I look forward to Ilya's next post on the rise of conservative public interest law. Meanwhile, I though I'd chime in with my own comment on Steve Teles's take on the Institute for Justice and the Center of Individual Rights.
First, let me acknowledge that I'm a huge fan of both organizations, and have friends who work at each of them. Nevertheless, having followed their progress from the beginning, I perceive of some weaknesses and missteps that Teles ignores.
To take one major example, when I was a visiting professor at the University of Michigan, I had Dean Evan Caminker guest lecture to my Constitutional Law class on the Grutter/Gratz affirmative action litigation. Among other things, Caminker provided a very persuasive analysis of why suing the University of Michigan, as opposed to other possible targets, was a strategic blunder by CIR. Not least, the University was able to spend virtually unlimited funds defending itself without asking the state legislature, which would not have been true for most state universities. A far more congenial target would have been a university that needed special funding from the leglisature to fight CIR, along with an unsympathetic legislature.
Teles, however, seems to have relied primarily on interviews with the principals in these organizations, along with the access he received to their internal documents. This certainly provided him with many interesting insights, but I think also meant that a certain objective outsider perspective is lacking.
Related Posts (on one page):
- The Biggest Weakness of Conservative and Libertarian Public Interest Law:
- Interview with Institute for Justice President Chip Mellor:
- Steve Teles Responds:
- Conservative and Libertarian Public Interest Law:
- The Rise of Libertarian and Conservative Public Interest Law:
- Steven Teles' The Rise of the Conservative Legal Movement:
- The Influence of the Olin Programs in Law and Economics at Yale Law School and Otherwise:
- Teles's The Rise of The Conservative Legal Movement:
- Thoughts on Steven M. Teles, "The Rise of the Conservative Legal Movement":
Are you implying that proper way to get he supreme court to make the best possible constitutional decisions is to try and arrange matters so that the opposing view is presented by the least capable advocate possible? Surely one things get to the supreme court everyone has an interest in having the best possible advocacy on both sides? After all, these decisions are binding and rarely revisited.
Probably it would have made better tactical sense to sue other states instead of Michigan, but the rationale surely has to be that in those states the matter would not have reached the supreme court?
I'll let Prof. Bernstein's answer speak for itself, but it's somewhat naive to suggest that "public interest" litigators don't select defendants as well as plaintiffs when they're getting ready to bring a case. Moreover, as Prof. Bernstein alludes to, money buys more than just the best possible arguments on the substantive issues.
Also, I wonder if ardent supporters of affirmative action in college admissions wouldn't have stepped in to fund the defense of these practices no matter the school named as the defendant.
There never seems to be a shortage of outrage when groups like the ACLU engage in this sort of strategizing. Caminker makes a good point, and it's sauce for the goose. Anyway, one shouldn't overstate the significance of it - you don't get to the Supreme Court without a blizzard of amicus briefs regardless of how well or poorly funded one litigant happens to be. Besides, you might overshoot the mark and end up with a litigant who never takes things beyond District Court and who's going to be satisfied with that?
Michigan's affirmative action program, at both levels, were racsit pure and simple. At the undergrad level it had gone from a program where there were race admission cells where a black student would be automatically admitted and a white or asian student would be auto-denied...to a system where blacks and hispanics got as many bonus points to get in as a white student would get by being 1) straight A student; 2) perfect test scores; and 3) officer in a national student group. That is insane and cannot be anything other than a direct accusation that blacks can't do anything on their own.
The law school was even more insulting. For admissions they just said the hell with it, and did a flat quota (which they at first tried to call a strict goal and later a critical mass).
For law review? Quota. Why even screw around, they can't do anything on their own merit so just quota them in.
For exams? They had the MAP program. Blacks would have a pre-test given by the prof, who had to sit down with them and give them tips on how to do better on the real exam.
Michigan had taken AA to raw racism, and the world needed to be told.
Suppose CIR had sued Lake Superior State University instead. Assuming UM would have gotten wind of it and would have known full well what an unfavorable ruling against LSSU would mean for UM, would UM have just stood on the sidelines because they weren't a direct target? My guess is that they would either help bankroll LSSU's defense directly or formed an umbrella group in which they'd be the dominant partner to get every other public university in the state to chip in, if the state legislature wouldn't directly. Call it the Coalition to Retain Affirmative Action Programs. (I'll leave it to the eminent minds of the readers to figure that one out.)