Another Distant Warning: ‘Civil Gideon’ and Fee Shifting

                                                                                                      November 2011                              

Another Distant Warning


Earlier this year, we drew attention to an impending treasury raid sponsored by the American Civil Liberties Union in the form of a study proposing a massive building program for the Baltimore City public schools, to be carried out through the use of >funny financing= in the form of revenue bonds and the capital leases once legitimized by the five to two decision of the Maryland Court of Appeals in Eberhart v. City of Baltimore, 291 Md. 92 (1981). The principles of that very contestable decision have since been followed in the famous sale and lease-back of the Arizona State Capitol. While both Comptroller Franchot and Treasurer Kopp have recently expressed misgivings about the State=s increasing reliance on capital lease financing, raised eyebrows are not the same thing as decisive action.                                              


Another grand design for the commitment of public funds has been launched by a Commission on Access to Justice sponsored and appointed by Chief Judge Robert Bell of the Court of Appeals. This 45-member Commission is the creation of Chief Judge Bell, not of the Court of Appeals. It consists almost entirely of public functionaries whose bureaucratic domains will benefit from the expenditures sought, though the Commission was permitted to be contaminated by exactly two members of the private bar as such, appointed by the Chief Judge: former Attorney General Stephen Sachs and Herbert Garten, Esq.


The Commission proposes a publicly-supplied right to paid legal counsel in all cases involving >basic human needs=, including landlord-tenant cases, domestic violence and child-access cases, family matters, including divorces, and child support, medicaid and welfare cases. Using static assumptions (no changes in behavior as a result of the program) the Commission estimates a need for services in several hundred thousand cases per year which at the rate of $320 (4 hours) per case will require $108 million in general fund costs.


The Commission also recommends an all encompassing one-way fee shifting statute, which will aggrandise demand for the services it seeks to provide. The objections to this have recently been well stated by the former President of Stanford University, Gerhard Casper,[1]


  The many wars for which law provides the weapons are often

characterized by inconsistent and conflicting orders. In our system of public

administration and adjudication of public law issues, we suffer from too many

layers of government with concurrent jurisdiction. Preemption is nonexistent

in too many areas of law.  Where a single level of government would busily

produce a regulatory maze complex and internally inconsistent enough to

employ legions of handholding lawyers, we allow two or three or four to chime

in. And not only do multiple government agencies have a say, but so do

innumerable citizens acting as attorneys general, empowered to bring private


suits. The granting of enforcement rights over matters concerning the public

interest to private parties, such as in qui tam actions, further distorts

government decision-making.

  More generally, lawyers for private parties employ private litigation as

a bulldozer for the implementation of ill-thought-through bureaucratic policy

preferences. I think, for instance, of the role of EEOC concepts, such as the

vague notion of a hostile environment that is increasingly prominent in

Title VII litigation. While this regulatory concept undoubtedly has some

legitimacy, its role as the decisive criterion in discrimination cases and its

vagueness subject employers to the real fear that almost anything could

create a hostile work environment. An enlightened concept has led to a bad

combination, both chilling life and engendering unpredictability.

The mixing of administrative and criminal law approaches leads to

legal overreach through the blurring of any distinction between auditing and


  Finally, the fact of the matter is we have no efficient and cheap

recourse for those who suffer at the hands of public authority. Indeed, our

judicial process is neither timely nor affordable for almost anybody. We have

an independent judiciary, to be sure, but that judiciary feels little

responsibility for systemic excesses. Recently, a single lawsuit over tenure,

for a three-month period took ten percent of my regular working hours in

depositions, preparation for depositions, and review of deposition transcripts.

All the underlying events took place in 1988, four years before I even arrived

at Stanford. The case was in state court, and California allows depositions to

be the contemporary equivalent of torture as a means for getting evidence.

