Bloomberg Law
June 9, 2017, 6:23 PM

Are Systemic Legal Problems Like Public Health Problems? (Perspective)

Bruce A. Green
Bruce A. Green
Fordham University School of Law

Editor’s Note: The author is the Louis Stein Chair at Fordham Law School, where he directs the Louis Stein Center for Law and Ethics.

By Bruce A. Green, Fordham Law School

Taking a page from the medical profession, the American Bar Association recommends that we all periodically get “legal checkups” to see whether we have legal problems we haven’t recognized. This is laudable, but the organized bar may have overlooked an equally important health-care practice: averting legal problems on a systemic level, just as our public health system averts disease on a grand scale.

Legal checkups are among the bar’s latest recommendations for narrowing the justice gap: Most people in this country can’t get legal help even with legal problems they recognize – for example, denials of administrative or insurance benefits, eviction or collection actions, or matrimonial and other family-law disputes. At the same time, ordinary people can’t be sure of securing just results without legal help because the law and legal processes are too complex for ordinary people to navigate.

It’s not that there are too few lawyers. When corporations and wealthy people need lawyers, there are plenty to go around. But most ordinary Americans can’t afford lawyers when they need them, and, outside of criminal cases, publicly supported lawyers for the poor can handle only a small fraction of low- and middle-income individuals’ legal problems.

What can close the gap? The ABA Commission proposed more public funding of legal services for the poor – a proposal unlikely to find favor in the current Administration. Its other suggestions included that courthouse procedures be simplified to make it easier for litigants to represent themselves, and that technological means be developed to provide legal assistance more economically.

But the ABA failed to explore how the organized bar might develop and promote laws, policies and practices to avoid legal problems altogether, while preserving peoples’ rights.

There are no programs to avert legal problems comparable to public health initiatives.

Consider the role of public health institutions in preventing disease. The World Health Organization, individual nations’ public health agencies and private not-for-profit organizations focus on eliminating physical and mental illness. They lead efforts to reduce smoking, drinking and drug use, to encourage nutrition, sanitation, pest-free environments, and so much more. Public health initiatives make people healthier and longer-lived, and, by reducing illness, they reduce the need for medical services, saving millions of dollars in costs of treatment. This beats the alternative – namely, more health problems and a greater need for care, which may or may not be available.

There are no programs to avert legal problems comparable to public health initiatives.

What might be done to reduce ordinary peoples’ need for legal assistance, while preserving their rights? Here are some possibilities:

Stricter regulation of exploitative business relationships might prevent business litigation. For example, if laws required lenders to ensure that borrowers are credit-worthy and financially literate, there would be less litigation over debt defaults. Likewise, stricter product safety laws and environmental laws and the stricter regulation of other risky behavior can reduce tort litigation.

Public agencies might substantially reduce the need for administrative hearings by making a more conscientious effort to assist applicants and to investigate whether applicants are entitled to administrative benefits, rather than putting the burden on applicants to persuade them.

Public insurance programs might remedy harms without affixing blame. Years earlier, workers’ compensation and no-fault automobile insurance were envisioned in part as a way to reduce tort litigation. More recently, the “9/11 Victim Compensation Fund” substituted for victims’ lawsuits against airlines whose planes were the targets of the 9/11 terrorist attacks.

In other areas the need for litigation over “who’s to blame” might similarly be avoided without taking away people’s right to compensation. For example, the Innocence Project is lobbying for laws to allow innocent people convicted of a crime to be compensated a set amount for each year they are wrongly imprisoned.

Of course, one can never entirely eliminate the need for legal assistance, just as one can never entirely eliminate the need for medical care. Both can be lifesaving in a crisis. But “an ounce of prevention” can apply to law as to medicine.

The legal profession should use more of its prodigious talents and creativity to find systemic ways to help ordinary Americans avoid legal problems, and thereby avoid the need for legal assistance that is often unavailable. This will conserve lawyer time and expertise for legal problems that cannot be reasonably avoided.

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