Review 2: The Right to Justice by Charles K. Rowley

Warren J. Samuels,
Michigan State University,
Journal of Economic Literature Vol. XXXI, No.2, 921-922 (June 1993)

This carefully research and written book advances positions on three controversies: Philosophically and methodologically it affirms, first, Virginia Political Economy against what Rowley calls bizarre Chicago Political Economy (held to affirm the optimality of whatever exists), and second (a normatively oriented) methodological individualism against constructivist rationalism. It argues in favor of a government-supported legal aid system focusing on the legal problems of individual clients, rather than one which practices an activist law-reform and class-action suit agenda. The heart of Rowley's case against the existing system is that it empowers rent-seeking and reform-mongering lawyers and fails to deliver adequate resources to the day-to-day legal service needs of the poor, thereby helping transmit the culture of poverty from generation to generation, while permitting radical lawyers to assault the distributional and institutional status quo, allegedly including the family, ostensibly on behalf of the underclass but really in their own personal and ideological interest.

Chapter 1 provides historical perspective to 1974. Chapter 2 examines five theories of public policy: the utilitarian/Paretian, classical liberal, contractarian, liberal democratic, and Marxist ethics. Chapter 3 contrasts Chicago and Virginia Political Economy.

Chapter 4 critiques Posnerian wealth maximization, emphasizes a putative crisis in tort law, and poses "a more general vulnerability of the common law system to sustained litigation with reform intent" (p.67) - language which obscures the historic transformation, largely in the 19th century, of the common law to that of industrial corporate capitalism and nonlanded property. Chapter 5 critiques Chicago theory regarding political markets and affirms the Virginia theory that "legislative lobbying leads to resource misallocation an wealth destruction" (p. 87).

Chapters 6 through 15 tell the Virginia story about the post-1974 history and practice of Legal Service and presents arguements predicated upon that story's usual themes. These center on rent seeking and government agencies "out of control" in a market in which producers do not sell, consumers do not buy, and owners do not control (Chs. 8-10). The tone of the discussion is suggested by the following quotes:

In the absence of strong central governance, the local programs found it low cost to engage in opportunistic law reforms, relying on the bounded rationality of the electorate as a protection against legislative reaction. (p. 203) ... The program is riddled with internal inconsistencies, with overt ideology, with technical inefficiencies and with possible, though minor, outright illegalities. ... The notionn that the individual poor should be helped - and the individual poor alone - by federal dollars to support access to justice has become submerged in a special interest pursuit of group goals, which only partly, peripherally and intermittently are issues of substantive concern to the poor themselves. (p. 230)

In the concluding chapter Rowley advances two alternative plans for reform. One would substantially retain the present system, considerably structurally changed, but constrain both law reform and class action litigation (to prevent what Rowley believes has been "excessive and inappropriate use" p. 323 and passim). The other would adopt a client-need legal-services voucher system, administered by a scaled-down bureaucracy.

Broadly considered, and given its intellectual origins, at least five ironies arise in this book: (1) It affirms government-financed legal services as compared with a system in which legal resources are allocated on the basis of individual decisions within a market characterized by particular distributions of income and wealth. To some thinkers this amounts to socialism. That the principle involved is right to counsel independent of poverty status does not negate the conclusion. (2) The author's criticism of constructivist rationalism runs counter to that of James Buchanan, who advances that position against Friedrich von Hayek. (3) The author's proposals for change constitute his own exercise in constructivist rationalism (as did Hayek's). (4) The author's proposals involve selective approval and disapproval of rent-seeking and of empowerment. (5) The author's campaign against Chicago Political Economy constitutes rent-seeking on behalf of his version of Virginia Political Economy.

Rowley does not like government financed legal assaults on the regnant system, though he does want effective legal services provided to poor clients to empower them in their everyday problems. Surely the latter is desirable, in part to protect their immediate material interests and in part to facilitate their escape from poverty. But how best to pursue the former is uncertain. Because so much about the distributions of incoem and wealth depends on who uses government for what purposes, denying the poor the opportunity to use self-interested reform-orientated lawyers, however "radical," seriously limits their participation as legal equals in both the polity and economy. To know that Richard Nixon and Ronald Reagan opposed the activist Legal Services program is to wonder how serious the effort to use government to help the poor rather than the "special interests" would be. Nonetheless, Rowley tells a suggestive and important story about an institution, even if one must discount heavily for the Virginia ideology.