The Pursuit of Justice, edited by San Jose State economics professor Edward J. Lopez, goes a long way toward rectifying that omission. The book consists of his introduction and 11 original essays that will undoubtedly open many eyes to the serious problems that plague our efforts at ensuring just treatment for all citizens. As Clemson economist Robert Tollison points out in his foreword, the book gives us a “public choice” view of our justice system — a view that concentrates on the incentives of the individuals and institutions that run it, for example the American Bar Association. Is the ABA dedicated solely to seeing that justice is maximized, or will it sacrifice some justice to achieve maximum income for its members? (I will discuss that question in some detail later in this review, but the reader can probably guess the answer.)
Government and punishment | Unfortunately, there is not space enough here to consider each of the essays in full, although all are very worthy efforts. Instead, I will highlight a few of my favorites.
George Mason University Ph.D. student Nicholas Curott and Fayetteville State University economics professor Edward Stringham lead off the book with an essay on the development of the justice system in England. It did not spring full-blown from the mind of some beneficent king, but instead grew out of ancient legal norms that were not centrally controlled and emphasized restitution to victims. Those practices and institutions appear to have been effective at dispensing justice, but they did not put any money into the coffers of the king. Hence, the authors write, “Centralized police and courts were created to bring revenue to the state.”
Whereas under Anglo-Saxon rule the courts demanded that wrongdoers make full restitution to their victims, following the Norman Conquest the emphasis changed to payment of fines to the state for a growing list of actions said to “violate the King’s Peace.” The court system became a major profit center for the English monarchy, one whose revenues were highly liquid compared with royal estates and the payment of feudal obligations from vassals. In summary, what had been an efficient private system of justice was converted into a more costly, less efficient governmental system because the rulers could exploit it.
The remainder of the book looks at America’s contemporary justice system, and the essayists find much to criticize. In “Romancing Forensics: Legal Failure in Forensic Science Administration,” Roger Koppl, an economics professor at Fairleigh Dickinson University and director of the school’s Institute for Forensic Science Administration, turns over a rock to reveal the unpleasant truth about government crime investigation. While TV programs almost invariably depict forensic scientists as devoted and nearly infallible public servants, the fact is that they are ordinary people who respond to incentives that do not necessarily correspond with justice for defendants.
Most crime science laboratories in the United States are under the control of law enforcement agencies. As such, the people who work in them are prone to seeing their role as helping obtain convictions rather than getting at truths that would help defendants. “All forms of error from honest error to willful fraud are more likely to be made in favor of the prosecution than the defense,” Koppl writes.
Among the error-prone aspects of criminal investigation, Koppl reports, is fingerprint analysis. He notes that studies have found high rates of false positives in fingerprint identification. Reforms he favors include transferring crime labs from police control to that of the medical examiner’s office and adoption of a procedure of testing fingerprints in triplicate. That would add only slightly to the cost of fingerprint analysis, but would save far more money in eliminating further investigation and possible trials for defendants whose prints initially appear to match, but in fact do not.
Property rights | Two essays focus on the injustices wrought by eminent domain abuse. George Mason law professor Ilya Somin argues forcefully that government takings of real estate for the purpose of advancing economic development is an instance of government failure — it imposes high costs on individuals yet rarely catalyzes the promised economic benefits. He finds support for that contention in two of the most publicized takings cases: the 1981 Poletown case in which General Motors prevailed upon Detroit to seize a neighborhood it wanted for a new auto factory, and the 2005 Kelo case in which New London, CT took many homes for a proposed commercial development scheme.
In Poletown, the number of jobs created by the factory turned out to be only 60 percent of the number promised when GM was trying to sell the project. In Kelo, the entire project fell through after land had been seized, homes demolished, and people displaced. The judiciary approved of both, turning aside constitutional objections and looking with deference upon optimistic forecasts of project benefits issued by politicians. Somin observes that judges often “have an unjustified faith in the efficacy of the political process and thus may be willing to allow the executive and legislative branches of government to control oversight of development projects.”
