Cato Chair Demands $3.5M From DC Peasants
Last month, George F. Will's column told the story of Cato Institute President Ed Crane turning down a $100,000 "grant" from Fannie Mae because, of course, Cato accepted no government funding. Unfortunately, this attitude is not shared by Cato's newly elected chairman, Robert Levy, who is going to extraordinary lengths to confiscate more than $3.5 million from residents of the District of Columbia.
Mr. Levy was one of three lead plaintiffs' attorneys in the famous Heller v. District of Columbia Second Amendment litigation. Now he, along with fellow lawyers Alan Gura and Clark M. Neily, III are demanding "just" compensation for their work. That would be the $3.5 million mentioned above. The District generously offered $800,000 in taxpayer funds for the attorneys' time and expenses, but when you're an important civil rights crusader like Mr. Levy, well, that's just insulting.
Mr. Levy is a very important person, at least according to his own motion for attorney fees:
Robert Levy is a leading legal commentator and constitutional scholar whose expertise is frequently sought by major media outlets, and whose books, law review articles, and other prolific writings are widely known and well-respected. Levy was an adjunct professor of law at Georgetown University for seven years, and has lectured on constitutional law at dozens of law schools. He received his Juris Doctor from George Mason University in 1994, the year in which he was first admitted to practice law. Levy was class valedictorian and chief articles editor of the law review. He also and holds Bachelors, Masters, and Ph.D. degrees in Business from the American University.
(He also clerked for a federal appeals judge! Woo!)
Now, the substance of Levy & Co.'s argument is that, having prevailed before the Supreme Court, they are entitled to "prevailing market rates" for their hourly work. And how does one determine "market" prices? Well there's voluntary exchange on a free market, but that doesn't work when you're extracting money at judicial gunpoint. According to Mr. Levy -- chairman of the most prominent and respected libertarian think tank in the world -- prices are best determined through a complex mathematical formula. Mr. Levy even paid economist Michael Kavanaugh to calculate the precise "market" rate owed Mr. Levy and his co-counsel. There's already a standard method for calculating attorney fees, known as the Laffey matrix, but Dr. Kavanaugh uses a different method that -- surprise -- yields higher fees.
Under Kavanaugh's "scientific" method, Mr. Levy is entitled to $557 per hour. Even though the Heller litigation spanned several years, all compensation should be at the present-day rate "to compensate for the delay in payment." Levy goes on to claim 595.6 billable hours, for a personal haul of $331,749.20.
But wait, there's more. Levy says his total fees should be doubled -- to more than $660,000 -- because he provided "high quality representation in a case of exceptional success." According to the Heller Three, "the exceptional status of this case should be self-evident," but that doesn't stop them from wallowing in their own crapulence:
The unusual complexity of this case could not be addressed simply by adding more lawyers and support personnel. The case included no discovery and no trial. No attorney was assigned to sift through boxes of documents at any warehouse. Rather, the case's difficulty was, as recognized by Defendants at the outset, owing to the enormous scope of the historical, legal and public policy issues raised by the central question, which was of profound public importance. Counsel were required to scrutinize a great range of complex material, synthesize coherent and persuasive arguments, and anticipate, dissect, and respond to the opposition's analyses - all within the art of litigation as practiced at the highest level.
[ . . . ]
The ultimate result is, by any definition, exceptional. This case will stand as a landmark foundational precedent in American constitutional law. It marked the first time the Supreme Court defined the meaning and scope of the Second Amendment directly, and in doing so overruled the "deluge" of contrary precedent from nine federal circuit courts of appeals. Prior to this case, no federal appeals court had ever struck down a legislative enactment as violating the Second Amendment.
