In the legal profession, work done for free is often referred to as pro bono—short for pro bono publico, a phrase which translates from Latin as “for the public good.” It’s a term used mostly in the context of big law firm work; lawyers who work in the public interest don’t usually call their work pro bono, while lawyers who do primarily corporate work will use the term to differentiate their public service work from their typical earth-razing and corporation-defending work.
But is that work always actually “good?” Well, the corporate lawyers who decide which pro bono cases to work on are the ones who decide what good means. Not you or I, dear reader. And in the past, that boundary has been stretched to unimaginable proportions. One salient example is that of John W. Davis, name partner at the renowned law firm Davis Polk. As part of his pro bono practice, Davis argued Briggs v. Elliott, a companion case to Brown v. Board of Education. But here’s the not-so-shocking twist: Davis was arguing the segregationist side! He was arguing that the doctrine of “separate but equal” should be retained. For free!
Today, that tradition continues. This morning, the Supreme Court will hear arguments in Brackeen v. Haaland. There are plenty of great resources to learn about the case (the podcast This Land is a great one, as is Protect ICWA), but to vastly oversimplify things, it will decide the constitutionality of the Indian Child Welfare Act, a law which essentially gives tribal governments the power to protect Native children from being removed from their communities. As described on childwelfare.gov, “[the] ICWA was enacted after Native American children were systematically removed—often without evidence of abuse or neglect that would be considered grounds for removal—and placed with non-Native families, with the intent to deprive them of their Native family or culture.”
Keeping Native families together is a public good. So when you hear that giant law firm Gibson Dunn is working on this case pro bono, you might assume that they are working on the side of keeping the ICWA intact.
But reader, I think you know where this is going. This is the same law firm that worked to put Steven Donziger in jail when he fought against Chevron, after all.
Gibson Dunn is working—for free—to dismantle the ICWA and continue America’s grand tradition of the cultural obliteration of indigenous communities. They’re fighting to eliminate tribal sovereignty.
For the public good, my butt!
It’s a myth—though an easy to believe myth, and you’d be forgiven for falling for it—that you can mitigate the harms of going into corporate law by engaging extensively in pro bono work. Pete Davis has already done great research laying out how exactly this is a myth (see chapter 3a), and how corporate lawyers are only able to do a negligible amount of pro bono work each year.
But then it turns out that even the pro bono work you end up doing might be pro evilo instead?
Where does it end, people?