Most people would agree with Frederick Wilmot-Smith that the rich have no greater claim to justice than the poor. And yet, as Wilmot-Smith points out in his provocative book, Equal Justice: Fair Legal Systems in an Unfair World, our laissez-faire legal-services markets ensure sharply unequal justice for rich and poor. The prescription at the heart of Equal Justice is the deprivatization of markets for legal services. To realize the ideal of equal justice, Wilmot-Smith would equalize the legal talent available to all and replace the market system with a centralized regime loosely analogous to socialized medicine.
Wilmot-Smith’s bold ideas lend much-needed urgency to the discussion of legal reform. The moral grotesquerie of the free market – where wrongful conviction and other risks are effectively reserved for those unable to buy high-quality counsel – demands nothing less. The bold rethink offered by Equal Justice, and its potential to drive debate, should be cheered by classic liberals, whose own incremental prescriptions for reform have (perhaps predictably) failed to ignite political action.
And yet, classic liberals will reject the core thesis of Equal Justice. American liberalism is suspicious of zero-sum assumptions, where providing more resources for the poor entails limiting the resources available to the rich. The challenge for Wilmot-Smith is to make the case that inequality itself is attended by negative externalities separate and apart from the insufficiency of legal resources available to the poor. And Wilmot-Smith accepts this challenge, proffering several reasons to support his equalization imperative. Whether those grounds are persuasive is the primary focus of this Review.
Myriam Gilles and Gary Friedman, Examining the Case for Socialized Law, Yale Law Journal, volume 129 (2019-2020) no 7 (May).