Indiana Law Review


Indiana Lai^ Revie^v
Volume 12 1979 Number 3

Eligibility for Legal Aid:

Whom to Help When Unable to Help All

James F. Smurl*

I. Introduction

In the face of needs and claims which far outstrip the funds and

personnel required to meet them, social agencies always have had to
decide how to distribute their inadequate resources in ways which
satisfy their sense, if not their criteria, of distributive justice.

Organized legal aid programs have not been spared these difficult
decisions and, as other agencies, have sought to devise more or less
formal methods for determining the eligibility of candidates for aid/
The least formal methods have been based upon unstated and highly
discretionary criteria — open to caprice, arbitrariness, and personal
as well as class bias. Even the more formal, stated, and sometimes
written criteria have achieved only modest clarity and fairness.

Irregularly, and while learning how difficult it is to be clear and
consistently fair in these matters, the providers of free or reduced-

cost legal aid have tried to disburse their resources effectively. In

doing so, however, they inevitably face some traditional and still
puzzling moral dilemmas which entail both loose-jointed but
prevalent cultural convictions and those more disciplined and reflec-
tive judgments concerning the standards of distributive fairness.
Not unlike other areas involving the disbursement of resources,
legal aid agencies have had to take stands, however formal, on the
comparative weight to be assigned to the needs, merits, and social
contributions of potential recipients. They have had to ask whether

*Associate Professor of Social and Comparative Ethics, Indiana University — Pur-
due University at Indianapolis.

The research for this Article was assisted by Sabbatical Support from Indiana
University — Purdue University at Indianapolis. The author wishes to express his ap-
preciation to the library staffs of the American Bar Center and the University of

Chicago and for the contributions of James F. Bresnahan.
This Article, it should be noted, is concerned with microallocation problems. It

does not consider the macroallocation problem of determining how much of society's
resources should be allocated to legal aid vis-a-vis, e.g., education, housing, or medical

care. Rather, the inquiry is about fairness in the allocation of those resources which

have been assigned to the area of legal aid.



520 INDIANA LAW REVIEW [Vol. 12:519

"first-come, first-served" is the fairest principle or whether certain
persons or cases are "more worthy" than others. In settling these
and related questions, they have also had to consider the amount of
attention that should be paid to the potential "social contribution"of

the petitioner, or, for that matter, to the convictions and interests of

the public and professional colleagues.

With a full measure of sympathy, born of analogous experiences
with household and university resources, and humbled by profes-
sional efforts to understand notions and principles of distributive

justice, I propose an exploration of these dilemmas from the view-

point of social ethics. Intending to contribute to the quest for clarity

and equity in the expression and application of eligibility criteria,

the following considerations are offered to stimulate public discus-

sion of which human values and principles of justice ought to be
overriding and normative in matters of this sort. Acknowledging in
advance that the pluralistic character of our society makes agree-
ment in these matters most difficult, and that decisions about
distributions tend to be made rather as compromises arising from
the clash of competing interests, this Article, nevertheless, hopes to

advance fairness in policy making which, while respecting plural
rights and freedoms, requires also that the decisions and actions

made in that setting become increasingly more principled and ra-
tionally justifiable. Regrettably, the question of how to distribute
fairly often is reduced to questions which ask who is to decide how
to distribute. Valid though they are, these questions lead inevitably

to debates about authority and power — all of which may produce
more heat than light and which cannot be fully resolved without
principles for guiding distribution, irrespective of who the
distributors are. Even the most vigilant efforts to keep principles
uppermost in one's considerations may, however, become derailed in

ways which attend to irrelevant or invidious differences in the people
to be served.

Wishing to keep considerable distance between the approach

proffered in this Article and those which seek to address these mat-

ters authoritatively with exact and absolute determinations of right

and wrong, the problems will be considered as follows. After recoun-

ting the kinds of eligibility criteria commonly employed in the

distribution of legal aid, an inquiry will be made about which
criteria best respect the most widely accepted requirements of

distributive fairness in the comparative treatment of individuals. In

order to answer this question, it will be necessary to test the

justifiability of the moral claims and warrants entailed in these

criteria, and, in particular, the stands they imply concerning the

priority of the conventional ways of comparing individuals — in terms
of need, desert (or worth), and social contribution. These inquiries



1979] LEGAL SERVICES 521

shall lead to still further, and perhaps more fundamental, judgments
which are involved less obviously, but nonetheless importantly, in

the articulation and japplication of eligibility criteria. Reference is

made here to judgments about the nature and goals of American
society and to other critical assumptions in eligibility standards as

well as to the legal, economic, and ethical theories mustered in their

support. Thus, some conclusions will be reached with respect to the

ways in which these standards can mirror and serve to advance
dominant cultural and professional convictions. Thus too, the man-

ner by which loyalities to and preferences for certain dominant

cultural and professional values impede progress toward more prin-
cipled and rationally justifiable decisions in the recurring dilemma

of whom to help when not all can be helped will be considered.

II. Discretion, Judge Bridlegoose, and Due Process

A. Private and Unorganized Legal Aid

It is not always easy to determine how the private and
unorganized bar decides either to take or to reject a case if a client

is in need of legal assistance, but unable to pay for the services

desired. The all too few studies of this matter testify to a lack of for-
mal and written criteria for the provision of personal and private

legal aid.^ They also demonstrate what seems inevitable — an ir-
regular and inconsistent use of ad hoc criteria, with a maximum of
discretionary power in the hands of the provider.^ Furthermore, as
one such study revealed, the actions and attitudes of the private bar

indicate that private attorneys often are simply unaware of the
eligibility criteria used in organized and publicly-funded efforts such

^See Carlin & Howard, Legal Representation and Class Justice, 12 U.C.L.A. L.
Rev. 381 (1965); Lochner, The No Fee and Low Fee Legal Practice of Private At-
torneys, 9 Law & Socy Rev. 431 (1975); Maddi & Merrill, The Private Practicing Bar
and Legal Services for Low-Income People (1971) (available from American Bar Foun-

dation, 1155 E. 60th Street, Chicago, 111. 60637).

^See Lochner, supra note 2, at 462-65. In analyzing the results of the study, the

author stated with respect to indigent or partially indigent clients who were referred
to the attorney by intermediaries:

Lawyers take NF/LF [no fee or low fee] clients in return, most typically, for
hoped-for future legal business. They also take such clients to please a friend

or crony or to satisfy feelings of obligation towards neighborhoods or ethnic

communities. Intermediaries perform their tasks in exchange for the political

or other support of NF/LF clients and expect to provide some rewards to the
lawyer if the client is unlikely to be able or willing to do so. And, finally,

though clients accept free legal services they pay for them in terms of the

business they may bring in, or the favors they may do, for both lawyers and
intermediaries. The rewards are not just economic, they are also social,
political, fraternal and psychological.

Id. at 463.



522 INDIANA LAW REVIEW [Vol. 12:519

as that of the Legal Services Organizations/ This study concluded

that the private bar is inclined to individualize rather than organize

solutions to the problem of inaccessible legal aid and that, while con-

tinuing to believe that everyone is entitled to equal protection and

its prerequisite in equal access, the private bar does little to

translate this belief systematically into any particular form of

organized aid.^

This phenomenon is partially explained by the fact that these
lawyers are not accountable either to public review or to boards of

directors as found in organized but private agencies. Should one

believe that lawyers are accountable, nonetheless, to some profes-
sional set of standards or held liable under the disciplinary rules of

bar associations, one only needs to examine briefly the ethical con-

siderations and disciplinary regulations of canon two of the Code of
Professional Responsibility.^ This canon promotes an ambiguous and

nonenforceable ideal of benevolence and leaves the nature and stan-

dards of the alleged obligation to make legal services fully available
so indeterminate and subject to individual interpretation as to be an

ineffectual guide.^ Furthermore, the content and style of the Code
on this matter is an outgrowth of the American tradition of volun-

tary benevolence, ie., almsgiving*—a tradition appealed to and led

about as far as it might be taken by Reginald Heber Smith, the
primogenitor of the legal aid movement in this century.^ Finally, as
Eric Schnapper noted:

One searches in vain for a lawyer disciplined for failing to
give free legal service to the indigent, for failing to disclose

legal precedent contrary to his clients' interests, for

misrepresenting facts to judges, juries or opposing counsel,

or for using political office or connections to attract clients,

although the frequency of these occurrences is common
knowledge.^10

Thus, unaccountable to any effective and determinate set of

standards and review, either from within or from without the pro-

fession, private lawyers are on their own in the determination of

^Maddi & Merrill, supra note 2, at 21.
'Id. at 20.

"ABA Code of Professional Responsibility, Canon 2, EC 2-16, EC 2-25 (1978
version) [hereinafter cited as ABA Code]. The Code has no disciplinary rule which cor-
responds to the obligation to make legal services fully available.

''See Smurl, In The Public Interest: The Precedents and Standards of a Lawyer's

Public Responsibility, 11 Ind. L. Rev. 797, 817-25 (1978).

'Id. at 801-11.

^See generally R. Smith. Justice and the Poor 145-49 (1924).
'''Time, Apr. 10, 1978, at 56, 59 (emphasis added).



1979] LEGAL SERVICES 523

moral puzzles for which conventional, familial, social, and religious

training normally will have rendered them as ill prepared as has
their professional preparation in law school. Since there are no

professional or organized forms of testing their judgments in this

matter, it seems inevitable that their standards will be prone to a

certain degree of arbitrariness as well as personal and class biases.

