Sunday, February 09, 2014

The Case for Socialized Law
 Inequality has bent American justice. Here's a radical way to fix it.
...he 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.8 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....