The 58th quadrennial United States presidential election is over and now we turn to the next four years. The discussion focuses on what to expect from the Trump Administration and the reality is we don’t know. But, as the transition begins, I hear one phrase repeatedly mentioned, “rule of law.” President Obama, Secretary Clinton, and most recently the leaders of three major law firms have all emphasized that we (Republicans and Democrats) must act to protect the “rule of law” as we go forward. It is a phrase that carries great promise and “we” should talk about what it means to say “protect the rule of law.”
A Distinguished History
The rule of law idea dates back at least to Aristotle, who used the similar phrase “law should govern” in Politics. The idea pops up again here and there in antiquity. For example, in England the House of Commons included the phrase “rule of law” in a petition to James I of England in 1610, and again in 1644 the phrase appears in a piece by the Scottish theologian, Samuel Rutherford (apparently not someone who subscribed to the modern theory of short titles, Rutherford’s piece was titled “Lex, Rex: The Law and the Prince. A Dispute for the Just Prerogative of King and People. Containing the Reasons and Causes of the Most Necessary Defensive Wars of the Kingdom of Scotland, and of Their Expedition for the Ayd and Help of Their Dear Brethren of England. In Which Their Innocency Is Asserted, and a Full Answer Is Given to a Seditious Pamphlet.”). According to Rutherford:
The prince remains, even being a prince, a social creature, a man, as well as a king; one who must buy, sell, promise, contract, dispose: ergo, he is not regula regulans, but under rule of law….
Samuel Johnson included the phrase in his 1755 Dictionary, which means it must have had somewhat common use by that time, at least among Johnson’s peers in England. Clearly, when the United States was coming together as a country, the idea of “rule of law” existed among Europeans and was becoming important in our new country. From that point on, “rule of law” is in regular use, even though implementation of the idea has seen its ups and downs
An Unclear Meaning
Given that the idea has been around for many centuries, we could hope that it has taken on a clear meaning. We could hope, but it would be for naught.
“Rule of law” seems to have many meanings today. Theorists group the meanings into three categories: formal, substantive, and functional. The categories differ in many ways, including whether the content of law must have specific meaning or whether “rule of law” refers to characteristics, but not content. The functional category focuses more on the degree of discretion man, particularly government officers, has in deciding the law (for example, to what extent does natural law play a role). For our purposes, “rule of law” must be something measurable and so we will turn to a more concrete definition.
A Mediocre Performance
Settling on a definition of the rule of law is a challenge. But a greater challenge is overcoming our perception of the United States as a leader in the rule of law compared to other countries. Most people tend to think that the United States ranks high—among the world leaders—when it comes to rule of law. This gets a bit tricky, because it is difficult to rank countries on their implementation of the rule of law if we have trouble defining it. But, we can approximate by defining key characteristics of the rule of law and when we do, it changes our perception of the United States.
The World Justice Project has for many years ranked over 100 countries to compile an overall Rule of Law Index® ranking. The Index is subdivided into eight categories and 44 subcategories. The categories cover areas such as absence of corruption, civil justice, and criminal justice. I am not arguing that the WJP’s approach is the best way to measure access to justice, but it will serve well for our purposes.
Since I am using the WJP’s rankings on rule of law, it will help to understand how the WJP defines rule of law. According to the WJP, “the rule of law is a system in which the following four universal principles are upheld:
- The government and its officials and agents as well as individuals and private entities are accountable under the law.
- The laws are clear, publicized, stable, and just; are applied evenly; and protect fundamental rights, including the security of persons and property and certain core human rights.
- The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient.
- Justice is delivered timely by competent, ethical, and independent representatives and neutrals who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.”
Overall, in 2016, the WJP ranked the United States 18 out of 113 countries on the Index—an okay ranking but certainly not world class. For the category access to civil justice, the United States ranked a measly 28 out of those 113 countries. For comparison, in addition to countries you might expect such as Germany, Japan, the United Kingdom, and Canada, other countries outscoring the United States included Estonia, Uruguay, and Barbados.
The following quote from Judge Jed S. Rakoff, a United States District Judge on senior status for the Southern District of New York, elucidates one part of the problem:
Over the past few decades, ordinary US citizens have increasingly been denied effective access to their courts. There are many reasons for this. One is the ever greater cost of hiring a lawyer. A second factor is the increased expense, apart from legal fees, that a litigant must pay to pursue a lawsuit to conclusion. A third factor is increased unwillingness of lawyers to take a case on a contingent-fee basis when the anticipated monetary award is modest. A fourth factor is the decline of unions and other institutions that provide their members with free legal representation. A fifth factor is the imposition of mandatory arbitration. A sixth factor is judicial hostility to class action suits. A seventh factor is the increasing diversion of legal disputes to regulatory agencies. An eighth factor, in criminal cases, is the vastly increased risk of a heavy penalty in going to trial.
For these and other reasons, many Americans with ordinary legal disputes never get the day in court that they imagined they were guaranteed by the law. A further result is that most legal disputes are rarely decided by judges, and almost never by juries. And still another result is that the function of the judiciary as a check on the power of the executive and legislative branches and as an independent forum for the resolution of legal disputes has substantially diminished—with the all-too-willing acquiescence of the judiciary itself.
