Laying the Intellectual Foundation

February 1, 2004

February 2004

Laying the Intellectual Foundation

By Bert Gall

The most public part of the Institute’s fight for liberty is our litigation of cases in the courts of law and the court of public opinion. Every litigation success builds positive momentum toward a rule of law in which courts enforce constitutional guarantees of individual liberty against bureaucrats who don’t respect those guarantees.

Those successes are supported by a less public, but still very important, part of the fight. That part is the production of scholarly publications by Institute attorneys. History demonstrates that successful movements to protect individual liberties in the law (for example, the struggle to end racial segregation) have always drawn strength from published scholarship that examines facts supporting the case for liberty or provides an intellectual foundation for legal arguments against obstacles to liberty. Many important legal victories have been built upon such foundations.

Recognizing this fact, IJ attorneys have always published works that advance individual liberty in all of the Institute’s litigation areas.

This past year, IJ attorneys continued the tradition of producing important scholarship. Senior Attorney Dana Berliner along with the able assistance of then IJ clerk Rob Wiles published Public Power, Private Gain. That report’s painstaking research of more than ten thousand examples of eminent domain abuse has raised awareness of the problem across the country and demonstrated the real-world consequences of allowing eminent domain to be used for private purposes.

Attorney Steve Simpson recently published “Judicial Abdication and the Rise of Special Interests” in the Chapman Law Review. In that article, Steve, using examples from IJ’s economic liberty and property rights litigation, demonstrated that the problem of special interest and protectionist legislation is directly linked to the failure of courts to police legislatures when they craft such legislation.

I recently published a law review article in the N.Y.U. Annual Survey of American Law that reviewed the anti-Catholic animus behind the creation of state Blaine Amendments, which are often used by the education establishment to attack school choice programs. Reviewing U.S. Supreme Court precedent on the First Amendment, I argued that this discriminatory pedigree provides solid legal reasons for courts to rebuff these attacks.

In 1996 and 1997, every IJ attorney published studies documenting barriers to entrepreneurship in several major cities. IJ President Chip Mellor authored the New York study and has written law review and journal articles on property rights and entrepreneurship. IJ Vice President Clint Bolick has written several books about school choice and economic liberty. He and Senior Attorney Scott Bullock published a review of the Supreme Court justices’ records on civil and economic liberties.

In our Arizona Chapter, Staff Attorney Tim Keller has followed in the tradition of IJ’s city studies—except that he’s documented regulatory barriers not just in one city, but all of Arizona. His work, recently published by the Goldwater Institute, will provide valuable guidance in future litigation challenging these regulations.

We’ll continue to produce scholarship that lays the intellectual foundation for liberty. And, of course, our cases will continue to build upon that foundation by helping our clients live their lives free from the excesses of government bureaucrats.

Bert Gall is an Institute for Justice staff attorney.

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