The Law And The Rich: Who's Exempt?

It is often debated whether the law applies differently to the rich. While it is true that wealthy individuals have the means to access better legal representation, it is also important to consider their influence on policymakers and the potential for laws to be created or changed in their favour. This dynamic can lead to an unequal application of the law, with the rich having more opportunities to shape policies and laws to their advantage.

The rich can influence policy-making and get their policies adopted

The rich and powerful often get their policies adopted, even if opposed by most voters. According to research by Princeton professor Martin Gilens, policies supported by economic elites became law between 60 and 70 percent of the time. Policies supported by business lobbies also became law 60 to 70 percent of the time. However, policy changes favored by a majority of all voters were enacted just 30 percent of the time.

Gilens found that whether or not a proposed change in government policy is favored by the majority of Americans "matters not a whit" in leading to the adoption of such policy changes. On the other hand, the support of a proposed policy change by wealthy Americans or organized lobbies matters quite a bit.

There are a few ways in which the rich can influence policy-making:

• Wealthy donors, comprising less than 0.01% of the population, accounted for 40% of all political contributions in 2012.
• In the post-Citizens United era, most of the money in politics is not even raised or spent by the campaigns themselves. Instead, it comes from SuperPACs and other unaccountable groups who don't give directly to campaigns.
• In 2012, 93% of SuperPAC money came from just 3,318 wealthy people. 59% came from just 159 people.
• The rich can use their wealth to gain access to policymakers and lobby for their interests.
• The rich can use their financial resources to shape public opinion and influence elections.
• The rich can use their economic power to pressure policymakers to adopt their preferred policies.

While the rich and powerful clearly have a disproportionate influence on policy-making, it's worth noting that there are also cases where policies supported by the majority of voters are enacted, even if they are opposed by wealthy Americans or organized lobbies. Additionally, not all wealthy individuals or organizations actively try to influence policy-making, and some may even support policies that are in the best interests of the general public.

The rich can afford the best legal representation

Firstly, it is important to note that there are many lawyers who work pro bono, meaning they do not charge their clients for their services. These lawyers often work in legal aid clinics, helping those who cannot afford legal services. Additionally, there are public defenders who are appointed to represent people charged with a crime who cannot afford a private attorney. These defenders are paid by the government and are a vital part of the criminal justice system, ensuring everyone has adequate representation in criminal court.

However, it is also true that those with more financial resources often have access to better legal representation. This is because they can afford to hire private attorneys who may have more experience, resources, and time to dedicate to their case. Private attorneys often charge high fees, which can be out of reach for many individuals.

So, while it is true that the rich can afford the best legal representation, it is important to recognize that there are also many lawyers who work to ensure that everyone, regardless of their financial situation, has access to legal services.

Now, addressing the issue of whether the rich can "buy their way out" of legal trouble, it is important to understand that money does not always equate to better outcomes in court. While having more financial resources can provide access to more experienced and reputable lawyers, it does not guarantee a favourable outcome. Ultimately, the facts of the case and the skill of the lawyer are what matters the most.

In conclusion, while the rich may have the means to hire the best legal representation, it is not always a guarantee of success in court. There are many dedicated lawyers who work pro bono or for legal aid organizations to ensure that everyone has access to justice, regardless of their financial situation.

The poor have little access to justice due to cuts in legal aid

The concept that everyone should have some form of legal support has been present in the United Kingdom for a long time. However, due to strong opposition to the idea, some of the first formal policies were heavily moralised. For instance, the Poor Prisoners Defence Act 1903 included provisions for legal aid for prisoners with a defence.

The foundation of legal aid as we know it today was laid after World War II. Several reforms have since attempted to manage the volume and cost of legal aid, with the post-1986 cuts being the first concentrated effort to reduce the budget. In April 2013, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) introduced further cuts, which heavily impacted several areas of litigation and excluded most private family law cases from the scope of legal aid.

The LASPO's explicit goal was to save money, with family law being one of its main targets. While public law proceedings and the representation of children generally remained in scope, private family law was the reform's main 'victim'. Most private family law cases, including divorce and child contact, became ineligible for legal aid. Cases involving children or finances remain in scope only where there are issues concerning domestic violence or child abuse and specific evidence is provided. The Ministry of Justice expected that this new policy would also discourage litigation on private family problems, which could be resolved out of court.

The exclusion of entire areas of law seems arbitrary and irreconcilable with the very raison d'être of legal aid. Even where alternative means of dispute resolution (such as mediation) are available, some of these cases may inevitably end up in court. Furthermore, mediation itself requires legal support. The problem, therefore, with the removal of almost the entire area of private family law from civil legal aid is that this policy choice may restrict access to justice for many people, without consideration for their needs and circumstances.

The idea that access to civil legal aid is inherently linked with effective access to justice is part of the European legal tradition. Article 47 of the European Charter of Fundamental Rights 2000 states that 'Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.' However, there is no universal or unconditional right to legal aid, especially with regard to civil law cases. While efficient access to justice remains important for the European Court of Human Rights, it has been ruled that Article 6 § 1 does not imply that the State must provide free legal aid for every dispute relating to a 'civil right'. The crucial question is whether the lack of legal aid would deprive the applicant of a fair hearing.

