Sorry, TNR: America’s legal system needs more justice, not more socialism
Third, the real issue that Scheiber has identified is not that the wealthy can buy justice. It is that good litigation attorneys generally command higher fees than bad litigation attorneys. Socialized law of the sort that he has proposed, which necessarily limits the fees litigators can charge, would just push the good litigators into other fields of law. This is basic economics: incentives matter. Importantly, there is no reason to believe that driving good litigation attorneys into other practice types will result in better—that is, more just—outcomes in litigation. Under the guise of “fairness,” indeed, socialized law would result in less justice, not more. Scheiber implicitly acknowledges this. Competent trial counsel is a good thing. The alternative—if you want true fairness in litigation, ban the lawyers; wouldn’t that be a great leveling!—is too radical even for him. Scheiber lashes out at the wealthy for retaining good litigation attorneys, acknowledges that good litigation attorneys are desirable and expensive, laments that society cannot afford to hire good litigation attorneys for every litigant, and then concludes, illogically, that the solution is to deprive all litigants of good litigation attorneys. It is this final, illogical conclusion that gives Scheiber’s game away. Having acknowledged that good counsel is a good thing, the appropriate response should be a desire to make good counsel available to more litigants. But that’s not where Scheiber went. Instead, he worked backward: the wealthy can hire good litigation attorneys—that is, expensive litigation attorneys—and that he will simply not abide.