In the three years since Unequal Justice was published, professional issues have moved in very different directions than those I saw, or anticipated, at the time I wrote it. Maldistributed legal services, and their implications for justice, were my primary concern, but deeper issues of fairness that affect the purposes and future trends of public interest law have raised questions that I cannot answer. The best I can do is to share some of those questions with you and to try to put public interest law in some sort of historical framework that will make sense out of our present condition. Public interest law now is sufficiently established to have its own history, and also to be part of the history of the American legal profession. The unanswered problems that the public interest movement now faces at least in part are related to the whole pattern of legal aid and public interest work over the last century of American legal development.
I suspect, however, that the answers may lie entirely beyond the public interest law movement. I am somewhat uncertain as to whether these kinds of questions can be dealt with in law schools, in codes of professional responsibility, or by public interest lawyers themselves. My feeling is that law schools provide a particularly receptive forum in which to raise these questions; if they cannot be raised there, there may be no segment of the legal profession in which they can be raised.
Let me begin by saying that I believe there is still a vast unmet need for legal services even though the public interest law movement has taken important steps to provide them. Existing educational and ethical norms, however, are not prepared to move public interest law significantly beyond the direction in which it already has moved. Public interest law alone cannot remedy the problem of maldistributed legal services. There are too many legal problems, and too few public interest lawyers, for that. Even assuming that the public interest law movement could solve this problem, the question still remains whether redistribution necessarily would resolve what I would call the “fairness” problem: Can the legal system produce fair results in a society where wealth and power are unequally distributed? In other words, is it enough that all people who need legal services have them available? The problem of scarcity, in fact, may be less important than the problem of fairness. Alleviation of the former provides no guarantee that the latter will resolve itself.
Voting rights advocates should explore section 11(b) of the Voting Rights Act as a vehicle to combat voter intimidation.
Mandatory arbitration for guestworkers, a uniquely vulnerable group, will result in class inequality and worse conditions for all workers.
DOJ guidance for mentally impaired detainees in immigration removal proceedings should be amended to provide counsel at earlier signs of incompetence.
An evidentiary privilege to protect workers' confidential communications from disclosure in federal and state court proceedings would support unions.