[Volokh] Ilya Somin: The Rise of Libertarian and Conservative Public Interest Law:

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Posted by Ilya Somin:
The Rise of Libertarian and Conservative Public Interest Law:
http://volokh.com/archives/archive_2008_03_02-2008_03_08.shtml#1204438262


   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' [1]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
   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 [2]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.

   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 [3]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 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, groups 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.

   Despite the important progress that has been made, Teles argues that
   the libertarian and conservative public interest law movement still
   has important 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.

References

   1. http://www.amazon.com/Rise-Conservative-Legal-Movement-Princeton/dp/0691122083
   2. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=976298
   3. http://www.law.cornell.edu/supct/html/99-5.ZS.html