Additionally, the doubling of fees is necessary to compensate Levy & Co. for risking their reputations on the unpopular cause of the right to keep and bare arms:
Then there is the controversial nature of the case, a well-recognized risk to Plaintiff's counsel. "[W]hen a lawyer risks permanent harm to his career to defend fundamental, if unpopular, legal principles, the lodestar may be inadequate to fully compensate him for this extraordinary sacrifice." Miller, at *166 n.82. While success here will doubtless accrue to counsels' benefit, the risk undertaken by counsel included the consequences of failure. And even success has its limits. The right to keep and bear arms is popular in the United States, but it is unpopular within the organized bar. See, e.g. Supreme Court Amicus Br. of American Bar Ass'n. On balance, counsels' success brought joy to many people, but it also brought hateful and vulgar criticism. Gura Decl., ¶ 10. We regret nothing, but we risked a great deal. Risk requires enhancement in order to serve Section 1988's purpose of attracting qualified counsel to controversial but vitally important cases.
Indeed, Mr. Levy's cause was so unpopular that he could only muster 47 amicus briefs in support of his position before the U.S. Supreme Court, including one brief signed by over 50 members of Congress. Of course, even libertarians and other Second Amendment supporters presented an undue hardship for the Heller Three, as explained by co-counsel Alan Gura:
I have also received a notable amount of often vulgar, hateful and irrational criticism from extremists who believe I "sold out" their Second Amendment rights in conceding that the right to keep and bear arms is not an absolute right completely free of government regulation. One alleged "pro-gun" organization issued a press release announcing its "shock and horror" at my so-called concession that there will be at least some constitutional gun regulations. The head of this organization went on the air with a conspiracy theorist host and harrumphed his approval as the host alleged we were "Judas goats" who pursued the case in collusion with the Defendants to gut the Second Amendment.
No doubt the "vulgar, hateful and irrational" extremists included Stephan Kinsella, and other Mises/LRC critics of the Heller decision. Surely, Mr. Kinsella's writings alone entitle Levy & Gura to an additional half-million in taxpayer dollars!
Apparently the stress of dealing with friends and foes prevented Levy from keeping very good records of his $557 per hour time. As the District noted in its opposition brief,
Mr. Levy's entries are especially rife with such unhelpful descriptions: June 26, 2002 (2.5 hours, "Review cases"); June 28, 2002 (3 hours, "Review Literature"); June 30, 2002 (2 hours, "Review Literature"); July 3, 2002 (4 hours, "Review Literature"); July 6, 2002 (3 hours, "Review DC Laws"); July 8, 2002 (3.5 hours, "Review Cases"); August 20, 2002 (4.5 hours, "Review empirical research"); May 19, 2003 (0.6 hours, "Emails w/AG & CN"); June 4, 2003 (0.6 hours, "Emails w/AG & CN"); October 14, 2003 (3 hours, "Prepare w/AG for moot court").
Mr. Levy also wants D.C. taxpayers to foot the bill for his political activities: He logged 4.4 hours of time -- that's $4,901.60 -- lobbying the National Rifle Association to oppose legislation that might have mooted the Heller case.
(Incidentally, Mr. Levy isn't the only Cato official engaged in rent-seeking. Gene Healy, a Cato vice president who worked on the Heller litigation, also seeks attorney fees, albeit at the slightly lower rate of $494 per hour.)
It's bad enough that the chairman of the Cato Institute is self-righteously demanding taxpayer dollars. But Levy has compounded his arrogance by waging a media campaign in defense of his quest for "fair compensation." When the Washington Post criticized the $3.6 million fee request as an unjust "windfall," the Heller Three replied with their own editorial in today's Washington Examiner:
Nor is it reasonable to quibble with our proposed rate of $557 per hour, which is consistent with rates charged by lawyers at major D.C. law firms -- a fact we thoroughly documented with published survey data and testimony from a respected economist whose estimates have been accepted many times by federal courts.
The Post's response is to suggest that $557 per hour is the going rate only for those lawyers working at "megafirms" with Fortune 500 clients. mere public interest lawyers like us should receive less (how much less The Post does not say.)
