Wednesday, October 15, 2008

Is pro bono litigation wasteful? Antisocial? If so, compared to what?

Curmudgeons are often useful: they often make one think. But -- being curmudgeons -- they often oversimplify. I do not know if Judge Dennis Jacobs -- Chief Judge -- of the United States Court of Appeals for the Second Circuit is a curmudgeon; I do not know him personally. But if some reports -- see, e.g., here -- are accurate, it is not unfair to say that he made some curmudgeonly remarks recently.

One of his curmudgeonly complaints -- the least important of his complaints in that vein -- rings true. He seems to complain that people who do pro bono work scratch each others' backs by honoring each other with awards and other such things. (One naturally wonders if Judge Jacobs had some particular honoree in mind.) Of course, this sort of sycophantic and narcissistic group self-promotion is not limited to luminaries in the field of legal pro bono work. One finds the same sort of thing in the law school world. (But one wonders if excessive Kantian or Calvinistic agonizing about the purity of one's motivations might lead to honors not being bestowed when honors are due.) Sycophantic self-admiration is also painfully apparent at events hosted by the White House. Is it possible that social self-preening and group self-advancement even infect the judiciary? (Having made the suggestion, I must rush to withdraw it. Surely judges are beyond all that: surely they care only about the public good -- or the law or ... whatever.)

Judge Jacobs's other complaint is more substantive. He asserts that pro bono litigation is anti-social. Why so? Well, in part because, he argues, the people who control such litigation do not have to bear the adverse consequences of the results of their ostensibly public-spirited activities.

Hmm, ..., well, there's a thought for you.

Caveat: I am relying only a fragmentary account of Judge Jacobs's comments. I have no doubt he also asked whether litigation motivated by profit is more pro-social than pro bono litigation. It might be hard to demonstrate that the motivations of lawyers and clients who not purport to act for the public good are more pro-social than those people who do profess to litigate for the public good. So I assume -- I have to assume -- that in the case of private non-pro-bono litigation Judge Jacobs carefully analyzed and explained why the decision makers - corporate counsel, CEOs, hired legal help, etc. -- do realize that if their litigation activities harm the public good they, these self-interested actors, will personally suffer the socially-harmful consequences of their litigation decisions. (We know that self-interest works in financial markets: greed is good [except, of course, under very special circumstances such as the present financial crisis].)

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