Funding the Cause 89

Our data raise important comparative institutional questions about which funding models PILOs should adopt, and which funding models policy makers should consider for the future. Different funding models provide different opportunities and constraints on public interest organizations. Scholars increasingly recognize that choices among market, governmental, or nonprofit approaches to providing legal representation force difficult tradeoffs among political vulnerability, independence, sustainability, and stra­tegic resources available to organizations (Luban 2003; Rhode 2008; Abel 2009; Cummings 2012). These difficult choices should not surprise us. Organizational theory teaches that nonprofits operate in particularly challenging environments, often serving many constituencies and subject to vague and conflicting standards for success (Alexander 1998). In the nonprofit organizational field, the funding environment has the potential to pull public interest organizations and social movements away from their mission, particularly where nonprofits' external funding sources are distinct from their client base (Alexander 1998).

By providing data from the only available recent and representative sample of PILOs, our study sheds light on the distribution of funding strategies in the modern public interest law field. These representative data help evaluate the implications of PILO funding models for organizational strategies and independence. Of course, one might imagine a range of funding strategies for public interest representation that include and extend beyond the nongovernmental PILOs in our survey. Such strategies might include relying on private pro bono efforts, increasing foundation and private support for public interest organizations, moving to a civil Gideon,like model that provides government support for individual representation, expanding fee-shifting stat­utes in certain circumstances, or lifting restrictions on federal and state funds for public interest organizations (see Abel 2009; Cummings 2012). Each of these options has strengths and weaknesses. We discuss some of those concerns here, but reserve for another day the attempt to resolve which institutional arrangement might be best.

Campaigns to expand private pro bono efforts continue, including a recent push by the ABA to step up pro bono commitments after Congress enacted the LSC funding restrictions (Cummings 2004 ). Pro bono time contributed by lawyers working in the for-profit sector provide, in hours, the equivalent of several thousand full-time legal aid lawyers (Cummings 2012), but hours of service are an inexact measure of representation, one that does not account for expertise, experience, or commitment to client constituencies. The primary objections to pro bono representation, at least as a replacement for public interest organizations, are that private lawyers lack poverty experience, private lawyers may refuse to take certain cases due to (perceived) posi­tional conflicts with their paying clients, and that diffuse private representation under­mines the ability to seek systemic reform (Spaulding 1998; Johnson 1999; Cummings 2004 ). Of course, pro bono representation avoids the restrictions on advocacy and political vulnerability that go along with government funding. Neverthelss, pro bono representation may trade political constraints for economic constraints: firm commit­ments to pro bono representation may waiver when the demand from paying clients for their lawyers' services is strong enough to absorb their lawyers' available time. In addition, empirical evidence suggests pro bono efforts respond to market forces in more subtle ways, expanding when the profession perceives that its jurisdictional control over legal services is under siege, and contracting when control over the

90 LAW & SOCIAL INQUffiY

provision of legal services seems secure (Sandefur 2007). These dynamics do not necessarily track fluctuations in the need for pro bono representation.

Another alternative would be to increase foundation and private support for public interest organizations, which again would avoid the restrictions and political vulner· ability that come with government funding. Not all causes are easy to sell to the foundation or private giving market, however. As the historical vilification of welfare recipients and immigrants shows, unpopular causes or clients are likely to suffer under this strategy. In addition, foundation support brings a subtle coercion of its own: to the extent that foundations develop their own funding priorities, then seek worthy pro· grams to fund, public interest organizations may find themselves adjusting their agendas to chase resources, giving up their autonomy over defining their priorities (Alexander 1998; Jenkins 1998). To alleviate this concern, progressive foundations might take a page from the conservative foundation playbook and devote more resources to general operating support, rather than start·up funds for individual, targeted programs (Covington 1997; Teles 2008). To be sure, not every organization that relies on foun· dation or private support will be coopted by the interests of its benefactors. When organizations have diverse sources of support, and missions that closely track those of their foundation supporters, they will be less likely to be drawn away from their initial goals (Alexander 1998). Nonetheless, in many public interest contexts, deep social divides separate the clients of PILOs from the patrons that support PILO activities (see Jenkins 1998), and some scholars argue that social movement organizations that accept foundation support risk deradicalization and cooptation (Staggenborg 1988; Roelofs 2003). This structural feature of the foundation·funding model presents a difficult environment for PILOs to navigate successfully.