That position is both elitist and illogical . . . the quality of a lawyer's work is not dependent on the size or reputation of his or her firm. If proof of that proposition is needed, consider our victory over a legal team that included at least nine "megafirm" lawyers.
So, to recap, Mr. Levy is just as good as a "megafirm" lawyer and he should be payed the same, even though he couldn't find a client who would voluntarily pay him $557 per hour (or even a "megafirm" to hire him.) Indeed, Mr. Levy was the mastermind of the Heller case. He sought out plaintiffs to serve as fronts, because Mr. Levy is a Florida resident with no standing to challenge the D.C. firearms ban.
Speaking as a longtime District resident, I'm astounded by Mr. Levy's "elitist and illogical" demands. First he orchestrates a court case that's of extremely dubious value to supporters of individual rights, and now he wants my money as a reward. Okay, fine, I can't prevent Cato's chairman from stealing my money. All I ask, Mr. Levy, is that Cato stop bombarding me with its fundraising letters. It seems I've already "given" to your cause.
Comments (22)
Richard
The CATO Institute is a joke. I am ashamed to admit I used to read and visit their site. Of course, that is before I discovered Mises and LewRockwell.com.
Published: October 3, 2008 2:06 PM
Robert A. Levy
After nearly six years, culminating in a landmark Supreme Court victory, my co-counsel and I have requested reasonable legal fees, to which we are entitled under federal law.
Only those who would rather fight than win will characterize the Heller decision as anything less than a resounding affirmation of Second Amendment rights.
In today's Washington Examiner (see http://edition.pagesuite-professional.co.uk/digitaleditions.aspx?tab=0&pid=31746d87-c731-4064-8c96-6f1a3abc7471, p. 13) we set out the reasons for our fee request. Mr. Oliva's objections to those fees would be better addressed to the D.C. government, which persisted in an abortive attempt to justify its unconstitutional gun ban.
Before suggesting that my personal motives were merely self-aggrandizement, Oliva should have asked. He would have learned that I committed long ago to donating all legal fees that I recover from the Heller case. I can assure Oliva that the recipients of my donations will use the money to advance liberty -- unlike the uses to which the money would otherwise have been put by D.C.'s mayor and city council.
Published: October 3, 2008 3:01 PM
Brent
If Heller was a resounding victory for my right to own a firearm, I think we can safely bury the 2nd Amendment, because it is dead.
Published: October 3, 2008 3:10 PM
Gil Guillory
As someone watching these proceedings from afar, I still don't understand why the legal fees are being requested. To a libertarian such as myself, it seems to me that taking money from government when you don't need it is just fleecing taxpayers.
If Levy's argument is that taxes will not be increased or reduced based upon this one payout, fine. But to say that they'll go to a better cause is hard to say. Certainly, the city of DC does bad things with some of the money, but don't they also provide services to citizens (trash disposal, subsidized buses and subway, police)? It is possible, and may I suggest, likely, that the worst schemes of the city of DC will still be funded, and that the budgets of the more mundane functions of government where everyday citizens actually receive back some of the value that has been taken from them, will be reduced. I would expect that bus drivers' or police salary adjustments will suffer -- not high-level city government salaries or the budgets for new, exciting "projects".
So, the practical effect, in my estimation, is that money will be taken from DC residents in the form of taxes and spent on pro-liberty projects (which they clearly do not wish to have funded, else they would have funded them voluntarily) instead of projects that they probably would like, like motivated bus drivers, reliable trash services, etc.
And if that is the outcome, I don't really see that as being a victory for liberty at all.
Published: October 3, 2008 3:25 PM
Trex
From what I hear, Levy donates his salary back to Cato, and it sounds like he would hand this money over to Ed Crane as well. This makes it even worse, does it not? It's not Levy and the other lawyers--but Ed Crane who is pushing this and stands to benefit from it!
Further, if you have to write an editorial defending your request for attorneys' fees, you're asking for too much...
