Taking out the Adversary: The Assault on Progressive Public-Interest Lawyers

This Essay concerns laws and doctrines, some very recent, that undermine the capacity of progressive public-interest lawyers to bring cases. It asks a simple-sounding question: how just is the adversary system if one side is not adequately represented in it? And it defends a simple-sounding answer: It is not just at all. As we shall see, however, neither the question nor the answer is quite as simple as it sounds. Like most issues implicating distributive justice, the question of who has access to lawyers and who does not has become a political football. Political partisans do not care about impartial justice. They care about rewarding their friends and defeating their enemies, and that means ensuring that their enemies receive as little money as possible, including money to pay for legal advocacy. Advocacy, after all, might be used to turn the tables. In the last few years, a disturbing pattern of legal attacks on publicinterest lawyers has emerged, targeting every one of the principal sources of support for progressive public-interest law: the Legal Services Corporation ("LSC"), state Interest on Lawyers Trust Account ("IOLTA")