Regulating the Supply of Law

From the “Friends and Relatives of the Department” Files…

The ways that states regulate professions is a topic of sociological interest. The degree to which citizens have access to legal services to solve legal problems is a topic of sociological interest. As argued previously on this blog(“Equality, Information and the Courts Redux,” “Democracy and the Information Order,” “Courts and the Information Order,” “Suing for Information“), the way the courts work is a topic of sociology of information interest. In this op-ed, these issues come together in a sociologically interesting way. You may recognize the author of the piece as my sometime co-author (and wife).

— Dan.

A case for legal aid at Wal-Mart

By Gillian Hadfield

Friday, March 12, 2010

The United States stands largely alone in advanced-market democracies in drastically restricting where and how people can get help with their legal problems. In all states, under rules created by bar associations and state supreme courts, only people with law degrees and who are admitted to the state bar can provide legal advice and services of any kind. [Read More]

Madoff, Courts, Information, and Reform

NPR’s All Things Considered carried a piece on 29 June titled “Madoff Victim: Financier’s Apology Does Nothing” that contained an interview with, Miriam Siegman, an investor who lost her life’s savings to Madoff who had spoken in court at the sentencing hearing. The interviewer asks Siegman whether the experience offered any catharsis.

It did not:I guess not really and the reason I say that is…what I think all of us had hoped for was the truth that might have come up at trial. You know, when you have a trial you have subpoena power and people get on the stand and are cross-examined….

She goes on to say that she worries that there will be meaningful changes to the system.

When a comment like this is heard from someone engaged in a lawsuit we sometimes dismiss it as window dressing covering up the fact that, really, “it’s about the money.” But in this case the statement comes from someone who (1) is not going to receive money, (2) has, in fact, already lost all her money, and (3) who got from the court one result she wanted — a maximal sentence for the defendant.

Two things are sociologically interesting here. First, Ms. Siegman says “I think all of us had hoped for” and she speaks of change of the system. These are not empty and platitudinous comments, I think. This is an example of “speaking for society.” In fact, the judge, in explaining the 150 year sentence he imposed, spoke of the importance of symbolism, an important dimension of “the social.” But Ms. Siegman’s answer points us toward something important. The interviewer was asking “did the courtroom process provide you with any emotional or psychological benefit?” and she replied not just “no” but by changing the terms of the question. This is not about the emotional payoff from “having one’s say” but rather about the court as a venue where we, collectively, can find out, as equals, what others, who have set themselves over us (she’d earlier said that she felt that Madoff had treated his victims like “roadkill”) know. This is precisely the “informational equality” that Gillian Hadfield and I have written about under the phrase “Democracy and the Information Order” (also the subject of several other posts in this blog: here and here).

Siegman’s statement is a perfect illustration of the social value of the informational role of courts. The victims got the most they could have hoped for on the vengeance dimension, but because the case was settled with a plea bargain they were denied something important. Legal efficiency was perhaps achieved — punishment was meted out at minimum expense. But perhaps this was done at a cost: a deficit in the democratic function of law — victims and non-victims, equal members of the democratic polity are left wondering how this happened, how this could happen. It may be that various official inquiries by the SEC, by congressional panels, by the Madoff trustee, or by investigative journalism will ferret out answers to such questions, but the victims, the people, will be passive recipients of the information produced by those processes, not equal participants in the asking.

And she may also be right on a social-efficiency dimension: reform might be more likely if the courts got to play this informational role in a case like this. But that’s an empirical question.

Whose Information?

Robert Smith had a piece (“Sept. 11 Families Want Confidential Files Released“) on NPR’s Morning Edition today that dovetails nicely with a number of posts that have appeared here* on the relationship between courts and the information order. Our argument has been that courts play a role in enacting an important relational component of equality in a democracy: under certain circumstances, formal equals cannot arbitrarily withhold information from one another.

The three remaining plaintiffs are arguing that materials they’ve obtained during the discovery phase of their trial — materials about airline and airport security on 9/11 — should be made public. The defendants are claiming that the material is meant for “the lawyers’ eyes only.”

The case reminds us of the informational role played by courts and civil litigation. As generic members of the public who happened to have been singled out by having a relative killed on 9/11 these plaintiffs are exercising their formal informational equality before the court. They get to say “tell us what you know about that day” and the usually much more powerful organizations are not allowed, in this forum, to say, “we don’t have to tell you.”

Now the question is whether their right to ask (and be answered) is tied to their formal status as equals before the court as a place where information “comes to light,” or whether it’s interpreted in strictly transactional terms — since their lawsuit requires the information, they may see it, but the other party gets to maintain its right to say “we don’t have to tell you” to the public at large.

Even apart from how the judge rules on the contest between the public interest of disclosure and the private interest of confidentiality here, in light of the frenzied demand for “confidential corporate information” from the bailed out insurer AIG in recent weeks, we might remind ourselves that the airlines received a pretty hefty bailout from the taxpayers after 9/11. Perhaps they’ll want to be careful about how vigorously they argue that the public does not have the right to know.

*See these posts:

“Equality, Information and the Courts Redux: The Dan Rather Report,”
“Democracy and the Information Order,”
“Courts and the Information Order,”
“Suing for Information“