Fifth Circuit: Univ of Texas may admit students using race

Should public universities make admissions decisions based on a student’s race?  Last year, in Fisher v. University of Texas, the Supreme Court held that race could be considered, but only after a university establishes that its use of race is narrowly tailored to achieve “the benefits of a student body diversity that encompasses a broad array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.”  The Court then vacated an earlier Fifth Circuit decision which had approved the use of race by the University of Texas, and remanded the matter.

Today, the Fifth Circuit ruled that the University of Texas could continue to use race in student admissions in order to obtain a “critical mass of campus diversity.”  There is at least one rather large problem.  Neither the University, nor the court, ever specifically defined what that means.  As Judge Emilio Garza pointed out in his dissent in the latest Fisher decision by the Fifth Circuit:

Continue reading

South Florida Sun-Sentinel focuses on PLF Atlantic Center

As you know, Pacific Legal Foundation‘s Atlantic Center has scored two recent victories in the battle to keep the federal government honest.  Christina Martin, one of PLF’s College of Public Interest Law fellows, wrote about the Fish & Wildlife Service’s decision to downlist the wood stork here, and she wrote about Fish & Wildlife Service’s decision to review the status of the manatee here. The government took both of those actions in response to ongoing PLF pressure to follow federal law, pressure that Martin and the rest of the Atlantic Center team brought to bear.

Florida news media has taken notice of these PLF victories.  After stories featuring PLF were published in the St. Augustine Record, the Fort Myers News-Press, and elsewhere, the South Florida Sun-Sentinel decided to do a more in-depth story featuring our successes and a few PLF critics.  You can read that story at this link.

Although this Sun-Sentinel story itself is relatively fair (the headline not so much), the fact remains that there is much left out of the story.  PLF focuses on its environmental cases not because we want to ‘threaten’ any species (despite the misleading headline in the Sun-Sentinel article), but rather because we expectas citizens of the United Statesfor the federal government to follow the law.

Here, the Endangered Species Act (ESA) required the government to act within a period of time to follow its own recommendation to downlist the wood stork because of the gains made in wood stork population; similarly, the ESA required the government to act in regards to the gains made in the manatee population, as well.  If federal law required a private citizen to take action, we are quite certain that the government would not hesitate to bring the full force of its authority (and then some) to enforce the law against the citizen who purportedly failed to do so.

Americans should expect its federal government to follow the same laws that the government expects Americans to follow.

Should grizzly bears return to the California Sierras?

A rag-time bear (public domain)

A rag-time bear (public domain)

So thinks the Center for Biological Diversity, which recently petitioned the United States Fish & Wildlife Service to establish experimental populations in the state.  An editorial in this weekend’s Sacramento Bee takes a cautious approach to the proposal, the writer concerned (I would say reasonably) about the risk of injury or death to human beings from bear attacks.

The editorial quotes a CBD rep to the effect that Californians shouldn’t be concerned about bear reintroduction because: “It’s on your flag. It’s on the highway signs. The name is all over the place. It’s really such a part of the state’s history and heritage.  And California is a pretty wildlife-friendly place … a place where people can get behind this.”

Continue reading

President’s weekly report — July 11, 2014

Government Overreach and Overcharging — Fishing for Prison Time

PLF, on behalf of itself and several commercial fishing organizations across the United States, filed this amicus brief at the United States Supreme Court this week in Yates v. United States.  This is the case where a fisherman is said to have destroyed evidence in violation of the financial crimes statute known as Sarbanes-Oxley or “Sarbox.”  You may recall that Sarbanes-Oxley was adopted in the wake of the Enron scandal.  So what, you might be thinking, does fishing for grouper have to do with Enron-style crimes?  It seems that after a federal inspector boarded Yates’s fishing boat the inspector allegedly found some undersized fish.  (Whether they were or were not undersized is not that obvious and may depend on whether you measure them with their mouths opened or closed.)  The inspector ordered Yates to put the fish into a special crate for evidence, to be examined in more detail back on land.  When Yates returned to shore, there were three fish missing.  Now, if Yates had indeed violated the fishing regulations, there could be plenty of reason to penalize him for those violations, which might even include some jail time.  But because he was alleged to have ordered the three missing fish to be tossed overboard, he is now being charged with a violation of Sarbox — for shredding evidence.  He could face 25 years in federal prison for allegedly scuttling the fish.  Now we don’t happen to think the Sarbox net should be cast this wide, nor do we believe that Congress intended to snag such non-financial activities.  Yates might have been fishing for grouper, but he wasn’t banking them in an offshore account.  This sort of “overcharging” by the Feds is simply wrong.  Yates should be charged for the crimes that relate to what he actually might have done, and not for crimes that are completely disproportionate and unrelated to his actual behavior.  For more information, see our blogContinue reading

Texas Supreme Court requires proof of causation in asbestos cases

Timothy Bostic died from mesothelioma, which he alleged was caused by his exposure to asbestos from a variety of sources, including his use of asbestos-containing joint compound manufactured by Georgia-Pacific Corporation when he was a child and teenager helping his father on weekend drywall projects.  He originally sued dozens of defendants and, in this case, Georgia-Pacific was the sole defendant that refused to settle, because the company argued that Bostic’s youthful incidental exposure to its products could not be proved to have caused his illness, particularly because, as a young adult, he worked at a company to which he was consistently exposed to asbestos-containing products.

