Frank Pasquale –
There is a vast literature on access to justice in the United States. In what Sameer Asher has diagnosed as a broadly neoliberal discourse, 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.
There is a larger lesson here. While Trump appointees wreak havoc for the next 3 years, progressives will be debating how to use the state to improve labor markets. Centrist technocrats are focused on battling occupational licensing, to transfer wages from middle quintiles to lower ones. They dream of a world where, thanks to unrestricted entry among, say, plumbers, entrants can flood the market for that labor, bringing down pay levels generally, but bringing opportunity to those now shut out by licensing requirements. (They are conspicuously silent about what the effects on quality of service would be here, as is much of antitrust law.) By contrast, political economists are focused on capital’s power first (a 99% vs 1% dynamic), and on effective demand. If you want more plumbers employed, maybe tax the top more and redistribute that money to everyone else—a decent proportion of whom may renovate their bathroom or move to a newer apartment.
In short: when it comes to access to justice, the legal literature, like the Reagan and Trump Administrations, is dominated by supply-side perspectives bent on cheapening the cost of labor. Sometimes, that emphasis is a good thing—featherbedding, for example, is a real problem in some infrastructure contexts. But the conversation can’t even begin to be accurate or balanced without a sober assessment of problems on the demand-side.
* 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. So I think we need to question these foundations of the neoliberal access to justice project, too.
This is a modified version of a post which appeared in a PrawfsBlawg symposium on the future of legal education.
Frank Pasquale is a Professor of Law at University of Maryland Francis King Carey School of Law.