Advancing Liberty, One Brief at a Time

Fall 2004

Advancing Liberty,
One Brief at a Time

HAN Member Daniel P. Muino works
with IJ to vindicate property rights
(And he does it without qutting his day job)

By Daniel P. Muino

As a civil litigator living in San Francisco, I enjoy this fine cosmopolitan city, with its world-class performing arts organizations, splendid scenery and satisfying pace of life. But, alas, being a libertarian marooned in the liberal wilderness that is my hometown is not always easy, particularly when it comes to finding good pro bono opportunities. I want to help individuals live freely and securely, without excessive interference from their government. Fortunately, I found a pipeline to a rich source of libertarian pro bono work—the Institute for Justices Human Action Network.

I first met the friendly folks at IJ in the summer of 1998, when I served as an IJ law clerk. That summer I received a strong dose of undiluted libertarianism. IJs attorneys certainly understand the practical political and legal realities that they face, but they never lose sight of their mission—to create a freer society with less government intrusion and more individual autonomy. My co-clerks were brilliant and enthusiastic champions of the cause, well-steeped in the classical liberal tradition of Jefferson, Madison, Hayek, Friedman and Rand. After law school, some landed positions at think tanks and universities, while others went into private practice. At least for now, I am following the latter path.

Naturally, we private practice attorneys cannot devote all of our time to the cause of liberty. Our handsome paychecks come with some billable requirements. I have been lucky to find a practice that is intellectually stimulating and satisfying. But I still get a hankering every so often to join the fight for freedom. When that feeling comes upon you, my fellow private practitioners, rest assured that IJ offers some excellent opportunities.

One of the best projects for busy private practice lawyers to undertake is writing an amicus brief. Earlier this year, I researched and wrote an amicus brief on behalf of IJ to the Oklahoma Supreme Court in an eminent domain case that will set (I hope) an important precedent against government condemnations for private profit in that state.

Like so many misguided local governments across the country, Muskogee County was attempting to seize private property from some of its citizens (in this case, Oklahomans Edward and Mary Lowery) to enable a private company to build a plant. The county argued that the proposed seizure and reallocation of the Lowerys property for use by the private plant would produce more local jobs and tax revenues. Of course, this argument would apply to virtually all seizures on behalf of private companies, since almost any business can produce more taxes and jobs than a residence.

Happily, the Lowerys have the U.S. and Oklahoma constitutions on their side, both of which permit the taking of private property only for public use, not for private benefit. My amicus brief surveyed Oklahoma cases and statutes concerning public use, drew upon useful decisions from state supreme courts around the country, and presented an array of policy considerations germane to the issue. We are anxiously awaiting a ruling from the Court.

How is the IJ amicus experience valuable to libertarians in private practice? First, you can make a meaningful contribution to the cause of liberty for a reasonably limited time investment (as compared to the open-ended commitment of representing a party). Second, you can catch up on fascinating legal subjects at the cutting edge of libertarian litigation. Third, you can add your own ideas to the mix, perhaps bringing fresh arguments or a new perspective to the field.

Finally, you will provide vital assistance to the property owners and the courts. Property owners do not always have the resources to permit their attorneys to conduct extensive research and fully present all the significant cases and policy points. Your amicus brief can provide important case law, historical background and conceptual discussions that the court might not otherwise consider. Your contribution can help make the difference between a good and a bad ruling.

IJ has also inspired me to work on an amicus brief to the U.S. Supreme Court in the case of Kelo v. City of New London. The city of New London, Conn., is attempting to condemn more than a dozen homes belonging to longtime residents in order to make way for a private business development. This time it is IJ itself that represents the homeowners. I look forward to charging once more into the breach with my dear friends from IJ and doing what I can to preserve our system of private property rights.

We all know what happened when Robert Frost saw two roads diverging in the wood—I chose the one less traveled by, and that has made all the difference. For attorneys in private practice, the liberty-advancing opportunities available through the Human Action Network hold the promise of taking both roads at once: we can make a real difference in the fight for liberty without quitting our day jobs.

Daniel P. Muino (LSC 98) is an associate with Gibson, Dunn & Crutcher LLP in San Francisco.

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