Abstract

There is a deepening crisis in the funding of legal services in the USA with cut backs in Legal Services Corporation and Interest on Lawyers Trust Account funding, rendering more visible the fact that there is and always will be persistent scarcity in the availability of both criminal and civil legal assistance. This article examines how existing Legal Service Providers (LSPs), both civil and criminal, should ration their services when they cannot help everyone. I draw on the bioethics literature on the allocation of medical goods (organs, ICU beds, vaccine doses, etc.) to illuminate the problems facing LSPs and the potential rationing principles they might adopt.

Highlights

  • There is a deepening crisis in the funding of legal services in the USA

  • The benefits of Legal Service Providers (LSPs) are not merely at the individual level but through systemic effects and there may be “strength in numbers”—for example, the police may alter behavior knowing that defendants will much should the state spend on assistance in legal services as opposed to other funding priorities?14 (iii) Given a set budget for legal services for the poor, coming both from the state and charitable organizations, how should those resources be distributed to rival claimants when one cannot fully help all of them? (iv) Who should implement the rationing system we arrive at, individual LSP lawyers, office managers, funders, or someone else?

  • Why examine the allocation of medical goods to illuminate how LSPs ration legal services? As a scholar who works at the intersection of law and bioethics, is this merely an instance of “looking over a crowd and picking out your friends” or is this the old joke about the drunk who looks for his keys under the lamppost? At the risk of self-deprecation, it is partially the latter in that there has been more than forty years of bioethics literature on implementing rationing systems for medical goods, making this an illuminating place to start

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Summary

INTRODUCTION

There is a deepening crisis in the funding of legal services in the USA. 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 (Ruger 2012). 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 (Bellow & Kettleson 1978; Legal Services Corporation 2009).. 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 (Bellow & Kettleson 1978; Legal Services Corporation 2009).2 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.

Rationing in the Real World
Public Defender Service
Connecticut Legal Services
Harvard Legal Aid Bureau
Situating the Rationing Question
Why Bioethics?
Room to Ration?
PRINCIPLES FOR JUST RATIONING OF LEGAL SERVICES
First-Come-First-Serve
Lottery
Priority to the Worst-off
Age-weighting and the Quality of Life
Should Quality of Life Matter?
Aggregation
Instrumental
Responsibility
Complex Rationing Systems
United Network for Organ Sharing
Disability-adjusted Life-years
The “Complete Lives System”
Dignity and Participation as Due Process Values
Funding Streams and Lawyer Satisfaction
The Allure of the Big Tent
Findings
CONCLUSION
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