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Review: Law Democratized: A Blueprint for Solving the Justice Crisis

Is anyone in the country better qualified than Renee Knake Jefferson to write about access to justice? Professor of Law at the University of Houston, co-reporter for the American Bar Association’s Commission on the Future of Legal Services, and also designated by the ABA as a “Legal Rebel.” She has long been a thought leader in the quest to make legal help available to all, regardless of resources. Her new book, Law Democratized: A Blueprint for Solving the Justice Crisis, does not disappoint.

“Justice” and “access to justice” can mean many things. Jefferson devotes no less than five scholarly pages to analyzing various definitions, but her primary concern might be summarized as facilitating the distribution of legal services (not necessarily provided by lawyers) to assist the non-wealthy with civil legal problems like child support, guardianship, housing, medical needs and much more. One data point: A 2009 Georgia study concluded, “About 87 percent of households with legal problems did not seek legal assistance. A key reason for not seeking legal assistance is a lack of understanding of the legal nature of the problem.”

Jefferson begins the book with an attention-grabbing in medias res description of a consequence of her near-death injury: “I faced multiple problems that required legal help. And yet, even as a lawyer myself, I did not know what to do.”  This tracks my experience. I’ve been a lawyer for 40+ years, but it was far from easy for me to find lawyers qualified to assist me in identifying and sorting through the myriad issues surrounding my wife’s stroke two years ago.

No short review can fully convey the scope and specificity of this book, so I’ll proffer only a survey of its skeleton and some subjective reactions to a few points:

Part I of the book consists of five chapters that document the problems, how they have developed over time, and analyze the obstacles to improvement. The author makes a convincing case that “a massive delivery problem clearly exists for personal legal services.” She believes that pro bono and government-provided legal services for the indigent do not come close to meeting these needs. I strongly agree.

Here are summaries of the five chapters:

• Chapter 1, Unmet Legal Needs, explains why calling the current situation a crisis is justified.

• Chapter 2, (Not) Finding Legal Help: A Case Study, explores the history of legal advertising and explains why it has failed to fulfill its original justification as a vehicle for public education. The Supreme Court’s decisions in Bates v. Arizona State Bar, 433 U.S. 350 (1977) and its progeny were well-intentioned, but the hoped-for benefits have not been realized.

• Chapters 3, A Brief History of Lawyer Regulation, and 4, The Legal Monopoly, demonstrate that legal profession' self-regulation is a major barrier to real reforms. Is it surprising that those who make rules are more likely to prefer rules that benefit themselves and those like them? 
• Chapter 5, Preserving Democracy: The Role of Courts and the Role of Legal Ethics, advances the thesis that lawyers who lie in public forums about election integrity should be disciplined. Rudy Giuliani, Sidney Powell, and Lin Wood are singled out.

Jefferson believes that “[R]equiring of lawyers the same candor to the public that ethics rules require in court for the limited context of lies about election results is both constrained and justified given the harms they produce.”

This chapter initially seemed wildly out of place in a book about access to justice. On further reflection, however, it is completely justified. Wouldn’t it be scholarly malpractice for anyone writing a book in 1930 about access to justice in Germany to ignore the looming threat to democracy?

Part I provides historical perspective. How did we get here? Part II is forward-looking: Where do we want to go? How can we get there? These are giant questions without easy answers, but Jefferson provides a well-thought-out and well-articulated blueprint for addressing them.

Here are summaries of the last six chapters, again with some subjective reactions:

• Chapter 6, Antitrust Law, suggests that the Supreme Court’s approach in Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975) and subsequent decisions might be, or become, a wedge to overcome lawyer resistance to changes that might create competition in the form of new legal service providers—providers who in some cases might provide help that is not just cheaper, but higher in quality.

Experience shows that the biggest predictor of professional service quality is often the level of specialization, not the provider’s academic pedigree or professional organization memberships. For example, many, probably most consumers, would fare better with the IRS if represented by a non-lawyer tax specialist.

The British experiment of increasing competition by excluding only selected “reserved activities” areas from the definition of unauthorized practice of law is worth exploring in this country. Under this approach, everything that’s not a reserved activity (like the right to appear for and address a court) is fair game for non-lawyers.

• Chapter 7, The First Amendment, considers another approach to address lawyer-created obstacles to reform. Litigators have urged extensions of the Supreme Court’s decision in NAACP v. Button, 371 U.S. 415 (1963), with some success. Further progress on this front is possible.

• Chapter 8, Regulatory and Legislative Reform, summarizes approaches that have been used in other countries as well as some U.S. innovations. Even the unsuccessful approaches may offer valuable lessons.

• Chapter 9, Education for the Legal Profession, and Chapter 10, Education for the Public, explore ways legal education can lead the way to better results.

