In order for a legal system to be just, it must treat everyone equally and fairly, giving special treatment neither to the rich nor the powerful, and protecting the rights of all individuals wherever they are being violated. Justice, as they say, should be blind. It’s a noble goal, but one that proves difficult in practice. We have all experienced frustration at the Justin Biebers and Paris Hiltons of the world receiving slaps on the wrist while the young, impoverished and disadvantaged members of minority classes are subject to much more severe, often life-destroying ramifications for their crimes.
This is a recognized issue with the current legal system, but there are disagreements over how it should be resolved. Noam Scheiber, over at the New Republic, has come up with the radical suggestion that the problem stems from wealth inequality among defendants, and their correspondingly diverse means for employing legal council. The lawyers of a Donald Trump will naturally, if you’ll excuse the pun, trump those of an inner city black kid, and hence the unequal outcomes we see in the courts. His recommendation for remedying this sad state of affairs is a complete socialization of the legal profession.
Much like Britain’s National Health System, a socialized system of attorneys would provide equal council to whomever required it, all at the expense of the taxpayer, of course. On the surface, such an idea may sound appealing. The equality it would promote seems in keeping with the values we expect of the legal system. Upon closer examination, however, it falls apart as such egalitarian pipe dreams always do, because of a lack of understanding of human nature and incentives.
The first thing to point out is that, historically, socialized systems have not eliminated the benefits of financial or political privilege at all, but have in fact exacerbated them. In the Soviet Union and Cuba, the policies intended to make everyone equal only brought poverty to the masses while concentrating wealth in a few chosen elites. These may seem like extreme examples, but public choice theory teaches us that the more influence government has over a process, the more sharply will political access be rewarded. As Mark Twain once observed, “History doesn’t repeat itself, but it rhymes.”
Additionally, we must consider the effect a socialization of lawyers would have on attorney supply. When all attorneys are doled out equally and salaried by the state, the wages they are able to command will necessarily go down. We already see this with district attorneys making far less than private defense lawyers, hence a lack of good DAs. With the incentives to invest large sums of time and money into law school decreased, we would also witness a far smaller stock of available lawyers. While many may view this as a good thing, the fact is that we do occasionally need these people to help defend our rights and an insufficient pool of available attorneys does not serve the interest of the common man.
What progressives often fail to understand is that, in a world of scarce resources, rationing is unavoidable. When the price mechanism is removed as an available rationing tool, we must instead ration based on time. What happens in a system of socialized law when there are more defendants than there are lawyers? Some will have to wait to have their day in court, potentially a very, very long time. The United States Constitution guarantees the right to a speedy trial, and a system in which accuser and accused alike are forced to wait indefinitely to resolve their legal claims hardly seems like the fair application of justice we are after.
A better approach to legal reform would involve not socialization, but further privatization. The courts are already monopolistic in nature, with no competition mechanism in place to keep them honest, and while the legal profession is relatively capitalistic, there are still many state-erected barriers to entry that need tearing down. By reforming licensure requirements for attorneys, we would see an increase in supply and a decrease in prices, making more quality attorneys available to the less wealthy citizens. Additionally, the increasingly competitive market would have more incentive to take pro bono cases in order to foster good will and differentiate from the competition.
Ultimately, I would like to see the complete privatization of the law. But for the time being, we should at least recognize that more socialism is the wrong approach towards making the legal system more just and impartial