Something called the American Law Institute held its annual meeting this past week in Washington. Haven't heard of them? That's why they're dangerous. The ALI is a group largely consisting of legal academics (watch out!) that purports to put out various model codes, and also to summarize the common law of things like contracts and torts in big multivolume works called "Restatements," all for the supposed edification of legislatures and judges. But being the bunch of lefty academics that they are, these guys can't resist any opportunity to try to sneak the latest campus fad into the law. This year that took the form of an attempt to put a so-called "affirmative consent" rule as to sexual conduct into the ALI's model penal code. It would have been big news if the proposal had passed, but on Tuesday it actually got voted down. In case you think that the ALI may actually have been overcome by good sense, don't forget that this proposal is very likely to be back next year, and again the year after, and so on.
But even as what had looked to be the big piece of news out of the conference fizzled, along came Supreme Court Justice Sonia Sotomayor to shake things up. In a Q&A session, as reported in the National Law Journal here, ALI director and recent-past NYU Law Dean Richard Revesz asked Sotomayor what should be done about the "dearth of legal services for low-income individuals." Here is how the NLJ reported her response:
“I believe in forced labor” when it comes to improving access to justice for the poor, she said during an appearance at the American Law Institute’s annual meeting in Washington. “If I had my way, I would make pro bono service a requirement.” . . . [P]rofessional and ethical duties require [pro bono service], Sotomayor insisted. “It has to become part of their being,” she said.
You probably know that most of the Supreme Court Justices don't get out and do a lot of public speaking, and now you can see why. It only took Ms. Sotomayor a couple of sentences to give you a thoroughly revealing picture of how the mind of the left-wing jurist works. Let's analyze.
Start with Dean Revesz's question about the "dearth" of legal services for the poor. The existence of a desperate shortage of legal services for the poor is a total article of faith among the great and the good of the legal profession -- for example, among the leaders of organizations like the American Bar Association and the New York City Bar. But is there really such a "dearth"? It should not escape our notice that, according to the leaders of the legal profession, in spending scarce public funds to assist the poor, the government's highest priority should be to spend the money -- not on the poor themselves, but -- on lawyers! There's more than a little reason for skepticism.
Well, what is the evidence (if any) of this huge shortage? Look around a little and you will find that the most cited "studies" supporting the proposition of a terrible shortage of legal services for the poor are two reports put out by the federal Legal Services Corporation, in 2005 and 2009, the second co-sponsored by none other than the ABA. Yes, the LSC is the federal agency that collects money from Congress and dispenses it to grantees to provide legal services to the poor. In other words, these two "reports" from LSC are nothing more than the usual federal agency self-servingly seeking more money for itself. Only in the most high-minded terms, of course (we need to provide "equal access to justice" and end the "justice gap"!). And the methodology? They went around the country asking their own people how much "unmet need" was out there.
Perhaps we should ask the relevant question: If the idea is that legal services are to be provided to the poor at no charge to the recipient in a socialist "to each according to his needs" model, is there any chance that there will ever be no "unmet need"? Of course not. This is really the same as asking when there will be enough food to go around in Venezuela. Demand for free stuff always exceeds the supply, and government efforts to meet the demand with other people's money always fall short. That's the essence of socialism.
But of course Justice Sotomayor did not push back on the premise of the question. Questioning the necessity of unlimited free legal services for the poor is just not something that is done in the polite circles where she circulates, including the ALI. And then, with the premise accepted, it takes Sotomayor all of the blink of an eye to go right past "we need more of the infinite free government money" and get to "forced labor" as the answer. If the lawyers aren't providing voluntarily and for free all the services that anyone without resources might want, then they must be forced to do it. Hey, it's only fair!
Am I the only one who finds it a little odd that someone who is supposedly on the front lines of protecting the rights of the citizenry found in the U.S. Constitution would see no problem in advocating for "forced labor" (her term)? Granted, since the abolition of slavery after the Civil War, not a lot of cases come up under the 13th Amendment ("Neither slavery nor involuntary servitude . . . shall exist within the United States . . . ."); still, the terms of that Amendment are rather clear and definitive. (Ilya Somin of George Mason Law School has a lengthy post here on the details of the jurisprudence under the 13th Amendment. For example, there was the military draft -- but you did get paid if you were drafted and served.) But I would have little doubt that a Breyer or a Ginsburg or a Kagan would see eye to eye with Sotomayor on this one.
Make no mistake, the world of legal "pro bono" as currently practiced is very much a project of the progressive left, in which they would like all potential dissenters to be forced to participate. There is much legitimate pro bono work. For example, defense of people charged with crimes, and with their freedoms at stake, is an area where nearly all would agree that the indigent should have free representation. But in fact almost all representation of the indigent in criminal matters is done by lawyers paid by the government. The large majority of what goes under the banner of "pro bono" is about other things, mostly civil. A very very large proportion consists of chasing the government itself for various handouts and entitlements that, it turns out, may not be so easy to collect on. Another big area of pro bono at my old law firm was representing tenants in rent-regulated buildings against landlords seeking to evict them. The underlying philosophy is that the best way to "help" the poor is to navigate them through the legal labyrinth so that they can get more benefits, entitlements, and handouts. In the big picture, this is the way the government keeps the poor poor. Does this cause really justify forced labor?