Counterpoint: Could it be that conservative causes have a greater network of paid attorneys, with less need for pro bono work, than liberal ones do? There are dozens of liberal/progressive groups, for instance, devoted to curbing gun violence, most of which have limited funding, contrasted with the tens of millions the NRA and similar groups can spend. Which side is more likely to seek pro bono assistance?
Interesting question, and my answer is, “Maybe, but I’m not sure.” I share Jacobethan’s belief that there are probably more liberal groups in terms of sheer number, but you are probably right that the conservative ones have better funding.
Thanks for the balanced perspective, David. I should also say I appreciate Kevin M raising the question generally of how public interest groups' presence in the field intersects with Biglaw firms' pro bono priorities. It may well be a futile exercise trying to define the numerator and denominator in figuring out which groups on which issue are better resourced to do what.
I guess I'd say, though, that if you zoom out qualitatively to look at what's considered the "conservative" position on issues like associational standing that arise in connection with interest group litigation, you get a pretty good index of which side expects to gain/lose from giving such groups more bang for their litigation bucks.
But it's also worth noting that what's being directly measured in the Muller study is amicus participation in Supreme Court cases. That's pretty far removed from any pro bono calculus of needing to fill a gap in the adequacy of the parties' existing representation. Whatever value the 80th brief in Fulton might've had, it can't have been that the City of Philadelphia was otherwise showing up with a knife to a gunfight.
The gun example strikes me as highly unrepresentative, especially if we're thinking of the NRA as primarily a social advocacy group. Across the broad spectrum of issues, liberal groups have *vastly* more resources and organizational capacity to engage in strategic litigation than their counterparts on the right. This has been a defining structural feature of public law litigation for the past 50 years; the exceptions draw attention precisely because they're exceptional.
I think there are large leaps being made to (1) map pro-bono briefs onto firms’ ideology (what % of Big Law lawyers work on these briefs?) and (2) map the position taken in those briefs onto a Liberal/Conservative false dichotomy. On the second point, take Dobbs, for example. Polling suggests that 61% of Americans think it was a bad decision. Does that mean 61% of Americans are liberal? I think that would be an analogous logical leap to make.
A totally fair point. But in defense of Professor Muller's study, I would note that he focuses on firms that filed 10 or more briefs, which would include a wider range of issues than just abortion.
I think that even if the general conclusion is obvious, quantifying the disparity is useful. For instance, if we want to track whether the problem is getting better or worse, we need some kind of baseline to compare it to.
Totally agree. I'd also add that Derek Muller has been writing a superb blog doing quantitative analysis of issues involving the legal profession -- mainly though not exclusively around legal education -- for over a decade. https://excessofdemocracy.com/
Derek's main gig is as a scholar of election law. He isn't somebody trying to make his name by putting a quantitative bow on an obvious insight. He's just had a longtime side project of gathering this kind of data, and there's no harm IMO in making it available to a wider audience.
I agree with you and Darek. But you'd be surprised at how much flak I got for my Boston Globe op-ed last year, in which I argued that Biglaw is short on ideological diversity.
People tended to focus on two points: (1) Biglaw's work on behalf of Big Evil Corporations (which I acknowledge at the end of this post), and (2) there are a small number of firms that are conservative. (But critics had a hard time naming any other than Jones Day—which Muller's study suggests isn't even that conservative, with around half of its amicus briefs supporting the liberal position.)
As a non-lawyer, but an interested spectator, I wonder if the disparity is due to the unpopularity of many conservative causes? Case in point - the number of shootings and the kill ratio with AR-16 rifles and the continued refusal of conservatives to support any type of gun regulation. Then there is the abortion issue, which appears to be exremely unpopular with vast number of Americans. Why do we allow politicians and lawyers to make medical decisions, which are sometime life and death issues for many women? Additionally, most if not all of these restrictive laws are made by men with litle to no female input. Since money rules, it makes sense that big firms would back causes that are supported by most public opinions.
Clients are definitely part of it; much of the pressure to push Paul Clement out of Kirkland came from clients. Recruitment is another, since law students, especially those at top schools, are a pretty left-leaning group.
One thing that’s more intense today, though, is the unwillingness to be under the same roof as folks with opposing views. In the past, conservative-leaning folks at firms could generally “do their thing,” as long as they didn’t drag anyone else in and weren’t overly vocal about it. But that’s less possible today, which is why many right-of-center folks are starting their own boutiques.
Do lawyers themselves tend to be more liberal-minded? Does the professional emphasis on the importance and quality of evidence spill over into the belief system of lawyers generally? Are lawyers less religious? Or at least less inclined toward dogmatic religious beliefs? Given the heavy identification of the Right Wing in the US with dogmatic belief systems, could this explain the aversion of lawyers to what passes for “conservative” legal issues positions?
Counterpoint: Could it be that conservative causes have a greater network of paid attorneys, with less need for pro bono work, than liberal ones do? There are dozens of liberal/progressive groups, for instance, devoted to curbing gun violence, most of which have limited funding, contrasted with the tens of millions the NRA and similar groups can spend. Which side is more likely to seek pro bono assistance?
