Decommodify the Law

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= project from the SELC, from Janelle Orsi and colleagues


Project Overview by Janelle Orsi:

“This project begins with the proposal that anything necessary to human survival should not be allowed to be treated as a commodity that can be bought, sold, and traded, because doing so means that the highest bidders – people of wealth – will always have greater access to the means of survival. In today’s world, law is necessary to survival. Any society subject to the rule of law should also create the conditions in which every member of society can understand, navigate, and use the law. The opposite has developed within the U.S. legal system, because the legal profession has come to act as impenetrable gatekeepers of an ever-growing body of regulation, and because members of the profession profit substantially from the fact that most people are denied access to, understanding of, and ability to navigate and use the law.

This project will propose ways to decommodify the law and the provision of legal services through a combination of community-led initiatives and policy changes. It will begin with research on a handful of questions, with the primary goal of developing ideas and putting forth a new vision for the legal system and legal profession.

As it begins to take shape (in my mind, at least), it may ultimately take the form of a vision wherein:

1)      The concept of “practice of law” dissolves into a broader category of activities designed to provide “access to the law” or “legal access.”

Access to the law means:

  •  Access to statutes and case law (law, in its literal sense)
  •  Access to information and education necessary to understanding and navigating the law
  •  Access to court system and administrative legal systems
  •  Access to specialists who can provide guidance and advice
  •  Access to legal representation
  •  Access to the means of changing laws and influencing policy

2)      The provision of legal access – in any form named above – begins to occur within organizations called Legal Access Trusts. A Legal Access Trust can take many forms, but it can be something like a combination of legal service organization + law library and legal resource center + law school + policy advocacy center. A Trust could provide direct advice and representation, train legal service providers, train community members to navigate the law, empower citizens to see themselves as capable of influencing policy, etc. To prevent commodification of the law, the provision of legal access would necessarily be done on not-for-profit basis, and no individual would be able to maximize profits off the sale of legal information or services. Initially my vision is an organization in which lawyers and non-lawyers alike provide legal services, have relatively equal pay rates, and have relatively equal responsibilities and powers to manage the Trust, each acting as trustees of the law for the benefit of society.

3)      One or more organizations emerges to support and regulate Legal Access Trusts. For example, we could propose to form an organization called American Law Commons, which would complement to the American Bar Association. The ALC could set and enforce standards on Legal Access Trusts, collect surplus legal fees from the Trusts, and fund the development of new Legal Access Trusts. State-level “Law Commons” organizations could eventually petition to hold many of the rights and privileges granted to state bar associations, including the ability to certify people or, better yet, Trusts, to provide legal services.

At the policy level, we could make proposals that might include:

  1.  Be like Finland and don’t regulate the practice of law.
  2.  Be like England and do not require people to be lawyers in order to “practice law,” but designate a handful of legal services that must be done by someone who is some sort of regulated professional.
  3.  Redefine the “practice of law” to exclude many practice areas, particularly certain regulatory and administrative legal areas
  4.  Empower the American Law Commons or state-level law commons to certify Trusts to provide legal services “

(email, January 2016)