Summary
"[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. The Court has, for example, held in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources that a plaintiff is not a "prevailing party," and therefore cannot recover fees, if her lawsuit merely spurs the defendant to abandon the challenged practice voluntarily, without a judgment, consent decree, or similar judicial order.\n The proposal for mandatory pro bono is no doubt well intended, but it appears likely to impose significant costs on potential civil rights plaintiffs without much countervailing benefit to them.
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Mandatory Pro Bono and Private Attorneys General[Dagger]
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 tha...See the full content of this document
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