President’s weekly report — November 21, 2014

Economic Liberty Project

The State of Florida moved to dismiss our lawsuit on behalf of The Crafted Keg, which seeks to overturn Florida’s irrational ban on 64-ounce beer growlers.  The motion argues, among other things, that the law does not violate our client’s due-process or equal-protection rights.  You can read more about the case at this blog post. Continue reading

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Tort law remains a mess in Pennsylvania

Pity the Pennsylvania lawyers who practice tort law.  Or, pity their clients, who will be billed for their attorneys’ time spent reading the Pennsylvania Supreme Court’s 136-page magnum opus on strict liability law, issued yesterday in the form of a 4-2 opinion deciding Tincher v. Omega Flex, Inc.  A bloated law review article masquerading as a judicial opinion, Tincher covers the entire history of tort law in Pennsylvania, an exhaustive review of the history of this particular case, including what each side argued at every level of litigation, general musings about the functions of the American Law Institute, which publishes the Restatement of Products Liability, and, eventually, a decision of sorts.

After the longest possible wind-up, the pitch itself only just grazes the strike zone.  The court refuses to announce a categorical rule.  After cataloguing its previous decisions that failed to provide clarity or justice in the law, the court is, perhaps, understandably gun-shy in trying anew to establish a clear rule for strict liability:

[C]ourts do not try the “typical” products case exclusively and a principle of the common law must permit just application to myriad factual circumstances that are beyond our power to conceive.  Circumstances like product diversity, general uncertainties inherent in the creative process, difficulties in recreating the design process, difficulties in the discovery process, to name just a few, may contribute to whether cases other than the typical case will generate a dispute and resulting decisional precedent. 

In a nutshell, tort law is hard.  Agreed.  But as Pacific Legal Foundation argued in its amicus brief, the court should have simply adopted Section 2 of the Third Restatement of Products Liability, which defines a “design defect”  such that a manufacturer is liable for harm caused by its product only if the product’s risk of harm could have been reduced by use of a reasonable alternative design.  Fearing a bright-line rule of any sort, the court declined to adopt Section 2.  However, it did overrule an earlier case, Azzarello v. Black Bros. Co., that had resulted in strict liability in name, negligence in theory, and absolute liability in practice, recognizing that it was “impracticable and inconsistent.”

Two justices concurred in the “long overdue overruling” of Azzarello, and dissented as to the rest of the opinion, arguing instead that the court should have adopted Section 2.  All in two succinct, straightforward paragraphs.

How all this will play out in future cases in Pennsylvania is anyone’s guess.  As the court notes at the end, “This Opinion does not purport to either approve or disapprove prior decisional law, or available alternatives suggested by commentators or the Restatements, relating to foundational or subsidiary considerations and consequences of our explicit holdings.”   Such a decision does lasting harm to certainty in the law, to the detriment not only to lawyers who must attempt to counsel clients, and lower courts that must decide cases, but also to the state’s economy.  Certainty promotes business innovation and development by letting companies know what they can and cannot do  Certainty avoids the costs of lawyers and consultants who must interpret, clarify, explain, and advise manufacturers about the potential liabilities that follow every business decision.  Without predictable liability costs, Pennsylvania business are rendered less competitive.  Having failed to bring clarity and coherence to design defect liability in Pennsylvania, the state’s supreme court failed its individual and business citizens as well as the legal community that serves them.

Many thanks to Mark Jakubik, our local counsel who assisted with the filing our PLF’s brief.

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Amicus support for PLF’s Delta smelt cert petition

PLF’s cert petition in Stewart & Jasper Orchards v. Jewell, which seeks review of the Ninth Circuit’s decision upholding the Delta-smelt-inspired water cutbacks to Southern California and the San Joaquin Valley, has received significant amicus curiae support.  Our thanks to the American Farm Bureau Federation, the California Farm Bureau Federation, Farm Credit West, the National Federation of Independent Business, the Cato Institute, Mountain States Legal Foundation, and the American Civil Rights Union for their briefs filed earlier this month.  The government’s response to our petition is due December 3.

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Florida growls back at PLF

Yesterday, the State of Florida filed its response to Pacific Legal Foundation‘s lawsuit IMG_2171on behalf of the Crafted Keg. In that suit, PLF seeks to overturn Florida’s irrational ban on 64-ounce beer growlers. Not surprisingly, the government has moved to dismiss the case, once again reflecting that governments rarely meet a PLF case that they like.

That’s okay. Like most Americans, we don’t like governments when they overreach their constitutional authority, either.

We look forward to arguing to the district court that the state’s growler prohibition is unconstitutional. We will premise our argument in part on a point we made in the pages of the Orlando Sentinel earlier this week:

Economic freedom—the right to earn a living by running a business free from unreasonable interference by the government—is one of the central elements of the American dream. From the very founding of the country, Americans have cherished the opportunity to start a business, provide for themselves and their families, and make their customers happy and their communities strong.

