Mandatory Pro Bono and Private Attorneys General

Not to put too fine a point on it: Professor Lininger1 thinks Professor Rhode2 wimps out. Her "heart is in the right place," but she too readily draws back from proposing mandatory pro bono service.3 In this brief response, I want to up the ante. If Professor Lininger thinks Professor Rhode is a wimp, I think they're both hopeless goo-goos.4 We currently have a system of civil rights enforcement that harnesses the profit motive of plaintiffs' attorneys to encourage the prosecution of violations of civil rights laws. That system may seem crass and disreputable to those who believe that lawyers should bring civil rights actions out of the goodness of their hearts (perhaps while singing "Kumbaya" or, for those of a more lefty persuasion, "IfI Had a Hammer"). But it's the best system of civil rights enforcement we've found. Unfortunately-and this is a point to which neither Professor Lininger nor Professor Rhode give any real attention-a system of mandatory pro bono may undermine that system. It may do so, moreover, without providing significant countervailing benefits for civil rights enforcement. The implications of this analysis extend beyond the narrow context of civil rights litigation. The lessons one can draw from that context suggest that pro bono-mandatory or otherwise-ought not to be the major focus of any effort to improve legal services for disadvantaged people. I. THE PRIVATE ATTORNEY GENERAL SYSTEM AND CIVIL RIGHTS ENFORCEMENT Civil rights laws don't enforce themselves.5 Although some discriminatory acts occur because of the simple inertia of longstanding and unquestioned practices, most people who discriminate do so either because they want to, because of cognitive bias, or because it is rational for them to do so.6 Without a meaningful threat of enforcement, those discriminators are unlikely to comply with a law that bans discrimination. The threat of enforcement encourages individuals to cease discriminating and organizations to root out and counteract the (perhaps unconscious) discrimination that occurs within their ranks. But finding an effective means of enforcement is difficult. Individuals whose rights are violated are unlikely to reliably carry the enforcement load on their own. For one thing, enforcement of civil rights laws is in significant respects a public good. Because civil rights laws tend to protect against class-based discrimination, a single civil rights claimant necessarily vindicates not just her own interests but also the interests of others in her class.7 Any given successful civil rights claimant cannot appropriate all of the benefits of her success, so she will have an insufficient incentive to pursue the level of enforcement that most benefits her class. Moreover, civil rights enforcement is expensive, time consuming, and technical.8 Even in cases that are relatively easy on the merits, civil rights claimants often must present expert testimony, which they and their lawyers may have difficulty locating and paying for.9 And-whether because of statutory limitations or because of the Eleventh Amendment-many civil rights laws authorize only injunctive relief and thereby make it impossible for civil rights claimants to entice attorneys with the prospect of a contingent fee. One might think that public interest groups, or private attorneys working pro bono, take up the slack for the profit-making plaintiffs bar. But they do not. "[M]ost civil rights litigation is not brought by institutional litigators or by large firms engaging in pro bono activity," but by individual lawyers who are trying to make a living.10 Public interest organizations tend to focus on the few large-scale law reform cases at the expense of the important day-to-day enforcement work of individual cases.11 And pro bono is very rarely deployed for civil rights cases-particularly civil rights cases against businesses.12 Market-based private enforcement of civil rights therefore seems like it will be insufficient to serve the public interest reflected in civil rights statutes. …