Interesting question, and my answer is, “Maybe, but I’m not sure.” I share Jacobethan’s belief that there are probably more liberal groups in terms of sheer number, but you are probably right that the conservative ones have better funding.
Thanks for the balanced perspective, David. I should also say I appreciate Kevin M raising the question generally of how public interest groups' presence in the field intersects with Biglaw firms' pro bono priorities. It may well be a futile exercise trying to define the numerator and denominator in figuring out which groups on which issue are better resourced to do what.
I guess I'd say, though, that if you zoom out qualitatively to look at what's considered the "conservative" position on issues like associational standing that arise in connection with interest group litigation, you get a pretty good index of which side expects to gain/lose from giving such groups more bang for their litigation bucks.
But it's also worth noting that what's being directly measured in the Muller study is amicus participation in Supreme Court cases. That's pretty far removed from any pro bono calculus of needing to fill a gap in the adequacy of the parties' existing representation. Whatever value the 80th brief in Fulton might've had, it can't have been that the City of Philadelphia was otherwise showing up with a knife to a gunfight.
The gun example strikes me as highly unrepresentative, especially if we're thinking of the NRA as primarily a social advocacy group. Across the broad spectrum of issues, liberal groups have *vastly* more resources and organizational capacity to engage in strategic litigation than their counterparts on the right. This has been a defining structural feature of public law litigation for the past 50 years; the exceptions draw attention precisely because they're exceptional.
I think there are large leaps being made to (1) map pro-bono briefs onto firms’ ideology (what % of Big Law lawyers work on these briefs?) and (2) map the position taken in those briefs onto a Liberal/Conservative false dichotomy. On the second point, take Dobbs, for example. Polling suggests that 61% of Americans think it was a bad decision. Does that mean 61% of Americans are liberal? I think that would be an analogous logical leap to make.
Source: https://news.gallup.com/poll/506759/broader-support-abortion-rights-continues-post-dobbs.aspx
A totally fair point. But in defense of Professor Muller's study, I would note that he focuses on firms that filed 10 or more briefs, which would include a wider range of issues than just abortion.
Ah I missed that, fair response!
Did they really need to do a study to arrive at this conclusion?
I think that even if the general conclusion is obvious, quantifying the disparity is useful. For instance, if we want to track whether the problem is getting better or worse, we need some kind of baseline to compare it to.
Yes, excellent point—and I think Professor Muller plans to repeat this research in the future.
Totally agree. I'd also add that Derek Muller has been writing a superb blog doing quantitative analysis of issues involving the legal profession -- mainly though not exclusively around legal education -- for over a decade. https://excessofdemocracy.com/
Derek's main gig is as a scholar of election law. He isn't somebody trying to make his name by putting a quantitative bow on an obvious insight. He's just had a longtime side project of gathering this kind of data, and there's no harm IMO in making it available to a wider audience.
What a funny title. The equivalent of Do Bears Defecate in the Woods?
I agree with you and Darek. But you'd be surprised at how much flak I got for my Boston Globe op-ed last year, in which I argued that Biglaw is short on ideological diversity.
People tended to focus on two points: (1) Biglaw's work on behalf of Big Evil Corporations (which I acknowledge at the end of this post), and (2) there are a small number of firms that are conservative. (But critics had a hard time naming any other than Jones Day—which Muller's study suggests isn't even that conservative, with around half of its amicus briefs supporting the liberal position.)
As a non-lawyer, but an interested spectator, I wonder if the disparity is due to the unpopularity of many conservative causes? Case in point - the number of shootings and the kill ratio with AR-16 rifles and the continued refusal of conservatives to support any type of gun regulation. Then there is the abortion issue, which appears to be exremely unpopular with vast number of Americans. Why do we allow politicians and lawyers to make medical decisions, which are sometime life and death issues for many women? Additionally, most if not all of these restrictive laws are made by men with litle to no female input. Since money rules, it makes sense that big firms would back causes that are supported by most public opinions.
Clients are definitely part of it; much of the pressure to push Paul Clement out of Kirkland came from clients. Recruitment is another, since law students, especially those at top schools, are a pretty left-leaning group.
One thing that’s more intense today, though, is the unwillingness to be under the same roof as folks with opposing views. In the past, conservative-leaning folks at firms could generally “do their thing,” as long as they didn’t drag anyone else in and weren’t overly vocal about it. But that’s less possible today, which is why many right-of-center folks are starting their own boutiques.
Do lawyers themselves tend to be more liberal-minded? Does the professional emphasis on the importance and quality of evidence spill over into the belief system of lawyers generally? Are lawyers less religious? Or at least less inclined toward dogmatic religious beliefs? Given the heavy identification of the Right Wing in the US with dogmatic belief systems, could this explain the aversion of lawyers to what passes for “conservative” legal issues positions?