IJ Makes the Rounds if Federal Circuit Courts

January 29, 2009

IJ lawyers have had a busy few months advocating for economic liberty in federal appellate courts, with Scott Bullock defending Minneapolis’ free-market taxi reforms in the 8th Circuit and Clark Neily taking the fight to the Texas interior design cartel and the Maryland funeral home monopoly in the 5th and 4th Circuits, respectively.

Following an outreach campaign led by the Institute for Justice Minnesota Chapter, Minneapolis in 2006 lifted its artificial cap on the number of taxi licenses available to would-be entrepreneurs like IJ client Luis Paucar. Existing cab companies, however, filed suit to block the change on the theory that exposing them to new competition somehow amounted to a “taking” of their “right” to a government-conferred monopoly. IJ intervened and promptly got the case dismissed. The monopolists appealed, and Scott Bullock argued the case before the 8th Circuit in November. Scott explained that being protected from fair competition is not a constitutional right, and corporate welfare is not “property.” We expect a swift and favorable ruling.

Economic liberty was on appeal again in December, this time in the 5th Circuit, where Clark Neily sought to enjoin a Texas law that bars people who perform interior design from calling themselves “interior designers” without a government-issued license. While it is always difficult to predict outcomes of court cases, the judges seemed to agree from the outset that the lower court erred in refusing to issue a preliminary injunction, so Clark focused on persuading the panel that it should not stop there but should instead send the case back to the district court with instructions to skip the trial and simply enter final judgment in favor of the Institute for Justice’s clients. That is really swinging for the fences, but a law this ridiculous deserves nothing less from the Litigators for Liberty.

In yet another appeal for economic liberty, Clark carried IJ’s fight to break up a government-backed funeral home monopoly in Maryland to the 4th Circuit, where the question is whether the State Morticians Board should be enjoined from enforcing what the lower court judge described as “the most blatantly anti-competitive state funeral regulation in the nation.” The issues on appeal are whether IJ’s clients will be granted an injunction to end the cartel and also whether the state-sanctioned funeral monopoly violates not just the Dormant Commerce Clause, as the district court found, but also the more basic right to earn a living free from unreasonable government interference.

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