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The Rise of Libertarian and Conservative Public Interest Law:

From the 1930s until the late 1970s, the field of public interest law was dominated by liberal groups such as the ACLU, the NAACP, the Lawyers Committee for Civil Rights, and the Sierra Club. Since then, libertarian and to a lesser extent conservative public interest firms have had a major resurgence. Organizations such as the Institute for Justice and the Center for Individual Rights have achieved some impressive legal and political victories. IJ's Supreme Court cases include Kelo v. City of New London and Granholm v. Heald (the interstate wine shipment case). CIR litigated Rosenberger v. University of Virginia, United States v. Morrison, and Grutter v. Bollinger.

Steven Teles' important new book, The Rise of the Conservative Legal Movement, does an excellent job of analyzing and explaining the growth of non-liberal public interest law. He notes that the success of libertarian and conservative public interest law groups was not foreordained. Indeed, early efforts in the 1970s and early 80s were mostly dismal failures. How did the founders of IJ and CIR turn things around? Teles notes two important causes: the second generation of libertarian public interest firms learned from the the strategies of their liberal predecessors and distanced themselves from business interests.

I. Learning from the Left.

Clint Bolick and William Mellor, the founders of IJ, deliberately copied the tactics of the NAACP Legal Defense Fund. Like the LDF, IJ seeks out sympathetic clients (often minority homeowners or entrepreneurial small businesses) for its economic liberties and property rights cases. This is part of IJ's more general strategy of fighting in the court of public opinion as much as in the courtroom. Even when IJ loses a case in court (as happened in Kelo), they often win in the long run by generating a political backlash and by undermining the previously existing elite consensus supporting status quo jurisprudence. The effort to seek sympathetic clients and influence public opinion was consciously copied from similar initiatives by the NAACP during the years leading up to its victory in Brown v. Board of Education. For example, in choosing clients for cases charging racial discrimination in criminal law, Thurgood Marshall would usually try to represent only those defendants who were likely to be innocent and therefore make a more favorable impression on white public opinion.

By contrast, Teles claims that the Center for Individual Rights pursues a more narrowly "legalistic" approach, seeking to make the strongest possible legal case, with relatively little attention to the attractiveness of the client or to public relations concerns. This strategy is similar to that of the ACLU in its early years. For example, CIR's clients in United States v. Morrison were rapists, a type of case IJ might have been reluctant to take.

Which strategy is better? Both have been successful and there is no need to make a categorical choice. IJ is surely right to emphasize the importance of public relations and sympathetic clients. CIR, however, correctly recognized that you can sometimes win important cases even with unattractive clients; sometimes, clients who won't look good in the press have the strongest legal cases. Overall, however, I think that IJ has been somewhat more successful. Although CIR has won as many or more important courtroom victories, IJ has been more effective in leveraging its courtroom victories (and even its defeats) into actual changes in the real world. For example, IJ's campaign against eminent domain has almost certainly had more effect in constraining the powers of goverment than CIR's effort to curtail government-sponsored affirmative action. IJ's strategy takes more account than CIR's of the reality that the impact of judicial decisions is often determined as much outside the courtroom as within it.

II. Independence from Business Interests.

Libertarian and conservative public interest law firms are often denounced as mere shills for business interests. Ironically, however, Teles shows that the success of these groups required them to reduce their ties to business. Early conservative public interest firms established in the 1970s often had close ties to business groups, such as state chambers of commerce, and were often funded by corporations. This created two serious problems. First, the press and public opinion could stigmatize the groups as the shills they to a certain extent were. Second, and even more important, business interests often conflict with the conservative and libertarian agenda of limiting government power and protecting free markets. Many businesses actively support government regulations that suppress their competitors or grant them special privileges and favors. Teles shows that early conservative public interest firms sometimes had to drop promising economic liberties cases because they conflicted with the self-interest of powerful business backers.

IJ, CIR and other "second generation" libertarian public interest firms learned from this mistake. Instead of depending on business groups for funding, they relied mostly on donations from ideologically motivated individuals and foundations, backers that mostly lacked a narrow self-interest in the litigation pursued by the public interest firms they backed. Today, much of IJ's litigation agenda in property rights and economic liberties is often opposed by powerful business interests. For example, as I argue in this paper, developers and other politically connected businesses benefit from the types of "economic development" and "blight" condemnations that IJ litigates against.

