The Challenges of Calculating the Benefits of Providing Access to Legal Services

Introduction I. "Optimal" Allocation of Public Resources II. Identifying and Measuring Benefits (and Costs) of Legal Services Programs III. Previous Attempts to Measure the Value of Expanding Legal Services Programs IV. Assessing the Criticisms of Legal Services Funding V. Improving the Benefits Measure? Conclusion INTRODUCTION Many academics, public interest lawyers, and politicians consider it a platitude to say that public authorities underfund civil legal services for the poor. (1) Others have argued for years that the public provision of legal services is, almost by definition, wasteful and possibly counterproductive. (2) This disconnect has its roots in deep disagreements about the role of government in the lives of its citizens. But the confusion between these camps in their policy debates stems more directly from the use of amorphous terms that have multiple meanings and are thus opaque rather than helpful. Specifically, because words like "underfund" and "need" have different meanings to different people in different contexts, discussions over the proper approach to evaluating the advantages and disadvantages of publicly funding legal services have become muddled. To proponents of expanding legal services, underfunding happens when people in need of legal services cannot access these services because there are too few low-cost lawyers available. (3) "Underfunded" is thus taken to mean simply that a person "would benefit from" the greater availability of free or subsidized legal aid. To opponents of the public provision of such services, however, programs that misalign incentives or that lead to the misuse of taxpayer money or knock-on costs elsewhere in the legal system are, at the end of the day, necessarily "wasteful" and "counterproductive" and should be reduced in size or eliminated, second-best arguments notwithstanding. (4) The advantage of both of these approaches to thinking about the problem is that they are easy to apply. From a policymaker's perspective, however, these strategies are unhelpful. Public resources are limited, and so the fact that people are "in need" or "would benefit from" additional funding is not sufficient to justify a shift in the allocation of public monies toward legal aid. (5) After all, applying the same analysis to other public services, we would of course learn that there are plenty of other people and institutions (e.g., the homeless, the educational system, community health centers, etc.) that are "in need" of scarce resources. (6) At the same time, expanding government involvement in the provision of legal services certainly can lead to real improvements in social welfare, even if certain market incentives are dulled and agency and administrative costs are all but guaranteed, when we face any of a raft of possible market failures or have specific distributional preferences. Accordingly, policymakers require something more than these imprecise all-or-nothing rules ("any" benefit or "unnecessarily" costly) to make optimal allocation decisions. Welfare economics suggests a possible, albeit controversial, approach: calculate the net benefits of a government-funded legal services program and compare those benefits to the net benefits that would be generated by other public programs or by leaving the resources in private hands. (7) If the legal services program produces more net benefits than other options, it should be expanded. If not, the program's funding should be cut or, potentially, eliminated. (8) In this invited essay, I explore how policymakers and other public-interested actors have empirically calculated the benefits of providing low-income access to legal services in the past, and how they might improve upon existing methods going forward. Specifically, I review, criticize, and try to build on two major civil justice needs studies, one published by the Legal Services Corporation in 2005 (reissued in 2007) and the other by the American Bar Association in 1994. …