Arbitrary restrictions on economic freedom, like Florida’s senseless growler ban, deprive entrepreneurs of the freedom of choice guaranteed by the Constitution.

Or, as our clients explained in that same op-ed:

“We want to give everyone great service, but the growler restrictions are a barrier,” Piasecki says. He adds that the case isn’t just about their own business. “It’s for the principle of the thing. It’s about freedom and free enterprise.”

Thanks to the Orlando Sentinel for publishing our op-ed. And thanks to radio host Zeb Bell, who asked PLF to discuss its growler lawsuit on his popular radio show this past Monday. You can hear (and watch) that interview at this link.

Update: Please look for PLF and Guy Piasecki of The Crafted Keg discussing the case later today at about 8:30 a.m. on the CBS This Morning program. Check your CBS affiliates.

Second Update: Because of late-breaking news this morning, the story was bumped “at the last minute.” When we have a new run-date, we will share.

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Elite universities sued over race-based admissions

Yesterday, Harvard University and the University of North Carolina were sued over their race-based admissions practices. The complaints (here and here) describe, in detail, the divisive use of race at both universities.

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“Tim the Lawyer” talks with A&G about PLF’s victories for property rights & constitutional liberty

I joined our friends on the Armstrong & Getty Show this morning to talk about PLF’s recent victories in the Utah prairie dog case and the SDS Family Trust case against the Coastal Commission, as well as our ongoing challenges to Obamacare. If you missed it, you can listen to the podcast here.

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PLF files another brief supporting federal court access for takings plaintiffs

Last Friday, PLF and the Cato Institute filed an amicus brief in another attempt to get the Supreme Court to finally overrule Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City. Frequent readers of the Liberty Blog will recall that Williamson County requires property owners to bring their Takings Clause claims in state court in order to “ripen” them for review in federal court. However, because of traditional doctrines like claim and issue preclusion, federal courts cannot hear claims that were already raised or could have been raised in state court. This leaves property owners without an avenue to ask the federal courts to protect their constitutional property rights.

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Will the new Congress do its actual job?

The newly elected 114th Congress will take office in January.  Amid the political commentary surrounding this month’s elections, many talking heads have discussed whether the nation will relive another government shutdown as Republicans in the legislative majority seek leverage over President Obama’s Democrats who control the executive branch. Senator McConnell has assured the media this will not occur, while Speaker Boehner has left himself room to maneuver on the question.

Most look at this question from the perspective of whose political fortunes a shutdown would advance or harm.  This discussion is troubling. Too many presume the executive branch is owed the current level of funding, and has an inherant right to decide how to spend money it taxes and borrows ad infinitem.  That so many think of the power of the purse as a tool for petty gamesmanship reflects a long history of both parties refusing to make hard budget choices and surrendering their authority to the administrative state.

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New video on PLF’s victory in prairie dog case

People for the Ethical Treatment of Property Owners is a group of Utah property owners and local government that pushed back against unconstitutional federal regulations that barred them from building homes, starting businesses, and, in the case of the local government, protecting an airport and cemetery from a thriving rodent population. As reported two weeks ago, a federal judge agreed with them, issuing an unprecedented ruling enforcing the Constitution’s limits against the Endangered Species Act’s incredibly broad prohibitions. This video explains what this important decision means for both the Utahns that have long suffered under the Utah prairie dog regulations and the rest of us who care about constitutionally limited government.

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But, Mr. Gruber, most Americans were not fooled about Obamacare

Professor Jonathan Gruber’s been getting a lot of bad press lately for his repeated acknowledgments that advocates of Obamacare lied to the American people in order to get the bill passed. These are being treated as “smoking gun” statements, or as “confessions,” which seems odd to me, at least, because I thought it was pretty well known how much of Obamacare is a fabrication.

But laying that aside, it’s worth emphasizing that these lies of which Prof. Gruber was so proud did not work. For instance, Prof. Gruber’s statement that “lack of transparency…was really, really critical to getting the thing to pass” because of “the stupidity of the American voter” ignores the fact that the American voter wasn’t fooled by the lies and obfuscation. Most Americans have never favored Obamacare, from day one. They voted for the presidential candidate who opposed the Individual Mandate, and when they had the opportunity, chose a Republican to replace Ted Kennedy in the Senate in hopes of stopping the bill from becoming law. Only parliamentary trickery, in the middle of the night on Christmas Eve, managed to get the bill enacted. And ever since, the majority of Americans have not only never supported the law, but they’ve grown more opposed to it over time. Maybe that’s why the Democratic Party has been “hollowed out” lately.

Meanwhile, litigation continues over a variety of other problems with the law.

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