One of the nice things about being a small-government person (a weak-kneed libertarian, to be precise) is that it is easy to annoy everyone on all sides of an issue. You have to work harder to do that if your only issue is what part of people's lives the government should run.
You also see some distinctions that are not apparent from other perspectives. All this came to mind when I followed John's reference to David Luban's post on the anti-lawyer gutter-sniping from the DOD's Cully Stimson. Luban's post links Stimson's low-rent demagoguery to "business as usual for conservative activists, who for years have used the strategy of trying to de-fund lawyers on the left."
From a small-government point of view, this equation does not hold up. One can oppose the Bush administration's genuinely awful positions regarding treatment of detainees (note to administration: you can't credibly claim they are all terrorists unless you can prove it, and if you can prove it the world will not end if someone makes you)* without embracing the notion that what the world needs now is more lawyers on a mission.
The difference is between lawyers who want to rein in government power and safeguard the rights of individuals, on the one hand, and lawyers who want to use government power to get the results they want, on the other. Detainee lawyers are of the first sort; many (not all, but many) "public interest" lawyers are of the second. (As, for that matter, is Stimson.)
Lawyers are reasonably well suited to putting the government to its proof in individual cases. They are much less well suited to running the economy. Should rent-to-own stores be banned under usury laws? Should cross-collateralization clauses in consumer credit contracts go unenforced under unconscionability rules? Should farm labor unionize and try to keep immigrants down (and poorer) in Mexico?**
Unless one is either a really rock-ribbed neoclassical economists
(which, to be honest, I pretty much am) or a really parentalistic
do-gooder, these are not easy questions. There are lots of
uncertainties and lots of trade-offs. But it should be plain enough
that they are not particularly legal questions.
Indeed, consider the thesis behind the funding of government anti-poverty lawyers, stated (as I recall) by Earl Johnson, Jr., the second head of the OEO LSP: that lawyers could, through lawyering, raise the average annual income of poor people. Is there any reason to think that history has borne that thesis out? Perhaps that is why there seems to be general support for "casework" and a sharp division of opinion over "law reform" efforts by government-funded lawyers.
So although Professor Luban is right to say that de-funding leftish lawyers has been a conservative cause for some time, I do not agree with the implied equation between law-reform lawyers and the lawyers working for detainees. From a small-government point of view, they are different.
DM
* Richard Epstein gets it right.
** I'm not making that last one up. Consider the following summary of how some of the tax dollars funneled into California Rural Legal Assistance were spent:
"In 1966, shortly after California Rural Legal Assistance was funded by the office of Economic Opportunity (OEO), its founder and first director [the author, James Lorenz] made an agreement with Cesar Chavez whereby CRLA agreed not to handle any domestic relations cases, so that more attorney time might be freed up to file lawsuits against growers which would be of help to the farm worker's union. In return, Cesar agreed to support CRLA. A corollary to the agreement was that CRLA would not file any lawsuits against the union." 17 St. Louis Univ. Pub. Law Rev. 295 (1998)
In other words, CRLA decided it would be better to help the UFW unionize than to help immigrant laborers with issues such as divorce, spousal abuse, custody, or visitation. Plausible? Maybe. Subject to democratic processes, or other forms of accountability? No. Anti-poverty? Well, it depends on whether you care more about poor laborers who have made it into the country or about even poorer immigrants. (See Diaz v. Kay-Dix Ranch for an example.)]