A civil Gideon approach, although promising, raises its own concerns, not the least of which was the Supreme Court's recent refusal to recognize a right to civil council in Turner v. Rogers.60 Even assuming no activity restrictions would attach to a state·funded civil representation program, state funding still leaves such a program subject to budget variability as political administrations change. Moreover, as the criminal representation system has taught us, low levels of funding, overwhelming case loads, and lack of institutionalized offices may lead to poor·quality representation for those that rely on such a program. A Medicaid, fee·for·service type program might be possible, but would likely bring bureaucratic burdens, funding limitations, and restrictions of its own. Such a program, if sufficiently diffuse, might also limit opportunities for systemic reform, although perhaps it would provide enough funding to staff a legal services oriented "low bono" law office. Law offices such as these could remain going concerns through sliding·scale representation of low·income clients and with subsidized reimbursement through a fee·for·service model. Arguably, this approach would allow lawyers to focus more on client representation and less on fundraising, and would also help expand services to those who cannot meet poverty income restrictions but still cannot afford legal assistance on their own. Such a program would likely have broad support from the private bar, as it expands the market for legal services, and perhaps would give attorneys more autonomy in their work.

60. 131 S. Ct. 2507 (2011) (refusing to require court~appointed counsel for a low-income father facing jail time in a civil contempt proceeding for failure to pay child support).

Funding the Cause 91

Fee,shifting statutes offer another funding model in which PILOs obtain support through successful litigation and are paid by defendants who lose. Some argue that this strategy democratizes and decentralizes enforcement by allowing private parties to decide whether to take action (Albiston and Nielsen 2007). Fee shifting also avoids the need for large bureaucratic agencies and promotes more efficient detection of violations through an army of private attorneys general (Burke 2002; Albiston and Nielsen 2007). Such an approach would require legislative revisions after recent Supreme Court deci, sions curtailing the availability of fees in many cases, however (Albiston and Nielsen 2007). And not all public interest clients are plaintiffs; fee,shifting statutes will do little for defendants in unlawful detainer actions, or for welfare recipients defending against charges of fraud or overpayment. Reliance on fee shifting to fund public interest activities may have more subtle effects as well, by driving organizational efforts toward litigation and away from non,fee,generating activities that nevertheless have a big impact, such as education, outreach, media campaigns, or community organizing. Expanding fee,shifting opportunities would, however, provide a source of support rela, tively insulated from governmental controL

One might also lift restrictions on LSC funds to support poverty advocacy more broadly, and to permit attempts at systemic change. Such a strategy might very well improve the delivery of legal services, although, again, government funding remains subject to cutbacks as administrations change. Government funding also creates a state actor vulnerable to constitutional legal challenges such as the IOLTA litigation that we discussed above. And the legal services organization is just one of several models of public interest lawyering; other models place more emphasis on social change litigation and less on direct services. There may be legal services models other than the LSC approach that have desirable characteristics worth supporting. Government might also step up its own enforcement, by not only litigating but also enforcing requirements for federal contractors, and establishing best practices for the industry as a whole. Indeed, some commentators argue that by drawing on these nonlitigation strategies, govern, ment enforcement would be better able to change systemic and structural barriers to reaching equity goals (Johnson 2012). Whatever its form, however, government enforcement risks political variability and underfunding, particularly for representation of politically unpopular clients.

These funding questions are not merely theoretical concerns. In the past five years, there has been renewed academic and policy interest in public interest law and access to justice. In March 2010, the US Department of Justice launched the Access to Justice Initiative to improve the availability, quality, and effectiveness of represen, tat ion for those who cannot afford lawyers. The National Science Foundation, the American Bar Foundation, and the Stanford Center on the Legal Profession all recently held research summits to discuss unanswered questions in the literature on access to justice. A theme that emerged from these meetings was the lack of empirical work on supply,side questions related to provision of legal services, including the funding available to these organizations, the areas in which these organizations prac, tice, and stratification in the provision of services by geography or population served (Rhode 2011; Sandefur and Smyth 2011). We need to understand not only which funding models PILOs currently use, but also what comparative institutional conse, quences flow from funding choices that may be made in future policies.

