Article by Jennifer Gerarda Brown
State and federal prison inmates are suing prison officials in federal court at a steadily increasing rate, and Judge Richard A. Posner wants to do something about it. He has proposed procedural rules designed to reduce prisoner litigation in the federal courts: allowing state courts to handle more federal claims, curtailing diversity jurisdiction, raising filing fees, and creating an exclusive administrative remedy for prisoner claims below a given dollar amount.
This Article focuses on one of Judge Posner's proposals for reducing prisoner litigation in the federal courts. He has suggested that district courts impose a “market test” when deciding whether to request counsel to assist an indigent prisoner asserting a civil rights claim. The market test rests on the assumption that if a prisoner's claim for damages has any merit, the prisoner should be able to retain counsel on a contingent-fee basis. Because the civil rights statutes allow a prevailing plaintiff to collect attorney's fees, even prisoners seeking injunctive relief should be able to retain counsel if their claims are meritorious. If a prisoner plaintiff has been unable to retain counsel, Judge Posner argues, a court can infer that the claim has insufficient merit to justify appointment of counsel.
Judge Posner justifies the test in economic terms, urging courts to allow the market to reveal the merit of prisoner claims. As I will explain, however, the test does not rest upon a solid economic analysis. Markets can yield information, and in that respect, market tests may be beneficial under some circumstances. But a market test is only beneficial if it yields information that is helpful to those who would rely upon it. Judge Posner's market test does not yield information that would be helpful to district courts trying to decide whether to appoint counsel for a prisoner plaintiff.
The market test does not reveal whether appointing counsel in a particular prisoner's case would be efficient. To promote efficient results, Judge Posner should be considering the aggregate social costs and benefits of a prisoner's case. Often, the social benefits of a prisoner's case will not be reflected in the potential damage award; society will benefit from the deterrence and declaration of public norms that the case may yield, not from the damages that the plaintiff eventually collects. But the damage award is the primary criterion a lawyer will use in deciding whether or not to represent a prisoner. We cannot expect lawyers to bear in mind that even cases with small expected damage awards may yield social benefits.
Furthermore, even if private costs and benefits are important factors for district courts to consider when deciding whether to appoint counsel for a prisoner plaintiff, the market test will not yield accurate or helpful information about the relevant private interests. Judge Posner presents no evidence to suggest that the market for representation of prisoner claims operates with sufficient efficiency to measure accurately the merit of prisoner claims. Indeed, the little that we know about prisoners and the lawyers who might represent them suggests that various regulations constrain the actors in this hypothetical “market.” Licensing requirements for lawyers set up barriers to entry for people who might want to enter the market for legal services and render legal representation for prisoner plaintiffs. Ethical restrictions on the size of lawyers' contingent fees will place price controls on lawyers' services that may cause attorneys to forego representation of prisoners with viable claims. The very fact of incarceration may block prisoners' access to the market of attorneys.
Because the market does not operate efficiently, it will not yield information that is helpful to judges deciding whether to appoint counsel. Thus, the benefits from the test will be slight.
The potential costs of the test, on the other hand, are high. Because the test will fail to measure all of the benefits in some prisoner cases, and in other cases will fail to account for the constraints on prisoners and lawyers in the market for legal representation, the test will produce false negatives. Some prisoners with legally and economically viable claims could fail to retain counsel. If the district court uses the market test in these cases to draw the inference that Judge Posner suggests—that such claims lack sufficient merit for the court to appoint counsel—it is highly unlikely that the prisoners will be able to pursue the claims alone. These error costs are especially high in prisoner cases. Because prisoners are subject to the coercive power of the state, the constitutional violations they suffer are especially troubling if they go unredressed.
In addition to these economic problems, the market test rests on dubious statutory interpretation. When Judge Posner states that courts should infer from a prisoner's inability to retain counsel that the prisoner's claim lacks merit, he suggests that judges should adopt a standard that will eviscerate the very statute they would be applying. Section 1915(d) states that when a federal court allows an indigent litigant to proceed without prepayment of fees and costs, “[t]he court may request an attorney to represent any such person unable to employ counsel.” The statute seems to assume that the market for representation of prisoner claims will sometimes fail and plaintiffs with meritorious claims will be “unable to employ counsel.” Judge Posner appears to ignore this legislative judgment.
