Washington Lawyer - December 2017 - 38
UNEQUAL JUSTICE SYSTEM
Review by Ronald Goldfarb
hile the United States
is focused on ensuring
universal access to affordable health care, along come law
professors Benjamin Barton from
the University of Tennessee and
Stephanos Bibas from the University
of Pennsylvania to point out a
comparable problem in the legal
profession. In their new book
Rebooting Justice: More Technology,
Fewer Lawyers, and the Future of Law,
they argue that public programs for
the poor are both inadequate and
exclude potential middle-class clients
who lack the financial resources to
pay for lawyers.
In laying out these inadequacies, the authors offer
fresh ideas on how lawyers can emulate doctors in
using new technologies and evolving paraprofessional approaches to usher in "a new golden age of
access to justice." They propose a tiered system of
legal services to ensure good lawyers are available
for the most vital situations.
Naturally, there is resistance to innovation.
Entrenched professional organizations are protective of their self-interests and resist what they
describe as "commodification" of professional
services. They consider their work "an art as much
as a science, and protocols seem insulting," the
authors write. Furthermore, legislatures are reluctant to fund legal services and criminal defense
for the poor.
In Rebooting Justice, the authors demonstrate the
need to systemically simplify legal services and
make them more accessible. Our criminal justice
system, even after the Gideon case, which made
lawyers in criminal cases a constitutional requirement, rarely works for poor and middle-class clients.
Appointed counsel are often ineffective and generally out-staffed and out-funded by government
Rebooting Justice cover courtesy of Encounter Books
38 WASHINGTON LAWYER
* DECEMBER 2017
lawyers, who themselves are "wildly overburdened,"
the authors note. The result is an excess of improvidently bargained guilty pleas. Behind this is a
system where there are fewer public defenders
than prosecutors, and their funding isn't comparable. Moreover, clients in capital cases face remarkable prejudices as well.
Litigants acting pro se fare even worse. Federal
judge Richard Posner recently warned: "[M]ost
judges regard these people as a kind of trash, not
worth the time of a federal judge." American Bar
Association studies report that pro se cases are
accelerating dramatically on a national level, and
court officials are impatient with them.
The comparable situation in civil cases is worse.
Everyday problems such as child support and
custody, evictions claims, and will probates unnecessarily require costly legal assistance because of
arcane, complicated systems. The United States
is 27th in the world in providing adequate legal
assistance in civil cases (22nd in criminal cases),
according to the ABA. Ironically, we have more
lawyers than any country in the world, and law
schools graduate more new lawyers (many in
debt) than there are jobs.
The assumption of "more lawyers, more justice"
is fallacious, and the authors propose a new
approach: simplifying many procedures so nonlawyers can assume some of the routine work without
prejudicing clients. Such a system would use online
dispute resolution techniques; create forms
amenable to lay people; and delegate appropriate
duties to court administrators, social workers,
paralegals, law school clinics, and externships.
Rebooting Justice makes the case for ushering in a
democratic 21st-century legal system, one that is
"simpler, cheaper, more flexible, and less regulated,"
the authors write. But the changes they champion
will not be enough to achieve the fundamental
reforms that are needed in the justice system.
Government funding of fair and functioning public
legal programs is needed to bring the necessary
balance to our adversarial justice system.
Ronald Goldfarb is an attorney, author, and literary
agent in Washington, D.C. Read more of his work at