Rebooting Justice

In 2017, I read a WSJ review of Rebooting Justice by Barton & Bibas:

When it comes to securing justice in an efficient and affordable fashion, lawyers can in fact be the primary obstacle. … Even basic legal services at small or mid-size firms may cost more than $200 an hour, placing meaningful legal representation beyond the reach of many Americans. … Why … costs of legal education and guildlike restrictions on entry to the profession … increasing complexity of legal processes, … choosing to represent oneself is … on the rise … [but puts one] at a severe disadvantage. … There’s no reason that paralegals, notaries, social workers and others with relevant training could not [help]. … inexpensive, downloadable forms to cover basic legal matters, like living wills or articles of incorporation. … computer-assisted mediation … Their more radical suggestion is to restructure the system so that many processes are specifically designed to omit lawyers. … The biggest obstacle to such reforms could well come from the legal profession itself.

This book was also reviewed in the New York Times:

In many contexts the presence of more lawyers actually reduces the speed and effectiveness of achieving justice. …
Few realize that the long-accepted understanding that courts have the final say on the interpretation of laws in general is not explicitly established by the Constitution. … State courts have simply asserted that they have “inherent authority” over the administration of the legal system. Under this view, rules governing lawyers, as “officers of the court,” and the practice of law in theory are “not subject to legislative reversal or encroachment.” … [Lawyers] benefit from a secretive disciplinary process that almost never results in penalties or expulsion, combined with aggressive policing of the “unauthorized practice of law” … The most powerful innovations documented in “Rebooting Justice” appear to have sprung from the creative minds of nonlawyers.

Every review I’ve found has been positive. Yet the book only got 6 reviews at Amazon (all 5 star), and only 2 at Goodreads. I bought the book back then, but only now just finished it. So the book is far from a page turner, and obviously didn’t sell many copies. But all reviews I’ve seen say it is basically right:

It is hard to argue with most of the arguments in this book: the present legal system is predicated on the assumption of litigants with relatively equal legal representation; however, in the modern age, this is all too frequently an unmet assumption. (more)

One review argued that deregulating who can practice law won’t be enough:

It is far from clear that it is the high cost of legal services—driven by alleged overregulation—that is preventing Americans from obtaining legal assistance. A recent study … found that cost explains the decision to not seek legal assistance in less than a fifth of civil justice situations. … In several states, one can become a lawyer without attending an ABA-accredited law school; some do not require attending a brick-and-mortar law school at all. … The United Kingdom began allowing corporations, known as alternative business structures (ABS), to own law firms and offer legal services since 2007. … not led to the collapse of the legal system. But … also not had an appreciable effect on access to justice.

Which is probably right. But no review disputed the book’s most radical suggestion: switch to an inquisitorial legal system, wherein judges take the initiative. From the book:

We can learn from the American system of administrative law judges and from European courts. We can adapt the inquisitorial system, in which court officials actively investigate the facts and probe the evidence instead of relying on the parties’ lawyers. That approach can cut through distracting procedural games to focus on the facts and issues at the heart of a case. Though inquisitorial judging sounds like an exotic foreign transplant, American administrative agencies already use similar methods to adjudicate unemployment and Social Security disability claims, and so do small claims courts. … Most courts in the world, including virtually all of the courts in continental Europe and most of the courts in Asia, South America, and Africa, run on an inquisitorial system.

This system is not only used in most of the world, in US administrative law, and in our small claims courts, it was also the main legal system in ancient societies, and it is used today by most non-government dispute-resolution systems, such as in churches, schools, firms, and families. This system is usually paired with a less precedent-based and more text-based system for deciding are the legal rules.

We in Anglo societies are often told that our different more adversarial and precedent-based system is superior, because it less allows corrupt judges. But as the book says,

[In a precedent based legal system] exceptions and balancing tests offer judges great discretion to adjust the law to reach almost any set of facts. They also create a massive amount of uncertainty in the system.

And if the main issue were corrupt judges, we could easily spend far more on that. For example, allow entrapment and pay many to try to bribe judges. Make 10% of court cases be fake cases designed to test judges. Often have several judges review the same case independently, and compare judge ruling stats. Monitor judge activities full time. Billion dollar bounties to those who prove corruption. Death penalties for the guilty.

Today most people simply can’t afford to use the courts to sue, and if accused of a crime they must mostly settle as if guilty, even if they are innocent, all because the system is now crazy expensive. (It didn’t use to be.) Inquisitorial judges would change that, and give most people meaningful access to a legal system to defend themselves.

By the way, requiring legal liability insurance would be another way to make sure both sides have equal access to effective lawyer support.

Here are a few more interesting quotes from the book:

We need to simplify civil justice itself, using technology to build around pro se litigants rather than lawyers.

For the first century of this country’s existence, a literate citizen could represent himself in court effectively.

One remarkable aspect of the current system is how heavily regulated every part of criminal justice is from arrest to trial to jail, except for plea bargaining.

We are aware of no randomized trials in which some criminal defendants were offered or given counsel while others were not. … what little we know suggests that, in practice, [self-defending] litigants fare about as well as those with appointed counsel.

[A study of] whether nonlawyer advocates could be as effective as lawyers in four administrative law settings: unemployment insurance appeals, tax appeals, disability appeals, and labor arbitration. On the whole, nonlawyers did as well as lawyers, and better than lawyers who did not have experience in the particular tribunal.

The only statistically significant effect found by the study of unemployment appeals was that lawyers made cases take about 40% longer.

The empirical studies are more of a mixed bag, however, with some studies showing mediation working better than traditional court and others showing little improvement.

Well into the nineteenth century, most lawyers became lawyers by “reading law”—that is, learning as an apprentice to an existing lawyer. Indeed, some, like Abraham Lincoln, read law on their own, studying classic legal books without apprenticing to anyone else.

Many other countries let paralegals, social workers, and notaries handle routine legal transactions, both in and especially out of court.

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