Even the most virtuous and benevolent of lawyers will experience
some difficulty in forging a consistently clear and equitable set of
standards by which he may help make legal services fully available.
At the end of the spectrum, however, stand others little in-
clined to virtue and animated by less than benevolent goals. These

lawyers may emulate the practice of Rabelais' Judge Bridlegoose
who awarded his sentences and judgments "by the lot, chance, and
throw of the dice."" Perhaps too, they disagree with what seems in-
controvertible—namely, that the decision to have no policy is itself

a policy decision, and, in this case, a policy of maximum discretion in
determining who among the indigent will be given access to the en-
franchising power of our legal system. Finally, whatever be the stand-
ards and supporting warrants of the private bar, it appears they

perforce will remain private and cannot, therefore, be included in

the kind of public moral discourse envisioned as a major goal in this

present study.

B. Private but Organized Legal Aid

Turning to private but organized forms of legal aid, one finds a

very different situation in which, for several different reasons, the

criteria of eligibility have had to be more explicit and more suscepti-
ble to scrutiny either by boards of directors or by national associa-

tions. In 1967, Lee Silverstein reported and analyzed the results of a
major study of legal aid organizations.^^ Although this study must be
somewhat outdated, it is the most recent major study of such
organizations and will provide at least a beginning for consideration

of patterns and dilemmas in the formulation of eligibility standards.

Silverstein surveyed 275 private but organized legal aid organiza-

tions and found that, contrary to the recommended standard of the
National Legal Aid and Defender Association (NLADA), agencies
should have explicit and published standards of eligibility,^^ fifteen

"E. Rabelais, Garantua and Pantagruel, reprinted in 24 Great Books of the
Western World 206 (1952).

^^See Silverstein, Eligibility for Free Legal Services in Civil Cases, 44 J. Urb. L.

549 (1967). The surveys, conducted in 1966 and 1967 and including virtually all active
legal aid offices, were financed by the Office of Economic Opportunity and conducted

by the American Bar Foundation in cooperation with the National Legal Aid and

Defender Association. Id. at 549.

'^Nat'l Legal Aid & Defender Ass'n, Standard 3 (adopted Nov. 19, 1965),
reprinted in 24 Legal Aid Brief Case 61, 62 (1965). The standard provides in relevant



524 INDIANA LAW REVIEW [Vol. 12:519

percent of the agencies questioned had no written rules on the mat-

ter.^* Among these latter agencies, some appeared to have well-
defined but unwritten policies. Others apparently had neither writ-

ten nor clearly articulated policies^^ and, one should think, were con-
sequently prey to pitfalls similar to those of the private bar — name-
ly, arbitrariness and bias. Furthermore, despite the liberalizing

tendencies attributed to the impact of the federal Legal Services

Program^® upon private agencies, Silverstein found that some of the
private agencies surveyed had unreasonably restrictive rules of

financial eligibility or unnecessarily narrow restrictions on the

subject-matter of cases to be accepted by those agencies. ^^

Eligibility criteria serve, of course, as screening devices. They
help agencies determine who will be helped when inevitably limited
resources make it difficult, if not impossible, to help all. They are
designed most commonly to "screen out" members of the military or
members of other special groups for whom services are available
elsewhere.^* In addition, at least in privately-funded agencies,

residency tests are employed to limit service primarily to those

residing within the area from which the funding has been

generated — such as United Fund campaign areas. ^^ The primary
focus of this discussion, however, will be on the financial and

subject-matter tests because they directly involve a host of puzzles

in comparative justice.

The test for financial eligibility is intended expressly to allocate

limited resources to the more indigent and to determine need on the

basis of ability to pay. Silverstein uncovered two types of eligibility

tests: a gross and largely subjective interpretation of whether a

client might be able to afford a private lawyer, and another more ob-

jective test employing quantifiable methods of determining one's

ability to pay, by comparing, for example, income and necessary ex-

part: "The agency should establish, publish, and follow standards and procedures for

determining the eligibility of applicants taking into consideration all relevant factors

such as income, assets, obligations, size and health of family, recent or imminent

unemployment, and the nature of the problem to be handled." Id. The NLADA is the
contemporary counterpart of the organization of legal aid societies begun and fostered

by Reginald Heber Smith.

'^Silverstein, supra note 12, at 549-50 n.3. Silverstein noted that the incidence of

agencies lacking explicit policies was especially high in agencies staffed by volunteers.

Id. at 549.

''Id. at 540-50 n.3.

'"The Legal Services Program is discussed at notes 26-40 infra and accompanying

text.

"Silverstein, supra note 12, at 549-50.

''Id. at 553.

''Id.



1979] LEGAL SERVICES 525

penditures.^° Judging the latter more satisfactory than the former,
Silverstein unearthed even in the more objective test dubious and
inconsistent standards — quantifiable, but potentially unfair
nonetheless. For example, nearly a third of the offices using the

more objective test employed indices of poverty below generally ac-
cepted standards such as those of the Bureau of Labor Statistics, or

they used formulae which had the effect of discriminating against

families by beginning calculations with the financial obligations of

one individual and then adding increments for one's spouse and

other dependents.^^

The subject-matter test entails potentially still more difficult
puzzles in so far as it seeks to minimize the impact which free ser-

vices might have upon the private bar and its economic market.^^ In

seeking to harmonize several potentially competitive interests,

subject-matter tests prohibit the agency from accepting certain

kinds of cases, such as the "hands-off" policy Silverstein uncovered

in some agencies' handling of divorce cases.^^ Subject-matter tests
are not concerned with the needs or financial capabilities of poten-

tial clients; rather, they are a pragmatic device — arising perhaps
from pragmatic perceptions of necessity — to limit services and
allocate resources more efficiently. Questions about their fairness,
however, inevitably must be raised, as must the questions which ask
whether these tests create possibilities either for discriminatory

judgments about certain classes of persons or for undue pressure
from political, social, and professional interest groups.

24
C. Organized and Public Legal Aid

Before considering more fully whether these criteria respect the
requirements of distributive justice, this account of the contem-

porary uses of eligibility criteria in legal aid shall be completed by

considering data drawn from the more public and more liberally con-
ceived criteria of Legal Services Organizations (LSO). The most up-

^°/d. at 552. See also Gardiner & Young, How Does Your Office Determine
Eligibility?, 17 Legal Aid Brief Case 72 (1958).

^'Silverstein, supra note 12, at 567-68. The author concluded: "For single persons,
nearly all the legal aid eligibility rules reported are at or above the poverty line ....

For a family of four, however, the eligibility rules of a high proportion of legal aid of-
fices are so stringent that they exclude many families who are considered poor . . . ."

Id. at 567.

''Id. at 551, 583.

''Id. at 572.

^""Organized and public" here is restricted to civil cases, although part of the

discussion applies as well to public defender and criminal systems of legal aid. One
should also note that Silverstein earlier had studied and reported on legal aid for

criminal cases. See L. Silverstein, Defense of the Poor (1965).



526 INDIANA LA W REVIEW [Vol. 12:519

to-date national picture of the criteria used by LSOs comes from
Earl Johnson, Jr., the former national director of the earlier

counterpart organization, the Legal Services Program (LSP) of the
Office of Economic Opportunity (OEO). In 1974, Johnson recounted
the formative years of the LSP and considered some of the dif-
ficulties encountered in elaborating and applying eligibility criteria.^^

Noting that the LSP, by statute and philosophy, was confined to the
lowest income strata, Johnson accounted not only for the prom-

inence of the financial test in OEO eligibility criteria, but also for
some of the special problems encountered in articulating and apply-
ing this test.^^ These difficulties included, at one end, a perception

by the private bar that the levels of eligibility were set too high and
were thus a threat to private practice in some places.^^ At the other
end — that of the client or consumer — Johnson recounted two
cognate and more aggravating problems OEO experienced with
eligibility tests. One was the discovery that 112 million people were
either "near-poor" or of moderate means but, in either case, were
unable to acquire needed legal services.^* Too rich to pass the OEO
financial test, they were also too poor to pass the "tests" of private
practitioners. Johnson and others uncovered the other problem in a

network of cognate social and economic disabilities afflicting the

poor. In brief, they discovered that the poor often pay more for
necessary goods and services, that a host of factors other than

salaries affect their income,^^ and that eligibility rules concerning

residency,^" as well as the notorious substitute-parent rules,^^ have

the effect of excluding the poor from a fair share of goods and serv-

ices specifically designed to help alleviate their plight.

These problems anticipate considerations to be discussed later.

They are noted here in support of the proposition made
earlier — that eligibility rules commonly employ residency and group-
membership tests and most commonly rely upon financial and

subject-matter tests in determining whom to help. Whereas
Johnson's comments of 1974 focused primarily on the financial test,

''^E. Johnson, Justice and Reform (1974).
''Id. at 100, 236.

'Ud. at 95-99.

''Id. at 236.

^See D. Caplovitz. The Poor Pay More (1963).
'"See E. Johnson, supra note 25, at 203, 346 n.98.

'Typically, substitute-parent rules denied welfare assistance to children if their

mother cohabited with a man even though he had no obligation under state law to pro-
vide support. The validity of such provisions has, however, been successfully chal-
lenged. See King v. Smith, 392 U.S. 309 (1967) (holding the Alabama substitute-parent rule
invalid under 42 U.S.C. §§ 601-609 (1976) (which deals with the Aid to Families with

Dependent Children Program). See also E. Johnson, supra note 25, at 203, 346 n.97.