The rule of law we hear about is not the rule of law most in the United States experience.
The Role of Lawyers
This brings us to an awkward spot. We have leaders giving us full-throated encouragement to support and defend the rule of law at a time when our record on rule of law is abysmal. There is a terrible disconnect between the aspirational state and the current state of affairs on “rule of law.”
This type of disconnect is not surprising, especially to those who spend time with the philosophy of lean thinking or behavioral economics. In both fields, we frequently see a broad gap between the way the world is and the way we describe the world. In lean thinking, we use tools to bridge that gap. In behavioral economics, we seek to understand why the gap exists. Either way, we understand that gaps are common.
Thus, when we hear our leaders exhort us to defend the rule of law, we should recognize that the rule of law they encourage us to enforce is not the rule of law that exists. They are asking us to defend their vision of the rule of law, for surely they cannot be asking us to defend the rule of law that puts the United States at the bottom of the first quartile among 113 countries.
This is the fundamental problem the legal industry faces and lawyers face as we try to haul the United States’ antiquated legal system out of the 19th century and into the 21st century. The vision many lawyers carry is not a clear-sighted view of reality. For most, it is of a scholarly profession, providing bespoke solutions to the complex problems of society through the use of a unique science known as the practice of law.
This gap between vision and reality cannot be sustained. One of two things will happen. Either lawyers will modify their views of what they do and bring the services they provide more in line with what clients need and are willing to pay, or lawyers will maintain their views and clients will find other ways to solve their problems. The third approach, which many lawyers explicitly or implicitly hope for—that clients will stop pushing their views and let lawyers do what they want—is not a viable option.
A recent survey reminded us, as if we needed reminding, of the growing problem. It tells us that barely one out of three corporate clients is satisfied with the services provided by large law firms. Whether you are at a law firm that thinks it is different, listens to its clients, and has modified its behavior or you are at a firm staunchly defending the 19th century view of the world, you should be worried.
With each story, survey, and article that comes out highlighting the large and growing dissatisfaction among clients at all economic levels with the performance of attorneys, the situation becomes more precarious. The flimsy rope bridge that lawyers have constructed to the sides of the gap gets stretched a bit tighter, the creaking gets a bit louder, and the day gets a bit closer when the ropes holding the bridge will snap.
Some lawyers can afford to roll the dice. They can bet that retirement will come for them before the ropes break. They gamble on the number of years between client dissatisfaction and defection. The majority of lawyers do not have that luxury of taking the risk. They have too many years left in their careers to expect that clients will be that patient. Yet, the majority of lawyers hang back watching the bridge get stretched tighter and tighter by the day.
A Time for Renewal
The social media outlets, Facebook, and other organizations are starting to grasp the role they may have played in this historic election. Again, regardless of which candidate you preferred, we should all understand as part of being informed citizens, the roles that organizations play in shaping our views. Lawyers should pause and consider what role they played in this election.
Both Democrats and Republicans found large swaths of voters disenchanted with government. The legal industry plays an important role in society and our government. It is hard to say in a country which ranks 28th on access to civil justice and where, as Judge Rakoff notes, “US citizens have increasingly been denied effective access to their courts,” that the failure of the legal system to meet the needs of the citizens played no role in alienating voters.
If we are going to focus on values, such as the “rule of law,” we should all understand the differences between vision and reality. We should speak clearly when we encourage others to enforce the “rule of law.” We should acknowledge that the rule of law that once was in the United States is not the rule of law of today. Much will have to be done to bridge the gap. The starting point for all of us should not be focusing on how much more lawyers can extract from the people in furtherance of a legal system that has passed its freshness date. It should be to ask what our clients need from us and how we can best go about delivering—affordably, timely, and with the highest quality that meets those needs—legal services that return the United States to a leadership role in the rule of law.
Aristotle. Politics. The Barnes & Noble Library of Essential Reading. New York: Barnes & Noble Books, 2005.
Isaac, Mike. “Facebook, in Cross Hairs after Election, Is Said to Question Its Influence.” The New York Times, November 12, 2016.
Montagne, Renee. “Social Media’s Increasing Role in the 2016 Presidential Election.” NPR, 2016.
Morris, David Z. “Zuckerberg Responds to Accusations That Facebook Influenced Election.” Fortune, 2016.
Rakoff, Jed S. “Why You Won’t Get Your Day in Court.” Article, The New York Review of Books, no. November 24, 2016 (2016). http://www.nybooks.com/articles/2016/11/24/why-you-wont-get-your-day-in-court/.
Rutherford, Samuel, and Pre-1801 Imprint Collection (Library of Congress). Lex, Rex: The Law and the Prince. A Dispute for the Just Prerogative of King and People. Containing the Reasons and Causes of the Most Necessary Defensive Wars of the Kingdom of Scotland, and of Their Expedition for the Ayd and Help of Their Dear Brethren of England. In Which Their Innocency Is Asserted, and a Full Answer Is Given to a Seditious Pamphlet, Intituled, Sacro-Sancta Regum Majestas, or, the Sacred and Royall Prerogative of Christian Kings. London: John Field, 1644.
“World Justice Project Rule of Law Index 2016.” Seattle, WA: World Justice Project, 2016.