Lawyering for Justice Irina Manta • The merry band of litigators Freshman 2003

Everybody knows what lawyers are like: crooks without principles who would rather chase ambulances than change the world. People that would not like this stereotype challenged should avoid the offices of the Institute for Justice, a libertarian public interest firm based in Washington, D.C. I had the opportunity to spend two months this summer interning at IJ, watching the lawyers who are changing the face of America on issues such as school choice, free speech, eminent domain and economic liberty one case at a time.

Founded in 1991 as a public interest law firm and advocacy group by William H. Mellor, former presid e n t of the Pacific Research Institute for Public Policy, and Clint Bolick, former director of the Landmark Center for Civil Rights, the Institute for Justice has brought several lawsuits against the government when it infringed on individual rights. In addition, it has written amicus briefs and held law student conferences as well as training seminars for those interested in advancing the cause of liberty in America. Over the last twelve years, it has greatly increased its number of lawyers and opened state chapters in Arizona, Washington and North Carolina.

One of the major achievements of the Institute for Justice has been to wrest the term “civil rights” out of the hands of the political Left. The firm has publicized the way in which poor parents have been obliged to leave their children in schools in which 4 out of every 5 children never graduate. In 2002, IJ defended the Cleveland school voucher program before the U.S. Supreme Court and won – school vouchers were declared constitutional by the Court, which IJ believed to be the “most important educational decision since Brown v. Board of Education.” The Institute for Justice continues to fight in state courts to remove the last legal barriers that prevent parents from sending their children to better schools.

The firm has had further victories in the area of economic liberties. In one such case, it represented Taalib- Din Abdul Uqdah and his wife Pamela Faerrell, the owners of a successful African hairbraiding salon, who were harassed by the District of Columbia to undergo an expensive and time-consuming process to acquire a cosmetology license. The Cosmetology Code, however, was not related to their craft and the techniques that the Code regulated were not used in Uqdah’s business. Due to that lawsuit, the District of Columbia lifted its requirements on hair-braiders, thus allowing them to pursue their trade without further interventions. Many people do not realize how often poor people and minorities are the ones hurt by the government’s regulatory processes because they do not have the means to pursue extensive licensing programs that, as in Uqdah’s case, have little to do with their business.

IJ has also managed to win cases that resulted in the break down of monopolies, thus for instance allowing people to form a cab business in Colorado, a limousine business in Nevada, or a casket company in Tennessee. IJ also won a federal case that lifted New York’s ban on direct shipments of wine to consumers by out-of-state wineries, thanks to which residents were able to conduct business with a variety of sellers in ways that had been prohibited before.

Most recently, the Institute for Justice succeeded in getting a federal court to strike down the City of New Orleans’ ban on selling books in the streets. The case involved two young people, Josh Wexler and Anne Jordan Blanton, who wanted to sell books in the streets with the ultimate goal of opening their own bookstore. In a move that would make the Founding Fathers turn in their graves, New Orleans officials told the burgeoning entrepreneurs for a year and a half that setting up a bookstand in the city could not happen without a permit – but that such permits were not issued! The City Code made selling without a license a misdemeanor crime, punishable by up to five months in jail. After IJ took up the case, the U.S. District Court for the Eastern District of Louisiana ruled that the City’s law “operates as an overriding ban on book-selling” and “[a]s a consequence of this finding, the First Amendment applies in this case because book selling is a form of expression .... [Wexler and Blanton] will be denied First Amendment freedoms if the ordinance is enforced whereas [the City of New Orleans] does not appear to be at risk of suffering any harm.”

The efforts of the Institute for Justice extend beyond the area of regulation. Yalie Dana Berliner (TD ’87, LAW ’91) and other lawyers have been fighting the government’s use of eminent domain for years. Eminent domain was described in 1795 by the U.S. Supreme Court as the right of the government to take private property for “public use,” meaning for public projects such as roads. Today, however, many local governments have unilaterally expanded the meaning of those words and attempt to take private homes or businesses to replace them with other homes, apartment buildings, businesses or casinos. Imagine a government official knocking on your door and telling you that it would really make more sense to have someone else live or work where your house now stands, because they would make more money and pay more taxes than you.

In April of this year, Dana Berliner put out “Public Power, Private Gain,” a five-year report delineating 10,000 cases of eminent domain abuse throughout the country. One of the most egregious cases was the dislocation of over 5,000 residents (the equivalent of all Yale undergraduates) for private commercial and industrial development in Riviera Beach, Florida. In Hurst, Texas, 127 homes were threatened to be condemned for an expansion of the North East Mall, which was supposed to bring the city an increase in sales and property tax revenue. Most homeowners decided to sell their houses when faced with the threat, but ten couples refused to do so and brought a lawsuit. Many of them had lived there for over 30 years. A trial judge refused to stay the condemnations and the owners lost their homes. Two residents, Leonard Prohs and Phyllis Duval, had to move while their respective spouses were in the hospital with cancer. Over the duration of the fight and lawsuit, three residents died and four others had heart attacks. This case highlights the fact we cannot separate a man’s right to his home, or his trade, from his right to life itself. The United States government was put in place to ensure the secure functioning of society, not to disrupt the everyday existence of its citizens.

The Institute for Justice goes to court with the same goal in mind each time: to restore liberty in order to allow people to make decisions for themselves and their children. Its lawyers firmly believe that both federal and state governments have to be bound by the principles set out in our constitution and that judges have to protect people’s rights when the legislatures are unfortunately not willing to do so. Theirs is not a call for excessive judicial activism, but rather one of restraint on all branches of government to fulfill America’s promise of life, liberty, and justice for all.

Irina Manta is a first-year Law student.