1979] LEGAL SERVICES 527

a year later he concentrated upon the puzzles involved in subject-

matter tests, or better still, the implications of the fact that subject-

matter tests are not often expressed, but are invoked and applied

implicitly in the way caseloads are handled.^^ Consider first the most
obvious subject-matter test, embedded in the enabling legislation of
the 1974 Legal Services Corporation Act,^^ which not only reshaped

the administrative handling of LSPs, but also added some subject-
matter limitations by proscribing the acceptance of desegregation^^

and abortion cases.^^ Johnson found the constitutionality of these

limitations doubtful,^^ but one might also question, as will be done in

the next section of this Article, whether they sufficiently respect

the requirements of distributive justice.

In addition to these most obvious subject-matter tests, Johnson

pointed out subtle ways in which allocation decisions become, in ef-
fect, subject-matter tests and also tend to reflect the economic,

political, and professional pressures which can be brought to bear

upon the provision of free legal services. First, there are implica-

tions in the decision not to decide. In the absence of a policy, the

allocation of time and personnel to the scores of divorce cases re-

ferred from welfare departments had the effect of not permitting
lawyers to challenge statutes which made the filing of a divorce a
prerequisite to welfare.^^ Second, under the ABA Code of Profes-
sional Responsibility, lawyers are forbidden to accept employment
with legal aid offices which do anything more than set broad policies
and assure there will be no interference in the lawyer-client rela-

tionship.^* Thus, operating under "ethical" constraints and following

the principle of local decision-making and control implicit in the ad-

ministrative framework, LSO offices labor under an ambiguity in the
application of eligibility criteria.^^ Although the power to establish
and to supervise the application of these guidelines rests officially in

^^Johnson, Further Variations and the Prospect of Some Future Themes, in
Toward Equal Justice: A Comparative Study of Legal Aid in Modern Societies
133, 220-32 (1975).

''Legal Services Corporation Act of 1974, Pub. L. No. 93-355, 88 Stat. 378

(codified at 42 U.S.C. § 2996 (1976)).
'"42 U.S.C. § 2996f(b)(7) (1976).

''Id. § 2996f(b)(8).

'^Johnson, supra note 32, at 223 n.l74.

'^See Silver, Imminent Failure of Legal Services for the Poor: Why and How to
Limit Caseload, 46 J. Urb. L. 217, 225 (1968). .

'*ABA Code, EC 5-24 (1978 version) provides in pertinent part: "Various types of
legal aid offices are administered by boards . . . composed of lawyers and laymen. A
lawyer should not accept employment from such an organization unless the board sets

only broad policies and there is no interference in the relationship of the lawyer and

the individual client . . . ."

'^See E. Johnson, supra note 25, at 166-84.



528 INDIANA LAW REVIEW [Vol. 12:519

the board of directors, the force of the Code and the traditional
sense of a professional's autonomy to which it appeals have the ef-
fect of giving the staff director and attorneys considerable discre-

tionary power."" LSO criteria, consequently, are more explicit or
publicly accountable, but also continue to reflect dominant attitudes

of the private bar which favor individualized and discretionary ac-

tivity in the distribution of legal aid. One cannot avoid noticing the
irony in the fact that the attempts to organize legal aid along the

lines of due process continue to rely heavily upon individualized
discretion and the dubious example of Judge Bridlegoose.

III. Treating Individuals Singly and Comparatively

Several different and potentially conflicting values are evident

in the preceding account of the tests applied in the distribution of

free legal services in civil cases. These criteria promote more than
the moral values of equality. They also serve to uphold, in many
cases, nonmoral professional values as evidenced by the ample

discretionary power granted to the distributors of legal aid. Also,
they are often designed in ways which seek to safeguard either
economic and market values or prevalent social and political convic-

tions in the community. Finally, because they are devices for

distributing limited resources, eligibility criteria pay more than
average attention to the nonmoral ideal of efficiency.

In Equality and Efficiency: The Big Tradeoff,*^ Arthur Okun
drew attention to the ways in which moral and nonmoral values con-
flict in economic and policy decisions. Reviewing the effect this con-

flict has on similar procedures in the field of legal aid. Earl Johnson

noted that the policies of Legal Services Organizations include cer-

tain oddities, traceable to unsuccessful attempts to reconcile the

values of efficiency and equality — such as the odd consequence that
the most efficient distributions sometimes supply the least service

or at least entail undesirable restrictions in the range of services

offered and, thus, fail to meet needs equitably.*^ As in so many other
areas of public life, the pressing question in legal aid is which value

ought to have priority — efficiency or equality. This manner of phras-
ing the question does not mean to suggest that the decision about
priority is always a choice of "either-or"; rather, it appears to be

more in the category of "both-and." Nor does it intend to suggest
that once made, the priority decision and its formulation ought to

become absolute, inflexible, and unexceptionable. Nonetheless, from

"See Johnson, supra note 32, at 223-24.

*'A. Okun, Equality and Efficiency: The Big Tradeoff (1975).
*^See Cappelletti & Johnson, Toward Equal Justice Revisited: Two Responses to

a Review, 1977 Am. B. Foundation Research J. 943, 949-52.



1979] LEGAL SERVICES 529

a moral point of view, and assuming that a person has reasons for

and a commitment to being moral, moral values ought always to
override nonmoral values. Efficiency, as a nonmoral value, ought to

be overridden in almost every conflict by moral values, such as

fairness in the distribution of benefits and burdens. Since fairness is

not the only moral value, in some cases efficiency and other non-
moral values may override considerations of fairness — as when, and
for moral reasons or in pursuit of moral values other than justice,

such as honesty and integrity, nonmoral values may be given priori-
ty over fairness. Nonetheless, in both the rule and the possible ex-

ceptions to it, one ought to have some general criteria by which to
guide decision and action in these affairs. If considerations of

fairness and equality are ascendant to all other considerations, then

one must have some fairly explicit and soundly supported moral
criteria of the sort traditionally associated with distributive justice.

Commenting on analogous dilemmas faced in the distribution of
medical care, David Mechanic observed that the social effects of

maldistributed health care have always been monstrous, and that

the resources for these services always have been and likely

will remain limited and relatively inadequate."^ Faced with a seem-

ingly inevitable rationing of resources, the appropriate moral ques-

tions, according to Mechanic, are how to make the rationing process
more equitable, more explicit, and more decisively controlled by
general guidelines."*" Mechanic has suggested a procedure by which

public agencies, including many legal aid offices, might achieve more
morally justifiable criteria eligibility. Mechanic's requirement that

they be more explicit and public satisfies several important social
and ethical requirements. The more public eligibility criteria are,
the less likely they will remain highly discretionary. Public scrutiny,

by raising the questions "who is to decide" and "by what authority,"
will serve to make the criteria increasingly more explicit and also to
encourage the agencies to declare more openly whatever moral con-
victions may be guiding, however unconsciously, policies of distribu-
tion. As public and explicit, they not only would invite criticism and
reformulation; they would also promote the kind of open, free, and

public discussion of moral values necessary for the well-being of a

pluralistic society committed to uphold the most valued qualities of
human life.

No amount of publicity and explicitness will satisfy still another
requirement suggested by Mechanic, and one upon which the public
envisioned above inevitably will insist — that eligibility criteria be

"Mechanic, Rationing Health Care: Public Policy and the Medical Marketplace,
Hastings Center Rep., Feb. 1976, at 34-37.

"M at 36.



530 INDIANA LAW REVIEW [Vol. 12:519

guided decisively by more general guidelines. Whatever Mechanic
may have intended, I take this to include perforce some general and
universal propositions about what is normatively human— to wit,
moral criteria. Although they are not necessarily more general or
universal than many nonmoral criteria such as cost-benefit ratios
and other general canons of efficiency, moral criteria are general

judgments of moral obligation; characteristically they are principles

of beneficence and justice.''^ Moral criteria, therefore, not only meet
Mechanic's requirement of generality; they also, because of their

characteristic superiority over other comparably general criteria,

ought to override and to be more decisive than other general but
less normative human criteria.

We must now determine which moral criteria are most relevant
to the allocation dilemmas addressed by eligibility rules. Principles

of beneficence — as, for example, in the general principles requiring
that one help others and avoid harming them — are general and per-
tinent enough, but insufficiently decisive in matters of allocation.

Although the principles of beneficence guide actions which promote

the good and avoid harm and give rise to other more specific and
prima facie rules concerned typically with honesty, keeping prom-

ises, and respecting rights, they do not explain "how one is to

distribute goods and evils;" they only advise one "to produce the

one and prevent the other.""^ Athough the prima facie rules of
beneficence are relevant to many of the person-to-person encounters
entailed in the distribution of legal aid, they are insufficient for

guiding the policy which precedes and structures those encounters.

Although well-suited to guide decision, action, and policy in the

treatment of individuals, these rules are especially ill-suited to guide

these same matters when the issue is the comparative treatment of
individuals. The difference between treating individuals fairly but
singly and treating them fairly and comparatively is critical, since

allocation problems involve much more than conventionally perceived
one-to-one relationships between the lawyer and the client. For in-

terpersonal exchanges and interactions, the principles of beneficence

are eminently relevant and effective guides."*^ Nonetheless, when oc-
curring in the context of agencies distributing limited resources,

these professional interactions are shaped in advance by the deci-

sions made by other persons and by the policies which embody the
judgments of those other persons. These judgments, because they

''See W. Frankena, Ethics 43-52 {2d ed. 1973).
''Id. at 48.

'''See, e.g., ABA Code, supra note 6, EC 5-24. See also. Fried, The Lawyer as
Friend: The Moral Foundations of the Lawyer- Client Relationship, 85 Yale L.J. 1060
(1976).



