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

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  • Shai Agmon

    (171167University of Oxford, UK)

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.

Suggested Citation

  • Shai Agmon, 2021. "Undercutting Justice – Why legal representation should not be allocated by the market," Politics, Philosophy & Economics, , vol. 20(1), pages 99-123, February.
    • Handle: RePEc:sae:pophec:v:20:y:2021:i:1:p:99-123
    DOI: 10.1177/1470594X20951886
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    References listed on IDEAS

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    1. Friedman, Milton, 2002. "Capitalism and Freedom," University of Chicago Press Economics Books, University of Chicago Press, number 9780226264219, Febrero.
    2. Emons, Winand, 2000. "Expertise, contingent fees, and insufficient attorney effort," International Review of Law and Economics, Elsevier, vol. 20(1), pages 21-33, March.
    3. Friedman, Milton, 2002. "Capitalism and Freedom," University of Chicago Press Economics Books, University of Chicago Press, number 9780226264202.
    4. Satz, Debra, 2010. "Why Some Things Should Not Be for Sale: The Moral Limits of Markets," OUP Catalogue, Oxford University Press, number 9780195311594.
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    Cited by:

    1. Saddam Hussein & Anwar Shah, 2022. "Justice: Not a Fundamental Right but a Neoclassical Economic Commodity?," PIDE Knowledge Brief 2022:59, Pakistan Institute of Development Economics.

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