If we are to assess the viability of 100% access to justice solutions, we must at least begin to have an economic model for what 100% access means, and particularly for whether we can regard services as sufficient in any particular context. This can help lead to a more realistic estimate of resources likely to be consumed by any comprehensive solution. Let me suggest this way of thinking about it.
Traditionally, those whose resources are generally unconstrained (rich folks) employ a marginal return analysis. That is to say that when an additional thousand dollars of investment in legal expenses is not anticipated to yield more than the thousand dollars would generate in ultimate return through another investment, then the investment is not made. If the matter is not economic, they put all it needs to have the very very best chance of winning.
Middle income people, facing many other pressures on their budgets, and without access to capital, apply a different test, at least in the real world, comparing the possible benefit of the legal fee against the other things they need to spend money on, food, shelter, education, etc. and they do so on a much shorter time horizon, i.e they ask if they have to do it.
The poor have very few resources, so the choices are family borrowing (if available), self-representation, or legal aid (if they can successfully steer their way through an access maze largely intended to reduce demand to a fraction of what it would otherwise be. Once litigants are through the maze, however, if they get representation, most programs then do not apply any kind of marginal return test. They give it everything they have. This is close to the Medicare and Medicaid models. (Although Medicaid has many controversial cost control and service limitation mechanisms, as well as, now alternative incentive funding structures.) This is justified as ensuring that the poor are treated properly at least somewhere, as a means to keep the system honest, and perhaps in terms of craft pride.
In other words, the traditional community-based legal aid view is to treat as many of the poor as possible as if they were so rich that they need not have to worry about opportunity costs. Over time however, as more and more of legal aid cases are handled through other than full representation, we know that forms of triage and methods of assessing how much a case is “worth” are playing a larger and larger role.
The problem is that because the rich on the one hand, and everyone else on the other, use a very different analysis, the resources used are unequal, even when if the two sides had equal ultimate resources, they would choose to spend the same resources. The gap between what the equal players would invest, and what the unequal ones are able to do, is almost really what we measure as the justice gap. The question is what can be done to minimize this. Another question is how much this needs, as a matter of social policy to be done, and how can the cost of doing so be minimized.
So, in a perfect equal access system, everyone would have the support resources to get the services they would pay for if they did not have opportunity costs (i.e if they did not have other needs). Obviously, in the real world this is impossible, so we need a measure of 100% that is viable, justifiable, and meets the needs of both the individuals, and society as a whole.
An alternative measure is to ask when a additional investment would not significantly increase the person’s chance of obtaining an outcome that is responsive to their needs and interests. In other words this is not perfection, or even optimization, rather it provides access rather than a guarantee. In a sense, such a model places the task of perfection on the decision-maker, not on the services provided to the litigant or client.