1979] LEGAL SERVICES 531

concern allocations and determinations of how to distribute among
many what is sufficient only for a few, must inevitably entail con-
siderations of the comparative treatment of individuals and, unless

they are to be completely arbitrary, an equally inevitable appeal to

some standard of comparative or distributive justice.

Eligibility rules settle certain matters in advance of the in-

dividual practitioner's dealings with a client. They provide the agen-

cy's answers to questions of which clients and what kinds of cases

are to be taken by the agency. In short, eligibility criteria entail

comparative judgments and appeals to those principles of justice

which are called distributive. They cannot, therefore, be evaluated

adequately by testing their conformity to principles of justice

designed to guide exchanges between persons (commutative

justice),''* much less by testing how well they respect the principles
of beneficence. Despite the proclivity of some prevalent American
moral intuitions to convert eligibility discussions to considerations

of only one-to-one relations of contractual fidelity or personal and

professional integrity,''^ one must insist resolutely that eligibility

criteria be addressed first, foremost, and recurrently by considera-

tions of comparative or distributive justice.

Having resolved that comparative justice is the appropriate
arena for the consideration of eligibility criteria, further determina-

tions must be made with respect to the selection of appropriate and
relevant rules of comparative justice. Some may argue for rules of
randomness — lottery or "first-come, first-served" types of rules.
Others may suggest that the only formal and most truly justifiable
rule is a general one stating the kind of impartiality which equality

requires — namely, that "similars be treated similarly." Both of these
suggestions offer little more than procedures and set forth rules
which require only fair play. If treating individuals comparatively

and fairly requires only that one play fair procedurally, either of

these two proposals would suffice, but would serve also to justify
almost any duly established or legitimate rule of eligibility — ir-
respective of its moral justifiability. Comparative justice, however,

requires that fairness in the comparative treatment of individuals

depends critically and finally upon the material content assigned to
the terms "similar" and "dissimilar." Purely formal rules of ran-

domness and impartiality are insufficiently concrete and leave too
much still to be determined. Granting that they may be rules of
fairness, it is not entirely clear that they are fair rules — a matter
which can be settled only if one declares which particular

^^Commutative or exchange type justice is sometimes called either contractual or

compensatory.

"See Fried, supra note 47. See generally Smurl, supra note 7, at 811-17.



532 INDIANA LAW REVIEW [Vol. 12:519

similarities or dissimilarities are relevant and determinative. There

are, after all, ways of assuring that one's friends, relatives, and col-
leagues come first in line or are more similar to what one has in
mind but leaves unstated. Just as the purely discretionary systems
of distributing legal aid, without the benefit of explicit criteria, open

wide the door to perhaps unwelcome but nonetheless unavoidable
arbitrariness and bias, the purely procedural and merely formal

rules of randomness and impartiality leave more than ample room
for the exercise of favoritism and other forms of bias. Furthermore,

and as Judge Bridlegoose observed: "[0]ftentimes, in judicial pro-
ceedings, the formalities utterly destroy the materialities and

substances of the causes and matters agitated . . . ."^^

If comparative justice and its standards are to be more than a
chimera and are to do more than disguise injustice, its principles
must be more substantive, concrete, and material. They must
declare specifically the ways in which the individuals to be served
are, comparatively speaking, either similar or dissimilar. Further-

more, and as will be seen presently, the more material and substan-
tive the principles of comparative justice, the more they require
that relevant, operative, but sometimes unstated and unjustifiable

comparisons of people be made explicit. For instance, if those seek-
ing free legal aid are to be treated similarly, then one must deter-
mine in which ways these people or their cases are either alike or
different. In making these determinations, it is not enough simply to
declare that people are either most alike or most different in finan-

cial, social, or other terms. These declarations must themselves be
justified by appeal to some more general standard such as one of
the traditional norms which declare that people ought to be com-
pared and treated comparatively on one of the following bases:

needs, deserts, or social contributions.

Against this background, one might inquire which of these more
general standards are employed in conventional eligibility tests, and

additionally which are the fairest for this particular endeavor. As
noted earlier, beyond initial screenings for residency and possible

coverage by other group services, the most prevalent eligibility

tests are those which consider financial and subject-matter ques-

tions.^^ Financial tests make needs a central and guiding standard
and can be said to respect, therefore, one conventional and material-

ly concrete criterion of comparative justice, stated axiomatically in

the formula "to each according to his need" or in the counterpart

maxim "from each according to his ability." While financial tests
must be constantly scrutinzed to insure the accuracy and currency

^"F. Rabelais supra note 11, at 206.

^^See notes 20-23, 26, 33-35 supra and accompanying text.



1979] LEGAL SERVICES 533

of the empirical data used to estimate degrees of financial ability to

pay, they are readily justifiable from a moral point of view. Assum-
ing empirical validity, financial criteria respect the formal principle

of impartiality and, in addition, do so by embodying this principle in
a materially substantive criterion. Financial eligibility tests are

ways of determining need and assuring that people of similar need
will be treated similarly. Furthermore, they imply respect for the

moral belief that people are equal in worth and dignity.

Financial tests are not, however, without problems. As Lee
Silverstein noted, if they employ formulae which discriminate

against those who are similar in need but who are married with
dependents, they may not sufficiently respect the principle of impar-
tiality.^^ This problem arises if spouses and dependents are

calculated only incrementally; ie., as mere increments of financial
responsibility beyond those of the wage earner whose financial
obligations are the only ones to be taken with full seriousness and

weighted properly .^^ Such criteria provide, in effect, that the finan-

cial capacity of the married person is most similar to that of the

single person, and that spouses and dependents diminish that capacity

only incrementally. This approach has the effect of declaring a parity

where there is none, or making the truly dissimilar appear to be
alike. In this, as in other subtle ways, irrelevant differences be-

tween people can be introduced in financial tests and their seemingly

innocuous income tables. If this occurs, these tests must be judged
to be less than fully respectful of the requirements of comparative

or distributive justice.

Subject-matter tests are even more problematic and are much
more likely places in which to find irrelevant and sometimes in-
vidious comparisons of candidates for legal aid. In fact, unlike finan-

cial tests, they are more likely to default in the fairness comparative
justice requires and to do so in their initial and overt purposes, as

opposed to the seemingly unintended but unfair consequences of

overtly fair financial tests. The subject-matter tests which
discriminate between civil and criminal cases cannot be criticized,
since free assistance is available for both, albeit from different agen-

cies. These tests seem to represent a morally justifiable effort to

^^See Silverstein, supra note 12, at 567-86. The author stated with respect to this
method of determining eligibility:

[M]any eligibility rules, although not intended to do so, discriminate against

potential legal aid clients who are members of families as against single,
unrelated individuals .... It is surely odd that family units should be
disfavored vis-a-vis unattached individuals whose legal difficulties, whatever
they may be, do not also affect spouses and children.

Id. at 568.

''See id. at 555-68.



534 INDIANA LAW REVIEW [Vol. 12:519

divide efficiently what are fundamentally fair but necessarily
distinct kinds of assistance. One should, however, take issue with
tests which exclude certain socially controversial issues on the one

hand, or, on the other hand, cases for which the private bar has

staked proprietary claims in order to safeguard its economic

markets. The latter measures would be highly questionable if
designed only to preserve the private sector's monopoly on highly
lucrative legal practice. Barring such aggrandizement, economic pro-

tectionism can sometimes be a morally justifiable way of assuring
the maintenance of the economic base of the profession and in such

a way that it motivates the existing bar or attracts new members.
Both of these latter functions assure a stable foundation from which

professionals may advance more securely toward the goal of making
legal services fully available.

By way of contrast with these potentially justifiable forms of
economic protectionism, the former subject-matter tests, which ex-

clude controversial cases, are not so easily justified on moral

grounds. These tests are based upon blatantly unfair and

discriminatory judgments about people or are tantamount to using

morally unjustifiable forms of coercion in order to achieve the social

goals of the majority. Consider initially some more readily obvious
examples of discriminatory bias — those which differentiate treat-
ment on racial, ethnic, sexual, and religious grounds. One might
agree readily that these factors ought to be irrelevant in determin-

ing a person's eligibility for legal aid and that, if an agency excluded

cases dealing with violations of civil rights for racial or religious

reasons, the agency's eligibility rules would be unfair and would fail

to respect the rule of impartiality.

Consider further, however, some subject-matter tests, the moral
justifiability of which one is less likely to demonstrate readily. The
two most common tests in this category, which have been used
rather widely, excluded or severely limited divorce and bankruptcy

cases. Although Brownell in his 1951 study had identified a most

restrictive policy with respect to the acceptance of divorce cases,^''

Silverstein found a more relaxed but still partially restrictive policy
on divorce cases as late as 1966.^^ Of the 159 NLADA offices
surveyed, 21 simply would not handle divorce cases.^^ Eighty offices

had restrictive policies, such as: (1) Accepting only a limited number
of cases, (2) accepting only cases recommended by social agencies,
courts, and attorneys, (3) imposing a "social test" which sought to

calculate anticipated benefits or harms to the family or the com-

^"E. Brownell, Legal Aid in the United States 72-74 (1951).
^^Silverstein, supra note 12, at 572-81.

''Id. at 574. 580-81.



