Free-market justice?

Ken Liu

Supreme Court Justice Hugo Black stated in 1956, "There can be no equal justice where the kind of trial a man gets depends on the amount of money he has." (Griffin v. Illinois.) More than a half century later, our justice system is arguably no better at providing a level playing field for the poor.

In Rebooting Justice: More Technology, Fewer Lawyers, and the Future of Law, Professors Benjamin Barton and Stephanos Bibas (now a Third Circuit Court of Appeals Judge) wrote: "America is a nation founded on justice and the rule of law. But our laws are too complex, and legal advice too expensive, for poor and even middle-class Americans to get help and vindicate their rights. Criminal defendants facing jail time may receive an appointed lawyer who is juggling hundreds of cases and immediately urges them to plead guilty. Civil litigants are even worse off; usually, they get no help at all navigating the maze of technical procedures and rules."

Given that our profession has a monopoly on legal services. we have little incentive to innovate and make our legal system more affordable and accessible. Though legal aid is a crucial part of the solution, we will never be able to recruit enough legal aid and pro bono attorneys to provide full access to the law for the poor. We need new thinking and help from the private sector, tech experts, entrepreneurs, investors, and others all working in tandem (and in competition!) with each other to create to solve this crisis.

Fortunately, a new generation of lawyers and entrepreneurs is doing just that. Though still small in number, new forward-thinking young leaders have recently begun new models of doing law, using the power of technology, to facilitate access to justice. But they need more support from the entire legal sector, including legal aid attorneys, to embrace this innovation. 

It's hard to say what will work and what won't. But we who care about justice for the poor need to help explore, promote, and shape better options for ensuring that the future of law is more fair and accessible. (To see what these innovators are doing to move the law into the 21st century, check out the stories in the "Other Resources" section below.)

Grace and peace, 

Ken

 


Other Resources

1. Taking a Business Approach to Access to JusticeIf we want technology to be used to help solve the access to justice crisis, the legal community needs to better support for-proft initiatives to serve this need. Newer startups are incorporating as "public benefit corporations" (PBCs) to combine the traditional startup model with their mission for doing good. Investors are starting to take notice of these initiatives, but they need more buy-in from all sectors of the legal community, including legal aid.

2. Hybrid Social Enterprises Created to Address Justice Gap.  Learn more about why and how start-up companies are being created as hybrid for-profit/mission-oriented businesses to help meet the market failure in legal services for the poor. "Since capitalism has repeatedly proven itself to be the most effective engine of human progress ever invented (although imperfect, given the justice gap market failure), the goal of the Third Sector is to harness some of the power of revenue to reinvest and achieve positive impact."

3. "Justice Tech" Startups Database.  Compiled by pro bono law promoter Paladin (itself a "Justice Tech" startup), this public database contains an impressive list of nonprofit, for-profit, and hybrid organizations committed to helping solve the access to justice crisis through technology. These innovative organizations strive to make the law more accessible in many ways, such as*:

  •    AfterPattern - Helps prepare legal forms, such as COVID moratorium declarations to suspend evictions.
  •    Athena - Helps struggling moms recoup unpaid child support.
  •    Courtroom5 - Provides litigation support for pro se litigants, including legal research and drafting motions.
  •    DoNotPay - A mobile app helping clients dispute parking tickets, fight robocalls, request refunds, and other consumer problems.
  •    Documate - A document automation platform created by former legal aid attorneys.
  •    Easy Expungements - Helps apply for expungements of criminal records.
  •    RoadtoStatus - Do it yourself software for preparing immigration paperwork.
  • * These are merely provided as examples and do not constitute endorsements or recommendations by CLS.  

4.  States Consider Allowing Non-Attorneys to Practice Law.  In an effort to help the huge unmet demand for affordable legal services, five states are now exploring allowing non-attorneys to provide legal services. In 2012, Washington state became the first state in the nation to allow non-attorneys to practice law through its Limited License Legal Technicians program, certifying paraprofessional to do limited family law matters. That program is now winding down, as it has faced obstacles in its implementation. 

Five other states are now picking up the mantle in exploring options to expand the pool of legal services. Arizona has approved the licensing of "legal paraprofessionals" (LPs) to provide limited legal services, including going to court. Utah has approved a similar program as a two-year experiment in a restricted "regulatory sandbox." California, Illinois, and New Mexico are currently deliberating on similar programs.