Professor Greiner has become a powerful advocate for statistical analysis of our judicial system. Here, he shares how nerds could pull the legal profession out of the 1930s.
On the Record: What does it mean to discuss America’s justice gap?
James Greiner: There are a whole lot of problems that individuals of all stripes face. Some subset of those problems are called justiciable problems. The solutions to them are, at least in part, established by formal law. Some subset of those people choose to try to do something about it. Not all of them. Some subset of those people go to formal legal institutions, because some other subset of those people go to churches, local elders, or other locally respected people.
For the set of people that attempt to either access formal legal institutions or are required to access those institutions because they are formally brought by being sued in an eviction or debt collection process, for example, the question is can they address or solve the problem in the way formal law provides on its merits? The problem is things happen to them when they get into the formal legal system that they don’t completely understand or that doesn’t reflect their legitimate view of the situation.
OTR: So, in many ways, the system is just too complicated?
JG: Yes. Sometimes administrative agencies have the same characteristics. Sometimes people don’t know where they are, or what the formal law is. Sometimes they know precisely where they are, precisely what the formal law is, and they have the evidence in hand to do what it is that they need to do, and then they, for whatever reason, crumble and fall apart when they arrive at the legal institution because no one has prepared them and they are not prepared to negotiate.
OTR: And how do you believe that greater statistical analyses or, as you put it, a “nerd,” can serve to close that justice gap?
JG: One of the ways I’ve tried to startle legal aid providers and people who think they’re doing good things—and I think they’re doing good things too—is to ask them to rate their enthusiasm for the following propositions.
Proposition one is I’m going to double your budget. On a scale of one to ten, they say twenty. They are very, very excited about doubling their budget. Proposition two is I’m going to double your efficiency or your output. They say maybe, maybe not. They’re less enthusiastic. Proposition three is could you rate your enthusiasm if I’m able to double your outcomes—the favorability or the effectiveness of the outcomes experienced by your service population. They’re hesitant about three, and usually less enthusiastic than they are about one.
OTR: What do you take away from that survey, from their responses to those propositions?
JG: The level of enthusiasm for one and three—three ought to be at least as high as one, and perhaps higher, because doubling a budget doesn’t mean you’re going to do anything besides create more potential inefficiencies in the system.
So, among the things quantitative analysis can do is create much more efficiency and reveal, perhaps unpleasantly, practices that are inefficient or ineffective.
OTR: What kinds of practices are you referring to?
JG: For example, do we need to have a full attorney-client relationship in every case in a particular practice, like housing or summary eviction? Or could we get away with a lawyer for a day program, because a lawyer-for-a-day can serve a lot more people more cheaply?
By conducting a randomized analysis to the relative effectiveness of a lawyer-for-a-day program and a full representation program, you can look at costs and benefits. More interestingly, suppose it is the case that you’re providing high representation in lawyer-for-the-day and your full representation program, and yet the clients are experiencing roughly identical outcomes in these two programs, the one thing you know is you can create an efficient system serving a lot more people.
OTR: Is it just about the level of representation for particular clients?
JG: No, you’ve also learned something critical about the system itself. One might hypothesize that one barrier is the requirement that you must file an answer, which a lawyer-for-the-day program wouldn’t help with. Another hypothesis is that it’s what happens after the court date is what matters—people can’t pay or keep up with behavioral conditions, for example. But if ￼you do the test I just articulated and find out that full representation and lawyer-for-a-day are equally effective, then you know that neither of those two access points is the really critical point in the process. It’s in fact the court proceeding where the lawyer is, because you’ve provided services there and you got just as much as you got out of the full representation model which is supposed to help with all of these portions of the proceeding.
OTR: Why do you think legal services providers are so reluctant to evaluate their programs and outcomes through these statistical lenses?
JG: It suggests to me that decades of being political targets, constantly having to fight for next year’s funding, has trained legal services providers to focus on next year rather than the next ten years, to focus on how to keep my organization alive rather than how am I going to best serve my service population. And it’s led them to assume that anything they do will in fact be effective, because they have to provide that message all the time to potential funders— “we are effective, we are doing good things, etc.” instead of stepping back and saying, “wait a minute, we’re probably not perfect either, we can improve and learn things.”
OTR: You’ve suggested that one of those potential improvements involves finding the “right” clients-what does that mean?
JG: If you think about it, what kind of client needs your help the most as a legal services provider? Probably somebody who cannot advocate for herself very well, who’s not tapped into social networks, who doesn’t know how to find resources that could help her with her problem, who doesn’t know how to take steps to solve the nonlegal problems in her life, and who probably can’t speak very well on her own behalf in terms of fighting through a system.
Even if you’re phone is ringing too often, it may be that the wrong kind of people are calling you. Yes, they’re all eligible for your services in the sense that they’re income- and asset-eligible and they can’t afford to hire attorneys, they have legal problems, that’s right. But the mere fact that they call you may be prima facie evidence that they are the set of folks you may be able to get away with providing something less to, like client education or pro se assistance materials or something else for them that will allow them to succeed or fail less miserably, than the set of people who can’t find you unless you go find them.
OTR: What would be the social implications of thinking about the provision of legal services using more statistical analysis?