1979] LEGAL SERVICES 535

munity, (4) restricting cases to defendants and excluding plaintiffs,
and (5) accepting both while maintaining different eligibility rules
for each." Only 58 offices had minimal or no restrictions.^®

Silverstein's analysis of the findings in this study suggests that

these restrictions stemmed from several causes including budget in-
adequacies and were more likely to be found in offices relying upon
volunteer as opposed to salaried attorneys.^^ He also found, however,
that eligibility rules reflected community attitudes toward certain

people and thus toward the role legal aid might play in helping

those people: "Some attorneys candidly assert that a divorce is a
luxury, thereby implying that none of the poor, or only the most

'deserving' ones, should be entitled to get a divorce through legal

aid."^" Such an attitude, and the eligibility rules which reflect and

honor it, is aristocratic from at least one point of view. From
another point of view, it smacks of patronizing welfare paternalism.

From still another point of view — that of social ethics — it entails an
appeal to one particular and dubiously relevant embodiment of the
rule of impartiality; namely, the one expressed in the axiom "to each

according to his merits or deserts." Called the meritarian standard

of distributive justice and resting upon a judgment that people are

to be likened in terms of what they merit or deserve,^^ it is a helpful
and relevant criterion for determining prizes, some aspects of
wages, and other matters where merit is an unquestionably fair con-
sideration. It is not entirely clear, however, that such considerations

are fair without question or altogether appropriate in the determina-

tion of eligibility for free legal services.

In fact, a most persuasive argument can be presented that
meritarian tests are not normally applicable in the distribution of

these services. As in the above assertions of some lawyers, they fre-
quently entail aristocratic attitudes and patterns of patronizing

welfare paternalism. More importantly, however, they fail to respect
sufficiently the requirements of the moral belief at the root of the

rule of impartiality — that equal regard is owed to every human
precisely because he is human. Furthermore, and since they perhaps

imply judgments that the indigent are needy because they are insuf-

ficiently industrious or that they do not need the "luxuries"^^ other

"M at 574-79, 581.
''Id. at 579-81.

'Ud. at 581.

">Id. at 574.

^^See W. Frankena, supra note 45, at 49.
*^In addition to its "no divorce" policy, the St. Louis office in the Silverstein

study expressly categorized television sets and automobiles as being "luxury" items
and, consequently, placed certain restrictions on accepting cases involving these items.

Silverstein, supra note 12, at 583.



536 INDIANA LAW REVIEW [Vol. 12:519

people find necessary, eligibility rules which exclude or restrict the

acceptance of divorce cases tend to err in several other respects.

From a moral point of view, they err by trying to fashion a criterion
of distributive justice from what many believe to be the virtues of
married life; namely, fidelity and permanency. Assuming that these
virtues are relevant considerations in criteria of distributive justice,

they could be justified only if there were a prior and equal distribu-
tion of the conditions for achieving these virtues.^^ There is,

however, little reason to believe that such equality of opportunity

has existed for the indigent who, by definition, are disadvantaged.

Thus, an aristocratic appeal to a meritarian standard of comparative

justice in these cases violates the moral requirements of equal

regard and comparatively fair treatment and is tantamount to socially

compulsive patterns called "coercion to virtue" which will be con-

sidered in the next section.

Another subject-matter test with similarily important moral im-

plications is one which restricts agencies' acceptance of cases involv-

ing bankruptcy. These tests respond in part to pressures from the

interests of local business and commerce — those with a stake in get-
ting as much as possible from debtors and with more than average
power to affect the funding sources of organized legal aid which
often depends upon the collections made through United Funds.^^
Through these and other effective measures, social pressure and

community norms can exert considerable influence on legal
services.^^ These are not only questionable social and political tac-

tics; they also imply some morally unjustifiable allocation policies.
Policies which exclude or restrict bankruptcy cases entail a

judgment that people are to be compared and treated in terms of

their social contributions — here interpreted as economic accoun-
tability. While such a criterion makes sense in the distribution of
some goods and services and has been employed, though ques-
tionably, in the allocation of other scarce resources,®^ it does not

make sense in every context and can entail, in some settings at
least, quite irrelevant and very unfair comparisons.

The indigent may not have had an equal opportunity to make
the necessary social contribution. They are "coerced" to pay by
restrictions on their access to bankruptcy proceedings. By implica-

*^5ce W. Frankena, supra note 45, at 50.
"H. Stumpf. Community Politics and Legal Services 130, 149 n.45 (1975) (citing

Carlin & Howard, Legal Representation and Class Justice, 12 U.C.L.A. L. Rev. 381,
415 (1965)).

^^See generally H. Stumpf, supra note 64.

'"See, e.g., Note, Scarce Medical Resources, 69 COLUM. L. Rev. 620, 658 (1969)

(discussing the methods of the selection committee of the Seattle Artifical Kidney

Center).



1979] LEGAL SERVICES 537

tion, they are being compared not to those who, having sufficient

funds to pay for the proceedings, declare bankruptcy and from

whom creditors are not likely to receive any more of the anticipated
"social contribution" than they would from the indigent. Rather,

they are being compared to those who are unable to pay for and
thus to claim bankruptcy; those who must struggle to contribute
whatever they can and from whom creditors may seek to squeeze at
least some social contribution. In other words, the poor can be co-
erced into being fiscally accountable, and thus will be constrained to

become poorer still, while those more financially able can have prior
debts canceled and will be given an opportunity to begin again with

a clean slate. The indigent are not less needy; they are simply more
vulnerable to coercion. The wealthier do not necessarily make a
greater social contribution; they are simply more able to escape be-
ing constrained to do so. When seen in this light, the comparison
between these two groups of people — a comparison entailed or at
least possible in bankruptcy restrictions — is more than irrelevant. It
also entails an unfair and unwarranted suggestion that the indigent,

who are less able to make the contribution expected but can be
pressured into doing so, are truly comparable to their opposites.

Thus, eligibility rules which honor and perpetuate this social ruse

fail to respect sufficiently the requirements of equal regard and

equality of treatment which form the substantive basis of the formal

principle of impartiality — the requirement that "similars be treated
similarly."

People needing free legal assistance are most similar in that
they are indigent, not in their deserts (as implied in the divorce

rules), and not in their social contributions (as implied in the

bankruptcy rules). If comparative treatment be based upon need,

then the financial test respects best the requirements of distributive

or comparative justice. Limitations in the resources available to

meet those needs require on occasion, however, that additional
screening devices be adopted. These tests should conform as well as

possible to the general moral criteria for fairness in distributions,

but divorce and bankruptcy restrictions fall short of the conformity

required. Furthermore, all subject-matter tests risk giving priority

to nonmoral considerations — such as social, political, economic, and
professional concerns. In this regard, they overturn the rule that

moral considerations are overriding and ought to have priority in

such conficts. Despite this reversal of the proper ordering of values,

subject-matter tests are procedurally fair and appear to be morally

plausible. Hence, in the following and concluding section of this Arti-
cle, we shall consider some reasons why so few Americans become
morally outraged about distributions which, while playing according

to the rules, are nonetheless substantially unfair.



538 INDIANA LAW REVIEW [Vol. 12:519

IV. Assessing the Nature and Power of Prevalent
Cultural Convictions and Social Institutions

A. Introduction

The preceding sections have sought to demonstrate that, if
eligibility decisions are to be more than merely arbitrary or discre-
tionary and are to be relatively fair, they ought to be measured
against and guided by the criteria of comparative or distributive

justice. They also have sought to suggest that, of the several alter-
native standards, those which are equalitarian are more relevant
and morally justifiable in the determination of eligibility for free

legal service — than, standards of merit or desert and of social con-
tribution. Also, this Article has noted that these eligibility decisions

and the judgments about which criteria should guide them depend
upon assumptions about the nature and value of people and the in-

stitutional arrangements of interpersonal social life.

Throughout, I have tried to scrutinize in the light of moral con-

siderations matters which, because of the force of prevalent convic-

tions and social institutions, are not often examined in this fashion.

Reference is made here to the credibility some mistaken or at least
morally questionable judgments acquire because they mirror or pro-

mote prevalent cultural convictions and existing institutional ar-
rangements. Enjoying a presumption of validity which owes more to
their prevalence than to their demonstrability, these judgments

often override the more general considerations which moral ques-
tions try to raise. Although we can assume that lawyers generally
have reasons for being moral, we must acknowledge that they also
have professional commitments and practiced ways of plying their
trade which can serve to override considerations of whether a par-

ticular policy, practice, or allied conviction is morally justifiable.

Furthermore, for some attorneys at least, lawyers' ethics or ethics
in the practice of law is a matter to be worked out rather exclusive-
ly in the terms and under the conditions of the prevalent convictions

and procedures of the profession; in other words, without attending

sufficiently to the more general obligations they may have as
humans or individuals apart from their profession. Finally, because
of the myriad ways in which law penetrates many other aspects of
life, the social, political, and economic convictions of American
culture and its dominant institutions provide sets of allied and equally

forceful beliefs which also can override moral reasons.

Thus, what has been considered up to this point in terms of
moral justifiability, must now be considered from the vantage point
of professional, cultural, and theoretical convictions which either

obscure moral questions or give moral force and prima facie

plausibility to eligibility policies and decisions which are morally



1979] LEGAL SERVICES 539

dubious. While not intending to invest some dubious judgments with

still further plausibility by attending to them too seriously, I hasten

to note that the purpose here is to map out sets of convictions which
stand in need of further critical testing before they can be used to

argue for a particular position or policy.

