My paper on incentives in access to justice has now been published in the Georgetown Journal of Legal Ethics. Here it is.
Here is the full text of the abstract:
Most of the current deregulation discussion focuses on permitting both non-lawyers and lawyers to do more than currently authorized. While such changes would presumably contribute to solving the problem of increasing access to justice while maintaining quality and consumer protection, such discussions alone are unable to offer any realistic hope of achieving the 100 percent access to justice services for all envisioned by the recent Resolution of the Conference of (State Court) Chief Justices and the Conference of State Court Administrators. This Article discusses the potential for fully achieving that 100 percent goal by integrating broad regulatory changes with largely positive economic incentives on courts, bar and legal aid designed to increase efficiency and reduce costs, and with politically achievable ways of bringing in additional resources.
The five proposed solutions are:
A. Releasing non-profit legal-serving entities from almost all regulation, while moving the subsidy system of legal aid to a genuinely competitive model;
B. Deploying a mix of more limited de-regulation on the bar as a whole, combined with inter-related mandated sliding fees and broad tax incentives, for both litigants and providers;
C. Maintaining almost all regulation, but placing the obligation of ensuring and providing 100 percent access to justice services on the bar as a whole, while giving the bar the authority to tax its members to fulfill that obligation and modify regulation;
D. Internalizing all costs of access to justice into the court system, in order to incentivize court simplification and some appropriate deregulation; and
E. Allowing for broad National Technology Limited Practice Licenses on condition of free services for the poor and reasonable ones for middle income, and with appropriate regulatory relaxations.
This Article proposes and applies a seven question conceptual framework for assessing these approaches and their long-term utility:
- Does it ensure that everyone with significant legal need would be appropri- ately served, regardless of financial or other barriers?
- Does it provide the resources to fill the resource gap?
- Would it meet the political and economic requirements of being highly cost effective
- Would services be varied, flexible and matched to need?
- Would the solution incentivize changes in the system as a whole?
- Would the solution protect the consumer, either through the relevant traditional formal values of the profession or through some other means such as a structuring of market incentives?
- Could one be sure that any new resource mechanism would not introduce or exacerbate any additional general non-neutrality into the system?
These are pretty controversial ideas. I very much look forward to your reactions and suggestions.
P.S. The ideas and questions are applied in a grid that is part of the article. I hope it makes it easier to separate out the ideas. Go to page 712-13.