Civil Rights and Civil Liberties in the Supreme Court's 2002-2003 Term

Access to Justice

In a very important 5-4 ruling, the Supreme Court narrowly held in Brown v. Legal Foundation of Washington, 123 S. Ct. 1406 (2003) that use of Interest on Lawyer’s Trust Accounts (IOLTA’s) to help pay for legal services for the needy is not an improper regulatory taking of property without just compensation. The majority opinion held that the “just compensation required by the Fifth Amendment is measured by the property owner’s loss rather than the government’s gain,” 123 S. Ct. at 1419, and that the actual loss in property was zero. The dissenting opinion, authored by Justice Scalia and joined by Justices Thomas, Rehnquist, and Kennedy, accused the majority of crafting a “robin hood” concept of the Fifth Amendment’s Compensation Clause, purposefully allowing the taking of wealth from those who own it in order to provide for the needy, although they failed to acknowledge that the fair market value of what was “taken” in this case was zero, since the funds would not have generated any interest if they had not been invested in the IOLTA accounts in the first place. Nonetheless, one more vote for Scalia’s dissent would have invalidated the use of IOLTA funds to help finance legal services for the poor.

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