Thus, the market test is puzzling. It does not rest on a thorough economic analysis, nor is it consistent with the statute it is designed to implement. To understand the apparent problems of the market test, I turned to Judge Posner's jurisprudence, and there I found a possible clue to the mystery. In the last several years, Judge Posner has begun to articulate a judicial philosophy—Posner might prefer to call it a method—that he calls pragmatism. This approach rests upon “a rejection of a concept of law as grounded in permanent principles and realized in logical manipulations of those principles, and a determination to use law as an instrument for social ends.” Judge Posner's pragmatism has three essential elements: (1) “a distrust of metaphysical entities (‘reality,’ ‘truth,’ ‘nature,’ etc.) viewed as warrants for certitude,” (2) “an insistence that propositions be tested by their consequences,” and (3) an insistence that projects be judged “by their conformity to social or other human needs rather than to ‘objective,’ ‘impersonal,’ criteria.” The thesis of this Article is that the market test is better understood as an example of Judge Posner's pragmatism than as an example of his economic analysis.
The market test and the opinions that contain it display all of the hallmarks of pragmatic decision-making as defined by Judge Posner. First, a judge who is a pragmatist will sometimes interpret statutes freely and adapt the law to address surrounding circumstances, which may have changed since the statute's enactment. As Judge Posner proposes his market test and advocates a presumption against appointment of counsel in prisoner cases, he attempts to adapt § 1915 to address the deluge of prisoner cases in the federal courts. Second, Judge Posner believes the market test will solve a specific problem and achieve a desirable social end: the reduction of meritless prisoner litigation in the federal courts. Third, the market test appears to rest, at least in part, upon Judge Posner's beliefs about the purposes of punishment and the utility of prisoners' civil rights litigation. He calculates the costs of prisoner suits to be quite high and the benefits of such litigation to be very low. Judge Posner trusts that most reasonable people agree with him, and he draws confidence from the sense that he is within the mainstream of popular opinion on the issue. Finally, out of a pragmatist's respect for competition in the marketplace of ideas, Judge Posner employs the full force of narrative, vivid imagery, and “emotive argument” in order to persuade his reader.
In two important ways, however, Judge Posner's market test and the opinions that propose it fall short of his own standard for pragmatic decision-making. The test fails to account fully for the circumstances of the people affected by it. Judge Posner shows little curiosity about the way prisoners live. Although Judge Posner touts the virtues of empiricism, he makes sweeping assumptions about the motivations and limitations of prisoner litigants with meager empirical support. Moreover, though nine years have passed since he first proposed the market test, in recent discussions of the test he expresses no concern about the way judges and lawmakers have reacted to his proposal. He does not ask whether other courts have adopted it, and if they have, whether the test has reduced the burden of frivolous prisoner litigation on the courts and local lawyers. For all his enthusiasm about the scientific method, Judge Posner shows little interest in the market test's success in the legal laboratory. Because Judge Posner fails to recognize the full consequences of the test and learn as much as possible about the context in which the test is to be implemented, the market test is a flawed example of pragmatic decision-making.
Section II of this Article presents a brief history of the market test. It describes applicable legislation and case law at the time Judge Posner introduced his market test and explains what happened in the cases in which the market test emerged. Section III presents a brief critique of the market test. This section also places the problem in the context of Judge Posner's own theory about statutory interpretation by judges. Here we see that the market test may be inconsistent with Posner's theories of statutory interpretation, judicial restraint, and economic analysis of law. In many ways, however, the test is consistent with Judge Posner's more recent jurisprudence, as it reflects his growing reliance on pragmatism and practical reason. Section IV compares Judge Posner's writings about pragmatism to his own judicial writing in the market test opinions and finds that in these opinions he successfully implements many of his own principles of pragmatic decision-making. On the other hand, this section also explains how the market test and the opinions proposing it fall short as pragmatic texts. The Article concludes on a cautionary note, expressing some of the concerns we might have if the market test illustrates the sort of pragmatism Judge Posner prescribes for the federal courts.
About the Author
Jennifer Gerarda Brown. Assistant Professor of Law, Emory University School of Law.
Citation
66 Tul. L. Rev. 1117 (1992)