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February 04, 2014 12:05 PM Socialized Law

By Ed Kilgore

I don’t know if this is The New Republic’s idea of reconciling wonkiness with click-baiting, or if it’s the product of a writer-researcher project gone wild, but Noam Scheiber’s big new article proposing caps on legal representation expenditures under the banner of “socialized law” probably isn’t going to launch the next major liberal crusade. But he does give it the old college try:

[T]he idea would be roughly as follows: in criminal cases, we decide what the accused should be able to spend to defend themselves against a given charge—securities fraud, grand theft, manslaughter, etc. No one can spend more, even if she has the money, and those who can’t afford the limit would receive a subsidy for the full amount beyond what they would have spent on their own (say, beyond a certain percentage of their annual salary or net worth). In civil cases, we decide what the plaintiff should be able to spend to pursue an award of a particular amount, or to pursue a particular kind of claim, and what the defendant should be able to spend in response. The same subsidies would apply.

Okay. Which Democratic pol is going to explain this one to the trial bar, which in some parts of the country is the only wealthy interest group reliably supporting Democratic candidates?

Ah, but I’m making the mistake of taking Scheiber’s idea too seriously. Even he winds up the article conceding that the proposal, if somehow adopted, wouldn’t actually achieve its stated purpose of equalizing legal resources:

Set aside the political difficulty of enacting the program, which, to massively understate the point, isn’t trivial. Even if we were able to pull it off, how could the government possibly police the arrangement? Obviously it couldn’t. You can prevent the rich from hiring lawyers to represent them in an official legal capacity. But you can’t prevent them from hiring people with legal knowledge who simply offer informal advice, or from consulting with lawyer-friends. And that’s before you consider that favorable treatment from prosecutors and the courts is often a function of social status and political connections rather than spending per se. It was, after all, the district attorney in the sleep-apnea case who declined to bring a felony indictment, matter-of-factly explaining that “[f]elony convictions have some pretty serious job implications for someone in Mr. Erzinger’s profession.”10 There is something to be said for the basic Marxist critique of the law—that the source of injustice isn’t the way we adjudicate disputes, but the underlying imbalances of power between rich and poor.
To which the proper response is to invoke liberalism again. The liberal accepts that there will be injustice and inequality in the world—that there will be rich and poor, powerful and powerless. She even accepts that, in her attempt to bring about justice, she will fall far short of the ideal. Wall Street will invariably find a way to make reckless trades; energy companies will inevitably contaminate the air and water; the health insurance industry will deny coverage to deserving patients; the wealthy of all stripes will tilt the outcome of elections. But, in the end, the liberal still believes you have to try regulating behavior. Just because you can’t make the world a perfectly fair place doesn’t mean you can’t make it fairer.

So beginning with the premise that in this country justice is essentially for sale, Scheiber offers a solution that won’t be enacted in a million years and doesn’t really solve the problem, but should be promoted nonetheless.

If it gets the buzz it’s intended to attract, perhaps Scheiber’s piece could stimulate some much-needed interest in the decline of subsidized legal services for the poor, one of the less-discussed victims of austerian budget policies. Or maybe it could help boost the already promising rise of bipartisan criminal justice reform initiatives, noting that unequal legal representation is one of the reasons we have prisons stuffed with poor people who are in many cases status offenders.

But unless conservatives get excited about it as the Next Big Threat, I don’t think “socialized law” has much of an immediate future.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

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