It is somewhat surprising that it took so long for right of center public interest lawyers to realize that business interests weren't necessarily their friends. As far back as Adam Smith, free market advocates have recognized that many business interests benefit from the expansion of government regulation and routinely lobby for special favors from the state. It was Smith, not Ralph Nader, who wrote that businessmen "never gathered together even for a social purpose save to conspire against the public interest." More recently, Milton Friedman, Mancur Olson, and especially the public choice economists have all emphasized the role of business interests in expanding the role of government whenever it was in their narrow self-interest to do so. Unfortunately, right of center public interest lawyers had to learn this lesson the hard way. This is one area where real world lawyers could have saved themselves a lot of trouble by reading the academic literature on business-government relations produced by denizens of the ivory tower.

Despite the important progress that has been made, Teles argues that the libertarian and conservative public interest law movement still has significant weaknesses. In an upcoming post, I'm going to focus on the most important of them: the lack of adequate "follow up" litigation to exploit major courtroom victories.

CONFLICT OF INTEREST WATCH: Over the years, I have done a considerable amount of pro bono work for IJ.

Dave N (mail):
And for those of us who are prosecutors, particularly death penalty prosecutors, another outstanding conservative public interest law firm is the Criminal Justice Legal Foundation, whose legal director and general counsel, Kent Scheidegger, occassionally comments here.

Their amicus briefs are first-rate and always a pleasure to read.

I know Kent would be too modest to mention his employer on his thread, so I thought it appropriate to do it for him.
3.2.2008 1:51am
my2cents:
I agree with Dave N. CJLF is a great organization that doesn't receive much recognition.

I wonder if anyone knows of some good religious liberties public interest law firms?
3.2.2008 2:40am
Sua Tremendita:
Mountain States Legal Foundation also does excellent work.
3.2.2008 2:56am
Ilya Somin:
I wonder if anyone knows of some good religious liberties public interest law firms?

The Becket Center for Religious Liberties is a good example.
3.2.2008 3:01am
Jim Hu:
I wonder if any of the above have offered to take this guy's case.
3.2.2008 3:54am
Beckoi:

I wonder if anyone knows of some good religious liberties public interest law firms?

It is called Scalia.


Or, for the matter, take case of Bushie whore named Jeffrey S. White. The one behind closing wikileaks on behalf of money launderer Julius Bear.

You need not conservative activist groups anymore. All you need, is appoint Freislers to key posts.
3.2.2008 10:23am
Patrick Wright (mail):
Ilya,

"For example, IJ's campaign against eminent domain has almost certainly had more effect in constraining the powers of government than CIR's effort to curtail government-sponsored affirmative action."

Given your view about the general efficacy of the anti-Kelo provisions, I am not sure that the above is accurate. As you know, in part due to the efforts of CIR, there have been three successful statewide ballot initiatives that end the use of race in admissions and there might be 4 to 5 more in 2008. Now it is probably true that Hopwood did not impact Proposition 209 too much, but Gratz and Gruetter (both with sympathetic clients) had been filed and had received a lot of publicity by the time there was a vote on I-200 and Michigan's Proposition 2 was voted on after Gratz and Gruetter had been decided.

We have previously discussed whether some of the anti-Kelo legislation, particularly Michigan's, provides sufficient protections for property owners. Again, I think it Michigan's constitutional provision provides a little more protection than you do.

Regardless, I think the two situations are fairly analogous. Both CIR and IJ had a flashy Supreme Court loss (Kelo and Gruetter) and there has been some promising movement on the state fronts with regard both to preferences and eminent domain. But in both fields work remains to be done.

The one reason why I think it is possible to argue that more has been done in regard to eminent domain is that it is generally disliked across the entirety of the political spectrum while the use of preferences has some significant support in the Democratic party. But that goes to the underlying sentiment of the public not the tactics used by IJ and CIR. With regard to preferences and eminent domain, I think that the entities have followed fairly similar strategies.
3.2.2008 11:34am
Fub:
And don't forget Pacific Legal Foundation.
3.2.2008 11:41am
Patrick Wright (mail):
Sigh - I spelled Grutter wrong. I sure wish we could edit posts. Alas.
3.2.2008 11:48am
Truth Seeker:
I sure wish we could edit posts. Alas.

There's a preview button but I rarely use it either.
3.2.2008 9:00pm
Ilya Somin:
Given your view about the general efficacy of the anti-Kelo provisions, I am not sure that the above is accurate. As you know, in part due to the efforts of CIR, there have been three successful statewide ballot initiatives that end the use of race in admissions and there might be 4 to 5 more in 2008.

