The Legal System and Its Reform

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Barton and Bibas argue for significant changes to improve justice in the legal system.

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Rebooting Justice is about a system in crisis: specifically, the U.S. legal system. The book’s authors, Professor Benjamin H. Barton and Judge Stephanos Bibas, place under the microscope both sides of the legal system, criminal and civil.

Theirs is a well-written, consequential book. It proceeds in two main parts. The book first offers a description and diagnosis of the overarching problem, and then it presents and assesses possible solutions.

The book’s message about the problem is clear and stark: the U.S. legal system leaves far too large a proportion of society, especially the poor and middle class, without adequate fairness in both process and outcomes.

Barton and Bibas point to extensive evidence showing the disparities in legal representation that exist today. For example, they note that, in eviction cases in New York City, 88 percent of tenants lack legal representation, while 98 percent come to court represented by lawyers. In Washington, D.C., the disparity is even more stark: 98 percent of tenants go unrepresented.

On the criminal side, “defendants facing jail time may receive an appointed lawyer who is juggling hundreds of cases, lacks a private investigator or other support, and immediately urges them to plead guilty.” The system is tilted toward the prosecution. States and the federal government spend hundreds of billions of dollars each year on the criminal law system. The funding for criminal defense for the poor amounts to only 2 percent of that total funding; the rest “goes to police, prosecutors, crime labs, prisons, and the like.”

The private provision of legal services is similarly skewed toward the well-to-do. Why? Because the cost of legal services is “horrifically expensive,” Barton and Bibas write. The monopoly of the bar is a key source of the problem: “Authorities keep nonlawyers such as paralegals from offering more affordable competition.” Of course, that monopoly may also serve to protect clients from incompetent or shady lawyers.

At bottom, Barton and Bibas argue that “laws and procedures are too complex and legal advice too expensive, for poor and even middle-class Americans to get help and vindicate their rights.”

What is the solution?

Barton and Bibas make a strong argument that the answer is not further funding for more lawyers. Their book has an entire chapter devoted to the public choice reasons why the system operates the way it does, to provide so little funding for public defenders or to subsidize legal representation in civil matters. They emphasize that these are systemic disparities. The existence of these inequities does not imply malice or ill will to anyone. “No one sat down and deliberately designed the flawed criminal or civil justice systems,” they write. It is simply that lawyers, courts, and court staffs mainly benefit from the current system; it is designed to work well for repeat players.

Just like good government in general, fair justice in the legal system is not terribly popular in legislatures—or at least it does not turn out to be as dominant a priority for public spending as are medical services, housing, and living expenses. Fair justice simply does not have a strong lobby supporting it. As a result, on the criminal side, “the plea-bargaining assembly line lumbers on at relatively low cost.” Inadequate funding for civil justice is similarly inevitable.

What is needed, Barton and Bibas argue, is not more funding—which is not going to happen anyway—but other more fundamental, structural changes.

One such set of changes would entail taking advantage of technological advances. Their chapter on “techno-optimism” begins with an extended account of Colin Rule, who designed the highly successful online dispute resolution system for eBay, which Barton and Bibas hold up as a model for what technology can do for disputing in America. eBay’s system handles up to 60 million disputes a year. Most of it is entirely automated: 90 percent of disputes settle without any further intervention by humans. And customers are highly satisfied with the outcomes—so much so that they want to return to eBay after their dispute even more than those customers who never had a dispute!

Barton and Bibas see great potential for expanding online forms, such as the A2J system, which was developed at Chicago-Kent College of Law and has been widely applied throughout New York. They hold up LegalZoom, Rocket Lawyer, and other such online services. Overall, they say the provision of legal services should look more like the restaurant industry, which offers customers a range of options from McDonald’s to fast casual Chipotle, and from nicer sit-down dining like Ruby Tuesday to the elegance of fine dining.

Right now, Barton and Bibas say, the legal system offers most people a choice only between no meal at all or the fine dining of an expensive attorney.

Barton and Bibas also urge, as another avenue for reform, changes to the court system to make the processes clearer, easier, and simpler for pro se litigants—those who represent themselves in court. Barton and Bibas want court clerks to “simplify and standardize forms,” “post the forms in courthouse kiosks and online,” and “answer questions, provide guidance, and actively advise litigants throughout the process.”

“Most importantly,” Barton and Bibas write, “judges must change how they run their courtrooms.” Judges should “explain the law…to the pro se litigants politely and simply” and “reserve time to answer questions patiently.” Judges should “be flexible with the rules of procedure and evidence.”

Indeed, for cases involving pro se litigants, Barton and Bibas suggest that there would be great value for federal and state judges running their courthouses more like administrative law judges run adjudications in agencies over disability benefits.

Another major reform strikes closest to home for those of us who teach in law schools: Barton and Bibas urge reforms to legal education requirements and practice rules so that the legal profession can become more like the medical profession, which increasingly relies on non-physicians, such as nurse practitioners, to provide needed health care. They say that for law school education, “three years is too long.” They do not offer any single alternative, but they invite experimentation and a large retreat from the stringency of the current barriers to giving legal advice. But they very much favor greater scrutiny—especially through consumer ratings—of the actual delivery of legal services. Together, they believe that these suggestions would reduce the barriers to providing legal services but increase the oversight of the quality of those services in practice.

Finally, Barton and Bibas suggest trying to rethink the system overall, preserving the provision of legal services for felonies and major misdemeanors, while allowing varied ways of resolving other matters, such as through paraprofessionals or even technological dispute resolution—even potentially for minor misdemeanors. They argue that lawyers are most needed for those serious offenses where the facts and the legal procedures would be most complex. But they say that insisting on lawyers everywhere else can make the system less fair. As they provocatively put it, “lawyers sometimes make proceedings less fair, not more.”

In the end, Barton and Bibas have no illusions that their proposed reforms will be easy to adopt.  But if there is to be any hope of improving the quality of justice for all individuals, then what the nation needs is to engage in the kind of thorough, clear-eyed assessment of both problems and solutions that is exemplified so well by Barton and Bibas’s insightful and thought-provoking book.

Cary Coglianese

Cary Coglianese is the Edward B. Shils Professor of Law and Political Science at the University of Pennsylvania Law School, where he is also the director of the Penn Program on Regulation and faculty advisor to The Regulatory Review.

This essay is part of an eight-part series, entitled Revamping the American Justice System.