Friday, October 15, 2010

The Rule of Law in the U.S.

It was distressing, but not surprising, to read that among the developed countries of the world, the United States does not even rank in the top ten in terms of adherence to the rule of law. According to the ABA Journal,
A report released by the World Justice Project—a 3-year-old initiative sponsored by the ABA and a number of other organizations representing various disciplines—says the United States lags behind other leading developed nations on all but one of nine key measures of adherence to the rule of law. The findings for each country are based on surveys of some 1,000 residents in three leading cities as well as experts in the law and other disciplines  . . . The good news is that the U.S. ranks no lower than 11th among 35 countries covered by the index on any of nine key rule of law principles.
At the heart of what I consider a low rating is the failure of the United States legal system to provide adequate access to justice for our citizens. The inability to provide access to the courts undermines our claim as a nation to be the beacon of the rule of law.

The sad thing is that most Americans do not see the problem. In fact, most lawyers probably don't see the problem. Increasingly, even middle-income Americans are unable to access the courts effectively because they cannot afford a lawyer. That means that many of our citizens are systematically deprived of an opportunity to use our admirable judicial system and a body of law that does a pretty good job of protecting rights and ensuring both predictability and fairness. When the legal system is not available to all citizens on an approximately equal basis, the system cannot claim to be characterized by the rule of law. No matter how equal citizens are once they are "before the law," if they can never get there (like the character in Kafka's story of that title) they cannot be said to be treated equally by the system.

The rule of law has many features, but one of them is that all citizens have fair and easy access to the courts and to the benefits of equal laws. Increasingly, that description does not characterize the American legal system.

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