A new approach to species protection

Laws can worsen the problem they aim to fix. For example, in colonial India, the British government placed a bounty on cobras to rid Delhi of a snake infestation. When entrepreneurs began to breed cobras to cash in on the bounty, the government scrapped the program. So the snake breeders released their cobras into the streets. The net result: more cobras. Continue reading

Must BP compensate people who were never harmed by BP?

60 minutes has a fascinating piece that illustrates many of the problems with the civil justice system today.  After the Deepwater Horizon spill in 2010, BP entered into a settlement agreement in which it agreed to pay businesses for losses to that arose following the oil spill.  But plaintiffs’ attorneys interpreted that clause to mean that businesses could receive compensation for any kind of losses they suffered after the oil spill, even if those losses were not caused by the spill.

One lawyer’s solitication stated, “The craziest thing about the settlement is that you can be compensated for losses that are unrelated to the spill.”

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Seawall and staircase decision draws local outcry

Over the weekend, San Diego journalist, Thomas K. Arnold, penned a stinging rebuke of the 2-1 court of appeal decision in Lynch v. California Coastal Commission, which threatens bluff-top homeowners’ property rights—including the right to protect their homes with seawalls.

Arnold rightly criticizes the Coastal Commission’s “war against bluff top homeowners” over seawalls, along with the splintered court opinion that promises “detrimental implications for all coastal property owners in California whose properties are in danger of being eroded by the sea.”

President’s weekly report — September 26, 2014

Property Rights — Suction Dredge Ban Undermined

The California Court of Appeal has issued a decision that seriously undermines California’s ban on suction dredge mining. Adopting the argument of our amicus brief, the Court held that a state ban forbidding all commercially beneficial use of a federal mining claim is preempted by federal mining law.  For more, see our blog.

Environment — Sea Otters and Sea Urchins

PLF has filed its opening brief in the Ninth Circuit challenging the dismissal of a challenge brought by Southern California fishermen against the U.S. Fish and Wildlife Service’s decision to violate federal law by terminating protections for them and their fishery guaranteed by Congress. For more, see our blog.

Separation of Powers, Liberty, and Supermajorities Continue reading

A new, and unconstitutional, approach to contract law

Patricia Atalese signed a contract with a financial services firm, in which she agreed that “any claim or dispute” between herself and the firm, related to the services provided, “shall be submitted to binding arbitration upon the request of either party” and “[a]ny decision of the arbitrator shall be final and may be entered into judgment in any court of competent jurisdiction.”  This standard language is easily understood to mean that disputes will be resolved in arbitration.  But Ms. Atalese argued to the New Jersey Supreme Court, in Atalese v. U.S. Legal Services Group, that because the contract does not say that she “waived” her right to go to court, the language is ambiguous and she therefore should be allowed to sue.

This week, the New Jersey high court agreed, rendering the contract useless.  Pacific Legal Foundation had filed an amicus brief, specifically addressing the role of “magic words” in the law.  Rights can be waived in many contexts, without using the word “waiver.”  The court’s decision specifically called out PLF’s brief, and agreed, in theory, that no specific language is required.  However, the court then turned right around and ruled that, although it would not dictate the particular words contracting parties must use, the contract must include language specifically stating that the parties understand that “arbitration” is a different dispute resolution forum than state or federal courts.

The court has a rather dim view of the state’s consumers, as it explains that they cannot be expected to understand the meaning and import of the words “binding” or “arbitration,” but that the contractual language must include legal advice as to the benefits and trade-offs in choosing to resolve disputes in arbitration instead of in court.  The court’s view of an ignorant public is unjustified given that anyone who has purchased a car, applied for a credit card or a job, has a cell phone, or rented an apartment has seen those black-boxed bolded arbitration provisions highlighted in their contracts.  Everyone has the right and ability to investigate and consider the terms of their agreements – and they should do so.  By demanding that arbitration contracts, and only arbitration contracts, must contain these advisory provisions, intended to discourage consumers from agreeing to contracts that call for arbitration if a dispute should arise, the New Jersey Supreme Court runs afoul of the Federal Arbitration Act and the federal substantive common law of arbitration contracts, time and again upheld by the United States Supreme Court.

U.S. Legal Services Group should petition the Supreme Court to hear this case.  If it does, PLF will certainly provide amicus support.

Special thanks to Jed Marcus and Emily Bordens at Bressler, Amery & Ross in Florham Park, New Jersey, for providing tremendous assistance as local counsel.

Arizona can’t avoid a supermajority voting requirement just because it wants to

Today we filed an amicus brief in a case challenging Arizona’s Medicaid expansion.  Like California (and many other states), Arizona’s constitution requires that all taxes be passed by a supermajority vote—in this case, 2/3 of the legislature.  The Medicaid expansion included a tax on hospitals in order to pay for the program, but the Arizona Legislature passed the measure using a simple majority vote.  When a group of legislators and taxpayers sued Governor Jan Brewer, arguing that the law violated the constitutional supermajority requirement, the Governor responded first that the court could not hear the case because the Legislature had the sole authority to decide whether a supermajority vote was needed, and second that the legislators could not bring the lawsuit because they had not suffered any injury.  The trial court agreed, and threw out the case.  But the Court of Appeals overruled and held that the plaintiffs could sue to enforce the constitutional supermajority requirement.

In our brief, we urge the Arizona Supreme Court to affirm that holding.  A legislative majority will always have an incentive to argue that a supermajority requirement does not apply.  After all, those limitations are enacted in order to restrict the majority’s power.  To allow the legislature to decide whether it has to comply with supermajority requirements would render those limits meaningless.  We note several cases from California and other states where simple majorities have tried to subvert supermajority requirements.

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Defending property owners along the Great Lakes

indiana mapLongtime readers know that Pacific Legal Foundation has defended property owners along the Great Lakes for many years.  These states have a history of trying to grab land for free from private property owners (see here for an example in Michigan, and here for an example in Ohio), using an ersatz version of the centuries-old public trust doctrine to shield what amounts to grand theft property.

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Permit needed to keep trespassers off private property

Yesterday, a San Mateo Superior Court judge issued a stunning tentative ruling in one of the two Martins Beach lawsuits pending against coastal landowner Vinod Khosla.

The judge concluded that the decision to disallow the public to trespass onto private property–after allowing the public to do so for a fee–constitutes “development” requiring a Coastal Development Permit from the California Coastal Commission.  The immediate effect of the ruling, if it becomes final, is that it forces Khosla to re-open his private property while he applies for a permit allowing him either to close it off or to modify the terms and conditions of public access.

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PLF’s Timothy Sandefur discusses occupational licensing and economic freedom on Cato’s Daily Podcast

In this Cato Daily Podcast, I discuss two PLF cases involving occupational licensing laws and the right to earn a living: our case on behalf of California entrepreneur Leslie Young and her business, elist.me, in which the state of Nebraska is arguing that you have to have a state real estate broker license before you can help advertise property “for sale by owner”–and the North Carolina Dental Examiners case, which asks whether private parties are exempt from the antitrust laws when they use government to monopolize a trade.

EPA abandons poultry farm appeal

The EPA has withdrawn its appeal of a West Virginia federal district court’s decision holding that the Clean Water Act’s regulatory regime for industrial stormwater does not apply to runoff from a poultry farm, where the “industrial” aspects of that poultry farm occur in housed and closed-off areas.  That’s good news for Lois Alt, the property owner, as well as livestock and poultry producers throughout the country.  Nevertheless, the appeal in the Fourth Circuit may still proceed if several environmental groups are allowed to intervene.  If so, we hope to participate as amicus to defend the district court’s reasonable interpretation of the statute.