92 LAW & SOCIAL INQUffiY

We raise these questions about funding models to expand the debate using our findings, not to attempt an exhaustive comparative institutional analysis of all possible and available funding models. The most effective, or desirable, model would likely be a hybrid of some of the options outlined above, with some sources of support for broad~ based activities such as education and outreach, community organization, and systemic reform. The important questions concern the conditions under which, and the client populations for which, various funding approaches would be most useful. We do want to point out, however, that, with possible exceptions of increased foundation/private support or less restricted LSC funding, most of the options discussed in this section would likely drive public interest practice closer to the private practice model of individual client representation in adjudicatory forums, and away from other legal strategies directed at social change, including nonlitigation strategies such as client education and outreach or community economic development. To us, this suggests that one must first answer the larger questions of what public interest lawyering is meant to be, what are the goals it is intended to address, and what mission public interest lawyers are meant to serve (Hilbink 2004). The answers to these policy questions about what public interest law should be can then inform us how to go about funding the cause.

REFERENCES

Abel, Richard. 1985. Law Without Politics: Legal Aid Under Advanced Capitalism. ULCA Law Review 32:474--642.

--. 2009. State, Market, Philanthropy, and Self-Help as Legal Services Delivery Mechanisms. In Private LawyeTs and the Public Interest: The Evolving Role of Pro Bono in the Legal Profession, ed. R. Granfield and L. Mather, 295-307. Oxford: Oxford University Press.

Albiston, Catherine R- 2011. The Dark Side of Litigation as a Social Movement Strategy. Iowa Law Review Bulletin 96:61-77.

Albiston, Catherine R-, and Laura Beth Nielsen. 2007. The Procedural Attack on Civil Rights: The Empirical Reality of Buckhannon for the Private Attorney General. UCLA Law Review 54:1087-1134.

Alexander, V. D. 1998. Environmental Constraints and Organizational Strategies: Complexity, Conflict, and Coping in the Nonprofit Sector. In Private Action and the Public Good, ed. W. W. Powell and E. S. Clemens, 272-90. New Haven, Cf: Yale University Press.

Aron, Nan. 1989. Liberty and justice far All: Public Interest Law in the 1980s and Beyond. Boulder, CO: Westview Press.

Boehm, K. E, and P. T. Flaherty. 1995. Why the Legal Services Corporation Must Be Abolished. Washington, DC: Heritage Foundation.

Burke, T. E 2002. LawyeTs, Lawsuits and Legal Rights. Berkeley: University of California Press. Cappelletti, Mauro, James Gordley, and Earl Johnson. 1975. Toward Equal Justice: A Comparative Study

of Legal Aid in Modem Societies. Dobbs Ferry, NY: Oceana Press. Carlin, Jerome E., Jan Howard, and Sheldon L. Messinger. 1966. Civil Justice and the Poor: Issues for

Sociological Research. Law & Society Review 1:9-90. Covington, Sally. 1997. Moving a Public Policy Agenda: The St.Tategic Philanthropy of Conservative

Foundations. Washington, DC: National Committee for Responsive Philanthropy. Cummings, Scott. 2004. The Politics of Pro Bono. ULCA Law Review 51:1-149. --.2012. The Pursuit of Legal Rights-And Beyond. UCLA Law Review 59:506-49. Davis, Martha E 1995. Brutal Need: Lawyers and the Welfare Rights Movement, 1960-1973. New Haven,

CT: Yale University Press. Decker, Jefferson. 2009. The Conservative Legal Movement and American Government, 1971-1987.

PhD diss., Department of History, Columbia University, New York, NY.

Funding the Cause 93

DiMaggio, Paul J., and Walter W. Powell. 1991. Introduction. In The New Institutionalism in Organi~ t.atianal Analysis, ed. Walter W. Powell and Paul J. DiMaggio, 1-38. Chicago, IL: University of Chicago Press.

Ford Foundation. 1976. Public Interest Law: Five Years Later. American Bar Association, Special Committee on Public Interest Practice. New York: Ford Foundation.

Freeman, A. D. 1982. Antidiscrimination Law: A Critical Review. In The Politics of Law: A Progressive Critique, ed. D. Kairys, 96-116. New York: Pantheon Books.

--. 1998. Antidiscrimination Law from 1954 to 1989: Uncertainty, Contradiction, Rationalization, Denial. In The Politics of Law: A Progressive Critique, 3rd ed., ed. D. Kairys, 285-311. New York: Basic Books.

Hacker, Hans. 2005. The Culture of Conservative Christian Litigation. Chicago, IL: University of Chicago Press.

Handler, Joel F. 1978. Social Movements and the Legal System: A Theory of Law Reform and Social Change. New York: Academic Press.

Handler, Joel F., Betsy Ginsberg, and Arthur Snow. 1978. The Public Interest Law Industry. In Public Interest Law: An Economic and Institutional Analysis, ed. Burton A. Weisbrod, Joel F. Handler, and Neil K. Komesar, 42-79. Berkeley: University of California Press.

