Scarcity is a central fact of the human condition(1) and the starting point for economic analysis.(2) 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,(3) the Supreme Court adopted a rule requiring that all criminal defendants must be represented at trial by an attomey at the taxpayers' expense, if necessary.(4) On the same day that the Court handed down Gideon, it also announced a rule in Douglas v. California(5) that all indigent criminal defendants be provided counsel on their first appeal as of right.(6) 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.(7) Recognizing the inevitability of scarcity, I offer here a more rational method of allocating legal services on appeal.(8) Specifically, I propose a market approach for allocating the services of appellate counsel to indigent criminal defendants: a contingent fee auction.
In Section II, I argue that the Douglas rule allocates scarce legal resources inefficiently by failing to distinguish meritorious from unmeritorious appeals. Under Douglas, frivolous and meritorious appeals are entitled to an equal share of legal and judicial attention. As a result, scarce resources are devoted to appeals that are doomed to fail. Wasting legal resources benefits neither criminal defendants as a class nor society as a whole.
In Section III, I propose a market system for allocating appellate counsel to indigent criminal defendants through a system of contingent bids. In a market system, appellate attorneys would bid for the opportunity to represent criminal defendants, with the appeal going to the lowest bidder. The state would pay the attorney her bid, but only if she wins the appeal for her client. As a Consequence, lawyers would ignore weak claims and compete for the appeals most likely to succeed. The market, therefore, would allocate the largest share of legal resources to those criminal defendants with the most meritorious claims. Such a market system also would align attorneys' interests with the interests of their clients, thereby ensuring that scarce resources committed to the representation of criminal defendants are not wastefully dissipated by agency costs. At the same time, attorneys -- by pursuing their own interests securing winning claims -- would screen unmeritorious claims from the appellate process, thus conserving judicial resources. The primary beneficiaries of this reallocation of resources would be wrongfully convicted defendants who would be assured that their appellate claims received the legal and judicial attention that they deserved.
In Sections IV and V, I discuss two potential objections to my proposal: the attorney ethics rules and the Constitution. I first discuss the ethical prohibition on contingent fees in criminal cases. I conclude that the rationales for the ethical prohibition -- whatever their merit in the trial context -- carry little weight in the appellate context; the ethical rules therefore should be amended to reflect the differences between trial and appeal. I then turn in Section V to constitional objections to my proposal. The Douglas rule does not follow from the requirements of the Sixth Amendment as announced in Gideon. Moreover, the justifications offered by the Supreme Court for the Douglas rule -- equal protection and due process -- are both consistent with a market system for allocating criminal appeals. Because the Constitution does not guarantee an appeal, defendants with meritless claims can be deprived of the right to appellate counsel without running foul of any constitutional limit. …