Archive | Public Interest Law

My Contribution to the NYT ‘Room for Debate’ Blog on the AQ7 Argument

I’ll post up something fuller on my views about the AQ7 debate, but for now, here is my contribution at the New York Times’s “Room for Debate” blog.  (Like Orin, I’m a signer on the original letter objecting to the AQ7 ad.) [...]

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Constitutional suits against Obamacare

FoxNews reports that the Liberty Legal Institute and the Fund for Personal Liberty/10th Amendment Foundation are contemplating constitutional lawsuits against certain provisions of Obamacare. As various elected officials and public interest organizations consider their own litigation strategies, it would be helpful for them to know about how well the aforesaid organizations might present a constitutional case. Accordingly, I solicit comments from people who are familiar with the constitutional litigation track records of these two organizations. Do not offer comments about your views of the merits of the constitutional case about Obamacare. Please confine yourself to fact-based discussion of the strengths and weakness of LLI and FPL as constitutional law firms. [...]

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New Institute for Justice Economic Liberties Case

The Institute for Justice has recently filed a new case challenging an especially egregious infringement on economic liberties under the Constitution:

A civil liberties law firm has filed suit against the state of Texas on behalf of eight eyebrow-threading entrepreneurs, several of whom are based in San Antonio.

The Institute for Justice, Texas Chapter, is alleging the state government has violated the entrepreneurs’ constitutional rights by requiring them to go through a licensing process that mandates 1,500 hours of instruction at an estimated cost of $20,000…..

Wesley Hottot, lead attorney for the Institute for Justice Texas Chapter, says Texas’ proud heritage as a beacon for entrepreneurship is in danger “when the state tries to regulate every new industry rather than trusting entrepreneurs and consumers.”

Hottot says eyebrow threading is an ancient technique for removing unwanted eyebrow hairs using tightly wound cotton thread. “Threading is a booming industry in Texas because it is cheaper, faster and less painful than waxing,” he says.

But now the TDLR has threatened this small business-based industry by requiring practitioners to obtain what Hottot says are “expensive and irrelevant licenses in Western-style cosmetology.”

“Threading is not mentioned anywhere in state law, yet TDLR expects threaders, some with over 20 years of experience, to immediately stop working and spend $20,000 obtaining up to 1,500 hours of instruction in government-approved beauty schools that do not even teach threading,” Hottot says. “Further, threaders must pass government-approved cosmetology exams that do not test threading.”

Here is a link to an IJ video on the case. Despite the longstanding claim that judicial protection for economic liberties is just “judicial activism,” such protection actually has strong support in the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment, and other clauses. The original meaning evidence is discussed at great [...]

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The Harvard Law School Guide to Conservative/Libertarian Public Interest Law

In response to my recent post on conservative and libertarian public interest law, various law students and others have e-mailed me to ask whether there is a single comprehensive list of right of center public interest firms. The closest thing I know if the Harvard Law School Guide to Conservative/Libertarian Public Interest Law, available here. It may not be 100% comprehensive, and some information may be slightly dated, because the Guide was prepared in fall 2007. But it does cover all the most important right of center public interest organizations and describes the main areas they work on. It’s a good starting point for libertarian and conservative law students looking for jobs or summer clerkships in the public interest law world.

If anyone knows of a more recent version of the Harvard guide or of a similar publication put out by another institution, please let me know. I would be happy to link to it.

UPDATE: Some commenters make the obvious point that the Guide includes some conservative groups that pursue agendas that libertarians might disagree with (and vice versa). This is true, but it doesn’t undermine the utility of the guide. Very few people are likely to be sympathetic to all the agendas of the different groups listed. Likewise, there is no need to criticize the guide for omitting liberal organizations whose agendas overlap with those of libertarians in some way. These organizations are already well-known to most law students, and law school career centers usually already have information on them. By contrast, many law schools provide less access to information about organizations that are systematically libertarian or conservative.

This is not the post to discuss the broader issue of whether a libertarian-conservative alliance is desirable in this day and age. I think it is for [...]

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Addressing the Most Important Weakness of Conservative-Libertarian Public Interest Law

I recently renewed my membership in the Federalist Society, and got a mailing asking to sign up with the Fed Soc Pro Bono Center. I was only vaguely aware of this organization’s existence, even though it is a potentially important effort to address the most important shortcoming of conservative and libertarian public interest law. Perhaps it will be more successful in that effort, if more people learn about it.

Over the last 30 years, conservative and libertarian public interest firms such as the Institute for Justice, the Center for Individual Rights, and the Pacific Legal Foundation have mounted a strong challenge to the previously dominant legal left, and won some important legal victories for property rights, economic liberties, and limits on government power. However, right of center public interest law suffers from a key weakness: the paucity of lawyers available to conduct follow-up litigation to enforce favorable precedents. Even the most important federal and state supreme court decisions don’t change the legal landscape all by themselves; they usually require extensive follow-up litigation to make sure that government officials comply and that their principles are enforced in other cases where similar issues come up. Often, the people victimized by government violations of constitutional rights are poor, politically weak, or unable to engage in protracted litigation to vindicate their rights. This is true in the area of property rights, and many others of interest to libertarians and conservatives. Left-liberal scholars and activists have long understood this crucial lesson, and they have created an extensive network to facilitate follow-up litigation to enforce their high court legal victories. In almost every major law firm, there are lawyers who do small-bore pro bono cases on behalf of various left-wing causes. These cases often build on and enforce favorable appellate [...]

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