Today, in Bostic v. Georgia-Pacific Corp., the Texas Supreme Court agreed with Georgia-Pacific and PLF, which filed an amicus brief in the case, by reaffirming the fundamental tort principle that liability must be based on proof of causation by a preponderance of the evidence.  The court refused to ignore the importance of dose in determining a causative link and impose liability even where the plaintiff might have become ill from his exposure to background levels of asbestos or some other reason.  It held that even in mesothelioma cases proof of “some exposure” or “any exposure” alone will not suffice to establish causation because if any exposure at all were sufficient to cause mesothelioma, everyone would suffer from it or at least be at risk of contracting the disease.

The court explained that a less demanding standard for causation in mesothelioma cases would impose “absolute liability against any company whose asbestos-containing product crossed paths with the plaintiff throughout his entire lifetime.”  The court expressly rejected the plaintiff’s “any exposure” theory of liability:  “We fail to see how the theory can, as a matter of logic, exclude higher than normal background levels as the cause of plaintiff’s disease, but accept that any exposure from an individual defendant, no matter how small, should be accepted as a cause in fact of the disease.”

The court stopped short, however, of adopting the appellate court’s requirement that the plaintiff show that “but for” his exposure to Georgia-Pacific’s products, he would not have contracted mesothelioma.  While recognizing that “but for” causation is the recognized standard of proof for causation-in-fact in products liability cases, the court held that due to the nature of asbestos-related diseases that manifest over the course of many decades, a “substantial factor” analysis is the appropriate basic standard of causation.  The court feared that a “but for” standard would render it impossible for a plaintiff to establish causation.  The “substantial factor” test “subsumes the ‘but for’ test while reaching beyond it to satisfactorily address other situations,” such as toxic tort cases where the plaintiff suffered exposure from multiple sources.

The court further defined a “substantial factor” as one that more than doubles the risk of injury to the plaintiff.  A more than doubling of the risk must be shown through reliable expert testimony based on reliable epidemiological studies.  The plaintiff need not track down every possible source of asbestos exposure and disprove that those exposures caused the disease.  But, if there is evidence of exposure from other defendants or sources, then a plaintiff’s proof that a a particular defendant’s product more than doubled his risk of injury may not suffice to establish substantial factor causation because “a defendant’s trivial contribution to multiple causes will not result in liability.”  For example, if one defendant’s product more than doubled the plaintiff’s chance of contracting a disease, but another source of asbestos increased his chances of illness by a factor of 10,000, then the defendant’s product was not a substantial factor in causing the disease.

Because the plaintiff in this case relied on the discredited “any exposure” theory of causation, and submitted no evidence as to the dose of asbestos attributable to Georgia-Pacific, the court held that the plaintiff failed to prove that Georgia-Pacific caused Bostic’s illness and therefore, the company is not liable.  In so doing, the Texas Supreme Court joined others (notably, the Pennsylvania Supreme Court) in restoring traditional tort principles to asbestos cases.

PLF opposes fishy federal prosecution

With PLF's help, the sun should set on a fishy federal government prosecution.

With PLF’s help, the sun should set on a fishy federal prosecution.

This week, Pacific Legal Foundation filed a friend of the court brief at the Supreme Court of the United States on behalf of a Florida fisherman named John Yates.  Mr. Yates, a grandfather and commercial fishing boat captain for hire, found himself reeled in by a federal government in an overzealous prosecution.  The government took the position that commercial fishermen, who already face overwhelming federal and state civil regulations on the size, amount, and types of fish they catch, should also face the risk of decades in prison, as well. Continue reading

PLF’s law student writing competition – $6,000 in total prizes available

“In the constitution of any people whatsoever,” wrote Alexis de Tocqueville, “one reaches some point at which the lawgiver is bound to rely on the good sense and virtue of the citizens.” The law, after all, is a guidepost—a framework for legal action. But if the people don’t believe in the laws—if they don’t understand or care about the Constitution—then even the best designed system in the world won’t last long. The Constitution is not a system that runs on its own; it needs us to understand and cherish it.

That’s why PLF has, for decades, taken very seriously its role in helping to change the climate of ideas in the legal academy, and to educate the next generation of lawyers, judges, and law professors. One way we do that is through our Program for Judicial Awareness, which for almost 20 years, has produced cutting-edge legal scholarship that is helping make the case for freedom before lawsuits even reach the courtroom. PLF scholarship has been cited by federal and state courts across the country, helping shape the law of property rights, racial equality, economic liberty, and the procedural rules that sometimes limit people’s right to their day in court.

Perhaps even more important has been our law student writing competition. And we’re proud to announce the revival of PLF’s writing competition for law students this year, with $6,000 in total prizes for full- or part-time students. In addition to the grand prize, our top winner will be presented with an award at our annual PLF gala event. And competition winners will work with our staff to have their winning entries published in a law review.

In addition to helping to cover the ever-rising cost of law school education, our writing competition has often helped open doors for students who have reached high-level careers in public interest firms, government agencies, and private practice.

For more information, and the competition topics, check out our Writing Competition website.