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Cato Chair Demands $3.5M From DC Peasants

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10/03/2008

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.

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