Counterbalancing Distorted Incentives in Supreme Court Pro Bono Practice: Recommendations for the New Supreme Court Pro Bono Bar and Public Interest Practice Communities
NYU Law Review, Vol. 86, p. 131, 2011
77 Pages Posted: 1 Oct 2010 Last revised: 13 Sep 2011
Date Written: September 30, 2010
The emergence of a new Supreme Court Pro Bono Bar, made up of specialty practices and law school Supreme Court clinics, has altered the dynamic of litigation related to public interest issues. The new Bar often brings expertise in Supreme Court litigation to cases where there may otherwise be a dearth of resources to support high quality lawyering. But at the same time, this new Bar is subject to market pressures that can be expected to have important consequences. This article shows how members of this new Bar are engaged in a race for cases that will provide an opportunity to handle Supreme Court cases on the merits. At the certiorari stage, this Bar can be expected to engage in truncated case analysis, avoid coordination with lawyers handling similar cases, and otherwise make decisions that are influenced by each firm’s interest in being in a position to handle cases before the Supreme Court on the merits. Moreover, throughout the litigation, this Bar may be influenced by the merits opportunity that provided the incentive to take the case in the first place. This article explores the implications of this new dynamic in Supreme Court litigation for both pro bono practices and public interest practice communities. With respect to pro bono practices, this article proposes principles that firms could adopt, including principles that relate to the selection of cases for free representation and those that relate to the nature and kind of representation that the pro bono practices provide to a client once the firm has taken on representation. With respect to public interest practice communities, this article considers the strategic decisions that practice communities face in light of the new Supreme Court Pro Bono Bar. This article argues that practice communities must anticipate Supreme Court activity on the issues that interest them and must learn constructive ways of engaging both with lawyers whose cases might be possible targets for a petition for writ of certiorari as well as members of the Supreme Court Pro Bono Bar.
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