Review 1: The Right to Justice by Charles K. Rowley

William F. Shughart II,
The University of Mississippi,
Public Choice 75: 290-292 (March 1993)

"Romance novels excepted, more often than not one truly can't tell a book by its cover. Dust jacket material, written as it is by the publisher's marketing department (when not by authors themselves), is usually given to hyperbole and to self-promotion that promises more than can conceivably de delivered. Charles Rowley's The Right to Justice is an exception to this rule. The book is a tour de force: It is, at once, a primer on public choice, a withering critique of the Chicago School's everything-is-efficient paradigm, and a thoroughly researched case study of a (possibly) well-intentioned federal program looted by politically powerful special interest groups at the expense of the targeted beneficiaries.

The Legal Services Corporation, a quasi-public bureaucracy established in the twilight of the Nixon presidency to succeed the controversial legal services program of the Great Society's Office of Economic Opportunity, is the subject of Rowley's cautionary tale. Designed to facilitate access to legal advice and representation in civil disputes on the part of the poor who could not afford it otherwise, the LSC from the beginning became a focal point for left-leaning attorneys and social activists who were interested not in providing client service on mundane matters of divorce, credit, and housing, but in exploiting a new margin for advancing legal “reforms" compatible with their own liberal ideologies. Aided in their cause by the American Bar Association's left-of-center Standing Committee on Legal Aid and Indigent Defendants and abetted by a Corporation board dominated, save for the early Reagan years, by specialists in poverty and housing law, local LSC staff attorneys organized farm workers, fought for abortion rights, challenged literacy requirements for high school graduation, sued to expand eligibility criteria across a wide range of public welfare programs, and lobbied to defeat the nomination of Robert Bork to the Supreme Court, despite unambiguous statutory language prohibiting the use of LSC funds for such purposes. The needs of individual clients for counsel on personal legal problems predictably received short shrift in a public policy program acquired and operated primarily for the private benefit of social activists trained in the nation's leading law schools.

The Right to Justice traces the historical origins of legal aid and describes in detail the latter day political battles that shaped the LSC as a breeding ground for rent-seeking social engineers. The private interests of the LSC's staff attorneys, the Corporation board, the organized bar, and the members of relevant congressional committees in generating a political equilibrium leaving little room for the personal legal concerns of the poor are recited chapter and verse. The book is at its best in narrating the clash of interests in Ronald Reagan's first term when the President, chastened during his governorship by a series of run-ins with the California Rural Legal Assistance Program and buttressed by strong evidence of wrong-doing within the LSC, proposed a zero budget for the agency.

The description of the political carnage that ensued, which the LSC of course ultimately survived, offers a picture of life inside the Washington Beltway that even the readers of this journal, familiar as they are with the kinship between homo economicus and homo politicus, will find striking. Particularly amazing is the story of the LSC's internal strategies for “saving the rubies" in the face of the Reagan onslaught. Among other things, these strategies involved the creation of dummy “mirror corporations-in-exile" to protect appropriated funding and to further insulate its program of aggressive advocacy from censure, the orchestration of a carefully organized grass-roots lobbying campaign, coordinated by the LSC board and financed with public monies in clear contravention of the Corporation's authorizing legislation, and the intercession of the agency's champions in Congress, most notably Senator Warren Rudman, a former LSC staffer, to deflect any attempts to require accountability or to penalize illegalities.

Throughout the narration of these extraordinary events and, indeed, throughout the book, Rowley uses the legal services program as an engine for comparing the explanatory powers of the diehard Chicago model of interest-group politics, which portrays Congress and the bureaucracy as efficient (deadweight loss minimizing) brokers of competing demands for wealth redistribution, with the Virginia Political Economy model, which admits rational voter ignorance, ideology, and, ultimately, the large, wealth-dissipating costs of rent-seeking. The crux of the comparisons made by the author is this: Does the legal services program represent an efficient political market response to median voter expressions of Kantian goodwill, enacted by a rational, support-maximizing legislature exercising tight control over its bureaucratic agents, or does the LSC instead represent a government program run amok in a setting where a logic of collective action confers on bureaucrats and pressure groups wide discretion that they may use to benefit themselves at the expense of the median voter, in the process subverting legislative intent?

Had Congress intended explicitly in 1974 to design a program that would promote the adoption of a liberal political agenda through the bringing of test cases and class action suits and, moreover, would protect such a program against the encroachments of future, perhaps more conservative legislative majorities, it could hardly have done a better job than it did in designing the LSC. The Legal Services Corporation Act expressly determines that the officers and employees of the Corporation are not employees of the federal government and therefore are not bound by the provisions of the Hatch Act prohibiting collective political activity by federal workers and prohibiting the use of federal funds to lobby the federal government. It allows appropriated funds to be carried over from year to year, imposing no requirement that unspent monies be returned to the Treasury, and it provides that the 11-member LSC board be comprised of representatives of the relevant private-interest groups, including the organized bar, attorneys providing legal assistance to eligible clients, and eligible clients themselves.

On the other hand, Congress consistently attempted, if unsuccessfully, to rein in the most flagrant examples of the LSC's apparent disdain for its authorizing legislation. In language consistent with the Hatch Act, it stated in the clearest possible terms that federal monies were not used to support political lobbying activities. It moved further on a number of occasions to prohibit the use of LSC funds to underwrite the filling of class action suits except where such legal strategies were pursued in behalf of specific eligible clients. But all such proscriptions were artfully evaded by the LSC board when they were not simply ignored.

To the author, the singular inability of Congress to restrain an agency so clearly out of control is evidence compellingly at odds with Chicagoan notions of efficient governance. To accept this conclusion, however, one must also accept the implied premise that the legal services program was intended to provide the poor with the same right to justice in civil disputes they have long possessed in criminal proceedings. But if, rhetoric and the protestations of latter day members of Congress aside, the LSC has since 1974 been doing precisely what it was created to do, namely pursuing redistributive outcomes in the courts that could not be obtained (or could be obtained only at much higher political cost) in the legislature, then the theoretical victory of Virginia over Chicago is no longer quite so clear.

No matter which side the reader ultimately takes, however, it is clear that Charles Rowley had elevated the debate between these two competing paradigms to a new, higher level. In the process, .he has unmasked the Legal Services Corporation and pointed a powerful scholarly weapon in the direction of the stubborn defenders of the public interest theory of government. The Right to Justice is a masterful achievement. It deserves to be read widely."