Supreme Court Justice Sonia Sotomayor opened a can of worms at the American Law Institute when she announced that she was in favor of “forced labor,” a very curious choice of words.
U.S. Supreme Court Justice Sonia Sotomayor said Monday that all lawyers should be required to provide pro bono legal services.
“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.”
Sotomayor made the comment in response to a question from institute director Richard Revesz about the dearth of legal services for low-income individuals.
The justice said she was aware of programs—like New York state’s—that make pro bono work a requirement for admission to the bar. She also acknowledged that some critics say lawyers who are compelled to work for free “may not give their best effort” to the task.
But professional and ethical duties require it, Sotomayor insisted. “It has to become part of their being,” she said.
On the one hand, it’s more than a little disingenuous, coming from a person who has never spent a day of her professional career not sucking on the public teat.* From prosecutor to judge, Sotomayor got a paycheck and a pass on those “professional and ethical duties” of which she speaks.
But on the other hand, a Supreme is in a position to offer opinions that matter, not because they’ve lived their lives consistent with the beliefs they seek to impose on others, but because they get to vote on cases, write opinions, that dictate what we do regardless of whether their views are slightly hypocritical. So, when a justice favors “forced labor,” we listen.
At Volokh Conspiracy, Ilya Somin calls Sotomayor out for promoting
slavery involuntary servitude, a violation of the 13th Amendment.
Imposing forced labor on lawyers (or anyone) is a violation of the Thirteenth Amendment, which forbids “involuntary servitude” as well as slavery. Admittedly, such a program might well be permissible under existing Supreme Court precedent, most notably the Court’s 1916 decision in Butler v. Perry, which ruled that the Amendment does not bar a (likely racist) Florida law forcing people to work on roads. But Butler was a badly flawed decision for reasons I outlined here.
Nah. Law is a licensed profession, and imposing conditions on those enjoying the benefits of licensure is hardly slavery. We get the benefit of a monopoly and with it comes the detriment of conditions. We’re required to do a bunch of things, some silly like continuing legal education (which not only sucks up time, but usually comes out-of-pocket as well), and some serious like complying with ethical mandates. This isn’t a Butler v. Perry problem, and calling it slavery is hyperbolic.
But just because a condition can be imposed doesn’t mean it should.
If we can impose it on lawyers in order to provide legal services to underserved populations, why not on members of other professions, anytime we think forcing them to do additional work might benefit some underserved group or promote some other societal interest?
Putting aside the deeply disturbing acceptance of the undifferentiated category of “underserved populations,” which has become a very trendy notion in academia with almost no scrutiny, likely because those who talk about it have never gone anywhere near a poor person in need of representation, the analogy is strong.
Why lawyers? The answer is fairly easy to divine. We remain a privileged guild in the public’s consciousness, gouging ridiculous sums of money from those less fortunate by using our monopoly abusively. For some lawyers, this is true. For most, it’s not. For most new lawyers, it’s a joke, as they awake in the middle of the night trying to understand why they made such a foolish choice and how they’ll survive their student loans while asking if the “underserved population” wants to supersize.
Ilya comes at this by way of comparing law with other licensed and regulated businesses, which range from barbers to auto mechanics. Why only lawyers, Sonia? If the poor got free haircuts, they would have more money available for lawyers. If their cars were repaired for free, or better still, medallion cabs were required to give them free rides, they would have more money for legal needs.
In her remarks, Justice Sotomayor recognized that lawyers performing forced labor “may not give their best effort.” But she offered no solution for this problem other than urging that lawyers must make compelled pro bono work “part of their being.”
Rhetoric like “part of their being” is similarly fashionable, empty but heartwarming lingo that empathetic folks adore. Except it’s not “best effort,” but competency, that’s at stake. Lawyers get undifferentiated licenses, but that doesn’t mean we’re fungible. Assign a Biglaw M&A lawyer to defend a tenant, and watch him google map his way to the courthouse, a place he’s never seen before in his 37 years of practice. He’ll do great, right?
But there is a far bigger question that few ask and fewer still address. How did law become so pervasive in our society that everyone, rich and poor alike, needs a lawyer of their own to function? We regulate, if not criminalize, every aspect of modern life short of how many sheets of toilet paper we’re allowed to use per wipe. And if anything, it’s getting worse despite the simultaneous calls to end over-regulation and criminalization, as people decry one area of regulatory excess while crying sad tears over the need for brand new, never-before-conceived, avenues for governmental control over our world.
Putting aside the question of whether the government should be involved in our every breath, if our empathetic society demands a law or regulation covering everything, such that it turns every poor person into a litigant, then fund your mandates. Your demand for law to cure all your perceived societal ills doesn’t become the lawyer’s burden.
Get off our backs. We already give plenty to those in need in pro bono, and nobody gives us a free lunch in return. But your passionate feelz come at a price, and it’s not the lawyer’s duty to pay it so you can feel all good about yourself while we clean up the empathetic mess you made.