Justice Triage

Abstract

This is a review essay of Benjamin Barton and Stephanos Bibas’s new book, Rebooting Justice: More Technology, Fewer Lawyers, and the Future of Law.

Rebooting Justice is an eloquent exemplar of the growing literature that focuses on expanding access to justice via legal market deregulation. What sets the book apart from other works in the genre is that Barton and Bibas do not treat deregulation as a panacea. Their starting point is that Americans are not well served by lawyers’ monopoly over the legal services market, but they do not envision a world in which every legal problem is resolved ably and efficiently. Their goal is much more modest: a less complex legal system in which lawyer assistance is not as vital, and public resources are used primarily to improve the quality of felony defense.

Part I of this Review examines Rebooting Justice’s unabashed call for triaging Americans’ legal needs and its focus on alternative modes of delivering legal services. Part II observes that, just as lawyers and judges have consciously or unconsciously sought to maintain the legal system’s complexity, legal technology companies and alternative legal service providers may stand in the way of simplification and common sense reforms of the legal system. As set out in Part III, Rebooting Justice may also misdiagnose lack of access to justice by viewing the problem largely as a function of the high cost of legal services and overregulation. People do not seek out legal assistance for a number of reasons, and complex social and cultural barriers deter people from even considering obtaining legal assistance. There is also more variance in regulatory structures in the United States than Barton and Bibas acknowledge, and jurisdictions such as the United Kingdom that have liberalized their legal markets have thus far not seen the access gains that some commentators expected.

Keywords: Access to Justice, Alternative Legal Services, Self-Representation, ABS, Gideon, Right to Counsel, LSC

JEL Classification: Y3, Y30