Justice Sotomayor's misguided advocacy of "forced labor" for lawyers [updated with a response to Steve Lubet]

In recent remarks at the American Law Institute annual meeting, Supreme Court Justice Sonia Sotomayor advocated "forced labor" for lawyers, in order to expand legal services for the poor:

U.S. Supreme Court Justice Sonia Sotomayor said Monday that all lawyers should be required to provide pro bono legal services.

"I believe in forced labor" when it comes to improving access to justice for the poor, she said during an appearance at the American Law Institute's annual meeting in Washington. "If I had my way, I would make pro bono service a requirement."

Sotomayor made the comment in response to a question from institute director Richard Revesz about the dearth of legal services for low-income individuals.

Imposing forced labor on lawyers (or anyone) is a violation of the Thirteenth Amendment, which forbids "involuntary servitude" as well as slavery. Admittedly, such a program might well be permissible under existing Supreme Court precedent, most notably the Court's 1916 decision in Butler v. Perry, which ruled that the Amendment does not bar a (likely racist) Florida law forcing people to work on roads. But Butler was a badly flawed decision for reasons I outlined here. The Court should overrule it when and if a similar case arises in the future.

Constitutional issues aside, forced labor is a deeply unjust violation of individual liberty. If we can impose it on lawyers in order to provide legal services to underserved populations, why not on members of other professions, anytime we think forcing them to do additional work might benefit some underserved group or promote some other societal interest? If forced labor can be justified at all, it can only be in situations where it achieves some great good that cannot possibly be realized in other ways.

Even if we overlook moral objections, forced labor is unlikely to be a good way to improve legal services for the poor. As experience in the communist world and elsewhere repeatedly demonstrates, forced laborers rarely do good work—especially if the task involves complex professional services where there are many corners that can potentially be cut. Here's a piece of free (though not forced!) legal advice for my readers: if you are on trial for your life, your liberty, or even just a large sum of money, you probably do not want to be represented by a lawyer who only took the case because the government forced him to do so. If the lawyer screws up badly enough, you might be able to sue for malpractice. But there are many ways that a lawyer can do a terrible job without getting to the point where a malpractice claim is likely to succeed.

In her remarks, Justice Sotomayor recognized that lawyers performing forced labor "may not give their best effort." But she offered no solution for this problem other than urging that lawyers must make compelled pro bono work "part of their being." Good luck with that approach.

Fortunately, there are other ways we can increase the availability of legal services to the poor. As economist Clifford Winston has demonstrated in a series of articles for the liberal Brookings Institution, we can greatly reduce the cost of legal services (including for the poor) by deregulating the legal profession. As he shows, we don't need to limit the right to provide legal services only to people who have spent three (very expensive) years in law school, and passed a hypercomplex bar exam that requires takers to memorize thousands of tidbits of information, most of which have little relevance to actual law practice. This is especially true of relatively simple services needed for many everyday legal transactions and cases.

We can also reduce the cost of legal services for the poor by allowing corporate entities to provide legal services, as advocated by legal scholar Gillian Hadfield. As she explains, corporatization has reduced the cost of and increased access to other types of professional services, and could do the same in the legal profession.

If these measures and others like them turn out to be insufficient, we can, where necessary, make legal services cheaper for the poor simply by giving them vouchers to pay for them. That would enable the recipients to select the lawyers they themselves choose. Such an approach would both avoid forced labor, and increase quality by incentivizing lawyers to compete for the business.

In sum, imposing forced labor on lawyers is both unjust and unnecessary—and probably unconstitutional to boot. Justice Sotomayor is right to be concerned about increasing access to legal services for the poor. But she is promoting a badly flawed solution to this very real problem.

UPDATE: I have made a few minor additions to this post.

UPDATE #2: Steve Lubet responds to this post here. His main complaint is that "[m]issing entirely from Somin's analysis is the fact that mandatory pro bono plans are always proposed as a condition of licensure—in other words, an exchange that is "forced" on no one except those who freely enter the profession." I would have thought that it was obvious that the proposal is limited to lawyers, and I did mention that fact in the post.

But forced labor imposed as a condition of pursuing your chosen profession is still a severe imposition. That is particularly true given that it would be imposed not just on new entrants into the field, but on those who are already there. For many, shifting to a different career to avoid it would be a major burden. Contra Lubet, it would also still be involuntary servitude. If a southern state had imposed a forced labor requirement on all agricultural workers, requiring them to perform a certain amount of free labor in the fields every year unless they shift to some other line of work, that would surely be prevented by the Thirteenth Amendment. Similarly, Lubet is wrong to suppose there is no objection to small amounts of forced labor unless you believe "taxation is theft." I am no great fan of taxation. But unlike forced labor, it still leaves people in control of their bodies and their time, which is a big difference.

Lubet also makes light of forced labor requirements because they "typically [only] call for something between 0.5% and 1.0% of a lawyer's time, in exchange for the privilege of practicing law." Justice Sotomayor did not specify exactly how much forced labor she thinks lawyers should have to do. But a relatively small amount of forced labor is still forced labor. It is not as bad as a large amount, but is still a serious imposition on liberty. Moreover, spending about 1% of your work time on it does not seem like that small an imposition to me.

Lubet dismisses the possibility that forced laborers are likely to provide poor legal services because much of the work they do might not be that complicated, and because they might do a good job out of "professional pride." It is true, as Lubet notes, that some of them might do relatively simple legal tasks such as drafting wills or reviewing leases. But that might not be an option for lawyers whose expertise lies elsewhere (e.g.—criminal lawyers, trial lawyers, and so on). And even relatively simple legal work still involves some complex discretionary tasks that unmotivated lawyers might do poorly. As for the notion that forced laborers will do good work out of "professional pride," if it were true the Soviet Union and other communist states would have been much more economically successful.

Near the end of his post, Lubet argues that forced labor for lawyers can help prevent situations where "poor people are often confronted by local courts that abuse or disregard their rights." This problem, like other issues arising from insufficient access to legal services for the poor, can be addressed by the noncoercive means I already discussed above. And, in any event, forced laborers are unlikely to do a good job of addressing such abuses.

Finally, Lubet admits that there are other ways to increase legal services to the poor, which he agrees should be pursued. But he believes that forced labor should be tried anyway.

Ultimately, our differences come down to this: if you think that forced labor is no big deal (at least if it is imposed as a condition of pursuing your profession and does not last too many hours), then you will be willing to impose it anytime it might help achieve some beneficial end, which will be true in a very wide range of circumstances. But if you think that people's right to own their own labor is an important principle, then you will take forced labor seriously. And—at the very least—you will oppose its imposition unless there is strong evidence that it will achieve some great good that cannot be achieved any other way. That isn't even remotely true in this case.