• Edward J. Lopez, ed., The Pursuit of Justice: Law and Economics of Legal Institutions, Independent Institute and Palgrave Macmillan, 2010

Even the most ardent, minimal-state libertarians generally agree that the administration of justice is a core function of government. The kinds of efficiency questions that routinely are asked of other (and more controversial) governmental activities are seldom asked with respect to its running of the justice system.

The Pursuit of Justice, edited by professor Edward J. Lopez of San Jose State University, goes a long way toward rectifying that omission. The book consists of his introduction and 11 original essays that will undoubtedly open many eyes to the serious problems that plague our efforts at ensuring just treatment for all citizens.

As professor Robert Tollison points out in his foreword, the book gives us a “public choice” view of our justice system, a view that concentrates on the incentives of the individuals and institutions that run it, for example the American Bar Association.

There isn’t space enough here to consider each of the essays in full, although all are very worthy efforts.

Nicholas Curott and Edward Stringham write on the development of the justice system in England, which grew out of ancient legal norms that were not centrally controlled and emphasized restitution to victims. Those practices and institutions were rather good at dispensing justice, but they did not put any money into the coffers of the king. Hence, the authors write, “Centralized police and courts were created to bring revenue to the state.”

The remainder of the book looks at America’s contemporary justice system and the essayists find much to criticize. In “Romancing Forensics: Legal Failure in Forensic Science Administration,” Professor Roger Koppl reveals the unpleasant truth about government crime investigation. While TV programs depict forensic scientists as devoted public servants, the fact is that they are ordinary people who respond to incentives that don’t necessarily correspond with justice for defendants.

Most crime science laboratories in the U.S. are under the control of law enforcement agencies and the people who work in them are prone to seeing their role as helping obtain convictions rather than getting at truths that would help defendants. “All forms of error from honest error to willful fraud are more likely to be made in favor of the prosecution than the defense,” Koppl writes.

Two essays focus on the abuses of eminent domain. Law professor Ilya Somin argues forcefully that government takings of real estate for the purpose of advancing economic development is both harmful and unnecessary. Private developers usually can overcome holdouts who might stand in the way of projects; if they can’t, it’s better that an occasional profitable development by shelved or delayed than that some people be evicted from their homes for nothing.

What about the fact that individuals who have their property seized must be paid just compensation? That is the subject of Professor John Bratland’s contribution. Courts generally have adhered to a “fair market value” requirement, assuming that dispossessed property owners are made whole if they receive that amount. Bratland eviscerates that notion, pointing out that value is subjective and includes emotional attachments people often have to property that cannot be priced.

Lastly, consider Adam Summers’ essay on the harmful impact of lawyer licensing. Earlier in our history, America enjoyed a free market in legal services — no educational credentials or licenses required for practitioners and consumers could deal with anyone they wanted to. The American Bar Association, Summers shows, moved mountains to cartelize the legal profession.

It leaned on state legislatures to mandate attorney licensure, which nearly all conditioned upon graduation from an ABA-accredited law school. Little of what a lawyer needs to know in his work actually is learned in law school and what he does use could be learned outside of law school. It is just a costly barrier to entry.

The Pursuit of Justice is a thought-provoking volume. Running the justice system may be a core function of government, but the government could and should do a far better job of it.