Dana Berliner (May 31, 196? – ) was born in southern California, where her father, Michael Berliner, was the first executive director of the Ayn Rand Institute and a professor of education at California State University and her mother, Dr. Judith Berliner, is a researcher on blood vessel diseases at UCLA Medical School. Berliner is Litigation Director at the Institute for Justice, a public interest law firm in Arlington, Virginia founded in 1991 by Chip Mellor and Clint Bolick. She was co-lead counsel for Susette Kelo in the landmark United States Supreme Court case Kelo v. City of New London.
Dana received her law (1991) and undergraduate (psychology, 1987) degrees from Yale University, where she was a member of the Yale Law Journal and represented clients through the legal services program. After law school, she clerked for Judge Jerry Edwin Smith on the United States Court of Appeals for the Fifth Circuit. Younger colleagues at the Institute of Justice, when asked about Ms. Berliner, praise her brilliance. (Indeed, one can imagine reading about her work would inspire many to desire to go to law school, or wish that they had done so.) Living in the once bohemian Adams Morgan neighborhood of Washington, D.C. , Berliner has recently become active in a common libertarian passion, finding people interested in starting a Montessori school for her child to attend.
Ms. Berliner is best known for her work in the area of eminent domain. Along with co-counsel Scott Bullock, Dana litigated the landmark case Kelo v. City of New London, one of the most divisive and widely discussed Supreme Court decisions in decades. More recently, Berliner acted as lead counsel for Bill Brody in the New York eminent domain case Brody v. Village of Port Chester. Currently, Ms. Berliner is representing the Community Youth and Athletic Center, a non-profit boxing gym for children in National City, California, defending it from potential eminent domain use by the city. She has also served as lead counsel in a successful case that garnered national attention challenging Ohio’s requirement that African hairbraiders spend a year in cosmetology school, in which they learn nothing about braiding, in order to practice their profession. When she successfully defended Vera Coking, an elderly widow in Atlantic City, N.J., the Institute’s work defending small property owners from eminent domain became nationally prominent. As co-counsel, she stopped a state agency from condemning Mrs. Coking’s house to give it to Donald Trump for a limousine waiting area. She has gone on to litigate many other free enterprise and eminent domain cases. Dana has previously secured a victory in favor of two New Orleans entrepreneurs in a federal First Amendment challenge to the City of New Orleans’ ban on sidewalk book vending. As trial counsel, Dana also secured a ruling that the Nevada Transportation Services Authority violated the rights of several would-be limousine entrepreneurs by subjecting them to an onerous and arbitrary licensing process that gave undue power to existing companies opposing competition.
In addition to her work in the courtroom, Ms. Berliner has authored two works concerning eminent domain and been involved with the issue in other ways. In 2003, she wrote Public Power, Private Gain: A Five-Year, State-by-State Report Examining the Abuse of Eminent Domain. She also authored Opening the Floodgates: Eminent Domain Abuse in the Post-Kelo World, a report published by the Castle Coalition on the use and threatened use of eminent domain for private development in the year since the Kelo decision. Dana has also written amicus curiae briefs on constitutional eminent domain issues in more than ten states. Over the past few years, she has also taught many continuing legal education classes on public use. She works with owners around the country in opposing the condemnation of their homes and businesses for private use.
Dana has written for or had her ideas quoted in The New York Times, USA Today, The Wall Street Journal, NPR, Capitalism magazine, The Washington Post, and The Washington Times, as well as on various radio and television broadcasts, including 60 Minutes. In 2012 she was on the faculty of the Ayn Rand Institute’s summer conference.
Linda Greenhouse, covering the Supreme Court case decriminalizing homosexuality, in which IJ filed a brief (along with the Cato Institute), quoted Berliner in the New York Times : “Most people may see this as a case purely about homosexuality, but we don’t look at it that way at all. If the government can regulate private sexual behavior, it’s hard to imagine what the government couldn’t regulate. That’s almost so basic that it’s easy to miss the forest for the trees.“
In her most famous case, Berliner foreshadowed Edward Snowden in her assessment of what it’s like to be the libertarian David (or Dana) going up against the governmental Goliath, saying that the United States Supreme Court decision, Kelo v. New London, gave rise to “a tidal wave of outrage. The decision brought to light this incredible rift between what lawyers and cities thought was the law and what the American people thought was the law,” Ms. Berliner said. “This is certainly the situation of losing the battle and winning the war.”
Ms. Berliner published the following commentary on the Kelo decision in the New York Times:
No one should be surprised by the aftermath of the Kelo case — neither the fact that absolutely nothing has been built on the land nor the fact that Pfizer is now pulling out of New London altogether.
Nor is it surprising that Pfizer has now pulled out. The company took advantage of the phenomenal tax break when it was there and is pulling out just before it ends. The deal and the project didn’t make any financial sense for a private company, and no one would have agreed to it without a huge subsidy.The evidence at trial showed that nothing would be built on that land. The developer (who has now left the project) did a study showing there was no market for the biotech office buildings the city claimed would replace the homes. But the courts didn’t want to look at that evidence. If they had, Susette Kelo would still be in her home and the rest of us would be safe from eminent domain abuse.
Risky real estate deals are, well, risky. That means they often fail. And if a private company made a risky deal that failed, we wouldn’t even be discussing it. But when government uses eminent domain to remove people from their homes, while spending tens of millions of public dollars on a failed risky deal, that’s a travesty.
The public was upset even before the project went down in flames. To the utter astonishment of local governments, developers and the courts, the American public despises eminent domain. Indeed, after the decision, there was overwhelming public disapproval, crossing political lines.
Eminent domain is wildly unpopular and pie-in-the-sky promises usually turn out to be empty. Hopefully local governments have learned an important lesson.