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Sorry, TNR, America’s Legal System Needs More Justice, Not More Socialism


When I read Noam Scheiber’s lengthy piece at the New Republic suggesting that the practice of law should be socialized, my first thought was that his argument, which goes on for a good 3,000 words, was too lengthy and incoherent to summarize and respond to. “Too long, didn’t read” is an entirely reasonable response to such rubbish, relying, as it does, on a sketchy recitation of history, a steaming pile of class resentment, a fundamental misapprehension of the purpose for and effect of a legal system—not to mention the constitutional distinction between civil and criminal proceedings—and a shamelessly flippant redefinition of the word “liberalism.”

However, having thought it over for a few days more, I have to confess I was wrong. Scheiber’s article can be quite succinctly summarized: Scheiber doesn’t care a damn thing about justice in this country at all.

Not once in his piece does Scheiber suggest that the goal of “socialized law” is to make sure that innocent criminal defendants are acquitted and guilty ones are convicted. Not once does he claim that under a system of socialized law civil plaintiffs will more often prevail when they ought to prevail and fail when they ought to fail. Nor could he. In the guise of “fairness,” Scheiber’s proposal is to prevent litigants from spending what money they choose to pursue their legal claims. Rather than leave such an important choice to the individual actually involved in litigation, he suggests that the government should impose on litigants to make that decision for them.

The point of this radical infringement on personal freedom—and to Scheiber’s credit, he does admit that the notion is radical—is to make it more difficult for the wealthy to “buy justice.”  There are at least three problems with this aside from the obvious one (every one of us should want litigants to get justice regardless of their personal wealth or other irrelevant circumstances).

First, “socialized law” is a solution in search of a problem. Scheiber assumes that the wealthy “buying justice” is a problem of such scope that we should upend our entire system of justice to prevent it. That goes too far. Scheiber himself casts the issue as one of “the 1 percent” versus the rest. But a justice system that works fine when the vast majority of people (99 percent!) sue or are sued by each other should not be radically altered when these same people find themselves involved in litigation with the wealthy. Many Americans—I suspect a vast majority—will go their entire lives without active participation in litigation against a member of the 1 percent. Scheiber’s assumption that this is a problem in need of radical correction is based on anecdotes relating facile class resentment.

Which brings me to the second problem. Scheiber claims that it “diminishes [his] status as a citizen” when the wealthy spend more to defend themselves from criminal charges than he could. This is incoherent abuse of the English language. The amount of money Bill Gates may choose to spend defending himself from criminal indictment has nothing to do with Scheiber’s citizenship. The former is simply unrelated to the latter. But by cloaking his argument in the rhetoric of rights, Scheiber can obscure his true goal: if you cannot take wealth away from people, you limit what people can do with wealth. (He also non sequiturs his way to a shot at political speech by the wealthy.) Disturbingly lacking from Scheiber’s evaluation of Gates’ legal defense, however, is the notion that it would be an actual violation of rights for Gates to be erroneously prosecuted if he were, in fact, innocent. Notably, restricting individuals’ criminal defense to an amount Scheiber thinks is “fair” does not make it more likely that individuals will be fairly prosecuted. Thus, to the extent that spending on litigation even implicates individual rights, restricting spending for criminal defense cuts against basic human rights long recognized under the United States Constitution and almost all modern democratic states. Scheiber’s attempt to coopt the rhetoric of rights, indeed his abuse of language in general—e.g., he thinks “the highest realization of liberalism” is “ensuring that no citizen can significantly outspend her adversary”—echoes socialist thought from Marx to Chomsky. He would not have to make so many contortions to dress his argument in the language of liberty if it weren’t so horrifyingly illiberal.

Socialized law of the sort that he has proposed, which necessarily limits the fees litigators can charge, would just push the good litigators into other fields of law.

Third, the real issue that Scheiber has identified is not that the wealthy can buy justice. It is that good litigation attorneys generally command higher fees than bad litigation attorneys. Socialized law of the sort that he has proposed, which necessarily limits the fees litigators can charge, would just push the good litigators into other fields of law. This is basic economics: incentives matter. Importantly, there is no reason to believe that driving good litigation attorneys into other practice types will result in better—that is, more just—outcomes in litigation. Under the guise of “fairness,” indeed, socialized law would result in less justice, not more. Scheiber implicitly acknowledges this. Competent trial counsel is a good thing. The alternative—if you want true fairness in litigation, ban the lawyers; wouldn’t that be a great leveling!—is too radical even for him. Scheiber lashes out at the wealthy for retaining good litigation attorneys, acknowledges that good litigation attorneys are desirable and expensive, laments that society cannot afford to hire good litigation attorneys for every litigant, and then concludes, illogically, that the solution is to deprive all litigants of good litigation attorneys. It is this final, illogical conclusion that gives Scheiber’s game away. Having acknowledged that good counsel is a good thing, the appropriate response should be a desire to make good counsel available to more litigants. But that’s not where Scheiber went. Instead, he worked backward: the wealthy can hire good litigation attorneys—that is, expensive litigation attorneys—and that he will simply not abide.

To be clear, we should all be deeply concerned by the idea that our justice system is not ably serving everyone who happens to come within its grasp. In the criminal context, Scheiber suggested that “extra money would certainly help” legal aid programs, and I agree that funding for legal aid is a reasonable step in making good litigation attorneys available to more criminal defendants. Several other proposals for bringing down the cost of civil litigation exist, including loser-pays laws, limits on punitive and non-economic damages, product liability reform, venue reform, and expert witness reform. Interestingly, these sensible ideas, all of which would bring down the cost of litigation, are vigorously opposed so-called liberals in the Democratic Party. It is purely coincidence, I am sure, that litigation attorneys (aka “trial attorneys”) make up an important donor class for the Democrats.

Follow Gabriel Malor on Twitter.