TaxProf Blog op-ed: Stalled U.S. Rule of Law Recovery Demands Systemic Change, by William C. Hubbard, Dean, South Carolina; Co-founder and Chair of the Board, The World Justice Project):
Recent years have been rough going for the rule of law in the United States. Its once-vaunted status as a global rule of law leader has been eroded by election denialism, rising gun violence, lower education attainment, dysfunction in our Congress, and diminished public confidence in our Supreme Court, among the mounting challenges. So, a year ago, it was a relief to see the U.S. among the top improvers in the 2022 Rule of Law Index, published by the World Justice Project, the board of which I chair. Unfortunately, the 2023 Index released on October 25th shows the U.S. falling behind again and suggests that meaningful progress will require deeper, systemic changes.
2023 marks the sixth year in a row in which the WJP Index has registered a majority of countries with declining rule of law. The Index is based on surveys of households and legal practitioners in 142 countries, capturing perceptions and experiences of the rule of law in practice.
Each country gets a score and ranking on eight factors—Constraints on Government Powers, Absence of Corruption, Open Government, Fundamental Rights, Order and Security, Regulatory Enforcement, Civil Justice, and Criminal Justice. These are in turn broken down into 44 sub-factors of the rule of law. The result is a globally comparable dataset that enables evaluation of different dimensions of the rule of law over time.
Since 2016, the Index has tracked a global rule of law recession, marked by particularly prevalent declines in the Index measures of Constraints on Government Powers, Absence of Corruption, Fundamental Rights, and Civil and Criminal Justice, with more than 70% of countries declining in each of these areas.
Trends in the United States have largely followed the global pattern over this period. Since 2016, its overall rule of law score has dropped 5%, falling four places in the global rankings to land at 26th out of 142 countries this year. It has seen a 15% decline in its score for the Index factor of Constraints on Government Powers, with double-digit declines in each of the checks and balances this factor measures, including checks by the legislature (down 19%), the judiciary (down 16%), independent audit agencies (down 14%), civil society and media (down 16%), elections (down 10%), and whether officials are sanctioned for misconduct (down 16%).
The US Index scores rebounded slightly in 2022 but then fell again in six of the eight Index factors this year, dragged down in particular by weakening performance of its already troubled justice system. This year, the United States ranks 115th out of 142 countries in the Index measure for affordability and accessibility of the civil justice system and 109th and 124th on the metrics for discrimination in the criminal and civil justice systems, respectively.
The data show the United States taking one step forward, then two steps back. Because, even if the U.S. can withstand the January 6 attack on its Capitol and reinstate checks and balances, there remain longstanding and worsening systemic problems with its justice system—issues of discrimination, inaccessibility, and unaffordability that make “equal justice for all” a fallacy for far too many.
Addressing these systemic challenges should be a priority. Doing so will require transformation of our justice system, our profession, and the services we provide. Fortunately, we are not starting from scratch. As the WJP Index underscores, there are well over 100 jurisdictions with justice systems from which we could likely learn. Research from institutions such as the American Bar Foundation Access to Justice Research Initiative, Legal Services Corporation, American Academy of Arts and Sciences, and the ABA Center for Innovation also points to effective new ways to deliver justice. These approaches start with data and evidence to understand people’s legal needs and the barriers to justice they face, and then employ responsive interventions that prioritize prevention, legal information, empowerment, and problem-solving, often outside the formal legal system and often without the necessity of a licensed lawyer.
Law schools can be effective catalysts for such innovation, tapping into multidisciplinary university expertise and resources, and building partnerships with entrepreneurial justice actors to learn what works and improve justice outcomes while training and inspiring a new generation of justice innovators among our students. Though some resist these efforts, when we promote and support justice innovation, we open for our students exciting new professional opportunities while also helping set the United States on a course for sustained rule of law progress.