Harrison, Gordon, and Sanford Jaffe. 1973. The Public Interest Law Firm: New Voices for New Constituencies. New York: Ford Foundation.

Heinz, John P., Anthony Paik, and Ann Southworth. 2001. Lawyers for Conservative Causes: Clients, Ideology, and Social Distance. Law & Society Review 37 (1): 5-50.

Herschk:off, H., and D. Hollander. 2000. Rights into Action: Public Interest Litigation in the United States. In Many Roads to Justice: The Law~Related Work of the Ford Foundation, ed. S. Golub and M. McClymont, 89-126. New York: Ford Foundation.

Hilbink, Thomas M. 2004. "You Know the Type ... ": Categories of Cause Lawyering. Law & Social Inquiry 29:657-98.

Houck, Oliver A. 1984. With Charity for All. Yale Law Joumal93:1415-1563. Houseman, A. W. 2001. Civil Legal Assistance for Low~ Income Persons: Looking Back and Looking

Forward. Fordham Urban Law Joumal29 (3): 1213-43. --. 2002. Legal Aid History. In Poverty Law Manual for the New Lawyer, 18-25. Chicago, IL: Sargent

Shriver National Center on Poverty Law. Houseman, A. W., and Linda E. Perle. 2007. Securing Equal Justice for All: A Brief History of Civil Legal

Assistance in the United States. Washington, OC: Center for Law and Social Policy. Institute for Educational Affairs. 1981. Perspectives on Public Interest Law. Foundation Officers Forum

Occasional Papers, No. 2. New York: Institute for Educational Affairs. Jenkins, J. Craig. 1998. Channeling Social Protest: Foundation Patronage of Contemporary Social

Movements. In Private Action and the Public Good, ed. W. W. Powell and E. S. Clemens, 206-16. New Haven, CT: Yale University Press.

Johnson, Earl. 1974.Justice and Reform: The Formative Years of the American Legal Services Program. New Brunswick, NJ: Russell Sage.

--. 1999. Justice and Reform: A Quarter Century Later. In The Transformation of Legal Aid: Comparative and Historical Studies, ed. Francis Regan, Alan Paterson, Tamara Goriely, and Don Fleming, 9-40. Oxford: Oxford University Press.

Johnson, Olati. 2012. Beyond the Private Attorney General: Equality Directives in American Law. Columbia Public Law & Legal Theory Working Papers, Paper 9204. http://lsr.nellco.org/ columbia_pllt/9204 (accessed January 10, 2013 ).

Kessler, Mark. 1990. Legal Mobilizations for Social Reform: Power and the Politics of Agenda Setting. Law & Society Review 24:121-43.

Kilwein, John. 1999. The Decline of the Legal Services Corporation: "It's Ideological, Stupid!" In The Transformation of Legal Aid: Comparative and Historical Studies, ed. Francis Regan, Alan Paterson, Tamara Goriely, and Don Fleming, 41-64. Oxford: Oxford University Press.

Klarman, M. J. 1994. How Brown Changed Race Relations: The Backlash Thesis. Journal of American History 81 (1): 81-118.

94 LAW & SOCIAL INQUffiY

Luban, D. 2003. Taking Out the Adversary: The Assault on Progressive Public-Interest Lawyers. California Law Review 91:209-46.

McCann, M. 1986. Taking Refarm Seriously. Ithaca, NY: Cornell University Press. Menlcel-Meadow, Carrie. 1998. The Causes of Cause Lawyering: Toward an Understanding of the

Motivation and Commitment of Social Justice Lawyers. In Cause Lawyering: Political Commit­ments and Professional Responsibilities, ed. Austin Sarat and Stuart Scheingold, 31-68. Oxford: Oxford University Press.

Nagai, Althea K., Robert Lerner, and Stanley Rothman. 1994. Giving for Social Change: Foundations, Public Policy, and the American Political Agenda. Westport, Cf: Praeger.

Nelson, Robert. 1988. Partners with Power: ~Social Transfarmatiml of the Large Law Firm. Berkeley: University of California Press.

Nelson, Robert, and Laura Beth Nielsen. 2000. Cops, Counsel and Entrepreneurs: Construction of the Role of Inside Counsel in Large Corporations. Law & Society Review 34:457-93.

Nielsen, Laura Beth, and Catherine Alb is ton. 2006. The Organization of Public Interest Practice: 1975-2004. North Carolina Law Review 84:1591-1622.

