I recently renewed my membership in the Federalist Society, and got a mailing asking to sign up with the Fed Soc Pro Bono Center. I was only vaguely aware of this organization’s existence, even though it is a potentially important effort to address the most important shortcoming of conservative and libertarian public interest law. Perhaps it will be more successful in that effort, if more people learn about it.
Over the last 30 years, conservative and libertarian public interest firms such as the Institute for Justice, the Center for Individual Rights, and the Pacific Legal Foundation have mounted a strong challenge to the previously dominant legal left, and won some important legal victories for property rights, economic liberties, and limits on government power. However, right of center public interest law suffers from a key weakness: the paucity of lawyers available to conduct follow-up litigation to enforce favorable precedents. Even the most important federal and state supreme court decisions don’t change the legal landscape all by themselves; they usually require extensive follow-up litigation to make sure that government officials comply and that their principles are enforced in other cases where similar issues come up. Often, the people victimized by government violations of constitutional rights are poor, politically weak, or unable to engage in protracted litigation to vindicate their rights. This is true in the area of property rights, and many others of interest to libertarians and conservatives. Left-liberal scholars and activists have long understood this crucial lesson, and they have created an extensive network to facilitate follow-up litigation to enforce their high court legal victories. In almost every major law firm, there are lawyers who do small-bore pro bono cases on behalf of various left-wing causes. These cases often build on and enforce favorable appellate decisions.
By contrast, conservatives and libertarians have been slow to grasp this point and act on it. That isn’t just my opinion. It’s also the view of Steven Teles, author of the leading academic work on right of center public interest law, and also of prominent leaders of conservative and libertarian public interest organizations, such as Chip Mellor, President of the Institute for Justice and the leaders of CIR (interviewed in Teles’ book).
The Fed Soc Pro Bono Center is a thoughtful effort to address the problem. The premise is simple: interested lawyers sign up at the Center’s website, and give their contact information, areas of expertise (e.g. — property rights, First Amendment, religious liberties, criminal law), what kind of work they can do (trial, appellate, etc.), and how much time they have per month. The Center then matches them up with public interest firms and other organizations that are looking for lawyers to work on specific cases (these organizations can also sign up at the website, and provide information about their needs). I doubt that the Pro Bono Center can cure the greatest weakness of conservative/libertarian public interest law all by itself. But it’s a step in the right direction. IJ’s Human Action Network is an older, somewhat similar initiative (but one that doesn’t have an explicit case-matching system).
Most lawyers, especially those working at large firms, have at least some time to do pro bono work. Indeed, senior partners often encourage junior associates to so such work because it is a great way for younger lawyers to get useful experience. At many firms, partners are happy to have associates take on such work even if they don’t necessarily agree with its ideological orientation; after all, it’s still valuable experience that can benefit the firm when the associate uses what he or she has learned in later work for paying clients. Obviously, there are also career benefits to the lawyer himself. Getting useful litigation experience can help your career, and it’s often easier for a young lawyer to get major responsibility on a pro bono matter than in a case on behalf of a paying client.
Conservative and libertarian law students often ask me what they can do to promote the cause of free markets and limited government if they are unable or unwilling to go into public interest law or academia. Here’s my answer to that perennial question: They also serve who litigate unglamorous but essential follow-up cases. Few important legal precedents ever amount to much without them.
CONFLICT OF INTEREST WATCH: I have done various pro bono work for the Institute for Justice myself, and serve on one of the Federalist Society’s practice group executive committees (an unpaid position).
ArthurKirkland says:
I’ve never sensed that libertarian causes lack the support of altruistic lawyers, at least not with respect to the half of libertarianism that overlaps liberalism rather than conservatism.
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December 10, 2009, 8:14 pmIlya Somin says:
I’ve never sensed that libertarian causes lack the support of altruistic lawyers, at least not with respect to the half of libertarianism that overlaps liberalism rather than conservatism.
Obviously, libertarian causes benefit from the efforts of liberal lawyers in areas where liberal and libertarian agendas overlap. The libertarian-conservative public interest law movement, however, focuses more on those areas where they conflict: property rights, affirmative action, campaign finance, economic liberties, and so forth.
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December 10, 2009, 8:37 pmArthurKirkland says:
Libertarians should be grateful for the libertarian-liberal public interest law movement, and hope that the libertarian-conservative movement is as helpful to their cause.
While rooting hard, of course, against social conservatives.
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December 10, 2009, 8:56 pmarbitraryaardvark says:
I’ve spent my legal career trying and failing at this sort of thing.
I attribute the failing part to my own shortcomings and ineptitude — I still think it’s a good business model. The post tends to mix up two concepts. It should not be asssumed that cases furthering the causes of liberty can’t pay for themselves. There are at least three sources of revenue. 1) damages. Always ask for damages, and always research viable legal grounds for your damage requests. Too many cases just seek injunctions or declaratory judgments, so that when they win they don’t really win anything, just slow statists trends a little. On this subject, when defending any case, especially one brought by the government, look for counterclaims.
