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A New Mission for Conservative Public Interest Litigation

Editor’s note: This is a modified version of Michael Greve’s comments he delivered on a panel called “Public Interest Litigation in the Modern Era” at the Federalist Society’s 2017 Annual Lawyers Convention in Washington, D.C.

I used to be in the public interest litigation business, back in the premodern era. My comments here briefly summarize an outsider’s observations on what I think has changed in public interest law and what its role should be in the future of conservative-libertarian politics.

Back in the 1990s, the playbook, which we had inherited from the Left, was to discredit establishment institutions and to amp up the volume on public debate. For example, universities were run by overpaid blowhards who stifled any informed debate over their affirmative action policies under a cone of silence. We sued to show that the emperors were stark naked. No regrets.

That still has to be the agenda in many venues. The Higher-Ed/Office for Civil Rights sexual harassment cartel—which the blob will perpetuate with or without the Office for Civil Rights—is a fine example. Go forth and litigate and discredit, especially the younger lawyers among you: it’s a stable job because college administrators are incapable of being shamed. In other domains, however, we should entertain a second, somewhat different thought.

Just which institution can we still discredit that hasn’t already done so all by itself? And do we seriously want to increase the intensity of our so-called public debate beyond Ingraham After Dark, or the tweets from the White House? Please. Within the Federalist Society and beyond, we have always rejected political nihilism and incendiary diatribes. We have stood for, and practiced, constitutional politics and reasoned debate. If we want to renew those foundational commitments, we cannot freeze ourselves in a convenient oppositional posture; we have to find ways to re-legitimize institutions and help to re-generate a public debate that is worth having. How?

For one thing we could staff agencies with people who are committed to lawful government; to effective government; and to communicating their agencies’ core mission. Incredibly, that has happened. A Chris DeMuth has noted in a characteristically fine Wall Street Journal piece,   our “anti-administrativist” friends are in fact re-legitimizing the instruments of lawful, professional, constitutional  government. We have lots of people like that, and they can draw on a deep intellectual reservoir, because of patient, persistent work and effort, as often as not under the Federalist Society’s umbrella and penumbras. But for that investment, we might be Venezuela.

What can public interest law contribute further to this accomplishment? Let me save tactical questions surrounding lawsuits against co-pathetic agencies for Q&A and say a few words about broader questions.

Litigation is naturally adversarial and in-your-face. Still, it can contribute to legitimating institutions and a more reasoned debate. Examples come readily to mind (emphasis on examples—I don’t mean to play favorites or be exclusive):

  • Ted Frank’s Center for Class Action Fairness has blown up a ton of collusive class action settlements—cases where a missing half-inch of a Subway sandwich is worth several millions of dollars to the lawyers and nothing to anyone else. (Disclosure: CCAF is part of the Competitive Enterprise Institute, on whose Board I serve.)
  • The Institute for Justice has litigated and won dozens of occupational licensing cases. (You used to need a license to massage a horse, and another to floss its teeth.)
  • The Pacific Legal Foundation has successfully litigated cases like Sackett v. EPA, representing land owners whose property value is effectively wiped out by government permitting requirements.

These and similar cases brought by other energetic public interest firms illustrate the somewhat ambivalent quality of litigation. Of course, the folks on the other side are no good, and you want to take them down. But cases of this sort also help to re-center public debate on safe and sound ground between a shouting match and impenetrable legalisms. What the examples have in common is that they concern adjudication (as opposed to pre-enforcement agency rulemakings); and they involve tangible, easy-to-explain abuses.

During the Obama Administration we had to challenge—on our own, or alongside state attorney generals and trade associations—extra-legal rulemakings on the environment, healthcare, immigration, etc. Again, no regrets. But it’s fair to say that those necessary challenges look like an interest group sport: armies of combatants fight over the true and correct meaning of section 111(d) of the Clean Air Act. Engagements on that darkling plain are hard to follow for anyone who is not already invested. It’s much easier to have a reasonable public debate about whether this agency can do that to these hairbraiders, or what-have-you. So instead of longing for the good old days of suing the Obama administration over yet another lawless excursion, we should gladly leave the rulemaking to our friends and look for cases that promise to resonate broadly and, at the same time, nudge the law of adjudication—whether it’s class actions or Administrative Procedure Act matters—in a more rights-oriented direction.

My main worry, in terms of re-legitimating institutions and engendering a more constructive public debate, concerns religion and culture. Two decades ago we still had a Lockean consensus on religion and public life, which held (among other things) that we will not weaponize the administrative state against religion. That consensus is embodied in the Religious Freedom Restoration Act, passed under the Clinton Administration with overwhelming bipartisan support. It has obviously collapsed. Now, the Little Sisters of the Poor have to fight for an exemption from a statutory mandate that is (a) insane and (b) cannot conceivably apply to them. And the baker can bake and sell me a cake, or not, only upon proof that he is an artist.

Lots of folks on our side find these cases hard. I don’t. To my mind the right not to deal belongs to everyone—artist, baker, or coal miner; nun or non-religious. That right is the foundation of a free society and its institutions (especially contract). It is the first and last line of defense against the administrative state; and you need a really compelling reason to declare the right defeasible. If we can no longer defend or even articulate that line, there’s little point to obsessing over Chevron’s metaphysics.

Reader Discussion

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on November 21, 2017 at 09:40:28 am

I am strongly in agreement.

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Paul Binotto
on November 21, 2017 at 10:21:38 am

Here is a link to a video of Phillip Hamburger on the corrosive effects of the Admin State from a Federalist society meeting.

http://www.powerlineblog.com/archives/2017/11/the-administrative-state-revisited.php

(Hamburgers comments are found in the first ten minutes or so - quite good, really).

