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POSNER, PRISONERS, AND PRAGMATISM

NCJ Number
147454
Journal
Tulane Law Review Volume: 66 Issue: 5 Dated: (May 1992) Pages: 1117-1178
Author(s)
J G Brown
Date Published
1992
Length
62 pages
Annotation
A proposed method to reduce prisoner litigation in the Federal courts is discussed.
Abstract
This article focuses on one of Judge Richard A. 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 has been unable to retain counsel, Judge Posner argues, a court can infer that the claim has insufficient merit to justify appointment of counsel. The author of this article argues that the market test does not rest upon a solid economic analysis and 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, claims the author, is better understood as pragmatism than as economics. A brief history and critique of the market test are provided. A comparison of Judge Posner's writings about pragmatism to his judicial writing in the market test opinions also is provided. The author concludes by expressing some of the concerns raised if the market test illustrates the sort of pragmatism Judge Posner prescribes for the Federal courts. Footnotes