• Chapter 11, Ethical Innovation, addresses the need to consider the relationship between legal ethics issues and reform efforts. This chapter has many valuable ideas, including the need to include ethical considerations when implementing artificial intelligence to help expand access to justice.

The suggestion that bar authorities add a “duty of innovation” to lawyer ethics rules strikes this observer as unpromising. Difficulties in definition and enforcement suggest such a duty could be aspirational at best. Codes of conduct are not the best way to set aspirations. Professor Geoffrey’s Cleveland State Law Review article has a good analysis of this issue.

• Chapter 12, The Way Forward, is the most ambitious. It provides specific recommendations and identifies the entities that must lead the way to reform.

One of this book's most appealing features is that Chapters 6 through 12, the “blueprint,” each end with a checklist of what changes are needed AND which entities are best positioned to take the lead in implementing particular needed reforms.

Each problem area (which I prefer to think of as an “opportunity area?”) is matched with the entities most involved. For example, she sees constructing a “User-Friendly National Directory or Portal for Legal Help” as a job for Attorneys, Advocacy Groups, Bar Authorities, Legislatures, the Legal Tech Industry, and Research Centers. “Creating a Civil Right to Counsel” (sometimes referred to as a “Civil Gideon”) is a job for Advocacy Groups, Judges, and Legislators. Bar authorities should not need help with the task “Ease Geographic Restrictions.”

Why do I like this approach? Professor Jefferson’s approach is refreshingly practical. The checklist could be analogized with a doctor’s diagnosis. Assigning responsibilities to specific entities is like prescribing the right drug to treat the problem.

The fight for better access to justice is similar to what is known in a military context as a “full spectrum” conflict. It is not one battle. It is a thousand battles, fought on a thousand battlefields.

A few other thouthts about this fine book:

·         Ms. Jefferson writes more engagingly than might be expected from someone with more than 30 law review articles on her resume. Her prose is crisp, and she makes her points without relying on academic jargon.

·         Ms. Jefferson’s extensive use of endnotes is a major source of value. Showing the receipts provides context and makes it easier for interested readers to obtain related information.

·         Significant sections of Law Democratized are available through Google Books at no charge.

·         The New York University Press makes desk or exam copies available on request.

Bottom Line

Unequal access to justice is, and must be, a national priority. This is the best assessment I have seen of where the country is and where we must go. Lawyers, judges, legislators, bar officials, and anyone interested in making our civil justice system fairer and more effective will find this book invaluable.

Postscript

Since Ms. Jefferson believes that artificial intelligence “has the potential to become the single most important tool in solving the legal justice crisis,” on completing this review, I decided to ask ChatGPT 4.0 the question, “What is the probability of significant improvements in access to civil legal services?” I found ChatGPT’s summary answer mostly consistent with Jefferson’s conclusions—and hence encouraging.

In any event, Ms. Jefferson has provided a public service by writing Law Democratized. It will surely increase the probability of meaningful reforms.

Here is the ChatGPT summary:

The probability of significant improvements in access to justice for civil legal services depends on various factors, including policy changes, resource allocation, technological advancements, and societal attitudes toward legal aid. While it is difficult to assign a specific probability, several trends and initiatives may increase the likelihood of improvements:

1. Policy Reforms: Legislative and regulatory changes aimed at expanding access to legal services, such as relaxing licensing requirements for non-traditional legal service providers, implementing funding programs for legal aid organizations, and establishing alternative dispute resolution mechanisms, could lead to significant improvements.
2. Technology: Advancements in technology, such as online legal resources, virtual legal clinics, and artificial intelligence-powered tools for document review and analysis, have the potential to increase efficiency, reduce costs, and reach underserved populations.
3. Funding and Resources: Increased funding and resources allocated to legal aid organizations, pro bono initiatives, and civil legal assistance programs can enhance their capacity to provide services to low-income individuals and marginalized communities.
4. Awareness and Education: Efforts to raise awareness about legal rights, options for legal assistance, and available resources can empower individuals to seek help when needed and navigate the legal system more effectively.
5. Collaboration and Partnerships: Collaboration among legal aid organizations, government agencies, non-profit organizations, law firms, and community stakeholders can leverage resources, share best practices, and develop innovative solutions to address gaps in access to justice.
6. Cultural and Systemic Changes: Addressing systemic barriers to access to justice, such as racial and socioeconomic disparities, language barriers, and biases within the legal system, can contribute to more equitable outcomes and improve access for marginalized communities.

Editor’s Note: An earlier version of this review appeared in LLRX.com. This version has been updated and revised for publication in The Impact Lawyers. It is published here with the permission of the author.