Volition and Voltaire: A Response to Professor Bagenstos

By Tom Lininger[*]

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[Editor's Note:  This piece is the third part of a dialogue between Lininger and Samuel Bagenstos.  Bagenstos's previous post is here; it was a response to Lininger's article, From Park Place to Community Chest: Rethinking Lawyers' Monopoly, 101 Nw. U. L. Rev. (forthcoming 2007), 101 Nw. U. L. Rev. Colloquy 155 (2007) (link).]          

My hat is off to Professor Sam Bagenstos.   Not only has he made a number of incisive points in his reply to my essay, but his record as a civil rights attorney provides a superlative model of public-spirited lawyering.   Unfortunately, most attorneys lack Professor Bagenstos's motivation to advocate for the public good.   Given this reluctance, a system that relies primarily on lawyers' voluntary choices will continue to underserve the legal needs of the poor.   The status quo simply isn't working.

Mandatory Pro Bono and Private Attorneys General

By Samuel R. Bagenstos[*]

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[Editor's Note:  This piece is a response to Tom Lininger's article From Park Place to Community Chest: Rethinking Lawyers' Monopoly, 101 Nw. U. L. Rev. (forthcoming 2007), 101 Nw. U. L. Rev. Colloquy 155 (2007) (link).]          

Not to put too fine a point on it:  Professor Lininger[1]  thinks Professor Rhode[2]  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, "If I Had a Hammer").  But it's the best system of civil rights enforcement we've found.

From Park Place to Community Chest: Rethinking Lawyers' Monopoly

By Tom Lininger

Editor’s Note:  This week we deviate from our standard Colloquy Essays and Posts format to publish a special feature, a Review Essay forthcoming in the Northwestern University Law Review.   In this Essay, Professor Tom Lininger reviews Pro Bono in Principle and in Practice:   Public Service and the Professions by Deborah L. Rhode, and pleads to the legal community to exceed Prof. Rhode's rather modest suggestions for curing our current pro bono crisis.   He suggests several courses of action aimed at mitigating our current dearth—indisputable whether measured against other professions or other nations—of altruistic legal representation, including greater focus in law schools and a mandatory minimum hours of pro bono commitment by members of state bars.

Download the PDF here.

The Use and Limits of Martin-Quinn Scores to Assess Supreme Court Justices, with Special Attention to the Problem of Ideological Drift

By Ward Farnsworth[*] [pdf]

[Editor's Note:  This piece is a response to a forthcoming article in the Northwestern University Law Review by Lee Epstein, Andrew D. Martin, Kevin M. Quinn and Jeffrey A. Segal, titled Ideological Drift on the Supreme Court:  Who, When and How Important?, 101 Nw. U. L. Rev. (forthcoming 2007).  We posted an introduction to the piece by Epstein et al., 101 Nw. U. L. Rev. Colloquy 127 (2007), http://www.law.northwestern.edu/lawreview/colloquy/2007/8/ (link).]

In their new paper, Lee Epstein, Jeffrey Segal, Andrew Martin, and Kevin Quinn investigate changes in behavior by Supreme Court Justices.[1]  They conclude that the policy preferences of most Justices change during their careers, and suggest that this should cause Presidents to reconsider the use of nominations to try to change the direction of the Court.[2]  I find the authors' evidence and analysis interesting, but am not yet convinced that any rethinking is in order by the people who pick Justices or care about their selection.  I will begin with a general discussion of the model—the Martin-Quinn scores—that the authors use to generate their findings.  It is an ingenious method that is attracting some wider interest,[3] but its basis and workings have not yet been presented in a non-technical fashion that is likely to be understood well by a legal audience.  One goal of this Essay is to explain it in lay terms.  Then I will consider the particular claims the authors make and, finally, their more general thesis about the predictability of behavior by Supreme Court Justices.  My two conclusions, in short, are that the authors have not proven that consequential surprises in the Justices' behavior are more common than has been generally supposed; and that the authors' advice to Presidents (and others interested in the selection of Justices) is premature, because the behavior of some Justices is more predictable than that of others, and this itself can often be predicted by asking how firmly the Justices demonstrated their views before joining the Court.