Missed opportunity: California Supreme Court refuses to hear “adjacent liability” case

Yesterday, the California Supreme Court denied the petition for review in Sherman v. Hennessy Industries, in which the California Court of Appeal held that the manufacturer of a safe product can be liable for injuries caused by unsafe products used with the safe product.  PLF had urged the Court to accept the case.

The court below held that an “arcing machine”—essentially a highly calibrated saw used to customize brake linings—is liable for injuries caused by asbestos dust released by certain brake linings even though the machine itself contains no asbestos.  The Supreme Court’s refusal to heard the case lets stand the lower court’s broad exception to the general rule announced in O’Neil v. Crane Co., that “California law does not impose a duty to warn about dangers arising entirely from another manufacturer’s product, even if it is foreseeable that the products will be used together.”  The rule in California now allows plaintiffs to target manufacturers of safe machines if the machines are sold to businesses likely to use them on products containing asbestos, thus receiving an “indirect economic benefit” from the asbestos-containing products.

This decision is yet another hit on California’s economy.  Manufacturers of safe products, outside the chain of commerce of the injury-producing product, are now required to absorb the costs of injuries caused by other companies – only because those other companies were long-ago sued into bankruptcy.  This end-run around O’Neil will undoubtedly generate more litigation, which means that the California Supreme Court has not heard the last on this subject and may yet have an opportunity to decide whether the state really wants to impose tort liability based on an indirect economic benefit.

Race and Charter Schools in the Big Apple

PLF regularly files briefs in support of parents’ ability to take their children out of the public school system and send them to charter schools. Charter schools are particularly important for poor and minority children who have no choice but to attend low-performing neighborhood schools. Without choice in the lower grades, those children may never achieve academic success, attend college, or find a good job.

In New York City, parents of poor minority children want their children to attend charter schools, especially those that have proven themselves by setting a high bar for all students, holding teachers accountable, and regularly outscoring schools in wealthy suburban areas. An article in the Wall Street Journal, provocatively entitled “Where Black Lives Don’t Matter,” highlights the inequality of New York’s public school system, and discusses the refusal of Mayor Bill de Blasio and the education establishment to support charter schools in poor neighborhoods.

According to the article, a half million children–almost all of color–are being forced into failing schools. Fortunately, parents who want a better future for their children are fighting back. Families for Excellent Schools, a pro-charter organization, has sponsored television advertisements showing the cost of the existing inequality. The organization is also planning a pro-charter rally, where parents and students will march over the Brooklyn Bridge to deliver thousands of postcards to the mayor demanding an end to “separate and unequal schools.”  Will the progressives who run New York City overcome their aversion to charter schools or their allegiance to the teachers-union?  Probably not.

PLF’s Timothy Sandefur to testify to U.S. Senate about economic liberty and the rights of minorities

The Senate Judiciary Committee’s Subcommittee on Oversight, Agency Action, Federal Rights, and Federal Courts is holding a hearing Tuesday called “Opportunity Denied: How Overregulation Harms Minorities.” I’ll be testifying about how occupational licensing laws and Competitor’s Veto laws exclude would-be entrepreneurs from the marketplace—with disproportionately negative consequences for members of minority groups—and how Congress could act today to protect the fundamental human right of economic liberty against unjust state interference. Continue reading

PLF at the Supreme Court, Part I on Courting Liberty

PLF attorneys discuss petitions currently before the Supreme Court, including petitions dealing with wetlands, mandatory affordable housing, and the forced merger of parcels for the purpose of avoiding compensating landowners.

In this week’s Courting Liberty Podcast, PLF Director of Litigation Jim Burling leads the discussion on PLF’s petitions with PLF Principal Attorney John Groen, PLF Principal Attorney M. Reed Hopper, and PLF Senior Staff Attorney Tony Francois.


Recording of 10th Circuit argument in Utah prairie dog case

The Endangered Species & Wetlands Report has obtained the recording of the Monday’s oral argument in the Utah prairie dog case. As you’ll recall, this is the constitutional challenge to the federal government’s authority to regulate any activity that affects any living thing under the Commerce Clause. As we argue, the Commerce Clause isn’t an open-ended grant for the federal government to regulate whatever it wants. Late last year, the district court agreed, holding that the regulation exceeds the federal government’s constitutional power.

