Early in 2017, when the US government decided to bar people from predominantly Muslim countries from entering the United States, more than a thousand lawyers responded to calls for urgent in-person assistance at airports, and websites were set up to coordinate legal advocacy efforts. In the spring of 2018, when the US government decided to detain asylum seekers on its southern border, severing children from their families and putting them in cages, legal advocacy groups again led efforts to fight these actions and drew hundreds of lawyers to the border to assist.

Setting aside for the moment the legality (or, depending on your perspective, the monstrous immorality) of these decisions, I want to focus on two kinds of responses that they generated. The first was the flood of lawyers who freely gave (and still give) their time, efforts, and skills to defend the rights and interests of the vulnerable people ensnared by these policies. Speaking for myself, at least, these lawyers renewed a lot of my faith in this profession.

But the second kind of response was, in its own way, more interesting: the galvanization of widespread financial support. The ACLU and other organizations reported huge surges in donations in the wake of the travel ban and the legal advocacy response to it. RAICES, the group that led the effort to help asylum seekers from Mexico and Central America and to reunite separated families, was the beneficiary of a Facebook-based effort that reportedly generated $20 million in pledges. I retweeted and amplified the call for “airport lawyers” in 2017 and made a monetary donation to RAICES in 2018, and I was far from the only one.

What we saw in these two incidents and responses were the first major examples of what’s becoming known as “crowdsourced justice.” These advocacy efforts were not financed by government legal aid programs or through formal “fundraising” efforts by the organizations involved — they were informally financed, either by the organizations in the moment or by concerned third parties from the grassroots, and they received donations from people in every walk of life, not just lawyers.

Crowdfunding has been with us for several years now, generating money for everything from high-tech startups to artistic projects to emergency health care, so it’s probably not surprising that it has finally come to the law. Its attractions are evident: At a time when legal aid funding seems to be slowly draining away in many jurisdictions — Americans spend more annually on Halloween costumes for their pets than on legal aid, to give you one notorious example — crowdfunded justice offers people a chance to personally support legal causes that touch their hearts or inflame their consciences. If you can get a thousand sympathetic strangers to chip in a small amount towards your legal expenses, you have at least a fighting chance of getting the justice you feel you deserve.

Along with the obvious benefits of crowdfunded justice come some less obvious concerns. For instance, is it ethical for a lawyer to take on a case when the client has crowdsourced her legal fees? Mark Palmer of the Illinois Supreme Court Commission on Professionalism produced this deep dive into that question for Attorney At Work and came up with some guidelines. “It would be advisable for the crowdfunding client,” he notes, “to inform contributors that their donated funds are non-refundable, that they will not receive confidential information about the client’s matter, and that they may not interfere with or otherwise exert control over the lawyer’s work.” 

Crowdfunding justice, of course, also touches on the old raw nerves of champerty and maintenance, the longstanding and justified concern that a stranger to a legal issue or dispute could benefit financially from helping to finance one side or another. It’s one of the reasons why some people opposed the emergence of third-party litigation financing, although as that nascent industry has generated massive profits, one hears that objection less frequently. (My own objections to litigation financing haven’t much changed since I first raised them more than a decade ago.)

Regardless of your views on litigation financing, however, you’d probably agree that there’s a difference between helping to finance a legal action in order to generate a profit for yourself, and helping to finance a legal action in order to achieve some social or policy objective or to support a worthy cause whose protagonist can’t afford legal assistance. If someone starts a GoFundMe to help them pay a lawyer to get through family court or to stop the deportation of asylum seekers, donating to that fund is an act of charity that will provide no financial reward to the donor. So I don’t think that crowdfunding a legal matter raises traditional ethical concerns around third-party involvement in lawsuits.

But I also think that crowdfunded justice does raise a different and perhaps more problematic concern — if and as it flourishes, it’s going to accelerate the ongoing privatization of the justice system.

This is not a new issue, of course. It’s well understood by both lawyers and clients that there are really two routes towards achieving an outcome through the litigation process:

1. Using the slow, expensive, and increasingly broken-down public legal system (bringing your matter to government-run courts and tribunals, ideally but less frequently with the help of privately hired lawyers, and hoping your resources and stamina hold out until resolution); and
2. Opting out of the public system and using the faster, more effective, and perhaps more expensive private legal system (bringing your matter to arbitrators and mediators, many of whom are former judges, for customized service and a quick resolution).

Much as is already the case with education and health care, the public system for legal remedies is the one you’ll avoid if you can afford to. If need be, you go to the court to get your consensual private resolution approved and entered into the public record, but that’s the only time you come near a courthouse. All other things being equal, I suppose, you’d be happy to use the public system if it were reasonably fast and efficient; but since it’s not, why waste your time in the slow lane when you can take the express route?

