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Professor leads small group in battle with legal giants

WASHINGTON -- You might call it Peter vs. Goliath.

Peter D. Enrich, a mild-mannered, 55-year-old philosophy teacher-turned-law professor, did yesterday morning what for many lawyers marks the pinnacle of their careers: He argued his first case before the US Supreme Court.

Besides his academic salary, Enrich, who teaches law at Northeastern University, was not paid for his services. For legal assistance, he relied on the volunteer work of about 50 Northeastern law students, many of whom spent nights and weekends preparing the case, sometimes at Internet cafes. He estimates that his out-of-pocket costs, mainly for filing fees, photocopying, and travel expenses, have hit barely five figures over the past decade. His appearance before the Supreme Court was only the second oral argument he had made in a courtroom in his life.

He faced a mighty legal machine. The defendants in the case, a challenge to the constitutionality of tax breaks used by states to lure and retain businesses, include DaimlerChrysler Corp., which used three private law firms to represent it; the State of Ohio, represented by its attorney general's office; the City of Toledo, backed by its law department; and, at an earlier stage, two Ohio school districts, which also hired a private firm.

The attorneys for DaimlerChrysler included former US solicitor general Theodore B. Olson, now a private practitioner, who may be best known as the lawyer for George W. Bush in Bush vs. Gore, the epic legal battle over the disputed 2000 presidential election. Olson, who argued against Enrich yesterday, has made 43 Supreme Court appearances.

''We're litigating against the Ohio attorney general's office and DaimlerChrysler, which has tens of millions of dollars at stake here and has hired some of the best and largest law firms in the country," Enrich said. ''On our side are three lawyers, none of whom has a firm behind them, and as many law students as we can recruit."

Enrich's journey to the Supreme Court began 10 years ago, when he published a 1996 Harvard Law Review article arguing that state corporate tax breaks violate the US Constitution's Commerce Clause. The article triggered an out-of-the-blue phone call from consumer advocate Ralph Nader, who recruited Enrich to use that legal theory to file a lawsuit challenging Ohio's investment tax credit.

''I came back from teaching a class, and there was a message on my voice mail saying, 'This is Ralph Nader. Would you give me a call?' " recalled Enrich, who had never met Nader. ''I saved it as long as I could save it."

Enrich was joined by Terry Lodge, a Toledo solo practitioner who represented several Toledo taxpayers and small businesses. They filed suit challenging a $280 million tax incentive package used by Ohio in 1998 to persuade DaimlerChrysler to build a $1.2 billion auto plant in Toledo rather than in neighboring Michigan. Alan B. Morrison, a Stanford law professor, rounded out their legal trio.

As expected by both sides, Enrich's moment in the Supreme Court sun yesterday was less Hollywood, more like tax court. Much of the debate focused on legal matters surrounding the case, such as whether the taxpayers who brought the suit have standing to do so, rather than the policy issue at its core: whether corporate tax breaks stimulate economic development or, as Enrich argues, are lavish giveaways with little or no economic benefit.

But Enrich did face several skeptical policy-related questions from Justices Antonin Scalia, who asked whether taxes are political issues that should be decided by legislators, not courts, and David Souter, who questioned whether tax incentives such as Ohio's are truly discriminatory.

The drier aspects of the case didn't deter the contingent of Northeastern students who did much of the case work, extensive research on a vast array of legal issues, including the history of the Commerce Clause and the intricacies of tax law. Students also helped write, edit, and review briefs; check citations and sources; and study the records of the individual justices to determine how they had decided past Commerce Clause cases.

Many of them balanced the case work with normal coursework and co-op projects. All worked as volunteers, and some received independent-study credit. One third-year student, Catherine Bednar, co-oped full time on the case last quarter after working for Enrich as a part-time research assistant in the fall. In effect, they played the same role as associates at a private law firm.

Aided by funding from the law school's Graduate and Professional Student Association, about a dozen of those students -- self-described ''con law junkies" -- traveled to Washington yesterday to hear Enrich argue the case, which fell during their spring vacation.

''Some people go to Cancun for spring break; we go to the Supreme Court," said Sukti Dhital, a third-year student who worked on the case. Added John Moore, a second-year student who also worked on the case: ''This is 'Law nerds visit D.C.' "

''It was once-in-a-lifetime experience," said Bednar, ''because you don't always get to work on a Supreme Court case, let alone as a law student."

Sacha Pfeiffer can be reached at

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