Undercutting Justice – Why legal representation should not be allocated by the market

Abstract

The adversarial legal system is traditionally praised for its normative appeal: it protects individual rights; ensures an equal, impartial, and consistent application of the law; and, most importantly, its competitive structure facilitates the discovery of truth – both in terms of the facts, and in terms of the correct interpretation of the law. At the same time, legal representation is allocated as a commodity, bought and sold in the market: the more one pays, the better legal representation one gets. In this article, I argue that the integration of a market in legal representation with the adversarial system undercuts the very normative justifications on which the system is based. Furthermore, I argue that there are two implicit conditions, which are currently unmet, but are required for the standard justifications to hold: that there is (equal opportunity for) equality of legal representation between parties, and that each party has (equal opportunity for) a sufficient level of legal representation. I, therefore, outline an ideal proposal for reform that would satisfy these conditions.

In Defence of Wish Lists

“…Yet, this does not make it easier to regard business ethics as deserving the status of professional ethics, not least because critiques of medicine and law are most apt when, and to the extent that, these fields most closely resemble business. Thus, such critiques often draw attention to the role of profit (see Mariner 1995, Agmon 2021, or "illustrate how a dominant managerial and economic focus maintains and reproduces a constrained form of morality, limited to instrumental, utilitarian and commercial ends" which undermines professionalism (Chow and Calvard 2021, p.213). Indeed, it would be wrong to exaggerate the extent to which legal ethics, for instance, does proceed in an explicatory manner.…”

A qualitative examination of the experiences of defence lawyers in working with emotional material in the criminal law

“…This can create feelings of pressure for the defence lawyer to get the best possible outcome for clients. Additionally, it can create accessibility issues, as someone with a low income cannot afford the same representation as a wealthy person, influencing their outcome (Agmon, 2021). Although inequalities of representation may be mitigated through government-funded legal aid, as in New Zealand (Ministry of Justice [MoJ], 2021b), there are controversies about legal aid provision and access that potentially reduce its effectiveness as a tool of equal access (e.g.…”