2. fee shifting statutes. An example of a conservative form doing libertarian cases and generating over a million $ in fees year after year is James Bopp’s firm in Terre Haute IN. Every case seeks fees under 42 USC 1983, and usually gets them.
3. Paying clients. There are two types of paying clients. One set is the “principle of the thing” type. I worked on contract for a lawyer friend who represented a group of reptile dealers, who felt their rights were violated after a raid at a trade show. We lost, but they paid their bill and haven’t been raided again. The other group is people who have deep pockets — they have property, want to keep it, and it’s a reasonable business decision to spend some money on lawyers. These clients won’t just walk in the door — you need to make some rain.
I got into this area expecting I would work with the Libertarian Party on ballot access cases. I’m a fan of Richard Winger’s work in that area. Got side tracked and most of my cases are about anonymous campaign speech. The precedents were set back in the 60s, it’s just a matter of doing the followup work state by state county by county. At first I thought it would be a quick project and that then I’d move on to the next one, maybe flag burning, but it turns out there’s a lifetime of work just on campaign speech cases.
One of my main bottlenecks is a lack of cocounsel in other states. It would be useful if there were some central clearinghouse of people willing to be local counsel for libertarian/conservaative cases, so that if you found a project that worked in your state you could easily go national and bring cases in any state that’s unwilling to follow what the supreme court has said the law is. I haven’t found that. At one time the NAACP had an organization like that, with Thurgood Marshall at the top doing the work, and got a lot accomplished.
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December 10, 2009, 9:02 pmHadur says:
arbitraryaardvark, what do you mean that you have “failed”. Do you mean that you were unsuccessful in securing pro bono cases for yourself? That you have lost your cases? Or that you have not turned a profit on being a conservative public interest lawyer?
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December 10, 2009, 9:07 pmRandy says:
But — Wouldn’t Ayn Rand oppose pro bono work by anyone?
If you spent the time earning money rather than donating your time, aren’t you helping society much better than giving away your expertise for free?
If people can’t pay for representation themselves, isn’t that their problem?
” At many firms, partners are happy to have associates take on such work even if they don’t necessarily agree with its ideological orientation; after all, it’s still valuable experience that can benefit the firm when the associate uses what he or she has learned in later work for paying clients”
I imagine Ayn would say this is a mere rationalization at best, and untrue at worst. Perhaps the best experience is working for paying clients who will reward you if you do a good job, and punish you if you don’t. Freebie clients have no economic clout to punish you if you screw up the case. And isn’t there someting condenscending about putting inexperienced people in charge of people’s lives? Would you really want a lawyer who’se never been in a court room representing you? And he or she is treating this as a ‘learning experience.?’
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December 10, 2009, 10:02 pmSebastian the Ibis says:
I usually spend at least an extra couple hours a week working on client matters, and not billing for them to avoid a result I don’t like. I’m sure every client has paying clients with legal issues beyond their ability to pay. I have learned an incredible amount going the extra mile to cover every base, often the research is completely superfluous, other times you figure out a new technique to win something huge in either that case or another.
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December 10, 2009, 10:08 pmU.Va. Grad says:
Ayn Rand was a libertarian? News to me.
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December 10, 2009, 11:03 pmIlya Somin says:
Wouldn’t Ayn Rand oppose pro bono work by anyone?
I doubt it. She did not object to people donating their time to promote their ideology (she did it herself in several political campaigns). But even if she would, so what? I’m not a Randian, and neither are most other libertarian and conservative lawyers.
If you spent the time earning money rather than donating your time, aren’t you helping society much better than giving away your expertise for free?
Sometimes yes, sometimes no. If donating your expertise for free helps combat a large-scale injustice like eminent domain abuse or infringements on economic liberties, it could benefit society much more than spending the equivalent amount of time on a paying case.
If people can’t pay for representation themselves, isn’t that their problem?
Perhaps it is if their case affects only their own interests. But if it involves broader legal principles that are important to many other people, then the situation is different.
Would you really want a lawyer who’se never been in a court room representing you? And he or she is treating this as a ‘learning experience.?’
If he were better than any lawyer I could afford to hire for pay, absolutely I’d want to have him.
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PersonFromPorlock says:
Libertarians ought to consider going for criminal rather than civil actions, too, at least in egregious cases. My big criticism of FIRE is that they always go for a negotiated settlement, or, failing that, a civil suit. This means that if Dean Smith is forced to back away from some infringement of a student’s civil rights, Dean Jones at the next college over may still feel that he can infringe in the same way because it’s unlikely his student will sue. And even Dean Smith won’t be all that discouraged from trying again.
But put Dean Smith in prison using civil rights criminal law — or even make a good try at it — and Dean Jones will be much cautioned. Of course, this involves enlisting prosecutors against the Establishment, not an easy thing to do, but the effort would certainly be worthwhile, and not merely for the sort of cases brought by FIRE.
