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.