I wonder will his new organization adopt the tactic suggested by Prof Greve?
Rather than seek to de-legitimize, attempt to make the offending (offensive, perhaps?) agency, at least, moderately compliant with constitutional requirements.
Of course, to accomplish that, it may be necessary to first highlight, both to the populace and the agency minions, the present deficiencies of the agencies.

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gabe
on November 21, 2017 at 11:07:14 am

Thank you for posting this. Well parsed.

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aez
on November 21, 2017 at 12:11:20 pm

To my mind the right not to deal belongs to everyone—artist, baker, or coal miner; nun or non-religious.

A traditional view—although one that was inconsistent with English common law since the mid-1700s, as noted in Sir William Blackstone’s Commentaries on the Laws of England (1765–1769):

[I]f an inn-keeper, or other victualler, hangs out a sign and opens his house for travelers, it is an implied engagement to entertain all persons who travel that way; and upon this universal assumpsit an action on the case will lie against him for damages, if he without good reason refuses to admit a traveler.

And obviously a view that is inconsistent with the federal 1964 Civil Rights Act, Title II, and the ensuing 50+ years of precedent. And presumably with the various state civil rights acts.

And, when adopted by government agents, a view that arguably conflicts with the 14th Amendment’s requirement of equal protection of the laws.

Still, quite traditional.

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nobody.really
on November 21, 2017 at 12:33:12 pm

Interesting link, thanks for sharing it, Mr. Gabe.

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Paul Binotto
on November 21, 2017 at 12:46:16 pm

Yes, but given your oft cited support for your "Market Choice" (I think that is the term you used) theory which does afford the "no-deal" option to citizens, why not simply amend the quoted phrase as follows:

"To my mind the right not to deal [generally] belongs to [almost] everyone—artist, baker, or coal miner; nun or non-religious [tempered only by the nature of the public service(s) on offer].

Shelter is, of course, somewhat more critical than a sweet confection, and as such may justify the limitation of a right to "not-deal."
If i recall, in the State of Alaska, it is illegal to NOT pick up a stranded traveler during the winter (heck, maybe even in the summer?). This makes sense; but does it follow that I have to provide a drink to an obnoxious patron in my bar, or a cake to any and all comers?

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gabe
on November 21, 2017 at 15:12:37 pm

Gabe—you remembered my Market Power affirmative defense for allegations of discrimination? I’m flattered!

But under that test, it matters not whether the requested good/service is “critical.” All that matters is whether a vender who wishes to withhold a good/service refers the customer to another nearby vender with comparable goods/services at comparable terms. Even public servants can decline to serve if they can make a prompt referral to another public servant who is present, ready, and willing to serve.

The Alaska policy sounds more like a mandatory “Good Samaritan” law. The merits of such a policy clearly implicate Greve’s “right not to deal,” but I’d guess can be distinguished on the theory that rules that apply during exigent circumstances may differ from rules that apply under other circumstances.

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nobody.really
on November 21, 2017 at 15:22:27 pm

"Gabe—you remembered my Market Power affirmative defense for allegations of discrimination? I’m flattered! "

Heck, I am *flattened* that I did! -Ha.

re: "exigent circumstances" _ perhaps, it is another example of the the exception proving the rule?

But I am partial to your MPAD theory as it seems to me to take cognizance of the inevitable "collisions" attendant upon human intercourse while avoiding State mandated restrictions upon liberty of citizens.

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gabe
on November 21, 2017 at 16:46:22 pm

Do you have a substantive point, Professor Greve? I so want to agree with you (or at least to argue) over something material to conservative public interest advocacy, but I can't find your essential point. (Maybe that's the fault of the abridgement.)

In his snarky if not preening comment (citing Blackstone only to be argumentative?) "nobody.really says" (really!) says that you say that we should litigate "the right not to deal" (which you, perhaps, have worded a bit too loosely.)

Is that your point? I don't think so, but I'm unsure. If so (besides the risk of "smartest man in the room Roberts" somehow or other end-running the "right" not to deal by converting constitutional restraints into legislative powers to tax) I worry about the myriad other truly awful, unlawful federal intrusions that would go unattended.

Protecting American Christians from secular progressive hostility and atheist enemies (and protecting American law from sharia intrusion which is much more than the "right not to deal') are, indeed, vital cultural objectives. Those goals would be served by a generation of public interest fights in court over the religious, free speech and associational rights not to deal (and with sharia, over allowable restraints to Islam's free exercise right.) But I think there is not much long-term necessity for fighting on those public interest fronts as the Republican Congress (Dem's can't run away) with a few amendments of federal law and the (new) Court with a few cases (already sure to be brought) will close off the federal attacks against Christianity (and the inroads of Islam) rather peremptorily. And state and local law sharia attackers will also retreat as Christianity's defenders flex their resurgent political power (as Trump's election has demonstrated.)

I think that Professor Hamburger in his "Is Administrative Law Unlawful" has charted both the most iceberg-laden seas to be cleared and the most constitutionally-important goal of the next generation of public interest litigation. Chevron is a big deal, but it is just the tip of one of the mountains of ice sheltering the admin state leviathan.

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timothy
on November 22, 2017 at 14:26:02 pm
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nobody.really
on November 23, 2017 at 13:18:38 pm

Interesting piece!

Still the question remains: How do we (or ought we) deal with the collisions of life?

What struck me is that one of the DF guys was reported to have expressed an understanding that "we have to learn to live "with pluralistic views.

If only both sides of the issue would do so perhaps the "collisions" would resolve themselves into "inconveniences".

A Thanksgiving hope, I suppose.

And best to you!

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gabe
on November 23, 2017 at 13:19:35 pm

Oops: Should read: "..one of the ADF guys..."

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gabe

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.