Hubbard: New Rule Of Law Data Underscores Urgency Of Educating Next Gen Lawyers For Democracy

TaxProf Blog op-ed: New Rule Of Law Data Underscores Urgency Of Educating Next Gen Lawyers For Democracy, by William C. Hubbard, Dean, South Carolina; Co-founder and Chair of the Board, The World Justice Project:

In June, 104 law deans, convened under the auspices of the ABA Task Force on American Democracy, signed a joint letter committing to training the next generation of lawyers to protect our democracy and uphold the rule of law. That this is an urgent project is underscored by new data, published last week by the World Justice Project, the board of which I chair.

As I have shared with this audience in the past, WJP has been tracking a global rule of law recession since 2016. For seven years in a row, the WJP Rule of Law Index has registered declining scores in a majority of countries worldwide. This year saw Index scores slide in 57% of countries, including the United States, which has in recent years suffered particularly steep declines in critical checks and balances, and now ranks a disappointing 26^th out of 142 countries included in the study. The data provide a powerful evidence base for the law deans’ call to action.

Based on surveys of both legal practitioners and ordinary people, the Index measures eight factors of the rule of law: Constraints on Government Powers, Absence of Corruption, Open Government, Fundamental Rights, Order and Security, Regulatory Enforcement, Civil Justice, and Criminal Justice. Each of these factors is in turn broken down into sub-factors that allow a more granular analysis of the state of governance in a given jurisdiction. The Index is the leading source of original rule of law data and widely relied upon by governments, international organizations, businesses, the media, civil society groups, and the academy. (See more about the Index methodology here.)

2024 Index Results: A Continuing Rule of Law Recession, Including in the United States
The multi-year negative trends in the WJP Index have been driven largely by factors associated with rising authoritarianism. Index measures of Constraints on Government Powers—the checks imposed by courts, legislatures, independent audit agencies, media, civil society, and elections—have eroded in three out of four countries since 2016. Index scores for Fundamental Rights are down in four out of five countries.

These same factors are undermining the rule of law in the United States, which, since 2016 has experienced a 17.6% decline in its Index measure of Constraints on Government Powers. Only seventeen countries studied in the Index have seen a more precipitous decline in checks on executive authority over this period.

As part of the 2024 Rule of Law Index exercise, WJP added a battery of questions about the electoral process to its household poll in the United States. The results reflect the increasingly fragile nature of U.S. rule of law and weakening trust in the electoral process in particular.

One third of U.S. survey respondents, including 46% of Republicans and 27% of Democrats, said they would accept the presidential election results only if their candidate wins. Only half expressed confidence in our electoral process, and there are sharp partisan divisions about trust in the courts to resolve electoral disputes. WJP data shows a marked decline in confidence in the courts generally in recent years.

Strengthening Public Understanding of the Rule of Law
The data reflect serious gaps in civic education, compounded by disinformation that has sown deep distrust in our institutions. Law schools and the legal profession we build have a critical role to play in countering these forces, promoting non-partisan, broad-based understanding of and support for the electoral process and the institutions of our democracy. One bright spot in the WJP data is that 96% of respondents—both Democrats and Republicans—say they consider “the rule of law” essential to our country’s future. That data point highlights an opportunity for educators: to build a consensus within our profession and the citizens we represent about what the rule of law means and what it requires of all of us.

Beyond Civics: Closing the Justice Gap
The role for law schools extends beyond civics education, however. The weak U.S. performance in the WJP Index is not just a function of misunderstanding and disinformation among survey respondents. Many of the survey questions ask about people’s experiences too, and their experiences of the U.S. justice system are particularly concerning.

The 2024 Index finds the United States ranked 107^th globally on the affordability and accessibility of the civil justice system. This is an improvement over its 115^th ranking in 2023, but there remains much work to be done. Research by WJP and others shows that the vast majority of Americans do not turn to lawyers and courts to solve their legal problems. For many, the consequences of unmet legal needs are significant, resulting in stress-related illness and lost housing or employment. Given the underperformance of our justice system, it is no wonder that trust in the courts is falling.

Numerous studies have shown that simply increasing the number of judges and lawyers will not solve this problem. Closing the justice gap requires creative solutions that begin with an understanding of people’s needs, address root causes, and provide pathways for the efficient resolution of legal problems. As centers of research and innovation, law schools, working with university colleagues in other disciplines, can play a critical role in gathering and analyzing data about legal needs and devising cross-sectoral solutions to meet them. Across the country, schools are taking up this challenge. Interesting models include Stanford’s Legal Design Lab, harnessing design thinking to close the justice gap; Georgetown’s Access-to-Justice Initiative, pairing technologists and courts, and the National Center for Access to Justice at Fordham Law School, gathering data on barriers to justice across the United States and advancing solutions to overcome these obstacles. These initiatives serve a dual purpose—introducing fresh ideas that make a concrete difference in specific jurisdictions while educating future lawyers about what the Model Rules for Professional Conduct call “their special responsibility for the quality of justice.”

At the University of South Carolina Rice School of Law, we emphasize the fundamental principles of rule of law, including access to justice, as foundational for communities of justice, opportunity, and peace. We address these concepts at orientation and during the 1L course “Introduction to the Legal Profession,” as well as through our clinics, pro bono program, and externships with legal service providers. Our upcoming law review symposium will address access to justice, democracy, and the rule of law.

I encourage other law school leaders to take up the challenge to strengthen teaching about the rule of law and harness the capacity of our institutions to close the justice gap. The ABA Task Force on American Democracy is developing a resource page for educators where we can all share and learn. This will be a long-term effort, but together we can reverse the negative trends in the United States by building understanding of and confidence in our institutions.

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