Suffice it to say, this is not the kind of sleuthing the man on the street can afford, and it renders useless the idea of “adequate” legal counsel. If, as in the cases of Eric Bradlee Miller and Ethan Couch, one’s adversary is the state, then letting Couch far outspend Miller in their respective defenses means letting Couch buy himself more justice, even if we could plausibly call Miller’s resources sufficient. And if, as in the case of the families of Couch’s victims, who have vowed to bring civil claims against him, the adversary is another citizen, then justice is basically zero sum. The fact that Couch can far outspend the plaintiffs means more justice for him and less for his opponents—again, even if the opponents’ resources meet some definition of sufficient. Or to put it in terms the other end of the 99 percent might appreciate: One of the fastest-growing businesses at big law firms these days is a practice known as “white-collar criminal defense,” in which former prosecutors and Security and Exchange Commission lawyers are rented out to corporate executives at $1,000 per hour. If you happen to be a junior analyst at Goldman Sachs—somewhat affluent but hardly wealthy—who gets indicted for insider-trading, there’s no way you could afford such high-class talent, and certainly not a team of world-beaters. But why shouldn’t you have the same quality defense that Goldman CEO Lloyd Blankfein would insist on?



Clearly you should. And since there isn’t enough money in the country to allow all of us to spend as much on ourselves as Lloyd Blankfein would—to say nothing of the mega-rich like Bill Gates or Warren Buffett—then we have no alternative: We must limit what Blankfein and Buffett can spend.

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.

Working out the particular amounts would mostly be an empirical question—Big Data can help us figure out what it costs to put together a competent legal team from case to case. But it would no doubt be a messy process that required constant refining and lots of humility. (Bands of permissible spending would probably work better in practice than fixed sums.) Still, what’s important isn’t so much that we get the amounts precisely right from the get-go. It’s not even clear that there’s such a thing as “precisely right” in some abstract sense. What’s important is that we take a critical first step toward making legal rights more equal. In any case, the beauty of the arrangement is that, with the rich and well-connected relying on similar legal resources as the poor and dispossessed, you can bet that any overly strict spending cap will be loosened (and the subsidies raised) soon enough.