(h/t: Legal Theory Blog) Article. Abstract:
There
is a deepening crisis in the funding of legal services in the United
States. The House of Representatives has proposed cutting the budget of
the Legal Services Corporation (LSC), one of the main funders of legal
assistance to America’s poor, to an all time low in inflation-adjusted
terms. Other sources of funding, such as Interest on Lawyers Trust
Account (IOLTA) are also way down due to low interest rates. More than
135 state and local organizations providing LSC assistance are now in a
precarious position. The community was already decimated by the last
round of cuts in January 2011, that led to the laying off of 1,226
lawyers and support staff at LSC-funded organizations, and 81,000 fewer
low-income Americans receiving aid. This is all occurring at a time of
extremely high unemployment and state budget cuts in services supporting
low-income people, meaning demand for many of these services is going
up.
The deepening crisis in funding of legal services only makes
more pressing and manifest a sad reality: There is and always will be
persistent scarcity in the availability of both criminal and civil legal
assistance. Given this persistent scarcity, this Article will focus on
how existing Legal Service Providers (LSPs), both civil and criminal,
should ration their services when they cannot help everyone.
To
illustrate the difficulty these issues involve, consider two types of
LSPs, the Public Defender Service and Connecticut Legal Services, that I
discuss in greater depth below. Should the Public Defender Service
favor offenders under the age of 25 instead of those older than 55?
Should other public defenders offices with death eligible offenses favor
those facing the death penalty over those facing life sentences? How
should Connecticut Legal Services prioritize its civil cases and
clients? Should it favor clients with cases better suited for impact
litigation over those that fall in the direct service category? Should
either institution prioritize those with the most need? Or, should they
allocate by lottery?
These are but a small number of the
difficult questions faced by those who have to ration legal services.
Very little has been said as to what principles should govern the
rationing of legal services. This is surprising given that civil and
criminal LSPs are often funded through a mixture of government funding
and charitable support in such a way that they should be answerable on
questions of justice, and because their decisions whether or not to
support a client is likely to have significant effects on that person’s
life prospects. Thus, it seems as though the rationing decisions of
LSPs deserve significant ethical scrutiny.
In this Article, I
seek to remedy this deficit in the existing literature by engaging in a
comprehensive analysis of how LSPs should allocate their resources given
the reality of persistent scarcity. Luckily, this work does not have
to begin at square one. There is a developed literature in bioethics on
the allocation of persistently scarce medical goods (such as organs, ICU
beds, and vaccine doses) that I use to illuminate the problems facing
LSPs and the potential rationing principles they might adopt.
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