Paternalistic Interventions in Civil Rights and Poverty Law: A Case Study of Environmental Justice
Alfieri, Anthony V., Michigan Law Review
PATERNALISTIC INTERVENTIONS IN CIVIL RIGHTS AND POVERTY LAW: A CASE STUDY OF ENVIRONMENTAL JUSTICE
Against Autonomy: Justifying Coercive Paternalism. By Sarah Conly. New York: Cambridge University Press. 2013. Pp. viii, 194. Cloth, $95; paper, $32.99.
Low-income communities of color in Miami and in cities across the nation both share aspirations of equal justice and democratic participation and suffer the burdens of legal underrepresentation and political disenfranchisement. Such burdens become crippling when, as in Miami, local legal aid offices, public interest organizations, and bar associations lack the resources to provide meaningful private access to justice or to muster significant public engagement in the political process.1 These burdens become especially crippling when, again as in Miami, local and state governments adopt policies that engender inner-city neglect, economic displacement, and racial exclusion. In these circumstances, volunteer lawyers from private sector law firms sometimes constitute the last best hope for individual residents and neighborhood groups in need of legal and political representation.2
For many volunteer lawyers, the call of pro bono service comes from individual clients. For others, the call emanates from broader causes.3 And for some, the call rises from a sense of place and history, from the experience- real or imagined-of community itself.4 Whatever its source, for most, the call of pro bono service evokes a strong, discretionary sense of lawyer paternalism toward clients, their causes, and their communities.5 By lawyer paternalism, I mean interventions that not only interfere with a client's "autonomous choices" but also disregard or override a client's value "commitments"-those commitments that animate the public and private dimensions of a client's life, giving meaning and imparting dignity.6
This Review considers the call of community representation for pro bono lawyers and their public interest cohorts,7 as well as the moral-ethical issues of paternalism they may encounter.8 Because a full account of such nettlesome issues is beyond the scope of this inquiry, the Review confines its analysis to three specific types of paternalistic lawyer intervention: coercive settlement counseling tactics, termination of representation threats, and censorious public disclosures. Against this backdrop, the Review explores Sarah Conly's provocative new book, Against Autonomy: Justifying Coercive Paternalism, 9 in search of the best moral-ethical justifications for a lawyer's discretionary, paternalistic use of coercive counseling, termination, and disclosure tactics.10 By borrowing Conly's defense of government-sponsored policies of paternalistic regulation and engrafting its core libertarian and coercive theories on the lawyering process, we can illuminate the moral-ethical complexities and risks of community-based lawyering that pro bono attorneys face. Extending Conly's strong policy defense and its powerful moral-ethical justifications in this way joins and advances contemporary debates over improving access to legal services11 and expanding civic participation in law and society.12 The Review proceeds in three Parts. Part I sketches a framework for the study of community representation in the context of environmental justice advocacy. Part II explores Conly's arguments for greater state-instituted paternalism. Part III then considers the implications of Conly's arguments for the use of coercive lawyer tactics.
I. Community Environmental Justice: A Case Study
"Sometimes the trees would catch fire and we'd have to put them out because the fire department wouldn't come."13
Studies of community-based environmental justice campaigns highlight the elastic legal-political nature of civil rights and poverty law advocacy. Community representation combines multiple forms of legal-political advocacy on behalf of a geographically situated and readily identifiable group of individuals or entities linked by common cultural, economic, and social interests. …