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Monday, March 05, 2018

Legal Ed's Futures: No.1

The posts for this symposium will be listed in order just by a number, with the author & affiliation at the end of the post

The Real Barriers to Access to Justice

               It’s an honor to comment on Mike Madison’s reflective manifesto on the future of legal education. Mike introduced me to legal blogging 12 years ago, and I have learned so much from him along the way. Few law professors better balance the scholarly detachment and commitment to justice that are the hallmarks of our profession. Mike’s humane invitation to imagine better methods in legal education is inclusive, timely, and well-informed. I hope he’ll forgive me for trying the broaden the conversation beyond his already expansive scope.

               I share Mike’s concerns about the need to adapt the legal profession to changing technology. I have written and taught extensively about the relationship between coders, managers, and lawyers in data-driven areas of finance and law. I teach venerable cases in my health law courses, but also keep up with the alphabet soup of highly technical ATCBs, RACs, and QIOs in the world of big data driven health care. We need to recognize where law schools are trying to meet this new reality, and to build awareness of that work. I agree with Mike that the median law school needs to do more to keep up with technological change—both because of the functional sovereignty of large firms, and the ways that software and data are changing legal practice.

However, I think Mike’s “Invitation” could benefit from a bit more realpolitik. In this document, the legal profession itself stars as the key barrier to access to justice: it is slow to adopt technology, restricts entry with excessive licensure requirements, and bogs down in technicalities. Let’s assume, for now, that these are fair charges.* Are they really the reason why so many consumers feel unable to fight giant corporations, or why employees feel trampled by the fissured workplace?

I’d like us to keep in mind a few other factors. The evisceration of class actions, the rise of arbitration, boilerplate contracts—all these make the judicial system an increasingly vestigial organ in consumer disputes. You cannot read a book like Lewis Maltby’s Can They Do That? without recognizing that the powerlessness of most workers is not the result of a paucity of lawyers (especially in an country with more per capita than almost any other), or greedy firms overcharging for services. It is, instead, the result of a web of rules woven by lobbyists and elite attorneys over decades with the intent of making the firm, in effect, a private government. Corporations have skillfully funded candidates in state judicial elections (or politicians who appoint judges) who promote their vision of a stripped-down, nightwatchman state. Make lawyers as cheap and skilled as you want—they can’t help victims access justice if the laws themselves are systematically slanted against them. The same goes for #legaltech: I expect every innovation to, say, create apps to help the evicted, to be overwhelmed by a tsunami of money backing services like ClickNotices.

On the criminal side, the underfunding of public defenders (and other advocates for those targeted by the carceral state) is shameful. From a supply-side perspective, the answer here may be to cheapen training and thereby double the number of public defenders, so that states could perhaps hire two at $24,000 a year instead of one at $48,000. I do not believe that’s a great solution. As long as there are $1.5 trillion tax cuts flying around (mainly to top income brackets), and 1412 households in the US making over $59 million annually, I’d put forward a vision for more spending on these vital services, at a good wage, with a strong Public Service Loan Forgiveness Program. The latter should not even be considered a subsidy, given the vast profits the government has made on student loans generally, and the market’s systemic undervaluation of public service work. I realize that policy is going in the opposite direction now—but let’s also realize how much that development is driven by private lenders’ lobbyists, who want to make the federal student loan program a quicksand of confusing paperwork and high interest rates in order to make their own products comparatively more attractive.

Moreover, even on the criminal side, we cannot begin to have a serious discussion about access to justice as a supply-side issue, without acknowledging the role of the powerful in society in reducing effective demand for these legal services. We could abolish licensure tomorrow, and let every person hang out a shingle—but there won’t be a proper level of work for, say, attorneys defending the wrongly accused (or excessively punished) if punitive neoliberalism simultaneously expands the criminal justice apparatus while cutting funding to defense attorneys (or capturing the resources of the accused via civil forfeiture). We will never have an optimal supply of lawyers promoting workplace rights, if the effective penalties for violating the law are negligible, or if litigation is too chancy and slow to guarantee some reasonable return for one’s efforts over time.

So I’d propose that we think more about the real barriers to access to justice. To be sure, many law schools could do more clinical work to help the poor in their community—but let’s always remember what happened to Tulane when they offended Louisiana polyvinyl chloride barons. Legal scholars can do more to identify structural injustice—but let’s also remember the BigLaw fixers who stand at the ready to deflect even minimalist reforms.

We can’t formulate solutions together if we don’t grasp a common set of problems. We can’t imagine a better future without an honest accounting of the present. But once we do, I think we can develop some visions for better legal practice that will respond to some of the key concerns raised by Mike—as I plan to do in a later post on AI & law.

* In academic work, I have challenged each of these characterizations, observing the ways in which parts of the profession have promoted troubling technology, ignored the real value of licensure, and embraced disastrously algorithmic forms of regulation. I realize that there are other examples that vindicate Mike’s telling, and they could outweigh mine. I just want to mark this disagreement on emphasis.

Frank Pasquale (Maryland)

Posted by Dan Rodriguez on March 5, 2018 at 08:07 AM | Permalink


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