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.
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":