He concludes that government involvement in economic development is both harmful and unnecessary. Private developers can usually overcome holdouts who might stand in the way of projects; if they cannot, it is better that an occasional profitable development by shelved or delayed than that some people be evicted from their homes for nothing.
What about the fact that individuals who have their property seized must be paid just compensation? That is the subject of U.S. Interior Department economist John Bratland’s contribution. Courts have generally adhered to a “fair market value” requirement, assuming that dispossessed property owners are made whole if they receive that amount.
Bratland eviscerates that notion, pointing out that value is subjective and includes emotional attachments people often have to property that cannot be priced. “Wholeness,” he writes, “exists as a sense of being or a state of mind much in the manner of satisfaction. Only the property owner can be the judge of what compensation is sufficient to render him whole.” The fact that judges allow politicians to take property without consent enables them to earn “political profits” by seizing land at artificially low cost to taxpayers and then trumpeting the resulting construction as a great benefit they have bestowed on society.
Benefiting lawyers | Judges are supposed to be impartial, favoring no litigant or group. Unfortunately, that is not always the case, contends University of Tennessee law professor Benjamin Barton in his essay, “The Lawyer-Judge Hypothesis.” In good public choice style, Barton examines the incentives and predispositions of judges and finds that many of their rulings are explained by their affinity for the legal profession. That is to say, if a decision will channel benefits to the profession, judges will probably take it.
Barton cites a number of cases, the most interesting of which I think is Florida Bar v. Went for It, Inc. where the Supreme Court upheld a rule by the Florida Bar that prohibited lawyers from sending direct mailings to accident victims within 30 days of an accident. What could be wrong with tort lawyers soliciting business? The Florida Bar’s argument was that doing so was harmful to the reputation of the legal profession, and the Supreme Court agreed. The case, Barton says, “evinces a patent sympathy for the plight of the lawyer public image and a clear deference to the findings and desires of bar associations on these issues.”
Judges do not always rule in a way that advances the interest of the legal profession — in the above case, after all, the Supreme Court overturned both the district court and appellate court decisions against the Florida Bar — but the lawyer-judge hypothesis has considerable explanatory power. It leads Barton to argue for the proposition that judges should not necessarily be lawyers. It might be better, he suggests, to follow the model of some civil law countries where judges are chosen and trained separately from lawyers.
Lastly, I wish to comment on California-based public policy consultant Adam Summers’ essay on the harmful effect of lawyer licensing. In the interest of full disclosure, I will mention that Summers quotes from a paper of mine on the subject, as well as work by others who have similarly concluded that licensing is beneficial for the legal profession but does little or nothing to protect consumers against incompetence.
Earlier in our history, America enjoyed a free market in legal services — no educational credentials or licenses were required for practitioners, and consumers could deal with anyone they wanted to. The ABA, Summers shows, moved mountains to obliterate that free market and cartelize the legal profession. It employed its considerable political clout to prevail upon state legislatures to mandate attorney licensure, which nearly all states conditioned upon graduation from an ABA-accredited law school. Little of what a lawyer needs to know in his work is actually learned in law school, and what he does use could be learned outside of law school. It is just a costly barrier to entry.
For anyone with the temerity to try earning money on the cartel’s “turf” without becoming a member, the organized bar has laid down a minefield known as “unauthorized practice of law.” Summers recounts the ugly details of some of the cases in which individuals who have been rendering competent and affordable legal assistance without a license have been dragged into court by state or local bar officials, forced to desist, and pay penalties. I am aware of no case in which a judge has ruled in favor of a defendant in an unauthorized practice case, even though it is usually clear in such cases that the defendant’s work was competent and filled a market need. The fact that judges are so sympathetic to the bar’s crusade against competition is strong evidence in favor of Barton’s hypothesis.
The Pursuit of Justice is a thought-provoking volume. Running the justice system may be a core function of government, but the government could and should do a far better job of it.