As the Supreme Court has held, the Commerce Clause authorizes the federal government to regulate economic activities that substantially affect interstate commerce. That’s not what the government is doing in the Utah prairie dog case. Instead, its asserting the power to regulate any human activity — regardless of its nature — if it affects a single prairie dog, a species found only in Utah with no appreciable tie to interstate commerce.

The government claims that it can regulate this activity because, as a species, the Utah prairie dog affects the environment, which in turn affects the economy. True though that may be, this argument would be a shocking expansion of the Commerce Clause power. For instance, humans obviously have significant impacts on the environment too. Under the government’s theory, it could regulate any activity that affects a single person, contrary to several Supreme Court decisions.

You can listen to the full argument here.

Will Cincinnati award contracts based on race?



Last year the City of Cincinnati agreed to pay a California-based company about $1 million to analyze city contracts for evidence of discrimination. The disparity study, which was actually completed in July, was finally released to the public this week. According to one news report, the study found disparities in City contracting that may justify the use of measures to “even the playing field.”  Another article said the study’s findings could “clear the way” for the City to pass “race- and gender-based preferences in contracting.”

Whoa! Not so fast. Let’s take a quick look at the law and the study.

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Property rights & the Roberts Court

In an article published today by Engage, PLF attorneys Brian T. Hodges and Christopher M. Kieser consider the U.S. Supreme Court’s most recent property rights case, Horne v. United States Department of Agriculture, in the context of the Roberts Court’s property rights jurisprudence.

Spoiler alert: the Court’s track record is better than you’d think. Continue reading

PLF to join rally to restore water deliveries to California’s Central Valley

PLF attorney Tony Francois will be one of the speakers at the Taking Back Our Water rally this Friday, October 2, 11 am – noon, at Rojas-Pierce Park in Mendota, California. If you are in the area, come and join us to learn more about how the US Fish and Wildlife Service has devastated the communities, economy, and environment of the Central Valley through its efforts (now shown to be largely futile) to protect the delta smelt.


The one remaining smelt for which the Fish and Wildlife Service has sacrificed the Central Valley

The one remaining smelt for which the Fish and Wildlife Service has sacrificed the Central Valley

An orchard sacrificed to save one smelt.

An orchard sacrificed to save one smelt.

Why conservatives still hate environmentalism

Pacific Legal Foundation does a lot of work protecting property owners from overbearing environmental regulation. Since that is how we roll, it was impossible not to notice the enthusiasm with which the environmental movement in the United States greeted last week’s visit of a certain world religious leader. PLF does not involve itself in religious questions, but it is always appropriate test how general principles (of whatever origin) are applied to the facts on the ground.

With that in mind, I offer my take over at The Imaginative Conservative on why defenders of liberty are so skeptical of the environmental movement, despite calls for detente from self-described “crunchy cons” who support conservative and environmental causes with equal zeal. The bottom line:

with its subordination of human needs to the supposed demands of nature, modern environmentalism cannot credibly convince conservatives . . .. Environmentalism as a movement also derives too much from the administrative state and the rejection of property rights and the rule of law for it to appeal to conservatives. When the movement fails to elicit conservative support for its practical goals, the problem is not inadequate framing, or failing to selectively quote Francis effectively. It is the lack of foundational principles that are actually conservative.

Please read the entire piece here.


PLF’s annual Supreme Court Preview lunch event on Oct. 2 in Washington D.C.

PLF’s DC Center is proud to organize our second annual Supreme Court Preview event thisponnuru Friday, October 2, at noon EDT, which we are co-hosting again with National Review and the National Review Institute. After a brief welcome and introduction by PLF, National Review’s senior editor Ramesh Ponnuru will moderate the discussion. Like last year, we have a “fair-and-balanced” panel of renowned Supreme Court advocates to discuss the important cases already on the Court’s docket, those the justices will accept this week from their Long Conference, and those they are likely to seriously consider and potentially hear later in the term, including several PLF cases we have asked the Court to hear.

Our distinguished panelists, Michael A. Carvin (Jones Day), Kannon K. Shanmugam (Williams & Connolly), and Paul M. Smith (Jenner & Block), have argued about 50 cases before the High Court between themselves, and they are arguing some of the most significant cases this term as well. The Court has already agreed to hear an explosive case challenging dues from non-union teachers, Friedrichs, et al. v. California Teachers Association, which Mike Carvin will argue on behalf of the teachers who don’t want to be forced to pay dues to a union of government employees. PLF has filed an amicus brief in support of the non-union members.
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