Anyway, I guess it's okay to rob the taxpayer so long as you use the stolen funds to "advance liberty." Ragnar Danneskjold--call your office!
Published: October 3, 2008 3:34 PM
Book 'em Danno
1) Why wasn't a contract structured beforehand?
2) Is a rational solution possible for Mr. Levy, D.C. et al? How can any objectivity or reasonableness concerning who should get the taxes, how taxes would-have-been spent, and measuring opportunity costs be found when economic calculation and market relations are relegated by virtue of the situation being dominated by government?
Published: October 3, 2008 3:53 PM
David Hardy
As a fellow who strongly tends libertarian, aren't the post and comments a perfect illustration of why libertarianism is marginalized in the real world?
1) When the government extorts money, make a (justified) complaint. When someone squeezes money *from* the government, cite principle and complain even more loudly.
2) Do nothing. When someone else does do something, complain that they didn't get everything you would have wanted.
3) Demand the Impossible Dream, something that isn't going to happen in this particular date, place, and universe. Anything less than instant gratification of 100% of it is betrayal.
4) As a result of the above, generally do nothing and talk a lot, occasionally do something and lose, and talk about that.
Personally, I hope they win a sum even larger than Marion Barry's lifetime cocaine expenditures. 3-4 years of unpaid work, footing expenses on their own, deserves a hefty reward.
Published: October 3, 2008 4:13 PM
Caveman (intellectually-speaking)
As a fellow who strongly tends libertarian, aren't the post and comments a perfect illustration of why libertarianism is marginalized in the real world?
No. And the self-congratulation and lack of disciplined principle exhibited by the "winners" of the Heller case certainly won't help the cause of liberty.
When someone squeezes money *from* the government, cite principle and complain even more loudly.
Replace "government" with "taxpayers" and perhaps you'll understand why some of us object to Levy's demands.
Demand the Impossible Dream, something that isn't going to happen in this particular date, place, and universe. Anything less than instant gratification of 100% of it is betrayal.
Tu ne cede malis!
Published: October 3, 2008 4:50 PM
Rich
If I am attacked by a thug, and have an opportunity to take one of his weapons from him, I will do so in a heartbeat.
The scum which runs DC attacked the right to keep and bear arms, attempting to disarm the population by force. They initiated force.
The heller case, attorneys in hand, no only rolled back the state, but are helping it move one more step towards it's inevitable trip over the cliff on bankruptcy.
And you guys are whining? To say that this money is taken from the taxpayers is bullshit. Governments do not take money from taxpayers because they "need" it. They take money from the taxpayers for the same reason that dogs lick their crotches ... because they can. Since what they could get away with before some of their loot was re-looted is pretty much the same as what they could get away with after, there is no reason to believe that taxes will increase (more than they would have anyway) to compensate ... the State just has to devote some of it's next increase to making up ground it lost.
It is amazing to me that you somehow think that a fiction like a government somehow has a "right" to the property it stole, and that nobody has a right to steal it back. I hope you have some luck at the ballot box, 'cause you'll never win a real fight with that attitude.
Published: October 3, 2008 6:05 PM
Rich
Wow, I was really grumpy, please pardon the typos.
Published: October 3, 2008 6:07 PM
Brian N.
Mr. Hardy, excellent as your work on Michael Moore is, your statement here is intellectually indefensible.
Published: October 3, 2008 6:39 PM
Caveman (intellectually-speaking)
Rich, I don't think anyone here has argued that DC's government "needs" the money. The problem--as you surely know--is that the government doesn't produce wealth. So, any money that DC's government pays to Mr. Levy and his co-counsel is, in fact, taxpayer money. Neither you nor I knows how the DC government will raise these funds, but we do know from whose pockets they will be taken. Your characterization of Mr. Levy as a sort of libertarian Robin Hood is disingenous unless Mr. Levy plans to give whatever fees he collects back to the taxpayers of the District (and this does not seem to be the case). Moreover, if taking government funds is such a good thing, why does the Cato Institute, itself, have a policy of not accepting such funds? Finally, it's already well-established that a number of honest and reasonable persons on the libertarian side of the street do not believe the Heller decision was the great victory that you do. Instead of dismissing those who disagree with you as whining malcontents, perhaps you could take the time to address their specific criticisms in a mature and respectful manner.
