not enough that rights be equal," Wilmot-Smith argues; the market for the delivery of legal services must also be equalized lest "those with more power... distort the law... in their favor." (10) The present system does no such thing. The services of lawyers--and nowadays, given the proliferation of arbitration, even judges--are traded on a free market. Market signals determine what lawyers do, whom they serve, and, therefore, how justice is dispensed. And laissez-faire, Wilmot-Smith argues, is a singularly terrible strategy for "prevent[ing]... arbitrary characteristics"--specifically, wealth--from governing the distribution of scarce resources. (11) Indeed, markets are structured for the precise purpose of ensuring that "goods end up in the hands of those who value them most and who are willing and able to pay for them." (12) Here, letting the market decide means the "best lawyers become accessible only to those who are able to pay the lawyers' fees.... [I]t also means that the rich will get justice and the poor will suffer injustice." (13)
Under Wilmot-Smith's proposed "radical interventions in the legal industry," "everyone should have the same amount of legal resources," as adjusted to account for "certain circumstances." (14) He would, in short, deprivatize the provision of legal services, prohibiting lawyers from offering their services in the private market and banning litigants from "contracting out of the public option" altogether. (15) On his model, lawyers' rates would be capped in "compliance with the best principles of distributive justice," rather than the maximization of profit, (16) and individuals would be prohibited from contracting privately with counsel to avoid these price controls. (17) The private market for judges--arbitration--would be abolished, as well. (18) Eschewing the partial interventions and feeble regulations that have long characterized law reform, Wilmot-Smith presents a moral case for completely overhauling the system for the delivery of legal services. (19)
Consciously or not, Wilmot-Smith writes in a venerable tradition of progressive legal intellectuals. Starting in the 1920s, progressives began advocating for government-funded legal services as critical to the fair operation of the modern welfare state. Early proposals by the National Lawyers Guild for "socialized law" were vilified as "Communist," and plans to subsidize legal services were attacked as enabling frivolous lawsuits. (20) But by the 1940s, these ideas began to gain currency. The United Kingdom became the first nation to provide government-funded civil legal services, offering free divorce lawyers to soldiers returning from World War II (21) and then broadening the program substantially from there. (22) The Netherlands, Canada, France, Sweden, and Australia soon followed course to varying degrees. (23)
In the United States, legal services were traditionally delivered to indigents in civil cases, if at all, via pro bono or reduced-fee services organized by private volunteers and charity organizations. (24) But by the mid-1960s, with the Civil Rights Movement and the war on poverty shining unprecedented light on the plight of the disadvantaged, calls for government-funded civil legal assistance grew stronger, leading Congress to establish an independent agency. (25) In 1974, the Legal Services Corporation (LSC) was chartered to provide civil legal aid to those "otherwise unable to afford adequate legal counsel." (26) But LSC has been severely resource constrained from its earliest days. (27) The Trump Administration now seeks to eliminate the program in its entirety, (28) but even President Obama never made an annual budget request of over $475 million for LSC (29)--as compared with hundreds of billions of dollars spent on civil litigation annually in the private market. (30) Indeed, in 2017, the top one hundred private law firms each reported revenues that exceeded the entire LSC budget of $410 million. (31) This underfunding has predictably resulted in the radical underservicing of the civil legal needs of indigent and even working-class people.
As frustrations with the availability and quality of government-funded legal-assistance plans grew, some progressive thinkers began arguing for sweeping changes to the legal system's structure. For example, in 1979, Richard Abel presented an argument for socialized legal services. (32) Asserting that "the constant tendency th[r]oughout the last century has been for the distribution of lawyers to grow more unequal," Abel proposed a Marxist rethinking of the private market in legal services. (33) (However, Abel later dismissed the idea as "politically unfeasible and ideologically unimaginable." (34)) More recently, in an article for The New Republic, Noam Scheiber argued for "socializ[ing] the legal profession," declaring that "[t]he only way to bring about the ideal of equal protection under the law is to boost spending on lawyers for the poor and middle class, and to prevent the affluent from spending freely." (35)
So the moment appears ripe for a thoughtful and full-throated presentation of the case for socialized legal services--or better yet, a tract on inequality in the delivery of legal services that can stand comfortably on a shelf with such significant explorations of inequality as Daniel Markovits's The Meritocracy Trap, (36) which focuses on the role of higher education in furthering pernicious cultural and economic polarization, or Thomas Piketty's Capital in the Twenty-First Century, (37) which takes on nothing less than explaining the phenomenon of rising inequality itself. Might Frederick Wilmot-Smith's Equal Justice join this company?
Wilmot-Smith's core claim is that inequality in the level of legal services available to rich and poor is itself an evil to be combated. This normative claim--Wilmot-Smith's "equalization imperative"--is both inherent and derivative. On the inherent side stands the moral ugliness of a marketplace where the rich are able to escape liability on account of their wealth, while the poor bear the risks of wrongful conviction and other terrible legal consequences, owing to the inferior legal services available to them. It is an imbalance that is all the more grotesque when one considers (as Wilmot-Smith does at length) that justice itself is a fundament upon which all other social goods depend. (38)
The derivative side is more complex. Wilmot-Smith offers several bases to support the instrumental claim that equalizing the resources available to rich and poor will benefit poor people in a way that simply increasing the resources available to them would not. First, he takes aim at classic liberal incrementalism, arguing that any attempt to provide legal services to the poor within the current market structure is beset by so many challenges that socialization of the legal-services market is the best solution for delivering legal services in a just justice system. (39) Second, because litigation is inherently...