Rich America is still the bizarre laggard in the — anti-inequality — litigation revolution. Should this be on 2020 presidential campaign posters?
Surely it’s time for an American presidential candidate from either party to run on bringing U.S. law and the courts into the 21st century? Start a campaign for yoking digital technology to putting justice within the reach of the poor and comparatively powerless?
That there has been no such initiative, no parallel in law for the fight about reforming the medical system, is especially remarkable in a country in which two lawyer-presidents of the last twenty years — Bill Clinton and Barack Obama — have had high-powered lawyer wives. In other words, for sixteen years, four legal specialists in a position to notice and do something chose to ignore a notoriously flawed legal system. At least two prominent candidates for the 2020 election have the right credentials. Both Elizabeth Warren and Kamala Harris are lawyers, one of them a law professor and the other a former attorney general of California — but will they care about doing the right thing?
According to a 2010 summary by two executives of the World Justice Project — founded in 2006 ‘as a presidential initiative of the American Bar Association’:
[ In civil justice ] … a significant gap exists between rich and poor individuals in terms of both actual use of and satisfaction with the civil courts system. For example, only 40 percent of low-income respondents who used the court system in the past three years reported that the process was fair, compared to 71 percent of wealthy respondents. This 31 percent gap between poor and rich litigants in the United States is the widest among all developed countries sampled. In France this gap is only 5 percent; in South Korea, 4 percent; and in Spain, it is nonexistent.
In the WJP’s 2017-2018 Rule of Law Index — measuring ‘the extent to which countries adhere to the rule of law in practice’ — America ranked 19th, just below France and above South Korea, and several ranks beneath Estonia, Hong Kong and Singapore.
Speaking in London last month at the first international forum on online courts — the most hopeful technological innovation for anyone who cares about inequality in legal systems worldwide — Lord Thomas of Cwmgiedd, the Lord Chief Justice of England and Wales, could only point to a single U.S. state, Utah, for an example of an online dispute resolution programme in America. The lack of support at the summit of the U.S. judiciary for the digitalisation of justice must have something to do with this.
In Britain, where an online court for all branches of law is set to go live next year, the country’s most powerful judges are directing the transformation. When the legal scholar Hazel Genn delivered the prestigious Birkenhead lecture in 2017, she began by underlining their commitment to change. She noted that the year before, ’the Lord Chancellor, Lord Chief Justice, and Senior President of Tribunals published a joint statement signalling a “once in a lifetime” £1 billion transformation of the justice system.’
Who could advise a U.S. presidential candidate on an equivalent transformation across the Atlantic? Three years ago, almost to the day, post-Gutenberg drew attention to the ideas of Renee Newman Knake, a legal expert and professor who was at the time the co-director, with Daniel Martin Katz, of the ReInvent Law Laboratory at Michigan State University. Possibly her most radical suggestion was that corporate America could initiate the technological disruption and revolutionisation of the legal system. She mentioned Google and Walmart as companies that ‘have the capacity to make significant financial outlays into innovative legal mechanisms for providing legal services …’.
For a while, the ReInvent Law Laboratory seemed set to do exactly what its name promised. It got attention and won awards. An article in the journal of the American Bar Association trained a spotlight on its founders. Sadly, Google’s search results for this would-be revolutionary cell run out in listings with 2014 dates. Professors Katz and Knake have moved to positions at other universities and seem to have gone silent on the topic of transforming U.S. law. The page about the Laboratory’s mission — which is dated 2013 and written mostly in the past tense — suggests that its focus has narrowed to protecting lawyers’ incomes: ‘Overall legal spend is increasing, but traditional lawyers are getting a smaller piece of the pie. We want to help prepare our students to invent and work in growing areas of the legal market.’
This is a considerable change in tone and substance from Professor Knake’s rallying cry in 2016, which is worth re-quoting:
A nation that holds itself out as a beacon of justice and an exemplar of the rule of law to the rest of the world denies meaningful access to the law on a daily basis to the majority of its population. Lawyers are out of reach for most individuals unless they enjoy extreme affluence or subsist at poverty levels.
Although her more than justified outrage would make a fine speech for a presidential candidate next year, there is no sign of any candidate taking up her cause. The first pages of Google’s search results for the terms ‘law reform as a presidential campaign issue’ yield only links about election or campaign finance or drug law reform — so far.