Published: October 3, 2008 6:52 PM
Inquisitor
Incredible. Sounds like these guys are labour theory of value theorists. I like how he unilaterally determines he ought to be paid double. Wow.
Published: October 3, 2008 7:02 PM
Peter
So, the practical effect, in my estimation, is that money will be taken from DC residents in the form of taxes and spent on pro-liberty projects (which they clearly do not wish to have funded, else they would have funded them voluntarily)
Can't agree with this. For all you know, they might have funded them voluntarily had government not had first call on their money.
(Agree with the rest, though)
Published: October 3, 2008 8:01 PM
Casey B.
I am not one to normally defend Cato (which in this case is only indirectly associated) but I find these attacks to be counter-productive. I will also ask if anyone here would object to the morality of these demands if Mr. Levy decided to give all of his money to the tax payers of D.C? Or, if anyone would object, assuming Mr. Levy is a D.C. resident, to him just getting back what was looted from him in the past? If you argue he is not right because all his money was already taken and spent, you then have no basis to claim he is robbing the taxpayer.
I am under no illusion that our freedom will be protected by nine corrupted souls; nor do I claim that this ruling won't be skewed to possibly take more away; but I do believe that it cannot be bad that freedom loving D.C. residents, who are surrounded by a population that loves welfare, have better access to a fundamental right to defend themselves. I also proudly admit that I gain satisfaction whenever an evil group of thugs, calling themselves the Government, are embarrassed for violating our rights.
I believe in these horrible times it is much more productive to work with people who can help us obtain less government. We should never act to go against our principals but we should also work together when interests align. I want more liberty in my lifetime. Judging by how things are going we will need all the help we can get.
Thoughts?
Published: October 3, 2008 8:36 PM
George Lyon
Cato did not finance this litigation. Bob Levy did. The plaintiffs did not pay the attorneys during the litigation. Bob Levy advanced what meager fees were paid. Established law allows attorneys fees when civil rights are vindicated under a 1983 claim. Bob and Alan worked tirelessly to vindicate my rights and my five fellow plaintiff's rights as well as the rights of the citizens of the District and the rest of the nation. They beat lawyers who usually charge up to 1000 dollars an hour. They deserve every penny of the fee request. If you don't like the law that allows them to receive the money, change it, but otherwise stop whining when it is used for once to accomplish good. Those of you who have a problem with the outcome of the case, try articulating your problem rather than non-sense like the second amendment is dead. Would you rather have an Obama administration with or without the Heller decision? Finally civil rights are won in the courts gradually. Brown v. Board of Education was a culmination of decades of litigation. Heller is only a first step. To criticize a first step because it is not the end of the journey to say the least short sighted. I look forward to an intelligent response to this post, not the mindless insults I see above.
Published: October 4, 2008 10:46 AM
George Lyon
Cato did not finance this litigation. Bob Levy did. The plaintiffs did not pay the attorneys during the litigation. Bob Levy advanced what meager fees were paid. Established law allows attorneys fees when civil rights are vindicated under a 1983 claim. Bob and Alan worked tirelessly to vindicate my rights and my five fellow plaintiff's rights as well as the rights of the citizens of the District and the rest of the nation. They beat lawyers who usually charge up to 1000 dollars an hour. They deserve every penny of the fee request. If you don't like the law that allows them to receive the money, change it, but otherwise stop whining when it is used for once to accomplish good. Those of you who have a problem with the outcome of the case, try articulating your problem rather than non-sense like the second amendment is dead. Would you rather have an Obama administration with or without the Heller decision? Finally civil rights are won in the courts gradually. Brown v. Board of Education was a culmination of decades of litigation. Heller is only a first step. To criticize a first step because it is not the end of the journey to say the least short sighted. I look forward to an intelligent response to this post, not the mindless insults I see above.
