Levy Digs Himself In Deeper
Cato Institute Chairman Robert Levy has replied to my post below, continuing his recent public relations offensive in support of his demand for $1,114.00 per hour in attorney fees for his work in the Heller Second Amendment litigation:
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 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.
Below, I'll address Mr. Levy's points in order.
- There is no civilized society, anywhere, anytime that would consider $1,114.00 per hour for a single attorney's legal work on a lawsuit "reasonable" - especially when you were not the principal attorney of record in the case (that was Alan Gura.)
- Whether you are entitled to your fee request is still being determined by the district judge. You are entitled to nothing until he decides the matter.
- I'm not sure who your "Only those who would rather fight than win..." comment was directed towards. I never addressed the merits of the Heller litigation, though I noted there were libertarian critics of your case (whom your co-counsel essentially characterized as crackpots.) Frankly, this is irrelevant to whether your fee request is justified.
- I didn't direct my objections to the District government, because the District government didn't file a petition seeking nearly $3.6 million in taxpayer funds for his personal enrichment. You did.
- The District's firearms ban may have been unconstitutional, but I don't fault the government for defending its law before the courts. It's generally understood that the executive branch of any U.S. government will defend a law's constitutionality.
- You mischaracterize the District's defense of its law as "abortive." Quite the contrary, the litigation's outcome was in doubt throughout the proceedings. Five of the six plaintiffs you personally selected were dismissed by the district court for lack of standing. The district court then dismissed your lawsuit. The Court of Appeals panel divided 2-1, and the dissenting judge credibly argued that the plain language of the Second Amendment did not apply to the District since it is not a state. The Supreme Court ultimately upheld your position in a 5-4 decision.
- You individually seek compensation for a number of claims and motions where you were unsuccessful, including nearly 20 hours for a Supreme Court cross-petition that was denied.
- The District has offered you and your co-counsel a cumulative $798,232 in fees, of which $116,850 would be paid directly to you. Since you're fond of comparisons, I'd note that your proposed fee amount is nearly double the average annual income of a District resident. Once again, I believe the District is not being unreasonable here. You are.
- You wrote, "Before suggesting that my personal motives were merely self-aggrandizement, Oliva should have asked." I don't see why. All I did was cite your own arguments to the district court.
- Your intention to donate fees - to unspecified recipients - does not mitigate the unjust nature of your demand. Distributing state funds - which are themselves acquired through force upon the general public - to your favored causes is not a just outcome. It is merely money laundering.
- Your "assurance" that your fees will be donated to causes that will "advance liberty" is, frankly, unconvincing. (Perhaps you could provide a specific list of groups and causes that you intend to donate to.) Especially in light of your co-counsel's attacks against other libertarian groups that disagreed with your position in Heller - and your own comment above dismissing those who disagreed with your litigation strategy - it seems that your principal interest is in funding individuals who agree with you. I suppose there's nothing wrong with that, but I'd hate for people to confuse "advancing liberty" with "advancing Robert Levy." The Objectivists tried that sort of strategy, and it hasn't worked out too well.
- Your position that you are a better steward of District taxpayers' money then the taxpayers themselves is interesting, particularly given that you were a resident of Florida during this litigation.
- Assuming that you "donate" at least some of your fees to Cato, would that not violate Cato's own self-professed rejection of government funding?
Finally, I must say I'm honestly surprised at Mr. Levy's aggressiveness in pursuing this issue. Between the op-ed in the Examiner and his response here, you'd think someone at Cato would have sat him down and said, "Y'know, Bob, you're reinforcing the stereotype of libertarians as greedy bastards who don't hold any ethical principles."
As I said to someone else -- who posted this line in the comments to my earlier post -- if you have to write an op-ed in defense of your request for attorney fees, you're asking for too much.
Comments (14)
The Oath
$1,114 per hour? I thought we were in a deflationary period....Here's the troubling passage in Heller and why his fee is really worth only $250 per hour if billed in tenths of an hour or $25.00 every six minutes on a detailed billing statement:
"[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."
In other words, the right can still be regulated in the future. Thank you Justice Scalia. Thank you very much. So kind of you to keep the door open to balance it in the future with another test.
Published: October 3, 2008 8:03 PM
Pablo Escobar
I don't see anything wrong with the Cato Institute's actions. Just because some libertarians think consistency requires the rejection of all government funding, doesn't mean they are right. Libertarians should do what they can to game the system and gain as much benefit for their cause as possible. Why should professors, for example, leave all the government funded research grants to their socialist colleagues?
Has everyone here rejected every single welfare payment ever handed out? Did they reject the stimulus package check? Did you reject a government loan for your university education? Did you reject a whole line of stuff consistently throughout your life? I doubt it.
Indeed, at the LRC website, one of the bloggers even posted up a letter from a reader who had donated the entire stimulus check to the Mises Institute (also see here). Does that mean the Mises Institute is now corrupt? According to the author's logic above, yes.
These personal attacks at the Mises Institute blog are really why Austrian economics is nowhere near the mainstream. As Milton Friedman pointed out, you guys are highly intolerant. At least Ron Paul has the good grace to restrict his criticism to ideas.
Published: October 3, 2008 8:04 PM
Casey B.
I am reposting my comment from the last thread because I missed this update. I am a follower of Austrian economics and an unapologetic anarcho-capitalist. I believe Pablo has a good point.
Original post:
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 8:54 PM
J. H. Huebert
As an attorney and a radical, state-hating libertarian, I see no problem at all with seeking all the money you can get in attorney's fees from the government.
