Noam Scheiber makes the case:
The idea would be roughly as follows: in criminal cases, we decide what the accused should be able to spend to defend themselves against a given charge—securities fraud, grand theft, manslaughter, etc. No one can spend more, even if she has the money, and those who can’t afford the limit would receive a subsidy for the full amount beyond what they would have spent on their own (say, beyond a certain percentage of their annual salary or net worth). In civil cases, we decide what the plaintiff should be able to spend to pursue an award of a particular amount, or to pursue a particular kind of claim, and what the defendant should be able to spend in response. The same subsidies would apply.
Posner calls the idea a “massive, unworkable nightmare”:
Suppose someone is charged with manslaughter after driving her car into a pedestrian and killing him. Suppose the government-set price for a manslaughter defense is $20,000. She uses most of her money to buy an excellent lawyer but nonetheless the jury convicts. She has some money left over for an appeal but in the meantime some new evidence emerges that the victim was at fault, or the prosecutor engaged in misconduct. Should she use the money to pay a lawyer to make a motion for a new trial? Save it for sentencing? Use it for appeal? One could complicate the regulatory scheme further by giving people the power to apply for new “grants” from the government for additional legal representation as unpredictable developments occur. But this would invite still more tactical behavior by clever lawyers skilled in gaming systems like Scheiber’s.
Kilgore is similarly unimpressed:
If it gets the buzz it’s intended to attract, perhaps Scheiber’s piece could stimulate some much-needed interest in the decline of subsidized legal services for the poor, one of the less-discussed victims of austerian budget policies. Or maybe it could help boost the already promising rise of bipartisan criminal justice reform initiatives, noting that unequal legal representation is one of the reasons we have prisons stuffed with poor people who are in many cases status offenders. But unless conservatives get excited about it as the Next Big Threat, I don’t think “socialized law” has much of an immediate future.
The Dish 