Published: October 4, 2008 10:47 AM
Freedom Road
"Cato did not finance this litigation. Bob Levy did. The plaintiffs did not pay the attorneys during the litigation. Bob Levy advanced what meager fees were paid. Established law [this whole post refutes the concept “Established”] allows attorneys fees when civil rights are vindicated under a 1983 claim. Bob and Alan worked tirelessly to vindicate my rights and my five fellow plaintiff's rights as well as the rights of the citizens of the District and the rest of the nation. They beat lawyers [for now, until the next time, and the next time] who usually charge up to 1000 dollars an hour [hyper-inflation]. They deserve every penny [short sighted] of the fee request [then pay them out of your OWN pocket not the “nations”]. If you don't like the law that allows them to receive the money, change it [more of the same excuse for a web of more lawyers and fees], but otherwise stop whining [Projection] when it is used for once [only once in YOUR ONLY case?] to accomplish good. Those of you who have a problem with the outcome of the case, try articulating your problem [lawyerly talk] rather than non-sense the second amendment is dead. Would you rather have an Obama administration with or without the Heller decision [False alternatives]? Finally civil rights are won in the courts gradually [Funny, history does not seem to agree]. Brown v. Board of Education was a culmination of decades of litigation. Heller is only a first step. To criticize a first step because it is not the end of the journey to say the least short sighted [Please end the journey by walking away from it]. I look forward [this post is about repeating worn out cliches that serve lawyers and only the lawyers] to an intelligent [non-lawyerly] response to this post, not the mindless [Lawyerly fear mongering repeats of the past] insults [take out insurance like the rest of us or write it off dude] I see above.
Published: October 4, 2008 3:06 PM
jhn
What, exactly, is un-libertarian about "loser pays" laws in civil suits?
If a government agency is violating my rights, and I sue them and win, what is wrong about requiring that they pay my costs of suing them?
Published: October 4, 2008 4:51 PM
patrick c
$3.5 million for a supreme court case and over 5 years of legal work is CHEAP. Exxon paid 60 million per year for their supreme court case.
You may not like Heller's outcome but anyone familiar with what litigation costs at this level will tell you that this is not unreasonable.
You also claim that $800,000 is a fair amount but divide that rate by 5 years and again by the number of attorneys on the case and you are basically advocating that these attorneys earn far less than $100,000 per year for their work on this case. DC's offer is, in my view, not reasonable and nowhere near market rates.
Published: October 5, 2008 10:37 AM
George Lyon
Ok Freedom Road. I asked for an intelligent response. Instead I got something back from you that you may consider to be cute, but it is simply vacuous. What exactly is your point? You don't like fee awards? Try explaining in an intelligent way what's wrong with them. And no, I cannot afford a couple million dollars so I can defend myself against the thugs in DC. What would you have had us do?
Published: October 5, 2008 11:46 AM
Nick
Here's how I see it - People, citizens, taxpayers...etc *are* the government - you know, "We the people..." and all that. Therefore, none are innocent - everyone over 18 in the DC area that can vote - unless they abstain for religious or other reasons (not laziness) - has a hand in the law.
Therefore, they're all party to the violation of rights if one occured and they should be required to pony up and pay for that transgression where applicable. If that means money to the plaintiff, then so be it. If that means legal fees, then so be it.
It isn't anti-liberty to make the offender pay. In this case, it just so happens the offender was the people of the District of Columbia.
However, it seems to me that Constitutionally congress sets the rules for DC - That would make all of us party to it, no?
On another note, it doesn't matter if you don't vote for whatever reason - You still get taxed for everything else including the transgression. That really makes it hard to stand by and say you don't vote because of "x" or "y" when in the end it won't matter...
Published: October 6, 2008 8:52 AM