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Book Entry

Review: In ‘Rebooting Justice,’ a Call to Help the Lawyerless in Court

The Supreme Court building in Washington.Credit...Brendan Smialowski/Agence France-Presse — Getty Images

The current debate over how to solve the health care crisis provides a relevant backdrop to a provocative new book that proposes a wide range of solutions to the crisis in another sector whose availability in extreme circumstances can also mean the difference between life and death: legal services.

In “Rebooting Justice: More Technology, Fewer Lawyers and The Future of Law” (Encounter, $23.99), Benjamin H. Barton and Stephanos Bibas offer both historic perspective and startling data regarding the obstacles faced by average citizens in navigating our courts. In different ways, the parallels and the contrasts with health care provide equally profound insight.

In medicine and law, it appears that the appellation “crisis” comes to apply only when longstanding challenges faced by the poor in obtaining essential services begin to affect the middle class. The sweeping narrative of “Rebooting Justice” encompasses both the criminal and civil legal systems.

Although failures in criminal justice — highlighted most graphically by those on death row later exonerated by DNA evidence — grab headlines, it is the fundamental breakdown of the civil justice apparatus that is most likely to affect the daily life of the middle class. Whether dealing with a divorce, the estate of a parent, a personal injury, personal bankruptcy, a business dispute or a disagreement with some government entity, very few of us manage to go through life without needing a lawyer.

Yet increasingly, since the 1980s, most cannot afford one. But the relevant legal institutions have not adjusted to reflect this new reality. This has particularly harsh results when one of the litigants can afford a lawyer and the other cannot.

So, for instance, in many major cities, landlord-tenant disputes are characterized by more than 90 percent of the tenants’ being unrepresented and a similar percentage of landlords being happily lawyered-up. You do not need a law degree to know how that movie ends.

Many of the most compelling proposals of “Rebooting Justice” revolve around using technological tools and institutional reforms to more effectively support the overwhelmingly lawyerless who seek redress from the courts.

Another striking similarity between the debates over our heath care and legal systems is the extent to which the possibility of intelligent discourse is undermined by a confused framing of the fundamental issue. In the health domain, the problem is presented as the availability of adequate insurance, rather than the availability of adequate care (which insurance may or may not facilitate).

In the legal domain, the problem is presented as the availability of lawyers, rather than the availability of justice. And, as Mr. Barton and Mr. Bibas convincingly demonstrate after surveying the research, in many contexts the presence of more lawyers actually reduces the speed and effectiveness of achieving justice.

One particularly significant difference between health and the law is a poorly understood structural obstacle to actually legislating common-sense solutions to the crisis in legal services. Whatever one thinks of Obamacare or any of the proffered alternatives, there is not much controversy over Congress’ authority since the Supreme Court upheld the legality of the Affordable Care Act. But in the legal realm, the profession has to date managed to largely insulate itself from potential outside interference. How it achieved this feat is itself a fascinating story.

Few realize that the long-accepted understanding that courts have the final say on the interpretation of laws in general is not explicitly established by the Constitution. Instead, the seminal 1803 Supreme Court decision, Marbury v. Madison, enshrined this principle, which has been accepted by all branches of government ever since.

Similarly, state courts have simply asserted that they have “inherent authority” over the administration of the legal system. Under this view, rules governing lawyers, as “officers of the court,” and the practice of law in theory are “not subject to legislative reversal or encroachment.” “Rebooting Justice” painstakingly documents how this clearly self-interested legal doctrine has been abused by courts in an unholy alliance with bar associations to shield lawyers from competition at the expense of the public.

This regime has spawned the twin pillars of the current crisis. On the one hand, providing any legal services typically requires attendance at a law school whose accreditation requirements — often entailing an expensive library, burdensome faculty guidelines, three years of course requirements and more — impose a prodigious entry barrier and an equally prodigious debt burden on graduates. On the other hand, once admitted, members benefit from a secretive disciplinary process that almost never results in penalties or expulsion, combined with aggressive policing of the “unauthorized practice of law” should any nonlawyer try to assist a litigant unable to afford the real deal.

One of the biggest surprises of this enlightening and well-written book is that its authors are highly regarded law professors, with extensive experience not only as academics but as practitioners. The surprise is not primarily that it is against their self-interest as established members of the club. Rather it is because the most powerful innovations documented in “Rebooting Justice” appear to have sprung from the creative minds of nonlawyers.

For example, the dispute resolution software developed internally at eBay — and subsequently licensed as a “fairness engine” applied to a wide range of alternative domestic and international settings — was the brainchild of a former Peace Corps volunteer, Colin Rule. More broadly, a startling number of the entrepreneurs who are reshaping the legal landscape for the better have come from outside the profession. For example, Law360, which changed the way legal news is collected and reported, was founded by two graduate students who were neither lawyers nor American.

Since so many of the innovations that have had the effect of actually improving things have come from nonlawyers, the legal establishment’s continued protection of the status quo — all justified under the spurious guise of “consumer protection” — is all the more indefensible.

Mr. Barton and Mr. Bibas have used their deep knowledge of the culture, history and institutions involved to identify which specific functions can be at least as effectively performed by laymen or technology. They also demonstrate how corresponding adjustments to the roles still played by full-fledged lawyers — most notably, judges — should enable the system to generate more justice with fewer lawyers.

Now if only we could get Mr. Barton and Mr. Bibas to focus on the health care crisis.

Jonathan A. Knee is professor of professional practice at Columbia Business School and a senior adviser at Evercore Partners. His latest book is “Class Clowns: How the Smartest Investors Lost Billions in Education.”

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