Tag: Institute for Justice

Conservatives vs. Libertarians on Judicial Activism

I should have posted this earlier, but if anyone interested in legal issues – should be everyone given that most things coming out of Washington these days have constitutional defects – hasn’t yet read Damon Root’s cover story in the July issue of Reason magazine, drop what you’re doing now and do so.

While not a J.D. – or perhaps because he isn’t – Damon paints a completely accurate picture on the differences between conservative and libertarian approaches to constitutional interpretation and judicial philosophy.  And I don’t mean a rehash of debates on social issues except in legalese; there are real subtleties involved, particularly when most people adhering to either of these camps call themselves “originalists” of one stripe or another.  Damon’s article is both deep and wide, surveying the landscape of relevant legal thinkers and explaining to non-lawyers why all this is so, so important.  (And no, I personally am not featured.)

What is more, you can now also watch Damon discussing his article and reporting in this area:

This is groundbreaking and important journalism.

Free Trade Begins at Home

When pundits discuss “free trade,” most people think of international trade, eliminating tariffs, import quotas, and the like. That’s because the Constitution’s Commerce Clause – the one Congress has been using and abusing for decades – grants the government the power to “make regular” trade between the several states.  For example, Oklahoma can’t ban imports of beef from coming across the Red River and New York can’t have a different licensing regime for long-haul tracks entering from New Jersey rather than Pennsylvania.

While this commerce- (and liberty-) enhancing feature of our federal system has required a Supreme Court reminder for traditional wine retailers in recent years, Americans have generally taken for granted that buying and selling products between American jurisdictions is perfectly normal.

It may surprise you to learn, then, that in Lake Elmo, Minnesota, proprietors of a 40-year-old family farm that yields flowers, pumpkins and Christmas trees, are facing fines and 90-day jail sentences for attempting to sell their products in that town.  The reason?  Part of their farm lies outside city limits, and in Lake Elmo it’s illegal for farmers to sell products – even from their own land – unless they were grown within the city.  You can view a short video about their story here:

Thankfully, our friends at the Institute for Justice are stepping up to defend these folks for making a living by engaging in domestic free trade.  This blatant protectionism is harmful and foolish when practiced with foreign trading partners, and is all the more repugnant when practiced against one’s own neighbors who provide the community with valuable goods and services.  That these law-abiding entrepreneurs face potential jail time for the crime of “selling produce across city lines” is anathema to the Constitution.

You can read Cato’s work on agricultural free trade here

Fifth Anniversary of Kelo v. New London

With all the property rights news coming out of the Supreme Court and New York Court of Appeals in the last week, I almost missed Wednesday’s fifth anniversary of the dreadful Kelo v. New London decision.  Justice Stevens’s  opinion in Kelo sanctioned a transfer of private property from homeowners to a big company in the name of (promised but, as we’ve seen, never realized) job creation and increased tax revenue. 

This was a Pyrrhic victory for eminent domain abusers, however, given:

  • 9 state high courts have limited eminent domain powers;
  • 43 state legislatures have passed greater property rights reform;
  • 44 eminent domain abuse projects have been defeated by grassroots activists;
  • 88 percent of the public now believes that property rights are as important as free speech and freedom of religion.

To learn about these and other fascinating developments that turned a property rights lemon into at least some type of lemonade, see the Institute for Justice’s new report and video.

No One’s Property Is Safe in New York

Sad to say, but as expected, New York State’s highest court, the New York Court of Appeals, has just upheld yet another gross abuse of the state’s power of eminent domain, exercised by the Empire State Development Corporation on behalf of my undergraduate alma mater, Columbia University, against two small family-owned businesses, one of them owned by Indian immigrants. Details can be found in the press release just issued by the Institute for Justice, which filed an amicus brief in the case and has been in the forefront of those defending against such abuse across the country.

IJ has had success in obtaining eminent domain reform in over 40 states, but New York remains a backwater, where collusion between well-connected private entities and government is rampant, and the courts play handmaiden to the corruption by abdicating their responsibilities. Just one more example of why New York is an economic basket case, with a population that continues to flee to more hospitable climes. I’ve discussed the property rights issues more generally here.

Cato’s Amicus Brief Helps School Choice Get to the Court; Congrats, IJ!

As Andrew Coulson noted, the Supreme Court has agreed to hear Arizona Christian School Tuition Organization v. Winn, the education tax credit case whose cert petition Cato supported with an amicus brief.  So we didn’t get the summary reversal we optimistically hoped for but I’m confident that this means only that the Ninth Circuit’s reversal will have to wait 8-10 months.  Congratulations to Tim Keller, Dick Komer, and our friends at the Institute for Justice, which successfully litigated the Zelman v. Simmons-Harris case that is the pro-school choice precedent the Ninth Circuit so blithely ignored here. 

I should note that ours was one of only three amicus briefs filed in this case, and studies have shown that the first few such briefs increase chances of Supreme Court review significantly (having more than about three seems to be redundant).  Which isn’t to say that we take credit for the successful strategy that IJ and its co-counsel are pursuing – indeed, as is good appellate practice, we coordinated with IJ so our brief would offer the Court some arguments and nuance for which the parties’ briefs didn’t have space – but it is gratifying to see the Court impliedly see the validity of our position.  We will of course be filing again at the merits stage, which briefs won’t be due for a few months.  The Court will likely hear the case in late fall, so we should expect a final decision in winter 2011.

For all the filings in the case, see its SCOTUSwiki page or its Supreme Court docket page.  I blogged about the case here and here and George Will wrote about it last week.  Andrew also blogged the original Ninth Circuit decision here.

Policing for Profit

The Institute for Justice has produced a study, Policing for Profit, which highlights the abuse of civil asset forfeiture laws. Law enforcement agencies are empowered across the nation to seize and keep property suspected of involvement in criminal activity. Unlike criminal  asset forfeiture, however, with civil forfeiture, a property owner need not be found guilty of a crime—or even charged—to permanently lose her cash, car, home or other property.

Most state laws are written in such a way as to encourage police agents to pursue profit instead of seeking the neutral administration of justice. The report grades each state and the federal government on its forfeiture laws and other measures of abuse. The results are appalling: Six states earned an F and 29 states and the federal government received a grade of D.

Institute for Justice has more on the report here, including a video showing the injustice created by these laws.

Cato is holding an event to highlight the findings of this report on Wednesday, April 28. Please join us for a discussion of policing, constitutional rights, and government accountability. You can register here.

Policing for Profit

Our friends at the Institute for Justice just released a comprehensive report on the abuses that go on under the legal procedure known as “civil asset forfeiture.”  The report is called Policing for Profit (pdf). Here is a short video clip that IJ put together:

Senior IJ attorney Scott Bullock will be speaking on this subject here at the Cato Institute on April 28.  Details on that event are forthcoming.

For related Cato work on forfeiture, go here and here.