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
neo-Marxist.
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.