What price are we willing to pay for the dream of equal justice?

Abstract

Injustices wrought by unequal access to the legal system pose a direct threat to the rule of law, yet such injustices are widespread in England and elsewhere. Lawyers regularly criticize governments for underfunding the legal system, but the private market for legal services receives much less attention. A private market for legal resources is antithetical to equal justice because it causes the outcome of cases to turn on arbitrary factors such as wealth. The solution, according to Wilmot-Smith in his book Equal Justice, is to socialize the distribution of legal services so that the rich cannot buy the best lawyers, and prevent them from leaving this public system by making private arbitration unenforceable. This review article argues that Wilmot-Smith's thesis is persuasive, but there may be second-best solutions that could deliver greater legal equality at a lower cost.