  As I said, in Britain and on the European continent, cost shifting to the

losing party is considered a fundamental requirement of justice. The absence

of cost shifting in the United States leaves many of us with the unhappy

choice between ruining ourselves in vindicating our rights or paying off a

plaintiff because spending inordinate amounts of money on lawyers seems a

poor use of resources, especially if the resources are those of a philanthropic

institution, such as a university. Legal costs overall are staggering, and the

only explanation I can see for our not yet having broken down under them is

the fact that we are such a rich country and are accustomed to so much


  So, what do I really think? Since the 18th century, we have seen

extraordinary growth in personal freedom, formal and substantive equality,

societal and, in many instances, personal wealth. While welfare systems

have not succeeded in eliminating poverty, they represent at least an

acknowledgment of the obligation to moderate poverty. Apart from poverty,

stark differences between the haves and the have-nots remainCand indeed,

in the United States, are worrisomely on the increase. Yet, at least equality

of opportunity, not infrequently, is more than a mere aspiration.

When I say personal freedom, I mean, of course, political freedom, as

found in the protection given freedom of speech or in the enforcement of

voting rights. However, I also refer to the freedom to fashion your life, to

choose the people with whom you want to spend your life, personal mobility.

By comparison with 18th-century Prussia, but also 18th-century

Massachusetts or Virginia, no personal status limits the freedom to develop

one=s personality. The commodification of life seems to favor much

shallowness and disconnectedness, but questions concerning the quality of

life are rather complex and answers all too easily marked by prejudice.

If there is so much to admire, why am I somber? I have suggested

some of the reasons through the illustrations and conclusions I provided

earlier. The question that constitutes my title poses the rule of law and


enlightened absolutism as alternatives. In reality, we have them both: not  as parallel phenomena but in an unholy alliance where the law becomes the  often contradictory, creeping, undisciplined, even chaotic, and definitely  expensive means for the implementation of absolutist visions of the world.                                                               

  Ideologies are not dead. All-embracing ones have become rarer for the

time being, but ideological politics are very much alive. In the legal system,

they find their expression in ideological law firms of the left or right, mostly

masquerading as foundations. Edward Shils defined ideological politics as

based on the assumption that politics should be conducted from the

standpoint of a coherent, comprehensive set of beliefs which must override

every other consideration. If we omit the attributes coherent and

comprehensive, the definition can still serve to capture what in the

vernacular has come to be called single-issue politics. These are frequently

not interest-group politics that allow for political compromise, but belief-driven

politics that are taken to override every other consideration.

Compromise is viewed as compromise with evil, compromise with sin and

therefore unacceptable.

  In the United States, the organizational skills of belief-driven politics

often result in politicians providing immediate satisfaction to sectional ends

through the passing of a law, mostly vague and ill-thought through, with

complete disregard for the systemic consequences. In some states, such as

California, we have the added problem of an increasingly populist electorate

that has abandoned a basic commitment to representative government and,

instead, rules by referenda. A multitude of causes with zero tolerance  for

this, that, or something else, have captured law for their ends and do not

allow for discretion, common sense, balancing, proportionality, judgment.

Enlightened absolutism is not dead, it has simply become pluralistic.

Though I do believe that my profession, the legal profession (including

the law schools), has been woefully unmindful of the systemic consequences

of what legislatures, administrations, courts, and lawyers are doing, and that

a call for careful and thorough reengineering of the legal system is overdue, it

is also the case that our political system has encouraged absolutism,

including pluralistic absolutism, to capture the law. Frederick II of Prussia

may have believed that reason can prescribe virtue. A democratic pluralistic

polity cannot be self-confident in that respect.

  Let me conclude by quoting the same author with whom I began,

Edward Shils: Above all, civil politics require an understanding of the

complexity of virtue, that no virtue stands alone, that every virtuous act costs

something in terms of other virtuous acts, that virtues are intertwined with

evils, and that no theoretical system of a hierarchy of virtues is ever

realizable in practice. Unless our politics becomes more modest, more

responsible, more understanding of the costs of virtuous policies in terms of

other virtuous policies, our legal system will continue to grow even more

expensive, more unruly, and more despotic.













[1] in a lecture entitled: The United States at the End of the American Century:The Rule of Law or Enlightened Absolutism? (The Tyrrell Williams Lecture ,Washington University School of Law,31 January 2000).

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