The Court has identified a set of criteria for assessing the states' obligation to make legal aid available in non-criminal proceedings, including the importance of what is at stake for the applicant, the complexity of the relevant law or procedure, the applicant's capacity to represent themselves effectively, and the existence of a statutory requirement to have legal representation. Two further criteria have emerged regarding the conditions attached to legal aid: the financial situation of the litigant and the prospects of success in the proceedings.

The LASPO had an immediate effect on the case of private family law, and this effect was sustained in the years that followed. The same applies to the number of cases that received legal aid, as it also dropped significantly in the years immediately following LASPO. This means that, at least for a certain period, a considerable number of people were denied access to legal aid for private family law cases, regardless of their financial situation and/or ability to secure some kind of legal advice or representation.

Did this lead to an increase in the number of cases going to mediation or the number of Mediation Information and Assessment Meetings (MIAMs)? According to the post-legislative memorandum released by the Ministry of Justice in 2017, this was not the case, presumably because it is only after receiving legal advice that most people see mediation as an option. In fact, before LASPO came into force, 4 out of 5 cases that ended up in MIAMs were referrals from legally aided solicitors. To make matters worse, in 2017, only 61% of completed mediations were successful (slightly down from the 68% reported for 2013-2014).

This evidence suggests that, as far as legal aid is concerned, many people in England and Wales are experiencing a return to a pre-World War II world. Their chances of securing free legal advice and representation are very slim, as their only avenue is to contact organisations with already limited resources, such as Citizens Advice and Family First. University Law Clinics also shoulder some of the burden, but they cannot offer legal representation. In a sense, civil legal aid is to an extent seen, once again after almost a century, as a form of charity.

However, as lawyers realised at the time, charity is not enough to ensure effective access to justice for all. As one of the founders of the Poor Man’s Lawyers Movement observed more than 120 years ago, extensive lack of free access to legal advice and representation for those who need them most makes the rule of law 'an anaemic attenuated make-believe which we flash in the eyes of the poor as justice'.

In the United States, effective legal assistance remains out of reach for the majority of Americans. Figures are even starker when it comes to family law, domestic violence, housing, and small-claims matters. At least one party lacks representation in 70 to 98% of these cases. And these are just the Americans who make it to court. Without access to legal advice

The rich can exploit libel laws to silence critics

Libel laws can be exploited by the rich to silence critics. This is known as a Strategic Lawsuit Against Public Participation (SLAPP). SLAPPs are lawsuits that are intended to intimidate and silence critics by burdening them with the cost of a legal defence. The primary reason for a SLAPP is not to win but to drown the defendant in expensive and time-consuming litigation as a way of silencing unwanted criticism.

SLAPPs are often based on libel because libel is the only type of legal claim with a "reverse onus". This means that the defendant bears the burden of proving their innocence, rather than the claimant being required to prove their case. This makes it easier for the rich to exploit libel laws to their advantage.

SLAPPs can take various forms, but a common feature is the inclusion of unnecessary parties in the suit and the exclusion of necessary parties. For example, in a case against a newspaper, the claimant might choose to sue an individual journalist instead. As the journalist does not have the backing of a wealthy newspaper to share the burden of finding damages, this makes it more likely that they will back down.

Another common feature of SLAPPs is forum shopping, or "libel tourism". This is where the decision on where to file the lawsuit is dictated by calculations on chances of success, rather than where the claimant or defendant lives. For example, in 2006, it was easy to sue in London, which was regarded as the defamation capital of the world because of easy access to the jurisdiction and high awards.

SLAPPs have a chilling effect on scrutiny and can effectively censor journalists by threatening them with seven-figure legal fees. This leads to self-censorship, as journalists avoid reporting on individuals known to be litigious. It also leads to important stories not being published, as journalists choose not to investigate these individuals in the first place.

To counter this, some countries have introduced legislation to limit SLAPPs. For example, the UK government has announced a package of measures to protect the legal system from abuse, including a new mechanism to allow courts to throw out baseless claims quicker and a cap on costs to prevent the mega-rich from using expensive litigation as a weapon.

The rich can influence politicians through campaign donations

The Citizens United ruling by the Supreme Court has further exacerbated the issue by allowing unlimited independent spending by corporations and the emergence of Super PACs, which enable billionaires to pour unlimited amounts into campaigns. This has resulted in the voices of ordinary Americans being drowned out.

Research by Princeton professor Martin Gilens found that policies supported by economic elites became law between 60% and 70% of the time, while policy changes favored by a majority of voters were enacted just 30% of the time. Gilens' work also highlights that where rich people and poor people disagree on policy, the federal government tends to side with the rich.

The influence of the rich is not limited to campaign donations. They can also receive taxpayer subsidies for their political contributions through a loophole in the tax code. For example, by donating appreciated assets like shares of stock, they can avoid paying capital gains taxes, effectively receiving a subsidy for their political contributions.

The ability of the rich to influence politicians through campaign donations and other means has led to concerns about the concentration of political and economic power in the hands of a few and the potential erosion of democratic ideals.

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