The Biggest Weakness of Conservative and Libertarian Public Interest Law:

In previous posts, I have discussed the rise of conservative and libertarian public interest law, chronicled in Steve Teles' recent book, The Rise of the Conservative Legal Movement. As Teles shows, groups like the Institute for Justice and Center for Individual Rights have made major inroads in a field once overwhelmingly dominated by the left. However, as Teles notes, the conservative/libertarian public interest movement still has one major weakness relative to its liberal rivals: the comparative paucity of lawyers available to litigate "follow-up" cases that enforce and build on major favorable precedents.

This is a very important shortcoming. One of the most powerful findings of social science research on judicial review is that even the most important precedents don't enforce themselves. Government officials and interest groups will generally do all they can to evade or ignore judicial decisions that restrict their powers. It took some twenty years of follow-up litigation (not to mention congressional intervention) to force southern public schools to obey Brown v. Board. There are many similar, even if less extreme, examples. In some cases, necessary follow-up litigation can be conducted by business interest groups with a financial stake in the outcome. For example, abortion clinics did some important follow-up litigation after Roe v. Wade. However, this will rarely be true of cases where the most important beneficiaries of a decision are poor or politically weak. In such situations, pro bono efforts by private attorneys can play a crucial role. And the poor and politically weak are the most important potential beneficiaries of libertarian public interest efforts in the fields of economic liberties and property rights, among others. The wealthy and powerful can usually defend their property rights and other economic interests in the political process and therefore have much less need for judicial protection.

As Teles describes in his book, liberal public interest lawyers can rely on an extensive network of attorneys in private law firms and bar associations to do follow-up work for them on a pro bono basis. Despite some modest efforts to create a parallel network, conservatives and libertarians lag far behind in this field. It is no accident that top lawyers at both IJ and CIR identified this as probably the most important weakness of right of center public interest law.

There are several possible explanations for this disparity, some of which I may discuss in a future post. But whatever the explanation, it's a serious problem that needs greater attention. Over the years, the Institute for Justice has tried to address by creating its "Human Action Network" to stimulate pro bono efforts, and by sponsoring summer clerks and law student conferences (my own interest in property rights issues stems from my time as a n IJ summer clerk in 1998). However, a great deal remains to be done, and no one group can possibly do it by itself.

UPDATE: Tim Sandefur of the Pacific Legal Foundation (a prominent libertarian public interest law firm) responds to this post by noting that PLF does do some important "follow up" litigation, and that it's not realistic to expect them and other similar groups to do much more of it, given resource and time constraints. I think Tim perhaps misunderstands my point (which may be a consequence of my not explaining it as well as I should have). It's not that PLF and other public interest firms should do the follow-up litigation themselves, but that there should be an infrastructure for having it done by outside lawyers (such as pro bono lawyers working at ordinary law firms); this is how liberal public interest "follow up" work gets done. I recognize that it's impossible for public interest law firms to do more than a small number of such cases on their own. That's precisely why they need a network of outside supporters to help them with it.