So as I say, that kind of privatization is hardly new. But what we’re seeing these days is the increasing role of the private sector — and the shrinking role of the public sector — in the funding of legal and justice matters.

Among the most important recent developments in the access-to-justice space was last autumn’s entry of Pew Charitable Trusts and its very deep pockets into the A2J picture. “The Pew Charitable Trusts,” wrote Bob Ambrogi for Above The Law, “an independent nonprofit with over $6 billion in assets, announced that it will now tackle the use of technology to modernize the civil legal justice system, meet unmet legal needs, and make courts more efficient.” In Governing magazine, Pew’s Executive Vice-President and Chief Program Officer Susan K. Urahn wrote more extensively:

We will work to increase access to free online legal tools, develop new platforms to help people interact with the courts and conduct data-driven evaluations of how these tools perform. The initiative will also identify policies that can improve outcomes for people involved in civil litigation, and will build partnerships with other stakeholders, policymakers and the private sector to modernize the civil legal system.

If state and local government leaders look closely at the challenges facing the civil legal system, the need for innovation becomes clear. Leaders from all three branches of government have the opportunity to modernize our legal system and truly provide equal justice under law for all Americans.

Now, to be absolutely clear, I think this is a tremendously positive development. Ms. Urahn’s assessment of the breakdowns plaguing the legal system are spot on, and the initiatives that Pew intends to support exemplify exactly the kind of fresh thinking and innovative approaches that we need. But having said all that, I also have to point out that this very worthy initiative is the work of a private foundation, not a government. Pew will pay to develop tools, platforms, evaluations, policies, and partnerships “to modernize the civil legal system.” I’m old enough to remember when that was the sort of thing governments did. 

Nowadays, conversely, governments seem to be looking for things they can stop doing, or at least that they can stop paying for, and they will happily offload something as expensive and wickedly complex as modernizing the civil legal system. It’s hard not to see the parallel, or at least the irony, that as the state of Alaska launches a Legal Navigator pilot project, developed and funded in part by Microsoft, to help people with their civil legal needs, the Alaska government’s 2020 budget eliminates all state funding for the Alaska Legal Services Corporation, the state’s only comprehensive provider of free civil legal services to low-income citizens.

Again, I want to emphasize that the Legal Navigator pilot program in Alaska and Hawaii, sponsored by Microsoft, Pro Bono Net, and the Legal Services Corporation, is unreservedly a very good thing. But programs like this should be complementing and amplifying government efforts to maintain and continuously improve the justice system. They should not be seen as a signal for governments to exit this space and abandon their responsibilities to that system and the people it was built to help.

I’m really glad that Pew Charitable Trusts and Microsoft, among other private entities, are getting involved in fixing the justice system. But that is not their day job. Eventually, they will turn to other activities, as they should, and will governments then carry on their good work and keep the momentum going? Or will they continue to defund legal aid, or close courthouses, or shut down pro bono assistance programs, or turn control of more prisons over to private corporations? 

And keep in mind, however deep the pockets of these benevolent institutions, they pale in comparison to the financing capacity of hundreds of millions of internet-connected individuals who are becoming accustomed to crowdfunding worthy public initiatives. Again, back in the day, the concept of everyday people contributing money to support and advance public objectives and the greater good was called “taxation.” But now, even the founder of a British legal crowdsourcing site feels compelled to remind governments that “crowdfunding should not be seen as an alternative to a properly funded legal aid system.” And she’s right. But her country’s government, which has been systematically destroying Britain’s public legal infrastructure, evidently disagrees.

Everything we’ve long assumed to be true about the way the legal system works is in flux, right now. California’s new task force could revolutionize legal services regulation in the United States, with Utah suddenly coming very fast behind it. British Columbia has pioneered a successful online dispute resolution system that reduces the role of judges and flat-out discourages the use of lawyers. The New York Times is publishing opinion pieces that correctly state that access to justice does not have to mean access to a lawyer. We are standing on the fulcrum of extraordinary change, and the decisions we make at this moment of systemic instability and dynamism will have consequences for decades to come.

But whoever provides legal assistance to people in need of legal remedies, and wherever and however those remedies are addressed and fulfilled, we must ask: Who should pay to support the system that enables it all? Who finances and bears ultimate responsibility for designing, operating, and improving the justice system?

I can’t speak for anyone else, but I say it’s the job of government, to be carried out by our elected representatives. We can all chip in to help worthy causes. We should all support corporations and foundations that practise good organizational citizenship. But not for one moment should we accept the notion that justice for all can be accomplished through funding by only some.