Preferring to attribute these mistaken judgments to inattention

or insufficient reflection rather than to malice or mischief, I shall

propose some ways in which they may be reconsidered. In this ef-
fort, I join others who call for more extensive and more critical con-
siderations of the same judgments,^^ but in such a way that atten-
tion is focused on the ways in which they foster a public and profes-
sional sense of justice which is only ostensibly, but not always

demonstrably, fair. Furthermore, because of their prevalence and

the persuasive power they have accumulated, one cannot be overly
optimistic about our capacities for making consistently fair
judgments or policies in the matter of eligibility for free legal ser-

vices. While acknowledging that questionable senses and criteria of

justice are not easily revised, much less readily eradicable, truer
and fairer judgments may be gained if mistakes are detected and
not repeated. Mistakes are one thing. Their replication and institu-

tionalization are quite another. They are a particularly powerful
social force for aggravating harms and unfair treatments if they
derive their plausibility from uncritically or insufficiently examined
moral beliefs, some of which are more prejudicial than reasonable.

Some of the more questionable judgments highlighted previously
were those which attributed greater value to autonomy and discre-
tion than to public accountability, those which ranked efficiency and

procedural fairness higher than equality and substantive justice,

others which erred by requiring virtue as a prerequisite for access

to the administrative processes of legal justice, and those finally

which failed to acknowlege the different requirements in treating in-

dividuals singly and in treating them comparatively. The following
discussion will attend to three distinct but interrelated sets of con-

siderations which give credibility and moral force to judgments
which, while hardly justifiable in general moral terms, enjoy,

nonetheless, the force of morality. These judgments and their cor-
responding credibility are properly termed de facto convictions. This
terminology does not, however, suggest that all de facto convictions

are by that very fact wrong. Rather, the purpose is to emphasize
that they are just de facto and to challenge the assumption that
they can be treated as if they were de jure simply because they are

®^See, e.g., Gorovitz & Miller, Professional Responsibility in the Law (1977)
(reporting the recommendations of the summer 1977 Institute on Law and Ethics held
by the Council for Philosophical Studies).



540 INDIANA LAW REVIEW [Vol. 12:519

prevalent. Common sense can be erroneous as well as correct, and
because the institutionalization of its errors can make for powerful
social blind spots,** the license authorizing these convictions will be

temporarily revoked, thereby permitting inquiry about whether
they are indeed as demonstrable as they are made to appear.

B. Considerations Which Tend to Support and Sustain Seemingly
Arbitrary and Purely Discretionary Procedures in Matters

of Elibigility

Behavior which at first glance appears to be merely arbitrary or

purely and self-interestedly discretionary may, in fact, be a result of
lawyers' observance of professional standards. Codes of professional

responsibility, sometimes called "codes of ethics," are in fact and

viewed by some as necessarily at odds with more general and com-
monly shared judgments of morality. Thus, when challenged with
charges of what, from a general and public view of things, seems to

be immoral, professionals may be inclined to respond that it may be
necessary to be immoral in order to perform effectively the tasks

for which lawyers' services are engaged. We must inquire more fully
and ask whether lawyers and other professionals can and must be
allowed actions which otherwise are considered morally impermissi-

ble. In pursuing this inquiry, we might ask further whether the
practice of law contains elements which might evoke and sustain a

judgment that lawyers can, indeed must, diverge from common
moral standards.

One potential source of convictions which might serve to exempt
the lawyer from otherwise universal moral standards stems from an

inevitable but sometimes overweening concern with the values

peculiar to and characteristic of the profession, especially with

values associated with social roles and the actions deemed necessary
in the fulfillment of those functions.®^ Thus preoccupied with the
needs of the profession, the standards and codes of the professional

may mirror only imperfectly more general and public values and

*®The power of these blind spots is evidenced in the tendency to commit the infor-

mal logical fallacy of argumentum ad populum, missing the point to be proved and ap-

pealing to the beliefs of the community as evidence. Logicians traditionally account for

this penchant in discourse in terms of loyalties, passions, and prejudices. See 3 The

Encyclopedia of Philosophy 176-78 (P. Edwards ed. 1967). It is also evidenced in

moral theories accounting for the relationship between prevalent cultural beliefs and

formal moral principles. See J. Rawls, A Theory of Justice 20-22, 48-51 (1971). See
also R. DwoRKiN, Taking Rights Seriously 155, 164 (1977); Smurl, supra note 7, at

825-28.

^^See MacRae, Professions and Social Sciences as Sources of Public Values, 58

Soundings 3, 13-14 (1977).



1979] LEGAL SERVICES 541

may tend to insulate the profession from criticism based on these
latter values.

As noted earlier, this situation owes less to mischief or malice
than to inattention to the implications of preoccupation with

characteristic professional values. Hence, in order to account for the

sources of morally dubious judgments as well as to draw greater at-
tention to the repercussions of certain professional convictions, cer-

tain problematic judgments, which stem from training in and the

skillful practice of conflictual and competitive advocacy in an adver-

sarial system, should be considered. Principal among the premises of
such a system are convictions which provide the possibility of ar-

bitrary, prejudicial, and self-interested eligibility decisions.

Reference is made in particular to the important premise which
evokes and sustains a commitment to represent zealously the in-
terests of a client over against those of the opposing side, and which

requires as well the keeping of a client's confidences and is sustained

by immunity from revealing "privileged communications" — all in the
interest of enhancing a client's competitive advantage in litigation.

These commitments inevitably come into conflict with other pro-
fessional, not to mention other human, commitments. Even within
the terms of the Code of Professional Responsibility, there are con-
flicting obligations such as those which require an attorney to act as

an officer of the court and, thus, to aid in the search for the truth

while simultaneously guarding the interests of but one party in the

dispute.^" As an officer of the court, the attorney may be required to
perform in ways inimical to the client's interest and, as one
disciplinary rule dictates, the lawyer might be required to disclose,

in the course of a trial, "[l]egal authority in the controlling jurisdic-

tion known to him to be directly adverse to the position of his client
and which is not disclosed by opposing counsel."^^ Practically speak-

ing, however, and as every lawyer knows — and this is the point
about preoccupation with adversarial techniques and its
values — there are ways to circumvent such requirements. In fact,
there are opportunities for finding these ways within the Code
itself, and for justifying the overweening importance of zealous ad-

vocacy even if it is in conflict with more common and public values
such as the truth sought in judicial proceedings. Finally, because of

the force of the professional ethos created by the adversary system,

a means to avoid the requirements meant to preserve the common
good more than likely will be sought and found — largely because*
these requirements are hard for professionals to accept because of

instincts or intuitions generated by and necessary for success in

adversarial conflict.

'"Compare, e.g., ABA Code, supra note 6, DR 7-102, 7-106(B) with id., DR 7-101.
''Id., DR 7-106(B)(l) (emphasis added).



542 INDIANA LAW REVIEW [Vol. 12:519

Central to the conflict of obligations just cited is the overriding

importance attached to participant control of the adversarial pro-

cess. Allied significantly to and sustained by a common law tradition
of protecting individual rights over interference from or control by
governments and social systems, this value finds itself allied as well
to cognate, fortifying, and widely prevalent social, political, and

economic values. It is linked not only to values inherent in the Con-

stitution and the tenets of liberalism, but also with freedom of

speech in the market place of ideas which Justice Holmes extolled
as the competitive and, therefore, the best test of truth.^^ In the

very metaphor invoked by Holmes, one can observe another source
of cognate and justifying convictions to support participant control

over the process — namely, in the analogies implicitly drawn between
the competitive relationship of litigants and the relationships be-

tween parties in free and competitive economic enterprises.^^

It is relatively easy to see how the withholding of information
and perhaps even the distortion of truth in an effort to enhance the

competitive advantage of a client can be found intelligible, indeed

compatible with other, more general, societal values. While no more
morally justifiable than the values from which it draws its specious
warrants, this professional policy and its allied practices appear to

be necessary contraventions of that which is otherwise deemed
morally impermissible. Thus, the legal professional can become
allied implicitly with the theory that the general good is promoted

best through the free pursuit of competing individual or group in-

terests and by whatever means are available to enhance one's com-
petitive advantage.^^ Relying on these sorts of considerations, and

upon the presumptions created by their widespread and institu-

tionalized character, it would not be difficult to find reasons to

justify high levels of discretionary and seemingly arbitrary control

by the professional participant in the process of determining whom
to help when not all can be helped in the giving of legal aid. In this
fashion, considerations arise which conspire to transform the ques-

tion of what would constitute a fair distribution of free legal ser-
vices into questions about what will assure the advantage of the pro-

fessional, or what will exempt professionals from the reasonable re-
quirement that the criteria of distribution be made explicit, general,
and public.

Other potential candidates in this "conspiracy" of considerations

also tend to override the requirements of distributive justice and

tend to count as more important than reasons of fairness. While a

''Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).

"See MacRae, supra note 70, at 11.

'*See id. at 3.



1979] LEGAL SERVICES 543

careful consideration of these "candidates" is beyond the scope of

this Article, they can at least be noted, thereby pointing to the need

for future analysis. Principally, these "candidates" are the more for-
mal theories of legaK justice which may serve to justify discretion
and arbitrariness in allocation policies — the positivist and realist
theories of justice/^ From a positivist view of justice, allocation
policies would be "fair" or "just" simply because they assign pro-

cedures for allocating legal aid. Just as what is merely statutory
might be considered just, that which is merely procedural may also
be considered fair. It is the policy and, from a positivist view of

things, is therefore fair.^^ Similarly, a theory of legal realism, if con-

sistent with its traditional interpretations of precedent and the

social bases of "judge-made law," gives greater discretionary power

to judges" and, by extension of the theory, to all who subscribe to
such logic in the administration of legal aid.

