Auctioning Justice: Legal and Market Mechanisms for Allocating Criminal Appellate Counsel
Scarcity is a central fact of the human condition and the starting point for economic analysis. Legal services, like other goods, are affected by scarcity. The time of lawyers, judges, and court personnel is not unlimited, and society must determine how to allocate this good. In Gideon v. Wainwright, the Supreme Court adopted a rule requiring that all criminal defendants must be represented at trial by an attorney at the taxpayers' expense, if necessary. On the same day that the Court handed down Gideon, it also announced a rule in Douglas v. California that all indigent criminal defendants be provided counsel on their first appeal as of right. With these decisions, the Court attempted to cure the most debilitating disease afflicting the criminal justice system: the scarcity of counsel facing the indigent criminal defendant. This Article, however, begins with the premise that judicial fiat cannot cure scarcity; it merely disguises the symptoms of the disease. Legal services remain scarce notwithstanding rules purporting to guarantee their provision. Recognizing the inevitability of scarcity, I offer here a more rational method of allocating legal services on appeal. Specifically, I propose a market approach for allocating the services of appellate counsel to indigent criminal defendants: a contingent fee auction.