Rethinking the Welfare State: The prospects for ... - e-Library

Rethinking the selfare state 84
by central regulation of public legal services is the reliance that such a system inevitably
places upon the goodwill of those who make and enforce such regulations.” 36 Thus, in the
United Kingdom, the Law Centres’ Federation “has been committed to local control of its
centres,” 37 and avers itself suspicious of any effort towards centralized regulation and the
setting of priorities. The claim of the potential for state interference and the tension
between local and central authority is not without foundation. The Legal Services
Corporation (LSC) in the United States, for instance, issues operating grants in
accordance with a list of accepted priorities, the ordinal ranking of which arguably
reflects the social, economic and ideological values and priorities of the government
which funds them:
Support for Families: the cohesiveness of the family is not only a time
honored value fundamental to our American way of life but also the
undergirding of the stability of our American society […]
Preserving the Home […]
Maintaining Economic Stability: […] [T]he prevention of
unemployment may obviate a sequence of far greater legal activity […] 38
Because of such stipulations, clinics attempting to contract for a funding arrangement
with the LSC and organizations like it may encounter a principal-agent problem. They
must balance their duty to their principal (those in need of legal services) with the
necessity of setting priorities which are more likely to attract funding, in order to remain
operational. This creates a potential divergence of interests: the interest of the agent (the
clinic) in obtaining operational funding and the best interests of the principals (its clients)
in having the clinic set priorities which reflect their actual needs. Clinic administrators
who sincerely believe that class-action lawsuits against governments or direct political
action short of or including civil disobedience are the best strategy to advance the
interests of their constituencies, may be dissuaded from such projects in favour of less
litigious or radical positions, in order to avoid losing funding.
For instance, the United States’ Legal Services Corporation Act, while granting LSCfunded
clinics more independence from the government, effectively forbids the
participation of community clinics in any law reform activity. 39 Such considerations may
undermine the independence of clinics, and dissuade them from adopting the most
effective strategies available to them in service of their clients. Finally, there is the brute
fact that “commissions or corporations that are […] funded by central government are
liable to be closed down with changes of government,” 40 a reality which may encourage
clinics to adopt more neutral or non-partisan stances in order to ensure their longevity.
There are other potential dangers associated with salaried legal aid schemes that are
summarized by Goriely. First, there is a high susceptibility to becoming overloaded, “as
their staffing and resources fail to keep pace with increased demand.” 41 The result of
overload is typically a decline in the quality of services delivered. Second, there is a low
degree of choice in a community clinic model. 42 Although theoretically, there are many
clinics to choose from, there are often only one or two within the reach of a
disadvantaged person requiring legal assistance. Further, staff members are typically
assigned to cases, thereby leaving the client powerless to choose an attorney with which
he or she is comfortable. Third, staff models are likely to be bureaucratic. Aside from the