So the question that instills angst in my NYU law students is whether the state can require them to donate 20 hours of pro bono work as a condition of obtaining a license. The laudable motive is to supply additional assistance to indigent people who need lawyers but cannot afford them—a condition that often exists in good times as well.
The uneasiness stems, I think, from this proposition: there is no limiting condition to the idea, such that if 20 hours is a good idea then 100 hours is a truly great idea. Any principle that does not reveal its limitations is likely to be fundamentally flawed, as this one surely is. The flaws in my view have serious constitutional dimensions.
Let’s start at the beginning and note that the state, when it licenses, exercises a form of monopoly power. There is only one state, and there is no one else in the jurisdiction to whom the fledgling lawyer (or experienced lawyer from another jurisdiction) can turn. No private party is allowed to exercise that power as he or she sees fit. In all cases there are two obligations: nondiscrimination and reasonable terms. The former is likely satisfied, but the latter is not. The key question is why the state has the power to license in the first place. The correct answer is that the system of licensing is intended to protect individuals from those actions, which if completed, would give rise to a valid claim for redress. Fraud, incompetence and dishonesty fit that bill. But in a classical liberal society redistribution is not one such end, for it knows no limits. Hence the correct view tests all licenses against those permissible ends. There is much to say about modern licensing that indicates that it is pointless or overbroad. But this extension goes beyond the pale. The state is not a part owner of my labor or of any young attorney, but it is asserting that kind of lien over labor with this particular proposal.
Does this mean that there is nothing that the state can do to help the poor? Two answers are possible. One (which is actually more attractive than is commonly supposed) is no. Redistribution is not the function of the state, period. It leads to a system of beggar thy neighbor until the productive forces are overwhelmed by the redistributive ones. Think of health care.
The other is more modest. Yes it is permissible, but it is a social obligation — not one tied to this or that profession. On this view, those who vote for the restriction have to pay their fair share. They can vote a general fund to supply legal assistance, and then pay lawyers contract wages to help poor individuals. That is surely a better alternative, and it leads, of course, to efficiency gains. As John Yoo noted to me, why have a high powered lawyer do poverty work for which he or she is manifestly incompetent. I would never trust myself in any small claims matter. The implicit mismatch of labor to task is a real practical objection to this proposal. Indeed it is endless gimmicks like this one which has led to the implosion of the labor market in the first place.