Clark Neily


Senior Attorney

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Clark Neily joined the Institute for Justice as a senior attorney in
 2000.  He litigates economic liberty, property rights, school choice, First Amendment, and other constitutional cases in both federal and state 

Clark has represented entrepreneurs and property owners in more than twenty states across the country. He served as counsel in a successful challenge to Nevada’s monopolistic limousine licensing practices and led IJ’s opposition to a nationwide effort to cartelize the interior design industry through anticompetitive licensing laws.  In his private capacity, Clark represented the plaintiffs in District of Columbia v. Heller, the historic case in which the Supreme Court announced for the first time that the Second Amendment protects an individual right to own a gun for self-defense.

Clark is also the Director of IJ’s Center for Judicial Engagement, 
which was created to challenge the unconstitutional expansion of 
government by articulating a principled vision of judicial review, educating the public about the importance of a properly engaged 
judiciary, and advocating the Constitution as a charter of liberty and a 
bulwark against the illegitimate assumption of government power.  Clark has written a book about judicial engagement, titled Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government.

Before joining the Institute for Justice, Clark spent four years as a litigator at the Dallas-based firm Thompson & Knight, where he worked on a wide variety of matters including professional malpractice, First Amendment and media law, complex commercial cases, and intellectual property litigation. Clark received his undergraduate and law degrees from the University of Texas, where he was Chief Articles Editor of the Texas Law Review. After law school, he clerked for Judge Royce Lamberth on the U.S. District Court for the District of Columbia.

Clark Neily is a member of the DC and Texas bars.

Current Cases

In the News

Research and Reports

  • October 5, 2015    |    Legal and Policy Studies

    Enforcing the Constitution

    How the Courts Performed in 2014–2015

    The Constitution was written to limit government power, but those limits are meaningless unless judges restrain public officials when they overstep their bounds. Judicial engagement is a cutting-edge approach to judicial review that ensures that Americans receive an honest, reasoned explanation in court whenever they allege a plausible abuse of government power.  Enforcing the Constitution…

  • October 1, 2014    |   

    The most important debate in constitutional law today is within the conservative-libertarian movement over the proper role of courts in mediating personal freedom and government power. At one end of the spectrum are those who support robust judicial review and the protection of rights not specifically enumerated in the text of the Constitution; at the…

  • March 1, 2014    |   

    Every person who goes into court deserves a sincere, impartial judge. A substantial portion of American constitutional doctrine is devoted to ensuring they don’t get one. What civil rights plaintiffs often get instead is a judge who wears the garb of a referee while actively playing defense for the home team. The call for “judicial…

  • August 1, 2013    |    Legal and Policy Studies

    Terms of Engagement

    How Our Courts Should Enforce the Constitution's Promise of Limited Government

    The Constitution was designed to limit government power and protect individuals from the tyranny of majorities and interest-group politics. But those protections are meaningless without judges who are fully committed to enforcing them, and America’s judges have largely abdicated that responsibility. All too often, instead of judging the constitutionality of government action, courts simply rationalize…

  • September 1, 2011    |    Legal and Policy Studies

    Government Unchecked

    The False Problem of "Judicial Activism" and the Need for Judicial Engagement

    The past five decades have seen a relentless expansion in the size of government and a sharp increase in the num­ber of liberty-stifling laws and regulations at every level. Despite this explosion of political power, commentators and scholars of all ideological stripes appear to worry more about the supposed growth of judicial power. Those who…

  • March 6, 2010    |    Scholarly Articles

    The Florida Supreme Court vs. School Choice

    A "Uniformly" Horrid Decision

    School choice is the civil rights issue of the twenty-first century. In the Information Age, knowledge is not just power—it is destiny. As a result, no issue more fundamentally divides the “haves” and the “have-nots” in America than who gets to choose what schools their children attend and who does not. Around the country, hundreds…

  • January 26, 2010    |    Scholarly Articles

    Getting Beyond Guns

    Context for Coming Debate over Privileges or Immunities

    The Fourteenth Amendment represents a deliberate decision by the people of this nation to make the U.S. Constitution—not state constitutions and not state officials— the primary guardian of liberty in America. The purpose of the amendment was to secure the basic civil rights of all citizens, regardless of race, and to give federal judges both…

  • January 1, 2010    |    Scholarly Articles

    The Right to Keep and Bear Arms in the States

    Ambiguity, False Modesty and (Maybe) Another Win for Originalism

    District of Columbia v. Heller was an easy case to get right. First, there was the text of the Second Amendment, which plainly states that “the right of the people to keep and bear Arms, shall not be infringed.” Second, there was history, much of it created by citizen‐soldiers who had just won their independence…

  • April 1, 2007    |    Legal and Policy Studies

    School Choice and State Constitutions

    A Guide to Designing School Choice Programs

    After reviewing each state’s constitutional provisions for passages most relevant to school choice legislation, as well as any case law or legal opinions involving those provisions, IJ found that in nearly every state in the union, a well-designed school choice program is viable.

  • December 1, 2006    |    Scholarly Articles

    One Test, Two Standards

    The On-and-Off Role of "Plausibility" in Rational Basis Review

    Most of us have a drawer or a closest in our home where we put things that are not important enough to have their own place but are not quite worthless enough to throw away either. That is what the rational basis test is for the Supreme Court – junk drawer for disfavored constitutional rights…

  • June 1, 2005    |    Scholarly Articles

    No Such Thing

    Litigating Under the Rational Basis Test

    The original legal definition of insanity is the inability to tell right from wrong.1 So it is the first irony of the “rational” basis test that it is, according to that definition, insane. The word “basis” is likewise a misnomer, since the rational basis test is concerned not with the actual basis for challenged legislation,…

Liberty and Law

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