The Travails of Total Justice

Abstract

Among his many gifts, Lawrence Friedman is blessed with a wonderful capacity to detect what he has occasionally called "master trends" in the workings of law and society, discerning the common direction and subterranean connection among diverse phenomena. His observations on "total justice" qualify as a prime example. In his much cited book of that name, published in 1985, he characterizes the advance of remedy and protection for many of life's injuries and troubles and the corresponding elevation of expectations as a master and unidirectional trend in American law and legal culture. The enlargement of justice that he describes includes two components: a general expectation of justice in the sense of fair treatment and recompense for injury and loss. Total justice is a "super-principle"' that has gathered momentum over the past century. Its arrival reflected a sea change in legal culture, that itself reflects profound changes in the organization of society. These changes in society derive from the burgeoning of science and technology that have "made the world over" and increased the social capacity for control and intervention. So this is an Enlightenment story - harsh legal rules give way to a more nurturant sort of law as legal culture changes to reflect humankind's increasing science-based mastery over the troubles and risks of everyday life. The "total justice" label linked together the expansion of tort accountability (via the relaxation of immunities, the shift to comparative negligence, the rise of new theories of liability, and the emergence of a more proficient plaintiffs' bar), the removal of procedural barriers and the projection of due process into many settings, the softening of contract law, the accessibility of legal services, and above all the disinterment of civil rights for blacks and the extension of rights for many sorts of subordinates and outsiders, from students to consumers to women to prisoners. Dynamic minority, consumer, environmental, and women's movements institutionalized the claims of these constituencies and made them a presence on the legal scene.'^ Whether or not total justice is a happy name for this bundle, it certainly captured the radical heightening of expectations that drove and in turn were bolstered by these changes. Friedman was well aware that this "deep and powerful trend" toward total justice contended with dogged resistance and robust countertrends, but he concluded that "they were insufficient to affect the main line of the story."' He anticipated little potential for a major reversal and offered the (highly qualified) prediction that "[t]he new legal culture - the general expectation of justice and its corollaries - may buck and bend, but it will not go away...It is fundamental to modern society, and in essence, for the short run at least, it seems to be here to stay." He has since reaffirmed this optimistic reading: Acknowledging that "[t]here is no denying the backlash and movements against total justice,'" he remains "convinced of the central point- the evolution of an enhanced sense of legality, a growing, vibrant consciousness of right, and a genuine strain toward total justice."