Walter Block has the correct libertarian view on accepting government money here.
Whether Heller will benefit liberty in the long run is debatable, but a separate matter.
Published: October 3, 2008 9:12 PM
Brent
J. and everyone else, do you think DC will cut spending elsewhere to pay this $3.6 million? If not, this expenditure is not a sunk cost and it is not the same as walking on the monopoly government roads.
Published: October 3, 2008 10:47 PM
Casey B.
Brent.
I think it is safe to say D.C. will not cut spending anywhere to make this up. I can't source it off the top of my head (I think it was in "Man, Economy, and State"), but I believe Rothbard had showed that it was impossible in a hampered market economy for one to completely separate themselves from state money. For example, if you owned a store and for a reason of morality (which I am VERY sympathetic to) you refuse to take Government money directly but sell to the nice old lady who paid via her social security check, then would you be violating your morals?
The way I see it is that unless that you want to completely separate yourself from the market economy you are forced to take Government (i.e. dirty) money - at least indirectly. I don't see how to separate yourself from the tax consumers. Given that, I am all for tax consumption going to the cause of liberty.
What do you think?
Published: October 3, 2008 11:42 PM
Brent
Someting about "tax consumption going to the cause of liberty" strikes me as not appropriate. It seems eerily similar to when conservatives and "libertarians" supported Bush's Ownership Society plans "even though the proposed means were liberal (statist)", because they supported the alledged goals in so much as more ownership was thought to be more libertarian.
Published: October 4, 2008 12:40 AM
Casey Khan
"Y'know, Bob, you're reinforcing the stereotype of libertarians as greedy bastards who don't hold any ethical principles."
I guess there is one type of ethical principle being upheld here. Levy's argument boils down to an ends justifies the means consequentialist ethic. "I'm going to give this money to liberty fighting groups, so there."
http://www.philosophy.uncc.edu/mleldrid/SzCMT/mmp.html
Published: October 4, 2008 7:12 AM
scineram
I agree with Huebert. And Block. But the casse is still ugly.
Published: October 4, 2008 7:54 AM
Dick Fox
I have mixed emotions concerning this. I agree with J. H. Huebert that lawyers should be allowed to contract of all they can get, and I was all prepared to jump on Mr. Levy's side when I read that he was going to donate his fee such that "the recipients of my donations will use the money to advance liberty." Is this another tobacco case where the lawyers used well placed Democrats to win a judgement then made massive donations to these same Democrats? I would have felt better if Mr. Levy had not been so secretive.
If contracts with government are open for all to see and we know that the taxpayer funds are not flowing under the table to enrich those empowered to dispense justice then I am in favor, but I have seen too much quid pro quo in my lifetime to accept anything at face value.
Published: October 4, 2008 9:38 AM
Kathryn
I think both Mr. Levy and Mr. Oliva are making distracting arguments. The only relevant question is whether a lawyer who demands compensation from the state can reasonably be considered a libertarian. As JH Huebert and others pointed out, many would say "Yes."
Whether he donates the money to Cato, Nazis, or takes a vacation in Hawaii is irrelevant.
Also, saying that he is charging "too much" is of course a claim that can not be backed up when you are talking about a non-market transaction. You can compare his fee to other lawyer's fees, as Oliva does, but this still doesn't definitively tell you whether he is charging too much.
Further, as Oliva points out, the outcome of the case is irrelevant. But so, too, is whether the lawyer's hours include time spent on motions that failed; it is time spent on the case. The problem is there is no lawyer-client contract, so the only question we can answer is the first one I posed. All of the rest are in the hands of the courts.
Published: October 4, 2008 11:36 AM
happylee
$1,114 per hour is not unreasonable. I'd ask for more. Then again, I am worth it. Whether he is, I can't say.
Donating the dough to charities is foolish. It is better to do what successful plaintiffs attorneys do, roll the money into the next lawsuit against BigPharma, BigAuto, BigGov, BigBank, etc....
Published: October 4, 2008 11:55 AM
Dave Hardy
1) It's not just a nonmarket transaction, it's a *proposal* for a transaction. A bid, as it were. DC then gets to tell the judge its side, which doubtless will be that no fees should be awarded, the hourly rate oughta be much lower, the multipliers shouldn't be given, unsuccessful motions should be deducted, base hourly rate is too high, etc., etc.. Then the court makes all the calls.
2) I've always wondered that under some statutes (dunno about the one involved) the courts sometimes allowed multipliers that would be irrelevant in a market legal transaction, while refusing to allow the most obvious one: the guy's customary hourly charge assumes he's getting paid, win or lose, and more or less every month. But a fee award is more like "I'll pay you $X per hour, but pay nothing if you lose, and will only pay when final victory is achieved, which may be 3-4-5 years down the road." If anyone were willing to make a deal like that, they'd want an X that is appreciably higher than their normal price.
3) The outcome seems positive. People will go and work where the profit is. If suing the government to establish freedom has a profit of zero, people will refrain. If it shows a profit, they will look into that line of work. It also has a deterrent effect (assuming a rational decisionmaker, which may be lacking in DC).
Published: October 4, 2008 3:44 PM
Nick
I posted a longer reply on the other thread as well but it amounts to this:
The *people* were the defendant(s) in this case (it was their law enacted by their representatives who should have known better) and if the defendant(s) have to pay damages or legal fees then guess where it comes from?
Their pockets.
As to the amount? Get the most you can. Any amount is a meager punishment for ganging up on the minority.
Published: October 6, 2008 9:08 AM