Honing the Cutting Edge in Constitutional Litigation

November 20, 2012

When we launched IJ in 1991, we pledged that we would pursue “cutting-edge” constitutional litigation. Back then, the state of the law was so bad that merely trying to take on decades of adverse precedent with new and innovative tactics was indeed cutting edge.

Over the years, we made progress and refined our tactics. And we gained a crucial insight: No longer is it enough to aggressively challenge the status quo; we must also bring to that challenge sophistication and skill that is unmatched and constantly strive to improve. To take on cutting-edge cases, we must be on the cutting edge in all we do.

Here is what that means.

Our issues must be at that place in the constitutional debate where there is the perfect convergence of topic and timing. This occurs when an issue rises to national prominence with the constitutional question clearly and compellingly presented. That doesn’t happen often or easily.

To be in that place, we look at our core mission areas—economic liberty, property rights, school choice and free speech—and identify the constitutional issues that offer a new way to frame the issue so that courts will more readily appreciate the real-world impact of the principle involved, and be more open to reconsidering adverse precedent. That constitutional issue may seem at first a bit technical or nuanced, but if we pursue it right, we will blaze a trail into new constitutional territory. Our challenge to occupational licensing laws that abridge free speech is an example of this approach. These cases lie at the intersection of economic liberty and the First Amendment. In our information-driven economy, these cases show how artificial and inappropriate it is to have different levels of constitutional protection for free speech and economic liberty. Free speech typically gets greater constitutional protection, but what if you earn your living by speaking, as is the case with our tour guide clients, for example.

Finding the issue is not enough. We pursue that issue creatively, applying every component of IJ. Our lawyers have to develop expertise on complex laws and voluminous case law. And while we still prefer facts that are relatively simple, we now routinely handle trials with expert testimony and a cascade of documents. Our strategic research breaks new ground regularly with impeccable analysis that withstands the scrutiny of our harshest opponents. As the traditional media has changed rapidly, so too has our communications program. Our communications program must adapt very quickly to this shifting environment. While long-established outlets like The Wall Street Journal and USA Today remain very important, we strive to excel with new media and as a result our communications work is reaching many new audiences and winning new awards. We continually find new ways to frame our issues in compelling and accessible ways for all of our audiences.

We focus these creative efforts on campaigns to raise issues to national prominence in conjunction with multiple cases. While the classic example of this was our work against eminent domain abuse, you will notice that we now have such campaigns underway in civil asset forfeiture, street vending, urban transportation and citizen speech. These campaigns succeed because we mobilize our litigation, communications, activism and strategic research on multiple fronts simultaneously and for extended periods of time. There are not many organizations that can do this. No other organization does this more effectively.

With seven offices and 67 staff (34 of whom are lawyers), we constantly have competing, urgent deadlines across the nation. Our administration and information technologies teams maintain systems and performance capabilities that enable us to set and meet such high goals. Our state-of-the-art video conferencing makes possible a “virtual hallway” environment that enhances team building and problem solving throughout IJ. Indeed, people have remarked that we make the impossible look easy. In recent years we have twice had two U.S. Supreme Court cases in the same term—a notable achievement for any law firm. We handled them without missing a beat on any of the other cases we were working on.

The stakes for liberty are so high that our best and most creative efforts must be brought to every task. That is challenging, but it is what makes working at IJ such a joy.

Chip Mellor is the Institute’s president and general counsel.

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