Vol. 10 No. 3 (March 2000) pp. 197-199.

by Francis Regan, Alan Paterson, Tamara Goriely, and Don Fleming (Editors). New York: Oxford University Press, 1999. 305 pp.

Reviewed by Susan Sterett, Department of Political Science, University of Denver.

Emerging out of the ambitious Research Committee on the Sociology of the legal Profession, this book contains essays ranging from analysis of the decline in funding for legal aid to comparisons of welfare states on the basis of how they spend for legal aid to analysis of the difficulty of cross-national comparison in legal aid. Unlike the first volumes from the comparative project, the essays are not tied by consideration of a common theoretical framework. The essays do speak to each other, but the center of intellectual concern of each essay varies.

To some extent, as indicated in Erhard Blankenburg's chapter (pp. 121, 124), states spend on legal aid as they spend on other welfare programs. Roughly speaking, generous welfare states are generous legal aid states. The United States, which spends little on programs for the poor, spends little on civil legal aid -- $3 per capita for civil legal aid in California. By comparison, in 1994-5 England and Wales spent $30 per capita. However, states do not only spend as they do on other programs. Other variables clearly matter. States with judicare systems - in which privately practicing attorneys are paid from public funds for taking on a legal aid case -- give the legal profession a direct stake in the maintenance of legal aid. England and Wales maintain a judicare system. The United States' Legal Services
Corporation, by contrast, has given the profession no such stake. Although legal aid in Britain has faced cutbacks as that state has cut back on welfare spending, the cutbacks are nothing like the gutting of Legal Services in the United States. The American profession might have a general interest in maintaining some form of civil legal services to ensure that lawyers are meeting professional obligations to work for the public good without having directly to take pro bono cases. Indeed, as discussed in the chapter by John Kilwein (pp. 58-60), the American Bar Association has proven to be an advocate for the Legal Services Corporation. However, ordinary practicing attorneys have no close tie or commitment to Legal Services.

Too, the distinction between civil and common law systems probably continues to matter. In civil law systems, the argument goes, the legal profession is integrated into the state and is not understood to be an adversary of the state. Part of the function of legal aid in civil law systems is simply to provide legal advice to those inquiring or what Francis Regan calls outside litigation assistance. In common law countries, that advice has been deprofessionalized much more extensively: there are do-it-yourself divorce kits, tax advice, and assistance with rental problems (p. 196). Regan notes that complicating the distinction between civil and common law states is the distinction between generous and less generous welfare states. Rather than simply arguing that generous welfare

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states provide generous legal aid, he argues that it is necessary to distinguish between types of legal aid. As he puts it (p. 193), generous welfare states have substituted welfare programs for legal aid. They are not perfect substitutes, but few states choose to subsidize activity challenging the provisions of the state.

Not only the status of the welfare state, the relationship of lawyers to legal aid and the civil-common law distinction matter. Broad brush studies concerning the importance of lawyers' lobbies cross nationally or the significance of the civil/common law distinction are helpful, but require evaluation via closer case studies of politics in particular countries. Both Ireland and France fund legal aid at a relatively low level. Mel Cousins, in his article addressing those two countries, argues that the study of legal aid has been skewed by an emphasis on high spending countries. He notes that the demand for legal aid in Ireland has gone up in recent years, and reminds us that changes in the law shapes demand. Irish legal aid is almost exclusively in family law and in 1995 Ireland made divorce legal. At the same time, the government sponsored a bill increasing spending for legal aid. Too, the European Court of Rights has a place. It held that Ireland was in breach of its obligations to provide access to the courts because it did not provide for enough legal aid. Catholicism, Cousins notes, is less visible in explaining the French level of legal aid. In the end, he, like others, urges an appreciation of causality that acknowledges complexity and the causal importance of a number of factors. He calls this a Marxist explanation (p. 160). However, except in the very loosest sense that it evidences concern for the poor, it is unclear in what sense the explanation is Marxist or even

In the United States, scholars have analyzed the Legal Services Corporation in terms of the choice between pursuing appellate cases, which might change rules, such as trying to get the housing rules changed through litigation, and pursuing cases that will solve immediate problems of poor clients, such as stopping an eviction. Criticism of the choice to pursue appellate cases colored the opposition to the Legal Services Corporation and lead to its losses in the Reagan administration. Earl Johnson, an early historian of the Legal Services Corporation in the United States now on the California Court of Appeal, reconsiders legal aid after the revolution that occurred in the 1960s and the cutbacks from the mid-1970s on. His chapter provides a brief overview of the provision of charitable legal services through the twentieth century in the United States, noting that even as early as 1919 Reginald Heber Smith, a leading advocate for legal aid, urged that poor people's lawyers use legal advocacy to try to change the law.

Johnson mourns that there is no American equivalent to the European Court of Human Rights decision requiring legal assistance in civil cases, while acknowledging that such a decision hardly means that there is universal generous provision of legal aid across signatory countries (pp. 10-11). John Kilwein also notes the question of a rights based decision as a significant difference between civil and criminal representation in the United States (p. 60). The extensive law and society work documenting organizations' abilities to mute the significance of legal decisions would suggest caution in believing that a single decision from a distant appellate court could transform something as entrenched as hostility to the successes of Legal Services, a hostility first evident during Ronald

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Reagan's time as governor in California and during Richard Nixon's presidency. As Johnson notes, it was the successes of California Rural Legal Assistance in such charged issues as the use of temporary agricultural workers from Mexico that led to cutbacks in budgets and duties.

Also, John Kilwein traces the decline of the American Legal Services Corporation with a focus on the 1980s and 1990s. He argues that ideology, rather than general fiscal conservatism, shaped the cutbacks of legal aid. He notes the continuing critique from conservatives of Legal Services' reform litigation, a critique that ignores that the primary business of Legal Services is and has been service for individual clients -- divorces, custody disputes, housing disputes, efforts to get social security payments (p. 54). A coalition of conservatives, who saw reform litigation as wrong, and Christian conservatives, who saw the facilitation of divorce as wrong, worked in an atmosphere of cutbacks in social programs and made cuts to Legal Services almost a forgone conclusion.

Given concerns prevalent at least in the United States that there is too much lawyering, it is worth asking the question asked in the ACCESS TO JUSTICE studies from the 1970s: do people need more legal aid? How would we determine that? This collection offers articles by Jon Johnsen and Alan Paterson and Avrom Sherr concerning not the political dynamics of expansion and contraction of legal aid, but the difficulties of assessing demand for and the quality of legal assistance. Lawyering itself can change the demand for services by changing what seems possible to challenge. It is therefore difficult to determine need for legal services if it is defined as independent from provision for services. In his discussion of multi-party suits in Australia, Don Fleming notes that the expansion of class action suits or something like them makes a wider range of problems look like legal problems (pp. 258-61). Jon Johnsen provides a thoughtful discussion of how
one might determine the need for legal aid, arguing that one needs to attend to a client's diagnosis of something as a legal problem, then the calculation concerning whether any of a range of legal services organizations that different state/societies offer -- an advice bureau, a union lawyer, a consumer complaints office -- might offer assistance. This would be difficult to do, as Johnsen acknowledges. Paterson and Sherr, after outlining how one might assess quality, briefly assess the data on quality in some selected Western postindustrial states.

These essays center broadly on the theme of legal aid, but they do not investigate any common set of questions and they do not investigate countries in parallel. For that reason, this book as a whole would be appropriate for very few classroom settings. The essays are too disparate. However, they do provide helpful approaches to explaining the differences in provisions cross-nationally of legal aid.