Legal Commentary

Addressing the Most Important Weakness of Conservative-Libertarian Public Interest Law

By Ilya Somin

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).

Full post as published by The Volokh Conspiracy on December 10, 2009 (boomark / email).