JG: Well, it allows for an upstream intervention, where if you intervene there, you might be able to prevent downstream problems—it’s a vaccination model rather than an emergency model. All the evidence from the medical profession suggests that, although you have to give vaccines to everybody, the sum total of getting vaccines done as opposed to treating people with chronic infectious diseases ends up saving a lot of money that way and making a lot of people a lot happier.
OTR: Is that what you were referring to when you said, at a talk last spring, that “the legal profession is where portions of medical profession were in 1938?”
JG: There are a lot of aspects to that. One is addressing problems as they arise, instead of through prevention. If law is to medicine, what is the public health analog to law? What is the legal aspect of preventing legal problems from arising? Public health is a separate study—it’s not located in medical schools.
OTR: How did that public health perspective change doctors’ approach to medicine?
JG: Well, we didn’t always think of medicine as a science. Medicine used to be a profession in the sense of an impressionistic profession where people primarily relied on their own experiences to figure out what worked and what didn’t, or at least they relied on their own experiences to decide what to recommend to patients. And then, in the 1930s, ‘40s, and ‘50s, the leading, more academically inclined medical folks decided they would no longer use stature and prestige to define what was good medical practice. Instead they would use randomized control trials as their gold standard for figuring out what was good medical practice, especially with relating to drug treatment and new medical devices.
OTR: How did that change take place?
JG: There was a titanic social struggle. Medicine was an “I know what’s best because I’ve done it a lot” type profession. It became less so because of deliberate battles, social and academic battles and articles being written back and forth. And many medical providers hated it because, among other things, it suggested statisticians were going to tell them how to practice medicine. And they were going to become less and less purveyors of judgment about how to adapt something to a particular situation and more and more repositories of statistical studies. They were no longer exercising a kind of judgment, as opposed to a more “if-then” knowledge.
OTR: This seems like a rather technocratic shift. Why have you described this shift as requiring a “political movement?”
JG: The battle over who gets to decide what good practices are, that’s a political battle, that’s a social battle. And medicine fought—and in some senses is still fighting—a social battle. A really heavy battle, the big guns were hauled out in the ‘30s, ‘40s, and ‘50s. And some sort of victory flag was staked in the ground with the Food and Drug Administration Act, which said we’re going to have to have adequate and well-controlled studies before you’re allowed to market drugs. And that language came to be interpreted as requiring randomized trials.
Correct ideas don’t take over the world because they’re correct. They take over the world because people went out in the world and persuaded everybody else.
OTR: What lessons can the legal movement you’re proposing learn from the medical movement of the 1930s, ‘40s, and ‘50s?
JG: There are too many examples from the medical profession of drugs that very prestigious, highly knowledgeable, extremely smart medical doctors thought, “this is the right drug.” And then they went into randomized evaluation and they were found either to be no better than a preexisting drug or no better than no treatment at all or flat out worse.
And the frequency with which that happens in the medical profession should give lawyers a lesson.
OTR: I’m looking at a figure from 2010 that says one-third of all law school grads were unable to find legal employment upon graduating. This is despite the wide gaps in the provision of legal services that we’ve been discussing. What’s going on there?
JG: It’s hard to know for sure. It’s not that we’re producing too many legal professionals, it’s that we’re producing the wrong kind of legal professionals. The state of Washington recently began the process, the state of New York just began to follow, of creating an explicit, non-lawyer legal practitioner—the equivalent of a nurse practitioner or a nurse. The medical profession, again, not all aspects of it are perfect, but it’s realized it can no longer operate if every time you need a prescription you must talk to an M.D., even if what you have is obviously a sinus infection. That’s not what happens any more.
And so the legal profession needs to be creating these non-J.D. legal professionals that require a whole lot less expensive school and a whole lot less expensive bar dues and cost of business type arrangements. And not overproduce J.D.s, who then are saddled with loans, to where finding a $50,000 a year job is not going to help them with their loans. So the $120,000 a year job is the only way they’re going to pay them back.
OTR: I’m guessing the legal profession has not been receptive to the idea of a legal para-professional?
JG: No, the idea of para-professionals really strikes at the heart of our professional cartel, which is not a really effective cartel because we’ve got too many people. That’s the classic way cartels break down, when there are too many providers and they lower prices. That hasn’t happened. So there seem to be structural market failures wrapped up in that.
OTR: Lastly, what role do you think law schools can play in cultivating that movement or in offering complementary solutions to the problems you’re describing?
JG: Law students have guts. Law students have inquisitive minds. They’re not afraid to try new things. Law schools, especially law school clinics, can lead the way on this stuff and they already have. When I started this push, very few legal aid providers would talk to me at all, and no one wanted to do studies. What got the whole thing off the ground was two law school clinics here at Harvard—one doing social security representation, the Legal Services Center, and the other was the Harvard Legal Aid Bureau.
Then, when I’d start to talk to legal aid providers, they’d say “nobody would want to do that it’s impossible to do,” and I’d say, “do you know these people at Harvard Law School who are working in the clinics?” The fact that the law students were willing to do this stuff—HLAB is student run—they were the ones with the guts to step up and do it. They can lead the way by showing by example what can be done and what can be discovered.