Ward Connerly's movement to abolish racial preferences by referendum predated Grutter/Gratz, so CIR's efforts deserve only partial credit for it. It is true that I think many of the post-Kelo laws have been ineffective. HOwever, even if you look at only the effective ones, there are some 18 or so, which is many more than the total number of state affirmative action bans.

The one reason why I think it is possible to argue that more has been done in regard to eminent domain is that it is generally disliked across the entirety of the political spectrum while the use of preferences has some significant support in the Democratic party.

Eminent domain has the support of some powerful interest groups. Moreover, unlike in the area of AA, very little was being done legislatively prior to IJ's litigation efforts. It's true that most of the public would have disliked economic development takings had they known about it before Kelo, but the overwhelming majority didn't know about it and would never have found out but for the publicity generated by Kelo.
3.2.2008 11:06pm
Patrick Wright (mail):
I will cede the point that there are powerful interests for eminent domain, and that pre-Kelo the issue of economic development takings was not well known by the general public.

Further, I certainly agree that Ward Connerly deserves an immense amount of credit for the anti-preferences movement. But I don't necessarily agree that the preferences/eminent domain example proves the point you are making.

CIR brought Jennifer Gratz and Barbara Grutter, rather sympathetic figures, and the Michigan admission grids to the debate, and this certainly qualifies as solid public relations activity. I don't see too much difference between that and what IJ did with Kelo.

Again, I think the differences in relative success had more to do with how those issues play in the partisan environment. Race is just more polarizing than economic development takings, and that is why I think the legislators have to be bypassed for progress to be made on the preference issue, while progress on economic development takings can be made on multiple fronts.
3.3.2008 12:05am
Public_Defender (mail):
I always thought that being a public defender was a libertarian public interest law position. After all, we stand between our clients and the most awesome power the state wields against its own citizens. As an example, if you look at the rationale behind many of the IJ's property cases, they are the same as the rationale behind the Fourth Amendment.

But unlike the IJ, criminal defense attorneys are specifically mentioned in the Constitution. In fact, other than federal judges, we are the only lawyers with a constitutional mandate.
3.3.2008 5:29am
KMM:
Ilya,

Why do you not mention Zelman v. Simmins-Harris in the listing of IJ's Supreme Court cases. Indeed, Zelman was a victory and Kelo was not.

Just curious.
3.3.2008 11:19am
Hans Bader (mail):
FACTUAL CORRECTION:

The principal CIR client in Morrison -- Morrison himself -- was never held to be a rapist. Indeed, quite the contrary, the evidence of rape (as opposed to consensual sex) was so weak that a county grand jury specifically refused to indict him (issuing a "not a true bill" statement rebuffing the prosecutors' request for an indictment). (That, of course, didn't prevent a civil lawsuit).

You can find this mentioned in passing in the supreme court brief of either Crawford or Morrison, I forget which.

The courts in Morrison assumed solely for the sake of argument that a rape occurred because the case was decided on a motion to dismiss, where all facts have to be assumed in favor of the plaintiff (who alleged rape).
3.3.2008 12:59pm
Zywicki (mail):
A purely philosophical question--if you do your work "pro bono" does that create a conflict of interest? I'm actually asking seriously here--if you do work on a volunteer basis, does that give rise to a conflict of interest with respect to the group (as opposed to the matter)?
3.3.2008 1:27pm
JM Hanes:
"Although CIR has won as many or more important courtroom victories, IJ has been more effective in leveraging its courtroom victories (and even its defeats) into actual changes in the real world."

Unless I'm missing something, it seems to me that the post-Kelo script pretty much wrote itself. That decision hit the public where they live, literally, with the stark and stunning revelation that there was no such thing as private property. The threat was clear, and so was the fix. Leveraging eminent domain onto the Supreme Court docket with a perfect client certainly fits your description of an emblematic achievement; after the decision was rendered, however, turning judicial defeat into legislative gains was mostly a matter of directing traffic.

No such clarity, whether political, judicial or legislative, attaches to issues of affirmative action. Public opinion is divided on the nature of the threat, the desirability (and appropriate venue) of a fix, the contours of potential legislation, and the definition of success. Awarding post decision honors looks like an apple and oranges proposition when you start out with a win/win issue on the one hand and a lose/lose issue on the other. Perhaps there are other cases which would allow a more substantive comparison of institutional differences in post-decision logisitcs and results.
3.3.2008 4:26pm