The Ohio Legislature is dazed and confused about equal protection

Earlier this month, Ohio Governor John Kasich signed Ohio HB523, a bill legalizing medical uses of cannabis in the state. Like every other state to liberalize its regulation of marijuana, Ohio will strictly regulate all new businesses participating in the industry, whether they grow, test, or sell cannabis products at retail. Getting a license to engage in these businesses is expected to be expensive and highly competitive, but potentially lucrative. Like in other states, applicants will likely put up hundreds or thousands of dollars in nonrefundable application fees alongside extensive application packets demonstrating their qualification and fitness to run a cannabis business. Unlike other states though, getting a business license under Ohio’s law will depend on the color of your skin.

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“Ban the box” laws and disparate impact liability

Pacific Legal Foundation opposes disparate impact, a form of liability that brands an act (e.g. an employer’s hiring practice) as discriminatory just because it does not produce the “right” racial result. There are many objections to disparate impact liability, but chief among these is that such liability leads to disparate treatment on the basis of race. In other words, statutory liability for disparate impact is at odds with the constitutional and moral imperative of racial neutrality.

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Dismissal—and appeal—of Palo Alto mobile home case

On Friday, the U.S. District Court for the Northern District of California handed down a first-round defeat to the Jisser family, dismissing their property rights lawsuit. Blog readers will recall that PLF represents the Jissers in their case to block the City of Palo’s extortionate demand that the family pay roughly $8 million dollars in affordable housing assistance as a condition of getting a permit to close their mobile home park. PLF will represent the Jissers in an appeal of the ruling, filed today. Continue reading

Capitol Hill panel to focus on regulatory threats to economic opportunity

26047093982_40ed83b54d_mOn June 28, The Heritage Foundation will host a panel on Capitol Hill titled “Reducing the Regulatory Obstacles in Agriculture.” While government has imposed many regulatory obstacles on individuals and business owners in virtually every industry, those that farmers face are multiplying rapidly. As we’ve explained many times on Liberty Blog, one of the most obnoxious and costly is the illegal Waters of the United States rule (WOTUS). The WOTUS rule, to be enforced by the Environmental Protection Agency (EPA) and the Army Corps of Engineers, puts a significant burden on property owners in agriculture as well as other industries.

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Weekly litigation report — June 24, 2015

  • Equality under the law project — loss at the Supreme Court
  • San Francisco still trying to use landlords as ATMs
  • California Department of Forestry malfeasance
  • California Supreme Court allows questionable tort claim to move forward

Equality under the law project — loss at the Supreme Court

Our side lost in Fisher v. University of Texas at Austin. The Constitution guarantees “equal protection” under the laws, and the law requires any deviation from equal protection to be subjected to “strict scrutiny” by the courts. Nevertheless, writing for a four-member majority of the Court, Justice Kennedy in this opinion upheld the university’s race-based discrimination against non-minorities and Asians. While we are disappointed by the Court’s apparent strong deference to the University’s penchant for race-based discrimination, we will continue to push for a change in the law — a change that will recognize that discrimination is an anathema to a society that values equality. For more on the decision see our blog here and for more on the peculiar impact on Americans of Asian descent see this blog post. A link to our various amicus briefs filed over the years can be found here.

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Court strikes down federal fracking regulations

Over on the Federalist Society’s FEDSOC BLOG, I have a post discussing a recent decision from a federal court that federal bureaucrats overstepped their authority when they adopted fracking regulations. In 2005, Congress exempted fracking from regulation under the Safe Drinking Water Act (the primary federal statute intended to protect drinking water). Undeterred, the Bureau of Land Management adopted regulations several years ago to regulate fracking, citing concerns that it could affect drinking water sources. It asserted that the statutory exemption did not matter because it wasn’t regulating pursuant to the Safe Drinking Water Act. It claimed authority under general federal land use statutes.

The District Court of Wyoming wasn’t buying it. The court ruled that:

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Justice Alito’s dissent in Fisher v. University of Texas highlights discrimination against Asian-Americans

Fisher v. University of Texas was a blow to those battling against racial preferences. However, for those looking for any silver lining, Justice Alito’s dissent provides some relief. For the first time in a major affirmative action case, a Supreme Court Justice gave a meaningful discussion about Asian-Americans’ place in the racial preference debate.

In dissent, Justice Alito questions why the majority fails to address the University of Texas’s treatment of Asian-Americans. He notes that the majority ignored that Hispanic students are better represented at the University than Asian-Americans, yet Hispanic applicants continue to receive preferential treatment. He observes that the majority “act almost as if Asian-American students do not exist.”

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California Supreme Court’s narrow ruling on the component parts doctrine

Flavio Ramos worked as a mold maker, machine operator, and laborer for Supreme Casting & Pattern, Inc., which manufactured metal parts through “a foundry and fabrication process,” from 1972 to 2009. During this time, the industrial processing of raw materials created fumes from molten metal and dust from the plaster, sand, limestone, and marble. In 2010, he sued ten suppliers of all the raw materials to which he was exposed, alleging that his exposure caused his lung disease. The trial court rejected his claim on a demurrer, but the court of appeal reversed, holding that suppliers of raw materials or component parts owe a duty to workers in plaintiff’s position where it is foreseeable that the raw material will be used in processes that may pose health hazards, even where the raw material posed no health hazard when transferred from the supplier to the manufacturer. Today, the California Supreme Court unanimously decided Ramos v. Brenntag Specialties, Inc., affirming the appellate court’s holding that the component parts doctrine does not apply and remanding to the trial court. Continue reading

Disappointing decision in Fisher v. University of Texas at Austin

In a 4-3 decision, the Supreme Court ruled that the University of Texas’s use of race in its admissions process does not violate the Constitution. Justice Kennedy wrote the Court’s opinion. The decision is what you’d expect from an opinion upholding the university’s race-based admissions plan — deferential and uncritical.

The Court grants the university wide latitude in how its undergraduate class is shaped. It writes, that “[c]onsiderable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.”  Contrast that statement with the opinion in Fisher I, that “[t]he University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal. On this point, the University receives no deference.” Continue reading

Supreme Court should affirm federal efforts to stop class action abuse

Readers of this blog are likely no stranger to class action lawsuit abuse.  Egregious examples abound.

Congress responded to that abuse in 2005 by enacting the Class Action Fairness Act, or CAFA.  That law allows parties to remove class action lawsuits to federal courts—which Congress thought would better police the class action process.  Since CAFA was enacted, plaintiffs have tried to evade removal to federal court, because they prefer friendlier state courts.  A case in which PLF filed an amicus brief today, ABM Industries v. Castro, involves one such example.

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