O'Connor, Karen, and Lee Epstein. 1984. Rebalancing the Scales of Justice. Harvard Journal of Law and Public Policy 7:483-505.

Pierson, Paul. 2000. Increasing Returns, Path Dependence, and the Study of Politics. American Political Science Review 94:251--67.

Quigley, William P. 1998. The Demise of Law Reform and the Triumph of Legal Aid: Congress and the Legal Services Corporation from the 1960s through the 1990s. Saint Louis University Public Law Review 17:241--64.

Rhode, D. L. 2011. Access to Justice: An Agenda far Legal Education and Research. Report of the Stanford Consortium on Access to Justice, Center on the Legal Profession, Stanford Law School.

Rhode, D. R. 2008. Public Interest Law: The Movement at Midlife. Stanford Law Review 60:2027--84. Roelofs, J. 2003. Foundations and Public Policy: The Mask of Pluralism. Albany, NY: SUNY Press. Rosenberg, G. N. 1991. The HoUow Hope: Can Courts Bring About Social Change? Chicago, IL:

University of Chicago Press. Sandefur, Rebecca L. 2007. Lawyers' Pro Bono Service and American-Style Civil Legal Assistance.

Law & Society Review 41:79-112. Sandefur, Rebecca L., and Aaron C. Smyth. 2011. Access Across America: First Report of the Civil]ustice

Infrastructure Mapping Project. Chicago, IL: American Bar Foundation. Seron, Carroll. 1996. ~ Business of Practicing Law: The Work Lives of Solo and Small-Firm Attorneys.

Philadelphia, PA: Temple University Press. Southworth, Ann. 2005. Conservative Lawyers and the Contest over the Meaning of Public Interest

Law. UCLA Law Review 52:1223-78. Spaulding, Norman. 1998. The Prophet and the Bureaucrat: Positional Conflicts in Service Pro Bono

Publico. Stanford Law Review 50:1395-1434. Staggenborg, S. 1988. The Consequences of Professionalization and Formalization in the Pro-Choice

Movement. American Sociological Review 53:585--606. Sutton, John R., Frank Dobbin, John W. Meyer, and W. Richard Scott. 1994. The Legalization of the

Workplace. American Journal of Sociology 99:944-71. Teles, Steven M. 2008. ~ Rise of the Conservative Legal Movement: The Battle for Control of the Law.

Princeton, NJ: Princeton University Press. Tushnet, M. 1984. An Essay on Rights. Texas Law Review 62 (8): 1363-1403. Viguerie, Richard. 1982. Defund the Left. New York 'Times, op-ed article, August 11. Zemans, F. K. 1983. Legal Mobilization: The Neglected Role of the Law in the Political System.

American Political Science Review 77:690-703.

CASES CITED

Brown v. Board of Educ. of Topeka, Shawnee County, Kan., 347 U.S. 483 (1954). Brown v. Legal Found. of Wash., 538 U.S. 216, 223 (2002).

Fuentes v. Shevin, 407 U.S. 67 (1972). Goldberg v. KeUy, 397 U.S. 254 (1970). Gratz v. BoUinger, 539 U.S. 244 (2003). Grutter v. BoUinger, 539 U.S. 306 (2003). Legal Aid Servs. of Ore. v. Legal Servs. Corp., 608 R3d 1084 (9th Cir. 2010). Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001).

Funding the Cause 95

Legal Aid Soc'y of Haw. (LASH) v. Legal Servs. Corp., 961 F. Supp. 1402 (D. Ha. 1997). Legal Aid Soc'y of Haw. (LASH) v. Legal Servs. Corp., 980 R Supp 1141 (D. Ha. 1997). Legal Aid Soc'y of Haw. (LASH) v. Legal Servs. Corp., 145 F.3d 1017 (9th Cir 1998). Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438 (2001). NAACP v. Button, 371 U.S. 415 (1963). PhiUips v. Washington Legal Found., 524 U.S. 156 (1998). Reno v. Bossier Parish Sch. Bd., 528 U.S. 320 (2000). Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995). Shapiro v. Thompson, 394 U.S. 618 (1969). Sierra Club v. Morton, 405 U.S. 727 (1972). SuUivan v. DB Inv., Inc., 667 F.3d 273 (3d Cir. 2011). Turner v. Rogers, 131 S. Ct. 2507 (2011). United States v. Morrison, 529 U.S. 598 (2000).

STATUTES CITED

45 C.P.R. § 1610.8. Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134; 501-508,

110 Stat. 1321 (1996) (OCRAA).