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December 11, 2009, 8:56 am1Ler says:
Although Prof. Somin makes it sound so cut-and-dry, I suspect the need for pro bono volunteers for libertarian-conservative interest groups is heavily influenced by both the ideology and self-interests of many bigger law firms. I get the impression that even the more “white-shoe” firms would rather their associates work on pro bono matters with a higher PR pay-off (help for the homeless, SS disabilities claims, etc.) than just promoting free-market principles and property rights through litigation.
Unlike some posters, I’m open to the possibility of being entirely wrong...
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December 11, 2009, 9:13 amRandy says:
Thanks Illya! My questions were genuine, even though I don’t subscribe to them. Myself, I spend waaaaay too much time on pro bono stuff, and I really need to cut back . But I just wanted to see how a libertarian philosophy squares with pro bono work. I’m not really a big fan of Rand, but many people are, and I wanted to see if they would come to her defense by denouncing pro bono anything. Or at least tell me that I am reading her wrong.
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December 11, 2009, 12:55 pmDavid Nieporent says:
Assuming for the sake of argument that this question is serious rather than snark — I’m feeling generous — no. Not even close. Why would she? Rand is not some left-wing caricature of someone obsessed over accumulating money.
Why would Rand care about “helping society”?
It is, to Rand, if the question is whether they’re somehow entitled to your assistance. It’s not, if the question is whether you want to represent them.
Rand did not oppose charity. What Rand opposed was the notion that need was its own justification for charity, or worse, that need created an obligation on the part of others to provide charity. That people should feel guilty if they didn’t provide charity.
Moreover, the pro bono work that’s being discussed isn’t merely about helping an individual plaintiff, but about shaping the laws in a more liberty-oriented way. Rand certainly would have endorsed that.
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December 11, 2009, 1:21 pmarbitraryaardvark says:
@ hadur: “That you have lost your cases? Or that you have not turned a profit on being a libertarian public interest lawyer?” yeah, some of both.
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December 11, 2009, 5:05 pmTo Have and Have Not says:
I think you’ve nailed it here. Many law firms couldn’t care less about the individuals, or even the principles, involved. They simply want to have the “feel-good” stuff to tout to the public on their websites and to idealistic law students in their recruiting brochures/sites.
If it were that important, why wouldn’t the corner-office partners spend hundreds of hours a year on it rather than dump it on the lowest ranking associates (and then expect those associates to bill 2500 hours a year on top of it)?
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December 11, 2009, 5:18 pmInstapundit » Blog Archive » ILYA SOMIN: Addressing the Most Important Weakness of Conservative-Libertarian Public Interest Law…. says:
[...] SOMIN: Addressing the Most Important Weakness of Conservative-Libertarian Public Interest Law. “Left-liberal scholars and activists have long understood this crucial lesson, and they have [...]
Malvolio says:
I think the underlying question is legitimate: why isn’t public-interest law profitable?
Arbitrary Aardvark believes it can be, despite his own experience to the contrary. Maybe, but assume arguendo that it isn’t.
The answer, I believe, is that the law is a commons. Even had Angel Raich or Susette Kelo won her respective case, she would barely be compensated for her own trouble, let alone her lawyers’ — but the rest of us would (collectively) be hugely better off.
(I wanted to cite some winners of libertarian Supreme Court cases. The most recent I could think of were Alfonso Lopez and Antonio Morrison: a gang-banger and a rapist, and 15-year-old cases at that, not the best examples. Sigh.)
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December 11, 2009, 8:32 pmRobert Fast says:
Well, this post has got me excited. Sign me up! As a hardcore older 3L libertarian (with conservative values) and professional enthusiast, I would be incredibly excited to work on “unglamorous but essential follow-up cases”. I can’t think of anything that would give me more pleasure than to enforce someone’s economic rights against some liberal/big government intrusion that is contrary to already established precedent. (Licking my chops!) I will initially, of course, need the guidance of more experienced and knowledgeable attorneys, but I will stand ready to do the grunt work and put in the dirt time and learn.
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December 11, 2009, 8:39 pmClayton Wood says:
The American Center for Law and Justice is a firm that won the only unanimous opinion in overturning a portion of McCain Feingold. They are active in a variety of follow up litigation exactly as you described. While they are not libertarian by any stretch, when you speak of a paucity of attorneys in this area, you may want to mention one in particular who has been to the Supreme Court over a dozen times and who is playing for the right team.
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December 12, 2009, 1:14 amThe Volokh Conspiracy » Blog Archive » The Harvard Law School Guide to Conservative/Libertarian Public Interest Law says:
[...] response to my recent post on conservative and libertarian public interest law, various law students and others have e-mailed me to ask whether there is a single comprehensive [...]
Federalist Society pro bono center says:
[...] It’s a little-heralded gem, as I can confirm from personal experience [Somin, Volokh] [...]
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