New Article: Benjamin C. Carpenter, A Solution Hidden in Plain Sight: Closing the Justice Gap by Applying to Legal Aid the Market Incentives that Propelled the Pro Bono Revolution, forthcoming Chapman L. Rev. Abstract below:
The legal profession is now thirty years into the pro bono revolution, and the bar is more committed, in both word and action, to access to civil justice than at any other time in its history. Yet for most of the sixty million Americans who cannot afford a lawyer, the bar’s commitment provides little solace. Despite all the resources the bar has put into pro bono over the past thirty years, those living at or near poverty still do not receive legal help for almost eighty-six percent of their legal needs. In fact, lawyer participation in pro bono has become stagnant over the past decade, and the World Justice Project just ranked the United States 109th out of 128 countries in access to affordable civil justice. Meanwhile, law firm revenues rocket upward. In 2019, revenue at each of the nine largest law firms was greater than the combined operating budgets of the country’s 700 legal aid organizations. Revenue at one firm alone doubled the combined budgets of all legal aid organizations. Yet, as the ABA advocates for additional public funding of legal aid, law firms themselves pitch in less than four one-hundredths of a percent of their revenue. A fair question is what is truly motivating the bar—is it a foundational commitment to closing the justice gap, as it professes, or protecting its own investment in pro bono for the benefit of its members. If the bar is serious about closing the justice gap, it must not simply capture and leverage its advances in pro bono, but it must also commit to increasing its support for legal aid—in action, not just words—as it has with pro bono. While history has shown that this shift will not happen simply by encouragement and aspirational appeals, there is a blueprint for accomplishing this: the market incentives that moved big firms to enthusiastically embrace pro bono over the past few decades provide a solution hidden in plain sight. This article explores those incentives, sets out a proposal for how to apply those incentives to increase legal aid funding, and calls on the bar to live up to its public commitment to equal justice.