In sum, theoretical as well as practical reasons, some profes-
sional, some cultural, incline attorneys to become discretionary in
legal aid procedures. The following statement by J.H. Skolnick,
although directed to the system of law enforcement, may also be ap-
plicable to allocation and access policies in the administration of

justice:

The legal order is popularly envisioned as the most formally
normative of all social organizations because it contains a

codified and carefully interpreted body of rules. But, in prac-

tice, it continues to be a highly discretionary order at every

level, mediated by subtle, sometimes unarticulated, yet

discernible norms held by actors in the system.^78

C. Considerations Which Favor Procedural Over Substantive
Fairness and Efficiency Over Equality in Screening Candidates

The legal aid movement, in both its private and in its publicly
organized forms, bears witness to the conviction that every citizen

is entitled to a day in court, irrespective of his ability to pay. Unfor-

tunately, however, the resources necessary to assure either that the

indigent will be represented or that the quality of the representa-

tion will be on a par with that of the opposing party are not always

available. Thus, the fundamental and recurring scarcity of resources

creates serious dilemmas, necessitates a strategy for screening can-

didates, and brings to the fore considerations which, because of

^^See 4 The Encyclopedia of Philosophy, supra note 68, at 418-21.
'"Id. at 419.

"M at 420-21.
'*J. Skolnick. Justice Without Trial, at iii (2d ed. 1975) (emphasis added).



544 INDIANA LAW REVIEW [Vol. 12:519

their hold on the profession and our culture, may override substan-
tive fairness and equality, or at least may set presumptions which
serve to do the same.

The most commonly used eligibility rules demonstrate that
lawyers, as most Americans, are commited heavily to the nonmoral
value of efficiency in the use of resources.^^ Even the subject-matter
tests discussed earlier, which serve several kinds of community
goals, have as one of their principal purposes the efficient distribu-

tion of limited legal aid resources. Nonetheless, since there are dif-

ferent economic models of efficiency, the effort to achieve efficient

results may also entail efforts to disown some of the results
achieved.

Cost-benefit ratios and cost effectiveness measures are two of
the most common instruments for calculating efficiency in the
distributions of economic resources. Cost-benefit ratios typically

measure quantifiable outcomes; for example, the numbers of clients
served, as compared with the inputs or the quantities of resources
expended in the process. Thus, they entail a commitment to the
theory that the more served for the least amount is the most effi-
cient, best system, and overlook considerations of which kinds of

cases are either included or excluded. Cost effectiveness measures

are concerned with how best to apply inevitably limited resources
effectively in an effort to eradicate the causes of social injustice,

rather than simply palliating their symptoms. Cost effectiveness

considerations might prompt efforts for legislative reform and
preference for precedent-setting cases rather than favoring head-

counts of the numbers of clients served. An attachment to head-
count efficiency may provide, therefore, a way of paradoxically
disowning the results achieved — that is, to the extent the clients are
represented in a system which is substantively unfair.

That a commitment to efficiency may lead to such odd conse-
quences is partially due to its linkage with presumptions favoring

procedural forms of seeking justice in American civilization and its

legal profession. Ordinary people know full well the differences be-
tween form and substance, procedures and results. Yet, because of

the nature of our legal system and the ways in which its licensed
practitioners are introduced to and skilled in its techniques, lawyers

are apt not only to confuse what the layman so readily observes, but
are also accustomed to attempting to persuade laymen that fair play

is all the system can assure, thereby blurring the fact that the ad-

vantages of the players are not always equal.

''See, e.g., Johnson, supra note 32, at 224 n.l79. See also Time, Sept. 25, 1978, at

59 (reporting the Yankelovich survey on California's Proposition 13).



1979] LEGAL SERVICES 545

One's day in court may become a mere procedural formality and
a chimera of justice if one of the opponents has access to superior

legal resources or if the conflict must be resolved under the terms
and conditions set by fundamentally unfair laws or rules of pro-

cedure. Thus, a fair share of access to basic social opportunities or a

fair opportunity to redress wrongs may be foreclosed by a prior and
overriding commitment to only fair play under sometimes unfair
game plans and rules.

Herein appears a curious and puzzling paradox. While commit-

ted to achieving results through the use of eligibility standards, the

results in sight are nonmoral, efficient, and potentially purely pro-

cedural. Phrased differently, the efforts and expenditures prompted
by moral convictions, embedded in constitutional assurances of equal
protection, can, in striving to achieve moral ends, employ standards

which are, in the final analysis, counterproductive. Through effec-
tive but facile and morally dubious weddings of convictions between
the legal and the economic order, people can be guaranteed only the

kinds of equal protection which comport with canons of efficiency

and the formalities of fair play. Furthermore, since both of these

orders are highly formal, technologically sophisticated, and frequently

arcane for all but the professional jurist and economist, they acquire

a sort of specious public validity and can be immune to challenges
about the disparity between their values and those which are more
general and public.

Convinced perhaps that legal conflicts are the sorts of human af-
fairs in which no procedure can be found to guarantee results which

always will meet the standards of substantive justice, the legal pro-
fession is hampered in its efforts to make legal counsel fully
available. In approximating justice, and perhaps in settling too

quickly the question of how much more nearly it can be achieved, at-
torneys can begin to extoll form over substance and can be persuaded

too readily to equate the requirements of procedural due process

with due justice or fairness. Fortified by judgments about the

benefits anticipated from competitive adversarial advocacy and

allied with similarly competitive economic and political models, one

might be tempted to justify that which is only partially justifiable
and to excuse the unpardonable or to disown the results achieved

but creditable to "the system." This interlocking of professional and

other cultural convictions can shortcircuit potential charges of un-

fairness. It can shield that which is merely de facto from

penetrating questions. In assuring only efficiency and other non-

moral results, it can contravene the public reasons and expectations

for which the system is licensed and sanctioned. Finally, if this is

the best approximation of justice possible, the victories are pyrrhic

ones indeed.



546 INDIANA LAW REVIEW [Vol. 12:519

A rather obvious and distressing example of such a victory ap-
pears in cases of legislatively-established welfare rights in which,

seemingly, one is entitled to only procedural due process. If, in

Goldberg v. Kelly,^^ the Supreme Court was forced to define for the
first time the precise intent of law in the realm of the welfare state,

its decision may be far more conservative, formal, and purely pro-
cedural than is perceived commonly by those who applaud its radical
or revolutionary character.®^ Relying upon adversarial methods to
establish statutory rights and upon judicial procedures of review,

the net gains of this decision may be more procedural than substan-
tive. Although the case assures protection from arbitrariness and

thus averts some of the problems noted in the preceding section of
this Article, it assures only procedural access to the welfare system

and, principally, a right only to litigate one's claims.*^ The pyrrhic
character of this victory can be seen in two sets of consequences.
One is that the funds for the litigation is drawn from the resources
allocated to provide welfare benefits, thereby potentially decreasing

resources for assistance by expending them to contest entitlements
to those resources.®^ A second set of consequences includes tem-
porary suspensions and inevitable delays in the actual receipt of

benefits by all of the targeted beneficiaries while the procedures of

the program are being contested by one or more of the potential,
but now litigating, recipients.**

Akin to the pattern of the Goldberg decision, the decisions

behind eligibility policies in legal aid reflect a bias toward pro-

ceduralism. Whether this presumption in favor of due process
reflects a conviction that substantive fairness and equal access to

legal aid are inevitable and necessary outcomes of procedurally fair

criteria is not entirely clear. What is clear, however, is that, in
subject-matter tests, at least, standards of eligibility do not always

fully respect the requirements of distributive justice. Appearing to

conform rather to standards of efficiency and procedural fairness,

they both mirror and promote convictions about the overriding im-

portance of economic efficiency and those socio-legal judgments

which de-emphasize material differences in results by highlighting

the more abstract, formal, and purely procedural aspects. This con-

''^^1 U.S. 254 (1970).

*The Court, however, recognized the limited scope of its decision: "The constitu-

tional issue to be decided, therefore, is the narrow one whether the Due Process

Clause requires that the recipient be afforded an evidentiary hearing before the ter-

mination of benefits." Id. at 260.

'^See id. at 267-71.

*^See Verkuil, The Search for A Legal Ethic: The Adversary System, Liberalism
and Beyond, 58 Soundings 54, 62-63 (1977).

'^See id.



1979] LEGAL SERVICES 547

elusion does not suggest that procedurally fair rules cannot or do

not ever have substantially fair results or that it has no respect

whatever for materially sufficient criteria of justice. Rather, it

states only that what is procedurally fair does not automatically

achieve substantive fairness — and certainly not because it is a due
process. The conclusion offered is that unmitigated and unconditioned

confidence in the ability of rules of fair play to assure substantive

fairness is not entirely warranted, and that our respect for it is due

more to the prevalence and linking of widespread cultural convic-

tions than to the intrinsic justifiability of the positions they support.

D. Beliefs and Practices Which Prompt Administrators of
the Legal System to View Eligibility Questions as

Matters Which Necessarily Entail Considerations of Merits

and Deserts, Virtue or Vice, and Putative Social Harms

The enforcement of community or conventional morality can oc-
cur through administrative policy as well as through legislative and

judicial proceedings. The more discretionary the policy, the more
likely the possibility that conventional moral beliefs will be nor-

mative for, but not always surface in, decisions about eligibility, par-

ticularly if people or cases are categorized according to subjects.

