TNR: Next, let’s have ObamaLaw

posted at 8:21 pm on February 5, 2014 by Ed Morrissey

I’m tempted to go along with Noam Scheiber on this, just out of spite to trial lawyers, but it’s as bad an idea as ObamaCare. With all of the talk about inequality coming from the White House, Scheiber argues that the real inequality in America is in equal treatment under the law — because rich people can afford much better representation than poor people can manage, even through the “public options,” if you will. The solution? Redistribution of legal resources through socializing the legal profession:

But even if legislators were to increase funding for legal aid, it would amount to a half-measure at best. We would still have the Ethan Couch problem: rich people who can buy far more justice than the average citizen thanks to nearly unlimited means. The only way to bring about the ideal of equal protection under the law is to boost spending on lawyers for the poor and middle class, and to prevent the affluent from spending freely. We must, in effect, socialize the legal profession. …

One of the fastest-growing businesses at big law firms these days is a practice known as “white-collar criminal defense,” in which former prosecutors and Security and Exchange Commission lawyers are rented out to corporate executives at $1,000 per hour. If you happen to be a junior analyst at Goldman Sachs—somewhat affluent but hardly wealthy—who gets indicted for insider-trading, there’s no way you could afford such high-class talent, and certainly not a team of world-beaters. But why shouldn’t you have the same quality defense that Goldman CEO Lloyd Blankfein would insist on?7

Clearly you should. And since there isn’t enough money in the country to allow all of us to spend as much on ourselves as Lloyd Blankfein would—to say nothing of the mega-rich like Bill Gates or Warren Buffett—then we have no alternative: We must limit what Blankfein and Buffett can spend.

The 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.

Working out the particular amounts would mostly be an empirical question—Big Data can help us figure out what it costs to put together a competent legal team from case to case. But it would no doubt be a messy process that required constant refining and lots of humility. (Bands of permissible spending would probably work better in practice than fixed sums.) Still, what’s important isn’t so much that we get the amounts precisely right from the get-go. It’s not even clear that there’s such a thing as “precisely right” in some abstract sense. What’s important is that we take a critical first step toward making legal rights more equal. In any case, the beauty of the arrangement is that, with the rich and well-connected relying on similar legal resources as the poor and dispossessed, you can bet that any overly strict spending cap will be loosened (and the subsidies raised) soon enough.

Scheiber tries to anticipate one line of rebuttal:

Critics will surely dismiss this approach as illiberal. But, in fact, we already limit spending in parts of the legal system in order to put adversaries on equal footing. Small-claims courts prohibit defendants from hiring lawyers so that plaintiffs get a fair shot at representing themselves. More to the point, ensuring that no citizen can significantly outspend her adversary is actually the highest realization of liberalism.

I’d say that it’s the highest realization of progressivism, which really isn’t (or shouldn’t) be the same thing. “Liberalism” means a focus on liberty, whereas this impulse is all about restricting liberty in order to achieve a preferred outcome. We’re seeing this impulse right now in ObamaCare, where people who spend more on better comprehensive policies get penalized for doing so, even though they probably end up spending far more than they use in most years. The entire purpose of ObamaCare is to drive down to equal outcomes rather than equal opportunities and outcomes driven by one’s own productivity and choices. And a significant reaction to it is a pullback on resources, as doctors opt out of engaging the system and focus instead on so-called “concierge” services.

That’s what will happen in the legal system too, unless Scheiber really goes for full nationalization of the legal system. That’s a big problem for liberty, though, since a large part of the profession keys on protecting citizens from the actions of the government. Public defenders are provided to those without means to mount that defense by themselves because of sheer necessity, but if the entire legal system consists of government employees, the opportunities for conflicts of interest are enormous.

Scheiber concludes by noting that the proposal has a high risk of turning out badly, but says that the liberal still has to give it a shot. “In the end,” he writes, “the liberal still believes you have to try regulating behavior.” Well, we do that in accordance with the principle that one’s rights stop where another’s begins, or more bluntly, the freedom to swing your fist ends at the point of my nose. In this case, Scheiber’s talking not about “regulating behavior” but of top-down command control of an economy in order to dictate outcomes, which is about as far from classic liberalism as one can possibly imagine.

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