Subject-matter tests, even in less explicitly discretionary systems of

legal aid, are subject to the twin dangers of every socially signifi-

cant categorization — that they can conceal decisions inimical to cer-
tain groups of the populace and that they may entail socially
stigmatizing judgments about those groups. Thus, while courting

these social risks and while not being fully justifiable on a moral

view of allocation policies, subject-matter tests and the prevalent

beliefs they tend to favor enjoy a prima facie validity or moral

plausibility. Subject-matter tests, because of their dependence upon
and the reinforcement they receive from widely held but merely de

facto beliefs about the treatment people on welfare "deserve" — such
as the belief that people who seek a divorce or bankruptcy are less
virtuous or potentially harmful to society and, therefore, less deser-

ving—appear to be sensible discriminations between those well-
deserving and those ill-deserving of assistance from relatively

limited resources.

Although they are related to and potentially illuminating for

this present discussion, the inquiry here is not primarily concerned

with the general moral and philosophical questions raised by at-

tempts to enforce community morality through legal means — name-
ly, questions which ask whether law is an appropriate instrument
for such aims, whether some areas of human conduct are in principle
beyond legal sanction, and, finally, whether this is the proper



548 INDIANA LAW REVIEW [Vol. 12:519

business of government. While setting aside a general discussion of
these larger questions, it is apparent nonetheless that, as in the

preceding section, this Article is concerned about them and seeks to
address some aspects of them — but in more concrete terms and in
the context of problems of eligibility. In these matters, we need to
be concerned with tracking and evaluating the ways in which, and
notwithstanding the answers to questions of principle, appeals to
policy tend to function pragmatically as answers to the larger ques-
tions. Whatever one's general and principled stand on the enforce-
ment of community morality — and in particular on the role of
government in merely assuring freedoms and equal protection — it is
quite possible that particular policies may contravene those prin-
ciples and find as allies in this contravention, the professional and

cultural convictions which offer specious support for that which

seems otherwise unjustifiable. Among potential candidates of beliefs
which may prompt administrators of law to judge that the merits,
virtues, and social harmfulness of indigents are relevant, perhaps

even decisive, considerations are some judgments at the heart of the
common law tradition and some presumptions set by the systems of
criminal justice and welfare.

The intellectual habits fostered by training in and through the
practice of law are acknowledged widely as reasons for a certain

professional myopia regarding broader social issues. They can also
establish, however, prejudicial beliefs, or at least presumptions,

which tend to favor existing and merely de facto convictions concern-

ing who as well as what are either well-deserving or ill-deserving
of public approval, legal sanction, and eventually free legal

assistance. In its tacit ratification of judge-made law and the candor

that implies about the social sources of court decision, the common
law's tradition of relentlessly pursuing precedent and principle

serves both to blunt legal imagination and to warrant as de jure

what are merely prevalent cultural beliefs. Whereas moral inquiry
takes these beliefs seriously, but then raises the critical questions

which may serve to undermine their plausibility, legal reasoning
may have available theoretical reasons and some practical pro-
cedures which serve in circular fashion to warrant conclusions by

appealing to the sources from which they arose in the first place.

So habituated, professionals may be little inclined to ask which
considerations ought to count and may be prone to ask rather ex-
clusively which considerations do count. This point is made vividly
in the rhetorical question: "Who can oppose giving less considera-
tion to the slothful and lustful?" Indigent or not, by association with

popular convictions about personally and socially harmful vices,

those seeking help with bankruptcy or divorce can come to be
regarded as ill-deserving. Considerations of need can be overturned.



1979] LEGAL SERVICES 549

if at all attended, and may give way to considerations of deserts or
merits.

The Handler-Hollingsworth study detailed some of the ways in
which this phenomenon can appear.®^ Studying certain nineteenth
century, and perhaps still influential, criteria of welfare eligibility,

the study concluded that these standards were based on a distinc-

tion between the poor and paupers, characterized respectively as in-

digent and morally degenerate, judging that the former were vic-

tims of fate while the latter were morally blameworthy.®* This
distinction and its supporting justifications became the basis for dif-
ferential welfare treatment and provided a rationale for policies

which sought either to deter or to penalize the deviant.®' Given the

strength of cultural traditions and widely accepted practices in the

treatment of social deviants, it is not unreasonable to suppose that

some analogous forms of thought are still influential and that they
supply convenient justifications for restricting equality of opportuni-

ty and treatment, as well as for intervening in the affairs of and

limiting the liberty of those stigmatized as deviant. Nor is it difficult
to imagine that administrators might be inclined to attach over-

riding significance to considerations concerning the kinds of persons

who need legal aid and regarding the kinds of putative harms socie-
ty may be required to sustain if its deviants remain un-
checked—indeed, are aided and abetted in using the system in

legalized ways (for example, in litigation) which some may view as
contributing to their delinquency.

Just as the welfare system and the gate-keeping done for it by
the legal profession tend to import into their deliberations prevalent

convictions about morally praiseworthy and blameworthy persons
and then to differentiate treatments on that basis, so too does the

criminal justice system. Whereas the deterrence and penalizing
employed in the welfare system are more often, but not exclusively,
psychological, their counterparts in the criminal justice system are
more overtly and intentionally corporal or physical and, in some
cases, capital. Setting aside these obvious differences, similar no-

tions and common applications of principles can be found and iden-
tified in both of these social systems and in their allied and gate-

keeping legal system.

Imputing liability and arguing for punishments deserved in-

evitably entail sizeable conceptual and normative puzzles about
which more confusion than clarity prevails. A convenient and com-

*^J. Handler & E. Hollingsworth. The "Deserving Poor" (1971).

«7d at 17-20.

''See id. See also J. Graham. The Enemies of the Poor 88-92 (1970); Silverstein,

supra note 12, at 574; Time, supra note 79.



550 INDIANA LAW REVIEW [Vol. 12:519

mon method of avoiding these difficulties is to invoke certain pre-
ferred notions, maxims, and informal arguments, which, if culturally

pervasive and if simultaneously legitimated by social systems such

as the legal order, can become persuasive despite their ambiguity
and indemonstrability. The terms and conditions set upon moral ex-
perience by virtue of being American do indeed set presumptions
favoring liberty, but in some curious and not always consistent
ways. While guaranteeing political rights favoring freedom from in-

terference, Americans find good reasons, nonetheless, to limit liber-

ty, particularly if potential conflicts with the rights of others or

harms forthcoming to one's self or to society are perceived.
The most frequently invoked grounds for limiting liberty or for

coercing compliance with convention are the prevention of harm to
self, the prevention of harm to others and, in the extreme, the
prevention or punishment of sin.^® That harms are not always nor
readily distinguished from that which simply fails to meet social
wants or, for that matter, from that which merely offends prevalent

sensibilities does not seem to deter confident and assertive declara-
tions that certain behavior is clearly detrimental to society. That

personal liability and the voluntariness required for moral

blameworthiness cannot always be clearly determined in the face of

other environmental factors does not seem sufficiently to slow the
enthusiasm for finding a culprit, indeed a scapegoat, even at the risk

of blaming the victim. The fact that *'therapy," whether re-
habilitative or deterrent, may, in fact, be a penalty or, if sufficiently

stigmatized, a punishment®^ does not forestall effectively the occa-

sional social impulse to make some people pay heavily for their
failures as well as for the verifiable harms they inflict upon others.

Setting aside the temptation to consider here the possibility of a

social pathology associated with these inclinations, a more modest
point is asserted. These inclinations appear in and become nor-
mative at times in subject-matter tests of eligibility for legal aid and

draw support from allied considerations in the welfare and criminal
justice systems. The important point is not simply that these inclina-
tions exist and tend to shape certain kinds of decisions and policies

in those three systems. The point is that, when they are employed
or appealed to in matters of legal-aid eligibility, they seem more
plausible than they really are and manage to escape critical scrutiny
because they fit comfortably in the web of alliances the common law
tradition establishes with other social judgments of worth, merit,

««J. Feinberg. Social Philosophy 33 (1973). See also J. Gustafson. Protestant

AND Roman Catholic Ethics 15-19 (1978) (discussing the possible Calvinistic overtones

in "banning" offenders and imposing penalties on them).

«'J. Feinberg. Doing and Deserving 96-98 (1970).



1979] LEGAL SERVICES 551

and virtue. Thus, appealing to principles which themselves owe their
authority to conventional beliefs, the justifications for considering

judgments of this sort as a basis for making distinctions between

people seeking legal aid can be warranted in a somewhat circular
fashion. Furthermore, and leaving unattended for the moment other
possible grounds for criticizing such a move, positions which make
these sorts of appeals seem to err by subordinating right and wrong
to the moral beliefs people happen to have — and in a rather
systematic and socially interdependent fashion.^"

V. Conclusion

This Article's close reading of eligibility rules, their implications

and their alliance with social, political, and economic convictions has

sought both to analyze their moral justification and to open avenues

for continued critical reflection. It is difficult not to be impressed,

however, with the formidable and inertial mass of interlocking
power and value they represent. Although not always intellectually
consistent and systematic, the bundle of presumptions favoring

discretion, proceduralism, efficiency, and private codes of profes-

sional conduct has a pragmatic and functionally useful social

coherence, and one which is sufficiently durable and supple to with-

stand anything less than a sustained critical reflection about its

premises. Nonetheless, and hoping that the power of the de facto is
not sufficient to paralyze one's sense of hope and efforts to pro-
gressively improve the legal system, I shall confess this hope and a

commitment to these efforts as the premises upon which this in-
quiry began and from which it looks forward to increased collabo-

ration with others who would move steadily in the direction of more
nearly approximating the ideals of justice and liberty for all.

''See Lyons, Book Review, 87 Yale L. Rev. 415, 435 (1977) (reviewing R.

DwoRKiN. supra note 68).